July 30, 2003

Discrediting the ICC

I'm a big fan of bringing dictators to justice. And so in principle I should wholeheartedly endorse the new International Criminal Court in the Hague.

Some of the conservative arguments against it don't wash, as Randy Paul ably demonstrates. But nothing will discredit it faster than politically motivated accusations like this one.

Tony Blair was accused yesterday of "crimes against humanity" in a lawsuit lodged at the International Criminal Court in The Hague by Greek lawyers.

Say what you will about the Iraq war. Say it wasn't worth it if you must. Gripe about proceduralism if that's what you care about most.

But liberating an enslaved people from a genocidal monster is not a crime against humanity. It put an end to crimes against humanity.

Placing bleeding-heart liberals like Tony Blair in the same moral category as Saddam Hussein and Pol Pot won't garner a whit of sympathy from the United States for any court that might take such arguments seriously.

I think it's a shame that General Pinochet is still living in his mansion in Chile after he was thrown in the slammer in Britain. And it's worse that no one got Idi Amin extradited from Saudi Arabia before he died an old man in Jidda. France should be ashamed of itself for letting "Baby Doc" Duvalier move on in.

So, seriously, what kind of moral idiot scans the international scene for the worst criminal elements and zeroes in on Tony Blair after passing over Kim Jong Il, Robert Mugabe, and the rest of them?

I'd love to see an international criminal court that does what it says it will do. But maybe we aren't grown-up enough yet to make it happen.

Posted by Michael J. Totten at July 30, 2003 08:09 PM
Comments

"But, seriously, what kind of moral idiot scans the international scene for the worst criminal elements and zeroes in on Tony Blair after passing over Kim Jong Il and Robert Mugabe?"

A good question needing an answer. And, would that answer be related morally to why Libya can be "in charge" of human rights at the U.N., etc.?

There seems to be enough of this kind of moral problem around that maybe politicization of an ICC is a legitimate worry for the forseeable future.

Posted by: Stephen at July 30, 2003 09:02 PM

could it be that only law abiding countries abide by the law? the only place you could possible enforce laws is in law abiding countries so the little nork b**tard and robert mugabe will just laugh at you.

Posted by: Captain Scarlet at July 30, 2003 09:09 PM

I think you may be jumping the gun, Michael. At this point, this suit says a lot more about the Athens Bar Assn. than it does about the ICC.

I'm deferring judgement after seeing how the ICC dispenses with this nonsense.

Posted by: Bill Herbert at July 30, 2003 09:09 PM

A group of British lawyers had threatened to bring Blair before the ICC for war crimes for merely going to war with Iraq, irrespective of the conduct of the war. I suspect the Greek lawyers have initiated their suit for the same reasons.

I believe that Ad Hoc court systems are our best option for handling cases involving gross human rights abuses, but the ICC (or any permanent court) will always attract cranks because radicals are inclined to claim that any and all actions by the US and her allies is a "crime against humanity."

Posted by: Matthew at July 30, 2003 09:15 PM

The problem with the ICC is just another version of the problem with the UN. The UN treats sovereign nations like citizens in the naive faith that they will act like citizens. The ICC treats citizens of different states as if they were all subject to the same laws. But in neither institution is there a robust tradition of citizenship to hold up as a model, nor is there a real (i.e., powerful) reason for bad-faith states and individuals to live up to the expectations of their peers. So cretins (the Greeks in the case of the ICC and the Libyans, the Iraqis, the French, and many more in the case of the UN) will always have the upper hand over upstanding, fair-playing members.

The best way to enforce adherence to the norms of enlightened human behavior is to build up a morally praiseworthy superpower and then let it impose its will on the world. Which is, I hope, what the US is in the midst of doing.

Posted by: Geoff Pynn at July 30, 2003 09:25 PM

I agree with Bill: let's wait and see what the ICC does. If the fact that idiots can file lawsuits were enough to discredit a court, we'd be reduced to settling cases in the United States by peering at goat entrails.

Geoff: not so. There are innumerable examples throughout the history of the United States of people using decent means to overcome evil. In fact, you could even say that our entire country is founded on that principle, and it's worked pretty well, hasn't it?

Posted by: Kevin Drum at July 30, 2003 09:44 PM

Kevin: If the court rejects the case, I'll give it some slack.

Posted by: Michael J. Totten at July 30, 2003 10:07 PM

The ICC offers the citizens of corrupt, illiberal governments a chance to bring their own leaders to account. But the ICC is not better than the existing legal system of the US - or any other Liberal Democracy. It does not have a trial by jury of one’s peers, nor does it have an appeals process, and the citizens of THIS liberal democracy have little to say about the appointment of its judges. Therefore, while justice for the citizens of other nations may be IMPROVED, it will only be DIMINISHED for our own. Thus we have no reason to comply or assist in the project unless we, and all healthy democracies, are granted immunity. In fact, and this isnt said enough, it may be illegal, ie unconstitutional, for us to do so.

