Thursday, June 09, 2005

The US and the ICC

I saw this quote on one of my favorite blogs - Maxed Out Mama - about the International Criminal Court.

"Anyone that can’t understand why the US should not join the International Criminal Court should be able to figure it out now."

It was in relation to a Spanish Judge wanting to question some US Soldiers in relation to the death of Spanish soldiers. It was off base because the Spanish judge had nothing to do with the ICC. But, it also showed the general misunderstanding of the ICC in relation to prosecution of US soldiers. It has been the argument from the right as to why we should not join the ICC. It is an argument that is wholly unfounded. The Rome Statute that set the rules of the court specifically exempts its jurisdiction from any signatory state that is willing to investigate and hold accountable their own citizens

Article 17
Issues of admissibility

1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

(d) The case is not of sufficient gravity to justify further action by the Court.

The argument that US soldiers would be brought before the ICC for perceived or real human rights abuses is complete false and without merit. Even as an ICC member, the US would retain its right to investigate, prosecute, convict or acquit our own military personnel. Arguing that the US military would be beholden to a world court is just another attempt at misleading the American people.


Boomr said...

Exactly. Again, I'll refer everyone to, the organization that runs the Jessup International Law Moot Court Competition. The topic of the competition in 2004 was the jurisdiction of the ICC, and the teams involved had to research all of the issues, including the "inability or unwillingness to prosecute" argument. I believe some examples of the best briefs and the bench memorandum (written by the competition administrators) are still available.

This discussion reminds me of an episode of The West Wing -- a show I really like, which usually does a decent job of showing how government actually works. The episode concerned ratifying the ICC statute, and Gerald McRaney (as some sort of Pentagon official) was talking to the President's Chief of Staff about some sortie over Vietnam that occurred 30 years before. The crux of the conversation was that the bombing run the Chief of Staff had flown was for a civilian (not military) target, and that the Chief would be potentially prosecutable under the ICC statute.

This is not true, for multiple reasons. First, like Dingo said, if the U.S. had both the ability and the willingness to prosecute for war crimes (which it generally does, no matter how bellicose the administration in power), then the ICC has no jurisdiction. Second, and more importantly for that hypothetical, the ICC only has jurisdiction over those war crimes that occur AFTER the alleged war criminal's country has ratified the ICC statute -- which, for the U.S., would now preclude prosecution for all war crimes from Vietnam, Granada, Panama, Nicaragua, Bosnia, Somalia, the Gulf War, Afghanistan, and Iraq.

There's simply no "sovereignty" argument to be made, except for people who want to make an argument that our sovereignty allows us to commit war crimes with impunity.

Dingo said...

Well, they actually can prosecute for past crimes, but only IF the signatory states gives the ICC the right to do it. But that is just a technical note.

MaxedOutMama said...

Blogger must love me, it is actually letting me post a comment to your blog today....

Boomr, thanks for the ilsa link. I will look at it this evening when I get the time.

Dingo, if the US will never have a soldier tried in this court, than surely Boomr is wrong? And we still do have immunity for "war crimes" under that statute?

I have seen impassioned and somewhat involved arguments both ways. If it ever comes down to the UN Security Council, I can imagine a lot of politicking going on as there was with the Sudan measure.

Dingo said...

MOM, I am a little confused by your comment. How is Boomr wrong?

BTW, I went to the ILSA link, but was unable to find anything. Boomr is going to try to find it. I'll forward you a link/copy once he gives it to me.

As for the Security Council. The Security council already has the right to submit a charge to the ICC regardless of the status of the host state. Even if the host state is not a signatory to the Rome convention, the Security Council can send the matter to the ICC. That is what is happening in Sudan. Sudan is not a signatory state.

But, either way, since the US has veto power on the Security Council, it would never be able to passed along to the ICC.

Boomr said...

Dingo: Of course the ICC can have jurisdiction with the consent of the accused's state. That's how the ICC gets any of its jurisdictional reach -- by consent of the parties. But, if the U.S. wouldn't prosecute the case on its own, it would never agree to ICC jurisdiction anyway, so it's a moot point.

I can't seem to find the 2004 documents on the ILSA website, but I put in a message to the Executive Director about where to find them, and he should get back to me shortly.

