Via Julian Ku at Opinio Juris comes news that the Obama Administration has no plans to submit the Rome Statute of the International Criminal Court (ICC) to the Senate for ratificaiton. Prof. Ku comments:
This is not exactly a surprise, but it shows just how far the U.S. is from the Rome Statute. If President Obama and his sort-of supermajority in Congress do not wish to join the ICC, then it is hard to imagine the U.S. joining during a future Sarah Palin or Mitt Romney administration. This doesn’t exactly bother me. But this raw political fact suggests that the U.S. failure to join the ICC is rooted in deeper political and structural concerns than partisan politics and ideology.
Indeed, if the Obama Administration is not even willing to sign the ICC treaty, the prospects of U.S. participation in the foreseeable future would appear to be quite small.
Joe says:
A treaty requires 2/3 of the Senate to approve. He doesn’t have that “sort-of” supermajority.
We know this, yes?
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February 7, 2010, 1:38 pmConstantin says:
Good. Harold Koh weeps.
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February 7, 2010, 1:53 pmSoronel Haetir says:
If the treaty were put in front of the Senate would it even get 50% support? Although there you run into strategic voting issues which is part of why it won’t get submitted. Hard to get an accurate gauge of support when people will vote “no” because they don’t want to be seen supporting a widely seen loser.
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February 7, 2010, 2:02 pmLaura S. says:
The ICC is so repugnant to our constitution; its been a rather unbelievable journey to see it limp along as far as it has. Supporters of the Rome Treaty have lost a lot of credibility by casting our disengagement as purely driven by Bush’s anti-internationalism.
Never mind that Clinton called the document deeply flawed and un-American. Never mind, that he signed the treaty only to allow the US continued participation in drafting the administrative rules of the court with the hope of muting the worse elements of the treaty. Never mind that the band of authoritarian regimes that control the ICC, thwarted nearly every effort at that moderation.
Once that drafting period lapsed, Bush sensibly withdrew rather than continue to endorse the corrupt edifice.
It strikes me as unconscionable that we’d be party to a kangaroo-court that includes provisions for year-long detention without appeal, denies defendants those rights that we’ve codified into the 4,5,6,7,8th amendments, and grants itself automatic jurisdiction when a party government cannot get a conviction within its own courts-of-law–i.e., such as when defendants in our system avail themselves of their lawful rights.
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February 7, 2010, 2:09 pmRoger the Shrubber says:
Yet somehow the UN poses a credible threat to U.S. gun rights. Go figure.
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February 7, 2010, 2:18 pmpublic_defender says:
It’s one thing not to join, it’s another to give The Finger to the court, as did the Bushies. I agree that it would be bad to join the system. I have an affection and trust for the US justice system that I do not share with the ICC. We should not subject our service members to that court’s jurisdiction.
That said, there is a real problem with imposing impartial justice on war-torn, lawless parts of the world. The idea of an ICC is a good one. It’s implementation was faulty. And in many parts of the world, the ICC is a major step forward.
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February 7, 2010, 2:22 pmERH says:
I wonder how many people critical of the ICC have even bothered to read the Rome Statute? Of bigger concern is our refusal to ratify the LotS Treaty.
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February 7, 2010, 2:46 pmDavid Tomlin says:
Obama is now under fire for recognizing the constitutional rights of terrorism suspects.
He has an opportunity to support taking constitutional rights away from, inter alia, members of the armed forces.
Great idea, if he wants the Democrats to lose both houses in November.
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February 7, 2010, 2:48 pmLee C Walker says:
I’m sorry, but Bill Clinton already signed the Rome Statute of the International Criminal Court at the last possible moment. He attached a signing statement, reasoning that the US could ‘remain engaged in the PrepCom process’ if he signed the Statute. He expressed further reservations in that statement:
Admittedly, George W Bush ‘unsigned’ the Statute on 6 May 2002 — to make way for a version of ASPA in the form of the Supplemental Defense Appropriations Act (AKA Bomb The Hague Act) — but this is, according to the law of treaties expressed in the Vienna Convention on the Law of Treaties, merely an expression that the USA intends not to be bound by the terms of the Statute. Such an expression not to be bound is necessary to avoid the implications of that Vienna Treaty, which requires a signatory to a treaty to not perform any act which would undermine the purpose of the treaty, even if it has not been ratified. The contention that the Rome Statute was ‘unsigned’ is, therefore, merely a layman’s term. Bush merely expressed an intention not to be bound.
In short, the United States is still most definitely a signatory to the Rome Statute; it is not, however, a ratified state party. I expect more from a professor, especially if this is his area of expertise. Although, to be fair, he is at HOFSTRA.
Seacrest out.
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February 7, 2010, 3:05 pmpublic_defender says:
Maybe his decision to try both terrorism suspects and accused US soldiers in the US
shows that Obama respects our system of justice. Why is it so strange to some that a President would respect the American justice system? You might even say that trusting and respecting the US justice system is a sign of patriotism.
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February 7, 2010, 3:05 pmJoe says:
which requires a signatory to a treaty to not perform any act which would undermine the purpose of the treaty, even if it has not been ratified
This seems to be a partial end around to the 2/3 requirement.
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February 7, 2010, 3:12 pmAnonsters says:
I second both the rhetorical question and the “bigger concern” sentiment. (The LOTS treaty thing is especially odd, given that even the U.S. Navy supports ratification.)
Um, yeah. We’ve already signed it.
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February 7, 2010, 3:16 pmLee C Walker says:
Furthermore,
You may be interested to know that United States service members are most definitely already subject to the ICC’s jurisdiction, under certain circumstances, for instance if they:
Commit crimes that the court has jurisdiction over on the territory of a state party.
However, the USA has been actively pursuing Art 98 bilateral agreements between many nations around the world, seeking guarantees that no such cases will be referred to the ICC.
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February 7, 2010, 3:18 pmJoe says:
My affection and trust of the US justice system is a bit mixed, particularly on matters of torture.
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February 7, 2010, 3:18 pmLee C Walker says:
You are either ignorant or just a plain malicious liar. The complementarity jurisdiction of the ICC only comes into play if a state is unwilling or unable to conduct a good faith investigation. Your contention that a lack of conviction would allow automatic complementarity jurisdiction for the court is laughable in the extreme, and since I assume you are an intelligent person, I can only conclude that you’re nothing but a liar, purposefully skewing the truth.
If a good faith investigation is conducted, the ICC has no complementarity jurisdiction. The end. It cannot just say ‘You didn’t convict! We automatically now step in.’ If the conviction is found to be that of a ‘kangaroo court’ as you so laughably call the ICC then, yes, the complementarity jurisdiction comes into play, but this is to account for show trials such as those of Stalin, et cetera.
Be honest, or get an education: whichever it is, hurry up about it.
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February 7, 2010, 3:25 pmgeokstr says:
This is way out of bounds here, an ad hom of the worst sort. Mr. Adler, if anything is going to get deleted this certainly deserves it.
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February 7, 2010, 3:52 pmPeter says:
Everyone is missing the funniest part of this post. Ku implied that there’s some possibility that Sarah Palin could be president one day!
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February 7, 2010, 3:53 pmHans Clapton says:
Good. Even a blind pig finds an... ACORN now and then.
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February 7, 2010, 4:03 pmBrett Bellmore says:
Of course, we didn’t ratify the Vienna Convention, either. So it’s just a matter of one treaty we’re not a party to purporting to bind us to another treaty we’re not a party to, while the Senate, the only body that can ACTUALLY bind us to a treaty, hasn’t bound us to either.
Just another example of unelected foreign lawyers trying to pretend they’ve got the authority to bind us to agreements we didn’t enter into.
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February 7, 2010, 4:07 pmBrett Bellmore says:
And who decides the investigation wasn’t in good faith? Oh, right: The ICC! Which decision will always be made in good faith, of course, the moral superiority of the ICC to every state level tribunal simply being assumed.
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February 7, 2010, 4:13 pmLee C Walker says:
If you seriously believe the ICC is some giant world conspiracy to ‘get the evil Americans’ then I feel sorry for you. The world does not revolve around the USA. Also, if you do something wrong, such as commit a goddamn war crime, then you should be held responsible. What kind of unbelievable arrogance is behind the notion that the USA is somehow above the law, and immune from suit or — more laughably — simply incapable of committing war crimes, due to its love of ‘freedom’?
The USA is not God’s gift to humanity, and the ICC is not out to get it. The ICC is there to stop war crimes, crimes against humanity, and — eventually, hopefully — aggression. Scum who abuse the globe do not deserve to hide behind national sovereignty. Lubanga is finding this out, Ntaganda is finding this out, Katanga is finding this out, Gombo is finding this out, Kony is finding this out, and Bashir may soon too (although that case is unfortunately problematic due to jurisdictional issues).
If you think the USA should be allowed to do whatever it wants for whatever reason no matter what the consequences, and face no punishment whatsoever, then you’re nothing more than a Nazi.
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February 7, 2010, 4:20 pmBrett Bellmore says:
What I seriously believe is that it’s part of a soft-headed effort on the part of some people to construct a world-government, without the consent of a number of the more important existing governments it would subsume. Presuming to obligate a country to be bound by one treaty it didn’t ratify, on the basis of another treaty it didn’t ratify, is either insane, or dishonest.
Considering that many, perhaps the majority, of nations which would have some input into occasions when the ICC would attempt to override our national sovereignty on the basis of that lunatic logic, are tyrannical regimes with little or no respect for human liberty, your response becomes even more hilarious.
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February 7, 2010, 4:27 pmRoscoe says:
and
Wow, what did you put in your Wheaties this morning? Why not tone it down a bit? BTW, I find the points you are making (except with respect to the one about U.S. serviceman being already potentially subject to ICC jurisdiction) mostly quibbles that don’t really contradict the essential truth of the posts you are attacking.
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February 7, 2010, 4:28 pmLee C Walker says:
Roscoe, with respect, this is not your area (I’ve been to your website), and these are not quibbles. People here have fundamentally misstated the jurisdiction of the court, the OP didn’t even know that the USA is a signatory to the Statute, Brett here is talking about how it’s some conspiratorial attempt at “World Government” — laughable in the extreme, are the Bavarian Illuminati involved, Brett? — and you call these quibbles?
Sorry, no dice.
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February 7, 2010, 4:35 pmMabmar says:
Mr. Walker, Autoadmit called, they wanted their snark back.
I’m sure you’re rantings over there are impressive to all the pre-law college seniors, but that kind of stuff fails miserably up against the reasoned debate that goes on around here.
xoxohth
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February 7, 2010, 4:42 pmLindsey Abelard says:
The ICC does not offer the same protections for the accused as does the U.S. court system. It does not use the same court procedures, same concept of due process, nor does it offer the accused the right to a trial by a jury of his or her peers. It also allows for “double jeopardy” prosecution as well. Until these deficits are corrected, the ICC itself is criminal and the U.S. is right to stay out of it.
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February 7, 2010, 4:45 pmLee C Walker says:
Wrong. See Arts 17(1)(c) and 20(3)(a)-(b). Double jeopardy is prohibited unless the proceedings were show trials designed to protect the person.
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February 7, 2010, 4:49 pmBrett Bellmore says:
And the ICC itself decides if the trial was a “show trial”, so that protection is essentially meaningless.
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February 7, 2010, 4:54 pmConnecticut Lawyer says:
It’s outrageous that any US Government would even consider submitting to a foreign tribunal the determination of whether acts of war ordered or carried out by US Governmental officials or military officers violate some foreign or international legal standard. This is nothing other than power politics, an attempt by weaker powers to hobble the United States. It has nothing to do with law or morality or any of the other bullshit that ICC advocates toss around.
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February 7, 2010, 5:00 pmAnonsters says:
So in your view, then, a legal system that does not provide precisely the same protections for the accused is “criminal?”
EuropeThe rest of the world disagrees.Quote
February 7, 2010, 5:03 pmConstantin says:
His affection (and patriotism) seems to have waned when it comes to the New Black Panthers case. Because he’s stonewalling justice in that one, without shame.
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February 7, 2010, 5:05 pmkrs says:
This is sort of a pleasant surprise.
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February 7, 2010, 5:08 pmAnonsters says:
As it happens, I also have a few problems with the ICC; for example, I think some of the details of the Victim Participation scheme(s) raise questions about fairness (due process if you want to call it that) to defendants.
But to think that the ICC is some global conspiracy aimed at “hobbl[ing] the United States” or some ham-handed scheme for world government is just bizarre. Bizarre or ignorant (and I use that term as neutrally as possible; as in, you just don’t know anything about the ICC except what you happen to hear on the news or blogs, which is fine–it just means that maybe you’d think twice before commenting on “the truth” about the ICC). I’m not surprised by the narcissism, though. Lee Walker, you shouldn’t be either. People really do think the world revolves around the U.S. Therefore, they think any world program or institution must ipso facto have some motive (usually nefarious) with respect to the U.S. Yes, we are the global superpower, and we have enormous influence. But not everything is about us.