Posted by: sblafren at July 30, 2003 10:40 PM

I think it's a shame that General Pinochet is still living in his mansion in Chile after he was thrown in the slammer in Britain.

I am firmly of the opinion with many Chileans that General Pinochet was a hero who saved Chile from being another Cuba. Allende was a Marxist hell bent on establishing a communist dicatorship in Chile. His methods were brutal, however he saved Chile and he did leave power after his work of establishing a democratic prosperous Chile was done.

Posted by: Tristan Jones at July 30, 2003 10:41 PM

Kevin: Yes. But any example of an American citizen working ("decently") within American society to overcome evil will be irrelevant to the point I was making. My point is that transnational institutions aren't well-suited to overcoming evil since they aren't steeped and forged in the same rich traditions of Enlightment morality and idealism that American polity is.

I have more faith in the potential for the spread of American power and influence to do good in the world than I have in institutions devoted to a blind, internationalist egalitarianism.

Posted by: Geoff Pynn at July 30, 2003 10:43 PM

Tristan:

Salvador Allende was a democratic socialist. Pinochet was a fascist dictator who threatened "to strangle even the memory of democracy in Chile." Allende made no such threat, and could simply have been voted out of office in the next election, which would have been a near certainty if Chileans didn't have to wait almost two decades before they could vote again. I'm no Allendista, but I'd rather have him as my boss than the mass-murdering general. So what if Pinochet did some good things, too? Castro supposedly raised the literacy rate in Cuba by a huge margin, but he's still a tyrant.

Besides, it is possible to be against both Allende and Pinochet. It is not a binary proposition here.

The fact that so many conservatives are willing to put up with Pinochet's brutal crimes and even hail him as a hero is one of the reasons so many liberals think conservatives are full of it when they talk up human rights.

I am categorically against dictatorship, and it never ceases to amaze me how many people this puts me at odds with. I don't care if a dictator is left-wing or right-wing or what. They aren't heroes. They are punks and thugs.

Posted by: Michael J. Totten at July 30, 2003 11:17 PM

I am firmly of the opinion with many Chileans that General Pinochet was a hero who saved Chile from being another Cuba.

This is something I've always wondered about. What do most Chileans think about the coup?

I agree that an ad hoc system designed to address grievances from clear human rights violations is a better idea.

Posted by: linden at July 30, 2003 11:21 PM

Linden,

I have been to Chile. They have a street in downtown Santiago named "Avenida 11 Septiembre," the date of the coup.

They do not honor the day. They mourn it.

But there are some who still admire Pinochet anyway. He is a polarizing figure, but he is only admired by a minority.

Chile today has a strong economy (most Americans would be surprised if they went there) and a deeply democratic society.

Posted by: Michael J. Totten at July 30, 2003 11:31 PM

Allende came to power in a backroom deal with the military. He should have left via a similar deal. But he was a meglamaniac(sp?) who believed that he had been democraticaly ellected and refused to leave with out a vote. The problem with that is that communist thugs were attacking people with machettes and clubs, as we right wing thugs, the place was a mess and no vote would have been legit. Pinochet AND Allende were both bad, I agree that it is not an "binary choice". But if Chile wants to bury the hatchet with amnesty laws, which many nations use to get past civil war, who is Spain or the ICC to say no? In fact, Spain used similar amnesty laws to get past its old dictator. Seriously, of all the people on earth what makes the EU qualified to judge? Most EU states still have a titular monarch and a social elite the likes of which we Republics can only immitate. Why not let the victors decide how to try the losers, and then make sure that the people win over their tyrants? i.e. makeshift courts of reconcilation, truth committees, or warcrimes tribunals.

Posted by: sblafren at July 30, 2003 11:44 PM

I couldnt resist, a longer response to the ICC is posted here.

Posted by: sblafren at July 31, 2003 12:12 AM
The fact that so many conservatives are willing to put up with Pinochet's brutal crimes and even hail him as a hero is one of the reasons so many liberals think conservatives are full of it when they talk up human rights.

Michael, with all due respect, the day that even a small number of conservatives gush over Pinochet the way that sizeable numbers of liberals still fawn over Castro is the day I'll let liberals lecture me on human rights. That said, I'll agree that Pinochet was a rotten SOB and I think support for his regime, and more damningly, Washington's support for politicide in Guatemala, are two of the more lamentable episodes of the Cold War in Latin America. And I think all of the commenters here can agree that the cause of human rights is clearly set back whenever ideological factions in Western democracies start playing footsie with their own "favorite" dictators.

That said, I favor the Ad Hoc approach rather than the ICC, since Ad Hoc courts (and to a lesser extent, tribunals) are only formed given a clear need and mandate. Now, the international law liberals don't want to hear this, but the ICC can't work unless the US and EU actively topple regimes and send their leaders to the Hague for trial. (I've posted a little bit more on the subject here.) Barring that happening sometime soon, the ICC as a standing court will continue to deal with these joke cases for the forseeable future, and it won't be able to prove its worth as an institution for some time to come.

