"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.
12 comments:
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.
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.
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 - "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.
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.
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
"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...
"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.
ok, here is the case that set forth UNSC ability to refer a human rights issue.
http://www.un.org/icty/tadic/trialc2/decision-e/100895.htm
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.
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.
Dingo, Boomr:
My reply addressing lawfulness and policy is here.
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