Monday, June 13, 2005

The ICC: Isn't a Constitutional Court

In comments below, Barking Dingo continues to claim joining the International Criminal Court (ICC) would neither harm Americans nor impair our foreign policy. This is, simply put, nonsense. The ICC's flaws are legion; the conflict between the Rome Treaty and U.S. law well known--except to Panglossian, geo-political virgins.
  1. There is no world government and thus no "sovereign" to exercise police powers. See UN Charter, Art 2, Clause 1. Sovereigns are in a state of nature with respect to other nations, meaning (with some exceptions addressed below) there is no legal authority applicable to all actors in a criminal case. And, of course, little or no shared standard of justice.


  2. It is true that some nations might be able to cede authority to a transnational institution. Even were that wise (and I think it not, see the European Constitution), it's impossible under US law--here the constitution trumps treaties, and constitutional procedure and rights (e.g., the first 10 Amendments) can not be delegated to another sovereign. Surely Dingo doesn't think it "just" to abolish, or restrict, say, the 6th Amendment right to a speedy trial? Compare Is A U.N. International Criminal Court In The U.S. National Interest?, S. HRG. 105–724 at 68 (July 23, 1998) (prepared statement of Lee A. Casey) ("the Yugoslav Tribunal Prosecutor actually has argued that up to five years would not be too long to wait in prison for a trial. See Prosecutor v. Aleksovski (Prosecution Response to the Defence Motion for Provisional Release ¶ 3.2.5.) (ICTY Case No. IT–95–1411–PT) (14 Jan. 1998).") with Barker v. Wingo, 407 U.S. 514, 533 (1972) ("It is clear that the length of delay between arrest and trial - well over five years - was extraordinary."). Heritage's Brett Schaefer lists other unjust inconsistencies:
    The ICC possesses characteristics that would not be deemed “fair” by most Americans, including the possibility of double jeopardy, absentee trials, inability to confront witnesses testifying against the defendant, permissibility of hearsay evidence, and other usages not permitted in American courts.
    Simply put, signing the ICC would be unconstitutional. Indeed, the Supreme Court seemed to agree in United States v. Balsys, Slip op. at 32 (June 25, 1998) (suggesting the 5th Amendment applies where "the prosecution was as much on behalf of the United States as of the prosecuting nation," as it would were the US an ICC signatory).


  3. Similarly, the whole structure and process of the ICC clash with the Constitution. Writing for Heritage, Lee Casey and David Rivkin agreed:
    Once indicted, individual defendants would be tried by a bench of judges chosen by the ICC States Parties. As an institution, the ICC would act as police, prosecutor, judge, jury, and jailer. All of these functions would be performed by its staff, or under its supervision, with only bureaucratic divisions of authority.
    UN Ambassador designate John Bolton concurs:
    We are considering, in the Prosecutor, a powerful and necessary element of executive power, the power of law-enforcement. Never before has the United States been asked to place any of that power outside the complete control of our national government without our consent. 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.
    Moreover, as America's Ambassador to France, Howard Leach, observed in April: "There is no appellate procedure for the court’s decisions and the court can arbitrarily ignore the finding of the courts of sovereign states on the same case."


  4. Even apart from law, the ICC offends U.S. public policy. As Rivkin and Casey point out, delegating prosecutorial powers over elected officials to some foreign authority would be un-democratic and utterly at odds with American ideals of self-government and popular sovereignty. It would transfer the authority to judge the acts of U.S. officials away from the American people to an unelected and unaccountable international bureaucracy.


