The ICC: improving on vigilante justice
"A person stands a better chance of being tried and judged for killing one human being than for killing 100,000."
-- José Ayala Lasso, former United Nations High Commissioner for Human Rights
On the leading edge of the American frontier, before 1890, things were a bit rough. No judges, juries, police, courts, jails. The population was mainly young men, all armed. They tended to drink too much, and get into fights over turf, money, honor, and the (scarce and unattached) women. It usually took only a few years, for the young men to be joined by women (the attached kind), and then children, and elders. When that happened, justice was soon being dispensed by laws and lawyers.
But before then, the law was whatever any sufficiently large group of armed young men said it was. This was vigilante justice.
Vigilante justice has several drawbacks:
1. The Strong can get away with a lot, and the Strongest can get away with anything. The weak (unarmed, timid, wrong ethnic group, etc.) get no justice, unless they happen to have Strong friends.
2. Nothing is agreed ahead of time, so decisions get made ad hoc, in the heat of the moment.
3. Rules get applied haphazardly, making it difficult to plan for the future. Business suffers.
4. Only the most outrageous crimes, or crimes against well-armed and brave people, get punished. Small crimes, and crimes against the weak, go unpunished. Often, even the worst crimes go unpunished, if the guys with the biggest guns did it. Only Social Darwinists like this state of affairs.
5. It requires anyone who expects justice, to be armed. This is inefficient, and dangerous.
Vigilante justice is also the way international relations have always been conducted. Whenever any nation thinks any other nation has committed a crime, they too must assemble a sufficiently large group of armed young men (an army) from their own or like-minded nations. And then they can make and enforce any international law they care to. The current system of international relations, has the same drawbacks as listed above.
The ICC is an attempt, a flawed and first attempt, to move beyond vigilante justice in international law.
Jurisdiction is limited to trying individuals (not governments or nations), when the national government can't or won't prosecute, for:
(a) The crime of genocide
(b) Crimes against humanity
(c) War crimes (these 3 defined here, in Part 2, Articles 5-8): un.org )
(d) The crime of aggression (nobody can be arrested for this by the ICC, till a definition is agreed on, which has proven impossible so far).
The ICC will have jurisdiction over crimes committed by the nationals of governments that ratify the treaty, or in the territories of governments that ratify. It can try any individual responsible for such crimes, regardless of his or her civilian or military status or official position.
hrw.org
Problems with the ICC:
1. U.S. opposition. Main objections: cedes sovereignty, decreases freedom of action, potential expansion of the Court's jurisdiction, our soldiers and political leaders may be accused things America doesn't think are crimes.
2. Control. One nation one vote means Libya and Costa Rica have the same power in the ICC as the U.S. and China. This doesn't reflect reality.
3. Funding. The plan is to assess payments as they are in the UN. This would mean the rich nations pay most of the bills, but the poor nations have control, and decide how the money gets spent. This arrangement leads to waste at the UN.
4. No realistic enforcement method for the ICC's decisions. Enforcement depends on voluntary compliance by nations with accused citizens (unlikely), and/or enforcement by the military of nations with global reach (also unlikely, until the U.S. joins).
5. Many small nations with poor human rights records, and no track record of respecting the rule of law, have signed the ICC, and can effectively control it.
6. Immunity agreements, which violate the principle of equality before the law. Impunity for our own soldiers and leaders, negotiated by the U.S. (and Europe, too) effectively gut the ICC: we'll never get other nations to follow rules we exempt ourselves from.
7. Narrow scope. This is probably unavoidable at this stage, when the world's nations still haven't gotten past vigilante justice. At some point, the scope should be enlarged to include: A) wars of aggression B) broaden the Crimes Against Humanity (CAH) by ending the current requirement for "multiple commission of acts", "pursuant to a state or organizational policy", and carried out "in the knowledge of the attack". These requirements will make CAH very difficult to prove. C) broaden the responsibility of civilian leaders. The treaty presently holds civilian leaders liable, only if they have effective authority and control over the persons and activities constituting the crimes, and have known or consciously disregarded information that clearly indicated that subordinates were committing or were about to commit crimes. Proving that they knew, will be very difficult. Those in power should be held responsible, without ignorance being an excuse.
Solutions:
1. The U.S. needs to give up the claim to unlimited sovereignty, and give up the claim to unlimited freedom of action to protect our interests overseas (which implies our right to violate all other nation's sovereignty).
2.Control should be in the hands of the nations who pay the bills. These are also the same nations with a Global Reach military, who have the capability of enforcing the ICC's decisions: Europe, the Anglosphere, Japan. These are also the same nations with the best tradition of respecting human rights and the rule of law. One nation one vote should be replaced by weighted voting based on payments, which in turn are based on each nation's economic size.
3. Enforcement. Nations joining the ICC should commit, in advance, to a specific series of enforcement methods. This would begin with quiet diplomacy, and escalate steadily, up to boycotts and blockades. Fewer nations would join, but those who did would be sincere.
4. Oversight. By a 2/3 vote (using the weighted voting system), the State Parties should be able to veto a decision by the Court. This is needed, since the Judges serve long terms, and may make decisions unpalatable to most of the world's Powers (and therefore unenforceable).
5. Disallow impunity and exceptions of all kinds.
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"There can be no peace without justice, no justice without law, and no meaningful law without a Court to decide what is just and lawful under any given circumstance."