As it also happens, I know a few people who work in the prosecutor’s office at the ICC. The only sentiments they have with respect to the U.S. joining the ICC is hope that it’ll happen, because they know it would bolster the ICC tremendously and so make it easier to hold those who commit atrocious international crimes accountable, coupled with doubt that the U.S. will ever join, because they understand our on-again, off-again relationship with international law generally.
Finally, as for sovereignty, you may want to look into the principle of complementarity, which is pretty much right at the heart of everything the ICC does and is about.
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February 7, 2010, 5:15 pmOren_ says:
Why else, exactly, would we have our own Congress? The US consists of with human being who have the essential right of self-government. That they might occasionally chose to do terrible things is besides the point. Of course, the necessary correlate is that other countries have every right to take action opposing American acts they don’t approve of.
That is, if there was really any desire to punish war criminals, a team of Green Berets (or Commandos Marine, Kommando Spezialkräfte, if you prefer the Europeans to do it) could knock off Omar al-Bashir more or less at will. That neither the US or any of the European countries have done so speaks volumes about their true intentions.
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February 7, 2010, 5:25 pmAnonsters says:
You win the thread for inane commentary.
I suppose you think, then, that the U.S. approved of the Rwandan and Darfur genocides. No, you don’t think we approved of them? But we must have. We could’ve dropped tactical nuclear weapons and solved those crises in a flash (or two; ha).
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February 7, 2010, 5:38 pmJim Ancona says:
I invoke Godwin’s Law, Lee C Walker has lost the argument.
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February 7, 2010, 5:46 pmU.S. Still Won’t Join International Criminal Court | Liberal Whoppers says:
[...] U.S. Still Won’t Join International Criminal Court [...]
Oren_ says:
I think we didn’t care enough to stop them.
If, at some point in the future, we do want to stop a genocide, the lack of an official quasi-judicial body to adjudicate the guilt of the parties will not be a concern. You didn’t see NATO mucking about with prosecutors and investigations to stop Milosevic from invading Bosnia or cleansing Albanians from Kosovo.
The ICC is the answer to a question that no one asked, meanwhile the obvious question — why didn’t The West care as much about averting the genocide in Darfur as they did in about Kosovo — remains curiously unanswered.
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February 7, 2010, 6:01 pmAnonsters says:
Really?
This demonstrates that you don’t know what you’re talking about. The idea for a permanent international criminal tribunal has been floating around since Nuremberg. Then we had the ICTY & ICTR. And it became clear that one of the major lessons learned with those, and with other ad hoc international criminal tribunals, was that they’re expensive, difficult to get up and running from scratch, and they suffer from having no institutional memory. All things the ICC is designed to remedy.
And I don’t disagree with your implied point.
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February 7, 2010, 6:13 pmOren_ says:
By the way, I’d accept the entire statute, full bore, if we add a single provision
17(2)(d): The provisions of 17(1)(a) through (c) shall not apply to proceedings in the courts of the following countries: Britain Canada, Denmark, Finland, France, Germany, Israel, Italy, the Netherlands, Norway, Portugal, Spain, Sweden and the United States.
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February 7, 2010, 6:14 pmJoe says:
“That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.”
i.e., not “every damn thing it wants.”
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February 7, 2010, 6:18 pmOren_ says:
The corollary of my point is that the lack of an ICC was not a seriously impediment in the Kosovo case.
Like I said, I’m not opposed, per se, to the existence of the court (perhaps quite a bit less opposed that the majority of the readership here) so long as it is not used to undermine the sovereignty of functioning western democracies.
If you and Lee insist that the ICC is not “about the US” then there should be no problem writing an exemption similar to mine. Of course, that presumes that you were sincere in your assertion that the ICC has no desire to prosecute officials from western democracies.
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February 7, 2010, 6:20 pmAnonsters says:
You do realize that of the countries you listed, all but the U.S. & Israel have ratified or accepted the Rome Statute, don’t you?
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February 7, 2010, 6:21 pmAnonsters says:
The laws proscribing murder are not a serious impediment to murder being committed, either.
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February 7, 2010, 6:23 pmOren_ says:
The question is properly put to the US Senate, not to the ICC.
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February 7, 2010, 6:23 pmJoe says:
I invoke Godwin’s Law, Lee C Walker has lost the argument.
Not proven.
“The rule does not make any statement about whether any particular reference or comparison to Adolf Hitler or the Nazis might be appropriate, but only asserts that the likelihood of such a reference or comparison arising increases as the discussion progresses.”
In fact:
“The law and its corollaries would not apply to discussions covering genocide, propaganda, or other mainstays of the Nazi Germany, nor, more debatably, to discussion of other totalitarian regimes, since a Nazi comparison in those circumstances is understandable. Whether it applies to humorous use or references to oneself is open to interpretation, since this would not be a fallacious attack against a debate opponent.”
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February 7, 2010, 6:24 pmJoe says:
The question is properly put to the US Senate, not to the ICC.
Don’t see how that follows given the DOI was an appeal to other nations in some fashion based on international law as then understood.
But, why the Senate alone should have power to so define is unclear. For instance, Congress itself has the power to define the “law of nations,” which seems quite relevant here. Even states had some power in that they could by positive law allow slavery, which was against the law of nations at some point before 1865.
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February 7, 2010, 6:27 pmOren_ says:
Fine, leave them out.
I was trying to illustrate that I don’t consider the US to be the only country in the world with a functional legal system that should be immune to second-guessing by the ICC.
I meant that the lack of an ICC was not an impediment to NATO taking effective action to stop the genocide.
That is, I get the notion that people think that somehow opposing the ICC is equivalent to saying we should not intervene to stop crimes against humanity. That is not my position. We should do so, and I pointed out that we don’t need an ICC to do so.
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February 7, 2010, 6:29 pmOren_ says:
Correction accepted.
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February 7, 2010, 6:32 pmJoe says:
Correction accepted.
Still would argue the DOI was an appeal to recognition by the international community and in part was based on international law, so determining what was ‘right’ here could not just be self-referential.
Nor that some international body could be formed to settle disputes. Some surely were long before now.
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February 7, 2010, 6:38 pmAnonsters says:
Of course we don’t. What’s more, the ICC has no power or ability to intervene to stop the commission of international crimes. The ICC judges don’t come equipped with tanks and bombs. It’s an accountability mechanism. The purpose is to end impunity.
And it doesn’t tell you anything that all those other countries in the world with functional legal systems don’t appear to think that the ICC is there to (or does) second-guess them?
I refer you once again to the principle of complementarity.
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February 7, 2010, 6:38 pmLee C Walker says:
So it was outrageous when the Nazis ‘submitted’ to the Nuremberg Trials?
Anonster: much sense has come from your posts since I’ve been up the shops buying a HDD. I also have problems with victim participation, but for different reasons: the crimes under jurisdiction often involve thousands, if not millions (think: genocide) of victims. How can they all be fairly represented? The process of picking representative victims is an issue.
Much more troubling was the secret exculpatory evidence that the prosecutors would not allow Lubanga to access; however, the ICC showed outstanding morals and fortitude by refusing to let the prosecutor get away with this. Those familiar with the field will be familiar with the rule: such secret evidence is only to be used to gather new fresh evidence; it is not to be used in and of itself — and any potentially exculpatory evidence must be revealed. Since the prosecutor refused to allow the defence (or even the bench [!!!]) access to these documents, it was held that the trial had been so damaged that Lubanga should be set free. Eventually the prosecutor relented and the case went on. Victory for justice. An excellent illustration of the court’s high standards of ethics so far.
Extra-judicial killings, right. Are you a lawyer, or a Chuck Norris fan? Here in the world of law, we respect LAWS.
Why not Australia? You’ve hurt my national pride :(
Are you serious? A provision, basically stating, that any investigation or judicial decision ever rendered by the USA — or the other states you mentioned — is automatically considered authentic and can never be an attempt to shield a Bad Man, simply because the country is Awesome? Are you made out of a clown suit?
No country should be immune from second-guessing. There is no possible way you can ensure that any country will always be completely proper in its judicial dealings and will never shield a potential war criminal. Admit it, you’re an American exceptionalist. The USA is perfect in your mind, can do whatever it wants, because it has big muscles, and all the wimps can get lost. That’s your view. Utter joke.
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February 7, 2010, 7:28 pmjccamp says:
Well, here’s what the Rome Statute says, in part, about when the ICC can assert jurisdiction even though a national court has either investigated and/or tried a person for a crime already:
“The [national] proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.”
That’s sufficiently vague (in justifying double jeopardy) to unsettle me. That bit about bringing the “person to justice” seems to assume guilt.
The Rome Statute also appears to allow, for instance, testimony from witnesses who are not subject to direct cross examination, and the admission of illegally or unlawfully seized evidence. So what Laura has to say seems a reasonable interpretation. “Liar” is especially harsh and uncalled for.
BTW, for all of Lee Walker’s disparagement of Hofstra and Professor Ku, I don’t believe that Professor Ku was the source of the phrase “sign the...treaty..” Maybe Lee should read the small print before engaging the legend-in-his-own-mind mechanism.
Oh yeah...“hurry up about it” too.
And whether or not there is a move amidst the ICC to bang the U S for perceived aggression and Cold War-like power politics, there certainly is an active minority that would do so if offered the opportunity.
I second Oren’s post at 6:20 PM.
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February 7, 2010, 7:47 pmMonty says:
Suppose a US citizen is accused of shooting up a plaza in the course of a military operation in a foriegn nation, but was only subject to US jurisdiction. Then suppose that the suspect was questioned in a manner that was a clear violation of his Miranda rights, and confessed. Further suppose the investigators relied heavily on the confession to gather thier evidence, such that without it they never would have had a case. Then suppose a US Federal Court, in accordance with the US Constitution and jurisprudence, threw out almost all of it as a 5th Amendment violation. The case is then either dismissed or results in a not guilty verdict.
Would it be much of a stretch for the ICC, in a case with a great deal of public outrage, to decide that the US proseuction was “being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice”?
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February 7, 2010, 8:07 pmOren_ says:
I fear their trust is misplaced.
And I refer you to the sense of the US Congress that the ICC may not apply that principle to the findings of our courts. The principle of complementarity is only as good as our faith that they will actually apply it to the proceedings of our courts.
If the ICC truly has no intention of second guessing the judgment of the US courts then why did the negotiators at Rome refuse to insert a provision codifying their intent? It’s hard to understand.
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February 7, 2010, 8:08 pmjccamp says:
Off point, but I tried to Google him without success, so anyone, who is Lee C Walker anyway?
Beside being the Demon Sheep, I mean...
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February 7, 2010, 8:10 pmOren_ says:
Irrelevant, the case will be tried at Court Martial where there is no exclusion of such testimony.
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February 7, 2010, 8:12 pmAnonsters says:
Um, yes, actually, it would be much of a stretch.
Thanks for playing.
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February 7, 2010, 8:34 pmMnZ says:
Put me down as firmly against the ICC. In my humble opinion, a criminal court should be subordinate to political institutions. In the US (and most other democracies), both the executive and legislative branches can override a finding of guilt by a criminal court. A court without such oversight is better left in a Kafka novel.
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February 7, 2010, 9:22 pmAnonsters says:
That’s news to me.
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February 7, 2010, 9:26 pmMnZ says:
Really? Are you unfamiliar with pardons and the ability to change laws?
Which raises an interesting question — how do we change less than ideal international law (e.g., the Principles of Nuremberg)?
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February 7, 2010, 9:52 pmChief says:
Tthe ICC only has jurisdiction over crimes of international law which are already subject to universal jurisdiction.
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February 7, 2010, 9:52 pmChief says:
Once again, no idea about international law.
Take a class or just shut the hell up.
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February 7, 2010, 9:53 pmMnZ says:
I take it that international law is not really accessible to the layman. Then, should international law have jurisdiction over the layman?
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February 7, 2010, 9:58 pmChief says:
Most laughable notion I have ever heard of. Electronics is not accessible to the layman — should layman be forbidden the use of televisions?
Layman don’t understand municipal law, should they therefore be exempt from it?
Get a grip, two-year-old.
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February 7, 2010, 10:06 pmAnonsters says:
Legislatures can’t invalidate a finding of guilt by rewriting the criminal law.
Whether pardons “override” a finding of guilt is, I suspect, more a metaphysical question.
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February 7, 2010, 10:29 pmTweets that mention The Volokh Conspiracy » Blog Archive » U.S. Still Won’t Join International Criminal Court -- Topsy.com says:
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Elliot says:
Is Godwin subject to the ICC?
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February 7, 2010, 10:51 pmLindsey Abelard says:
It is a kangaroo court.
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February 7, 2010, 11:00 pmAnonsters says:
YOU LIE!
The ICC is not located in Australia.
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February 7, 2010, 11:08 pmEngineer says:
In what meaningful sense can the ICC be regarded as a “court”? It’s not like it enforces a set of laws that were drawn up with the consent of the governed.. and it doesn’t pretend to treat all parties equally, or profess to be free of political considerations...
