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You are here: MacNN Forums > Community > MacNN Lounge > Political/War Lounge > Annan Opposes U.S. Renewal Of Blanket War Crimes Immunity

Annan Opposes U.S. Renewal Of Blanket War Crimes Immunity
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angaq0k
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Jun 19, 2004, 10:43 AM
 
Annan Opposes U.S. Renewal Of Blanket War Crimes Immunity

"(The) blanket exemption is wrong._ It is of dubious judicial value, and I don't think it should be encouraged by the [Security] Council," Annan told reporters.

The proposed resolution, introduced last month, shields U.N. peacekeepers from countries that have not ratified the Rome Statute_� the treaty that created the ICC_� from investigation or prosecution by the court._ The Security Council has approved the move twice before_at Washington's behest, in July 2002 and again last year._ The 2003 resolution expires June 30.
Also, China Will Not Back U.S. on Immunity from New Court

"I said to my colleagues we will abstain," Beijing's U.N. ambassador, Wang Guangya, told Reuters after a luncheon among the 15 Security Council members and U.N. Secretary-General Kofi Annan. Wang said earlier the resolution would send a wrong signal in light of the Iraqi prisoner abuse scandal.

China's abstention could deprive the Bush administration of the nine "yes" votes required to adopt a resolution. So far only Britain, Russia, Angola and the Philippines are considered sure votes in favor.

All other members are contemplating an abstention or are undecided, following a rebuke by U.N. Secretary-General Kofi Annan, who said on Thursday the resolution was "wrong," would "discredit the council" and was of "dubious judicial value."

He said that resolution "would be a very unfortunate signal to send at any time -- but particularly at this time."

On Friday Annan distributed a memorandum to council members, "strongly" urging them not to renew the measure.

"The secretary-general believes that extending the exemption once more would contradict the efforts of the United Nations -- including the council itself -- to promote the rule of law in international affairs," the memorandum said."
Interesting that the end of that resolution ends on June 30. Is there a relationship? Also, I wonder what will be the effect on the overall situation (abuse in prison, occupation of Iraq, WOT) will be if that resolution is not renewed.

What do you think?
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Jun 19, 2004, 10:53 AM
 
I don't think the US should be exempt.
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dreilly1
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Jun 19, 2004, 11:13 AM
 
Originally posted by MacGorilla:
I don't think the US should be exempt.
The US should be exempt because it has not ratified the Rome treaty, and is not part of the ICC.

The US has not ratified the treaty becasue there are provisions in it that give less rights to people under trial than they have in the US, and some congressmen (and Clinton and GWB) believe it would violate the US constitution to sign it. I know there have been several discussions here when the ICC was first being debated with good arguments on both sides.

If the exemption is not renewed, then I think Congress should pull US troops out of UN peacekeeping duties. Not because we would be leaving in a bitter huff, but because I don't think Congress has the ability under the US constitution to submit US citizens to ICC jurisdiction. If UN peacekeepers would be subject to the ICC, then we can't participate.

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Jun 19, 2004, 11:59 AM
 
This is good news. The USA now has a valid reason to not provide any assistance or troops to ridiculous UN peacekeeper forces.

     
angaq0k  (op)
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Jun 19, 2004, 12:20 PM
 
Originally posted by PacHead:
This is good news. The USA now has a valid reason to not provide any assistance or troops to ridiculous UN peacekeeper forces.

I don't see how this relate to the topic, but heck, whatever's your fancy.

The idea of the U.N. relies on the concept of the community of Nations, in my understanding. Whether the project is a success or a failure, I'd say it is neither, having had succeeded brilliantly at times, and failed miserably at times (which seems to be the record of all Nations after all).

If your need to protect U.S. citizens from the influence of this community of Nations is so important, don't ask why people from the other nations can resent America.

I agree though that the U.N. is far from perfect and huge changes are probably required in the short and the long term.

But one cannot expect to ask favors and refuse to submit to the rules of the club without creating a conflict.

The question remains, although a speculative one, as to the consequences of a non-renewal of that resolution.
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Jun 19, 2004, 03:40 PM
 
Originally posted by angaq0k:
I don't see how this relate to the topic, but heck, whatever's your fancy.
It relates to the topic because the waiver specifically shields US troops (and any other non-ICC country's troops) operating as part of UN peacekeeping forces. Without that waiver, all UN peacekeeping troops would be subject to the ICC, whether or not the country contributing those troops signed the treaty.

If you believe that the ICC, in its current incarnation, does not jive with the US constitution, then if the waiver is not renewed, the Congress would not have the ability to contribute US troops to UN peacekeeping forces without a constitutional amendment.

