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The International Criminal Court
March 11, 2003 7:00 AM   Subscribe

That other great bone of transatlantic contention, the International Criminal Court, was finally born today. Dead at birth, or a source of hope for victims??
posted by Doozer (36 comments total) 1 user marked this as a favorite

 
This is superb. Anyone who boycotts this is deeply wrong. These are good people trying to prevent the worst atrocities in the world.
posted by Pretty_Generic at 7:09 AM on March 11, 2003


Is this the thing Bush was trying to stop for so long?

Has he given in, or did we decide to ignore him?
posted by twine42 at 7:15 AM on March 11, 2003


latter
posted by Pretty_Generic at 7:18 AM on March 11, 2003


Its pretty impotent. Sure it means to do wonderful things and prevent atrocities, but under what law? The Nuremburg courts worked because Germany was crushed and had surrendered unconditionally and had no way of arguing against the will of the allies. The new international tribunal has no such luxury, what are they going to come and arrest Kissinger? Like Andrew Jackson's statement about the Supreme Court, "The Supreme Court has spoken, now let them enforce it" Who's going to enforce the laws, the UN? They don't even enforce the resolutions they've written, unless its convenient.
posted by Pollomacho at 7:20 AM on March 11, 2003


Oh, and Twine the Court has opened without US support.
posted by Pollomacho at 7:21 AM on March 11, 2003


the ICC can only prosecute if the local law enforcers neglect to do this, a rule that was incorporated to meet the US halfway. Shame it's still not supported by the US.

Its pretty impotent. Sure it means to do wonderful things and prevent atrocities, but under what law?

The tribunals of Rwanda and former Yugoslavia were ad hoc, this is a way to formalize it. Under what law were the previous tribunals ?
posted by swordfishtrombones at 7:30 AM on March 11, 2003


An international court can only go so far if we're willing to let Saddam off the hook for his atrocities in order to avoid war. Same if we don't start using human rights abuses as a justification for police-style action, and attempt to arrest the bastard. And, again, if we don't pursue Lil' Kim over abuses in North Korea.

A court is great, but you still need a legislative branch of sorts to put up international criminal laws, and an executive branch type group who can bring people to the court or exact punishment in the event of a found abuse.

Got to say, though, good start.
posted by askheaves at 7:30 AM on March 11, 2003


I read through the links, but couldn't find the following:

1.) What crimes will the court prosecute for? It mentions genocide, but are there any others?

2.) Are there double-jeapordy rules (ie. can't be tried multiple times if already found innocent).

3.) What is the process for adding new laws for the court to prosecute under?

4.) If new laws can be added, what is the process for arguing that an existing ICC law is un-just? (ie. In the U.S. a law can be voided if it is found to violate the constitution)

5.) And, as mentioned above, how are the judgements enforced?
posted by jsonic at 7:57 AM on March 11, 2003


jsonic: all those answers and more at the Rome Statute of the ICC
posted by papalotl at 8:04 AM on March 11, 2003


If the war in Iraq goes ahead without UN security council approval, then the war is in violation of international law, and Bush and Blair should be the first people prosecuted by the ICC.

On the other hand, back in the real world.... *sigh*
posted by salmacis at 8:15 AM on March 11, 2003


Under what law were the previous tribunals ?

Under the law of "to the victor go the spoils" Those were defeated people either militarily or politically. How are we to expect a standing leader to be taken out of power and tried for crimes against humanity without a serious military conflict or a political coup and without an international governing body with its own power is just silly. The courts are a step in the right direction of course, but they have NO power to enforce their will on a standing nation. Once you get beyond that jsonic brings up many good points, where are the checks and balances. The world already has enough trouble with the US exerting its muscle on weaker nations, just imagine some global governmental body throwing its weight around in a way that you didn't agree with.
posted by Pollomacho at 8:18 AM on March 11, 2003


This is superb. Anyone who boycotts this is deeply wrong. These are good people trying to prevent the worst atrocities in the world.

It's a nice idea, and its stated purpose is to have a place to try the next Milosevic or similar...