It’s just another tool of internationalism
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February 7, 2010, 11:22 pmLindsey Abelard says:
Not only is the ICC a kangaroo court, by my definition. It is illegitimate.
When I live in a different country, say Japan or Singapore, I accept the fact that I am subject to the laws and legal systems of the country while I am there. This is because when I visit such a country I am their guest and good house guests abide by the rules of their hosts. When I am in the U.S., I follow the laws of my government because my government, regardless of how flawed it might be, in theory is a representative of my people of which I am one of. The legitimacy of the American government is that fact that is is based on being a representative of the American people. The ICC is not an organ of such a representative republic and is, therefor, illegitimate. Non-U.S. political entities have no legal jurisdiction over U.S. citizens in their own country. We already fought a war over this point. There is no reason for us to fight another.
Now, I do understand that the purpose of the ICC is to prosecute people committing Geneva-convention related atrocities in anarchy-ridden places that may have no effective local system of governance. It is reasonable to believe that an entity such as the ICC would be useful in this case. However, I believe that the Geneva convention itself is sufficient for this purpose and that an additional organ such as the ICC is entirely unnecessary and can actually be used to violate national sovereignty, which is entirely unacceptable. The ICC is a solution in search of a problem.
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February 7, 2010, 11:24 pmKen Arromdee says:
Laymen don’t know all about electronics, but laymen can know enough electronics to know how to operate electronic equipment without getting seriously hurt.
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February 7, 2010, 11:46 pmKen Arromdee says:
The other countries figured out that the public relations benefit from a nice-sounding treaty benefits them more than the possible harm from being unfairly targeted, since after all their chance of being targeted is fairly small. The US (and Israel) are constantly internationally vilified, and are much bigger targets.
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February 7, 2010, 11:50 pmAnonsters says:
And just where in the Geneva Conventions do you find the provision for a tribunal competent to try alleged violations of the Geneva Conventions?
What’s more, the Geneva Conventions do not constitute the sum and substance of either international humanitarian law or international criminal law.
What’s more, the Rome Statute is a treaty. Countries have to follow their respective constitutional processes to ratify it. Were the U.S. to ratify the Rome Statute, you’d be SOL with your “ICC isn’t an organ of a representative republic” argument.
What’s more, not every country in the world is a “representative republic.” Are you seriously saying that any government that does not fit that model (whatever that may be; I can’t discern it solely from what you’ve written ehre) is illegitimate? Wouldn’t that have serious ramifications for U.S. foreign policy?
I get the sense that your response is more of a reaction on the basis of gut feeling without much understanding of what international law (including IHL and ICL) is or entails generally, or of the ICC more specifically.
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February 7, 2010, 11:51 pmAnonsters says:
This is a silly response. Just look at the lollercaust of pro se litigants.
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February 7, 2010, 11:53 pmKirk Parker says:
Oren,
What, no props for Poland? Or South Korea? Not even Australia or New Zealand???
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February 7, 2010, 11:56 pmAnonsters says:
So I guess you think all treaties are void per se, unless they are “drawn up with the consent of the governed?” And just what exactly does it mean to “draw[] up [a treaty] with the consent of the governed?”
And why do people who have absolutely no understanding of international law feel so free to blabber on about what is or isn’t the case under international law?
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February 7, 2010, 11:56 pmChief says:
I think the internationalists have soundly trounced the Retard-o-Trons in this battle. Sadly, on a site such as this, they are bound to lose the war.
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February 8, 2010, 12:27 amKen Arromdee says:
I’m having a bit of trouble parsing this sentence, but if you’re claiming that lawsuits by laymen over electronics show they can’t operate electronics, you’re missing the point, which is that laymen can learn how to operate electronics safely, not that all of them do.
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February 8, 2010, 12:42 amDave N. says:
Slightly off tangent, but is one hostile person posting under several names on the “pro-treaty” side? Both “Chief” and “Lee C Walker” (neither of whom are familiar to me from having posted in the past) have been insulting and condescending while violating the basic civility expected on the VC.
“Anonster” hasn’t stooped to their levels, but he/she has has also been less than civil on this thread.
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February 8, 2010, 2:39 amChief says:
Take a loss.
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February 8, 2010, 4:17 amMartinned says:
Let’s rephrase: The purpose of the ratification process is that the treaty, once ratified, has the same legitimacy as a statute. The US are unique in that they have a ratification procedure that is different than the procedure for enacting statutes, but the idea is still the same. A ratified treaty has the same legitimacy (= consent of the governed) as a statute.
Just like Congress could make a statute that applied the substantive and procedural rules to the United States, it can also do so through a treaty. If such a treaty or hypothetical statute violates the bill of rights (or any other constitutional provision), the constitution obviously wins, regardless of whether we’re talking about a statute or a treaty.
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February 8, 2010, 10:03 amDennis N says:
Not only should the US not join the ICC unless its charter includes all the protections of the US Constitution, Congress should pass legislation directing the President that, if an American Citizen be apprehended and put before the ICC, for an alleged crime not committed on the soil of an ICC member, that the US military shall rescue the American using all force necessary.
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February 8, 2010, 10:06 amMartinned says:
Euh..
a) How do you see that happening? The ICC holding someone while they don’t have jurisdiction. You are aware that the ICC doesn’t even have its own prisons, right? The accused, like their ICTY counterparts, are held in the Dutch Scheveningen prison. If they were held without jurisdiction, they would have the same habeas remedy as any other Dutch prisoner.
b) You are aware of the glorious American Service-Members’ Protection Act, right? It is actually both broader and narrower than what you propose, since it covers all cases where US service members are being held by the ICC, but it only authorises the president to free them, instead of requiring it. (Directing him to do so would probably be an unconstitutional interference with his foreign policy prerogatives.)
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February 8, 2010, 10:23 amsardonic_sob says:
History teaches, insofar as anyone listens to her, that granted powers are eventually used. The ICC may begin by requiring Stalin-level mockery of the process of justice: it will end by deciding that any successful defense which would not have been allowed in an ICC proceeding constitutes a per se failure of the process of justice.
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February 8, 2010, 10:57 amsardonic_sob says:
No, but they could write a law that says, in essence, “Everybody who was convicted of Crime X is immediately freed and all sanctions negated. All LEA are directed to remove all records of prosecutions and convictions for Crime X from their records. It shall not be perjury for anyone who was convicted of Crime X to say ‘No,’ when asked if they have ever committed a crime by any person or entity,” etc. What they probably couldn’t do, at least under current US law, is apply it to a *subset* of people (including a subset of one person) convicted of Crime X, but they certainly do have a great deal more power than might be immediately obvious in relation to crimes already committed.
And a full pardon is, in the eyes of the law, a negation of a finding of guilt. (As opposed to a commutation of sentence.) Whether it would stand up to highly regulated scrutiny (e.g. could Marc Rich get a license to work in the gaming industry?) I don’t know, but IIUC it allows the pardoned to have their voting rights, right to bear arms, etc, etc, restored.
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February 8, 2010, 11:09 amDennis N says:
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February 8, 2010, 11:26 amMartinned says:
@Dennis N.: I’m having a little trouble following your argument, but let’s pick up a few things:
Extraterritorial how? Quoting the Rome Statute:
How is that extraterritorial? Your previous comment seemed to suggest the possibility that the court might exceed the boundaries of its jurisdiction, in which case — as I pointed out — the normal habeas remedies would be available.
Well, that depends on what you mean by “acting”. If the US acts on the territory of a state party of the ICC, then they are subject to the jurisdiction of the ICC. If the Secretary of Defense causes war crimes to be committed in — say — Canada, then he is rightly subject to the laws of Canada, including Canada’s acceptance of ICC jurisdiction. You don’t have to be in Canada to (conspire to) commit a crime in Canada.
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February 8, 2010, 11:44 amMartinned says:
Earlier commenters missed the qualifier in the relevant provision (art. 17(2) Rome Statute):
Meaning that, if nothing else, international legal provisions such as art. 14 ICCPR come into play. (In addition, of course, to the Court’s own provisions as to due process.)
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February 8, 2010, 11:49 amMartinned says:
Cf. this recent post on EJIL: Talk!
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February 8, 2010, 11:53 amsardonic_sob says:
I “have regard” for arguments that the current POTUS is ineligible to hold the office due to foreign birth, because they are plausible (his father was an alien, his mother lived abroad in times not far removed from his birth.) However, having given them due regard and examined the available evidence, I have decided that I do not believe that it is very likely that he was, in fact, born outside the US, and therefore I do not lend my support to those who seek to have him removed from that office.
See how “having regard” works? You can give any screwball theory “regard” without being bound by it in the slightest. And since whether the question was given “adequate regard” is likely to be decided by those who did the regarding in the first place, the fact that they are required to give it “due regard” is completely irrelevant, even if it did actually bind them to do anything, which it doesn’t other than making the appropriate ritual boilerplate entries on their forms.
M
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February 8, 2010, 12:17 pmAnonsters says:
There comes a point when obstinately repeating the same themes and arguments, without bothering ever to discover whether you’re right or wrong (you know, actually learning something about the ICC), overwhelms one’s civility. Mea culpa. It’s also hard to discern people who have what they regard as serious-minded points to make from people who are just talking out of their asses (like: ZOMG INVAID GENEEVUH). To the latter, I feel no duty to adhere strictly to canons of civility.
And I’m a man, baby, YEAH!
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February 8, 2010, 12:32 pmShelbyC says:
Chief, learn some f**king manners.
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February 8, 2010, 12:36 pmCousin Dave says:
Allow me to sum up the thread: Skeptics have posted some points, some not very relevant, but some pretty good ones too. Advocates have responded to one and all with ad homineum attacks, “you’re too stupid to understand”, and the ever-popular “anyone who disagrees with me is a Nazi”. They have done all this while offering no actual evidence, and ignoring or dismissing out of hand all evidence offered by skeptics. And the position that the advocates are advocating involves an enormous power grab that must be expedited because the crisis is far too urgent to allow for normal processes of democracy to work.
Any of this sounding familiar?
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February 8, 2010, 12:50 pmAnonsters says:
No. I thought I made some reasonable rebuttals, in between snarking back at those I felt deserved it.
Martinned made substantive and interesting points, as well. As he always does.
And there were certainly others responsive to the non-butthurt concerns.
So I guess you read this thread from a deeply entrenched bias and failed to consider the other side’s POV. Sound familiar?
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February 8, 2010, 12:55 pmDoc99 says:
George Washington cautioned against Entangling Alliances. I’m quite sure this would go double for the ICC. Our sovereignty was won with blood. It should not be surrendered by the stroke of a pen.
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February 8, 2010, 12:57 pmMartinned says:
Do you want to run that part by me again? How is any of this an enormous power grab? The ICC’s jurisdiction is limited to four crimes that are extremely rare, and even less likely to ever affect the US. It’s not like they took over responsibility for trying murder suspects.
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February 8, 2010, 1:05 pmMartinned says:
I think he was more concerned about stuff like NATO. Are you against that, too?
The point of avoiding enduring alliances was not to protect US sovereignty. That is a completely separate issue. The point was to protect US freedom of manoevre, and minimise the chance that the US would get sucked into a war that it had no real interest in fighting:
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February 8, 2010, 1:11 pmOren_ says:
So insofar as the US refuses to ratify, we are thus exempt from its jurisdiction?
To my understanding, this is not the position taken by the ICC, but I would be quite glad if it were.
Neat post, I hope to get a chance to discuss it (hopefully more civilly than this thread in which I condemn both sides as being intemperate at times).
If the ICC ever gets around to defining the crime of aggression, I think it would be a huge limit on the tradition prerogative of the US government to conduct military operations as it sees fit. If it confines itself to jus in bello as opposed to jus ad bello, then I would have less problem with it. It appears to me to be moving in the opposite direction.
Also, Martinned is right about Washington’s motivation for entangling alliances.
Finally, I want to reiterate my main question to the supporters since I don’t find the answers up till now particularly responsive — if we take your assertion that the ICC wants only to apply to “anarchy-ridden” places of the world, why did the Rome negotiators refuse Clinton’s reasonable request to exempt the US and Western European governments from the ICC’s subjective judgments regarding reciprocity (articles 17 & 20)?
I cannot put it together — I believe (or I want to believe) that they are good-intentioned folks that have no desire to criminalize the actions of the US. On the other hand, they refuse to make a binding agreement not to do something that they putatively don’t intend. This is even more absurd given how many of the ICC principals have signed bilateral agreements with the US promising not to cooperate with ICC probes against our officials/soldiers.
So what explains this apparent dissonance?
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February 8, 2010, 1:46 pmDennis N says:
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February 8, 2010, 1:49 pmMartinned says:
Insofar as the US does not ratify, crimes committed on US territory by citizens of non-parties are not covered, unless the crime in question is referred to the ICC by the security council, where the US have a veto.