It's not a matter of the US not wanting to participate in the community of nations, it's that many US lawmakers don't think it's legal for us to participate in this manner. Do you propose that international treaties should trump the laws of the nations that sign them (or who don't sign them, as the case may be...)?

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angaq0k  (op)
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Jun 19, 2004, 05:11 PM
 
Originally posted by dreilly1:
It relates to the topic because the waiver specifically shields US troops (and any other non-ICC country's troops) operating as part of UN peacekeeping forces. Without that waiver, all UN peacekeeping troops would be subject to the ICC, whether or not the country contributing those troops signed the treaty.
Ok. Phrased that way, I understand better.

If you believe that the ICC, in its current incarnation, does not jive with the US constitution, then if the waiver is not renewed, the Congress would not have the ability to contribute US troops to UN peacekeeping forces without a constitutional amendment.

It's not a matter of the US not wanting to participate in the community of nations, it's that many US lawmakers don't think it's legal for us to participate in this manner. Do you propose that international treaties should trump the laws of the nations that sign them (or who don't sign them, as the case may be...)?
Good question. And I do not have an answer to that, because this matter is far more complicated to me now. Thank you for the info; it is instructive.

Back to your question, I understand that there is the challenge of having some form of correspondence between International Law and National Law. Or is it possible that for some circumstances involving war activities, such National Laws might be revoked because of the special circumstances surrounding such activities? I mean by that a code of behavior for soldiers from both sides, for instance (as long as they agree to apply such a code; I understand there is a challenge there or that its necessity can be argued at lenght).

There is also the other questions where the American governement sees fit not to abide to these rules (ICC), yet other countries that I suppose have similar Laws (France, Canada, Great Britain) may have signed such agreement. What makes it so different between these countries so that some will sign and others won't? dreilly1, you mentionned issues related to lawmaker's assessment in the U.S. providing reasons for not signing. What is your impression, about others in "possibly" similar situation, yet signing?
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Jun 19, 2004, 07:06 PM
 
Originally posted by angaq0k:
There is also the other questions where the American governement sees fit not to abide to these rules (ICC), yet other countries that I suppose have similar Laws (France, Canada, Great Britain) may have signed such agreement.
The ICC isn't a "rule," its a court. The law the ICC implements -- international humanitarian law -- is recognized by the US, and enforced through our courts on our citizens. Courts are not independent bodies. They are creatures of government and in free societies, require the consent of the people they judge. If an American violates the laws of war, the American should be, and is, prosecuted. But only in our courts, and with US Constitutional protections.

As has been pointed out international law requires that for a treaty to have effect, only the members of the treaty are bound by it. So the US cannot, and will not be bound by a treaty we have rejected. We'll continue to recognize the law itself because we have signed on to that. But not this foreign kangaroo court. It has no business asserting authority it hasn't been given under any rule of law.

In addition, you should realize that under the US Constitution, the supreme law over Americans is the Constitution. International law is only recognized to the extent that it is consistent with the Constitution. Some countries have decided that international law is superior to their constitutions. That's their choice to make. But America puts our own democratic Constitution ahead of undemocratic international law. And that is our choice to make.
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Jun 19, 2004, 07:25 PM
 
Originally posted by SimeyTheLimey:
The ICC isn't a "rule," its a court. The law the ICC implements -- international humanitarian law -- is recognized by the US, and enforced through our courts on our citizens. Courts are not independent bodies. They are creatures of government and in free societies, require the consent of the people they judge. If an American violates the laws of war, the American should be, and is, prosecuted. But only in our courts, and with US Constitutional protections.

As has been pointed out international law requires that for a treaty to have effect, only the members of the treaty are bound by it. So the US cannot, and will not be bound by a treaty we have rejected. We'll continue to recognize the law itself because we have signed on to that. But not this foreign kangaroo court. It has no business asserting authority it hasn't been given under any rule of law.

In addition, you should realize that under the US Constitution, the supreme law over Americans is the Constitution. International law is only recognized to the extent that it is consistent with the Constitution. Some countries have decided that international law is superior to their constitutions. That's their choice to make. But America puts our own democratic Constitution ahead of undemocratic international law. And that is our choice to make.
Just two points/questions.

1. Isn't it correct that if the country of the suspected criminal prosecute the criminal the ICC has no jurisdiction? If that is the case, why should the ICC be any kind of threat to your constitution?

2. Could you elaborate on why it is "undemocratic international law"?

Thanks

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Jun 19, 2004, 08:05 PM
 
Originally posted by Logic:
Just two points/questions.

