International Criminal Court
By Ali Eteraz | Related entries in Foreign PolicyA discussion at my blog got me thinking about this so I thought why not make this my first post on Donklephant (thanks to Justin for the invite).
The idea of an ICC is good: to hold individuals (and not states) responsible for violations of International Human Rights Law. The U.S., along with Iraq, Libya, et al., oppose it. England and France both support it. The U.S. want that an individual can only be liable if the state first consents. Obviously that strips the entire point of the ICC. The U.S., in the alternative, wants that any potential case should be approved by the Security Council. Even the British and the French don’t agree with that (which means we are in agreement with Russia and China on human rights).
I came across a good article which addresses many of the points of the U.S.
Second, U.S. leaders fear that an international prosecutor might bring politically motivated charges against U.S. officials. The concern about politically motivated prosecutions of U.S. (or other) nationals is understandable, but the treaty contains four important safeguards to address this concern.* The court’s jurisdiction will be limited to the most serious international crimes, like genocide and crimes against humanity, and their commission must have been authorized policy by the state for the prosecution to proceed. The United States was closely involved in defining the relevant crimes and in establishing high thresholds to limit the court’s role.
* The proposed court is a court of only last resort. Under the principle of complementarity, the court will not be allowed to act when national judicial systems are available and willing to prosecute suspects. If a state carries out its obligation to investigate a suspected crime, even if it decides there is no reason to prosecute a suspect, the international court cannot intercede. The only exception allowing independent court action is when a state intentionally tries to avoid its international obligation by shielding a criminal from responsibility, as has been the case in Serbia. Because the international court is not designed to supplant effective national judicial systems such as U.S. military and civilian courts, it is extremely unlikely U.S. nationals would ever come before the international court.
* The prosecutor will be accountable to oversight by a panel of judges who will ensure that investigation by the prosecutor is warranted.
* Safeguards exist in the procedures for electing judges, who are to be highly respected justices of impeccable credentials, and for selecting the prosecutor, as well as for his or her removal if the prosecutor engages in politically motivated investigations.
These four safeguards should ensure that the United States would not be subjected to unwarranted charges.
Third, the United States claims that the court’s prosecutor has too much independence to launch investigations, because he or she could do so without a Security Council decision. But if the draft treaty had stipulated instead that the prosecutor could act only with a Security Council referral, then the Council role would surely have politicized the court, treating permanent members like kings, and putting them, as well as all those they would shield with their veto, outside the law. Again, this would be such an extreme violation of fair legal practice that France and Britain, although permanent members enjoying the veto power, both parted company from the United States on this question.
I think people in the states have to recognize the symbolic value of their government’s failure to adhere to international norms. The question is this: do we want to be seen as part of the world, or as better than the world? If the answer to that question is the latter, then are we surprised that the world doesn’t like us?
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August 16th, 2006 at 2:15 pm
The rest of the world doesn’t like us because we are rich, powerful, capitalist, and/or non-muslim. What happens when the countries who hate us appoint judges? All these safeguards are based on arbitrary standards such as “impeccable credentials” and “crimes against humanity.” (for example, Ahmadinajad considers the existance of Israel a crime against humanity)
An international criminal court is fine if every country involved is part of a federation based on the same values. We simply cannot have any non-democratic, socialist, or islamic countries that value sharia, to be allowed to appoint judges, or participate in drafting legislation. But if this becomes the case, then those countries would refuse to be under its juristiction anyway.
Look how the UN drafts a thousand resolutions condemning israel, but not one that defines Hezbollah as a terrorist organization. If Syria, Cuba, Iran ect… can get a seat at the UN human rights council, what do you think will eventually happen to the ICC?
We simply are better than the world, because life liberty and the persuit of happiness for all individuals regardless of race, gender or creed is self-evidently superior to all the other crap promoted by tyrannical nations of “the world.”
August 16th, 2006 at 2:28 pm
That’s the wrong attitude Jimmy.
I’ve met these Judges. Spoken to them at length. They are incredible people. In fact, most, if not all, are educated in the West. They are committed to the post-Enlightenment project of International Law. Even the Muslim ones.
Plus your ’statist’ analysis misses the exact point of this court; namely, that we are people of the world, not necessarily only people of one state. A judge may be born in a tyrannical regime, but that does not mean he is a tyrant.
Read the whole article, it addresses precisely that point.
August 16th, 2006 at 2:43 pm
One look at how the original meaning and scope of the Geneva Conventions has been ‘expanded’ will provide a cautionary example on unintended consequences from well-intentioned international agreements. The Conventions, as originally intended and implemented, were a very good thing.
The International Criminal Court, as currently envisioned, has some good points, but there is no guarantee that it won’t grow into something else over time.
August 16th, 2006 at 3:11 pm
We are better than most of the world. Our systems of justice and legal process are better than most of the world. We can and do investigate and if necessary prosecute and convict any potential war criminals. We do not need an international body to do it for us. We need to make the rest of the world more like the US, not make the US more like the rest of the world.