Quoting wiki:
Well, here the problem is that — if I understand it correctly — no one is looking to change the ius ad bello. So the only “agression” that might come before the ICC is the kind of agression that is already unlawful under the laws of war as it is. The most recent proposal seems to have the additional requirement that the violation of the ius ad bello, as laid down in the UN Charter, amongst others, be “manifest”. (Which would possibly exempt the Iraq war, for example, since the illegality of that war is a matter on which reasonable minds can disagree.)
Because listing them by name causes at least two problems that I can see:
1. It creates a problem of line drawing. Which countries have records that are so exemplary that they deserve to be included in the list? Inevitably, that is going to offend a lot of countries that are just on the wrong side of the list. (EU states like Bulgaria and Cyprus, for example.) Moreover, it creates the risk of diplomatic arm wrangling in order to get certain powerful but dodgy states on the safe list anyway. (Russia?)
2. It creates a problem over time. The Rome Statute lists the following decision making rule for the Assembly of States Parties (art. 112(7)):
A safe-list like the one you propose would presumably be a “matter of substance”, meaning that it is highly unlikely to be changed very often. This means that once a state is on the list, it will be very hard to get it off, even if the situation on the ground greatly deteriorates. That wouldn’t be very problematic if the list was very short, and limited to countries like my own and yours that have a tradition of rule of law, etc. that goes back centuries, but for that see point 1.
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February 8, 2010, 2:36 pmSF Alpha Geek says:
Isn’t it a bit disingenious to claim that four (for practical purposes, three) very broad and nebulously defined categories of crimes are four simple, distinct, (and rare) crimes and to further imply that the US is unlikely to be affected? At any rate, it’s trivial to construct a counterfactual to your position:
1) The US is engaged in combat operations in Afghanistan against irregular forces who do not meet the requirements to be “protected persons” under the Geneva Conventions.
2) Protocol 1 extends the protections of prisoners of war to irregular forces regardless of their adherence to the laws and customs of war, effectively, if not semantically, eliminating the distinction between prisoner of war and unlawful combatant. That’s one of the prime reasons the US had for refusing to ratify the protocol.
3) Nevertheless, the modern IHL crowd (to which appointees and functionaries of the ICC can reasonably be suspected to belong) proclaims Protocol 1 to be part of “customary international law*” which binds the US to adhere to the provisions in the protocol.
4) We do not extend prisoner of war protection to detainees in Afghanistan (for example, nobody’s getting 12 swiss francs a month.) More seriously, a committed anti-US, pro “IHL” zealot could decide that our detainee policy was a violation of the Rome Statute (Art. 8 section 2, para (a) (vi) and (vii) (and possibly (ii).)
5)Our own national justice system has taken no action against, for example, Bush (or Obama) administration officials, military officers, or CIA employees.
Could a politicized ICC decide to pursue a case against US officials under the theory above? Absolutely. Would they? Who knows — but given the bitterly anti-American track record of any number of international bodies with a high minded charter (say, the UNHRC), I’d say that the people who oppose US ratification of the treaty have a legitimate concern.
Answering that concern will require more than explaining how nifty the other outcomes of ratifying the ICC will be.
The problem here is that both sides are arguing from valid positions — the internationalist crowd claims that the ICC will both make prosecution of real crimes easier, and will probably have a deterrent effect, by demonstrating such behaviors are more likely to be punished.
The US sovereignity crowd claims that the ICC, if it becomes politicized (and they further claim, with some historical justification, that it probably will), provides a mechanism to threaten and sanction US officials for actions carried out in accordance with US law, and, in addition to being a forum for the trial of legitimate bad actors, will become a means to check US power.
And guess what? Both sides are right. But if there’s a bad faith argument being made here, its the international law crowd making it — if its not the intent of the ICC proponents to use the court to diminish US sovereignity, add the specific language that Oren suggests, recognizing the finality of decisions made under US law.
But it won’t happen, because too many of the people who framed the Rome Statute and the ICC see the check on US power as a feature, not a bug. The US has a different set of concerns about the use of hard power than does, say, Denmark, and, from the standpoint of national interest, is right not to ratify the treaty. If the rest of the world wants US participation, then they’re going to have to recognize the special concerns that the US has given its standing in the world. In the near future, when our domestic policies have reduced us to a country with the international standing of Greece, that may change.
Until then, I don’t see a practical difference in whether we ratify the treaty or not — its not like Venezuela is going to suddenly respect us more if we do. If there’s a legitimate violation of the laws of war by a non US actor, the US can still cooperate with the court, and US law is sufficient to deter and punish war crimes by US officials. (And the first person who responds “Oh yeah, what about John Yoo?, or, or Blackwater, or Cheney/Rumsfeld/Bush” proves my entire point.)
*Customary international law: a phrase which originally meant “what pretty much all western nation-states agreed was settled law in the relationship between nations” — e.g., piracy is bad — but which has come to mean “whatever actions any given leftist believes the United States should refrain from carrying out.”
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February 8, 2010, 2:38 pmMartinned says:
The whole point of the ICC is to get rid of such “befehl ist befehl” excuses. War crimes are committed by individuals, not by countries. (Surely you would agree that they are almost automatically ultra vires, at least in civilised countries?)
Now you’re just begging the question. Not to mention that US ratification of the Rome statute essentially makes the ICC an Article I court.
No, in Dutch court, obviously. That’s where such a person would be held.
And what if the Secretary of Defense conspires to have a Canadian official bribed? Should Canada declare war on the US in that case, too?
And what if the Secretary of Defense conspires to traffic narcotics from a third country to Canada. Would the Canadian courts have jurisdiction over that crime? Or would they again have to declare war on the US?
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February 8, 2010, 2:45 pmSF Alpha Geek says:
OK, in the interval between my starting to write and posting, there was an exchange between martinned and oren that provided a plausible reason for not exempting the US — one which I don’t buy in the slightest.
Both oren and martinned impute virtuous high-mindedness to the negotiators at Rome that I don’t necessarily believe in. I don’t, as some people seem to, think that the entire ICC is an attempt to trick the US into ceding sovereignity, but neither do I think that martinned offers a compelling case for why concessions weren’t granted the US — I suspect that the default position in Rome was “Wow, we get this great standing international mechanism for dealing with truly abhorrent behavior — and, by the way we get to take a stab at limiting the ability of the US to act on the world stage. What’s not to like?”
Maybe the issue was partly one of who gets on the list of countries that can take care of themselves — but there’s a compelling reason to have such a list, and in the absence of an acknowledgement that the US needs to be on it, I stand by my position that we should not ratify the treaty.
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February 8, 2010, 2:55 pmMartinned says:
OK, you’re right. Poor choice of words on my part. The point was that it is hardly a huge surrender of sovereignty, and that point still stands.
(Individual) self-defense is a defense explicitly recognised in art. 31(1)(c) of the Rome Statute. To the extent that that doesn’t apply, what do you want me to say? The “US sovereignity crowd” (your words, not mine) always argue that international law doesn’t have sufficient teeth to count as real law. Well, here we are, trying to give it teeth. At the end of the day, if you don’t want to get in trouble with the ICC, don’t violate international law. That seems like a simple enough proposition.
AFAIK, the concept of an unlawful enemy combatant as a category somehow distinct from other combatants and from civilians is something made up by the Bush administration in order to get around the Geneva Conventions. Personally, I’ve never seen any explanation as to why any such category would exist under the laws of war, with or without Protocol 1. There are civilians, and there are combatants. To the extent that individuals from either category violate the laws of war, they can be punished. But that doesn’t change their status into some wholly new category.
This is a beef I have with CIL as well, though I wouldn’t go as far as you do in your footnote. I see no reason why CIL would have to be the same for every country, so I would make it depend more on each country’s individual custom and opinio juris. That said, even the mainstream version of CIL recognises that persistent objectors are exempt, so I don’t think your scenario would work.
There’s a lot of things zealots could decide. The more interesting question is what the judges on the ICC think. As for the specific provision you cite: you do have the same copy of the Rome Statute that I do, right? In my version, vi concerns the right to a fair trial, vii is about unlawful deportation, etc., and ii is about torture and inhumane treatment. How do those 12 francs have anything to do with any of those. As for depriving people of POW status when they’re entitled to it: Just don’t.
I’m not sure what specific actions you have in mind, but generally I’d say the crimes you have in mind are outside the temporal, territorial and/or substantive jurisdiction of the ICC.
Of course. The ICC is supposed to act as a check on everybody’s power, that’s the whole idea. One power to hold them all in awe, etc., etc.
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February 8, 2010, 3:03 pmAnonsters says:
Well, if you really want to find out, it just so happens that the ICC has made the travaux préparatoires available over the internet, so you can slog through the entire process of drafting and negotiation to figure out what exactly went on.
http://www.legal-tools.org/en/what-are-the-icc-legal-tools/
Click on “Go to Database;” accept the terms (who reads those things anyway?); then under “ICC Preparatory Works” you can find the relevant work of:
The Ad Hoc Committee (1994–1996), the International Law Commmission (1989–1995), the Preparatory Commission (1999–2002), the Preparatory Committee (1996–1998), and the U.N. Diplomatic Conference (1998).
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February 8, 2010, 3:34 pmSF Alpha Geek says:
No, he’s not — he’s stating the entire philosophical underpinning of the US opposition to ratification of the ICC.
And really, an Article 1 court? Given that the USSC has held that decisions of Article 1 courts are always subject to review by Article III courts, that would seem to be a more substantial limitation on the ICC’s jurisdiction than I think was anticipated.
That’s exactly the problem, isn’t it — the US contends (validly, in the absence of protocol one) that irregulars who wage war in contravention of the specific requirements to be considered a combatant under the 1949 Convention are not entitled to the protections afforded prisoners of war (and are, thus, “unlawful” combatants. Protocol One erases that distinction, and has been proclaimed “customary international law.”
I gave you a specific example of where the ICC could interfere with US sovereignity — please explain what in the current treaty would prevent the ICC from choosing to pursue a case under those circumstances — which are extant, not theoretical. Given the anti-US history of modern international organizations (again, I point you to the UNHRC), I believe the US is correct to be leery of the ICC. Platitudes like “just don’t” do nothing to reassure ICC ratification opponents, and everything to bolster our suspicions.
OK, I won’t try for levity in any future posts — 12 francs is the monthly stipend an enlisted prisoner of war is entitled to under the 1949 convention.
More seriously, there have already been accusations of torture, denial of the rights of a fair trial and unlawful deportation in the case of Gitmo detainees. That these accusations are unfounded might matter little to a politicized ICC. In any event, it’s a matter for the US political and legal system to deal with, not an international body, regardless of the outcome of any possible proceedings of the ICC.
I can only offer that implying that the ICC is the start to placing nation-states in the same relationship to an international body as Hobbes believed citizens should be to a sovereign is not the best way to persuade people to your point of view.
But it may reveal more about your point of view than you intended . . .
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February 8, 2010, 3:34 pmDave N. says:
Anonsters,
Re-reading your posts, I was mistaken when I lumped you with the other two. I apologize for that. It was late and the overall tone of this thread had been appalling.
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February 8, 2010, 3:49 pmMartinned says:
Hobbes may have gone a little far, but his prose is way better than Locke’s.
Huh??? Are you for real? Of course those GITMO detainees have had their rights violated in more ways than I can count. Whether that might imply criminal liability under the Statute of Rome is something I’d have to consider further, given specific accusations regarding specific individuals, but there is no question that GITMO is exactly the kind of thing that the ICC is meant to prevent. (Though admittedly there are worse ICC crimes.)
The decisions you are talking about are made by the independent prosecutor, overseen by the even more independent judges. Do you have any reason to doubt the impartiality of the Court? Comparable courts, like the ECtHR and the ICJ, kick ass, but I am not aware of any widespread mistrust against them. The judges on those courts tend to do their work conscientiously and impartially. Is your impression different than mine? For background reading, here’s the most recent news from the ICC.
Please point me to the place in the Geneva conventions, or in another instrument of the laws of war, where this rule is laid down. To the best of my knowledge, there isn’t one. The only basis for your “validly” is the claim by the US. While unilateral statements are not entirely without value in international law, this is a bit much.
Like I said, if the ICC oversteps its boundaries, the accused always has recourse to the usual habeas review, or even — under Bosporus — to the ECtHR. Of course, none of that would be in American court, since obviously they wouldn’t have jurisdiction. (You can only ask an American court for habeas review if you’re being detained by an American government entity.) Still, it could be fun. Dutch courts probably would throw the case out unless the injustice was quite obvious, but I’d love to see the spectacle of an ICC ruling being appealed to the ECtHR.
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February 8, 2010, 3:50 pmAnonsters says:
I think the tricky part is AP I art. 44, which I quote in full and bold the tricky parts:
The commentary on art. 44 helps some:
http://www.icrc.org/ihl.nsf/COM/470–750054?OpenDocument
And here’s the text of art. 43:
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February 8, 2010, 4:05 pmAnonsters says:
And here are links to articles 43 & 44 of AP I, at the ICRC site:
Article 43
Article 44
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February 8, 2010, 4:11 pmSF Alpha Geek says:
From this high-minded discussion of why, for technical reasons, the accomodations the Clinton administration asked for, regretfully could not be granted, even though we all know the ICC would never, never target US actions because . . .