Posted by: Matthew at July 31, 2003 12:19 AM

So, if the US is the GloboCop of the world, what does this make the EU... GloboJudge? Or more over the top, GloboTribunal? Will other nations specialize in GloboProsecution and GloboDefense? Who would be the usual GloboPerps and GloboVictims? This just begins to get silly real fast. ;-0

Posted by: sblafren at July 31, 2003 12:23 AM

The ICC is based on the false premise that international relations are structured in such a way as to be able to credibly give any world body broad political (including judicial) authority. Ad hoc tribunals have worked in those situations where there is general consensus among the leading democracies on issue of international justice that itself is ad hoc. The ICC is doubly nefarious in that it institutionalizes the ability of tyrannies, their supporters - in fact anybody - to challenge even those actions on which there is otherwise broad consensus, within the UN framework or outside of it. It is particularly inimical to U.S. interests in that it would allow the post-historical world not only to freeride on the US's role in maintaining the global stability the nurtures their illusions, but to actively hamper it and carp from the sidelines.

Its threat however should not be exaggerated. It will quickly become a joke. Otherwise, the French (to take but one example) would not have finally signed on, with a seven-year self-exemption clause, after vigorously opposing its very principle for years (Rwanda etc.). The day that Jacques Chirac has to face charges brought before the ICC, we already know that the French will ignore the court- and that is precisely why they are signatories. In contrast to many, the U.S. actually takes its commitments seriously. In this respect, its failure to "adhere" to the ICC where others supposedly have is meaningless. (In this respect, one might also mention Kyoto.)

Ultimately, the problem isn't whether Pinochet is or is not a bad man. It's that the ICC renders the question both trivial and irrelevant.

Posted by: Gabriel Gonzalez at July 31, 2003 12:39 AM

"The ICC offers the citizens of corrupt, illiberal governments a chance to bring their own leaders to account."

Not really. The citizens of those governments will be disappeared if they try to bring their Dear Leaders to account in any venue. The ICC is a mechanism for people of one nation to bring the leaders of another nation to account, and I am very wary of institutionalizing that practice.

Posted by: R C Dean at July 31, 2003 04:11 AM

Speaking as a right-winger here,even if one agrees that the overthrow of the Allende regime was necessary to save Chile from communism (I'll defer judgment until I know more about the facts),that in NO WAY justifies the "Caravan of Death" and the murder and torture of people whose only "crime" was to disagree with the regime.

Pinochet could have just sent those people to exile.Not nice,but a lot better thing to do than what eventually happened.And BTW,this is not just a matter for Chileans to decide.If my memory serves me right,it was for murder of a Spanish citizen that judge Baltazar Garzon wanted to extradite the General from London in the first place.The Junta didn't just kill Chileans,you know.

Posted by: JH at July 31, 2003 06:25 AM

>>I have been to Chile. They have a street in downtown Santiago named "Avenida 11 Septiembre," the date of the coup. They do not honor the day. They mourn it.

Sounds like September 11 is a day of mourning to a lot of peoples.

And it's a shame it's also my brother's birthday...

Posted by: Barry at July 31, 2003 07:03 AM
There are (at least) three problems with the whole concept of ICC:

1) The risk (probably realized) of politization: there are strong chances the ICC going after US, British or Israeli targets intead of, say, North Korean, Sudanese or Rwandan ones. Anyone ever heard of the ICC going after the Saudi and Sudanese who perpetrated mass murder and rape in South Sudan.

2) The irrealism of a purely juridical approach. Had the ICC existed in 1945 the people who ordered the bombing of German factories and cities would have been prosecuted. Problem number one: Given 1942-45 technology "zone bombing" was the only realistic option. Problem number two: It had the "collateral benefit" of helping to stop a genocide . But on a purely legalistic approach those kinds of considerations would be ignored: you bombed Hamburg, you are guilty.

3) The whole legitimacy of the ICC. In democratic nations judges are appointed either directly or indirectly by the people. We have no such mechanism here. Second: There are appeal courts. Nothing here. Third: There is separation of powers. The law is made by the legislative body and judge has to obey it. He cannot mold the law to his covenience in order to jail a guy whose gaitr color displeases him. In the case of ICC we have a body who takes intitiave of prosecution (usually a privilege of the executive), who makes her own rules (legislative) and judges people according to them. All of this without right of appeal and without any control by the people.

Posted by: JFM at July 31, 2003 07:35 AM

Being a person that opposes any form of International Court system, you have hammered my concerns perfectly clear.

The ICC would be a mirror the U.N. Instead of fulfilling the grand vision (that I will admit is a wonderful one), it would be used as a political tool by nations against the U.S. and its allies.