August 16th, 2006 at 4:24 pm
Ramsey Clark would, with out a doubt, have to lease more office space…
I’m fascinated by the mechanism/procedure here, Ereratz. Who exactly would serve process? I suppose they’d have subpoena power? Would the FBI work for the ICC or would it be my local sherriff’s department? Would it be the Federal Rules of Criminal Procedure in play or the Turkish Rules of Evidence or a combination? Where does one appeal a sentence from the ICC? Who executes the sentence? Is there a probably cause element to bring a charge of genocide — or is it just a bunch of dead people. What about indictments of conspiracy? Would the use be liable for supply arms to one found to have committed genocide.
Your bullet points of reassurance just aren’t. Not all of us are pining for the world’s friendship like a nerd in gym class. I find your reassurance based off your personal meeting with the judges, slightly amusing, but mostly nauseating. And your rectification of Jimmy’s “attitude” pathetic. Who are you to determine the correct “attitude”? And maybe your just a horrible judge of character and thus the Anti-Christ Judge came off as a real Joe-six pack US intellectual.
Your “we are people of the world and not just one state” thing is all fine, BUT YOU MISS THE POINT, not Jimmy. I may be a CITIZEN of the WORLD, but when I’m in the U.S., the U.S. has soveign jurisdiction over me – not some omnipresent global tribunal. Erat, take my word (I’ve met me and I’m an alright trustworthy guy) it will be a cold day in hell before U.S. citizens sign up to give away their freedom and sovereignty to a bunch of self-righteous Euro-trash Belgians.
The only person that would willingly do that to us is Justice Kennedy and I suggest that he stop taking trips to Europe.
August 16th, 2006 at 5:15 pm
Well, I wonder if Americans are the only ones who would be at significant risk of politically inspired charges. If not, does anyone have an example of that happening? If you believe that only Americans are at risk, why do you think so? Are there no regional powers which might excite similar feelings (at least locally)?
It seems to me that the only way to find out whether the ICC, as built with major American input, is workable is to try it. Worst case: we find that all the horrors envisioned by opponents come to pass, and we withdraw from the treaty. Formally, and with an explanation.
August 16th, 2006 at 8:53 pm
I’ll give you an example of what would happen: Lovers of freedom, patriots and men of honor like Major Roberto D’Aubuisson (although he is now dead) would be indicted (or snatched during trips to the doctor in England) and subjected to an international show-trial orchestrated by leftists. Meanwhile, narcotic trafficking, scum bag Marxist terrorists, recruiting, doping and sacrificing children – like El Salvador’s FMLN – would go without reprimand, let alone prosecution. ICC would by its very nature have to pick political sides. It’s a court ostensibly dedicated to prosecuting politicians — be them military strongmen or fanatic clergy or guerillas. If I have to pick a political entity as a moral compass and dispenser of justice, between the U.S. and the ICC — it is going to be the U.S., 8 days a week.
August 16th, 2006 at 9:45 pm
And your reason for believing that this would be how it would work? I assume that it isn’t simple paranoia, but a couple of concrete examples of where it worked out that way would be useful.
August 16th, 2006 at 9:54 pm
Once the rest of the world stops allowing countries like Iran and Libya and Syria to serve on (even chair!) the U.N. Commission on Human Rights, then perhaps I will reconsider my opposition to the ICC. Once the rest of the world learns to police itself a bit better, then we can talk.
August 16th, 2006 at 10:00 pm
Also, Eteraz, even if the judges were as wonderful as you say (I haven’t met them, myself, and have no knowledge of their experience or selection process), that’s not enough. What about the prosecutors? Who will decide which cases to bring before the court? I am not willing to allow my elected leaders to be hauled before some international tribunal for decisions they made to protect my interests, even if some judge a year or two or three down the road would ultimately toss the case out.
August 16th, 2006 at 10:06 pm
Augusto Pinochet. BTW, here is the page for the ICC. http://www.icc-cpi.int/chambers/judges.html
August 16th, 2006 at 11:17 pm
Wow, what a stunning concession. We can prevent anti-semites and conspiracy-crazed leftist lunatics from indicting our officials, simply by indicting them ourselves.
August 17th, 2006 at 9:50 am
Also, what is to prevent any nation from putting a would-be ICC suspect through a sham investigation or even a sham show trial and acquitting them, for the express purpose of shielding them from an ICC trial? Would the ICC send observers to monitor domestic proceedings to prevent countries from exploiting the four safeguards in this fashion? They’d have to, in order to prevent the ICC from becoming a mockery.
August 31st, 2006 at 3:37 pm
A couple of points:
A few contributors talked about what the court “would” be like. Actually, the court is a reality today and its law is in force in 102 countries across the world including nearly all of Europe and Latin America (See here) . One person – a Congolese warlord – has already been arrested and charged with the war crime of conscripting child soldiers and several more investigations have been started. Perhaps a more informed debate would follow if people looked at the actual record of the court.
Secondly, being a member of the court commits a country to allowing an outside court to prosecute your own leading politicians if they commit serious crimes. Very few dictatorships or theocracies have signed up – as you would expect. The court is led by countries with strong democratic credentials.