MoM, I'm not sure what you mean about soldiers not being tried, and me being wrong. We don't have "immunity" for war crimes under the ICC statute -- or any other treaty, for that matter. We are, in fact, parties to the Geneva Conventions, which pretty much spell out the egregiousness and potential for punishment for war crimes and crimes against humanity. Those treaties are the basis for civil jurisdiction of our domestic courts or even the International Court of Justice -- that is, if we commit war crimes, pursuant to the Geneva Conventions, we can be held liable for money damages to the victims of such crimes by the ICJ. That doesn't necessarily mean that CRIMINAL responsibility will be decided, or punishment doled out to the offenders. It merely means that our government would be held civilly responsible.

As it stands right now, though, if the U.S. decides to shelter a war criminal and not prosecute him, then there's basically no way for another country to force us to do that. It would be a huge political mess for the armed forces or the administration in power, but if the gov't stuck to its guns, there's no other treaty requiring us to prosecute or turn the offender over to another international tribunal. This leads to a lot of opinions that the U.S. gov't is pretty hypocritical, saying other nations should submit their citizens or soldiers to international scrutiny (like in Rwanda or the former Yugoslavia, where special international criminal tribunals were established), but that we don't.

In that way, we are able to commit war crimes with impunity.

(This is not to say that I think our country has committed such crimes and failed to prosecute them regularly, by the way.)

Boomr said...

By the way, the Sudan signed the treaty in 2000, but has not yet ratified it. The U.S. signed the treaty under Clinton a couple of months after the Sudan, but effectively removed that signature under Bush in 2002.

Boomr said...

It should also be noted that there's still a question of whether the Sudan is required to submit to ICC jurisdiction, since it hasn't ratified the treaty. It was the UN Security Council, not the ICC, that passed a resolution requiring the Sudan to cooperate with the ICC investigation. Sudanese government officials have stated that they will not allow extradition of Sudanese accused, nor will they allow Sudanese citizens to testify in the ICC.

Dingo said...

Boomr - "it would never agree to ICC jurisdiction anyway, so it's a moot point."

I know, I was just being technical.

MoM - Ya, what Boomr said. There is a difference between immunity and lack of jurisdiction. If I commit a crime in NY, I can't be prosecuted in PA. Not because I have immunity, but because PA lacks jurisdiction.

MaxedOutMama said...

Regarding the ICC's lack of jurisdiction over Sudan, what implications does that have? Because the ICC is the organization currently in charge of matters there as far as international authorities go, right?

You are both explaining why some of these international treaties worry me, as does the way the UN is constructed currently. Ultimately, if we ever want to live in a peaceful world with reasonable standards of justice, a few important countries should not be able to control international actions.

That having been said, how do we get to a situation in which populations in different countries have equal access to justice on the international stage? It seems to me now that politics of the worst and basest sort are preventing this from happening. I am not excusing the US either, but I trust Russia, France and China less.

And when I look at France's history in Algeria my heart fails. I trust the individual populations of different countries, but I don't trust our institutions. You have both studied this stuff. Do either of you have a good suggestion?

I think reform of our international institutions is necessary, but I don't think we can trust the current players to do it.

And regarding oligarchy, I keep reading reports that China is selling organs and of course poor populations in India are being used as guinea pigs for medical testing. I suspect that wealthy people in the various countries don't have much of an incentive to work for real international justice. If either of you can show me how I am being unduly cynical I would be glad to hear it.

Dingo said...

No, you are not being unduly cynical at all... unfortunately.

As for Sudan. The ICC has jurisdiction over Sudan because it was referred to the ICC by the Security council. The ICC can gain jurisdiction in 3 ways. 1) it is a member of the treaty. 2) referral of an issue concerning a non-signatory state by the UN security council. 3) the non-signatory state requests the ICC to investigate a matter (which has happened 2 times).

I agree that the UN needs reform, but in no way can we afford to scrap it all together

Boomr said...

MoM -- First, I wanted to say that I got copies of the documents from the ILSA Executive Director, and I'll email those to you and dingo if you'd like. They're not posted anywhere, it appears.

Second, I have some of the same reservations about the way the UN works. The General Assembly (made up of representatives from all of the countries of the world) is really empowered only to allocate funds for relief/aid efforts and to pass resolutions which have no binding effect on the member nations. One such non-binding resolution is the Universal Declaration of Human Rights (see -- which in many instances has become what is known as "customary international law" that does, indeed, have binding effect, but only because most countries of the world abide by those rules as if they were law. But it's not binding merely because the UN GA passed it.