As long as nations like Lybia, or Iran, or in this case Greece, are allowed to "bring charges" that we must have to answer for, I do not think that the United States should have any part in this. Our nation defends the world - and in doing so we put our troops into some of the most hostile situations possible. The last thing that we need is oversight from a nation with no troops, no interest in the situations at hand and no moral right to question our involvement. The only reason they would do so would be to bring the U.S. down to the level of their incompetence.

Perhaps one day this world will be ready for an International Court. But until the day when justice worldwide more closely mirrors justice - and not political maneuvering - we need to have nothing to do with an ICC.

Posted by: Roark at July 31, 2003 08:11 AM

JFM provides a good summation of the arguments against the ICC. But I am not convinced that they're valid.

On politicization, that's a risk with any human institution or endeavor, and I just don't see it as a reason to reject it out of hand. JFM's second point is really a restatement of his first one, and I don't really buy the argument that an ICC in 1945 would have prosecuted the allies for Dresden. The expectation of sparing civilian populations and infrastructure from bombing campaigns simply did not exist back then.

None of these nightmare scenarios are a necessary reality. Like the UN, the ICC is just an institution. It can never be greater or more just than the actors who utilize it, but it is malleable.

If we want to prevent the ICC from becoming a RAmsey Clarkian kangaroo court, we could certainly do that. Instead, we've chosen to wash our hands of it entirely, then bitch about these developments. It was the same way when the U.S. was voted off the UNHRC in May 2001. Sure, it was an outrage, but we bore some responsibility for it because we really didn't do much to stop it. The EU colluded to get more of its members on the commission by pushing us out, and we did nothing to counter their caucusing efforts.

I remember at the time, Richard Holbrooke commented that blaming the UN for that slight was like blaming Madison Square Gardens for the Nicks getting their asses kicked.

As for JFM's third point, I think that's actually an argument in favor of a multilateral institution like the ICC. "In democratic nations judges are appointed either directly or indirectly by the people." Exactly. Thugs like Idi Amin, Pinochet, Castro, and cavalcade of others, will never be held accountable by their own institutions.

Nearly everyone agrees that we should at least have ad hoc multilateral courts to deal with genocidal dictators. I have yet to see a valid reason why it would be acceptable -- or even better, for consistency's sake -- to have a standing one.

All that said, I still have reservations about this ICC, precisely because the U.S. has abdicated its role as a world leader to actively shape it.

Posted by: Bill Herbert at July 31, 2003 08:35 AM

“JFM provides a good summation of the arguments against the ICC. But I am not convinced that they're valid.”

JFM, a correction, there IS an appeals process in the ICC, now. I believe this is an improvement over what I understood they would do when I looked into this a while back. I haven’t been able to identify the pressure group that won this change, but anyway… it still sucks because you are essentially appealing to the same body, under the same rules. In the US you are tried locally, appeal regionally and nationally, under both state and national constitutions.

“On politicization, that's a risk with any human institution or endeavor, and I just don't see it as a reason to reject it out of hand.”

I disagree with your premise. Sure, politics works its way into everything. But some setups are inherently more or less political. A military operation has political pressures and ramifications, but if led by generals on the ground it will respond more to logistics and practicality. However, if led from Washington by committee… you get Vietnam. The UN started out as much more of a reflection of existing political realities… the Security Council was all that mattered and it was locked into the Cold War form. However, since the end of the Cold War and the rise of the importance of the UN committees and commissions (an importance that we give them by paying them any attention) the UN has become MUCH more politicized. This version of the ICC starts out as a political tool, as evidenced by this its first important case being the accusation of liberal western democrat rather than the obvious characters of evil around the world. I’d say that this alone refutes your idea.

“I don't really buy the argument that an ICC in 1945 would have prosecuted the allies for Dresden. The expectation of sparing civilian populations and infrastructure from bombing campaigns simply did not exist back then.”

The current suit against Blair is not even over HOW he prosecuted the war, carpet bombing or now, it is merely that he authorized it at all! Thus an ICC in 1945 would have prosecuted Roosevelt and Churchill for merely fighting Hitler, let alone bombing Dresden, let alone HOW it was bombed.

“None of these nightmare scenarios are a necessary reality. Like the UN, the ICC is just an institution. It can never be greater or more just than the actors who utilize it, but it is malleable. “

That’s the problem, it is malleable by and to the least responsible players.

“It was the same way when the U.S. was voted off the UNHRC in May 2001. Sure, it was an outrage, but we bore some responsibility for it because we really didn't do much to stop it. The EU colluded to get more of its members on the commission by pushing us out, and we did nothing to counter their caucusing efforts.”

I don’t see one single way the US could have avoided this. There are no procedural methods in place for a Security Council member to fight such “collusion”. What could we have done, begged the French?

“As for JFM's third point, I think that's actually an argument in favor of a multilateral institution like the ICC. "In democratic nations judges are appointed either directly or indirectly by the people." Exactly. Thugs like Idi Amin, Pinochet, Castro, and cavalcade of others, will never be held accountable by their own institutions.”

