Talk:International Criminal Court

This strikes me as NPOV....

Is the Statute legal?

It has expressed opposition to even the other states involved going ahead with it, claiming that the Statute is illegal under international law. The United States' objection is that the Statute provides the court with jurisdiction over nationals of non-State parties for crimes committed on the territory of a State Party. The United States claims this amounts to the treaty binding non-State parties, and under international law only parties to a treaty can be bound by it. From a legal perspective however, the United States' argument has little merit. It is universally recognized under international law that States have the right to try foreign nationals for crimes committed on their territory; and if a State has the right to exercise jurisdiction in this case, that state can request an international organization to exercise that jurisdiction on its behalf (by means of the treaty establishing that organization. Remember that traditionally in international law, international organizations are considered to be instruments through which their member states act.) Providing the ICC with jursdiction over US nationals in this case in no way interferes with US soverignity.

In fact, the ICC could legally have been provided with jurisdiction over non-State party nationals even for offences not committed on the territory of a state party. Most of the crimes the ICC has jurisdiction over are recognized under international law as crimes of universal jurisdiction, meaning that any state may try individuals who commit these crimes, even if they are committed by foreign nationals on foreign territory. The State parties could therefore have legally authorised the ICC to exercise this universal jurisdiction on their behalf. The only reason the Statute does not provide for universal jurisdiction for the ICC is political, not legal.

I assume you mean it strikes you as *not* NPOV. How's this sound (additions marked in bold, removals in strikeout)?:

China rejects the ICC on the grounds that it considers it an attempt to interfere with the domestic affairs of soverign states.

Is the Statute legal?

China has expressed opposition to even the other states involved going ahead with it, claiming that the Statute is illegal under international law as an attempt to interfere with the domestic affairs of soverign states. The United States' objection is that the Statute provides the court with jurisdiction over nationals of non-State parties for crimes committed on the territory of a State Party. The United States claims this amounts to the treaty binding non-State parties, and under international law only parties to a treaty can be bound by it. From a legal perspective however, the United States' argument has little merit. It is universally recognized Others argue that under international law that s states have the right to try foreign nationals for crimes committed on their territory; and if a S state has the right to exercise jurisdiction in this case, that state can request an international organization to exercise that jurisdiction on its behalf (by means of the treaty establishing that organization. Remember that; traditionally in international law, international organizations are considered to be instruments through which their member states act.) Thus, providing the ICC with jursdiction over US nationals in this case in no way would not interferes with US soverignity.

In fact, the ICC could legally have been provided with jurisdiction over non-State party nationals even for offences not committed on the territory of a state party. Additionally, most of the crimes the ICC has jurisdiction over are recognized under international law as crimes of universal jurisdiction, meaning that any state may try individuals who commit these crimes, even if they are committed by foreign nationals on foreign territory. The State parties could therefore have legally authorised the ICC to exercise this universal jurisdiction on their behalf. The only reason the Statute does not provide for universal jurisdiction for the ICC is political, not legal.

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Much better. You might want to attribute that viewpoint that the ICC doesn't infringe on national sovereignty. I believe that the ICRC takes that position.

I have a quibble is that the last paragraph seems to imply that "universal jurisdiction" is something that is a widely accepted idea in international law when in fact there is some controversy as to whether or not it is a principle of interational law.

Also one might want to reference Kissinger's objections to the ICC.

   http://www.globalpolicy.org/intljustice/general/2001/07kiss.htm

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The following isn't true:

However, the concept of universal jurisdiction is a new and controversial concept in international law, and there is no consensus among international legal scholars that it exists.

Universal jurisdiction is a very old idea (going back at least to the 19th century), and is universally acknowledged to exist. The controversy is not about whether universal jurisdiction exists, but about what crimes universal jurisdiction exists for. Traditionally universal jurisdiction was recognized mainly for the crime of piracy on the high seas -- universal jurisdiction for piracy has been near universally accepted for over a century. The controversy is over the extension of universal jurisdiction to new, more politicially controversial crimes, such as war crimes, crimes against humanity, genocide, etc. -- SJK

O.K. rewrote last sentence to take that into account. You should look at the entry on universal jurisdiction.

