[Zimphire]

The US has given up trying to win its soldiers immunity from prosecution at the new International Criminal Court.

http://news.bbc.co.uk/2/hi/americas/3834089.stm

They shouldn't have even tried.

These people need punished.

[BRussell]

I saw this on TV today, and I still don't get it after reading your link. I thought we didn't sign on to the ICC, and therefore we're already "immune" from it. Those Abu Ghraib schmucks wouldn't be tried at the ICC anyway - we're doing it ourselves.

[dreilly1]

Originally posted by BRussell:
I saw this on TV today, and I still don't get it after reading your link. I thought we didn't sign on to the ICC, and therefore we're already "immune" from it. Those Abu Ghraib schmucks wouldn't be tried at the ICC anyway - we're doing it ourselves.

Check out this thread from a few days ago.

In a nutshell, The US has not signed on to the ICC.
Since the ICC is a UN organization, UN peacekeepers would ordinarily be subject to ICC jurisdiction.
The US lobbied, and got, immunity from ICC prosecution for UN peacekeepers whose countries did not sign the ICC treaty. But it needs to be renewed every year, and Kofi Annan encouraged the security council to let the immunity lapse this year.

It only applies to UN peacekeeping forces, the schmucks at Abu Ghraib would not have been covered.

[BRussell]

I think I understand. So the US was going to technically be part of the UN peacekeeping force after June 30, and so that would indirectly make them subject to the ICC.

[dreilly1]

Originally posted by BRussell:
I think I understand. So the US was going to technically be part of the UN peacekeeping force after June 30, and so that would indirectly make them subject to the ICC.

To my knowledge, it would make any US troops in the UN peacekeeping forces directly subject to the ICC.

I think you can sum up the US reaction in this quote from Zimph's article:

... the US would in future "need to take into account the risk of ICC review when determining contributions to UN authorised or established operations".

Translation: don't expect the Bush Administration to contribute any troops to current or future UN peacekeeping operations until this waiver gets reinstated.

[Atomic Rooster]

Originally posted by Zimphire:
The US has given up trying to win its soldiers immunity from prosecution at the new International Criminal Court.

http://news.bbc.co.uk/2/hi/americas/3834089.stm

They shouldn't have even tried.

These people need punished.

Could you imagine the if the U.S. got away with this. Every despotic leader would say, "Hey cool what's good for the goose is good for the gander. The U.S. has made war crimes legal. Lets step up the torture program boys and girls".

[effgee]

Originally posted by Atomic Rooster:
Could you imagine the if the U.S. got away with this. Every despotic leader would say, "Hey cool what's good for the goose is good for the gander. The U.S. has made war crimes legal. Lets step up the torture program boys and girls".

They do/will get away with it The US has signed bilateral treaties with more than 90 countries (more in the works) already in which the respective country agrees not to extradite members of the US military for ICC tribunals ... bunch 'o sneaky slicksters that they are ...

[SimeyTheLimey]

Originally posted by BRussell:
I think I understand. So the US was going to technically be part of the UN peacekeeping force after June 30, and so that would indirectly make them subject to the ICC.

I don't think anything short of a non-derogable norm (which this isn't) can make a nation "indirectly" subject to a treaty. It's a basic principle of international law that no nation can be forced into a treaty it opposes. Coersion is even one of the limited grounds for getting out of a treaty you have signed. But here we haven't ratified it, and so UN or no UN, the US is not a party to the Rome Statute. QED.

The problem could only happen if a third party country who is a member of the treaty were to capture a US serviceman and hand him over to the ICC without US permission. Or, potentially, if a UN peacekeeping mission were to take place on the territory of an ICC member.

However, that's an unlikely scenario. Congress has authorized the president to send in troops to liberate any serviceman detained by the ICC. I doubt that anyone would so idiotically provoke the US when the US is perfectly willing to prosecute any of its own war criminals.

So it is really just a potential diplomatic problem, not so much a real one. It will be interesting to see how this is handled. The only explicit UN peacekeeping mission that I am aware of that US troops are involved with at the moment is the one in the Sinai. I'm not sure if the US would want to pull out of there now, although personally, I think ending that mission, and the billions of aid to Egypt are long overdue. But I'd say that the US' contribution of over 25% to the UN peacekeeping budget is in danger. That threat wouldn't come from the Administration, but watch Congress. As a rule, the US Congress is much more anti-UN than any Administration.

And yes, Kofe is full of it. The ICC has no relevance to the Abu-Ghraib incident except perhaps that it shows the ICC isn't necessary.

[Logic]

Originally posted by SimeyTheLimey:
And yes, Kofe is full of it. The ICC has no relevance to the Abu-Ghraib incident except perhaps that it shows the ICC isn't necessary.

The Abu Ghraib incident shows that the ICC isn't necessary when a nation prosecutes their own criminals. Something the US has done most of the time. That is the relevance IMO to AG. If the U.S. wouldn't have acted IMO the victims should be able to take action against the criminals in a court like the ICC.

[SimeyTheLimey]

Originally posted by Logic:
The Abu Ghraib incident shows that the ICC isn't necessary when a nation prosecutes their own criminals. Something the US has done most of the time. That is the relevance IMO to AG. If the U.S. wouldn't have acted IMO the victims should be able to take action against the criminals in a court like the ICC.

Exactly. It's not necessary for the US to be a party because we do prosecute our war criminals. Your hypothetical "but what if?" doesn't apply.

And Kofe is still full of it. Iraq was never a party to the ICC, nor is Iraq a UN misson. He's just posturing.

[Logic]

Originally posted by SimeyTheLimey:
Exactly. It's not necessary for the US to be a party because we do prosecute our war criminals. Your hypothetical "but what if?" doesn't apply.

