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Politics : Foreign Affairs Discussion Group -- Ignore unavailable to you. Want to Upgrade?

To: FaultLine who wrote (2887)	10/6/2001 12:12:30 PM
From: Ilaine	Respond to of 281500

The concept that jurisdiction is limited is one of the most important concepts in an orderly system of law, I think. In the United States, judges are very cognizant of the fact that an act outside their particular court's jurisdiction, an extrajudicial act, is void ab initio. An extrajudicial act is not only without legal authority, it is contrary to law. It is in contravention of due process of law. That means it's a violation of the 5th and 14th Amendments to the United States Constitution, and every state constition. The argument that bad guys won't get punished is beside the point. A court without jurisdiction cannot punish bad guys without doing something bad, itself. I recall very clearly how frustrated I was when I first banged heads with the concept of lack of jurisdiction. It seemed like such a waste of time to have to start all over again in the right court. My client was worthy, and needy. Why couldn't the court just bend the rules a little bit? At the time I was (and still am) fortunate to know an ex-judge who is always willing to discuss such matters with me. He explained that, even though judges have a lot of power, their power is limited to acting within the law. He's right, of course. Otherwise judges become monsters, tyrants, and dictators. ~~~~~~~~~~~~~~~~~~~~~~~~~~ I have always had problems with the Nuremberg Trials. I think it would have been better if the Allies could have located former German judges who had not been corrupted, and tried the defendants according to German law that existed before Hitler seized power, which, I believe, was done through extra-legal means. The Nazis used the Reichstag Fire Decree as a pretext to put all the Communist, Socialist, and Trade Unionist members of the Reichstag in jail, which is how they got a majority in the Reichstag. I think there were good German laws that could have been used to try the Nuremberg defendants - in fact, many members of the Nazi party were tried under German laws by German courts and convicted later. I don't know enough about international law to say for sure whether there was lack of jurisdiction, but this response to Kissinger from a judge at Nuremberg seems to support my position. It appears to me that the precedents were established at Nuremberg, and were not recognized as existing before, except as an inchoate corollary of international law, sort of floating in the air. nuclearfiles.org I think what happened at Nuremberg was white-washing our desire to make the Nazis pay without turning into something like the Nazis - - I am not so sure we succeeded.

To: FaultLine who wrote (2887)	10/6/2001 12:26:08 PM
From: Ilaine	Respond to of 281500

The problem I have with an International Court for Crimes Against Humanities isn't lack of jurisdiction. I think that jurisdiction can be conferred by treaties and other agreements. If a country signs a treaty agreeing that the acts of its citizens are subject to the jurisdiction of an International Court for Crimes Against Humanities, and then a dictator takes over, under international law, he can't abrogate the treaty, because he did not become the leader by lawful act. My real problem with the court is a concept called justiciability. The law isn't the right tool for every problem. In the US, courts don't settle political issues. Executive matters are within the purview of the executive, legislative matters are within the purview of the legislature. In a democracy, the people decide most political questions, not courts. That's part of jurisdiction, really, but it's a distinct enough concept that it should be considered using the special word, justiciability. How a country conducts its own affairs is a political matter, and it's not for a court in another country to decide. For example - the death penalty is legal in the United States and China. I would argue that whether these countries should have the death penalty is not justiciable. It is for the people of these countries to decide. I can easily see a person who has been condemned to death in the United States - or China - suing either country in an International Court of Justice for crimes against humanity, because many people all over the world think that the death penalty is a crime against humanity. I don't think a court in Belgium is the place to decide such issues.

To: FaultLine who wrote (2887)	10/6/2001 12:44:36 PM
From: Ilaine	Read Replies (1) \| Respond to of 281500

Just thought of an example of something that isn't justiciable just to make the point very clear. A lot of people think that the position of the Catholic Church on birth control is a crime against humanity. So could they sue the Pope to get him to change his position? Or punish him because they think the Church's position has caused great pain worldwide? I dunno, seems to me that most people would agree that you can't sue a religious leader over matters of church dogma, but I suppose there are some who would disagree.

To: FaultLine who wrote (2887)	10/6/2001 1:09:06 PM
From: Ilaine	Read Replies (2) \| Respond to of 281500

I keep thinking of things I wanted to add, but did not think of until the editing window passed - Making something illegal after the fact is an ex post facto law, which is a violation of Article One of the United States Constitution. That was considered so heinous that it didn't need to get added in via the Bill of Rights. This is the problem I have with the Nuremberg Trials. How can you prosecute someone for crimes against humanity when no law prohibited that particular crime at the time? Murder was against the law, prosecute them for murder. Slavery was against the law, too, prosecute them for slavery. Robbery, rape, burglary, on and on and on. Umpteen felonies. I don't know if Germany had the death sentence, or whether sentences could run consecutively - maybe there's a reason there I don't know about. Our Founding Fathers knew a lot about how unfair government could be, and they wanted the United States not to be that way. Which is another reason I am opposed to the International Court for Crimes Against Humanity - let them set it up here and try people according to our legal system - which I think is superior. Courts in Europe don't have juries, for one thing. They don't have the exclusionary rule, either. They don't have to give Miranda warnings, either. It used to be that the burden was on the guilty to prove himself innocent, but they seem to have learned from us that this was a violation of due process.