We're the good guys. You will agree.
December 16, 2003 7:32 PM Subscribe
Article 98. From 1995 through 2000, the U.S. government supported the establishment of an International Criminal Court. In 2001, the Bush Administration ended US participation in ICC meetings and, on 6 May 2002, officially nullified the previous signature of the Rome Statute. [more inside]
(by the way, the cool bit is the thislife.org episode segment about Nauru, which along with this, inspired me to post)
posted by stavrosthewonderchicken at 7:52 PM on December 16, 2003
posted by stavrosthewonderchicken at 7:52 PM on December 16, 2003
more stupid but potentially sinister, I think--if the ICC only works when a country will or can't prosecute (from the sinister link), who is being protected? We extradite people now, no? And we get criminals handed over to us from other countries like Ira Einhorn, no? Is this only for bigshots, and is someone maybe a little scared that the ICC will do a milosevic on them? And why is that anything that will promote goodwill and international cooperation is shit on by this administration?
And this is just weird (from the sensible link): "We believe the ICC undermines the role of the United Nations Security Council in maintaining international peace and security."
posted by amberglow at 7:53 PM on December 16, 2003
And this is just weird (from the sensible link): "We believe the ICC undermines the role of the United Nations Security Council in maintaining international peace and security."
posted by amberglow at 7:53 PM on December 16, 2003
and kudos to stav for the balanced range of links--both pro and con
poopy, is it good or bad that we don't participate in this international court? Didn't we thru NATO (an international organization) help bring Milosevic to justice in this very court?
posted by amberglow at 7:59 PM on December 16, 2003
poopy, is it good or bad that we don't participate in this international court? Didn't we thru NATO (an international organization) help bring Milosevic to justice in this very court?
posted by amberglow at 7:59 PM on December 16, 2003
IT is not really fair to say the US supported the ICC before Bush. The Clinton admin was against it but wanted to maintain a good face in the international arena, so they put it off and put it off and put it off.
The military is against it because they have the biggest guns, and that's who makes the laws, so they don't see the point. Bush is just being honest about what America wants, unlike Clinton who tried to keep it under the radar.
posted by chaz at 8:03 PM on December 16, 2003
The military is against it because they have the biggest guns, and that's who makes the laws, so they don't see the point. Bush is just being honest about what America wants, unlike Clinton who tried to keep it under the radar.
posted by chaz at 8:03 PM on December 16, 2003
but if Clinton didn't really want it, why did we use it?
posted by amberglow at 8:14 PM on December 16, 2003
posted by amberglow at 8:14 PM on December 16, 2003
Milosevic is not on trial before the International Criminal Court; Milosevic is on trial before the International Criminal Tribunal for the former Yugoslavia (ICTY), which is also housed in The Hague, but wholly separate. The ICTY was established by the UN Security Council in 1993 with a brief limited to the territory of the former nation of Yugoslavia. It may be said that the ICC is largely modeled on the ICTY (and its sister court, the International Criminal Tribunal for Rwanda; there is now another sibling court for Sierra Leone), but they are not the same entity. Neither the ICTR nor the ICTY fall under the Rome Statute, which did not come into effect until July 1, 2002 without retroactivity.
It may be self-serving, but it's understandable that a nation which is not signatory to a treaty would prefer not to be under its jurisdiction regardless. This is, after all, international law -- law among nations. It may be ideally preferable to take our lumps with the rest of the world, but it's disingenuous to suggest we would not be targeted politically. Ultimately, the decision to use heavy-handed tactics such as withdrawal of military assistance was made by Congress through law {280-138 House; 71-22 Senate}. At this time changing the policy would require changing the make-up of Congress (as well as the WH).
The text of Article 98:
Article 98
Cooperation with respect to waiver of immunity and consent to surrender
1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.
It may be that Article 98 would not be there without the stubbornness of the US negotiators, but it's part and parcel of the treaty regardless, and just as a good defense lawyer exercises all available legal maneuvers in the interest of his client, the US would be negligent in not exercising its rights to remain outside this treaty until it is satisfied of its fairness, or of our own self-interest in joining.
posted by dhartung at 9:11 PM on December 16, 2003
It may be self-serving, but it's understandable that a nation which is not signatory to a treaty would prefer not to be under its jurisdiction regardless. This is, after all, international law -- law among nations. It may be ideally preferable to take our lumps with the rest of the world, but it's disingenuous to suggest we would not be targeted politically. Ultimately, the decision to use heavy-handed tactics such as withdrawal of military assistance was made by Congress through law {280-138 House; 71-22 Senate}. At this time changing the policy would require changing the make-up of Congress (as well as the WH).
The text of Article 98:
Article 98
Cooperation with respect to waiver of immunity and consent to surrender
1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.
It may be that Article 98 would not be there without the stubbornness of the US negotiators, but it's part and parcel of the treaty regardless, and just as a good defense lawyer exercises all available legal maneuvers in the interest of his client, the US would be negligent in not exercising its rights to remain outside this treaty until it is satisfied of its fairness, or of our own self-interest in joining.
posted by dhartung at 9:11 PM on December 16, 2003
Sheesh.
You guys don't quit.
But, in fairness, at least stravos didn't just link to a single op-ed article like amberglow only does.
But, again this smacks of Bush ax-grinding.
Is this really designed to create debate?
Look,
Has any US President ever stated that we should be a signatory to the ICC?
No.
Has the US ever had popular support or legislation for it?
No.
Does the United States Constitution allow us to sign a treaty that would submit us to jurisdiction that supercedes our own legal structure?
No.
So, how is this a "Bush Administration" issue? It is clearly an uniform position... so how do you turn it into an axe-grinding proposition?
Could you not illicit a reasonable debate with just asking, should the US sign on to the ICC?
posted by Seth at 9:18 PM on December 16, 2003
You guys don't quit.
But, in fairness, at least stravos didn't just link to a single op-ed article like amberglow only does.