And Kofe is still full of it. Iraq was never a party to the ICC, nor is Iraq a UN misson. He's just posturing.

He's probably just taking that as an example.

And exactly because I trust that the US prosecutes it's own war criminals I believe that you should join this. There would be no risk of the ICC prosecuting U.S. soldiers while at the same time getting one of the most influential players on the international scene to join. Having one of the biggest players on the block joining this would set pressure on a lot of countries that we need to get into this to join and thereby creating a safer world. Unfortunately sometimes it seems like the US isn't after a safer world, only a safer U.S. of A.

[Troll]

Originally posted by SimeyTheLimey:
Coersion is even one of the limited grounds for getting out of a treaty you have signed.

Let's hope. Coersion would render most of those bilateral agreements invalid. Through the American Servicemembers Protection Act, the USA has threatened to (and in many case has) withdrawn aid to some of the poorest nations on earth. There is of course debate as to whether the agreements are valid in any event. I've heard judges, including Justice Goldstone affirming a basic principle of international law that International law cannot be subordinated to the will of one country or even two that agree. South African academics suggested that the country might as well sign the agreement since it isn't worth the paper it's written on and wouldn't stand up in a South African court.

Originally posted by SimeyTheLimey:
And yes, Kofe is full of it. The ICC has no relevance to the Abu-Ghraib incident except perhaps that it shows the ICC isn't necessary.

I think you're misinterpreting what he's saying. One of the reasons why the members of the UN agreed to the immunity was because they considered it unlikely that the US would commit them. As things stand, the US has undoubtedly committed war crimes in Iraq (many consider the invasion itself a war crime let alone the torture) and in Afghanistan and has probably committed war crimes in Guantanamo Bay. The US stands accused of war crimes in more instances than perhaps only Israel. This obviously had an impact on the decision.

As for your suggestion that Iraq proves that the ICC is unnecessary, that may be the case in Iraq although we have yet to see whether this stunted investigation is ever freed and the real criminals brought to justice. For the moment the Army has arranged matters so that no one above Sanchez can be investigated, apart from a number of other little manouevres around justice being done (like making 2000 pages of his report disappear)! We expect civilised countries like the US to behave the way they have in Iraq. The ICC is just meant to accelerate that trend in the world; encourage the behaviour we saw from the US (noting that the process is not complete of course). But that is just one example. Guantanamo illustrates the flip side. There the Bush Administration has done its damndest (and apparently succeded) to exclude its own courts jurisdiction to try alleged war crimes. And it appears that war crimes are being committed. Notably, the kingpin in the Abu Ghraib scandal was in charge of Guantanamo. The legal blackhole that has been created there needs to be filled.

Your suggestion that the US might use military force to prevent a soldier being tried by the ICC is ridiculous. I can't see US forces attacking Brits holding an American accused of war crimes in the country in which they're doing peacekeeping and I certainly can't see it happening once the accused is sitting in the Hague. The US wouldn't provoke a war over something like this.

In any event, this is just a smokescreen. The US has obviously decided to go the bilateral treaty route rather than through the UN.

What's ironic about the US's protestations over the ICC is to see how the US itself expects other states to behave in similar circumstances. It expects everyone else to send their nationals to be tried in the US; even nationals that haven't committed crimes in the US, but it threatens to invade if other countries do a similar thing. Have you read the Spectator's cover piece this week? I wanted to start a topic about the UK's new extradition law which makes the UK basically a 51st state but couldn't be bothered going through the registration on their website. Maybe someone else would like to bother. 1 Law for America indeed though. We expect you to send us anyone that we finger as a criminal but you can blow us if you think we'll send you IRA terrorists or stop helping them murder you!

[Troll]

From Scoop:

"Since the U.S. began approaching states for signature of these agreements in July 2002, as many as 49 mostly small, poor countries have reportedly signed these agreements, but only a handful have ratified them. ...

Despite the intense pressure for signature of bilateral immunity agreements, a number of important U.S. allies and regional bodies have rejected them. Argentina, Canada, New Zealand, Sweden, Norway, South Africa, Trinidad and Tobago, Slovenia and Croatia, plus all 15 members of the European Union, are among countries that have refused the U.S. request. The EU Presidency ... welcomed a declaration by the 10 EU accession countries, and other associated states and EFTA countries, in which they affirmed the EU Common Position ...

A number of countries have reportedly received large sums of U.S. financial assistance upon signature of the bilateral immunity agreements. In the case of Sierra Leone, upon signature of a bilateral immunity agreement it was announced that the U.S. would invest $25 million in the Sierra Rutile mines.

In other instances, pressure for signature of a bilateral immunity agreement has included threats such as restricted accession to NATO, as has been reported in some of the Balkan states, and the withdrawal of 'dual use' funding such as in the case of the Bahamas, where American Ambassador J. Richard Blankenship warned that an "unfavorable" response could result in the loss of funding for the paving and lighting of an airport runway."

I'd also note that the Bush Administration has in fact exceeded the scope of the ASPA. The majority of states that have signed agreements are not even states parties to the Rome Statute! So most of these agreements are ultra vires under US law too!

[Powerbook]

Originally posted by SimeyTheLimey:

However, that's an unlikely scenario. Congress has authorized the president to send in troops to liberate any serviceman detained by the ICC.

Now _this_ is the unlikely scenario, don't you think? You don't honestly believe the U.S. will start an invasion in Yorrrp for that? They would to what they did with China (spy plane affair) - trying to talk their people out with more or less wordjuggling.

I doubt that anyone would so idiotically provoke the US when the US is perfectly willing to prosecute any of its own war criminals.