But I've heard people (mostly Europeans but not always) here, on usenet, and elsewhere on the net argue that any (American) pilot whose bomb goes stray should be dragged before it for war crimes, and even that providing medical care to prisoners is a war crime and so presumptively prosecutable. A prosecutor from Europe would have every reason to pursue such a case (to gain support back home), and precious little reason not to do so. Until there's some serious protection against frivolous prosecution, it's regrettable but not-crazy for the US to want no part in it.

I'm also uncomfortable with the sad fact that the best defense against a prosecution by this court is to win your (civil) war.
posted by ROU_Xenophobe at 8:34 AM on March 11, 2003


Thanks for the link papalotl.

To answer my own questions:

1.) The following crimes are in the ICC jurisdiction: The crime of genocide; Crimes against humanity; War crimes; The crime of aggression.

The specific definition of what these terms mean is in the Rome document, but you get the idea.

2.) Aquital or Conviction can be appealed. Acquital can only be appealed due to some type of error in the trial. Conviction appeal is less restricted.

3.) As far as I can tell, a new crime for the ICC to prosecute can only be added by an ammendment to the ICC charter. This requires a 2/3rds vote of the Assembly of States Parties. I think this is the members of the U.N.

4.) I think the ammendment process above is the method for arguing that a new ICC law is unjust, if necesssary. The Rome document also defines how challenges to whether a case should be tried by the ICC or not can be accomplished.

5.) Enforcement apparently requires cooperation of the nations involved. When you think about it, this isn't to different than the law we all live under. If someone doesn't want to cooperate with the judicial system, they can refuse as long as they have the physical power to do so. On an individual basis, the police have greater power. On an international basis the situation is different.
posted by jsonic at 8:34 AM on March 11, 2003


But I've heard people (mostly Europeans but not always) here, on usenet, and elsewhere on the net argue that any (American) pilot whose bomb goes stray should be dragged before it for war crimes

My quick reading of the Rome document makes me think this wouldn't happen. Many of the crimes the ICC would prosecute have a modifier that says the crime has to be an intentional systematic or broad attack against a group of persons. If you could prove the pilot knew his bombs would drop on innocent people and did it on purpose, then a case might be possible. The Rome document mentions many times that intent is an important factor.

You are correct in saying that prosecutors can have ulterior motives for bringing cases before the ICC. The Rome document does describe how to challenge whether a potential case should be tried before the ICC though.
posted by jsonic at 8:42 AM on March 11, 2003


Anybody else find it funny/terrifying that the US is going out of its way to preemptively defend itself from accusations of genocide, crimes against humanity and war crimes?

If some guy on your block obtained immunity from charges of child rape, would you let your kids play in his yard?
posted by signal at 8:49 AM on March 11, 2003


If the war in Iraq goes ahead without UN security council approval, then the war is in violation of international law, and Bush and Blair should be the first people prosecuted by the ICC.

I wonder what would happen if the rest of the world decided to exercise sanctions against us. Assuming it could be made into a complete embargo (which, granted, is hard to imagine), who'd fold first? The US has a great deal of grain to export, but besides that, we operate on a very heavy trade defecit.
posted by condour75 at 9:03 AM on March 11, 2003


any (American) pilot whose bomb goes stray should be dragged before it for war crimes

Article 8, Paragraph 2, Section a, Subsection i, lists Willful killing, line iii states Willfully causing great suffering, or serious injury to body or health. Section b, Subsection i states Intentionally directing attacks against the civilian population as such against individual civilians not taking direct pert in hostilities. Subsection iii: Intentionally directing attacks against civilian objects...

As long as the pilot's bomb actually went astray and wasn't on the the civilian target he intended there's no prosecutor that is going to take the case, besides, if he were court marshalled by the Air Force for intentionally bombing civilians (as I would hope) then the pilot would be immune from ICC proceedings anyway.
posted by Pollomacho at 9:11 AM on March 11, 2003


Anybody else find it funny/terrifying that the US is going out of its way to preemptively defend itself from accusations of genocide, crimes against humanity and war crimes?