But, again this smacks of Bush ax-grinding.
Is this really designed to create debate?
Look,
Has any US President ever stated that we should be a signatory to the ICC?
No.
Has the US ever had popular support or legislation for it?
No.
Does the United States Constitution allow us to sign a treaty that would submit us to jurisdiction that supercedes our own legal structure?
No.
So, how is this a "Bush Administration" issue? It is clearly an uniform position... so how do you turn it into an axe-grinding proposition?
Could you not illicit a reasonable debate with just asking, should the US sign on to the ICC?
posted by Seth at 9:18 PM on December 16, 2003
And Seth's political coment to non-political comment ratio rises further. He must really hate these political threads.
posted by Space Coyote at 9:29 PM on December 16, 2003
posted by Space Coyote at 9:29 PM on December 16, 2003
Space,
I enjoy the other links much more.
The fact I enjoy them, is the reason I don't feel the need to post in them.
I guess I could just add a [this is good] on to the vast majority of the FPPs I appreciate.
But, as the saying goes, the squeaky wheel gets the grease. So I have posted a few times recently asking people to reconsider the need for a correction on MeFi ettiquette.
But seeing as how my percentage of comments are much less than many others on this thread, I wonder why my comments are so irritating or interesting to you.
posted by Seth at 9:39 PM on December 16, 2003
I enjoy the other links much more.
The fact I enjoy them, is the reason I don't feel the need to post in them.
I guess I could just add a [this is good] on to the vast majority of the FPPs I appreciate.
But, as the saying goes, the squeaky wheel gets the grease. So I have posted a few times recently asking people to reconsider the need for a correction on MeFi ettiquette.
But seeing as how my percentage of comments are much less than many others on this thread, I wonder why my comments are so irritating or interesting to you.
posted by Seth at 9:39 PM on December 16, 2003
Has any US President ever stated that we should be a signatory to the ICC?
No.
Seth is misinformed.
posted by Ptrin at 9:40 PM on December 16, 2003
No.
Seth is misinformed.
posted by Ptrin at 9:40 PM on December 16, 2003
As dhartung says, it seems to me that there's little doubt that the ICC would eventually be used to try U.S. citizens serving abroad in military or intelligence capacities. The U.S. does a lot of stuff in its military operations that are arguably prohibited by international law.
Take cluster bombs for example. Its arguably contrary to international law to use them in populated areas. The U.S. uses them all the time however as a matter of established military policy, and obviously isn't going to prosecute its soldiers or military commanders for using them. Thus, the ICC would have jurisdiction. Why wouldn't an ambitious ICC prosecutor decide that he's going to go after the U.S. officials responsible for using them?
It's not that I think we ought to be using cluster bombs in populated areas, but I don't think its a crazy to argue that subjecting U.S. soldiers to criminal liability in an international court for using them is probably not the best way to approach the problem.
posted by boltman at 9:47 PM on December 16, 2003
Take cluster bombs for example. Its arguably contrary to international law to use them in populated areas. The U.S. uses them all the time however as a matter of established military policy, and obviously isn't going to prosecute its soldiers or military commanders for using them. Thus, the ICC would have jurisdiction. Why wouldn't an ambitious ICC prosecutor decide that he's going to go after the U.S. officials responsible for using them?
It's not that I think we ought to be using cluster bombs in populated areas, but I don't think its a crazy to argue that subjecting U.S. soldiers to criminal liability in an international court for using them is probably not the best way to approach the problem.
posted by boltman at 9:47 PM on December 16, 2003
Ptrin,
In case you didn't know, Jimmy Carter is/was an EX-president when he said that. Or, in other words, his opinion means about as much as yours or mine. Freed from the constraints of our political process, he can support whatever he wants.
So if you want to call me names, at least do it when I deserve it.
Otherwise, at least make a concerted effort of trying to elevate the debate.
posted by Seth at 9:52 PM on December 16, 2003
In case you didn't know, Jimmy Carter is/was an EX-president when he said that. Or, in other words, his opinion means about as much as yours or mine. Freed from the constraints of our political process, he can support whatever he wants.
So if you want to call me names, at least do it when I deserve it.
Otherwise, at least make a concerted effort of trying to elevate the debate.
posted by Seth at 9:52 PM on December 16, 2003
Well, president Clinton gave it a "yes, but ... " endorsement of sorts, and now he totally supports it. You can look through his comments here. How you think Clinton would've acted now is strictly hypothetical, and the matter was still being debate before - now it's totally off the table, apparently.
posted by raysmj at 10:05 PM on December 16, 2003
posted by raysmj at 10:05 PM on December 16, 2003
This is a great post, stav. Thanks.
posted by homunculus at 10:06 PM on December 16, 2003
posted by homunculus at 10:06 PM on December 16, 2003
Seth-
For a voice of reason and shining example, you sure don't contribute many links.
posted by Ignatius J. Reilly at 10:13 PM on December 16, 2003
For a voice of reason and shining example, you sure don't contribute many links.
posted by Ignatius J. Reilly at 10:13 PM on December 16, 2003
Seth: I didn't call you a name. If I do call you a name, you will have deserved it :P
Really, though, I don't see what you're getting at. There's only one US President who isn't ex, and he doesn't support it -- is that your point? I don't think that's your point, but I'm not sure what your point is. What we have here is a failure to communicate :)
posted by Ptrin at 11:20 PM on December 16, 2003
Really, though, I don't see what you're getting at. There's only one US President who isn't ex, and he doesn't support it -- is that your point? I don't think that's your point, but I'm not sure what your point is. What we have here is a failure to communicate :)
posted by Ptrin at 11:20 PM on December 16, 2003
Well, sheesh, Seth-2003, you don't give up on your mistakes in logic, do you? Seems like it would be kind of embarassing after a while.
So today you label it "Bush ax-grinding", instead of "BushHate". That's so nice. Can we assume you're going for the "most labels affixed in place of debate award" (or possibly the "most white space in a single comment" award?)
