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27 April 2003: "ICC correspondence II"

Another exchange between Brett Cashman of Tabula Rasa and myself regarding the ICC.

Brett's e-mail, dated 21-Apr-2003 (he's fast):

Jurjen --

Thank you very kindly for this very extensive and detailed reply. It was more than I had hoped, and, of course, you may publish our correspondence in your own blog. I will try to answer some of the points you make herein.

When I speak of UN voluptuaries, I speak of those individuals who have at least a passing fondness for the idea that the consensus of the United Nations (as expressed through Security Council or General Assembly resolutions) carries with it a non-contextual moral authority -- that is to say, those who feel that the UN is a voice for good in the world, irrespective of what the voice actually *says*. I am in agreement with you, that the UN suffers from credibility problems (particularly with respect to human rights) given the domestic records and self-interests of many of its member states; the UN voluptuaries are either unwilling or unable to see this, and apparently believe that all resolutions possess equal moral standing simply by dint of their sharing the same letterhead.

It's certainly not pedantic to point to Article VI of the Constitution, so long as one realizes that the Supremacy Clause merely establishes that federal law, including treaties, supersedes conflicting state law. To the extent a particular treaty's terms are not self-executing, Congress must pass legislation to implement the treaty -- and such legislation would be open to constitutional challenge, just like any other domestic legislation.

The specific due-process objections to the Rome Statute and the Rules of Evidence and Procedure are: (1) the ICC does not (and probably cannot) guarantee a criminal defendant a trial before a jury of his peers; and (2) the Rules of Evidence and Procedure do not appear to have an analog to the US "exclusionary rule", which prohibits the introduction of evidence obtained in violation of the defendant's Fourth Amendment right to be secure in his papers and effects. In fact, the REP seems pretty silent on the entire subject of search and seizure, aside from recognizing certain communications (e.g., between a defendant and his attorney) as privileged, and discussing the procedure for seizures as reparations for victims.

The other nagging constitutional issue is Article III, Section 2, which makes clear that the terms of treaties (such as the Geneva Conventions) fall within the jurisdiction of the United States Supreme Court. It's unclear to me how Congress could pass legislation recognizing the ICC's jurisdiction above that of the Supreme Court, short of amending the Constitution.

Your points on the dilution of the Security Council's authority are well-taken. The efficiency argument is particularly persuasive, to my mind.

With respect to the clarity of international humanitarian law: I have not read the Geneva Convention and Additional Protocols as extensively as I might like, so I am unprepared to guess at whether they are sufficiently clear as to sustain a prosecution. My instinct, though, is that there's a lot of wiggle-room under the rubric of "war crimes" in which the politically-motivated could create mischief. I would welcome your additional thoughts, here.

With respect to Article 17 of the Rome Statute: "unless the state is unwilling or unable genuinely to carry out the investigation or prosecution." It would be nice to be able to think, "Well, hey, the U.S. courts are always open, so this entire thing'll never apply to us," but that would require a level of confidence in the good faith of the international community that I just don't possess. For one thing, people seem pretty irrationally hostile to America out there, and for another, there's a quintessentially American mistrust of authority at work: we tend not to want to put more power in the hands of government than we're willing to see abused. :) You raise some good points about the diversity of the ICC's atmosphere, and the resultant unlikelihood of conspiracy (the more people involved, the harder it is for them all to be corrupt), but I still wonder about the degree to which anti-Americanism and a desire to see the US get some comeuppance would, in practice, prevail over what reasonable people would consider a just outcome.

The ICC does appear to have the latitude to pick and choose its prosecutions, so the "coalitions of the willing" argument might score some PR points, but I'm dubious about it's practicability.

On xenophobic paranoia: it's not entirely xenophobic, though certainly there's an element of that. As I said above, Americans are notoriously skeptical of concentrations of authority, dating further back than our existing government (which was our second try, after the Articles of Confederation). Admittedly, though, there is an element of mistrust toward them furriners. My Lai was a disgrace, I grant, but as you note it's noteworthy principally because of its uniqueness, and it is worth asking whether an institution like the ICC would have handled that incident any better.

You mention the ICC as being not without flaws. I'd be interested in hearing your thoughts on what those flaws are, and how the United States might work toward fixing them.

I have enjoyed our conversation and look forward to continuing it.

Regards,

-Brett

Brett,

Once again, sorry about the delay in getting back to you. This time, it did have something to do with having to ruminate on your points. You raise a number of points about the constitutionality of the Rome Statute which are not irrelevant, but are only applicable in a very limited sense.

For starters, you're quite right that the Rome Statute does not, and will never, provide for a trial by jury of one's peers. One might counter this by pointing out that a court-martial under the US Uniform Code of Military Justice is not a trial by jury of one's peers either, and that therefore, as far a members of the US armed forces are concerned, it doesn't really make a difference.