-- Benjamin B. Ferencz, a former Nürnberg prosecutor
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Info, links on ICC:
The Holy See, backed by the Arab League nations, mounted a concerted attack against the inclusion in the Treaty of the crimes of "Rape, sexual slavery, enforced prostitution, forced pregnancy and enforced sterilization or any other form of sexual violence of comparable gravity", as well as on persecution based on gender.
Th main support for the ICC has come from the EU, Canada, Mexico. The only opposition comes from the U.S and Israel. Major nations that have not signed the ICC: US, China, Israel, Pakistan.
The Statute entered into force on 1 July 2002. Anyone who commits any of the crimes under the Statute after this date will be liable for prosecution by the Court. Jurisdiction applies to crimes committed by the citizens of State Parties, and crimes committed on the soil of State Parties. 92 countries have ratified (are State Parties to) the ICC so far.
The ICC is an independent organization, not part of the UN. Its Judges and Prosecutor are elected (one nation one vote) by the nations who have joined the ICC. It is a permanent organization, designed to replace the series of ad hoc courts for specific crimes that have been created since WW2. The court's Assembly of States Parties — the ICC's governing body — elects the court's 18 judges. In April 2003, the Assembly elected the chief prosecutor, Luis Moreno Ocampo, former Visiting Professor of Latin American Studies at Harvard Law School, best known for his role as deputy prosecutor in the trials of Argentina's former military junta in the 1980s. The Judges chosen in February 2003 include 7 women. Most of these jurists come from countries closely allied with the United States.
The International Court of Justice (ICJ or World Court) is a UN civil tribunal that hears disputes between countries.
U.S. Opposition to the International Criminal Court: iccnow.org
While former President Bill Clinton signed the Statute in the last days of his term, he did not refer it to the Senate for ratification, and the Bush administration formally renounced his signature in May 2002.
5/6/02 -Secretary of Defense Donald Rumsfeld says that any attempt to turn a U.S. national over to the ICC would be “regarded as illegitimate by the U.S.” and that, “We must be ready to defend our people, our interests and our way of life.”
The US passes the American Servicemembers' Protection Act, less charitably known as the "Hague Invasion Act", because it authorizes the use of military force to free U.S. and allied suspects from detention by the court. (The ICC will be based in The Hague in the Netherlands.)
11/14/02 - Undersecretary of State Bolton: "U.S. military forces and civilian personnel and private citizens are currently active in peacekeeping and humanitarian missions in almost 100 countries at any given time. It is essential that we remain steadfast in preserving the independence and flexibility that America needs to defend our national interests around the world."
"A fair reading of the treaty leaves one unable to answer with confidence whether the United States would now be accused of war crimes for legitimate but controversial uses of force to protect world peace. No U.S. Presidents or their advisors could be assured that they would be unequivocally safe from politicized charges of criminal liability."
"Our concern goes beyond the possibility that the Prosecutor will target for indictment the isolated U.S. soldier who violates our own laws and values by allegedly committing a war crime. Our principal concern is for our country’s top civilian and military leaders, those responsible for our defense and foreign policy. They are the ones potentially at risk at the hands of the ICC’s politically unaccountable Prosecutor, as part of an agenda to restrain American discretion, even when our actions are legitimated by the operation of our own constitutional system."
The US has signed bilateral "Article 98" agreements (65 so far, including Israel, India, Egypt, Romania, and the Philippines; most of the rest are small, poor countries that are heavily dependent on external aid), prohibiting the surrender of U.S. nationals. Thirty-two U.S. allies and friends lose U.S. military assistance for fiscal year 2003, because they won't sign these immunity agreements.
The US vetoes, or threatens to veto, UN peacekeeping missions to Bosnia and Liberia, unless peacekeepers are granted immunity. Various threats to cut aid have been used to coerce small weak nations into these impunity agreements. hrw.org
Britain, France and other European governments have signed similar immunity agreements with Afghanistan, shielding thousands of European peacekeepers from surrender by Afghan authorities to the Hague-based ICC court.
The irony of the U.S. campaign against the ICC is more than a little thick. Washington pressured the current Yugoslavian government to extradite its citizens to The Hague for the war crimes tribunals, including the former President, Slobodan Milosevic. But the Bush administration and many in Congress--on both sides of the aisle--remain unwilling to allow American nationals to face the same kind of trial. Colombia is the subject of human rights conditions on its military aid from the U.S., but the Bush administration wants to insure that U.S. military advisers will not be held accountable to human rights standards. As Senator Patrick J. Leahy, chair of the Senate Appropriations foreign operations subcommittee who drafted the human rights requirements for U.S. aid to Colombia, said, "I am concerned with the message this sends to the Colombian government when we are urging them to do more to protect human rights." globalpolicy.org
Links:
ICC website: icc-cpi.int
Rome Statute of the International Criminal Court un.org
Human Rights Watch on the ICC: hrw.org
NGO Coalition for the ICC iccnow.org
6/10/03 Washington Post on US-EU dispute over ICC globalpolicy.org
6/10/03 US Seeks Exemption from War Crimes Court globalpolicy.org
US State Dept FAQ re ICC state.gov
Bolton on ICC 11/14/02 state.gov
America Service Members Protection Act 2002 216.239.57.104 |