In my opinion the US wants "William Calley" type justice when it comes to its citizens... to give any US serviceman or politician a "fair trial" in a US court, if it even comes to that, and then finding them "not guilty" regardless of the evidence or, perhaps, "punishing" them as severely as Calley was over My Lai --Paul Melville Austin

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The page should mention the USA's attitude towards the ICC. First to manipulate it, and if the ICC ever gets any independence then undermine and ignore it. That's what the US did towards the International Court of Justice when Nicaragua won its suit against the USA for terrorist acts. The fact that the US will never allow its servicemen and politicians to be tried by the court needs to be mentioned. At the moment, the US is still in the manipulation phase since Ann Arbour (?) rejected the case brought against the USA for the massive destruction in Bosnia. -- Ark

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And another thing - how can you ask others to adhere to a set of standards which you won't submit to yourself? that is the height of hypocrisy and the true shame of the USA's position. -- Paul Melville Austin

On the contrary, the gist of the US opposition to the ICC is that countries which oppose freedom and human rights will monopolize it (as they have the UN Security Council) and use it as a bully pulpit to condemn democracies like the US and Israel. The height of hypocrisy, as you said is to ask others to adhere to a set of standards you won't submith yourself to, and that is what the enemies of the US have done. They condemn the US for "human rights" violations but vote down any condemnation of their own human rights violations.

Anyone who is authentically interested in human rights will criticize violators in proportion to how much they violate. The murder of one million people (as in Cambodia) is 100 times as bad as the murder of 10,000 people, etc. Please don't be hypocritical at affixing the label hypocrite on countries. Ed Poor, Thursday, June 20, 2002

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Some questions:

• What other countries besides the US have sought immunity from ICC prosecution for its military (or other citizens)? Which of these countries actually got such immunity?
• How far back in history can a case be, and still be tried by the ICC? mid-19th century, or what?

The reason I ask these questions is that I have a suspicion that certain parties are planning to use the ICC to attack the US, Israel and their friends while ensuring that acts of countries hostile to the US and/or Israel are never targets of the ICC.

Is there any grounds for this suspicion? Or am I just being fearful over nothing (wouldn't be the first time)? --Ed Poor 17:17 Sep 6, 2002 (UCT)

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the ICC can only hear cases about events that happened after July 1, 2002 - so William Calley is safe to use an example.

I'm not worried about Calley. He and Captain Medina can get life imprisonment, and it would hardly begin to address the scope of US war crimes in Vietnam. Not to mention Viet Cong war crimes, Cambodian genocide, and other evils.

I just want a source I can quote, saying how far back in time ICC prosecutions can go, once they get around to convening some time next year. --Ed Poor

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Someone described the court as being "a court of universal jurisdiction" -- this is not true. The Court does not have universal jurisdiction -- it only has jurisdiction on the basis of nationality and territory, delegated to it by its member states or other states who enter into agreements of the court.

Also, Ed, you changed the wording "the Statute provides" to "the Statute asserts" or "the Statute claims". I don't think that is good terminology to be using. It is normal legal terminology in English to describe laws as providing for things, even if you don't agree with the laws validity. Especially since, laws are not factual claims, but rather performative statements--hence a law does not assert or claim anything, but rather attempts (successfully or not) to cause things to be the case.

Also, the ICC's jurisdiction is limited to crimes committed on or after 1 July 2002 -- the Rome Statute limits its jurisdiction to crimes committed after its entry into force. If you want a quote, a quote from the Statute itself would do (text is available at http://www.un.org/law/icc). -- SJK

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Removed the following paragraph:

The Statute specifically rejects the claim that citizens of non-ratifying countries are not subject to the court's jurisdiction.

As I said above, the Statute doesn't make or reject any claims -- legal documents are performatives, not statements. Maybe more reasonable wording would be "The Statute provides that citizens of non-ratifying countries are subject to the court's jurisdiction". But why bother with this paragraph anyway -- it already says it provides for jurisdiction over crimes committed on the territory of a state party--maybe we should just add "(including crimes committed on that territory by nationals of a non-state party)". -- SJK

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Following quote is about ICC and jurisdiction:

In 1998, the world's governments gathered in Rome to adopt a treaty for an International Criminal Court (ICC) with potentially global jurisdiction over genocide, war crimes, and crimes against humanity.