Of course stavros' excellent post is "designed to create/elicit debate", unless you're one of those poor folks who needs everything couched in weasel words, patriotic correctness, and wrapped in red, white, and blue bunting....which apparently you are. As I mentioned to a few other of your ilk, you might find an internship with Al Qaeda to your liking. I hear they don't want a lot of public criticism of their leaders either.
Seth: Has the US ever had popular support or legislation for it? No
Reality:
"National polls since 1999 show that over half (from 61-66%) of respondents want the United States to participate in the ICC and ratify its statute immediately — when they know about it. The 1999 Roper and 2000 Yankelovich polls are especially useful because, although from different organizations, they used very similar paragraphs informing respondents about the Court and the reasons for opposing and supporting it before the questions were asked.
The lastest poll, by the Chicago Council on Foreign Relations/German Marshall Fund of the US in October 2002, found very similar results: that 65% of the American public would support US participation in the ICC even after the fact that some people fear political prosecution of US soldiers is mentioned. Read more. Significantly, the poll also shows that "[t]he trial of suspected terrorists in an International Criminal Court is supported by an overwhelming 83%."
The U.S. public has indicated it more strongly supports the ICC than the government does. A March 2000 poll run by the Program for International Policy Attitudes shows that 71 percent of Americans "strongly approve" of the idea that "top leaders, such as heads of state, could be arrested …for certain serious crimes and then tried by an International Criminal Court, and if judged guilty would be punished." The serious crimes mentioned include violating human rights and making war on ethnic and other groups in that leader's country.
Another question on the same poll asked if people supported the idea of an International Criminal Court "because the world needs a better way to prosecute war criminals." 66 percent of respondents did indeed support the idea of a new institution to implement and enforce international human rights law.
The Bush Administration and Congress must be made aware of public support for the ICC to ensure U.S. leadership in the quest for human rights protection.
Seth: It is clearly an uniform position
Obviously, it is clearly NOT a uniform position, as shown above....and below.
Seth: Has any US President ever stated that we should be a signatory to the ICC? No.
Reality:
Statement by the President
Signature of the International Criminal Court Treaty
The White House
Office of the Press Secretary
Camp David, Maryland
December 31, 2000
The United States is today signing the 1998 Rome Treaty on the International Criminal Court. In taking this action, we join more than 130 other countries that have signed by the December 31, 2000 deadline established in the Treaty. We do so to reaffirm our strong support for international accountability and for bringing to justice perpetrators of genocide, war crimes, and crimes against humanity. We do so as well because we wish to remain engaged in making the ICC an instrument of impartial and effective justice in the years to come.
President Bill Clinton unexpectedly authorized a U.S. representative to sign the 1998 Rome Statute establishing an International Criminal Court (ICC) on December 31, 2000--the last day countries could become parties to the treaty without ratifying it.
First Anniversary of the ICC - Messages by President Carter and Judge Garzón Real
The Hague, 1 July 2003
The Nobel Peace Prize Laureate and former US President Jimmy Carter and the Spanish Judge Baltasar Garzón Real greeted the First Anniversary of the entry into force of the Rome Statute with two messages to the Court. The Nobel Peace Prize Laureate Jimmy Carter foresees that “future generations will look back on this time as a watershed in our collective struggle for justice in the world”. “Societies and people most at risk will rely on the Court to provide accountability for the most serious crimes and to deter future atrocities. The Court’s first cases will herald a new era in global rule of law”, Former US President Carter writes .
President Carter: "The Carter Center has been a strong advocate for the creation of an International Criminal Court for almost a decade. In 1997, the Center and No Peace Without Justice brought key players to Atlanta for a conference on The United States and the Establishment of a Permanent International Criminal Court. At that time I said, An ICC will not be a panacea for all ills, but it will good for the United States and all nations. It marks the next essential step on the road to a more just, peaceful world, and the United States must lead the way. The next year, Carter Center representatives were in Rome for the conference that prepared the ICC treaty, where the Center worked in partnership with other nongovernmental organizations to build U.S. and global support for the Court. I have spoken and written personally to dozens of heads of state urging them to ratify the ICC treaty."
Seth: Does the United States Constitution allow us to sign a treaty that would submit us to jurisdiction that supercedes our own legal structure? No.
Reality:
Myth 3: The ICC rests on the premise that its Statute is a higher legal authority than all other law, including the US Constitution:
The ICC Statute is a treaty, which can only become national law in accordance with each state s domestic ratification procedure. The US Constitution gives this power to the President, with the advice and consent of two-thirds of the Senate. The US Constitution also determines the precedence among laws from different sources in the United States. It provides that itself, federal, and treaty law are the supreme Law of the Land. In accordance with US constitutional law, if the US ratified the ICC Statute, it would become part of the federal law of the US, and thus superior to state laws, but not to the Constitution. If the US does not ratify the Statute, it will not become US law and will therefore have no authority whatsoever in this country. It has been claimed that the Statute gives the ICC legal superiority over national law because it is an international court with the authority to investigate and try crimes that would otherwise be prosecuted domestically. However, this does not mean that the ICC has primacy over national courts. In fact, the ICC is complementary to national criminal jurisdiction, meaning that it cannot hear a case that is being investigated or prosecuted genuinely by an affected state. The ICC will not act except when a state is unable or does not wish to exercise its sovereignty. In fact its Statute encourages states to take the lead. The Court does not even have the authority even to initiate an investigation until the Prosecutor notifies the state of the accused, including a non-party state such as the US, which then can prevent an investigation merely by deciding in good faith that one is not necessary and so notifying the Court. Not only are the judgments of national prosecutors and judges generally binding on the ICC, some treaties between states take precedence over the ICC Statute. Thus, bilateral treaties governing the legal rights of US armed forces abroad (known as Status of Forces Agreements), extradition agreements, and international diplomatic obligations could have precedence in some situations over state party obligations to cooperate with the ICC. Similarly, both parties and non-parties have the final determination over whether national security information should be made available to the Court. Therefore, the ICC may not ask a state to surrender a suspect or for assistance with an investigation that would require that state to act inconsistently with its obligations to the US.