Huh? So you are supposing that Pinochet and Castro were democratically elected and enjoy the support of the people so that they can appoint whatever judges they wish? Really, you have underlined why the ICC is unnecessary and in fact dangerous. That is, any nation that could fairly nominate and vote for an ICC judge doesn’t need it. Meanwhile they will be consistently thwarted and abused by regimes like Castro’s, which get the same right to nominate and vote for judges as Canada.

“If we want to prevent the ICC from becoming a Ramsey Clark kangaroo court, we could certainly do that. Instead, we've chosen to wash our hands of it entirely, then bitch about these developments. I have reservations about the ICC, precisely because the U.S. has abdicated its role as a world leader to actively shape it.”

This is an unfair criticism. The French got to shape the entire structure of the court… yet they insisted on an automatic pull out clause before they would sign the charter. So, signing on to the court is no guarantee that it wont screw you, ask the French.

Posted by: sblafren at July 31, 2003 09:02 AM

This isn't complicated. The ICC is a solution looking for a problem. If countries have the political will, they may indict these criminals under existing war crimes precedent. Those that have not been brought to justice, it is because there was no political will, or the evidence was inflated for political reasons that was either spurious or exaggerated.

The US refuses to sign this for more than one reason. We are the target for its use by Leftist and other American hating parties (lawyers or otherwise). More importantly, we are Americans. We have a Consitution and Bill of Rights that define our freedoms. Why in the hell should I cede ANY FREEDOM to some other country or vague international insitution? WHY? It makes me furious to consider. We have done so enough in these so-called international treaties. Europe's plan is to draw us ever deeper into this kind of nonsense so they can control us, either directly or through exerting pressure on an international forum. Witness the UN.

Posted by: Richard at July 31, 2003 09:52 AM

The problem is that the ICC seems institutionally designed to favour frivolous suits of this nature. Think of it this way - suppose the ICC grows a backbone, and decides to indict Kim, Mugabe, Taylor, and Assad. What happens then - do they willingly give themselves up, and accept the judgement of the court? Nobody really expects this to happen, so the only effect filing an indictment against these monsters is to illustrate the impotence of the ICC.

Instead, the only countries likely to take a judgement of the court seriously are either the liberal, democratic nations which either already already have the institutions to deal with war crimes, or emerging democracies in which the despots have recently been deposed from power, and the institutions designed specifically to deal with them are likely to be created (often with international backing).

In other words, the only places the ICC is likely to be used are the places least likely to require them. And if most people think the ICC unnecessary in those places, the only ones left to file the indictments are the crackpots.

Posted by: George at July 31, 2003 09:55 AM

Idi Amin died?

The whole debate over ad hoc vs. ICC is moot, since these types of trials are rare anyways; as M.T. notes, most dictators live out their lives in splendid exile. The ICC at least promises to institutionalize the concepts of "crimes against humanity", to ensure that no matter what steps a despot takes within his own country to legalize his actions, international standards will prevail. To get rid of the threat of bogus lawsuits (and I, as an opponent of the war, believe that these charges against Mr. Blair are frivolous), the ICC needs to have some sort of mechanism forcing the loser to pay if there is a determination that the case was brought in bad faith, or if the charges are wholly meritless.

Posted by: Steve Smith at July 31, 2003 09:59 AM

There is one more reason to be wary of the ICC. It allows secret witnesses and evidence to be used against the accused thus coming in conflict with the sixth amendment.

Posted by: john cheeseman at July 31, 2003 10:46 AM

This version of the ICC starts out as a political tool, as evidenced by this its first important case being the accusation of liberal western democrat rather than the obvious characters of evil around the world.

As I said in my first post, there is no evidence at all (yet) that the ICC has become politicized at all. It hasn't taken any action on the Greek suit, and it simply doesn't follow that because the Greek are trying to to turn the ICC into a Leftist kangaroo court that it has become one. Whydon't you see what the court does before jumping to conclusions?

Huh? So you are supposing that Pinochet and Castro were democratically elected and enjoy the support of the people so that they can appoint whatever judges they wish? Really, you have underlined why the ICC is unnecessary and in fact dangerous.

Uh, no. I pulled that quote to illustrate why an ICC is needed to deal with despots who get to pick judges themselves, instead of allowing their people to do it.

I don’t see one single way the US could have avoided this. There are no procedural methods in place for a Security Council member to fight such “collusion”. What could we have done, begged the French?

No, we could have done the same thing they did, and worked to get other members to block their move. That's how diplomacy is done. You seem to have an expectation that the rest of the world bend to U.S. will without us even having to exert any effort to make this happen.

Posted by: Bill Herbert at July 31, 2003 01:29 PM

Bill, I agree, I should not have suggested that the Greek suit PROVES that the ICC IS a Kangaroo Court. It does not, because, as you said, the ICC has not agreed to hear it. But, it doesnt bode well, can we agree on that?