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Most of the edits I made today deleted POV that the ICC is a good, fair objective body which only wants to stop crime. Even if this is the real reason that it was established, because of the importance of the dispute, it's best to attribute all points of view to their advocates rather than assume them as givens. Nearly every aspect of the ICC is disputed.

Supporters feel (or at least claim) that the court will go after egregious violators of human rights; they deny any intent to single out the US or its friends for extra scrutiny.

Opponents say they fear the ICC will actually apply a double-standard, letting countries like Sudan escape prosecution for murdering and enslaving its citizes while vigorously going after Israel for its dealings with Arabs in West Bank and Gaza.

I don't want the article to reflect only (or even chiefly the fears and objections of opponents). But I don't want the assumptions of supporters to be presented as fact, either. --Ed Poor

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SJK deleted the italicized portion of following, commenting that "ICC does not have universal jurisdiction":

The International Criminal Court (ICC) was created in July 2002 with the assistance of the UN to be a court of universal jurisdiction.

However, the Vanderbilt Journal of Transnational Law says,

Article 12 of the ICC treaty reduces the need for ratification of the treaty by national governments by providing the court with jurisdiction over the nationals of a nonparty state. Under Article 12, the ICC may exercise such jurisdiction over anyone anywhere in the world. (source: The Reach of ICC Jurisdiction Over Non-Signatory Nationals (http://law.vanderbilt.edu/journal/33-1-1))

So I think we should restore the deleted text. --Ed Poor

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Ed: Firstly, you are quoting a quote, which is bad. The text you quoted there does not come from that article, it comes from the American Journal of International Law (see David J. Scheffer, The United States and the International Criminal Court, 93 Am. J. Int?l L. 12, 18 (1999)) -- the article you refer to is merely quoting it. Secondly, David J. Scheffer was the US Ambassador to the Rome Conference -- hardly a neutral source of information!

In any case, the article you quote nowhere says the ICC has universal jurisdiction -- it argues that "the ICC... will be allowed to exercise a form of limited universal jurisdiction". However, it is still not the case that the ICC has universal jurisdiction -- this author is merely arguing that the jurisdiction of the ICC will have some similarities to universal jurisdiction -- but that does not make it a form of universal jursidiction proper.

Let me give you an example -- suppose George W. Bush tommorow decides to exterminate the residents of Kansas, every last one of them, because he has something against Kansans. That would be a crime against humanity (let us for the sake of the argument that crimes against humanity are subject to universal jurisdiction). Would the ICC have jurisdiction over this case? Since the US is not a party to the treaty, it would not -- unless the US concluded a special agreement with the ICC granting it jurisdiction, or the UN Security Council passed a resolution granting the ICC jurisdiction.

On the other hand, suppose George W. Bush then somehow came into the custody of Belgium. Would Belgium have jurisdiction to prosecute George W. Bush for crimes against humanity? Yes--and they would need neither the permission of the United States, nor the permission of the Security Council, unlike the ICC. Why? Because the Belgium courts (assuming the necessary national legislation was in existence) would have universal jurisdiction--the ICC does not.

So, we see quite clearly that the ICC does not have universal jurisdiction. Articles may appear in law journals deriving parrallels and showing similarities between the ICC's jurisdiction and classical universal jurisdiction, but that is not the same thing as claiming that the ICC has universal jurisdiction. -- SJK

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I deleted a lot of Ed's changes. A lot of this involved restoring the "Statute... provides" language -- which is entirely neutral. To say a legal document provides for something is to make no claims about its legal validity; for example, one could quite NPOVly say "The Soviet Constitution provides for the overthrow of all capitalist governments" or "The contract between the Mafia families provided for the delivery of 20 kg of heroin" -- even though both documents (especially the later one) are legally invalid, at least in the relevant portion.

Ed has replaced this quite neutral language with very colloquial sounding language, e.g. "the treaty merely brands "aggression" a crime without defining it all". I don't think that kind of language belongs in the article -- and that particular sentence is definitely not NPOV.

I have also removed a number of (AFAIK) false factual claims, e.g. "It signed the ICC Statute at the last minute, primarily so that it could... obtain an exemption for US nationals taking part in UN-sponsored peacekeeping missions -- as several other countries were able to do." "As several other countries were able to do"? Please give a source for this claim.