To this, in the space of less than a dozen quotes . . .
But don’t worry, advocates of the ICC really, really aren’t targeting the US
(By the way, The 4th Geneva Convention Relative to the Protection of Civilian Persons in Time of War defines people entitled to protection as civilians in Article 3(1). The Convention Relative to the Treatment of Prisoners of War defines those entitled to protection as POWs in Article 4. (The specific articles relative to the situation in Afghanistan would be (A)(2)and (6).) Gitmo detainees do not meet the requirements for protection as civilians, nor do they meet the requirements for protection as POWs — I invite you to think of a better phrase than “unlawful combatant” — “people who, under the prevailing laws and customs of war, could lawfully be shot with a minimum of fuss or bother, but who are pretty fortunate that the US doesn’t really operate that way” seems a bit unwieldy.)
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February 8, 2010, 4:13 pmSF Alpha Geek says:
Thus the discussion of why the US has not not ratified AP 1 — AP I stands the entire reason for having a protected POW status on its head. Under the Geneva conventions as ratified by the US, we are not obligated to afford those protections to irregulars who do not meet the requirements set out in 4(A)(2) and (6).
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February 8, 2010, 4:19 pmAnonsters says:
The problem is that “combatant” appears in AP I, and “combatant” has a very definite meaning (see above). You can’t be an “unlawful combatant” under its terms. You’re either a person entitled to combatant status or you’re not entitled to combatant status under AP I. If you’re entitled to combatant status, certain rights/privileges flow from that status. If you’re not, then you’re not entitled to those rights/privileges as a matter of right. Again, see my above post.
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February 8, 2010, 4:21 pmSF Alpha Geek says:
Thanks — an excellent summary of why the US never ratified AP 1, and is thus not bound by its definition of “combatant,” nor by its extension of the protections equal to that of POW status to people who aren’t entitled to the status of POWs.
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February 8, 2010, 4:28 pmAnonsters says:
What would be the point of ratifying the Rome Statute if we simultaneously demanded that it not apply to us? Complementarity is one of the fundamental principles of the ICC’s operation. To demand that complementarity not apply to us is basically to demand that the provisions of the Rome Statute not apply to us. So I find it a little hard to understand the point about the other parties to the Rome Statute not agreeing to exempt us.
The real thrust of your argument is just that the U.S. shouldn’t ratify the Rome Statute. That’s fine, that’s certainly an argument that can be and is made in a responsible, reasonable way.
But to say that because the other states parties were unwilling to provide an exemption to the principle of complementarity for the U.S., the ICC is “really” just targeting the U.S. and trying to bring us down is, to put it mildly, ridiculous.
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February 8, 2010, 4:30 pmAnonsters says:
Yes, but you missed the point that our use of “unlawful (enemy) combatant” is nonsensical under IHL. In fact, it appears to be nothing but an attempt to cloak our practices with the legitimacy of IHL by invoking its language (though not precisely, of course, because “unlawful combatant” is, as I said, without meaning).
In other words, you can’t have it both ways.
And what’s more, Common Article 3 pretty much applies no matter what, and GC III arts. 129–131/GC IV arts. 146–148 obligate us to hold responsible those who order or commit grave breaches (which, by definition, include violations of CA3).
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February 8, 2010, 4:41 pmLee C Walker says:
No such prerogative exists in international law, and the act of Aggression has already been defined (a long time ago). See UN General Assembly Resolution 3314. Whether the ICC implements its aggression jurisdiction or not, aggression is already against international law.
Also, the theory of just war no longer exists. See Arts 2(4) and 51 of the UN Charter.
If you think the USA has a prerogative to take whatever action it sees fit, I suggest you read (or reread) Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States Of America). The USA dropped out of the court because of that case. Why? Because it wants to violate the law without consequences. How would you feel if a thug signed a ‘social contract’ agreeing to obey by certain laws of society (assume law worked like that domestically) and was then found guilty of a crime, but said ‘sorry, I withdraw from the court. You have no jurisdiction over me anymore. I am now free to murder as many citizens as I want.’
The USA has no prerogative to take what military action it seems fit. It may only act in accordance with a Chapter VII Security Council authorisation or under the terms of Art 51 of the Charter (and the customary international law associated with it):
This means the USA may take action:
1. In response to an actual armed attack;
2. In anticipation of an imminent attack, according to the doctrine of the Caroline Affair, meaning anticipatory self defense is only available when the “necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation”.
There is no provision in international law for the type of pre-emption that John Yoo spouted in hi OLC memos, or that George Bush talked about but didn’t rely on in the run-up to Iraq.
The United States has the prerogative to take whatever military action it wants, does it? Did Hitler also have that prerogative? Yes or no. If you can’t answer in a single word, cease this argument forever.
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February 8, 2010, 4:43 pmAnonsters says:
Well, to be fair to you, I wasn’t perfectly civil in all my responses, either, although I did try to be less caustic than others. :)
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February 8, 2010, 4:43 pmLee C Walker says:
Name a single court on Earth that isn’t politicised. Should Democrats be allowed to withdraw from SCOTUS jurisdiction when there’s a Republican majority on the court? Please.
This ‘politicised’ argument is a joke.
All the American exceptionalists are so narcissistic that they think every and any internationalist movement is automatically a plot to overthrow America. Not everything is to do with you, America. Europeans don’t have posters saying ‘We Hate America’ on their walls. South Americans don’t paint devil horns on pictures of bald eagles. Just sit back and relax for a second. Breathe. Not everything revolves around you. It’s just so irrational how you people get. I refer back to earlier in the thread, where it was claimed the ICC is an attempt to create a one world government. Illuminati threats, really? Are we in Alex Jones territory now?
Understand that you live in the WORLD, not just AMERICA. Humanity should work TOGETHER, not AGAINST EACH OTHER.
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February 8, 2010, 5:00 pmMartinned says:
Euh, careful there. Don’t forget that GA resolutions have about as much binding force as the funny pages. Not to mention that the definition proposed in Resolution 3314 is far from perfect. (Which is why they’re still arguing about it today, 55 years later.)
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February 8, 2010, 5:09 pmLee C Walker says:
Well, maybe I worded it incorrectly. I am not saying that 3314 is binding, I’m saying that a definition of aggression exists, and it is part of CIL these days. Furthermore, I am saying that the old way of just war has been done away with by the Charter, leaving only two legal avenues for an attack: Chapter VII, and Art 51.
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February 8, 2010, 5:21 pmDennis N says:
Looking at it from the POV of the POTUS or the Chief of Staff of Army, (yes, when I’m king :-) ) befehl ist befehl, and I will court martial and seek to execute anyone who violates a serious order in time of war. I can’t have my senior officers looking over their shoulders at what something some clerk in The Hague decides should be illegal. If my subordinates commit what I consider to be war crimes, I will court martial them.
If war crimes are committed by individuals, then it is up to their nations’ laws to bring them to justice. The Holocaust, to toss the Godwin example on the table, or the chemical bombing of the rebel villages in Iraq were State actions. If you want to punish the individual implementers, I believe it is a good thing, but don’t try to fool yourself into believing it is anything but victor’s justice.
If you want to tell the funny Turd World countries where the people wear funny hats that it offends you when they murder each other, and you will hang them for it, be my guest. It’s a good thing and I may even help you. But no real country ought to give up its sovereignty to some clerks in Europe.
No, I am arguing that it is bad national policy to allow foreign justice to try American citizens. I am arguing that any government that gives up US Constitutional protection to a foreign court is betraying the US People.
I would accept it if the ICC were a US District Court, with extrateritorial powers, meeting in DC. and governed by the US Constitution and legal canons. Would you? Would you accept it as just that the Dutch Parliament should be tried in a Civil Rights case in a US court for passing the law that allowed Geert Wilders to be tried for hate speech? I wouldn’t if I were Dutch.
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February 8, 2010, 5:24 pmLee C Walker says:
That’s right, reveal the true colours of your inner racist. Let it all out.
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February 8, 2010, 5:28 pmSF Alpha Geek says:
I disagree with your interpretation — the precise reason that we did not ratify AP 1 was that the US wanted to preserve the critical distinction in the law of war between a combatant who is entitled to POW status and one who is not. As for your invocation of AP 1, to which the US is not a party, see my earlier definition of “customary international law.” And CA3 sets a far more minimal set of requirements than do the conventions relative to civilians and POWs. Again, if “unlawful combatant” bothers you, I invite you to coin a better phrase for persons who are combatants not entitled to POW status.
And I don’t see how I’m trying to have it both ways — under GC IV, a detainee is a civilian, and thus entitled to protection of that convention, or a prisoner of war and thus entitled to that protection, or neither, and thus only entitled to a minimal standard of “humane” treatment. Countries that are party to AP 1 have obligated themselves to a different standard — one that’s tenable as long as the US does the heavy lifting for them.
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February 8, 2010, 5:29 pmAnonsters says:
Then you’d be wrong and mistaken. Not only is there no duty to follow an illegal order, military personnel have a duty to not follow illegal orders.
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February 8, 2010, 5:31 pmAnonsters says:
I’ll just say that I like how you make your case on the basis of reading the text and trying to construct a reasonable interpretation, putting forth an argument on the basis of that interpretation, and then closing with something like the italicized text in the quote above–i.e., a completely unsupported, groundless assertion that sounds the horn of American exceptionalism and makes you very hard to take seriously.
(And FWIW, I’m not entirely sure what it is we’re arguing about, aside from the propriety of using the term “unlawful enemy combatant.”)
And I’ll just leave this here, which sort of makes the case that we’re both right:
http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5LPHBV/$File/irrc_849_Dorman.pdf
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February 8, 2010, 5:48 pmsardonic_sob says:
I don’t know if your hat is funny or not, but I bet you wear one, or all those points wooshing over your head would give you a terrible cold in your head.
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February 8, 2010, 5:57 pmsardonic_sob says:
I don’t see why we have to call them “combatants” of any stripe. They are, at various times, insurrectionists, terrorists, or brigands. We already have any number of proper words to describe them. The fact that they “combat” organized regular troops does not make them combatants. It’s like asking if because the Mafia refers to its members as “soldiers” that we are required to conduct legal analysis of their potential rights as POW.
Actually, I do know why, and the term is a fig leaf, but not for the reason most people think. It’s because we don’t want to acknowledge that they are mere criminals, which would cause a whole host of PR and legal problems in and of itself. This way we get the benefit of being able to project military force outside our borders against them, without having to declare war or, alternatively, explain why we’re sending our armed forces to conduct law enforcement activity in other countries.
Not that I don’t think we may have some historical precedent here for our actions, just not for our mealy-mouthedness. What did we call Pancho Villa? Was he an unlawful combatant? Or was he just a bandit?
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February 8, 2010, 6:05 pmSF Alpha Geek says:
Careful, all that heated invective might set your strawman on fire.
Yep, I’m right up there with that wild eyed crazy right wing conspiracy theorist Bill Clinton on this one. That’s why all my posts talk about the complete evil inherent in the ICC and how its nothing but a Trilateralist plot to bring down America.
I don’t think I ever said that the driving force behind the ICC is a conspiracy to destroy the US — I think that — and this goes to anonster’s point about complementarity as well — its a noble concept that is fatally flawed because it fails to recognize that the US occupies a special place in the international order. Now, you can argue that the US shouldn’t occupy that place (and I might even agree, given that on balance, its probably hurt us as much as its helped the rest of the world), but I think its suspect to either
a) deny that the US, at this time in history, is a unique entity,
or
b) use a side effect of an international covenant supposedly oriented towards quelling the worst crimes in the most anarchistic parts of the world as a tool to try to dislodge the US from that place.
Simply, given that the UN has pretty much failed except as a jobs program for academics and 3rd world bureaucrats, it may be time to explicitly design and negotiate a “new world order” which makes the US special place unnecessary, but until that happens, the ICC is fatally flawed because it — as a side effect — can, and probably will, be hijacked by a bunch of clowns who want to use it to go after “BusHitler” or “RoveFeld” or whatever, for not abiding by whatever some NGO thinks CIL ought to be.
You know, there’s a law against openly carrying loaded automatic weapons in the street — but a few natural disasters ago, I did just that, and quite legally, since I was an officer of the State militia. The law forbade my actions in general terms, but the law explicitly recognized a necessary exception. If supporters of the ICC want to see the US ratify it, they need to make that exception as well.
Otherwise, this has been an interesting discussion, and a great way to kill a few hours, but absent such a necessary exception, the ICC will continue to fail to be ratified by the US — with no practical effect at all on its purpose (unless you think that its purpose is to punish US officials for supposed “war crimes.” And let’s hope that doesn’t come to pass, because it would set the “soft” vs. “hard” power argument back half a century — if George Bush, or even Karl Rove — were to find himself in Scheveningen, I can only hope that Delta is as gentle as possible with the guards. Even a leftist like Obama would have to go that far confronted with such a naked challenge to US sovereignity.)