MYTH: The ICC will override national jurisdictions.
FACT: The U.S. can avoid prosecution of its citizens by the ICC by using its own courts to prosecute genocide, crimes against humanity and war crimes. The ICC treaty preserves the primary right and duty to states to prosecute the most serious human rights crimes and can proceed only when the state with primary jurisdiction is unable or unwilling to proceed. The ICC won't even have jurisdiction over cases involving U.S. nationals if the U.S. itself investigates, and if appropriate, prosecutes the individual responsible. In addition, U.S. nationals can only be prosecuted if they commit one of the extremely and serious crimes under the jurisdiction of the Court.
Bona fide national efforts to investigate alleged crimes and, if appropriate, to prosecute will prevent the ICC from proceeding, even if national authorities concluded that the evidence does not warrant prosecution.
MYTH: The ICC is unconstitutional.
REALITY: The Rome Treaty establishing the International Criminal Court provides almost all the same due process protections as the U.S. Constitution. Every due process protection provided for in the Constitution is guaranteed by the Rome Treaty, with the exception of a trial by jury. View a comparison chart of the Rome Treaty and the U.S. Constitution.
Those who point to the lack of jury trial as a weakness of the Court overlook the obvious impracticality of impaneling a jury to try, for example, Pol Pot, the leader of the Khmer Rouge in Cambodia that was responsible for the genocide of over a million people.
Far fewer due process protections are guaranteed to American citizens accused of crimes abroad. They are subject to trial in foreign justice systems, many of which do not provide for a jury trial or other valued due process protections. An American brought before the ICC would actually have more rights than in most other national courts.
The United States has signed a number of extradition treaties that specifically allow Americans to be tried abroad in foreign courts without jury trials.
Even in the United States, American servicemembers are not guaranteed a jury trial under the Courts-Martial system.
The United States was heavily involved in the negotiations of the Rome Treaty establishing the ICC, as well as in successive meetings. The ICC was "Made in the USA." A military lawyer from the U.S. Department of Defense led the negotiations concerning the crimes that the Court will be able to try.
* The first phase of negotiations was completed in 1998 with the adoption of the Rome Treaty, also known as the Rome Statute.
* The second phase, completed in June of 2000 at a meeting of the Preparatory Commission, achieved the adoption of text on the Elements of Crimes and the Rules of Procedure and Evidence.
* The U.S. affirmed its full acceptance of these documents by joining in the consensus on their adoption on December 31, 2000.
The Rome Treaty mirrors the U.S. Constitution. The Treaty Statute provides individuals accused of heinous crimes, as well as victims, nearly all of the protections offered by the U.S. Constitution.
So Seth, (since it is YOU who keeps bringing up this "Bushhate"/Bush ax-grinding" horseshit OVER AND OVER here in the blue), let's summarize, shall we?
From this little exercise, in which five minutes of Google search puts the lie to your misinformation, I guess it's even more apparent why you had your silly little tantrum on MetaTalk. I think I described those who on Metafilter (congratulations: from the "high signal posse" to "why do you hate America" to "BushHate", you've joined a pretty sorry lot) and in America who don't pack the gear to debate, or who find themselves unable to refute critics of their own ideologies. So many of you in that silly group seem to have the strange and craven habit of trying to stifle criticism...criticism that you cannot refute, and which apparently brings you so much agonizing personal distress.
Judging from what we've seen, Seth, your actions certainly seem to fall into that category.
dhartung: It may be self-serving, but it's understandable...
Preach it to the terrorists, 'cuz dhartung lemmee tell ya, them good ol' boys eat that kind of talk right up.
Stop and ask yourself why.
Stavros is really asking....is this what America is all about?
posted by fold_and_mutilate at 11:24 PM on December 16, 2003
So today you label it "Bush ax-grinding", instead of "BushHate". That's so nice. Can we assume you're going for the "most labels affixed in place of debate award" (or possibly the "most white space in a single comment" award?)
Of course stavros' excellent post is "designed to create/elicit debate", unless you're one of those poor folks who needs everything couched in weasel words, patriotic correctness, and wrapped in red, white, and blue bunting....which apparently you are. As I mentioned to a few other of your ilk, you might find an internship with Al Qaeda to your liking. I hear they don't want a lot of public criticism of their leaders either.
Seth: Has the US ever had popular support or legislation for it? No
Reality:
"National polls since 1999 show that over half (from 61-66%) of respondents want the United States to participate in the ICC and ratify its statute immediately — when they know about it. The 1999 Roper and 2000 Yankelovich polls are especially useful because, although from different organizations, they used very similar paragraphs informing respondents about the Court and the reasons for opposing and supporting it before the questions were asked.
The lastest poll, by the Chicago Council on Foreign Relations/German Marshall Fund of the US in October 2002, found very similar results: that 65% of the American public would support US participation in the ICC even after the fact that some people fear political prosecution of US soldiers is mentioned. Read more. Significantly, the poll also shows that "[t]he trial of suspected terrorists in an International Criminal Court is supported by an overwhelming 83%."
The U.S. public has indicated it more strongly supports the ICC than the government does. A March 2000 poll run by the Program for International Policy Attitudes shows that 71 percent of Americans "strongly approve" of the idea that "top leaders, such as heads of state, could be arrested …for certain serious crimes and then tried by an International Criminal Court, and if judged guilty would be punished." The serious crimes mentioned include violating human rights and making war on ethnic and other groups in that leader's country.
Another question on the same poll asked if people supported the idea of an International Criminal Court "because the world needs a better way to prosecute war criminals." 66 percent of respondents did indeed support the idea of a new institution to implement and enforce international human rights law.