Castro, Pinochet, and these guys do appoint judges and wont be fairly tried at home (or tried at all). But these guys also are nto signatories of the ICC (well, Argentina is now, but the ICC is not retroactive, so it cant try Pinochet anyway). As many have noted then, those that SHOULD be tried by this court wont and those that could be tried SHOULDNT (because they DO have adequate legal systems back home). Or do you suspect that the UK legal system is in collapse? (ok, nevermind, that could be another longer conversation).

The French negotiated an instant out and a 7 year sunset to their participation. Even thought they have been rather insturmental in its creation, even they dont trust it. Could the US have singed on and tried to manipulate the set up of the ICC? Sure, and then everyone would complain that it was OUR kangaroo court. It is a lose lose situation.

Still, no one has proved to me that we would benefit in anyway from this so-called ICC. How does it help us? We cant prosecute Mugabe under it. We can only prosecute people from nations like Spain and France (hah, give me your best estimate of the response of Chirac if Asscroft brought suit in the ICC for Chirac's violation of UN sanctions and the sale of deadly, banned weaponry to Iraq).

Also, please keep in mind that Argentina, for one, doesnt WANT its former military men tried because that would upset the amnesty law that they passed to help settled the change to civilain government... but Spain is trying them anway, and if the ICC WAS retroactive it would probably be tried there instead. And so I ask what about letting a nation settle its own score when the battle is over? I bet you will say find. But then that leaves us with whom, exactly, to prosecute, just ourselves?

The best solution for centuries has been ad hoc tribunals formed by the victors after war are over. If you want to make these tribunals answerable to the UN I would be happy to discuss this (but I would also want to discuss the inherrent undemocratic set up of the UN).

Posted by: sblafren at July 31, 2003 03:12 PM

sblafren,

The Greek suit doesn't prove that the ICC IS a kangaroo court. It is further evidence that it WAS ALWAYS a kangaroo court.

The ICC is dead. At this point, it only exists in the minds of few international bureacrats and the fantasies of certain "anti-war" activists. I suggest we start referring to it in the past tense and talk about why it died.

Posted by: Gabriel Gonzalez at July 31, 2003 04:37 PM

I don't have high hopes for the ICC for the same reasons outlined above. That said, I'm prepared to see how this Greek case and others pan out.

As of July 17th, the ICC had received over 500 complaints (called communications). Most were from people and organisations in Western nations and a sizable chunk (the Washington Times reported that 100 were related to the war in Iraq) were against US and allied troops - accusing them of aggression against Iraq.

This despite the fact that the USA has not signed the ICC (neither has Iraq) and therefore it's troops do not fall under its authority.

Additionally, the crime of "aggression" is on the ICC books but is currently undefined.

So the fact that nothing happened is laregly due to technicalities rather than any checks or balances in the ICC process.

Posted by: bargarz at July 31, 2003 05:34 PM

Speaking of EU caucusing...

Why is it that an organisation whose elites are so keen for it to speak with one voice in foreign affairs matters feels the need to pad out international bodies with its multiple national representatives. Surely one EU representative and one EU vote is enough?

(/evil)

Posted by: bargarz at July 31, 2003 09:12 PM

No, Sean, I don't think this single incident "bodes" for the ICC one way or another. We have nutcases in America who file frivolous and malicious lawsuits in our own domestic courts all the time. In fact, I see no reason why a modern day Christic Institute couldn't do the exact same thing the Greek Bar has done, only in a U.S. federal court. Is that a reason to tear down our own court system?

As many have noted then, those that SHOULD be tried by this court wont and those that could be tried SHOULDNT (because they DO have adequate legal systems back home).

Exactly. The ICC supposedly has provisions that prevent it from going after individuals whose national courts are capable of looking into the charges (assuming they are even worth looking into). It's also been argued that these protections are insufficient, because they still allow for discretion by the ICC judges. I'm not convinced by those arguments, because I generally don't like legal systems that do not allow for human interpretation at all.

I also don't buy that ad hoc tribunals are the best solution for trying war crimes. A common criticism of Nuremberg-style courts is that they are exclusively for the further punishment of the vanquished, and that they never go after crimes committed by the victors. Although I think the proceedings have been fair, this criticism has certainly been borne out by the record of judgements by these courts. Hence, it is at least as valid a criticism as the assertion that the ICC will be a tool for Leftists and other disgruntled 3rd World authoritarians who want to stick it to the lone superpower. Unlike the other criticism, this hasn't happened at all.

Some predicted the same thing about the WTO -- that it would be a vehicle for the South to stick it to the North. That hasn't happened either.

Finally, I would just add that the French insistence for an "opt out" clause says far more about the French than it does about the ICC.