I think you are reading too much in there. The US has laws within its own Judicial and Military Judicial system to prosecute crimes against humanity, genocide and war crimes and the sentences are a hell of a lot tougher (think life in solitary in Leavenworth or execution as opposed to time in a Dutch prison)
posted by Pollomacho at 9:25 AM on March 11, 2003


SDB does a pretty thorough breakdown of many of the ICC's rules & regs here.
posted by techgnollogic at 9:34 AM on March 11, 2003


For those of you who have raised the specific issue of US vulnerability under the ICC, this is an interesting and very accessible read (not that these clowns would agree, but they seem to represent a fairly popular/populist US viewpoint nonetheless).

Just a thought - if the rationale behind the stated reasons for US rejection of the ICC is taken to it's logical conclusion, could it be argued that the domestic legislative system should be disbanded as it potentially provides a platform to make unfounded and vexatious allegations against individual citizens? Somehow, I don't think such an argument would be accepted at the level of national law. It's probably not surprising that so many find the line being spun by the US Government on the ICC pretty disingenuous and contemptable in this context.
posted by Doozer at 9:50 AM on March 11, 2003


Doozer, national law in democratic countries is, in theory, subject to the control and oversight of the people. The laws of the ICC get voted on by a "legislature" composed of the representatives of democratic and autocratic states alike.
posted by Wood at 10:20 AM on March 11, 2003


My quick reading of the Rome document makes me think this wouldn't happen. Many of the crimes the ICC would prosecute have a modifier that says the crime has to be an intentional systematic or broad attack against a group of persons.

That might mean that the pilot would be unlikely to be convicted, but (s)he'd still face a trial, which I'm told is not much fun.

As long as the pilot's bomb actually went astray and wasn't on the the civilian target he intended there's no prosecutor that is going to take the case,

Why not? Because prosecutors are such nice people? What do they actually have to lose by doing so? Being kicked off the case isn't much of a punishment as far as I care; I'd want to see a guaranteed and semi-automatic means for a cleared defendant to countersue for vexatious prosecution with the prosecutor's own property and freedom on the block. (I don't trust prosecutors any farther than I can comforably spit them, so I'd like that for American DA's too)

I don't know that I agree with the claim that it would happen -- if I were God-Emperor, I'd go along with it until such a thing happened and then back out with a snide "Told ya so!" -- but I don't think the concern is so self-evidently stupid that it can't be taken seriously.
posted by ROU_Xenophobe at 10:27 AM on March 11, 2003


Don't be so daft, ROU_Xenophobe. Look at the kinds of people who have already been tried in The Hague. The ICC is designed to formulate that procedure. The trial of the Libyans accused of the Lockerbie atrocity took an age to start, mainly because the UN and Libya were haggling over the details of the trial; where it would take place, whose laws it would be conducted over, etc. These things are now set in stone.

As much as I dislike current American policy, it has to be said that the American military is one of the "good guys", as a whole. An accusation against an American soldier is a non-starter because America has a good record in prosecuting it's own cases where they are necessary. If such an accusation was made, and there was any merit at all to the accusation, the American government would have to justify why it didn't take action against that individual. If it couldn't justify it, then perhaps, these are the sorts of cases the ICC is designed for.

To suggest that the ICC will be abused by countries with an axe to grind against America is paranoid bollocks.
posted by salmacis at 11:26 AM on March 11, 2003


Why not? Because prosecutors are such nice people?

Why not, how about some of the many reasons I mentioned before directly taken from the Statute:

Article 8, Paragraph 2, Section a, Subsection i, lists Willful killing, Subsection iii states Willfully causing great suffering, or serious injury to body or health. Section b, Subsection i states Intentionally directing attacks against the civilian population as such against individual civilians not taking direct pert in hostilities. Subsection ii: Intentionally directing attacks against civilian objects...