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February 8, 2010, 6:06 pmShelbyC says:
U.S. Military may have a duty not to follow orders the US considers illegal, but from the US perspective they most certainly have a duty to follow orders that the US considers legal but sombody in the Hague considers illegal.
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February 8, 2010, 6:12 pmDennis N says:
There certainly is a category of combatants distinct from Lawful combatants. Why else would lawful combatants be defined under Hague?
No, they cannot be shot out of hand as some people state; at least not under US law. But they can be tried for their crimes. POWs cannot be tried for their actions. As active terrorists, they can be kept under stricter conditions then POWS, who must be kept in relatively open camps.
The whole Lawful vs Unlawful combatants deal is an evolution from the Thirty Years Wars, when the treatment of civilian populations was so savage as to even shock the combatants at the time. The intent in all the evolution is to draw a bright line to separate those who are fighters, and those who are not. Under Hague, fighters are basically State actors. War is the exclusive prerogative of states or entities very near to being states. The reason for the Four Tests under Hague is to separate the fighters, who are fair game, from the non fighters who are not. Unlawful combatants blur the line, making the civilian suspect and subject to reprisal and combat.
This is the reason it is important to treat unlawful combatants separately from lawful combatants, and what gives impetus to the demand that they be treated savagely.
One problem is that the Hague and Geneva Conventions are largely obsolete. They were Gentleman’s Agreements, back when the Major Powers were considered to be Civilized Nations who could be trusted to act like Gentlemen, and the other nations, if they were nations, were treated like the scum of the earth.
We learned during WW-II and the Cold War, that major powers, e.g Nazi Germany, the USSR, North Korea, and North Vietnam, had nothing to do with Gentlemanly Conduct and treated their POWs savagely. Even the US had recourse to summary justice on occasion. The Geneva Convention had no moderating influence on the High Contracting Powers, only their sense of being “above most of that” restrained them.
Quite frankly, we should denounce the hypocricy of the Geneva and Hague conventions as law, and adopt them, in spirit, by Executive Order. We’ll treat your prisoners well, if you treat ours well. Otherwise, we’ll treat them as we wish, which is probably still pretty nice.
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February 8, 2010, 6:15 pmOren_ says:
That’s a true answer to a different question than the one I asked. I asked if the US was exempt from jurisdiction, not if acts taken on US soil were exempt from US jurisdiction.
You wrote that the ICC enforces a set of laws that are subject to consent (via ratification) by those governed. Yet you answer that US actions can, in fact, be governed by the ICC in the absence of our consent (actually in the face of explicit refusal of consent) if they take place outside of US territory.
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February 8, 2010, 6:15 pmDennis N says:
You’ve revealed that youb are nothing but a race baiting scum. Begone Troll.
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February 8, 2010, 6:16 pmLee C Walker says:
I never said YOU said that, but someone DID say it was a plot for world government. Scroll up if you don’t believe me.
Also: answer the question: Please name me one court on Earth that isn’t poiticized. And should Democrats be able to excuse themselves from the jurisdiction of SCOTUS when there is a majority of Republicans on its bench?
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February 8, 2010, 6:16 pmDennis N says:
That is correct. And it is handled under US law, not some foreign political tribunal.
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February 8, 2010, 6:17 pmDennis N says:
If they are combatants, we have the right to kill them in combat. If they are not combatants, and in their own country, we have no particular rights over them at all.
The whole basis for defining combatants vs non combatants, is to allow greater protection for the non combatants.
We were a lot more cavalier in the teens. But caught, he would have been treated as an unlawful combatant, probably at the end of a rope. If he was a lawful combatant, we would have gone to war with Mexico. And we couldn’t legally have hanged him.
I suppose I’d have to say that, when he crosses the border, a bandit becomes an unlawful combatant. That means you can treat him like a criminal. POWs have committed no crimes.
Unlawful Combatant status does not necessarily mean you can shoot him out of hand, at least not in the US it doesn’t, and it never will.
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February 8, 2010, 6:25 pmDennis N says:
That’s a keeper. :-)
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February 8, 2010, 6:27 pmOren_ says:
Those offended countries can either bite it or not join. My sense is that the ICC would be better off with the US and without Bulgaria and Russia.
Yes, this is an inevitable problem. In my judgment, it is better to have the US onboard the ICC with this problem than to have the US offboard without this problem. I respect that the ICC principals disagree (and they have every right to organize the ICC how they see fit) but unfortunately their decision precludes any US involvement.
My hunch is that they badly misjudged their bargaining position, hoping for a future internationalist President to reverse Clinton’s decision. Perhaps they can get a comparable offer from Obama, but my sense is that the ship may have already sailed.
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February 8, 2010, 6:29 pmDennis N says:
They have already made themselves subject to the Law of the US by being American Citizens.
We are not citizens of the UN, nor of the ICC, nor any other World Body. We should not give up any sovereignty to such a body unless we are satisfied that, among other things, it does not diminish the rights inherent in American Citizenship.
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February 8, 2010, 6:31 pmAnonsters says:
And Hague and Geneva are from 1907 and 1949 respectively, and they’re “largely obsolete.”
What does that make the U.S. Constitution?
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February 8, 2010, 6:34 pmAnonsters says:
Question: what law applies to U.S. persons in foreign countries?
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February 8, 2010, 6:36 pmOren_ says:
Absolutely not. Any action taken by the US President with the consent of Congress and in full compliance of the rules set forth by Congress is one taken in the name of the American People.
[ I concede that a war crime can be committed by an individual when he violates either the executive or congressional rules (e.g. My Lai Massacre) or if such conduct is kept secret from Congress and cannot reasonably be said to have Congressional consent or if the Congress and President refuse to stand for free and fair elections. ]
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February 8, 2010, 6:39 pmBob from Ohio says:
Do you consider the US and the Third Reich equal in evil? Yes or no.
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February 8, 2010, 6:43 pmBlue says:
“Also, the theory of just war no longer exists.”
Really? Just like that?
Mr. Walker, the opponents of the ICC would need to create a persona like you to show how virulantly it would oppose our interests did you not, helpfully, exist.
Understand this: me and the vast majority of Americans are quite happy, thank you, with our government being the ultimate sovereign authority in our country. That’s why the ICC treaty cannot be ratified. The reaction of Europeans–to figure out ways to make it apply as “customary international law” even without our assent–simply demonstrate that the real reason for its existance is animus against my country.
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February 8, 2010, 6:44 pmOren_ says:
For military personnel in the course of active operations, most certainly the UCMJ plus whatever other status-of-forces agreements to which we have consented.
You can’t seriously be claiming the US soldiers fighting the Germans in Normandy are properly subject to the laws of Vichy France, right? Or that US special forces in the USSR had to obey Soviet Law?
It strains credulity to ever posit such restrictions because the fundamental assumption of military action is the non-recognition of the lawful contrary authority. I’m sure Vichy France would have passed a law making amphibious assaults illegal if they had any conception that folks in the US might consider it relevant.
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February 8, 2010, 6:49 pmOren_ says:
By the way, Anonsters, you played the same trick Martinned did — you answered a different question than the one I asked. I’m not imputing intentional misunderstanding, but I think you are not reading carefully my responses, which I think have been polite and to the point.
You asked what law applies to American persons, not to actions of the US government. Of course an individual that voluntarily travels to a foreign country is subject to local law — that much is not in dispute. The question of the ICC is whether foreign law can bind the official actions of the US government (e.g. The People) taken in accordance with our laws and courts without our consent.
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February 8, 2010, 6:54 pmAnonsters says:
I asked a question, I didn’t posit anything.
Next question: does the U.S. have the right (however you want to define that) to invade and to occupy any country it wishes?
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February 8, 2010, 6:56 pmAnonsters says:
Then I suppose you think the Nuremberg trials were radically wrong, and that the U.S. now probably owes some form of compensation to those they tried for, inter alia, war crimes.
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February 8, 2010, 6:59 pmOren_ says:
Of course it’s a simple proposition, it’s just that it’s an unacceptable one.
SFAG, with all due respect to someone that is agreeing with me here, your rhetoric is (IMO) weakening our common position. Of course, while you are free to argue however you like, I would urge you to tone it down a notch.
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February 8, 2010, 7:00 pmAnonsters says:
And I further suppose you think 18 U.S.C. §
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February 8, 2010, 7:01 pmOren_ says:
Maybe you missed the free and fair elections part?
In a more philosophical sense, I do hold the entire German people (that was adult at the time) and not just the leadership, responsible for the crimes against humanity committed by the 3rd Reich.
It was a leading question, meant to compare the ICC’s assertion of jurisdiction over US government actions to the routine jurisdiction of American tourists to local law.
Did Congress consent? There’s your answer. I do not recognize any extra-Constitutional authority to restrain the actions of the United States government.
Now, prudence requires (demands!) that Congress take into account the view of other nations regarding their actions. I would not lightly vote the country to war against the wishes of the whole world nor have I voted for hawkish representative that would. My policy preference is not, however, a substitute for that of our duly elected representatives.
Jefferson said that the will of The People is independent of, and superior to, all earthly law. That’s what I believe.
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February 8, 2010, 7:12 pmOren_ says:
Of course not. Congress is absolutely empowered to make laws governing the Armed Forces AND to define and punish offenses against the Law of Nations! Either of those would alone be sufficient authority for that statute!
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February 8, 2010, 7:16 pmOren_ says:
Moreover, it’s hard to see how obeying Congressional Law could be government without consent of the governed. Congress is a vehicle of popular consent!
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February 8, 2010, 7:18 pmAnonsters says:
Then how do you explain Congress’ power “[t]o define and punish ... Offenses against the Law of Nations?” If there is no “Law of Nations,” and the only law is U.S. law, how could Congress possibly have power to define and punish violations of (“Offenses against”) the law of nations (read: international law)?
And what principled basis do you have for saying that there is no law to constrain governments beyond the domestic law of the country over which the government governs?
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February 8, 2010, 7:24 pmMartinned says:
The Statute of Rome has nothing to say about the US government. It only speaks to individuals.
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February 8, 2010, 7:26 pmDennis N says:
Ammendable.
I suppose the Conventions could be updated. Some of their provisions are clearly outdated and silly, and are disregarded by everyone. (The 12 Swiss Francs discussed above.) Some of the provisions are extremely detailed. But none of that addresses the real issue that the US is the only country that comes close to following the GC, so it really has little practical value.
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February 8, 2010, 7:27 pmMartinned says:
So much for the rule of law and the rights of man, then.
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February 8, 2010, 7:29 pmMartinned says:
And what about a treaty duly ratified?
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February 8, 2010, 7:29 pmMartinned says:
Say what????
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February 8, 2010, 7:30 pmDennis N says:
Yes. Hitler committed an act of war (well Germany did) and was warred on in return. The case was adjudicated in the Court of no Appeals.
Nuremburg was nothing more than Victor’s Justice. It was just, but we did it because we could, not from any basis in law.
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February 8, 2010, 7:31 pmAnonsters says:
The standard response is: the Senate has to vote for the treaty before it’s ratified.
Of course, that standard response really isn’t sufficient, unless we understand the Senate alone to be sufficient for “consent of the governed.” But the Constitution only prescribes Senate approval of treaties, and the Constitution was ratified by the People (in the theory that Oren_ is voicing, anyway), so it’s ok.
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February 8, 2010, 7:32 pmAnonsters says:
The people who, you know, actually participated in the Nuremberg trials would disagree. Read The Anatomy of the Nuremberg Trials by Telford Taylor, then let’s talk.
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February 8, 2010, 7:35 pmDennis N says:
That’s a Constitutional Question. Either Congress ha=s the right to make laws as they wish in that area, or the clause is null. The fact that they have the right to “define” international law does not mean that anyone else is obliged to recognize that definition.
From a practical POV, it gave Congress the authority to punish Piracy and later, Slave Trading. I can’t think of any other practical examples.
What law is there, and who is to enforce it? Short of willingly accepting international jurisdiction, or being conquered in war, there is no authority over the actions of Sovereign nations.
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February 8, 2010, 7:41 pmMartinned says:
The ICC does not seek authority over the actions of sovereign nations. It has jurisdiction only over the actions of individuals, who can come within the court’s power simply by going on vacation to the wrong country.
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February 8, 2010, 7:44 pmDennis N says:
Who else is following the Geneva Convention today?
To shortcut what I believe may be a needless argument, I’ll invent some dialogue.
Q: What about the UK (Substitute the country of your choice.)
DN: How many POWS do they have?
I’m not casting aspersions against any moral countries. But I can’t think of anyone else in our position right now. It’s easy to take the moral high ground in theory.