1. Isn't it correct that if the country of the suspected criminal prosecute the criminal the ICC has no jurisdiction? If that is the case, why should the ICC be any kind of threat to your constitution?

2. Could you elaborate on why it is "undemocratic international law"?

Thanks
1. Because the ICC treaty says the prosecuters have the last word on whether they are satisfied with the country's investigation. That's not acceptable when the country involved is a democracy with several centuries of experience of self-governance. U.S. law includes democratic checks on the power of prosecutors. The ICC has no such checks. It relies only on the judgement of its own prosecutors and its own judges.

2. The US is a democracy and a republic. Our represenatives write the laws we live under, and can repeal the same. Above that is a Constitution that is amendable by the people (however rare that is). At a pinch, we could decide the scrap the whole thing and start again. International law is not democratic. it has no mechanism for the consent of the governed to be reflected in it. What international law recognizes is the input of governments. Many of those governments are not democratic. In the eyes of international law, a grotesque mockery of a government like Sudan has as much weight as a democracy like France or the UK.

In addition, even if every country on Earth were to be democratic, it still wouldn't make international law democratic from our point of view unless we chose to be bound by it. Again, this is that 18th century vintage "consent of the governed" rule. It's important, and fundamental. Law that is imposed without the consent of the governed is tyranny no matter how well intentioned it is.

Back to the ICC, though, it's flaws are at this point moot from the point of view of the US. We are not a party, thus under accepted norms of international law, it has no authority over Americans. That is the end of the matter.
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Jun 19, 2004, 08:46 PM
 
Originally posted by SimeyTheLimey:
1. Because the ICC treaty says the prosecuters have the last word on whether they are satisfied with the country's investigation. That's not acceptable when the country involved is a democracy with several centuries of experience of self-governance. U.S. law includes democratic checks on the power of prosecutors. The ICC has no such checks. It relies only on the judgement of its own prosecutors and its own judges.

2. The US is a democracy and a republic. Our represenatives write the laws we live under, and can repeal the same. Above that is a Constitution that is amendable by the people (however rare that is). At a pinch, we could decide the scrap the whole thing and start again. International law is not democratic. it has no mechanism for the consent of the governed to be reflected in it. What international law recognizes is the input of governments. Many of those governments are not democratic. In the eyes of international law, a grotesque mockery of a government like Sudan has as much weight as a democracy like France or the UK.

In addition, even if every country on Earth were to be democratic, it still wouldn't make international law democratic from our point of view unless we chose to be bound by it. Again, this is that 18th century vintage "consent of the governed" rule. It's important, and fundamental. Law that is imposed without the consent of the governed is tyranny no matter how well intentioned it is.

Back to the ICC, though, it's flaws are at this point moot from the point of view of the US. We are not a party, thus under accepted norms of international law, it has no authority over Americans. That is the end of the matter.

Ok that's fine when a American commits a crime against another American in America but what about an American that commits a crime in another country? If a American visitor commits a crime in Canada he is tried under our law by our court system. How is a world court any different when the crime is committed outside of the US, outside of American jurisdiction?
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SimeyTheLimey
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Jun 19, 2004, 09:52 PM
 
Originally posted by Athens:
Ok that's fine when a American commits a crime against another American in America but what about an American that commits a crime in another country? If a American visitor commits a crime in Canada he is tried under our law by our court system. How is a world court any different when the crime is committed outside of the US, outside of American jurisdiction?
It's not outside American jurisdiction. Americans are under the jurisdiction of the US wherever they are. And of course the ICC mainly applies to soldiers, who are under military jurisdiction wherever they are.
     
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Jun 19, 2004, 10:03 PM
 
I hope Koffi Annan�s colleagues will follow his recommendations.

What is the use of "following the laws" as Simey puts it, without respecting resolutions, and when refusing to share Intelligence information while systematically contesting ICC?

and:
In addition, even if every country on Earth were to be democratic, it still wouldn't make international law democratic from our point of view unless we chose to be bound by it.
in other words, US, the "model democracy" determines what is the right democracy and what is a wrong democracy.
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Jun 19, 2004, 10:06 PM
 
Originally posted by swrate:
in other words, US, the "model democracy" determines what is the right democracy and what is a wrong democracy.
No. We just want to govern ourselves, thank you.
     
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Jun 19, 2004, 10:14 PM
 
Originally posted by SimeyTheLimey:
It's not outside American jurisdiction. Americans are under the jurisdiction of the US wherever they are. And of course the ICC mainly applies to soldiers, who are under military jurisdiction wherever they are.
Uhh, that's wrong. For example, an American who commits a crime here on Iceland is under Icelandic jurisdiction. The U.S. doesn't have any say in his punishment and how we deal with him as long as we follow our national laws.