If the Air Force found that a pilot had disobeyed orders and dropped bombs on a civilian target intentionally, then he/she would be subject to a US military court marshal, and according to Articles 17 and 20 would be thusly inadmissible to the ICC. If the pilot had been obeying orders to willfully and intentionally drop ordinance on civilian targets that are not military objectives (military objectives are defined in international law, could be a ball bearings plant, but not a hospital or school unless of course the hospital or school is housing troops) and was not prosecuted, then sure, the prosecution could try the pilot as well as those who gave the orders. I'm sure somebody would love to test the law and try and get some pilot on that as a show case, but as long as the guy has a good case he should be fine, if there isn't a good case, then we have to wonder if maybe its not justified in its investigation, no?

I'm not saying that there aren't plenty of reasons to dislike these courts, I just don't think that particular reason is one of them.
posted by Pollomacho at 11:29 AM on March 11, 2003


Don't be so daft, ROU_Xenophobe.

I'm just looking at concrete incentives people have. I've heard enough people baying for blood (or imprisonment) that there seems to be a constituency to satisfy by prosecuting people for semi-bullshit charges. That is, there is something to gain from prosecuting someone who fairly clearly "just" had a bomb go stray, or who shaved a jihadi as part of delousing -- you make people back home happier with the current government.

What is there to lose by doing so? What does the prosecutor or the prosecutor's country have to actually lose by doing this prosecution?

If there's nothing, or not much, I'll trust people to follow their interests and prosecute -- something to gain, nothing to lose, why not do it?

Again, I don't think this is likely. If I were God-Emperor of America, I'd sign on with objections and back out if it happened. I'd give it the benefit of the doubt, but I don't think the concerns are crazy.

If such an accusation was made, and there was any merit at all to the accusation, the American government would have to justify why it didn't take action

Wouldn't there always be merit? Wouldn't the mere act of prosecuting and accusing create merit?
posted by ROU_Xenophobe at 12:29 PM on March 11, 2003


Wouldn't the mere act of prosecuting and accusing create merit?

From Article 66 Presumption of Innocence:

1. Everyone shall be presumed innocent until proven guilty before the Court in accordance with the applicable law.

2. The onus is on the Prosecutor to prove the guilt of the accused.

3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond resonable doubt.
posted by Pollomacho at 12:42 PM on March 11, 2003


Oh, and according to Articles 45, 46 & 47 a Prosecutor who violates their oath of conscientious and impartial "exercise of his or her functions" (and I don't think they mean bodily functions here) is not only subject to removal from the court, but disciplinary action by the court. So if someone goes on a politically motivated persecution, they can wind up in jail themselves.

Also, further to the above post, before a case is to be heard there is a Pre-trial chamber hearing in which the prosecutor and victims make the case for a case, if they are refused then they can look for more evidence but they don't go to trial.

Now, I tend to think the opposite problem exists, what if say a, just a random nationality, Swedish Prosecutor or judge refuses to prosecute actions by the Swedish government or military, who's to force them to?
posted by Pollomacho at 12:54 PM on March 11, 2003


I'm somewhat torn about the ICC because while I think developing human rights norms is generally a good thing, I'm also very troubled by the fact that any American citizens tried before the ICC would lose several of their constitutional rights. The fact that acquitals can be appealed by the prosecutor seems particularly eggregious and the lack of a jury trial (and, to a lesser extent, a grand jury) are also somewhat problematic for me. Signing on to the ICC is essentially signing away these rights for any U.S. citizens later brought before the court (assuming they otherwis would have otherwise been tried in the U.S.).

Besides, what's to stop the U.S. from sending its troublesome citizens to places like Pakistan or Eygyt for a trial instead of the ICC? Seems to me that if it's constitutional to do the later than it is also constitutional to do the former.

I would support the ICC however if it allowed U.S. citizens to appeal to a U.S. circuit court or the Supreme Court upon conviction. The U.S. courts could stil review the conviction under the ICC's substantive law, but would also apply U.S. constitutional principles in judging whether the conviction was proper. This way, you ensure that the defendant's constitutional rights are respected while also avoiding the problem of biased U.S. prosecutors who may not be willing to pursue a conviction against one of their own.