The Bush Administration and Congress must be made aware of public support for the ICC to ensure U.S. leadership in the quest for human rights protection.
Seth: It is clearly an uniform position
Obviously, it is clearly NOT a uniform position, as shown above....and below.
Seth: Has any US President ever stated that we should be a signatory to the ICC? No.
Reality:
Statement by the President
Signature of the International Criminal Court Treaty
The White House
Office of the Press Secretary
Camp David, Maryland
December 31, 2000
The United States is today signing the 1998 Rome Treaty on the International Criminal Court. In taking this action, we join more than 130 other countries that have signed by the December 31, 2000 deadline established in the Treaty. We do so to reaffirm our strong support for international accountability and for bringing to justice perpetrators of genocide, war crimes, and crimes against humanity. We do so as well because we wish to remain engaged in making the ICC an instrument of impartial and effective justice in the years to come.
President Bill Clinton unexpectedly authorized a U.S. representative to sign the 1998 Rome Statute establishing an International Criminal Court (ICC) on December 31, 2000--the last day countries could become parties to the treaty without ratifying it.
First Anniversary of the ICC - Messages by President Carter and Judge Garzón Real
The Hague, 1 July 2003
The Nobel Peace Prize Laureate and former US President Jimmy Carter and the Spanish Judge Baltasar Garzón Real greeted the First Anniversary of the entry into force of the Rome Statute with two messages to the Court. The Nobel Peace Prize Laureate Jimmy Carter foresees that “future generations will look back on this time as a watershed in our collective struggle for justice in the world”. “Societies and people most at risk will rely on the Court to provide accountability for the most serious crimes and to deter future atrocities. The Court’s first cases will herald a new era in global rule of law”, Former US President Carter writes .
President Carter: "The Carter Center has been a strong advocate for the creation of an International Criminal Court for almost a decade. In 1997, the Center and No Peace Without Justice brought key players to Atlanta for a conference on The United States and the Establishment of a Permanent International Criminal Court. At that time I said, An ICC will not be a panacea for all ills, but it will good for the United States and all nations. It marks the next essential step on the road to a more just, peaceful world, and the United States must lead the way. The next year, Carter Center representatives were in Rome for the conference that prepared the ICC treaty, where the Center worked in partnership with other nongovernmental organizations to build U.S. and global support for the Court. I have spoken and written personally to dozens of heads of state urging them to ratify the ICC treaty."
Seth: Does the United States Constitution allow us to sign a treaty that would submit us to jurisdiction that supercedes our own legal structure? No.
Reality:
Myth 3: The ICC rests on the premise that its Statute is a higher legal authority than all other law, including the US Constitution:
The ICC Statute is a treaty, which can only become national law in accordance with each state s domestic ratification procedure. The US Constitution gives this power to the President, with the advice and consent of two-thirds of the Senate. The US Constitution also determines the precedence among laws from different sources in the United States. It provides that itself, federal, and treaty law are the supreme Law of the Land. In accordance with US constitutional law, if the US ratified the ICC Statute, it would become part of the federal law of the US, and thus superior to state laws, but not to the Constitution. If the US does not ratify the Statute, it will not become US law and will therefore have no authority whatsoever in this country. It has been claimed that the Statute gives the ICC legal superiority over national law because it is an international court with the authority to investigate and try crimes that would otherwise be prosecuted domestically. However, this does not mean that the ICC has primacy over national courts. In fact, the ICC is complementary to national criminal jurisdiction, meaning that it cannot hear a case that is being investigated or prosecuted genuinely by an affected state. The ICC will not act except when a state is unable or does not wish to exercise its sovereignty. In fact its Statute encourages states to take the lead. The Court does not even have the authority even to initiate an investigation until the Prosecutor notifies the state of the accused, including a non-party state such as the US, which then can prevent an investigation merely by deciding in good faith that one is not necessary and so notifying the Court. Not only are the judgments of national prosecutors and judges generally binding on the ICC, some treaties between states take precedence over the ICC Statute. Thus, bilateral treaties governing the legal rights of US armed forces abroad (known as Status of Forces Agreements), extradition agreements, and international diplomatic obligations could have precedence in some situations over state party obligations to cooperate with the ICC. Similarly, both parties and non-parties have the final determination over whether national security information should be made available to the Court. Therefore, the ICC may not ask a state to surrender a suspect or for assistance with an investigation that would require that state to act inconsistently with its obligations to the US.
MYTH: The ICC will override national jurisdictions.
FACT: The U.S. can avoid prosecution of its citizens by the ICC by using its own courts to prosecute genocide, crimes against humanity and war crimes. The ICC treaty preserves the primary right and duty to states to prosecute the most serious human rights crimes and can proceed only when the state with primary jurisdiction is unable or unwilling to proceed. The ICC won't even have jurisdiction over cases involving U.S. nationals if the U.S. itself investigates, and if appropriate, prosecutes the individual responsible. In addition, U.S. nationals can only be prosecuted if they commit one of the extremely and serious crimes under the jurisdiction of the Court.
Bona fide national efforts to investigate alleged crimes and, if appropriate, to prosecute will prevent the ICC from proceeding, even if national authorities concluded that the evidence does not warrant prosecution.
MYTH: The ICC is unconstitutional.
REALITY: The Rome Treaty establishing the International Criminal Court provides almost all the same due process protections as the U.S. Constitution. Every due process protection provided for in the Constitution is guaranteed by the Rome Treaty, with the exception of a trial by jury. View a comparison chart of the Rome Treaty and the U.S. Constitution.
Those who point to the lack of jury trial as a weakness of the Court overlook the obvious impracticality of impaneling a jury to try, for example, Pol Pot, the leader of the Khmer Rouge in Cambodia that was responsible for the genocide of over a million people.