Suuuuuuure. The mucho prosecuting tale, this time told from Simon. Hey, check out all ressources about cases in Abu Ghraib, Guantanamo etc.etc. The U.S. is prosecuting where it can't stop the publicity and not one bit more. The larger part is being hidden and all responsible, or even remotely connected people are made to shut-up. How could you be so naive??? Months ago I posted about the Pulitzer Vietnam story of the Tiger Force (not much contribution there, I wonder why). Dozends of atrocities, the soldiers were known and SH!T happened. The Iraq war is going the same fricking way. You want to delude yourself, fine, but stop this crap.


PB.

[Millennium]

Originally posted by Logic:
And exactly because I trust that the US prosecutes it's own war criminals I believe that you should join this. There would be no risk of the ICC prosecuting U.S. soldiers while at the same time getting one of the most influential players on the international scene to join. Having one of the biggest players on the block joining this would set pressure on a lot of countries that we need to get into this to join and thereby creating a safer world. Unfortunately sometimes it seems like the US isn't after a safer world, only a safer U.S. of A.

As long as it is possible, there is a risk. Aside from the inadequate protections for the rights of the accused, the ICC doesn't have adequate checks against its power either. There are guidelines for its behavior, but no hard laws. For crying out loud, the charter trusts it to be self-policing.

This is not something which can be trusted.

[Logic]

Originally posted by Millennium:
As long as it is possible, there is a risk. Aside from the inadequate protections for the rights of the accused, the ICC doesn't have adequate checks against its power either. There are guidelines for its behavior, but no hard laws. For crying out loud, the charter trusts it to be self-policing.

This is not something which can be trusted.

First: What are the inadequate protections you are talking about?

Second: Why does most of the world consider this good enough to be trusted while the U.S. doesn't?

[SimeyTheLimey]

Originally posted by Millennium:
As long as it is possible, there is a risk. Aside from the inadequate protections for the rights of the accused, the ICC doesn't have adequate checks against its power either. There are guidelines for its behavior, but no hard laws. For crying out loud, the charter trusts it to be self-policing.

This is not something which can be trusted.

And to be clear, the attitudes here are exactly the kinds of attitudes that Americans look at and conclude that they can't trust the ICC to self-police. We know in our guts that two countries that would never get a fair shake from the kinds of people who would be attracted by the ICC would be the US and Israel. And nobody, Democrats or Republicans is interested in walking into such an obvious trap or (to mix metaphors) in handing over such an obvious stick with which to beat us.

But we have been over this over and over. The answer to the ICC is no we are not interested. And we are still not interested. And neither are we going to be forced to do what you have completely failed to convince us to do. And each and every time you unjustifiably accuse the US (but somehow always only the US) of some cooked up atrocity and how it is absolutely imperative that we let you judge us in a court you plan on controlling, you convince us of how right and sensible we have been to steer clear of the whole mess.

[Spheric Harlot]

Originally posted by SimeyTheLimey:


And to be clear, the attitudes here are exactly the kinds of attitudes that the rest of the world looks at and conclude that they can't trust the USA to self-police. We know in our guts that the kinds of people who run the US and Israel would never accept a fair shake from ICC countries.

Fix0r3d.

-s*

[effgee]

Originally posted by Spheric Harlot:
Fix0r3d.

[BlackGriffen]

Originally posted by Powerbook:
Now _this_ is the unlikely scenario, don't you think? You don't honestly believe the U.S. will start an invasion in Yorrrp for that? They would to what they did with China (spy plane affair) - trying to talk their people out with more or less wordjuggling.



Suuuuuuure. The mucho prosecuting tale, this time told from Simon. Hey, check out all ressources about cases in Abu Ghraib, Guantanamo etc.etc. The U.S. is prosecuting where it can't stop the publicity and not one bit more. The larger part is being hidden and all responsible, or even remotely connected people are made to shut-up. How could you be so naive??? Months ago I posted about the Pulitzer Vietnam story of the Tiger Force (not much contribution there, I wonder why). Dozends of atrocities, the soldiers were known and SH!T happened. The Iraq war is going the same fricking way. You want to delude yourself, fine, but stop this crap.


PB.

To be fair, the soldiers responsible for Abu Ghraib were already being prosecuted. The chain of command was not be investigated, AFAIK, though.

BG

[Spheric Harlot]

Originally posted by BlackGriffen:
The chain of command was not be investigated, AFAIK, though.

...which makes any sort of "serious" investigation impossible, and the results worthless - at the very least to the Middle-Eastern public, who are the U.S.'s greatest danger at the moment, IMO.

-s*

[SimeyTheLimey]

Originally posted by Spheric Harlot:
...which makes any sort of "serious" investigation impossible, and the results worthless - at the very least to the Middle-Eastern public, who are the U.S.'s greatest danger at the moment, IMO.

-s*

So what you basically want are show trials? Yes, that's what we suspected. That's why for you it is imperative that the defendants not be tried by juries of their peers. Because to you the ICC has nothing to do with justice, everything to do with politics.

The answer is still no. And all your arguments, far from reassuring us, merely confirm our fears about your true intentions. Next time you try peddling a trojan horse, don't be so dumb as to announce that it contains soldiers.

[Spheric Harlot]

Originally posted by SimeyTheLimey:
So what you basically want are show trials?

No.

I want full investigations.

-s*

[Troll]

Originally posted by SimeyTheLimey:
So what you basically want are show trials?

I don't think he was talking about show trials. But I think everyone is rather concerned at the way the process for investigating the abuses at Abu Ghraib has been "managed".

I think what Spheric is referring to is that the fact that a) Taquba was appointed by Sanchez thereby restricting the investigation to issues under Sanchez's command only and b) Taquba is a two star general with the concomitant problems of punishment being metered out against anyone of higher rank. He might also be referring to the fact that the Army is silencing critics by banning discussion of the Report and by disciplining those who have criticised the process publicly. Even Taquba himself has complained.