  5. Further, and contrary to Dingo's claim, the ICC's jurisdiction is substantially over-broad. Article 12 of the Rome Treaty states:
    [T]he Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

    (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft.
    Thus, non-parties -- such as the US -- can be prosecuted for acts occurring in a signatory's country. This was one reason the Democrats declined to submit the treaty for ratification, according to a contemporaneous statement by Clinton's Ambassador-at-Large for War Crimes Issues:
    Under the treaty, the court may exercise jurisdiction over a crime if either the country of nationality of the accused or the country where the alleged crime took place is a party to the treaty or consents. Thus, with only the consent of a Saddam Hussein, even if Iraq does not join the treaty, the treaty text purports to provide the court with jurisdiction over American or other troops involved in international humanitarian action in northern Iraq, but the court could not on its own prosecute Saddam for massacring his own people.
    Dingo fails to consider the case where the U.S. doesn't press charges, but others claim an "unwillingness or inability of the State genuinely to prosecute." Such as, for example, accounting for terrorists "playing possum." Or likening detainment of unlawful combatants to a "gulag." No, that could never happen.


  6. The ICC exceeds established international law precedent. According to Rivkin and Casey, the ICC isn't merely a Nuremberg follow-on:
    Claims made by ICC supporters that the court may legally exercise a "universal jurisdiction" are incorrect. The principle of "universal jurisdiction" is one of the most misunderstood and abused concepts in international law. It is, in fact, a narrow doctrine that allows states to extend their domestic law to punish individuals guilty of certain criminal activity taking place otherwise beyond the jurisdiction of any state. Traditionally, it has been limited to piracy and the slave trade, crimes occurring on the high seas, which may be otherwise unreachable under the ordinary principles of territorial jurisdiction.
    I note that boarding ships in international waters to halt the slave trade was piracy (and thus theoretically illegal) before Britain unilaterally deployed the Royal Navy, in spite of international law, applying "gun boat diplomacy" to benefit all humanity.


  7. Finally, Dingo ignores global reality. Just as other nations don't guarantee the full Constitutional protections afforded to criminal defendants in America, some countries view identical actions differently depending on the actor--or the judge:
    Sitting on UN Commission on Human Rights are some of the world's worst mass murderers and violators of the very human rights they are supposed to protect, including Cameroon, China, Congo (DRC), Cuba, Pakistan, Saudi Arabia, Sudan, Syria, Uganda, Vietnam, and Zimbabwe. The Chairman of the Commission is one of the worst human rights offenders, Libya. These are the very same human rights violators that the Commission is supposed to investigate and expose.
    And prejudice in the UN system is well known. For example, Israel is routinely condemned, while genuine human rights violations are ignored:
    The U.N. has passed more resolutions condemning Israel than it has all other nations combined, including Iraq. The U.N. Security Council passed a total of 175 resolutions. Seventy-four were neutral. Four were against the perceived interests of an Arab body. Ninety-seven were against Israel. In the U.N. General Assembly, the cumulative votes cast during this same period with or for Israel totaled 7,938. Those against Israel totaled 55,642.
    Israel would hardly get a fair hearing from an international organization.

    It's no secret that some nations oppose America's use of military force abroad. Signing on to the ICC would transform disagreements into crimes. When crimes can be defined by member nations (see Article 9.1), the ICC becomes a political, not judicial, body, open to populist will, log-rolling, or influence like Saddam's "bribes-for-veto" to France, Russia and China. Indeed, it's already begun, most recently in the Netherlands, where "left-wing organisations and activists, accused Mr Bush of 'numerous grave violations of the Geneva Conventions,'" including, "Washington's refusal to recognise the International Criminal Court (ICC), the world's first permanent war crimes court." Talk about bootstrapping! As Casey and Rifkin conclude, "After Rome, it is impossible not to conclude that these groups see the ICC primarily as a check upon a United States that has grown, in their view, too dominant in world affairs."

    Should the U.S. join, the ICC would become an anti-American soapbox, says Brett Schaefer:
    [T]he ICC could be used as a tool by those opposed to its foreign policy to make political statements through ICC prosecutions. Supporters of the ICC disparage America's policy as unnecessary. They claim that there are protections in the ICC treaty to prevent abuse of the court — after all, the court can only intervene in cases committed on the territory or involving a person of an ICC party, and then only if a nation proves unwilling or unable, in the judgment of the court, to investigate and prosecute alleged crimes.