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Jun 19, 2004, 10:17 PM
 
Originally posted by Logic:
Uhh, that's wrong. For example, an American who commits a crime here on Iceland is under Icelandic jurisdiction. The U.S. doesn't have any say in his punishment and how we deal with him as long as we follow our national laws.
Agreed, he is totally wrong because Americans that commit crimes in Canada and get away and are found in the US are extradited back to Canada for trial and sentence.
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Jun 19, 2004, 10:23 PM
 
The only time you are under US law, no matter what you do, is if you are in the millitary. You could be on leave, smoke weed and get busted and you'll still be charged under millitary law. Usually, after your sentence is over, the millitary turns you over to the local government for them to prosecute you, if they wish.
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Athens
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Jun 19, 2004, 10:29 PM
 
Originally posted by MacGorilla:
The only time you are under US law, no matter what you do, is if you are in the millitary. You could be on leave, smoke weed and get busted and you'll still be charged under millitary law. Usually, after your sentence is over, the millitary turns you over to the local government for them to prosecute you, if they wish.
That's true, after the friendly fire incident in Afghanistan when 2 American pilots dropped bombs on Canadian Soldiers, killing 4 of them (first Canadian casualties in war in 50 years I might add) after there trial in the US Canada had the option of charging them and trying them here too, which we waved in that case. Soldiers represent countries and are under different rules.
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Jun 19, 2004, 10:58 PM
 
Originally posted by MacGorilla:
The only time you are under US law, no matter what you do, is if you are in the millitary. You could be on leave, smoke weed and get busted and you'll still be charged under millitary law. Usually, after your sentence is over, the millitary turns you over to the local government for them to prosecute you, if they wish.
Actually that is also wrong. A U.S. soldier here on Iceland stabbed a guy in downtown Reykjav�k, he was prosecuted and sentenced by Iceland and the U.S. had no say in it. It is only if they are on the base that what you mentioned applies.

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Jun 19, 2004, 11:11 PM
 
Originally posted by Logic:
Actually that is also wrong. A U.S. soldier here on Iceland stabbed a guy in downtown Reykjav�k, he was prosecuted and sentenced by Iceland and the U.S. had no say in it. It is only if they are on the base that what you mentioned applies.
No. I actually was in the millitary so I speak from knowledge. It applies whether you are on base or not. It is probable that either: iceland and the US have a treaty regarding these things, or more likely, the millitary declined to prosecute and let Iceland have at him.

And whats even worse is that the millitary would have 4 years to prosecute him if they chose after he got out of Icelandic prison.
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Jun 19, 2004, 11:18 PM
 
Originally posted by MacGorilla:
The only time you are under US law, no matter what you do, is if you are in the millitary. You could be on leave, smoke weed and get busted and you'll still be charged under millitary law. Usually, after your sentence is over, the millitary turns you over to the local government for them to prosecute you, if they wish.
No, it's not true that only the military are subject to US laws werever they are. All U.S. Citizens are subject to U.S. law wherever they are by virtue of their nationality (in fact, the same applies to nationals of other countries with respect to their countries). But for the US, in order for that to be relevant, there has to be a federal statute on point. The issues we have been talking about where the ICC would claim to have jurisdiction are all covered. There are statutes that cover such things as torture that apply to Americans by virtue of their citizenship.* You don't have to be in the US or in the military to be covered.

When a national of any country commits a crime in another country, the national's country always has the option of turning it's national over to the foreign country that has jurisdiction by virtue of territorial jurisdiction. This is quite routine between friendly countries such as between NATO allies. In certain circumstances there are also treaties that govern this process. The one that is most common is the Status of Forces Agreements that decide the standing of soldiers when they are stationed in an allied country. These vary somewhat in details from country to country since they are bilateral treaties that are individually negotiated. They also generally have a degree of discretion in them that allow the host and guest to negotiate things on a case by case basis as well as according to the strict terms of the treaty. But in any case, the bottom line is there is never a time where a US Citizen is entirely free of the jurisdiction of US courts, and certainly no time when a US soldier would be.





* There are other statutes too. U.S. Citizens are subject to US taxation even if they reside abroad, and in recent years, Congress has passed laws regarding issues like sex tourism and human trafficking that apply to Americans wherever they are.
     