But striking deeper at the heart of the matter is the fact that the US Constitution does not apply outside the territory of the United States. The Rome Statute grants the Court jurisdiction over various serious violations of international humanitarian law, generally within the context of armed conflict of some kind. Take, for instance, Article 7 of the Statute:

For the purpose of this Statute, 'crime against humanity' means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

Emphasis mine. Furthermore, "attack directed against any civilian population" is further specified as meaning:

a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;

The likelihood of anything fitting this description happening within the territory of the United States seems, to put it mildly, remote. War crimes, similarly, are required to take place in conditions of armed conflict (as far as the established jurisprudence goes, this means that any war crimes trial will require the Prosecutor to prove to the Court that there was a state of armed conflict within the territory in question first).

In short, it is highly unlikely that the powers granted the Court will ever be applicable to an American national for an offence he (allegedly) committed on US soil, and indeed, the foremost American opponents of the ICC (DeLay, Helms et al.) do not raise this as a point of concern. That leaves foreign soil, where the US Constitution does not apply in the first place. Of course, there are a great many US servicemembers stationed on non-US soil, but the US has bilateral agreements in place whereby any violation of the host nation's law by a US servicemember will be tried by an American court. Under Article 98 of the Statute, a State Party is not obliged to surrender an indictee to the Court if doing so would violate its obligations under other treaties, and that includes these bilateral agreements.

There was some discussion regarding this issue, which was mainly caused by Romania signing such a bilateral agreement after it had had signed the Rome Statute, but in the case of the 100+ agreements created between the US and other countries prior to the creation of the Rome Statute, there is no controversy at all. But all that would be less than relevant if the US were to (re-sing and) ratify the Rome Statute. The bottom line remains that the US Constitution does not apply outside US territory, and extraterritorial rights went out with the 19th century (though the US has done its damndest to achieve the next best thing for its armed forces).

To put it bluntly, the only way for Americans to avoid placing themselves outside American law is to avoid placing themselves outside American territory. That's already the case, and the existence of the ICC doesn't change that. In the meantime, the perception in the rest of the world is that the US government (in the sense of legislature and executive) is perfectly content to subject nationals of other countries (former Yugoslavs, Rwandans, etc.) to the jurisdiction of "international bureacrats" but is unwilling to accept equal treatment where its own nationals are concerned. And inequality before the law undermines the very concept of justice.

You yourself comment about "Americans not wanting to put more power into the hands of [American] government than you're willing to see abused"; join the club, only from a different perspective. Don't get me wrong, I have a great respect for the members of the American armed forces, but they're human, just like the rest of us, and prone to the same human failings.

If an American serviceman is alleged to have commited a crime--war crime or otherwise--overseas against a national, chances are he'll be tried by a US court-martial. The amount of oversight on the part of the government of the affected national is likely to be negligible. And this where, regrettably, I have to bring up My Lai again.
As you point out, it is worth asking whether the ICC would have handled it better; the answer is that we don't know because we haven't tried, but it's probably safe to say it couldn't have handled it worse.
Moreover, looking at the record of the ICTY, I see little reason to assume a priori that the Court wouldn't do a better job. The ICTY has locked away its share of defendants, but a number have been acquitted, and even those convicted have rarely (if ever) been found guilty on all the charges brought against them.

To answer a few of your specific points:
Search and seizure by the Office of The Prosecutor requires a warrant from a Pre-Trial or Trial Chamber. The rules to which such search and seizure is subject are no different in principle from those observed in most democratic nations (the entire membership of the EU did sign up for this, which means that the Rome Statute has to conform to the European Convention on Human Rights).

I believe the problem Clinton had with the Rome Statute was that he had envisioned the Court to be tool of the Security Council, i.e. that Court would need to have the approval of the Council to proceed with an investigation. The obvious objection to this is that would in effect enable any Permanent Member to veto an investigation, meaning that there would be one law for nationals of the P5 and another for the rest of the world. Unsurprisingly, the rest of the world wasn't interested.

And, of course, there was concern on the American side regarding the possibility of politically motivated prosecutions. The problem is that any limitations on the Court's powers which would remove that risk would also render it as effective as a chocolate teakettle one way or another. Any safeguards which would protect Americans from politically motivated prosecutions with 100% certainty would have one of two possible results: either Americans would be rendered immune from prosecution altogether, which would destroy the credibility of the concept of international law (since it evidently would not apply equally), or the same safeguards which would keep Americans safe from prosecution would keep the likes of Saddam Hussein cum suis safe from prosecution as well, and then we might as well not bother having the Court in the first place.

On a note not directed at you, Brett, I should add that I find the (historically revisionist) notion peddled by "neoconservatives" (a misnomer, as they are neither new, nor are their views strictly speaking "conservative") of the American foreign policy being guided by morality (as opposed to being guided by protecting national interest, which may or may not coincide with morality) curious when one considers how reticent they are to have their moral standards put to any sort of test.
"Mene, mene tekel upharsin" methinks.

Regards,

Jurjen

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