    This is cold comfort. . . America's determination to punish perpetrators of these crimes offers no protection from politically motivated charges, . . . as demonstrated by those alleging that the incident constituted war crimes and insinuating that the U.S. is covering up particulars of the incidents. These and similar experiences — like the ridiculous charges under Belgium's "Universal Competence" law against President George H. W. Bush, Secretary Powell, Vice President Cheney, and General Tommy Franks, among others, for their roles in Operations Desert Storm and Iraqi Freedom — reinforce America's determination to protect itself from politically motivated criminal allegations. . .

    Unscrupulous individuals and groups will seek to similarly misuse the ICC for politically motivated attacks. America is uniquely vulnerable to these kinds of charges, because of its extensive network of military bases and deployments in defense of its myriad interests around the world. In many cases, its interests require a presence or deployment to an ICC party, or military action against the nationals of an ICC party. Each instance opens a Pandora's box of legal vulnerabilities ripe for exploitation.

    That the ICC can be used for such abuse is demonstrated by over 100 charges against U.S. persons submitted to the ICC in only two years of its existence.
Conclusion: Our Founders fought England because the King: 1) subjected Americans "to a jurisdiction foreign to our constitution and unacknowledged by our laws"; and 2) "transport[ed] us beyond [the] Seas to be tried for pretended offences." The ICC potentially could be as repressive as George III. It was tyrannical in 1776; it's still despotic today.

9 comments:

Tran Sient said...

Great Post. The ICC is nothing short of dangerous, and the fact that some of our leaders entertain the idea that we are beholden to it should scare the daylights out of everyone.

With a Spanish judge currently asserting his own jurisdiction over US soldiers in Iraq, can you imagine the ramifications of joining the ICC?

MaxedOutMama said...

Well now, that is comprehensive. It's the most well put together explanation of concerns about the ICC that I have ever seen!

Great job.

Dingo said...

Oh, Carl... how are thee wrong... let me count the ways.

1) That argument has been defunct since the Nuremberg trials.

2a)"Compare Is A U.N. International Criminal Court In The U.S. National Interest?" The argument that we were found in violation of international law for aiding the contras is a non-starter since we were in violation of our own laws. And, if you are going to make "sovereignty" a core of your argument, picking situations where we violated other states sovereignty is not exactly going to get you very far.

2b) Barker v. Wingo - You completely missed this one. 5 years WAS NOT too long. "Held: A defendant's constitutional right to a speedy trial cannot be established by any inflexible rule but can be determined only on an ad hoc balancing basis, in which the conduct of the prosecution and that of the defendant are weighed... compel the conclusion that petitioner was not deprived of his due process right to a speedy trial. " - also meaning each case must be determined independently (do you read these before posting them?)

2c) "The ICC possesses characteristics that would not be deemed “fair” by most Americans, including the possibility of double jeopardy, absentee trials, inability to confront witnesses testifying against the defendant, permissibility of hearsay evidence, and other usages not permitted in American courts."

Have you actually read the Rome treaty?

2d) United States v. Balsys, Slip op. at 32 (June 25, 1998) First, it is in regards to 5th amendment in an administrative court. Second, Ummm... the court overruled the appellate court. You have that backwards. So, in addition to it being fairly irrelevant:

2di) The OSI treaty completely undercuts your arguement (as recognized by the SC).

2dii) "Because foreign relations are specifically committed by the Constitution to the political branched, U.S. Const., Art II, Sec. 2, cl. 2, we would not make a discretionary judgment premised on inducing them to adopt policies in relation to other nations without squarely confronting the propriety of grounding judicial action on such a premise." - meaning, codification of the bill of rights in foreign treaties is not a pre-requisite for legality (as again shown by the OSI treaty).