The inability of the Army to meter out justice in this case is being openly debated in the press. Time Magazine recently carried a story on this for example.

What I don't understand about your argument is why you think the ICC is particularly stacked against the US. South Africa, which has troops in a number of African hotspots has no problem with it. The UK which has troops in Iraq and Afghanistan has no problem with it. France which has troops in Afghanistan, Haiti and a number of other places has no problem. What is so special about the US?

[Powerbook]

"All animals are equal, but some animals are more equal than others."

PB.

[Nicko]

Originally posted by SimeyTheLimey:
So what you basically want are show trials? Yes, that's what we suspected. That's why for you it is imperative that the defendants not be tried by juries of their peers. Because to you the ICC has nothing to do with justice, everything to do with politics.

The answer is still no. And all your arguments, far from reassuring us, merely confirm our fears about your true intentions. Next time you try peddling a trojan horse, don't be so dumb as to announce that it contains soldiers.

What are his true intentions exactly?

[SimeyTheLimey]

Originally posted by Troll:
What I don't understand about your argument is why you think the ICC is particularly stacked against the US. South Africa, which has troops in a number of African hotspots has no problem with it. The UK which has troops in Iraq and Afghanistan has no problem with it. France which has troops in Afghanistan, Haiti and a number of other places has no problem. What is so special about the US?

It really doesn't matter why we know the ICC would be misused, and misused uniquely against the US. We understand that the US is always held to a double standard. But regardless, the fact is as proponents of a radical treaty that has the potential to undermine our sovereignty, it is your burden to convince us that it is in our interests, not just yours. And until we are convinced that it is in our interests, and couldn't, and wouldn't under any circumstances be misused, we aren't going to take the risk.

There has been an offer on the table since Clinton's Administration that could resolve this. If you really want the US in the ICC for completely honorable reasons, and not because you have any ideas about using the ICC to influence US foreign policy or to interfere with US domestic law enforcement (including military justice), then amend the Rome Statute. Make prosecutions subject to Security Council ratification. That would resolve all the US's concerns.

But the problem is in your heart of hearts, you do want to use the ICC mischievously. Every one of your justifications for the ICC boils down to why it is right and proper in your minds that you be allowed to grab Americans and prosecute themm or at the very least, for you to have an official and final say in what is, or is not acceptable in our domestic affairs. We're not stupid. It's perfectly obvious that the ICC for you is nothing more or less than a mechanism to give you a veto on the US. Do you really think we are so stupid as to not see that?

Like I said: it's a trojan horse. And a transparent one at that. That's why this isn't even up for debate here among either of the parties. The ICC is as far as the US is concerned dead. If you want us to join, it will be on our terms which we have made very plain. If you aren't willing to meet those terms, that's your choice, but stop asking us. Go play with your little world court, but leave us alone.

[thunderous_funker]

It seems that UN-bashers can never decide if the UN is too pathetic to be trusted or too powerful to be trusted.

Are you seriously postulating a scenario in which the ICC could/would "grab Americans and prosecute them"?

That's really rich.

And how can the ICC be a "trojan horse" when the US is permanent member of the Security Council which has jurisidiction over the ICC? Are we really in danger of tricking ourselves into letting ourselves inside the Castle walls?

For the all the pseudo-patriotic double talk about preserving our sovreignty from the insidious ICC, the fact remains that the US is arleady party to international treaties that have already surrendered our sovreignty utterly to nefarious international interests--The WTO, FTAA, NAFTA.

It seems our government considers state and national labor, environment and health standards not worth protecting from international corporate Trojan Horses. It is only when the it is suggested that the Pentagon be subject to the same laws it claims to brutally enforce around the world that suddenly our "sovreignty" is at stake.

The duplicity of our government on this matter is sickenly transparent.

[SimeyTheLimey]

Originally posted by thunderous_funker:

And how can the ICC be a "trojan horse" when the US is permanent member of the Security Council which has jurisidiction over the ICC? Are we really in danger of tricking ourselves in letting ourselves inside the Castle walls?

That's the problem. The Security Council does not have jurisdiction over the ICC. And the ICC is not part of the UN. The ICC answers only to itself.

Research the facts, then draw conclusions.

[thunderous_funker]

Originally posted by SimeyTheLimey:
That's the problem. The Security Council does not have jurisdiction over the ICC. And the ICC is not part of the UN. The ICC answers only to itself.

Research the facts, then draw conclusions.

From the ICC's website:

The Court may exercise its jurisdiction with respect to the crime of genocide, crimes against humanity and war crimes either when the situation is referred to the Prosecutor by a State Party or by the Security Council, or when the Prosecutor decides to initiate an investigation his or her own decision and on the basis of information received. However, in this last case, the Prosecutor must seek the authorization of the Pre-Trial Chamber before proceeding with the investigation.

When the situation is referred to the Prosecutor by the Security Council, the Court may exercise its jurisdiction in all cases and no preconditions are applicable.

However, in the two other cases, when the Prosecutor decides to initiate an investigation on his or her own decision with the authorization of the Pre-Trial Chamber, or when the situation is referred to the Prosecutor by a State Party, strict preconditions shall be met before the Court can exercise its jurisdiction.

Indeed, in those two cases, the Court may exercise its jurisdiction only if either the State on the territory of which the suspected crime occurred (State of territoriality), or the State of which the person suspected of having committed the crime is a national (State of nationality of the suspected person), is a State Party to the Statute.

If neither of these two States is a State Party to the Statute, the Court will not be in a position to investigate the suspected crimes, except if either the State of territoriality or the State of nationality of the suspected person accepts the exercise of jurisdiction of the Court by declaration lodged with the Registrar. Such a declaration may be made for all suspected crimes committed after 1 July 2002 (taking into consideration that crimes within the jurisdiction of the Court are not subject to any statute of limitations).

