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[Previous entry: "Arrest of Sina Motallebi"] [Main Index] [Next entry: "Global Reach III"] 21 April 2003: "ICC correspondence"
Regarding my recent post on the ICC, I received an e-mail from Brett Cashman, who writes the thought-provoking Tabula Rasa. His e-mail, and my response, are reproduced below (with some minor HTML editing).
The ICC does not afford procedural protections to the accused that are wholly consistent with the United States Constitution.You might want to take another look at Article VI of the Constitution, specifically the passage which reads: [...] and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; [...]Technically, the provisions of any international treaty ratified by the United States (in the form of Congress) trump the laws of the US, both state and federal, including the Constitution. But I'm engaging in pedantry. The better answer to your point lies in the fact that procedural protections to the accused are not only covered by the Rome Statute, they're also covered by the Rules of Procedure and Evidence; most of the States Party to the Rome Statute have concepts of what constitutes "due process" which are pretty similar to the United States'. The principle of nullum crimen, nulla poena sine lege (with the additions of scripta, stricta, praevia & certa),ne bis in idem, "innocent until proven guilty beyond a reasonable doubt," etc. are enshrined in the legal systems of many nations, a large number of which have ratified the Statute (see also Part 3 of the Statute, "General Principles of Criminal Law"). The existence of the ICC dilutes the authority of the Security Council over international criminal prosecutions.In the light of the recent shenanigans in the Council regarding Iraq, I have to wonder whether that would be such a bad thing. Moreover, the function of the Security Council is "the maintenance of international peace and security" (UN Charter, Chapter V, Art. 24). In pursuing this duty, the Council is supposed "act in accordance with the Purposes and Principles of the United Nations" (Art. 25); indeed, Article 2 states that Member States are to settle disputes "in such a manner that international peace and security, and justice, are not endangered." However, as I have noted in my blog, peace (if we take peace to simply mean "the absence of armed conflict") and justice have an annoying tendency of being mutually exclusiveand in the past, the Security Council has all too often opted to sacrifice justice for the sake of "peace." Be that as it may, the fact is that the Security Council is not sidelined in the Rome Statute; Article 13 of the Statute provides for the referral of a case to the Court by the Security Council acting under Chapter VII of the UN Charter, while Article 16 allows the Security Council to defer any investigation by means of a resolution (the deferral is for twelve months, but can be repeated; thus, a particular investigation can be deferred indefinitely if a majority can be mustered in the Council). The final argument is one of practicality and efficiency; the Council has authorised a series of special tribunals, from the ICTY to the Special Court for Sierra Leone, but less funding have been raised for each successive tribunal to the extent that the SCSL is severely hamstrung by lack of operating funds. A single court like the ICC would cut down on a lot of duplication between tribunals (building, HR and procurement staff, detention facilities, evidence vaults, etc.), thus streamlining the operation. The "crimes" defined by the Rome Statute are vague in their definitions.They may be vaguely defined in the Rome Statute, but that is because they are already defined in the various Geneva Conventions and Protocols Additional, and other treaties and conventions which make up the body of international humanitarian law. The ICC is intended to enforce the Geneva Conventions of 1949 in particular. The resistance of the ICC to politicization seems non-fundamental, non-institutional, and more dependent on continued good-faith acting by international bureaucrats who are, essentially, unaccountable to the American government if they go off the rails.Having an independent judiciary involves giving them a measure of independence; thus, direct accountability to any particular government is unacceptable for no other reason than that this is "politicization." Article 46 of the Statute provides for the removal from office of "a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar" by the Assembly of States Parties if, among other things, there is reason to believe the person in question has committed serious misconduct or serious breach of duty (as set out in Rule 24 of the Rules of Procedure and Evidence). The persons listed above also have the duty to request to be excused from any case in which they feel their impartiality may be compromised for any reason; failure to to do so is a serious breach of duty (again, Rule 24). Moreover, Article 17 specifies that a case is inadmissible before the Court if the state of which the accused is a national is in the process of investigating or prosecuting the alleged crime, "unless the State is unwilling or unable genuinely to carry out the investigation or prosecution" (and that latter clause really is necessary to prevent someone like Saddam Hussein having himself tried by a judiciary which he controls, inevitably found "not guilty," and getting off the hook). I might add that "international bureaucracy" is, by definition, not a homogenous entity. Any given organisation will incorporate people from a great many different national, political and religious backgrounds. Especially where the higher echelons of such an international organisation are concerned, there is a fair amount of horse-trading involved to get nationals from different countries into these positions. At the ICTY, you'll find no two judges of the same nationality, and the Prosecutor and Registrar are of nationalities not