Far fewer due process protections are guaranteed to American citizens accused of crimes abroad. They are subject to trial in foreign justice systems, many of which do not provide for a jury trial or other valued due process protections. An American brought before the ICC would actually have more rights than in most other national courts.
The United States has signed a number of extradition treaties that specifically allow Americans to be tried abroad in foreign courts without jury trials.
Even in the United States, American servicemembers are not guaranteed a jury trial under the Courts-Martial system.
The United States was heavily involved in the negotiations of the Rome Treaty establishing the ICC, as well as in successive meetings. The ICC was "Made in the USA." A military lawyer from the U.S. Department of Defense led the negotiations concerning the crimes that the Court will be able to try.
* The first phase of negotiations was completed in 1998 with the adoption of the Rome Treaty, also known as the Rome Statute.
* The second phase, completed in June of 2000 at a meeting of the Preparatory Commission, achieved the adoption of text on the Elements of Crimes and the Rules of Procedure and Evidence.
* The U.S. affirmed its full acceptance of these documents by joining in the consensus on their adoption on December 31, 2000.
The Rome Treaty mirrors the U.S. Constitution. The Treaty Statute provides individuals accused of heinous crimes, as well as victims, nearly all of the protections offered by the U.S. Constitution.
So Seth, (since it is YOU who keeps bringing up this "Bushhate"/Bush ax-grinding" horseshit OVER AND OVER here in the blue), let's summarize, shall we?
From this little exercise, in which five minutes of Google search puts the lie to your misinformation, I guess it's even more apparent why you had your silly little tantrum on MetaTalk. I think I described those who on Metafilter (congratulations: from the "high signal posse" to "why do you hate America" to "BushHate", you've joined a pretty sorry lot) and in America who don't pack the gear to debate, or who find themselves unable to refute critics of their own ideologies. So many of you in that silly group seem to have the strange and craven habit of trying to stifle criticism...criticism that you cannot refute, and which apparently brings you so much agonizing personal distress.
Judging from what we've seen, Seth, your actions certainly seem to fall into that category.
dhartung: It may be self-serving, but it's understandable...
Preach it to the terrorists, 'cuz dhartung lemmee tell ya, them good ol' boys eat that kind of talk right up.
Stop and ask yourself why.
Stavros is really asking....is this what America is all about?
posted by fold_and_mutilate at 11:24 PM on December 16, 2003
Gee, Dr. Flower... I guess that makes just like al Qaeda then, right?
posted by Steve_at_Linnwood at 12:31 AM on December 17, 2003
posted by Steve_at_Linnwood at 12:31 AM on December 17, 2003
Seth snarked...
"Has any US President ever stated that we should be a signatory to the ICC?
No."
Actually, yes. Clinton said...
"The United States is today signing the 1998 Rome Treaty on the International Criminal Court .... We do so to reaffirm our strong support for
international accountability and for bringing to justice perpetrators of genocide, war crimes, and crimes against humanity."
"Has the US ever had popular support or legislation for it?
No."
Wrong again. A poll was taken in March 2000 that showed that sixty-six percent of Americans supported the idea of an International Criminal Court "because the world needs a better way to prosecute war criminals." Just 29% opposed it, even when respondents were given the US argument against it, that "trumped up charges may be brought against Americans, for example, US soldiers who use force in the course of a peacekeeping operation." As for whether Congress did anything about it, that is a moot point as Bush "unsigned" the document. Clinton himself believed that ratification of the ICC should only take place after a trial period, to make sure that the implementation was fair and impartial in practice.
"Does the United States Constitution allow us to sign a treaty that would submit us to jurisdiction that supercedes our own legal structure?
No."
Uncertain at best, and a two edged sword either way. Article VI affirms that treaties are part of the "supreme law of the land," and when Congress overwhelmingly approved the 1945 U.N. Participation Act (UNPA), the unanimous House report explained that the ratification of the U.N. Charter "resulted in the vesting in the executive branch of the power and obligation to fulfill the commitments assumed by the United States thereunder."
The cease fire with Iraq, for instance, is a UN treaty. If it isn't binding on us, then it cannot provide a legal basis for an invasion of Iraq. Of course, if it is binding, then the lack of UN backing for the invasion of Iraq makes this war in violation of international law.
So, which are you saying? That the president is a criminal, or that he violated the "supreme law of the land" by invading Iraq? You can't have it both ways...
So, Seth, are you going to spout more unfounded "facts", or are you prepared to admit you were wrong on these matters?
posted by insomnia_lj at 4:39 AM on December 17, 2003
"Has any US President ever stated that we should be a signatory to the ICC?
No."
Actually, yes. Clinton said...
"The United States is today signing the 1998 Rome Treaty on the International Criminal Court .... We do so to reaffirm our strong support for
international accountability and for bringing to justice perpetrators of genocide, war crimes, and crimes against humanity."
"Has the US ever had popular support or legislation for it?
No."
Wrong again. A poll was taken in March 2000 that showed that sixty-six percent of Americans supported the idea of an International Criminal Court "because the world needs a better way to prosecute war criminals." Just 29% opposed it, even when respondents were given the US argument against it, that "trumped up charges may be brought against Americans, for example, US soldiers who use force in the course of a peacekeeping operation." As for whether Congress did anything about it, that is a moot point as Bush "unsigned" the document. Clinton himself believed that ratification of the ICC should only take place after a trial period, to make sure that the implementation was fair and impartial in practice.
"Does the United States Constitution allow us to sign a treaty that would submit us to jurisdiction that supercedes our own legal structure?
No."
Uncertain at best, and a two edged sword either way. Article VI affirms that treaties are part of the "supreme law of the land," and when Congress overwhelmingly approved the 1945 U.N. Participation Act (UNPA), the unanimous House report explained that the ratification of the U.N. Charter "resulted in the vesting in the executive branch of the power and obligation to fulfill the commitments assumed by the United States thereunder."