Thus, if nationals of States Parties to the Statute are victims of suspected crimes within the jurisdiction of the Court in the territory of a State which is not a Party to the Statute committed by persons who are not nationals of a State Party, the Court wouldn't be in a position to investigate except if either the State of territoriality or the State of nationality of the suspected person accepts the jurisdiction of the Court, or if the situation is referred to the Court by the Security Council.

Sounds to me that the ICC is powerless to claim jurisdiction if States refuse to grant it jurisdiction. The only exception is if they get the authorization of the Security Council.

[SimeyTheLimey]

Originally posted by thunderous_funker:
From the ICC's website:



Sounds to me that the ICC is powerless to claim jurisdiction if States refuse to grant it jurisdiction. The only exception is if they get the authorization of the Security Council.

You have it backwards. That passage (read it carefully) refers to situations where the ICC is attempting to exercise jurisdiction over a non-ICC member (such as the US is now). Such extralegal jurisdiction is contrary to established principles of international law because it is a basic principle of international law that only parties to a treaty are bound by a treaty. The language you point to kind of fudges that problem.

However, the situation you described in an earlier post refers to the relationship between the Security Council and the ICC where the ICC exercises jurisdiction over a member of the ICC. We are talking about what would happen if the US were a party. You claimed that the US, if it were a member of the ICC, would have nothing to fear from politically-motivated ICC prosecutions because as a veto-wielding member of the Security Council, the US could veto ICC prosecutions.

That is incorrect. ICC prosecutions are not subject to Security Council ratification. The Security Council can refer prosecutions to the ICC, but there isn't a requirement that the Security Council refer a prosecution. Once you are in the ICC, you acknowledge ICC jurisdiction over your nationals with only the ICC able to judge when it is appropriate to exercise jurisdiction, and when it is not. Thus, a veto in the Security Council does not protect against a prosecution in the ICC. The ICC has only a loose relationship to the UN. It is not formally under UN supervision.

The Clinton Administration attempted for many years to place the ICC under the Security Council as previous international tribunals are. The US proposal was rebuffed. Thus, Clinton declared the ICC to be unacceptable from the US point of view, and the Senate voted 98-0 to reject the ICC as presently formulated.

[thunderous_funker]

Originally posted by SimeyTheLimey:
That is incorrect. ICC prosecutions are not subject to Security Council ratification. The Security Council can refer prosucutions to the ICC, but there isn't a requirement that the Security Council refer a prosecution. Once you are in the ICC, you acknowledge ICC jurisdiction over your nationals with only the ICC able to judge when it is appropriate to exercise jurisdiction, and when it is not. Thus, a veto in the Security Council does not protect against a prosecution in the ICC. The ICC has only a loose relationship to the UN. It is not formally under UN supervision.

I never used the word "ratification". It wasn't the intention of my post to suggest that.

The ICC's jurisdiction is most clearly determined in instances where the Security Council directs it to investigate.

Without the Security Council referal, the ICC has very clear checks against initiating investigations on the referal of State parties or of its own volition.

The most obvious check is the condition of "complimentarity".

The International Criminal Court will complement national courts so that they retain jurisdiction to try genocide, crimes against humanity and war crimes.

If a case is being considered by a country with jurisdiction over it, then the ICC cannot act unless the country is unwilling or unable genuinely to investigate or prosecute.

A country may be determined to be "unwilling" when it is clearly shielding someone from responsibility for ICC crimes. A country may be "unable" when its legal system has collapsed.

And there is Pre-Trail Chamber--the body responsible for establishing if a case is to go forward. The Accussed have clearly defined rights and the entire process is open and transparent.

The whole notion of the ICC being able to "grab Americans and prosecute them" is a complete bugaboo.

My biggest complaint about the ICC is that it relies almost too much on the principles of "complimentary" and co-operation. A state that refuses to abide by the ICC's rulings is even less likely to face serious problems than a nation that continually ignores UN resolutions or even Security Council resolutions.

The US's only real (as opposed to capricious and vague) objections are that we assert the right to continue to be a law unto ourselves with regard to International Law--particulary the Geneva Convention.

[SimeyTheLimey]

Originally posted by thunderous_funker:
The most obvious check is the condition of "complimentarity".



And there is Pre-Trail Chamber--the body responsible for establishing if a case is to go forward. The Accussed have clearly defined rights and the entire process is open and transparent.

The whole notion of the ICC being able to "grab Americans and prosecute them" is a complete bugaboo.

The final decision on whether or not a state has prosecuted to the ICC's satisfaction lies with the ICC. All of its vaunted checks and balances are just one part of the ICC judging the discretion of another part of the ICC. There is no independent check on the ICC. Thus, it is not a "bugaboo" but a very real problem.

For example, if the US grand jury investigates a particular complaint, and decides based on US law that there is insufficient probable cause for a prosecution, the ICC could decide based on a completely different notion of sufficiency of evidence (or because of political motivations) that they will prosecute because the US "failed" to prosecute. The ICC has no independent mechanism to prevent this scenario.

Or another example: The grand jury brings a prosecution, but evidence is thrown out under the 4th Amendment, or alternatively, the jury (which the ICC does not have) finds the accused not guilty. This could be deemed to be an insufficient prosecution, and the ICC could prosecute. Again, the discretion is entirely the ICCs. There is no check on its power to do what it wants.

We don't allow this kind of unbridled prosecutorial discretion in the US. Prosecutors are subject to political control to maintain democratic accountability. But the ICC has no such protections. The only protection it offers is "trust us." Well, I don't, and we shouldn't.