Again, "Although supporters say that the checks and balances in the ICC make this an unlikely possibility, opponents argue that giving even a temporary member of the Security Council the power to veto any objections of prosecutorial bias gives the ICC no accountablity whatsovever." Where does the Statute or the UN Charter give temporary members of the Security Council veto power? Neither does any such thing. If opponents are arguing that, they must be opponents that do not understand the issues--wouldn't it be better to find some opponents that do? (I think, for instance, Madeleine Morris--which I have quoted in the article--gives a quite reasonable argument against the legal power of the ICC--and unlike whoever says this, she actually understands the subject.)

Why this change:? "The initial impetus for its establishment came from within the United Nations, and although is legally a separate entity, and not a United Nations institution, the UN has a clearly defined role towards the court even though it was established by a separate treaty between states, and not the Security Council acting under the United Nations Charter." The original text here was entirely neutral and accurate -- the ICC is not a United Nations institution, unlike the current International Criminal Tribunals. What does "the UN has a clearly defined role towards the court"? And besides, the changed paragraph has pretty shoddy style "although... even though...". So I changed it back.

I have however kept a few of Ed's more minor changes -- some of his structural rearrangements, substituting "the Rome Statute" for "the ICC" in some points. -- SJK

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I deleted the following paragraph, which is not true:

According to former US Secretary of State Henry Kissinger, the UN Security Council can stop an ICC prosecution, subject to a veto by any of its 15 members. [1] (http://www.globalpolicy.org/intljustice/general/2001/07kiss.htm)

Kissinger nowhere in that article says this. He does say:

The independent prosecutor of the ICC has the power to issue indictments, subject to review only by a panel of three judges. According to the Rome statute, the Security Council has the right to quash any indictment. But since revoking an indictment is subject to the veto of any permanent Security Council member, and since the prosecutor is unlikely to issue an indictment without the backing of at least one permanent member of the Security Council, he or she has virtually unlimited discretion in practice.

Technically speaking what he says is incorrect -- the Security Council has no power to "quash" an indictment, but merely to defer an investigation for a renewable one-year period. But in any case, notice here he says that a *permanent member* can veto the Security Council's resolution -- which is true. He never says that *any of its 15 members* have a veto--only the permanent members do. Whoever added the above to the article is distorting what Kissinger said. -- SJK

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...it was desired to create a permanent tribunal, so that an ad hoc tribunal would not have to be created after each occurrence of these crimes.

So who all was all into "desiring" this permanent thing, man? Was it like the whole goshdarn world, or just some gnarly ol' world government dudes, or what? I'm all into the whole curiosity thing about that, so like we oughta blow the lid off this!! I mean, dude! Inquiring minds want to know and all!! --Surfer Dude 22:16 Mar 12, 2003 (UTC)

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I can't quite fathom the meaning of this. Is there a not missing somewhere? Tuf-Kat

Article 98 of the Rome Statute provides that a country need to hand over a foreign national to the Court if it is prohibited from doing so by an agreement with that national's country.

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I don't get it. Why would a country grant the ICC power to try its own citizens for war crimes? Why not just try them itself? What am I missing here?

Could it be that countries don't expect to hand over any of their own citizens to the ICC for prosecution -- but rather they plan to use the ICC as a proxy to prosecute other countries citizens?

Here's an even more suspicious thought. Might signatories at some point modify the treaty so that the Court will assert jurisdiction even over citizens of non-signatories? Here's a scenario: dictatorships and their allies gang up on the leader or former leader of a free country and get the ICC to issue an arrest warrant for him. If he ever sets foot on the soil of a signatory nation, he is immediately arrested. He then spends the next few years in jail, waiting for his trial to start.

Sounds far-fetched? Think about what Belgium is saying about the Israeli P.M. that the Islamists are blaming for that Phalangist massacre several years ago. --Uncle Ed 20:35 Apr 15, 2003 (UTC)

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Secondly, if I'm reading the article correctly, the ICC claims the power both to prosecute and to hear cases! That is, judges and prosecutors work for the same boss. No separation of powers, as in the US Constitution.

Thirdly, the ICC claims jurisdiction of ANYONE the Security Council chooses to prosecute -- but it only takes a single veto, even from a temporary Security Council member, to block an investigation into prosecutorial abuses. This means that the ICC will be able to arrest anyone, anywhere for anything -- and any two-bit dictatorship can use this power to go after its enemies.