3) "Once indicted, individual defendants would be tried by a bench of judges chosen by the ICC States Parties. As an institution, the ICC would act as police, prosecutor, judge, jury, and jailer. All of these functions would be performed by its staff, or under its supervision, with only bureaucratic divisions of authority."

And how is this different than say... the US court system? And actually, the comment about the police and jailer are anything but true. The ICC has no police force.

4) Umm... they have diplomatic immunity. And you also complain that the judges ARE elected. Which one is it, elected or unelected?

5a) "Thus, with only the consent of a Saddam Hussein, even if Iraq does not join the treaty, the treaty text purports to provide the court with jurisdiction over American or other troops involved in international humanitarian action in northern Iraq, but the court could not on its own prosecute Saddam for massacring his own people."

again, this only lends credence to why it would better to joined. We would then have protection under Art 17. Without joining, we don't have that protection.

5b) Dingo fails to consider the case where the U.S. doesn't press charges, but others claim an "unwillingness or inability of the State genuinely to prosecute."

Read Art 17 again... read the "shall." Shall provides a lot of protection.

6) I am not understanding this argument. Read balsys again.

7a)"Sitting on UN Commission on Human Rights are some of the world's worst mass murderers and violators of the very human rights they are supposed to protect" - Agreed, but how does this affect the ICC and our ability to set the standards?

7b) once again "Indeed, it's already begun, most recently in the Netherlands" is old news, not new. It is a "sovereign" court, and you argue for "sovereignty." Doesn't help since this has been going on long before the ICC.

Carl, you have a lot of research, but most of it is off point and contradictory.

Dingo said...

Oh yes, forgot to add this to the beginning:

Art 55
(a) Shall not be compelled to incriminate himself or herself or to confess guilt;

Tran Sient said...

'And how is this different than say... the US court system?'

Well, for one, the US court system is ordained by the US Constitution.

MaxedOutMama said...

And for another, in the last analysis the US Court system was set up by the people and maybe be taken down by the people, should we ever wish to to do so. I don't believe that will ever happen, but I do believe that the body politic which created the US constitution had a different set of values than the signatories setting up the Assembly of States which elects the justices and officers of the ICC.

Surely that makes some difference?

Dingo said...

I am talking about "police, prosecutor, judge, jury, and jailer"

The US justice system is the same thing.

Boomr said...

1. "... there is no legal authority applicable to all actors in a criminal case."

That's exactly what a treaty does: it creates a legal authority applicable to all actors who have signed the treaty, when in the absence of such treaty there would be no governing legal authority. So, signing the ICC would CREATE just such a legal authority, whereas now there is no such authority.

2. "... here the constitution trumps treaties...."

I'm not sure where you got that idea.

Article I, Section 8, clause 10 grants Congress the authority "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." Thus, Congress is empowered BY THE CONSTITUTION to follow international law.

Article II, Section 2 states that the President "shall have Power, by and with the Advice and Consent of the Senate, to make treaties, provided two thirds of the Senators present concur...." Thus, the President is empowered BY THE CONSTITUTION to create international law through treaties, and is not bound to ensure that the treaties hold the same standards as the Constitution.

Arictle III, Section 2 (which lists the extent of judicial power of the Supreme Court) states, "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority...." Thus, the Supreme Court is empowered BY THE CONSTITUTION to put treaties on equal footing with the Constitution as the law of our nation.

So, the Constitution does not "trump" treaties.

3. The ICC may not "arbitrarily ignore the finding of the courts of sovereign states on the same case." There are at least three hurdles that the ICC must jump before a U.S. citizen may be tried for a second time before the ICC: (1) the prosecutor's office must have a reasonable basis to believe that the original trial was a sham (Art. 15); (2) the prosecutor must submit his findings to the Pre-Trial Chamber, which also must find that the original trial was a sham (also Art. 15); and (3) if both (1) and (2) were satisfied, the Prosecutor must still prove to the Trial Chamber, in open court, that the original trial was a sham.