When both the Republican and the Democratic Parties agree that a treaty is badly flawed and would be bad for the country such that there is no disagreement that it ought not be ratified, that ought to be a clue that there probably are real problems. This isn't just some isolationist fringe objecting.

[thunderous_funker]

Originally posted by SimeyTheLimey:
The final decision on whether or not a state has prosecuted to the ICC's satisfaction lies with the ICC. All of its vaunted checks and balances are just one part of the ICC judging the discretion of another part of the ICC. There is no independent check on the ICC. Thus, it is not a "bugaboo" but a very real problem.

For example, if the US grand jury investigates a particular complaint, and decides based on US law that there is insufficient probable cause for a prosecution, the ICC could decide based on a completely different notion of sufficiency of evidence (or because of political motivations) that they will prosecute because the US "failed" to prosecute. The ICC has no independent mechanism to prevent this scenario.

Or another example: The grand jury brings a prosecution, but evidence is thrown out under the 4th Amendment, or alternatively, the jury (which the ICC does not have) finds the accused not guilty. This could be deemed to be an insufficient prosecution, and the ICC could prosecute. Again, the discretion is entirely the ICCs. There is no check on its power to do what it wants.

We don't allow this kind of unbridled prosecutorial discretion in the US. Prosecutors are subject to political control to maintain democratic accountability. But the ICC has no such protections. The only protection it offers is "trust us." Well, I don't, and we shouldn't.

When both the Republican and the Democratic Party agree that a treaty is badly flawed that ought to be a clue that there probably are real problems. This isn't just some isolationist fringe objecting.

I'm trying in vain to find how your hypothetical examples fall into the categories of a State party knowingly shielding a person from prosecution or suffering from a collapse of the legal system.

As I read it, both exceptions to "complimentarity" are pretty strictly defined and a scenario where the ICC doesn't think we tried hard enough to convict someone is nowhere to be found.

And I really couldn't care less what Congress or even the entire spectrum of political elites in either party think of it. Their objections remain a transparent avowal of the US retaining the right to prosecute other nations for violating International Law every bit as capriciously and whimsically as you unjustifiably fear the ICC would.

[SimeyTheLimey]

Originally posted by thunderous_funker:
I'm trying in vain to find how your hypothetical examples fall into the categories of a State party knowingly shielding a person from prosecution or suffering from a collapse of the legal system.

You are thinking best case scenario. In the best case, the ICC would only be used in the circumstances you suggest. In the best case, they would define "complementarity" narrowly even if they found it frustrating. But there is nothing to limit the discretion of the ICC, or force it to interpret its jurisdiction narrowly. So what if it is a worst case scenario? What external authority does the Rome Statute provide to check the prosecutorial power of the ICC? What external mechanism is there to prevent it from interpreting its jurisdiction broadly? There is none. All you have is trust in the good faith of the ICC.

For the US to simply be told to trust the good faith of international prosecutors is akin to telling Bill Clinton to trust the good faith of Kenneth Starr. Without an external check, a promise of good faith is worthless.

[Spliffdaddy]

[Nicko]

Originally posted by SimeyTheLimey:
You are thinking best case scenario. In the best case, the ICC would only be used in the circumstances you suggest. In the best case, they would define "complementarity" narrowly even if they found it frustrating. But there is nothing to limit the discretion of the ICC, or force it to interpret its jurisdiction narrowly. So what if it is a worst case scenario? What external authority does the Rome Statute provide to check the prosecutorial power of the ICC? What external mechanism is there to prevent it from interpreting its jurisdiction broadly? There is none. All you have is trust in the good faith of the ICC.

For the US to simply be told to trust the good faith of international prosecutors is akin to telling Bill Clinton to trust the good faith of Kenneth Starr. Without an external check, a promise of good faith is worthless.

So basically, the US wants to run the world, but not be apart of it. Riiiiiiiight...like that works. How much begging do you think Bush is doing right now meeting with the EU to regain a shred of legitimacy?

[SimeyTheLimey]

Originally posted by Nicko:
So basically, the US wants to run the world, but not be apart of it. Riiiiiiiight...like that works.

Where do you get that? It's just a bad treaty. It's not "the world." The US has been a part of the world for centuries without it, and will continue to be so. The "world" is the 192 independent states and it is states that have legitimacy, not novel international projects.

The ICC is trivial. It's just important to you because you want to use it to make up for your lack of power and influence. But you are going about it in completely the wrong way because your intentions are way too transparent.

[Logic]

Questions for Simey:

Do you think that giving the ultimate control over the ICC to the UNSC would make it more or less political?

Do you think that giving nations the right to veto prosecutions(by whatever reason they chose to) better judicially?(not sure how to word that question but I hope you understand what I mean)

What are the arguments for that having a jury is better than having a panel of judges? And does every level of the U.S. judicial system have juries?


I'd appreciate if you could answer these questions

[SimeyTheLimey]

Originally posted by Logic:
Questions for Simey:

Do you think that giving the ultimate control over the ICC to the UNSC would make it more or less political?

Do you think that giving nations the right to veto prosecutions(by whatever reason they chose to) better judicially?(not sure how to word that question but I hope you understand what I mean)

What are the arguments for that having a jury is better than having a panel of judges? And does every level of the U.S. judicial system have juries?


I'd appreciate if you could answer these questions

It is political. It would probably make it less political because it would destroy the incentive that exists to use the ICC to make political statements against the US. There is no legitimate need to use the ICC against any established democracy. The fact that the ICCs supporters are so concerned to make sure that it could be used against an established democracy is what makes us so suspicious. If you only want to use it against the Saddams and Milosovic's of the world, then you should have no problem with putting it under the control of the UNSC. After all, the UNSC is the body that is charged with the maintenance of international peace and security. But the UNSC is political. There is no way for it, or any other body not to be political.

