The International Criminal Court; An Answer to America?

Éomer of Rohan

An increasing thought has been occurring to me, not simply of American hypocrisy but of the absolute necessity of dismissing a might is right idea.

The International Criminal Court effectively popped into existence yesterday, 11/03/03, with the inauguration of the judges. This court, set up by the Rome statute constitues a body of 78 nations which have ratified said statute and 160 which have signed it. The purpose of this court is to deal with those accused of crimes against humanity, the best example being genocide. It has been further discussed within the United Nations, to which the ICC is directly linked via the UN Codifying Division despite claims to the opposite by certain parties.

George W Bush and the present American administration have made no secrets about their disregard for the ICC and have made clear that they will not be ratifying the Rome statute. Furthermore the US has been concluding agreements with nations such as Romania and other Eastern European nations that would force that nation to consult the US government before handing over a criminal to the ICC; in political situations, something which defeats the purpose of the ICC, to be a fair and universal court. The US has announced that it wishes permanent immunity for its army regardless of the circumstances and has stonewalled all attempts at compromise. Does this sound like a nation interested only in human rights and other high minded ideals?

I believe the ICC has the potential to supersede the Hague (which ultimately is Nato's stomping ground) and other such attempts at courts, such as the recent UN backed one in Sierra Leone, providing a method of balancing 'might' with justice rather than using might AS justice. This court should even ultimately have the power to try George W. Bush as the supreme commander of US forces following a war in Iraq, no? The Americans are however intent on it becoming a biased organisation in my opinion, I just wish to know what the wider consensus is...

Indeed, the U.S doesn't like subscribing to organisations that might constrict, it's foreign policy.
They are even more convinced than ever now,not to join or appease, what doesn't suit them.

I note the latest opinion poll in the U.S ( mentioned on newsnight last night ) shows a slim majority favouring war without a second resolution, the French are to blame for that methinks, ie Mr Chirac, saying he wouldn't support a 2nd ( 18th ) resolution on Iraq under any circumstances.

But then Michael Moore will say we musn't believe these polls:rolleyes:
mm

BattleBoar

How can we trust the ICC when its very charter is a violation of the most fundamental law on treaties,

Article 34
General rule regarding third States

A treaty does not create either obligations or rights for a third State without its consent.

(h) “'third State”' means a State not a party to the treaty;

source:http://www.un.org/law/ilc/texts/treaties.htm

The Internation Criminal Court, however, claims to have jurisdiction anywhere on earth as soon as 60 nations have ratified it. The fact that the UN would violate its very own charter on treaties from the vienna convention law that was concluded in 1969 does not lend one confidence that the court will be just in its application of the law. Its breaking its own law before it even tries a case! This is the very reason why the senate felt the need to pass legislation authorizing all means neccesary to free american citizens held by the ICC. If the court had followed the laws of the Vienna convention, such legislation would not have been required.

That coupled with the fact that the crimes are left intentionally vague. What is "aggression" as definined by this court?. Or how about: "Committing outrages upon personal dignity". This, coupled with the fact that the court has been given nearly unlimited powers to undertake cases referred by anyone...states, the security council, even an NGO.

I'm surprised at you Eomer. As much as you seem to have on the one notion that power corrupts you would support the creation of a court which has no legitimate basis for its claimed authority, no protections against abuses, no accountability, and virtually no limits to its jurisdiction? Perhaps it is not absolute power you disagree with but rather power held by america. The ICC is a disastrous recipe for the subjegation of people to judicial tyranny if left unchecked. Bet on it.

Now that I've highlighted a couple major issues with the ICC, Allow me to enlighten you on the american constitution, which happens to be the oldest enduring national constitution in existance. The constitution states in Article VI, section 2 that treaties signed and ratified bear as much weight as any american law passed by both houses of congress and signed by the president. However, the constitution also requires under Article III, section 1, that in america, an american citizen may only be subject to the jurisdiction of the Supreme Court of the United States or a lesser court. So you see to prevent it from being overturned by the supreme court, deferring jurisdiction to the ICC would require nothing less than a change to the oldest enduring national constitution, which in turn requires a three fourths majority of states to vote on and ratify said change in the constitution. And the US is supposed to do all this so that it may subject its citizens to cases brought by NGO's to a court that violates the law of the very UN that founded it, to a set of laws which is undefined and will violate rights granted americans by a little document called the bill of rights? I think not.

A treaty does not create either obligations or rights for a third State without its consent.

I agree totally with this. What right have two nations to decide the fate of another nation, without their consent?

BattleBoar

I agree completely Klaz, and those vienna convention laws were concluded in 1969. Yet those creating the ICC felt that it should be above those laws, that they were inconvenient for its political aims. So they did what any self-respecting beurocrats would do, they broke them. Hence the fact that it has no legitimate basis for its claimed authority.

Victor

Originally posted by BattleBoar
The Internation Criminal Court, however, claims to have jurisdiction anywhere on earth as soon as 60 nations have ratified it. The fact that the UN would violate its very own charter on treaties from the vienna convention law that was concluded in 1969 does not lend one confidence that the court will be just in its application of the law.

Yay, so countries (including Ireland for a very long time) not signed up to the Geneva convention don't have to obey it then?

BattleBoar, there is a big failing in your logic as the ICC remit is for cases that national courts are unwilling or unable to prosecute. If say an American soldier commits a war crime and is prosecuted for it, the ICC cannot intervene.

Originally posted by BattleBoar
that in america, an american citizen may only be subject to the jurisdiction of the Supreme Court of the United States or a lesser court

In America, in The Hague is another matter. Congressional proposal would have the USA invade the Netherlands to free Americans.

Originally posted by klaz
I agree totally with this. What right have two nations to decide the fate of another nation, without their consent?