Article 17 states that the ICC "shall" deem the case inadmissible if it is being investigated or prosecuted by the country having jurisdiction, and "shall" deem the case inadmissible if the country with jurisdiction has investigated and decided that prosecutiong is unwarranted. The only way to get around this "shall" language is through Article 30, Section 3, which states,

"No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:
(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or
(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice."

This language is by no means "abitrary" in its ability to ignore previous investigation and/or prosecution.

4. Your argument about delegation of prosecutorial powers to a foreign body only works if the U.S. has (1) investigated the elected officials; and (2) decided to shield those officials from prosecution in the face of evidence damning them. Are you seriously suggesting that if an official of the U.S. had a part in a war crime that there would be absolutely no punishment for him from WITHIN the U.S.? And, if so, are you saying that such protection SHOULD BE afforded to our elected officials who commit war crimes? Your assertion only works if you assume (or propose) that our nation would shield war criminals.

5. Your limited argument with respect to the "overbroad" jurisdiction of the ICC ignores the realities of modern warfare, especially when waged by either U.N. forces or by the U.S. Through status of forces agreements (SOFAs) and through U.N. Security Council resolutions (see UN S.C. Res. 1422, 1487, and 1497), forces in peacekeeping or other military conflicts are often shielded from prosecution by anyone (including international bodies) but the "exclusive jurisdiction of the state" whose officials are accused, unless that state specifically waives such exclusive jurisdiction. The U.S. has been quite adept at including this language in any resolution or treaty requiring its military presence. This language would, indeed, "trump" the language of the Rome Statute.

6. "The ICC exceeds established international law precedent."

That only matters if someone is arguing that the ICC is CUSTOMARY international law. The ICC is, however, a TREATY-BASED body, so customary international law is fairly meaningless (unless you're making the weak "universal jursidiction" argument, which is rebutted by standard U.S. operating procedure, see above No. 5). Countries can do whatever they want through treaty -- they don't need to conform treaties to "established international law." In fact, "established international law" (i.e., customary international law) is often CREATED by treaties that, when first drafted, depart from the normal legal strictures of the law of nations. Just look at the customary international law with respect to human rights, which has pretty much developed whole-cloth over the last 50 years, but is now considered "customary." Treaties create international laws; they don't have to follow them.

7. "Signing on to the ICC would transform disagreements into crimes."

No, the crimes outlined in the Rome Statute are internationally- and domestically-recognized crimes already. The U.S. has domestic laws and has ratified treaties (making it domestic law) prohibiting every single activity mentioned in the ICC statute as criminal conduct prosecutable. The ONLY way a U.S. soldier or official would be implicated in an ICC proceeding was if the U.S. itself failed to investigate and/or prosecute crimes which its own laws even criminalize.

8 (Conclusion). Our founders did not fight England because "the king subjected Americans 'to a jurisdiction foreign to our constitution and unacknowledged by our laws;'" at least, it wasn't the British that was the "foreign jurisdiction." The entire quote from the Declaration of Independence actually says, "He [the king] has COMBINED WITH OTHERS to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation."

At the time that these words were written and we fought the British, there was no Constitution -- the Constitution was not created until 1789, thirteen years later, long after the Revolution had been won. Let's not forget that for a time, we lived under the Articles of Confederation before the Constitution. The reason we fought the king was because the colonists in America were being taxed and governed by a sovereign (to which they were all citizens, by the way) without having any sort of representation in that sovereign's government. Our laws were Britain's laws at the time, so whatever our laws "acknowledged" was "acknowledged" by Britain's.

As for the analogy to the ICC, everything the ICC contemplates is "acknowledged by our laws," and any such jurisdiction of the ICC would come only with our assent (or our gross malfeasance by protecting war criminals). This is not the end of sovereignty for America, it is the beginning of a system whereby American can lead the way in exporting human rights and the prohibition of crimes against humanity. Why should we balk at that opportunity?

Boomr said...

In part 3, make that "Article 20, Section 3," instead of "Article 30..."