The argument that a country should not be able to "shield" a war criminal rests on an assumption. The assumption is that the decision not to prosecute is illegitimate. But in established democracies, there are protections for individual liberties that have a higher place in the order of liberties than the right to prosecute. I believe that it was Oliver Wendell Holmes who said that it is better that a guilty man go free than an innocent man be convicted. We take that seriously.

Where the ICC ought to be useful is in dealing with the Saddams and Milosovics. But that requires being honest. It isn't a neutral court and should not be a neutral court. It ought to be there solely for the prosecution of war crimes by non-democracies. Democracies can, and out of respect, ought, to be trusted to self-police. Yes, this is a double standard. And an important one.

There are two ways of organizing criminal prosecutions. I happen to think that juries are superior. They maintain a clearer link between criminal prosecutions and the idea that it is the people that are policing themselves, not an elite, and not the state as an abstract entity. That's not to say that the Roman law way always leads to injustice. Many countries that use it are perfectly free. But common law countries do have additional levels of individual protections that civil law countries do not, including the structural protection of the jury. That isn't so much relevant where everyone is exercising their trust with care. But it can, and historically, has been important when the state is tempted to overreach its power. Jury panels are one of the people's checks on the power of a runaway executive.

Your last question is that there is an absolute right to jury trial in every criminal trial in the US. That's protected in the Sixth Amendment.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

That's just the basic text. There is also a large body of Constitutional law that develops it. Maybe you would be interested in this web site. You might enjoy looking at some of the historical documents. I think if you did, you'd understand better why the US looks to its historical traditions and distrusts other traditions. Too many of the latter resemble too much the institutions this country was founded to escape. For example, the unchecked power of the Executive to prosecute at will, or historical courts like the Court of High Commission or the Star Chamber.

But the basic reason the US opposes the ICC isn't because it lacks a jury. It's because it lacks oversight.

[thunderous_funker]

Your worst case scenario is still beyond the scope of the ICC.

These powers ARE narrowly defined despite your continued allegations to the contrary. You're arguing irrational fictions when the Treaty is already in black & white.

In fact, Part II Article 16 states that if the Security Council passes a resolution barring the ICC from investigating a alledged crime, it cannot initiate proceedings for 12 months. And the SC can renew that ban.

And I'm curious how your bias against elitist judges jives with your opinion of the US Appeals courts or the US Supreme Court. Are they also inferior because they don't use juries?

But enough facts. You obviously have no use for them.

Even if we stick with your ridiculous worst case scenario, however implausible. What the hell is the ICC going to do if the US refuses to abide by its rulings? Hm? Will the ICC dispatch its ICC troops and ICC air force to invade the US and force us into compliance?

Even if Osama Bin Laden become the President of the ICC, what the hell can he do to the US but throw angry peices of paper at us demanding we listen to them?

[SimeyTheLimey]

Originally posted by thunderous_funker:
Your worst case scenario is still beyond the scope of the ICC.

These powers ARE narrowly defined despite your continued allegations to the contrary. You're arguing irrational fictions when the Treaty is already in black & white.

In fact, Part II Article 16 states that if the Security Council passes a resolution barring the ICC from investigating a alledged crime, it cannot initiate proceedings for 12 months. And the SC can renew that ban.

The worst case scenarios are completely within the discretion of the ICC if the ICC in its sole discretion decides that they are. There is not external body that the ICC has to go to the way a US prosecutor has to go to the grand jury. You still have not pointed to any external check that means anything.

You said earlier that the US could use its veto to prevent an ICC prosecution. That's a claim that the US has by itself the power to stop an ICC indictment. Now you are saying that if the US can persuade 9 members of the Security Council, including all 4 of the other veto-wielding powers, to affirmatively vote for a US resolution (or to abstain) then the US could maybe get the ICC to defer a prosecution for 12 months. Not prevent, just defer. And not by using a veto by itself, but only if the US can persuade our close friends Russia, China, and France to agree with us. Like they always do, I suppose.

Fat chance. Not very comforting. And not at all what you claimed. We'll chalk this one up to a backhanded admission that you were wrong. As long as the ICC has some friends somewhere in the notoriously pro-American countries France, Russia, or China, they can persue any dumb politically-motivated indictment they want, and there wouldn't be a damned thing the US could do about it. That's going to be very tempting. And remember, Russia and China themselves aren't members of the ICC. So this is a double boon for them!



Your "how would they take physical jurisdiction claim is more reasonable, except for three scenarios that you don't seem to have considered:

1. The US citizen is already in the hands of an ICC member state, who, under the Rome Statute, would be required to hand him over to the ICC. (This is what article 98 treaties prevent). The US would be helpless unless the US decided to use force. This is not a good idea in international relations.

2. The US citizen is presently in the US, but is considered a wanted person in any ICC member country, perhaps notwithstanding an acquittal in a US court, or the decision by a US prosecutor or grand jury not to indict because of lack of probable cause. This is also unjust.

3. The US citizen is an officeholder in the US government and is indicted by the ICC in a politically-motivated case (see recent attempts in Belgian courts for examples). US foreign policy is now negatively impacted. Officials are tainted by a trumped-up charge and cannot clear their name without doing a perp walk for someone with an agenda. Nor could they travel freely to ICC member countries, even on official business because the ICC does not respect diplomatic immunity.

Real potential scenarios. Maybe worse case ones, but real. But treaties are rather like contracts. It's worthless to consider how they might work if everyone performs in good faith. Smart people look at them with an eye to what might go wrong and what you might have to live with if the other side has less than good faith. But you just want to sign regardless.

If you really think the above is utterly ridiculous, then you won't be concerned about a minor reassuring amendment to the Rome Statute: Put the ICC under the Security Council. That's all it takes. If there is no intent to use the ICC mischievously, there is no reason not to do this.