Please, someone tell me I'm reading this wrong :-(

I think you're reaching the wrong conclusion, Ed. If everything you say is true (I dunno), then one dictator could protect his friends if he was on the Council, but he couldn't target anyone without the approval of the rest of the council. Tuf-Kat

Well, what if some dictator asks an ICC prosecutor to go after some free world leader? All it would take is a veto by that dictator's UN representative to stop a Security Council investigation into prosecutor abuse. In other words, once the ICC indicts an individual, it would require a UNANIMOUS vote by the full UN Security Council to quash the indictment.

If I'm reading this wrong, then the article should be changed to clarify this point. --Ed

One of us must be reading it wrong, cuz I thought it took the whole security council to indict. One dictator could stop that from happening, but he (or she...) couldn't make it happen. Tuf-Kat 21:10 Apr 15, 2003 (UTC)

Oops, with those lines jammed together, I misread the attribution and addressed the correction to Tuf-Kat, should have been to Ed. Anyway, I hope you don't mind if I made that slight alteration in your text. -- John Owens 21:42 Apr 15, 2003 (UTC)

I added to the article 4 ways an indictment can be brought, based on a pro-ICC website.

Here are some additional questions I have about the ICC:

What are those guys really up to? How much power will they have? To whom will they be accountable? What is the limit of their jurisdiction? What sorts of cases are the civilized countries likely to refer to them? How will dictatorships and other opponents of freedom and human rights thwart justice by abusing the stated principles and procedures of the "court"?

Why do its proponents favor it? What do they think the ICC will do, that ad hoc tribunals such as those convened by the U.S. have not been able to do?

--Uncle Ed 21:21 Apr 15, 2003 (UTC)

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According to the USA for the ICC website:

• The ICC has been created in part because the ad-hoc tribunals, like those for the former Yugoslavia and Rwanda, are extremely expensive and have experienced numerous logistical problems. It takes enormous amounts of time and money to establish ad-hoc tribunals, and the delay in their creation means that evidence gets destroyed and those responsible remain at large.
• Moreover, the creation of a permanent court will have a deterrent effect on future war criminals.

This article is rather americocentric. The fact is most of the world has no problem whatsoever with the ICC, think it is a damned good idea, and are disgusted with America's (or rather the Bush administration's) attitudes, which they see as cynical and ignorant isolationism. And America's "justification" for its stance is roundly laughed at as clutching at straws. STÓD/ÉÍRE 21:41 Apr 15, 2003 (UTC)

You're right, and the article should bring out this point more clearly. Nearly every democracy in the world but the U.S. and Israel is in favor of it. So, either:

• the U.S. and Israel are utter hypocrites, or
• the U.S. and Israel are afraid of something

I expect you'll make the case for utter hypocrisy, and I trust you'll do so neutrally, by attributing views to their advocates. But I'd really like to know what the US is so afraid of -- when everyone else is saying, "C'mon in, the water's fine!" --Uncle Ed

"what the US is so afraid of" - I don't know if there is a name for this, but one element of standard US doctrine is that the US will not create or join anything which could be seen as creating a supranational government higher than the US, nor creating a body of enforcable law superior to US law. Because the ICC could be seen as doing this, it doesn't fit doctrine. -º¡º

"Nearly every democracy in the world but the U.S. and Israel is in favor of it."

Just a rough estimate, but the following could be considered democracies that have NOT accepted the ICC: Bahamas, Cape Verde, Chile, Czech Republic, Dominican Republic, El Salvador, Grenada, Guyana, India, Israel, Jamaica, Japan, Kiribati, Lithuania, Micronesia, Monaco, Palau, Papua New Guinea, Philippines, São Tomé & Príncipe, Solomon Islands, St. Kitts & Nevis, St. Lucia, Taiwan, Thailand, Tuvalu, and the United States. -º¡º

"The fact is most of the world has no problem whatsoever with the ICC..."