How's that for meaningful compromise?
posted by boltman at 9:37 PM on March 11, 2003


I would support the ICC however if it allowed U.S. citizens to appeal to a U.S. circuit court or the Supreme Court upon conviction.

unfortunately, this would mean that anyone could take a conviction under one legal system, the ICC, and then appeal it under a host of other systems (US law, various Sharia variants, Martian Law...). Something tells me that someone who isn't going to be prosecuted under his own country's legal system, and therefore is going to be prosecuted under the ICC, shouldn't be allowed to appeal an ICC decision to the system that would not prosecute in the first place...
posted by badzen at 11:35 PM on March 11, 2003


Yeah, I mean, the whole point of the thing is to make war time atrocities punishable. If we go into the idea of the court with this basic idea, I don't see how it can be a bad thing. Certainly, we'll have a lot of work to do, defining atrocities and whatnot, but in the end it is a step that enourages nations to engage in a more civil form of warfare, giving them an incentive to cut back on methods that result in large-scale civilian death. In this light, it only makes sense that the US would oppose it, what with (indirectly) threatening to drop 2,000lb bombs on a civilian-laden Baghdad. And harboring war criminals like Henry Kissinger.

There seem to be two conflicting views of the way the world should be running... One involves massive US unilateralism, based on their superpower status, and the other involves instituting a semi-democratic set of world organizations to govern the sticky points in the relations between nations. The US view is hopelessly childish to my mind, what with being so very self-righteous and eschewing real discourse. The alternative may have sticky points, but I think that it will be better for people around the world in the long run. I mean, hell, if anyone knows about good ideas with sticky points, it should be US.
posted by kaibutsu at 3:41 AM on March 12, 2003


American citizens tried before the ICC would lose several of their constitutional rights.

Which ones? Habeas Corpus? No, that's covered (Article 55). Right to appeal? No, they can appeal, the prosecution cannot only in cases of procedural error, error of fact, error of law or should the a factor which affects the fairness or reliability of the proceedings or decision (Article 81). Double indemnity? Nope, that's covered (Article 17). Why would you need to appeal to the US courts anyway, if you've committed any of these crimes you SHOULD be punished under US law anyway, which means the ICC will not try you. They can't even investigate you if there is a good faith investigation going on in your country! Self Incrimination? Nope (Article 55) Legal Counsel present during questioning? Yep, you can keep that (Article 55). Remain silent? Yep (55) Informed of all charges prior to questioning? Yep (55) Presumption of innocence? Yep (66) Time to prepare adequate defense? Yeah (67) Speedy trial? Yeah (67) Right to examine (or have examined) all witnesses and evidence? Keep it (67) To be present at all proceedings? (63 & 67) Appointed attorney should you need one? (55 & 67)

Plus there's the things above and beyond the US Constitution like full Prosecutorial disclosure of ALL evidence to the Defense prior to trial (some states have added this, but not all) The right to make unsworn statements during the trial proceedings in your defense. The right to have ALL proceedings, including the arrest, questioning, pre-trial and trial conducted in your own language or for adequate translators to be provided. And, here's an interesting one, the right for witnesses and the accused not to be compelled to divulge state secrets nor national security information.

the whole point of the thing is to make war time atrocities punishable.

That is one of the four purposes, genocide, crimes against humanity, warcrimes and crimes of aggression (these are yet to be defined). Genocide and crimes against humanity can take place in peace time as well. All but aggression are redefined in the first sections of the Statute.

we'll have a lot of work to do, defining atrocities and whatnot

The atrocities were defined back in 1949, but if that's not enough, as I said, the Statute spells them out for you.

giving them an incentive to cut back on methods that result in large-scale civilian death.

It gives them incentive not to directly attack civilians, that doesn't mean industry and transportation are immune or that if an anti-aircraft battery sits on an apartment building's roof that the building isn't toast.

threatening to drop 2,000lb bombs on a civilian-laden Baghdad.