[thunderous_funker]

The external check has already been pointed out--The Pre-Trial Chamber. The Prosecutor cannot proceed ex-officio without their review and approval. That is just as "external" as your example of the US Grand Jury.

If putting the ICC under the SC is only thing that will appease the US, then we must also reform the SC to make it more democratic. The only reason the US wants the ICC under the SC is because the SC beholden to the whims of the US.

And you've still ignored the point that even under the most ridiculously hypothetical of worst case scenarios the ICC still powerless to do anything but issue edicts and complain.

Do you really think that a state party to the ICC holding an American citizen is a more insurmountable diplomatic problem than when Iran captures UK sailors? Or when China holds US pilots?

Why is the ICC's jurisdiction more fearsome than the ICJ? Or ad hoc tribunals?

You mentioned the Belgium/Kissinger thing. Any chance of Belgium's commandos nabbing Henry in his sleep?

ONe thing is for sure--Henry Kissinger would get a more fair trial before a Belgium court or the ICC than a detainee at Guantanamo will get at the hands of the Pentagon. Why? Because the ICC is transparent in its operation unlike the US military.

[SimeyTheLimey]

Originally posted by thunderous_funker:
The external check has already been pointed out--The Pre-Trial Chamber.

That's just another part of the ICC. It's not external. It's as much of an external check as Kenneth Starr's right hand checking his left.

You ask about the ICJ or the ad hoc tribunals. Here is the difference. The ICJ has no jurisdiction unless the parties to the dispute give consent. The ICJ also is not a criminal court, and has no jurisdiction against individuals. The ICJ is just a forum for state to state dispute resolution. It also has no enforcement power.

The ad hoc tribunals are courts of limited jurisdiction. They are appointed by the Security Council under its Chapter VII authority, which is not controversial at all. That's a better model, and frankly, all that was ever needed.

[macvillage.net]

Originally posted by effgee:
They do/will get away with it The US has signed bilateral treaties with more than 90 countries (more in the works) already in which the respective country agrees not to extradite members of the US military for ICC tribunals ... bunch 'o sneaky slicksters that they are ...

That's really the bottom line.

And no more than 2 or 3 will actually serve a day for the prison crisis. That's the real sad part. The US will prosecute 2 or 3, and make it very public. But the higher ups who authorized it... and everyone else who knew about it (so far reaching human rights organizations went to the mainstream press months earlier).

But were going after 2-3 individuals. Because that makes us feel accomplished.

I wonder where the regimes that have harbored terrorists in the past get it from? They copy the US.

If the US ate it's own dog food, Bush and Rummy would both be standing before a judge in orange outfits pleading their case.

But of course, the law here in the US are written nicely, so that the president can't be held responsible for anything done by the military following their orders.

[thunderous_funker]

Originally posted by SimeyTheLimey:
That's just another part of the ICC. It's not external. It's as much of an external check as Kenneth Starr's right hand checking his left.

You ask about the ICJ or the ad hoc tribunals. Here is the difference. The ICJ has no jurisdiction unless the parties to the dispute give consent. The ICJ also is not a criminal court, and has no jurisdiction against individuals. The ICJ is just a forum for state to state dispute resolution. It also has no enforcement power.

The ad hoc tribunals are courts of limited jurisdiction. They are appointed by the Security Council under its Chapter VII authority, which is not controversial at all. That's a better model, and frankly, all that was ever needed.

And the US Grand Jury is part of the same system as US prosecutors which was your example of "external check".

The Pre-Trial Chamber is just as independent and external as any of the "external" checks in the US judicial heirarchy.

Well, I guess since virtually the entire civilized world is supporting the ICC not everyone agrees that the ad hoc tribunals (at the mercy of the political whims of the Security Council) are "all that was ever needed".

The bottom line is that the rest of the world wishes to extend and expand the machinism that promote the rule of law over the barbarism of might makes right. The US stands virtually alone amoung modern democracies in opposing that evolution with only the solidarity of the worlds most deplorable human rights abusers agreeing with our position.

[macvillage.net]

Originally posted by thunderous_funker:
And the US Grand Jury is part of the same system as US prosecutors which was your example of "external check".

The Pre-Trial Chamber is just as independent and external as any of the "external" checks in the US judicial heirarchy.

Well, I guess since virtually the entire civilized world is supporting the ICC not everyone agrees that the ad hoc tribunals (at the mercy of the political whims of the Security Council) are "all that was ever needed".

The bottom line is that the rest of the world wishes to extend and expand the machinism that promote the rule of law over the barbarism of might makes right. The US stands virtually alone amoung modern democracies in opposing that evolution with only the solidarity of the worlds most deplorable human rights abusers agreeing with our position.

Hey... we came to abuse people in prisons and we did it.

That's all there is too it.

Now hopefully they will cooperate and line up their women for raping.




Kind of sick how we invaded a country to stop the same **** the president and his staff allowed to take place.

Yet somehow, Bush spins it to make himself the good guy. All of a sudden, being like saddam is a good thing.


Bush would get much more credibility for this Iraq war if he agreed for ICC, and opened all of the US (including his office) to the ICC. If it is really legit, and if it's really all like he says, he would only build support.


It's like Clinton's lies... only caused more damage as it went on.

Note: Clinton admited to it, and it died pretty quick. There was nothing more to carry on about.

[SimeyTheLimey]

Originally posted by thunderous_funker:
And the US Grand Jury is part of the same system as US prosecutors which was your example of "external check".

No its not. Prosecutors are part of the executive. The grand jury is drawn directly from the people by lottery.

So far you have made your case with one inaccurate statement after another. How can you champion a foreign judicial system if you obviouly don't understand either it, or your own judicial system?