Posted by: Bill Herbert at August 1, 2003 05:34 AM

And I ahev to add another lack of ICC: trial by jury. There is areason for juries: in cases where the accused risks life or a substantial privation of liberty most, perhaps all democratic systems wanted the person being judged not by professional judges looking for two hundred years old precedents or the position of a cmma in the book but by persons reacting withe their consciences. More importantly the jury repesents the entire nation as it was deemed that only the people (as in "We, the people of United States") could sentence someone to death or long jail sentences. Not mere judges. And that is what the ICC judges are: mere judges. Not the people, not the representatives of humankind.

Posted by: JFM at August 1, 2003 06:15 AM

The ICC has a pdf on their website under Communications We Have Received. They note that the “communications” that they received between July 2002 and July 2003. They include 16 allegations against the US for crimes against Iraq, 2 on IDF forces in the WB and Gaza, one allegation against government forces in the Ivory Coast, and six allegations regarding non-governmental forces in the Congo.

But you might also notice that the ICC had to decline to prosecute, since the nations are not signatories. "The Office has received communications... but since neither [party] is a signatory, the ICC has no jurisdiction..." This applied to Iraq, the US, Ivory Coast, Israel, and many others.

The ICC's own "about the ICC" section states: "Jurisdiction - Once a State becomes a party to the Statute, it accepts the Court's jurisdiction with respect to crimes under the Statute. For the Court to exercise its jurisdiction, the territorial State, or the State of nationality must be a party to the Statute."

If the only people who could be prosecuted by the ICC have to come from nations that are sufficiently "civilized" as to have signed the treaty in the first place, then what is the use of the ICC. These nations already have adequate courts. And the nations who don’t wouldn’t, wouldn’t comply (France has an automatic pull out clause).

If we are really talking about distressed third world nations, that are most likely to commit a "war crime", then ad hoc tribunals have been the traditional, and largely successful, method of dealing with these issues. Although some nations prefer to go the amnesty route and others compromise with "truth councils" that identify crimes but purposefully do not prosecute.

So, we might as well be honest here... the main purpose of the ICC is to allow Europe to heckle the United States. And that is why we don’t go along with it.

You can find the ICC website here.

We already have laws on the books in America for these crimes, you can find one of them here. And yes, we do prosecute our own.

And you can find my full assessment of the ICC here. Note that I agree with JFM, the ICC lacks trial by jury of peers, local and national appeals process, and a constitution.

Posted by: sblafren at August 1, 2003 03:37 PM

first, i think it will be a cold day in hell before the usa subjects itself to the authority of a court whose main purpose in life will be to criminalize american foreign policy. it will do other things as well, and some of them will be good things and necessary things, but the underlying purpose of the court will remain the same: hamstring the americans. as for the discussion about allende, my reading of the events of 1973 has been that allende, who was a minority president just like dubya, was surrounded by hardcore leftists he either could not or would not control, and it takes little acquaintance with the facts of modern history to know that when the hardcore of the left or right get their foot in the door they are impossible to get rid of; one only has to remember goebbels' quip that when the nazis finally got power they would have to be carried dead from their offices, a sentiment lenin would have agreed with. much is made of the cia's involvement in chilean affairs in the early 70's and rightfully so, but let's not kid ourselves: the cia was successful in chile because there significant numbers of chileans who thought allende was a menace who had to be stopped. from what i've read i dont think these people thought that pinochet would stay in power as long as he did, but lets look at the reality: since 1959 chile has been a constitutional democracy, a military dictatorship, and then returned to a constitutional democracy on the strength of a plebiscite authorized by the military dictator. in the same period of time cuba has been a communist tyranny ruled by one man and his minions. so did the antiallendistas have something to worry about? judge for yourself. as for pinochet being a fascist, this is nonsense on stilts. pinochet was an old fashioned south american caudillo who let his university of chicago technocrats practice their theories using chile as the guinea pig. italian fascism and german national socialism were marxist leninist constructs that used the state in the place of the proletariat. if pinochet can be compared to anyone, that person would be franco, who used the falange and its oddball ideas as window dressing for an old fashioned dictatorship. i wonder how much of this penchant for indicting latin americans in spain is based on these judges never being able to get their hands on franco, who would never have authorized a plebiscite on his rule that he couldnt win in a heartbeat.

Posted by: akaky at August 2, 2003 10:23 AM

Akaky,

I agree that Pinochet was most like Franco. And Franco, too, was a fascist. He was armed by Adolf Hitler.

And Nazism wasn't Marxist. It was very much anti-Marxist, which is why so many right-wingers at the time liked him. That the two had many things in common doesn't make them the same.

Brush up on your George Orwell.