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February 8, 2010, 7:47 pmAnonsters says:
Re-read the clause in the Constitution. It gives Congress power “[t]o define and punish ... Offenses against the Law of Nations,” not “to define the Law of Nations.” Congress’ power, deriving from that clause, is predicated on the existence of “the Law of Nations.”
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February 8, 2010, 7:49 pmAnonsters says:
I think Dennis N. is denying the very existence of international law as “law.” (We sort of deviated from talking only about the ICC.)
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February 8, 2010, 7:53 pmOren_ says:
I’m not sticking my head in the sand and saying international law doesn’t exist. My position is that it exists but cannot bind the American People against their will. If Congress consent to a certain restriction then it is not against their will.
I feel like we are playing word games here. What is unclear about my position? The People of these United States, in Congress Assembled and through their elected President, are sovereign.
Because such laws would government in the absence of consent of the governed. Of course, other political philosophies are possible, but this one happens to be mine.
Perhaps you can enlighten me as to what principled basis allows Bulgaria to make a law binding the People of Brazil (again, assuming here that Brazil has not consented to such a law)?
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February 8, 2010, 8:18 pmOren_ says:
Well, it’s not “law” in the sense that there is no authority capable of coercing compliance.
That is, normally “law” is meant to mean a standard of behavior to which violation will be enforced, by violence if necessary. The laws against murder don’t have much meaning absent the existence of burly men with guns waiting to do violence (if necessary, obviously voluntary compliance is preferred) against those that violate it. What significance would it have without them? A sternly worded admonition to please no murder people?
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February 8, 2010, 8:22 pmOren_ says:
Power, yes. Authority no.
And I seriously and genuinely pray for the whole world that we never get to test the ASPA.
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February 8, 2010, 8:26 pmOren_ says:
Are you even convinced by this tactic?
The rule of law is an invention of man — better to have that law written by The People than by some monarch claiming the Divine Right of Kings or some other patent nonsense.
The rights of man, on the other hand, I am quite sympathetic to. But they are not self-enforcing — after all, we fought quite a war to vindicate our rights. Had we lost the war we would have lost those rights with them. It’s truly unfortunate but those are the facts as far as I can see ‘em.
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February 8, 2010, 8:35 pmLindsey Abelard says:
Sure it is. The Geneva conventions were very specific in its descriptions of war crimes in response to actions that the Nazis and Soviets did before and during WWII. It is quite sufficient to dealing with any possible crimes against humanity. The ICC is unnecessary and superfluous.
Besides, the ICC does not have the same standards of habeas corpus, due process, trial by jury, and other protections that accused individuals have in the U.S. court system. By definition, this makes the ICC a kangaroo court.
Look, I understand your desire to stop U.S. military interventionism abroad. I agree with you on this. However, the ICC is not the proper approach to doing this.
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February 8, 2010, 8:53 pmLindsey Abelard says:
I read some of the text of the ICC court. If ratified by the U.S Senate, it would most certainly bring about an end to U.S. military interventionism. This may not be a bad thing. However, I could not help but notice that much of Islamic law and Islamic practices violate much of what the ICC defines as crimes against humanity. Much of Sharia law is a violation of what the ICC defines as crimes. Have any of the Muslim middle-east countries ratified this treaty?
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February 8, 2010, 9:02 pmLee C Walker says:
You are the one who called them the ‘Turd World’, made fun of their cultural attire, etc. What exactly was the context of that comment, if it wasn’t racist?
And you call me the race baiter? Wow. Just wow.
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February 8, 2010, 9:13 pmLee C Walker says:
And for all the reasons the exceptionalists here have put forward regarding why the USA did not ratify the Rome Statute, nobody has mentioned the one true reason:
The USA was the leader of the P-5 group in PrepCom and the other preparatory stages, whose primary and overriding goal was to ensure that the Security Council — and the Security Council only — would have the sole power to refer matters to the ICC. The implications of this are clear: all P-5 states have vetoes, so if any case perceived to be possibly detrimental to their interests came up, the USA (or Russia, China, et cetera) could simply veto it.
When the USA did not get its way, it decided once and for all that it would not ratify, yet remained in the PrepCom process to attempt further influence. And this paid off in several ways:
1. Art 98(2) — I am surprised nobody has mentioned this — allows the USA to make bilateral agreements with other countries, which prohibit them from surrendering US nationals to the court:
2. Art 16 allows the Security Council to defer an investigation in the ICC for up to twelve months. If a nation or the ICC prosecutor has decided to launch an investigation, the SC can invoke 16 and prohibit any action. This deferral is also renewable ad infinitum, effectively allowing the Security Council — so long as nine members including the P-5 agree — to perpetually bar the ICC from conducting an investigation.
These are huge concessions made to states like Russia, China, and the USA. Because all three have considerable clout, allowing them the leverage to make many Art 98(2) bilateral agreements, and because if they work together they can all but assure the nine member majority required to keep detrimental investigations of their countries’ affairs out of the ICC.
Similar huge concessions will be granted when the act and crime of aggression under the Rome Statute is instituted by amendment and the jurisdiction becomes activated. Under either the Green Light or the Red Light option, the Security Council will have considerable power to prevent an investigation for the crime of aggression. With the Green Light model, a simple USA (or any other P-5 member) veto will definitively halt any ICC investigation for aggression. Under the Red Light model, it would require the nine member including P-5 majority. This concession was gained mostly through the participation of China and Russia in the Special Working Group, open to all interested states not just ICC members (the USA however chose not to participate).
These are massive concessions to powerful nations, concessions that would be seen as improper in most modern, western municipal courts (due to concerns about judicial independence); however, we still have the Americans talking about how unfair the court is, and how it is attacking US sovereignty. Unfortunately, neither China nor Russia are willing to participate as ICC members, which is a further shame.
Do you think a person is sometimes known by the company he keeps? Well, there were seven countries who voted against the Rome Statute: Iraq, Syria, Sudan, Libya, China, Israel, and the USA. That’s a story in itself.
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February 8, 2010, 9:38 pmLee C Walker says:
Of course, I do not consider the US and the Third Reich equal. Definitely not. However, I am just as firm in my belief that the USA should not be allowed to take whatever military action it sees fit. That is a dangerous proposition. When the Third Reich committed unspeakable acts of aggression, its leaders were taken to task. If the USA — or any other country — ever carries out such aggression, its leaders should also be taken to task, and the ICC is infinitely fairer than the Victor’s Justice that the Treaty of Versailles would have meted out in the proposed (yet ultimately non-existent) tribunal that was to judge Wilhelm II of Hohzenzollern, and the International Military Tribunal at actually meted out its justice at Nuremberg.
As a side note, I sincerely apologise for the rude ad hominem statements I have made in the context of this conversation, but I stand by the points I have made. I just get frustrated when people misrepresent and cast aspersions. Purporting that the ICC will be politicised and out to get the USA is a misrepresentation. Purporting that its need to pay due regard to proper procedural justice, et cetera, is also a misrepresentation.
All courts are politicised to some degree. However, there is no evidence to show that the ICC is out to get the USA, and no evidence that it would be biased against the USA. In fact, the track record of modern international tribunals — the ICTY, ICTR, Special Court for Sierra Leone — have shown impeccable judicial fairness and a high quality of decision-making. One only needs to read through the Lubanga case to see the truly high-minded due regard applied even to a barbaric warlord accused of severe war crimes involving the use of children under 15 years of age. If the ICC is that fair to a person like Lubanga, there seems to be no basis on which to automatically assume it won’t be at least as fair to any American who came under its purview
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February 8, 2010, 10:04 pmLee C Walker says:
I am quite in favour of US interests. In fact, highly so. I consider it rightfully the leader of the world, due to its actions in the past two hundred years.
I wish that hard earned reputation as a true freedom-loving country–not freedom to do whatever you want, but a a respect for the protection of freedoms and a cooperative spirit in the suppression of those who would oppress a people–to be maintained. It will be all the more easily maintained if the US plays ball with the global community, and binds itself as an equal participant in the emerging legal order. Economically, militarily, and socially superior it may be, but equally accountable it must also remain.
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February 8, 2010, 10:10 pmLee C Walker says:
Oren, you are quite right on this point.
See also: Pitt Cobbett, Leading Cases in International Law, 5th ed (1931) Vol 1 at 260–274
For the case authorities see The Schooner Exchange v M’Faddon [1812] USSC 15; (1812) 11 US 1116 at 139, 140; Coleman v Tennessee [1878] USSC 40; (1878) 97 US 509 (24 Law Ed 1118) (at 462).
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February 8, 2010, 10:21 pmDennis N says:
Who else is following the Geneva Convention today?To shortcut what I believe may be a needless argument, I’ll invent some dialogue.Q: What about the UK (Substitute the country of your choice.)DN: How many POWS do they have?
I’m going to back out of this part of the argument and take my raps as an idiot, for having gone off half cocked. I can name a bunch of instances where the CG would have applied since WW-II. Anyway, my main point, here, was that the GC only moderates the behavior of nations that are inclined to be moderated, and that’s kinds tangential to this whole affray.
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February 9, 2010, 12:05 amDennis N says:
Piss off, race baiter, boy.
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February 9, 2010, 12:06 amDennis N says:
Exactly what “law of nations” existed in the early 19C? At best it was a series of loose understandings based on how Civilized Nations were expected to behave. The power of that clause, was to allow the US to prosecute pirates and later, slave traders. The various civilized nations punished enemies of all mankind, as they defined them then, according to their own laws.
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February 9, 2010, 12:10 amDennis N says:
I have no difficulty with that. If we consent to it, then we are to be bound to it, if we behave honourably. Perhaps the best example is a trade agreement. We all agree to allow a mutually selected body to arbitrate our trade disputes. Even at that, how can that body enforce its will against our resistance? In the end, it’s still Might Makes Right. What kind of law is that?
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February 9, 2010, 12:15 amLee C Walker says:
Quite a lot, actually. See Wilhelm Grewe, Epochs of International Law, Rev Edn (2000) if you are interested.
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February 9, 2010, 7:22 amLee C Walker says:
or you could read Zouche, Grotius, Vattel, Textor, Vitoria, Pufendorf, Bynkershoek, Suarez, Balthazar, Gentili, Wolff, Legnano.... the list goes on.
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February 9, 2010, 7:30 amOren__ says:
Indeed. The proper venue is the Congress of the United States — the body with manifest and undisputed authority to regulate American military activities.
Then they should exempt the US and be done with it already. Whatever institutional damage that does, it pales in comparison with not having the US on board at all.
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February 9, 2010, 11:19 amMartinned says:
I highly doubt that that is true. The US are widely perceived as undermining every bit of international law they’re allowed near, going back to the United Nations and the ICCPR. (Why are there two treaties?) If the ICC has any hope of succeeding, the US must be forced to take it or leave it, just like everybody else. Imho, even the accomodations that have already been made to the US go too far. Why are they even allowed at the table?
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February 9, 2010, 12:30 pmSF Alpha Geek says:
Agreed, and I apologize if some of my rhetoric was over the top — put it down to coming from a less scholarly (and less lawyerly) background than most of the commenters here, and to a huge dose of unabashed American exceptionalism.
At the end of the day, the core of the arguments here seem to come down to a fundamental philosophical difference about the relationship of the US to the rest of the world. Those who support the ICC as is, I think, tend to believe in the efficacy of international covenants in preserving peace and human rights, and either believe a) that the risk to US sovereignity is worth the good that universal acceptance of the ICC will bring, or (I suspect more commonly) b) that limits on US exceptionalism when it comes to the exercise of hard power are an additional benefit of the treaty.
I, obviously, don’t accept that POV, and it comes down to something you wrote earlier about the difference between domestic and international law — law is effective because of “the existence of burly men with guns waiting to do violence . . . against those that violate it.” Absent those “burly men”, law represents little more than a set of moral platitudes about how we should act. And, I would further argue, for most of history, international law was a combination of those moral platitudes, plus a code of conduct not dissimilar to those in the Kentucky hill country a hundred years ago — a mutual understanding of what people were willing to fight over.
For better or for worse, in the international arena, the US has taken on the role of those burly men with guns –and I also believe that for all the villification heaped upon us by what I think of as the internationalist crowd, most of the progress in setting up international and transnational institutions that protect both the peace and human rights has been possible because of our role as “the world’s policeman.”
Europe no longer engages — in fact, can no longer imagine engaging in — and endless cycle of intercine wars, because of US military intervention. The UN was made possible by US military intervention. The genocide in Rwanda happened, not because of the lack of international covenants and organizations for the preservation of peace, but because no-one could convince the US it was worth the cost in blood and treasure to intervene there after what happened in Somalia.
Has the US been perfect in its international behavior? Certainly not, but neither should we allow others to pretend that, on balance, the US role has not been highly beneficial for the entire world. I believe that places us in an entirely different category in relation to international bodies than other countries or individuals that the Rome Statute contemplates. Several commenters spoke about accountability, and I understand their desire to have all countries and persons equally accountable to an international body — I understand it, but I don’t agree. As I noted in what was my first deliberately provocative comment, the US, by doing the distasteful work of exercising hard power, has allowed other countries and organizations the luxury to pretend that they are somehow morally superior to us because they don’t do so — much like the pacifist who finds violence morally reprehensible, but still expects the police to protect him.