[sarcasm]What right have two nations [USA, UK] to decide the fate of another nation [Iraq], without their consent?[/sarcasm]

BattleBoar

Originally posted by Victor
Yay, so countries (including Ireland for a very long time) not signed up to the Geneva convention don't have to obey it then?

The UN was the organization that passed this at the Vienna convention in 1969, and this is correct. Don't blame the messenger.

BattleBoar, there is a big failing in your logic as the ICC remit is for cases that national courts are unwilling or unable to prosecute. If say an American soldier commits a war crime and is prosecuted for it, the ICC cannot intervene.

Hmm...apparently I have failed to state my case very well because your response has nothing to do with the contents of my post. I will reiterate for your clarity. The ICC may take cases referred by virtually any source. Do you think the US would try the cases of some NGOs at the recent launching of the ICC calling for former presidents Bush and Clinton to be tried for war crimes? Do you truly believe that americans would not be subject to politically motivated prosecutions? Do you think that the ICC's contention that it is acceptable for a defendant to be in purgatory for up to 5 years awaiting trial satisfies the requirement of the right to a speedy trial set out in the bill of rights? Do you think the US should amend the bill of rights to accomodate the fact that the ICC defendants are not given a trial by jury? How do you define "agression", or, "outrages upon personal dignity"? Do your definitions differ from theirs? Have you deliberately avoided dealing with any of these issues brought up in my post? If so, why?

In America, in The Hague is another matter. Congressional proposal would have the USA invade the Netherlands to free Americans.

Allow me to clarify. The constitution states that the court which is recognized by the US government to have the highest level of jurisdiction MUST be the US Supreme Court. Changing this would mean changing the constitution, which would mean it would have to be ratified by 3/4 of the states.

[sarcasm]What right have two nations [USA, UK] to decide the fate of another nation [Iraq], without their consent?[/sarcasm]

Yes, I sarcastically ignored this not so subtle reference because it was completely irrelevant to the ICC (which happens to be the topic of the thread). Are there not enough Iraq threads on this message board already?

Victor

Tell me, ignoring the US constitution for the moment, what Americans have to fear from the ICC that other people don't?

Originally posted by BattleBoar The ICC may take cases referred by virtually any source.

There is a huge difference between may and shall.

Originally posted by BattleBoar Do you think the US would try the cases of some NGOs at the recent launching of the ICC calling for former presidents Bush and Clinton to be tried for war crimes?

I'm not sure what protections the US constitution offer sitting / former presidents, but weren't cases brought against Clinton (for one). If Bush (or anyone else) became the next Hitler / Pol Pot / Milosevic, then why not? Why are you so sure a future US president (100 years from now) will not behave in such a way? If there is a prima facie case to be answered then it should at least get a hearing. If there is no case it is just as likely to be thrown out by the ICC as any American court.

Originally posted by BattleBoar Do you truly believe that americans would not be subject to politically motivated prosecutions?

You mean like the Starr inquiry?

Originally posted by BattleBoar Do you think that the ICC's contention that it is acceptable for a defendant to be in purgatory for up to 5 years awaiting trial satisfies the requirement of the right to a speedy trial set out in the bill of rights?

The US Bill of Rights does not extend outside the USA, you should know that, Bush does. 5 years awaiting trial is a long time, but look at the complexity of a prosecution like the Milosevic one. I'm fairly sure it doesn't say the preliminary hearing can be 5 years after arrest. I imagine it says the trial must be started / finished within 5 years. And based on some countries rights records 5 years might actually be progress.

Originally posted by BattleBoar Do you think the US should amend the bill of rights to accomodate the fact that the ICC defendants are not given a trial by jury?

I don't care how it is accommodated in domestic US law, but there are many example of trials without jury (organised crime trials, paramilitary crimes (in Ireland), professional juries, military courts, military tribunals). Who would you have for a jury? Who would you have Milosevic have for peers? Lets see how many impartial dictators from middle ranking powers there are in the world that would be willing to sit on the jury?

Originally posted by BattleBoar How do you define "agression", or, "outrages upon personal dignity"? Do your definitions differ from theirs?

I am reasonable sure there are precedents and definitions for both and it will be for the Judges of the court to apply them, not me, not you.

Originally posted by BattleBoar
Have you deliberately avoided dealing with any of these issues brought up in my post?

No, I was merely negligent.

Originally posted by BattleBoar If so, why?

Because I have a lot of other boards to spam at the same time.

Originally posted by BattleBoar The constitution states that the court which is recognized by the US government to have the highest level of jurisdiction MUST be the US Supreme Court. Changing this would mean changing the constitution, which would mean it would have to be ratified by 3/4 of the states.

So change the constitution (Ireland has), it's been done what 27(?) times before. Think of it, no right to Religion, Speech, Press, Assembly, Petition, Bear Arms, Privacy, Due Process, Bail, Freedom from Slavery and equal voting rights. There should be no problem with changing it once again for the right to not be ethnically cleansed.

And what about quasi-judicial bodies like the WTO or say UN human rights organisations. Will the USSC reject their decisions?

Originally posted by BattleBoar Yes, I sarcastically ignored this not so subtle reference because it was completely irrelevant to the ICC (which happens to be the topic of the thread). Are there not enough Iraq threads on this message board already?

Too many, so lets pick say,

NATO -v- Yugoslavia (legitimised by NATO) or
Yugoslavia & Croatia -v- Bosnia (not legitimised) or
the EU -v- Yugoslavia (legitimised by OSCE) or
Syria in Lebanon (legitimised by Arab League) or
the blockade of Cuba (legitimised by OAS) during the Cuban missile crisis or
South Africa in Lesotho (legitimised?) or
the USA (and others) in Korea (legitimised by UN)

or there are many other examples where international or regional organisation have legitimised the intervention in disputes.