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Jun 19, 2004, 11:29 PM
 
Originally posted by Logic:
Uhh, that's wrong. For example, an American who commits a crime here on Iceland is under Icelandic jurisdiction. The U.S. doesn't have any say in his punishment and how we deal with him as long as we follow our national laws.
That's a slightly different situation. The American in Iceland is subject to US law as well as Icelandic law. This is called concurrent jurisdiction. But for an ordinary crime like murder, territorial jurisdiction would generally take precedence. So Iceland would generally have the first shot at prosecution, especially if the victim were Icelandic. It could be more complicated if the victim were an American. And it could get really complicated if the victim were from a third country, especially if the victim were chosen deliberately because of nationality. This is aside from any treaties like Status of Forces Agreements.

But anyway, you are straying off-topic. The ICC doesn't have jurisdiction for common crimes like murder. Even if the murderer is an American.
     
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Jun 19, 2004, 11:31 PM
 
I seem to have misunderstood Simey a bit. He's correct in that a citizen is always under his nations jurisdiction wherever he is. I took it as he was implying that the nations where the crime happened didn't have a say in what would be done to the supposed criminal.

So, just listen to Simey on this subject

And after thinking about it, I was wrong before on the soldier and what happened. It's like Simey said a case for the Status of Forces Agreements.

Maybe I need some sleep

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Jun 19, 2004, 11:33 PM
 
Originally posted by SimeyTheLimey:
That's a slightly different situation. The American in Iceland is subject to US law as well as Icelandic law. This is called concurrent jurisdiction. But for an ordinary crime like murder, territorial jurisdiction would generally take precedence. So Iceland would generally have the first shot at prosecution, especially if the victim were Icelandic. It could be more complicated if the victim were an American. And it could get really complicated if the victim were from a third country, especially if the victim were chosen deliberately because of nationality. This is aside from any treaties like Status of Forces Agreements.

But anyway, you are straying off-topic. The ICC doesn't have jurisdiction for common crimes like murder. Even if the murderer is an American.
Yup, like I said in my above post

You know I don't agree with you on the ICC thing, and I won't bother getting into that argument at 03:30 on a Saturday night

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Jun 20, 2004, 01:06 AM
 
Originally posted by dreilly1:
SNIP
Do you propose that international treaties should trump the laws of the nations that sign them (or who don't sign them, as the case may be...)?
No, I would like to see the US Congress ratify the Rome Treaty.
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Jun 20, 2004, 01:21 AM
 
We can't even seem to ratify the Law of the Sea Treaty... what is wrong with some people in this country?
     
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Jun 20, 2004, 10:09 AM
 
Originally posted by SimeyTheLimey:
But anyway, you are straying off-topic. The ICC doesn't have jurisdiction for common crimes like murder. Even if the murderer is an American.
That is also kind of off-topic since the questions I asked (although they cover a lot). Actually, I know these items were discussed elsewhere, and in the end, Simey's an dreilly1's are good reminders, but my point is more like the following:

Interesting that the end of that resolution ends on June 30. Is there a relationship? Also, I wonder what will be the effect on the overall situation (abuse in prison, occupation of Iraq, WOT) will be if that resolution is not renewed.

What do you think?
Let me be more specific; what do you think will be the status of the relationship the U.S. will entertain with countries opposed to this resolution, considering Iraq's situation in general? Will there be more arguments on the Security Council (i.e. China making a clear statement on this resolution)? What will the consequences be at the level of international relationships?

Or will there be absolutely nothing?
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Jun 20, 2004, 10:25 AM
 
Originally posted by angaq0k:
Let me be more specific; what do you think will be the status of the relationship the U.S. will entertain with countries opposed to this resolution, considering Iraq's situation in general? Will there be more arguments on the Security Council (i.e. China making a clear statement on this resolution)? What will the consequences be at the level of international relationships?

Or will there be absolutely nothing?
I'd say absolutely nothing. The UN Security Council has already signed off on the Iraq handoff and the US troops in Iraq are not under UN control and the mission is not a peacekeeping one. The next step will likely be the status of US troops after the election of a permanent Iraqi government. That won't involve the UN because at the end of the day, Iraq belongs to Iraqis, not to the UN. Any long term decision will be addressed by a Status of Forces Agreement with the Iraqi government, rather like the ones we have discussed above that were negotiated between NATO allies, or US troops in South Korea.

The peacekeeping ICC immunity only directly addresses peacekeeping. If the US can't get the immunity, then it will pull out of peacekeeping in such places as Bosnia and Kosovo. That would suit the US just fine -- it would let us shift resources where we need them. But it would be a rather stupid move on the part of the international community because they would lose the unique force projection capability possessed by the US. That could have a negative impact on the UN's ability to deal with emerging disasters like the one building up in Sudan.
     
   
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