And that’s why I ultimately oppose giving the ICC jurisdiction over US actions — not from some Thracymacusian impulse because we’re the big dogs, but because when it comes to doing the right thing, I have considerably more faith in the US people than in the international community.
And, BTW, I stand by my tother admittedly deliberately provocative, comment regarding military force against the ICC — like you, I hope it doesn’t come to that (and I don’t think it ever would — it would take a chain of monumental diplomatic screw-ups on the part of a whole bunch of countries and international organizations to get to that point) for a lot of reasons, not least of which is that I hope that someday we will be in a position where US hard power won’t be necessary to preserve peace and enforce human rights — and prosecuting US officials in the ICC for actions taken in their official capacity would set that process back by decades, precisely because it would be, not simply a diplomatic issue, but an act of war by an international body against the United States. The fallout from that could never be anything but very, very bad for everybody — but especially for the people who hope that someday international agreements will be an effective source of enforceable law.
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February 9, 2010, 12:37 pmLee C Walker says:
Nobody is saying the US hasn’t been highly beneficial. The only people who say that are actual terrorists.
What the actual humans are saying, is this: just because you’ve done a lot of good for the world, that does not give you a free pass from any investigation or punishment if you ever do cross the line and perform harm.
An analogy? Think of a police man. A hero cop. He has saved thousands of lives. Single-handedly taken down the mafia. The most celebrated cop in the history of the city. But what if it were found that, on the side, this hero cop sold 40 tonnes of cocaine per year? Does the hero cop get a free pass because he has performed highly beneficial acts for the City? No. The hero cop is subject to the laws of the city, just like any other citizen. His good behaviour in benefiting the city by saving lives and taking out the mafia does not excuse his drug selling or allow him to sit in judgment of himself as his own tribunal.
Now think of the USA as the hero cop, and the world as that city. Just because the USA has performed uncountable beneficial acts, does not mean the world is going to give it free passes. The world has developed an international law, and the USA should abide by it. Otherwise it’s just a criminal with a badge.
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February 9, 2010, 12:48 pmMartinned says:
No, because we decided to choose law over violence. Post-Cold War, US “military intervention” (?) has very little to do with it.
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February 9, 2010, 1:13 pmjames says:
The law only posits that any discussion thread will eventually invoke Hitler/Nazi references; not any comment on the winning/losing of the argument.
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February 9, 2010, 1:30 pmMartinned says:
Actually, the reference was to the most important Corrolary of Godwin’s Law, which does state that whoever invokes Hitler loses. In this case, though, the topic of genocide came up naturally enough, and from both genocide and the ICC it is a logical enough step to Nuremberg and the Nazis. So I agree with the earlier commenters who argued that Godwin’s Law does not apply here.
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February 9, 2010, 1:36 pmsardonic_sob says:
That’s where I was going with the “fig leaf” part of my post, which I may not have been clear enough about.
My position on the matter of our Middle Eastern adventure is not really in either of the main two camps and doesn’t fit neatly in a box. However, on this aspect it’s pretty simple. We are at war with Afghanistan and Iraq under the traditional laws of war. (Yes, we are.) We have allied ourselves with a particular faction in both countries which might, given time, become a legitimate and sovereign national government and whose combatants operate as regular soldiers under the traditional laws of war. Anyone who takes up arms against US or allied soldiers in either of those countries is either an enemy combatant from an unallied faction, or is a criminal. Both countries are in a state of martial law. Under martial law attacks against soldiers by criminals may be punished by summary execution. If we catch them, we don’t do that, but we would be perfectly within our rights to do so. If they are enemy combatants as the traditional laws of war define the term, then if captured they should be treated as POW. Our not doing this is, IMO, a lesser immorality than criminal attacks upon soldiers, but it is an immorality none the less, repugnant to the traditional laws of war, and frankly the two issues should not be linked. I detest the entire idea of “extraordinary rendition” and disappearing people, even if they are clumsily disappeared as in the case of Guantanamo Bay and other extraterritorial detention centers.
So as you can see, I think there’s enough mud to go around for everybody.
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February 9, 2010, 1:44 pmsardonic_sob says:
There are a lot of people who live in places far from your own enlightened realm, but still completely European, who would disagree with you firmly. There’d be even more than there are now, but they’re buried in trenches all over the Balkans.
Given your history, I suggest that you give it another few centuries before you start talking about how Europe has decided it ain’t gonna study war no more even when nobody else is looking.
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February 9, 2010, 1:47 pmOren__ says:
Was this true back in the late 90’s when Clinton was negotiating? I thought Europe loved him.
You are quite right that to give the US an exemption now (i.e. after W) would be looked upon poorly. That’s why I commented earlier that the ship has probably sailed on that. Like I said, if I were judging, I would prefer to suck it up and let the US in under those terms (and take whatever hit to my legitimacy that entails) than have the US outside pissing on it.
Just remember, (for better or worse) you aren’t going to get a more conciliatory US President than Obama — he’s already far too European for most of the populace as it stands.
But the cop has colleagues that can take over, meanwhile there is only one US.
If there was only one policeman, it would most certainly behoove us to ignore his transgressions rather than to have no policeman at all.
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February 9, 2010, 2:10 pmsardonic_sob says:
In the end, it’s the only kind there is. It’s been that way since long before men walked, it will be that way until the last star goes out. All we can do is the best we can do.
The Treaty of Versailles nailed down those evil, warlike Germans in the tightest bounds of law and regulation that could possibly be imagined. It lasted just exactly as long as the victors had the power to enforce it. (And in fact its strictness was one of the reasons that the Germans labored so mightily to get out of it.) Absent mind control, you cannot bind anyone to laws which they do not wish to obey. The more you tighten your grasp, the more that slips through your fingers. Or, as a wise if fictional person once said:
Laws not make people nice.
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February 9, 2010, 2:11 pmSF Alpha Geek says:
“Post Cold War” was only possible in the first place because of the actions the US took from 1942 through 1994 or so that eliminated totalitarianism from Western Europe and enforced a certain level of representative democracy across all governments there post-war. And of course, US led alliances both bound the European polity to a common purpose, and eliminated the need for each country in Europe to provide for its own defense, thus eliminating the risk of renewed militarism on the continent and allowing the Europeans to evolve new norms that didn’t depend on force or the threat of force for enforcement. And the US did that throughout the critical genesis from a coal and steel trade agreement through a common market to a trans-national (somewhat) government. There’s a very good argument to be made that Western Europe was able to transform itself into what it is now only because it was wrapped safely in the cocoon of US militarism.
I’m glad it’s working out for you over there, but you could at least tip your hat to the Marshal who made it possible as he rides out of town and off into the sunset. . .
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February 9, 2010, 2:24 pmMartinned says:
Well, to a point. He was a democrat, and that’s always good. Still, he was working with a Republican Congress, far, far away from the 67 votes he needed in order to ratify anything, even if he’d want to. Look how great Kyoto went... Clinton alone was not enough to make up for that.
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February 9, 2010, 2:47 pmSF Alpha Geek says:
That’s a false distinction: We both agree that there should be accountability under the law — where we disagree is to whom members of the US government should be accountable. And I don’t think either of us are going to change our minds.
I think that the proper accountability of the US government is to the American people, via our constitution, laws and political system.
My understanding is that you think that US officials should be, at least in some circumstances, accountable to “the world” through the mechanism of the ICC. I think that’s the wrong answer, both pragmatically (not just because the US will never agree, which hurts the ICC more than it hurts the US, but also because it gives the real threats to human rights and peace another avenue to delay or divert necessary “hard power” interventions) but also morally (because the past examples of other transnational bodies, such as the UNHRC, make me believe that the “world” is not yet sufficiently morally mature to be a better forum for judgment than the US legal system.)
“Horses for courses” as one of my old teachers used to say — is the ICC better than what we’ve got now for dealing with, say, Omar al-Bashr? Absolutely! Is it better than a US Article III court for dealing with the actions of US officials, even actions taken on the world stage? Absolutely not.
I suspect you’ll disagree — and that’s fine. It’s a complicated problem of law, philosophy, morality and trust, and reasonable people can disagree. I come down firmly on the side of American exceptionalism — I trust the American people to do the right thing much more than I trust the “the world,” where the UK is nicely balanced out by Russia, Denmark by Venezuela, and Belgium by Tajikistan. For me, American exceptionalism is not a case of “my country, right or wrong,” it’s a case of “my country, not always right, but more likely to be right than anyone else.”
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February 9, 2010, 2:56 pmMartinned says:
Who said anything about “studying war”? Not only are there two nuclear powers among the EU Member states, but there is also hardly a country in Europe that doesn’t make significant amounts of money selling weapons to whoever will buy them. On top of that, EU countries are quite willing and able to contribute when their interests are at stake (like the Dutch navy off the coast of Somalia, and hunting for drug smugglers around the Dutch Antilles).
It’s not that we’re not capable, it’s just that we’re not willing to spend vast amounts of money on military readiness when there’s no viable threat against “the homeland”, and no reason to prefer military over diplomatic efforts in most of the rest of the world. The US should be grateful for the help we sent to Afghanistan and Iraq, because even that was more a favour to the US than a decision taken based on direct interests alone.
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February 9, 2010, 2:57 pmOren__ says:
I think the GOP Congress could have swallowed Rome if it contained an explicit provision exempting the US from the “show trial” and “not genuine” provisions. Maybe I’m wrong (and we will never know, of course).
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February 9, 2010, 3:03 pmOren__ says:
I think the GOP Congress could have swallowed Rome if it contained an explicit provision exempting the US from the “show trial” and “not genuine” provisions. Maybe I’m wrong (and we will never know, of course).
Sorry to be a broken record (I promise I won’t bring it up again) but why can’t Bush or Obama deal with Bashir just like Clinton took care of Milosevic? I think the Sudanese Army and the Janjaweed would run the **** out of Darfur once the AC130s started in on them.
Plus, this has the extra benefit of inflicting a bunch of uneducated violent savages on the population of the country that spawned them!
(1) The existence of a viable threat and the preparedness of the military are not independent variables. Strength dissuades would-be-threats to reconsider investing in military technology, weakness invites it.
(2) I agree entirely that we ought to prefer diplomacy over military efforts, but is has to remain as a credible last resort. The world was right to condemn Bush for using force too readily against Saddam but I think Europe has been too reluctant to use force against Bashir. Too little can often be just as bad as too much.
I guess ultimately I am a results-oriented kind of guy. If the diplomats can show real progress on the ground in Darfur that’s fantastic. If not, it becomes time to rattle the saber.
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February 9, 2010, 3:11 pmMartinned says:
Actually, that is a tricky issue. Under a straightforward interpretation of the ius ad bellum, Kosovo was illegal. And for good reason, too: if we grant that NATO was permitted to bomb the Serbs even though they didn’t have a Security Council mandate, how is that different from the Russians bombing Georgia in aid of South Ossetia? Or country X bombing its neighbour Y in aid of the (possibly invented) minority Z? We need some rule, be it moral or legal, to distinguish between legitimate intervention and brazen abuse of power. If the US, or any other country, can get a Security Council mandate to go after Bashir, they’re welcome to it. Such a thing wouldn’t be a crime of agression under the Statute of Rome, no matter how they end up defining agression, and all would rejoice. The problem is one of politics, not law: China doesn’t want to upset Sudan, because Sudan have too much oil.
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February 9, 2010, 3:27 pmOren__ says:
dupe
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February 9, 2010, 7:39 pmOren__ says:
I’m really not one for fiat justitia ruat caelum — by a straightforward application of a higher law it was absolutely the right thing to do.
I object to the use language that starts from the position that a sovereign needs to ask “permission” before resorting to ultima ratio.
In a legal sense, it’s not. I take this as manifest evidence that a legal framework particularly ill-suited to judging these affairs.
Hey, so long as the sky doesn’t fall on the Netherlands, right?
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February 9, 2010, 7:41 pmOren__ says:
Why good does such a distinction do me, especially consider that countries that commit brazen abuses of power are rarely ones to be restrained by international niceties — Russia was going to flex its muscle against Georgia irrespective of anything that goes on in Brussels or New York.
It is the law that suggests we should take Chinese input into consideration at all — it empowers them to make a political issue of it when it’s a straightforward moral one.
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February 9, 2010, 7:49 pmTony says:
America seems to want to refrain from joining many treaties. Though this government doesn’t seem to have a problem pushing it’s own agendas on the international stage. Not to mention subjugate the rights of other take John Yoo for example: http://lawblog.legalmatch.com/2010/02/03/free-speech-academic-freedom-and-people-who-make-studying-difficult/
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February 10, 2010, 12:43 amJohn Turner says:
I am against America joining the I.C.C. just because of the rudeness of its supporters on this blog.
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May 11, 2010, 12:02 am