Just a rough count, I might miss one or two. 89 countries have signed and accepted the treaty, 38 countries have signed but not accepted the treaty, 2 countries have unsigned the treaty, and 52 countries have not signed the treaty. -º¡º

Basically, both the US and Israel have carried out military acts that much of the rest of the world sees as gross abuses of human rights; eg, Israel's behaviour on the West Bank, etc, the US action in Cambodia, its illegal support for the Contras, its role in bringing Pinochet to power and keeping him there, its support for Saddam Hussein for years (Donald Rumsfeld, the great Iraq 'liberator' even met Saddam on behalf of the US once). Both the US and Israel want to freedom to do what they believe they are entitled to do, even though worldwide their behaviour as grossly unacceptable, most especially the role of the CIA in destabilishing some regimes and proping up others. Sharon in Israel certainly has serious questions to answer from his behaviour in the 1980s. Put simply, they are afraid that some of their own past behaviour might be investigated. As Rumsfeld once said, "America answers to no-one", to which many international states reply "well it darn well should!"

As to the above figures, it is revealing who is on the list. Some like Chile, the Phillippines and El Salvador have plenty in their past that they would not want the ICC to investigate. India has questions to answer over its military behaviour towards minorities. When Bush decided to block the treaty, he lobbied hard to get other countries to back away too. (One envoy toured Europe where in most capitals he was told to f*** off!) Re the small states many of whom have a history of doing what the US wanted (arguing that the last thing it could afford to do was piss off America. Watching the rampant anti-french hysteria in the US lately when a large nation like France did what it was perfectly entitled to do and what America had a long history of doing itself, threatening to use their veto in the Security Council, it is no wonder small islands with open countries and strong economic links to the US would avoid doing anything that America didn't want them to do!). So that puts the US in with countries with economic dependency on the US, counties with poor human rights records, states with former extreme right wing dictators - who had been supported by the US - oh, and Monaco.

Whereas the vast vast majority of major democratic states enthusiastically signed the treaty. So the pro-treaty side has the United Kingdom, France, Spain, Germany, South Africa, Canada, etc etc etc. The anti-treaty side has the Philippines, São Tomé & Príncipe, Solomon Islands, St. Kitts & Nevis, St. Lucia, Taiwan, Thailand, Tuvalu, and George Bush's United States. If the US changed its stance tomorrow, most of the states who currently are not signed up with stampede to sign up also. That's the way international politics works. STÓD/ÉÍRE 23:29 Apr 15, 2003 (UTC)

Please forgive me as I acclimate to the anti-American distortion of this forum. You wrote that France "enthusiastically signed the treaty"? Are you joking? France only ratified after years of opposition and after taking asserting (without legal justification) that French citizens are immune from prosecution under Article 124. By your reasoning, France must then also be guilty of war crimes because it, like the US, has bartered for the exemption of its own citizens? Is there that big of a difference between signing the treaty and then asserting "Certain parts don't apply to us" and not signing the treaty?

Sorry, I did not find any reference that "France enthusiastically signed the treaty" in the original posting. The only thing he says is that the "vast vast majority of major democratic states enthusiastically signed the treaty", but he did not claim that France is one of these--at least IMHO. -- mkrohn 08:36 Apr 16, 2003 (UTC)

To Stod (jtd): I thought the treaty establishing the ICC forbade it to deal in any way with events that took place before 2002 or 2003. Is this correct, or not?

This is a crucial question, because if there's a grandfather clause that lets prosecutors go back in time as far as they like, then I can see why the US and Israel would be unwilling to sign. The first two cases would be against Kissinger for the Cambodia thing and the Israeli P.M. for the massacre.

If, however, there's a clause that PREVENTS prosecutors from going back into time, it's another story. I'd like the article to clarify just exactly how far back in time the ICC will claim jurisdiction. --Uncle Ed 13:48 Apr 16, 2003 (UTC)

The ICC's jurisdiction is not retroactive. Otherwise France would not have signed it for fear they would be tried for the massacres of tens of thousands of Algerian citizens from the 1940s through the 1960s. Maybe they also would have been forced to extradite the former Haitian dictator Jean Claude "Baby Doc" Duvalier, whom they've been harboring since he fled from Haiti in 1986. Nor would the UK have ratified, for fear that Winston Churchill would be labeled a war criminal for the deliberate bombing of civilians in World War II (or for deliberately allowing Coventry to be bombed by the Germans, etc. etc. etc.). Chadloder 16:51 Apr 16, 2003 (UTC)

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Don't do the crime if you can't do the time... // Liftarn