Posted by: Michael J. Totten at August 2, 2003 11:31 AM

Michael, Francisco Franco is still dead and even when he wasn’t dead he wasn’t a fascist. He had no problem using the Falange to serve his own ends, but in the end, Franco was his own man. Hitler and Mussolini armed him and they were paid, in full, for their arms; Franco never let them have any kind of political or military control over his forces. The Republicans, on the other hand, mortgaged their political, economic, and military future to Stalin, who dropped them like a hot rock when it suited his purposes. If we use the same who armed whom standard today then it stands to reason that everyone the United States supports is a fervent believer in free markets and constitutional democracy. (You can all stop laughing now)

As for Nazism, what a thing says it is and what a thing does are two different things. Remember, Nazi means National Socialism. It is a political construct in which the role of the proletariat in the Marxist analysis is taken over by the Aryan Volk. The dictatorship of the proletariat, or the Volk, is done through the revolutionary vanguard of the Party, whose most perfect will is expressed by the Leader. At its most basic, there is no real difference between the two, except that the Communists would take Jews as members and the Nazis would not. If you disregard the Marxist economic poppycock and the Nazi biological codswallop for the outdated mish-mash of incredibly stupid nineteenth century ideas that they are, then you are left with ideologies with very little that separates them. And, of course, Orwell knew that. To me, the central message of 1984 is not that communism is bad or that democracy is good or any of that stuff. I think Orwell’s central message in that book is that any ideology, whether it is communism, fascism, or Islamic theocracy, when combined with an absolute control of the police power of the state, will in the end become a tyranny whose only ambition is the endless perpetuation of its power. Imagine the future, the chief torturer O’Brien tells us, in which a boot crashes down on a human face forever. It takes no imagination at all to imagine these words coming from Osama bin Laden. He would change the specifics and most of the wording, but to the man with the bloody face it does not matter whether the boot reducing his face to pulp was made in Germany or Italy, or what the intentions of the man kicking his face are. The blood and the pain are the reality; the reasons are simply excuses.

Posted by: akaky at August 2, 2003 03:13 PM

“I don't really buy the argument that an ICC in 1945 would have prosecuted the allies for Dresden. The expectation of sparing civilian populations and infrastructure from bombing campaigns simply did not exist back then.”

Yet, today expectations strangly twist themselves so that a state defending itself from a dictator or terrorist being required to take every action to defend the civilians a thug hides behind while having to absorb every attack lobbed againt their own explicitly civilian targets to placate a hypcocritical "peace" lobby. Yet another reason to disregard today's ICC. If the principle on which a law is flawed, then the application of its justice is likewise off target. If objective law and the ideals on which it's based were nearly universal around the globe, I'd consider it. Until then, no thank you, please. I'll put my trust in the Marines.

Posted by: Kev at August 3, 2003 12:00 PM

The ICC as a concept is unworkable. There can be no ICC until there is an international consensus about norms of behavior. The claim against PM Blair illustrates the problem. A court where such a claim is even entertained is a mockery of justice. The ICC is nothing more than a playground for radicals. The most serious problem for the ICC, however, is that it is plainly unconstitutional because rights guaranteed to the accused under the US Constitution are not guaranteed under the ICC.

Posted by: Ben at August 4, 2003 09:06 AM

Ultimately the ICC designed particularly to get war criminals will just become a political tool for world politics.

Notably, another organization was created on similar grounds, to prevent atrocities like the Holocaust. However, now instead of chasing despotic nations the despots are running the roost. Sudan, China, Syria and Libya all on the "Human Rights Commission" All Arab Police States like Syria recently, getting UN "Resolutions" put before the Council to vote against a tiny state with 5000x as many human rights as it has.

I don't trust the world, nor should I, I don't trust Europe and especially France and Belgium, so while an ICC sounds dandy in Utopia, the day our Congress even considers adopting it I'll be on the phone screaming at my reps.

Mike

Posted by: Mike at August 6, 2003 01:38 AM



Testimonials

"I'm flattered such an excellent writer links to my stuff"
Johann Hari
Author of God Save the Queen?

"Terrific"
Andrew Sullivan
Author of Virtually Normal

"Brisk, bracing, sharp and thoughtful"
James Lileks
Author of The Gallery of Regrettable Food

"A hard-headed liberal who thinks and writes superbly"
Roger L. Simon
Author of Director's Cut

"Lively, vivid, and smart"
James Howard Kunstler
Author of The Geography of Nowhere


Contact Me

Send email to michaeltotten001 at gmail dot com


News Feeds




toysforiraq.gif



Link to Michael J. Totten with the logo button

totten_button.jpg


Tip Jar





Essays

Terror and Liberalism
Paul Berman, The American Prospect

The Men Who Would Be Orwell
Ron Rosenbaum, The New York Observer

Looking the World in the Eye
Robert D. Kaplan, The Atlantic Monthly

In the Eigth Circle of Thieves
E.L. Doctorow, The Nation

Against Rationalization
Christopher Hitchens, The Nation

The Wall
Yossi Klein Halevi, The New Republic

Jihad Versus McWorld
Benjamin Barber, The Atlantic Monthly

The Sunshine Warrior
Bill Keller, The New York Times Magazine

Power and Weakness
Robert Kagan, Policy Review

The Coming Anarchy
Robert D. Kaplan, The Atlantic Monthly

England Your England
George Orwell, The Lion and the Unicorn