That was a 21,000 lb. bomb, you left out 19,000 lbs. of explosives (oh and by the way that's 21,000 lbs. of the new explosives, they are more explosive)

I too am torn, the ICC seems like a good thing, but I just don't see how they can do their job. Lets take Saddam as an example and I understand that its an argumentative subject, but, let's just use him. We can all agree that he's a bad guy and should probably sit before the ICC himself, no? The Security Council can't get together on whether to get the guy or not, so if the US doesn't go unilateral on his ass is he going to sit before the ICC, no fucking way. Does the ICC have any way to bring standing leaders to justice? Don't make me laugh. Would Kissinger EVER go on trial, no way in hell, MAYBE if Nader were President and he suspended reality. Is he guilty of crimes Prosecutable by the ICC, maybe, we'll certainly never know and anyway any witness could claim national security privileges and there goes any case. The court has WAY too many holes for me to be fully confident with it, but it is a good step in the right direction, just like Nuremburg.
posted by Pollomacho at 7:24 AM on March 12, 2003


Polomacho,
There is a double jeapordy problem because the prosecutor can appeal an acquital by the trial court. That's not allowed in U.S. courts. There's also no right to a jury of your peers at trial or a grand jury to determine charges. Both are rights that we all have under the Constitution. Both would also be a valuable check on potential inappropriate political biases of ICC judges and prosecutors.

Finally, our constiutional rights are determined largely by volumes and volumes of Supreme Court precedent, none of which would be available to U.S. citizens tried in the ICC.

I wouldn't shed a tear for Kissenger if he were tried at some sort of international tribunal. But I don't believe the U.N. is capable of running a court fairly and impartially. I also think that our government ought to do everything in its power to protect our rights, including staying out of treaties that could potentially subject U.S. citizens to the jurisdiction of a foriegn court
posted by boltman at 8:34 AM on March 12, 2003


True, the prosecution CAN appeal an acquittal which is something they can't do in the US, however ONLY in cases of procedural error, error of fact, error of law or should the a factor which affects the fairness or reliability of the proceedings or decision not because the decision was unpopular or was not what the Prosecution wanted. Sure that leaves a wide door, and I won't argue that the Statute isn't fatally flawed, but it isn't open for appeal because the Prosecutor felt ripped off or some country is pissed. Besides that, our Constitutional rights would be violated only if we ever got to the ICC, but hopefully the US would convict you of your crimes before it ever got to that anyway.

our constitutional rights are determined largely by volumes and volumes of Supreme Court precedent

Our rights are determined by the Constitution and the law which have precedence over precedent. The Rights are pretty well spelled out in the statute, there isn't much room for interpretation of lines like "The accused shall be entitled... not to be compelled to testify or to confess guilt and remain silent, without such silence being a consideration in determination of guilt or innocence." (Article 67) or "Everyone shall be presumed innocent until proven guilty before the Court in accordance with the applicable law." (Article 66)

I also think that our government ought to do everything in its power to protect our rights, including staying out of treaties that could potentially subject U.S. citizens to the jurisdiction of a foreign court

If you leave the US you are subject to foreign courts and if you stay and commit atrocities here you are probably going to have some problems with the fed. and state courts so you wouldn't be subject to ICC rulings anyway.
posted by Pollomacho at 9:06 AM on March 12, 2003


Our rights are determined by the Constitution and the law which have precedence over precedent.

But, legally speaking, the Constitution has no independent meaning outside of how the Supreme Court (and the lower courts) interpret it. Miranda rights or abortion rights aren't written in the text of the Constitution, but they're as much of a constituional right as the right to a jury or the right to be free of cruel and unusual punishment. Those precedents really are the Constitution, for all intents and purposes.
posted by boltman at 11:28 AM on March 12, 2003


as for your last point, you're certainly correct that US citizens abroad would generally be subject to the jurisdiction of the foriegn country they are in. But what about a case involving, say, U.S. soldiers serving as U.N. peacekeepers or in some other function where they are abroad but acting at the behest of the U.S. government?
posted by boltman at 11:32 AM on March 12, 2003


what about a case involving, say, U.S. soldiers serving as U.N. peacekeepers or in some other function where they are abroad but acting at the behest of the U.S. government?

They would be under the jurisdiction of US military courts. If I were a soldier criminal, I'd much rather be under the ICC jurisdiction than face a court martial and end up in Leavenworth.
posted by Pollomacho at 1:13 PM on March 12, 2003


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