Where I agree with you is the power of the Security Council. It's made up of 15 nations (5 permanent, veto-empower nations: U.S., France, Russia, China, UK). The SC is what controls where UN forces are deployed for peacekeeping or humanitarian missions. But, like you said, one "important country" can derail anything the SC does. I personally disagree with the veto-power system, as it has caused lots of gridlock on the road to real international aid to the oppressed people of the world. I don't mind a few permanent members on the SC (I think the countries with the largest amount of resources and best-equipped armies should have a permanent say in any international armed conflict that will likely involve their troops), but veto power is counter-productive.

So, when you ask, "Because the ICC is the organization currently in charge of matters there as far as international authorities go, right?" my response is no. The UN SC is the body that ordered Sudan to comply with the ICC investigation. If the ICC had just decided to investigate on its own, without UN SC input, it would have absolutely no power over Sudan because Sudan has not ratified the Rome Statute (even though it signed it -- signature usually occurs by the executive branch [President, Prime Minister, Foreign Ministry, etc.] while ratification is domestic legislative approval [i.e., making it law in that country]). The UN SC, however, has UN Charter authority to require action by UN member nations. This is why I say that the ICC's investigation into Sudan is still legally up in the air, because it's really a UN action, not an ICC action.

The way I see it, the whole purpose of the ICC statute is to REMOVE this legal ambiguity by removing the UN SC from the equation (for the most part). Once a complaint is presented to the prosecutor, ICC member nations must comply with the ICC investigation, whether the UN SC orders such compliance or not. The ICC may not, however, just go into a country that is a non-party to the treaty, and throw its weight around as if it belonged there. To give them this power, the nations of the world need to ratify the Rome Statute.

It is through this independent, treaty-based body that the "populations in different countries have equal access to justice on the international stage," as you put it. Right now, besides unilateral action (like our wars in Afghanistan or Iraq) or UN SC deployment of peacekeepers (like in Bosnia and various other conflicts over the last few decades), there's really no stage upon which the oppressed peoples of the world get access to international justice.

And I agree with you that wealthy people don't have any incentive to work for international justice. That, however, will never change.

Boomr said...

By the way, I have to disagree with Dingo with regards to the UN SC's power to begin an investigation even into a non-party state. The ICC statute's Article 13, entitled "Exercise of Jurisdiction," says

"The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:
(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15."

Chapter VII of the UN Charter says nothing about crimes committed by a government against its own people. The first provision in that chapter says, "The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security." (Article 39). The term "international peace and security" is used a number of times in the following provisions, and is, in fact, in the very first Article of the UN Charter ("The purposes of the United Nations are: (1) To maintain international peace and security....").

So, despite the atrocity occurring in Darfur, I'm not entirely sure that it would be considerd a breach of "international peace and security" in terms of what powers the UN SC has to order an investigation by the ICC. Since the ICC is relatively new, I think this question will be raised, and argued extensively, with respect to Darfur.

Dingo said...

"Chapter VII of the UN Charter says nothing about crimes committed by a government against its own people."

That is because the ICC is non-traditional that way. It has no jurisdiction over a state, only individuals.

Article 13(b) gives universal jurisdiction to anywhere on earth. A state signatory is not needed. You'll note that 13(a) refers to 14 "referral by a state party". 13(b) only says referral by the UN SC. There is a citation for this, but I would have to go across the street to the library... and it is raining... and it is Friday...

Boomr said...

Ooh, now you've really piqued my argumentative skills. "Universal jurisdiction" is mentioned nowhere in the ICC statute.

Again, Article 13(b) only gives the SC the power to institute an ICC investigation pursuant to Chapter VII of the UN Charter. Chapter VII says nothing about internal violations of human rights. It empowers the SC to act on the breaches of "international peace and security." The ICC statute did not modify Chapter VII -- and could not, as amendment to the UN Charter would require a General Assembly vote, not a mere ratification of the Rome Statute.

Show me where in Chapter VII of the UN Charter the SC is empowered to act on internal violations of human rights, please, and I'll accept what you say about "universal jurisdiction."

Besides, just because the SC begins an ICC investigation doesn't mean the ICC can effectively invade a country.

Dingo said...