The cease fire with Iraq, for instance, is a UN treaty. If it isn't binding on us, then it cannot provide a legal basis for an invasion of Iraq. Of course, if it is binding, then the lack of UN backing for the invasion of Iraq makes this war in violation of international law.
So, which are you saying? That the president is a criminal, or that he violated the "supreme law of the land" by invading Iraq? You can't have it both ways...
So, Seth, are you going to spout more unfounded "facts", or are you prepared to admit you were wrong on these matters?
posted by insomnia_lj at 4:39 AM on December 17, 2003
f_n_m - 'unable to refute critics of their own ideologies'
Seems to me that this describes the treatment of the 'communist threat' by the US. All that communism represented was a competing ideology to capitalism, which could succeed or fail on it's own merits. This seemed to terrify some people who spent huge amounts of money trying to undermine communism in the form of any left leaning government anywhere in the world. The interventions across the world, both by the US and Russia caused suffering and destabilised countries globally. This is the same school of thought that proposes enforced regime change as a way to deal with non-cooperative countries.
As regards the ICC the US should take a lead in supporting this attempt at creating a level playing field. There is no peace to be had through superior fire power, it is terrorism on a global scale.
S _a_L - I think your comment reminds me of this quote from a book review I read recently:
'A murky financial network of dynastic ties shows that little separates the Bushes from the Bin Ladens - apart from a financial consultant and a merchant bank or two.'
'One of life's more useful bits of advice is "follow the money", a lesson often ignored.'
posted by asok at 4:40 AM on December 17, 2003
Seems to me that this describes the treatment of the 'communist threat' by the US. All that communism represented was a competing ideology to capitalism, which could succeed or fail on it's own merits. This seemed to terrify some people who spent huge amounts of money trying to undermine communism in the form of any left leaning government anywhere in the world. The interventions across the world, both by the US and Russia caused suffering and destabilised countries globally. This is the same school of thought that proposes enforced regime change as a way to deal with non-cooperative countries.
As regards the ICC the US should take a lead in supporting this attempt at creating a level playing field. There is no peace to be had through superior fire power, it is terrorism on a global scale.
S _a_L - I think your comment reminds me of this quote from a book review I read recently:
'A murky financial network of dynastic ties shows that little separates the Bushes from the Bin Ladens - apart from a financial consultant and a merchant bank or two.'
'One of life's more useful bits of advice is "follow the money", a lesson often ignored.'
posted by asok at 4:40 AM on December 17, 2003
ah, thanks dhartung--i didn't realize Milosevic was being tried in a separate court. I'm glad it served as a model for this, and hope we join the regular ICC someday.
And speaking of polls, Gallup just did one where most respondents want to see Saddam tried in an international court. The American public, reacting to three choices for the forthcoming trial of Hussein, is most in favor of what was described as an "international court, applying international laws and legal standards," preferred by 48% of those interviewed. About one-quarter of respondents chose each of the other two alternatives: an Iraqi court using Iraqi judges, or a U.S. military court or military tribunal.
and Seth: But, in fairness, at least stravos didn't just link to a single op-ed article like amberglow only does. fyi, out of all of my 27 posts here , only one was an single op-ed without supporting links, so go blow
posted by amberglow at 5:01 AM on December 17, 2003
And speaking of polls, Gallup just did one where most respondents want to see Saddam tried in an international court. The American public, reacting to three choices for the forthcoming trial of Hussein, is most in favor of what was described as an "international court, applying international laws and legal standards," preferred by 48% of those interviewed. About one-quarter of respondents chose each of the other two alternatives: an Iraqi court using Iraqi judges, or a U.S. military court or military tribunal.
and Seth: But, in fairness, at least stravos didn't just link to a single op-ed article like amberglow only does. fyi, out of all of my 27 posts here , only one was an single op-ed without supporting links, so go blow
posted by amberglow at 5:01 AM on December 17, 2003
Article VI affirms that treaties are part of the "supreme law of the land,"
That's not what that means. The relevant part of that clause is "anything in the Constitution or laws of any State to the contrary notwithstanding," which is to say that anything federal beats everything state-level. It certainly doesn't mean that treaties (and federal laws) are the legal equals of the Constiution; they're clearly subordinate.
posted by ROU_Xenophobe at 5:11 AM on December 17, 2003
That's not what that means. The relevant part of that clause is "anything in the Constitution or laws of any State to the contrary notwithstanding," which is to say that anything federal beats everything state-level. It certainly doesn't mean that treaties (and federal laws) are the legal equals of the Constiution; they're clearly subordinate.
posted by ROU_Xenophobe at 5:11 AM on December 17, 2003
insomnia: The trouble with your constitutional analysis (in addition to what ROU pointed out) is that the ICC treaty imposes constraints not on the president, but on the judiciary. This raises quite complicated constitutional issues. To take an extreme example, if Congress ratified a treaty that took away all federal and state court jurisdiction to hear criminal cases and bestowed it upon the UN, the treaty would clearly be unconstitutional for violating separation of powers doctrine (among other reasons)
There are also some creative arguments that could be made about the ICC statute effectively depriving US citizens of Constitutional rights, such as the right to a jury trial, the right to a grand jury, and (if I'm not mistaken) the prohibition on double jeapordy.
The ICC is a far less extreme case that a treaty giving the UN sole jurisdiction over criminal trials, and in my opinion would probably be constitutional. But its not as open and shut as you suggest.
posted by boltman at 5:32 AM on December 17, 2003
There are also some creative arguments that could be made about the ICC statute effectively depriving US citizens of Constitutional rights, such as the right to a jury trial, the right to a grand jury, and (if I'm not mistaken) the prohibition on double jeapordy.
The ICC is a far less extreme case that a treaty giving the UN sole jurisdiction over criminal trials, and in my opinion would probably be constitutional. But its not as open and shut as you suggest.
posted by boltman at 5:32 AM on December 17, 2003
Colonel, if I may, leave foldy alone he is spoiling for a fight not a discussion. To "suggest" to Dan that Al Qaida might be just the people for him clearly shows that he has lost it. See, he will not respond or call me all sort of bad things. Let him, I even agreed with one of his posts once, a good one but he wants to be some victim, then lash out like a child and post a flurry of time consuming refutations.