represented among the judges. (This is not to say that an unqualified candidate may be selected by dint of nationality, but rather that a qualified candidate of a desirable nationality will be sought. For instance, since the Netherlands is the host nation to the ICTY, the Registrar is, by implicit agreement, always Dutch; one might say that Dutch citizenship is simply an unspoken requirement for the post, but the candidate still needs to meet the minumum qualifications at least in all other aspects.) In an atmosphere this diverse, it is extremely difficult--indeed probably impossible--to foster a conspiracy for the purpose of malfeasance. Even if the Prosecutor, acting out of political motivation, wanted to initiate an investigation propriu motu (Article 15.1), he would first have to gain the approval of a Pre-Trial Chamber (Art. 15.3). For the Prosecutor to gain the approval on the basis of spurious charges, the majority of the Pre-Trial Chamber would have to share the Prosecutor's motivation. But even if it did, the case would be tried before a different panel of judges, since Pre-Trial Chambers fall under Pre-Trial Division of Chambers, whereas are trials are handled by the Trial Division (Article 39). So for a defendant of any given nationality to be indicted, tried and found guilty on spurious charges, a mind-bogglingly unlikely conspiracy would be required. The United States, as the only remaining world superpower, is disproportionately involved in global affairs, and is thus disproportionately vulnerable to the machinations of a politicized ICC.As I said, it would require a highly unlikely conspiracy to bring about not only the indictment, but also the sentencing of an American national on spurious charges. It would also require the richest States Parties, all of whom happen to be members of NATO, or signatories to the ANZUS treaty, to permit en masse the perversion of their project so that a few individuals could take out some petty grievance against the US. But even if the entire staff of the ICC were composed of people hostile to the US, the US could protect itself by continuing to lead "coalitions of the willing." The beauty of these coalitions is that they make the governments and armed forces of other countries complicit in any action which might lead to spurious charges, and the hypothetical anti-Americans at the ICC might not be willing to move against nationals of those other countries. The defense strategy here becomes: "You want to indict Bush for invading Iraq? Well, then you'd better indict Blair, Aznar, the Emir of Kuwait, Kwasniewski (Poland), Moisiu (Albania), and every other head of state listed in the 'coalition of the willing' as well, since they're all accessories." Frankly, I'd be less mistrustful of most American opponents to the ICC if they focused more on objecting to the possibility of an American citizen being unjustly convicted, rather than objecting to the possibility that an American might be prosecuted at all, even justly. It speaks more of xenophobic paranoia (as does a loaded term like "international bureacrat," I might add) than a desire to see justice done. In the light of American support for the special tribunals, it rather conveys the impression that the attitude among the Republicans in particular is that international justice is fine for the rest of the world, but should apply to Americans. The most clear-cut case of US troops committing a war crime in recent history was the massacre at My Lai (aka Son My, My Son and My Lai-4) in March 1968 by C Company, 1-20th Infantry (part of Task Force Barker,11th Brigade, Americal Division). The fact that the massacre took place is one thing, but the way the US Army handled the situation does not inspire confidence in the US armed forces' willingness to adequately deal with such matters. Even if we assume that CPT Medina (commander C/1-20 Inf) and COL Henderson (commander 11th Brigade) were not aware of the killings at the time, it is indisputable that they, and the higher echelons of the American Division up to and including the division commander, Major General Koster, utterly failed to investigate the incident themselves, let alone to discipline those responsible. Medina, by his own admission afterward, lied on the stand, as did Henderson, but they were not prosecuted for perjury. Various staff officers from TF Barker and 11th Brigade refused to testify, but they were not prosecuted for contempt of court. The My Lai case, despite being over three decades old, stands as a benchmark precisely because it was one of the few occasions—possibly the only occasion—that US troops clearly committed an atrocity. It is unfortunate that on this single occasion, the US Army failed to rise to the challenge presented it in any adequate fashion. And this affair is another ground for mistrust of the motivations of the opponents to the ICC; it is not hard to surmise that the reason they do not want to see the Court able to prosecute Americans is because the Americans in question might actually be guilty. Certainly, the ICC is still not without flaws; this is why Clinton urged that the Rome Statute not be ratified in its form as of December 2000. However, Clinton did have the Statute signed, because he understood that for the United States to be able to influence and shape the ICC, it had to be a participant to some degree. But the Republican approach does not evince interest in fixing any flaws in the Court to make it a more perfect body; it just seems to cry that no furriner should dare to even consider passing judgement on a GI (possibly garnished with a bit of "how dare they, after all we did for them in World War II"; this, of course, coming from the like of Tom DeLay and Trent Lott, both of whom studiously avoided ever serving the armed forces). I hope that answers some of your questions. Incidentally, if it's all right with you, I'd like to post our exchange on my page as well. Regards, Jurjen |
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