"Ooh, now you've really piqued my argumentative skills. "Universal jurisdiction" is mentioned nowhere in the ICC statute."

you'll have to wait 'till monday. I really feel like crap right now.

Boomr said...

Lightweight. You can't handle the pressure.

Dingo said...

ok, here is the case that set forth UNSC ability to refer a human rights issue.

Boomr said...

Proscecutor v. Tadic. Didn't think that was what you were referring to. Here's my rebuttal:

1. The case comes from 1995, fully 7 years before the ICC entered into force, and thus has no application to the ICC.

2. The case comes from the International Criminal Tribunal for the former Yugoslavia ("ICTY"), a body that was created by the UN SC in response to the war occurring in that former country. The ICC was created by treaty, not by the UN SC.

3. The war in the former Yugoslavia resulted in the formation of many new states (Serbia, Montenegro, Bosnia-Herzegovina, [the former Yugoslav Republic of] Macedonia, etc.), and involved cross-border criminal activity. It also caused a massive refugee problem in Albania, Italy, and other surrounding countries. Thus, the conflict was INTERNATIONAL, not just an internal domestic matter.

4. The ICTY said, "In this regard, it is pertinent to note that the challenge to the primacy of the International Tribunal has been made against the express intent of the two States most closely affected by the indictment against the accused - Bosnia and Herzegovia and the Federal Republic of Germany. The former, on the territory of which the crimes were allegedly committed, and the latter where the accused resided at the time of his arrest, have unconditionally accepted the jurisdiction of the International Tribunal and the accused cannot claim the rights that have been specifically waived by the States concerned." Thus, the states of location of the atrocities and residence of the accused had already consented to the jurisdiction of the court (meaning that it would fall under ICC jurisdiction now, anyway, without resort to the UN SC provision).

5. If the ICC can be analogized to the ICTY, then there would be no need for the Rome Statute, as the UN SC could have just created it whole-cloth by itself, then referred any human rights violation to it under Chapter VII. That this was not done is a sign that the UN SC was not supposed to be able to confer "universal jurisdiction" on the ICC.

I want to say that I think the ICC should investigate Darfur and prosecute the offenders. The above is just the legal argument as to why such prosecution might be difficult.

Dingo said...

this is the precedent case that codifies the ability of the UNSC to create tribunals and refer the matters. The ICC is just the international tribunal that the UNSC now refers the matter to as the most competent to investigate and try the matter.

The Rome statute merely establishes a permanent body that would otherwise be separate tribunals. Its more efficient to refer things to the ICC, but the SC still has the ability to create additional tribunals.

Boomr said...

I know it's more efficient. Like I said, I think the ICC should continue to investigate and prosecute.

But Tadic isn't the great precedent for universal jurisdiction you think it is, especially when the exercise of that universal jurisdiction involves essentially what amounts to an invasion of the very country that objects to the ICC's jurisdiction to begin with.

Dingo said...

You are confusing ICC jurisdiction and UN jurisdiction. Think of it this way. UN has universal jurisdiction (basically). When the UNSC passes a resolution of referral, it is in essence creating an ICTY or and ICTR. Now, instead it is just sending it to the ICC. Think of it as the ICTS at the ICC. You have to think of the ICC Rome treaty signatory jurisdiction separately from the UN's jurisdiction. While the country may object to the ICC, it is still part of the UN and subject to its jurisdiction. The UN is merely transfering its jurisdiciton to a competent court.

Boomr said...

But does the UN SC have the power to transfer universal jurisdiction to a treaty-based court, when the subject of the inquiry is not a party to the treaty? I would say no.

Again, in the ICTY and ICTR instances, the countries involved submitted themselves to the jurisdiction of the court -- they didn't just fold before UN SC mandates. It was still a voluntary act on the part of the government. You can't say the same thing with respect to the ICC and non-parties.

Again, if the UN SC has the power to refer any case to the ICC whether or not that state is a party to the ICC, then there is absolutely no need for ANY country to ratify the ICC, because at that point the ICC becomes just another arm of the UN. There is nothing in the UN Charter about the ICC, as there is with the International Court of Justice. There is nothing in the UN Charter allowing the UN SC to delegate its powers to another organization. And when you're talking about universal jurisdiction, delegation of such jurisdiction is unheard of in international law.

See the briefs I'm emailing you now.

Carl said...

Dingo, Boomr:

My reply addressing lawfulness and policy is here.