I know, because he is the one person "here" i do not like, i think he has no soul and a heart that was stolen long ago. I "FEEL" this because i recognize the same traits in myself at times and i hate it.
on topic, what boltman said.
posted by clavdivs at 8:25 AM on December 17, 2003
I know, because he is the one person "here" i do not like, i think he has no soul and a heart that was stolen long ago. I "FEEL" this because i recognize the same traits in myself at times and i hate it.
on topic, what boltman said.
posted by clavdivs at 8:25 AM on December 17, 2003
Gee, Dr. Flower... I guess that makes just like al Qaeda then, right?
posted by Steve_at_Linnwood at 8:31 AM GMT on December 17
yet again breaching protocol and making no sense whatsoever.
True to form, S_at_L.
posted by dash_slot- at 10:20 AM on December 17, 2003
posted by Steve_at_Linnwood at 8:31 AM GMT on December 17
yet again breaching protocol and making no sense whatsoever.
True to form, S_at_L.
posted by dash_slot- at 10:20 AM on December 17, 2003
I wasn't critiquing the argument.
I think this is a fertile area of discussion.
"Should the US ratify the ICC?"
That is a good question.
I was merely trying to make the point of noting *that* discussion could be had without making an effort to make it a partisan issue.
Because it isn't. Clinton did not ratify the treaty. There has never been a congressional resolution ratifying the ICC. There are strong Constitutional issues.
So why can't this discussion be held in the abstract instead of trying to paint the picture that the only thing that stands between the US and the ICC is Bush. That is just factually incorrect.
Other than trying to suggest that the posts be made in a more objective and discussion-inducing manner, I wasn't trying to criticize the original poster or kill the discussion.
posted by Seth at 11:36 AM on December 17, 2003
I think this is a fertile area of discussion.
"Should the US ratify the ICC?"
That is a good question.
I was merely trying to make the point of noting *that* discussion could be had without making an effort to make it a partisan issue.
Because it isn't. Clinton did not ratify the treaty. There has never been a congressional resolution ratifying the ICC. There are strong Constitutional issues.
So why can't this discussion be held in the abstract instead of trying to paint the picture that the only thing that stands between the US and the ICC is Bush. That is just factually incorrect.
Other than trying to suggest that the posts be made in a more objective and discussion-inducing manner, I wasn't trying to criticize the original poster or kill the discussion.
posted by Seth at 11:36 AM on December 17, 2003
Just a question: what authority was there for the prosecution of Adolph Eichmann? What was the provenance of the court?
posted by yesster at 12:13 PM on December 17, 2003
posted by yesster at 12:13 PM on December 17, 2003
yesster, if I recall, Eichmann was the Nazi that was living in South America and kidnapped by Irsael and put on trial for genocide, right?
The issue there was quite different than with the ICC. While international law is less than crystal clear on this point, most states assert that they have "judisdiction to enforce" their civil and criminal laws against an extremely broad range of people. Generally, a prosecutor simply has to show some sort of connection between the lawbreaker and the enforcing state (his victim was a citizen, crime was committed in the terrority, he is a citizen, etc) and the courts will assert jurisdiction to try the case.
There was little question that the Israeli courts could assert jurisdiction over Eichmann (i.e., that they could indict him for war crimes and genocide). The controversy in that case was the fact that Israel actually sent people over to Argentina (or wherever he was) and just kidnapped him. States generally don't appreciate it very much when other states start nabbing people off their streets without permission, even when those people are Nazis.
So the question in that case was whether Eichmann could use the fact that he was illegally kidnapped by Israel as a defense against the substantive charges against him. The ruling was that he could not, because it was Argentina whose rights were violated, not Eichmann.
Presumably, with the ICC on the scene, Argentina would now have to give Eichmann up for trial (assuming they ratified the ICC treaty). But of course, Eichmann, were he around today, wouldn't be living in a country that ratified the ICC anyway.
posted by boltman at 5:50 PM on December 17, 2003
The issue there was quite different than with the ICC. While international law is less than crystal clear on this point, most states assert that they have "judisdiction to enforce" their civil and criminal laws against an extremely broad range of people. Generally, a prosecutor simply has to show some sort of connection between the lawbreaker and the enforcing state (his victim was a citizen, crime was committed in the terrority, he is a citizen, etc) and the courts will assert jurisdiction to try the case.
There was little question that the Israeli courts could assert jurisdiction over Eichmann (i.e., that they could indict him for war crimes and genocide). The controversy in that case was the fact that Israel actually sent people over to Argentina (or wherever he was) and just kidnapped him. States generally don't appreciate it very much when other states start nabbing people off their streets without permission, even when those people are Nazis.
So the question in that case was whether Eichmann could use the fact that he was illegally kidnapped by Israel as a defense against the substantive charges against him. The ruling was that he could not, because it was Argentina whose rights were violated, not Eichmann.
Presumably, with the ICC on the scene, Argentina would now have to give Eichmann up for trial (assuming they ratified the ICC treaty). But of course, Eichmann, were he around today, wouldn't be living in a country that ratified the ICC anyway.
posted by boltman at 5:50 PM on December 17, 2003
clavdivs, foldy acts all high-minded in MeTa, but then resorts to base personal attacks, spoiling whatever intended effect of a 90% on-topic, informative post. He seems to have given up on using Nazis as his allegory of choice; now he seeks to derail and inflame by comparing to al Qaeda. I find it unworthy of direct response, let alone respect.
posted by dhartung at 11:00 PM on December 17, 2003
posted by dhartung at 11:00 PM on December 17, 2003
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posted by stavrosthewonderchicken at 7:34 PM on December 16, 2003