The president’s failure to realize the implications of an international legislative body legitimized by the support of the world’s sole superpower is disastrous for the promotion of human rights. Many war criminals brazenly carry out atrocities under the assumption that there will be no consequences. Should the U.S. lend its full support to the organization, would-be war criminals would be less inclined to commit such crimes. U.S. participation would act as a deterrent to human rights violations.
Unfortunately the prospects of U.S. participation are bleak. The president can’t ignore the conservative political reaction to joining the court. With the election a few days away, it’s understandable that the president is avoiding high political issues like the plague. That, coupled with the fact that a two thirds vote is required for the ratification of the Rome Statute and the Republicans are poised for major victories in both houses, means it will be quite some time before the idea of the U.S. becoming a member nation can even be legitimately entertained.
Whoever is president when this happens, they shouldn’t repeat the mistake our current president made by allowing bombastic political rhetoric to derail American foreign policy. If the United States truly prides itself on its commitment to human rights, it should step out of the dark ages and join the International Criminal Court.
Article comments
— go to most recent comments1 - Alan Kurtz
Thank you for raising this issue at the present time. I believe the United States will under no circumstances join the International Criminal Court. The fundamental conflicts between the ICC and the U.S. Constitution, which you entirely fail to mention, are insurmountable. Moreover, the prospect of a foreign body passing judgment on members of our American military will never be accepted--and this is now more than a theoretical matter, given WikiLeaks' release of top-secret documents allegedly describing war crimes committed by U.S. troops in Afghanistan and Iraq.
In any event, I question your assertion, "Should the U.S. lend its full support to the organization, would-be war criminals would be less inclined to commit crimes. U.S. participation would act as a deterrent to human rights violations." What makes you suppose this would happen? Has there been a poll of would-be war criminals asking them whether U.S. membership would deter their human rights violations?
2 - Dean Stephens
Interesting, a blogger is giving a student studying law a refresher course on the particulars of the constitution. Explain what article, amendment, or section of the United States constitution that contradicts the basic tenets of the ICC. Inquiring minds and all that.
3 - Alan Kurtz
Wikipedia has a discussion of the Constitutional incompatibility issue.
But, hell, let's say for the sake of discussion that those objections can be overcome. What about the other questions I raised?
4 - Dave Nalle
Nothing else deters those who commit gross human rights violations and war crimes, why would the ICC?
Dave
5 - Alan Kurtz
Careful, Dave. You're daring to question an actual LAW STUDENT.
6 - STM
It's a load of bollocks. The ICC is an international body, not a body of the US political system, which means the constitutional argument against being part of it is erroneous.
If you were to give any credence to the US argument, then you's have to see the war crimes trials against Germany and Japan had no legal basis either, and therefore the US had no business taking part in them.
It's bollocks of the highest order; the truth is, it's another case of the US believing it's not answerable to anyone but itself.
Whether the ICC will always live up to the perfectly reasonable expectation of fairly applied Anglo-American jurisprudence is another matter, though.
Perhaps the key is there. International agendas hiding behind the application of law are still agendas.
7 - roger nowosielski
Good point, Stan. But the Yanks are of the opinion that their constitution was written by a finger of God and is therefore inviolable. Talking about American exceptionalism, what more could you ask for.
8 - Alan Kurtz
STM, it's a jurisdictional matter. If the U.S. Senate were to ratify America's membership in the ICC, would the ICC in turn have jurisdiction over U.S. citizens--in particular, military service members--accused of war crimes? Since our Constitution guarantees due process to citizens accused of crimes under the American system of justice (i.e., in domestic courts, not foreign ones), this creates a fundamental conflict. Are you prepared to say that, were we to subject ourselves to the ICC, Americans would not be prosecuted by said court? If you can personally guarantee that result, I imagine chances for ratification of membership would be significantly enhanced.
9 - Dean Stephens
OK Alan. First of all, I think everyone my age learned in the 7th grade that Wikipedia should not be used as an authoritative source of information.
As for your other points in your initial comment, the ICC has evolved into a mechanism to prosecute war criminals of periphery nations. Even with the US backing them, the ICC would lack the teeth to prosecute war crimes of citizens in economically powerful nations (such as Europe and the US). So your argument that the US shouldn't participate because it puts American citizens under the jurisdiction of a foreign court, is like me deciding not to go swimming because a shark might eat me (the chances of either things happening are incredibly small and do not warrant non participation).
And as for my last point, anyone who believes that the full support of the most powerful military on the planet would do nothing to deter war crimes is incredibly naive.
Also comment #5. We're all adults here, can't we do without the sarcasm?
10 - roger nowosielski
What was good enough for Milosevic should be good enough for any head of state. We surely haven't protested against the court of international tribunal in Hague. Consequently, the point of jurisdiction is a moot one as long are we're prepared to apply it to sovereignties other than our own.
But then again, hypocrites we've always been and lo and behold, therein marches Kurtz with his ingenious defense. "Might makes right," he argues, and the jury is swept off their feet.
11 - zingzing
"it's another case of the US believing it's not answerable to anyone but itself."
it's kinda hard to ask someone to give that up. who's going to ask them? they're obviously not going to listen.
seriously, given the shit we pull, the icc is just pounding its collective head against a wall.
12 - Alan Kurtz
Re #9: just last Friday, 19-year-old college student Lucas Ransom was attacked and killed by a great white shark off the coast of Santa Barbara, California. Who are you calling incredibly naive?
13 - Dean Stephens
Re#12: Yaaaaaaay, everyone loves hyperbole. If that's your response, I think I've made my case.
14 - Joseph Cotto
After we have successfully left the "Dark Ages" by becoming denizens of the ICC, we should seriously consider doing away with constitutional law altogether and either let other countries run our domestic affairs or allow Congress to simply make things up as it goes along. If there is a Congress at that point, of course.
Talk about logical arguments.
15 - STM
Alan: "Since our Constitution guarantees due process to citizens accused of crimes under the American system of justice (i.e., in domestic courts, not foreign ones), this creates a fundamental conflict."
It creates no more of a conflict for the US government or US citizens than it does for other governments - especially those that are part of the anglo-American tradition of jurisprudence, and they are many - that have identical due process considerations in the application of their criminal justice systems.
What you effectively saying is that an American's constituitional right overrides the rights of other citizens of this planet not to have crimes committed against them.
The one rider I would put on this is the make-up of the court. Due process is key, and if that could not be guaranteed and transparent, then I don't anyone should be a part of it. Part of the problem with these kinds of international bodies is that there are often agendas, and the US and its friends like the UK and Australia are often the targets of those agendas.
Neverthless, I still believe Americans attach too much importance to constitutional rights put in a document 200 years that were NOT snatched out of thin air but already existed in the colonies and were based on the laws of England (only the 9th amendment had no precurso in colonial common law, and there's some debate about that too given parliament's ability to change laws and to vote on new rights). Except in other nations that have or had most of these common laws, they have moved with the times, on such things as gun control.
The due process passages of the constitution aren't even American; they survive from the 1354 Statute of King Henry III, in a rewrite of the Magna Carta that added the words "due process" to protections against unjust trial or loss thereby of property and guarantees of life, liberty and freedoms.
As was the Magna Carta, the US Constitution is simply a document written by men, not the holy grail or a tablet sent down by god from heaven to the American people. There is always room to move (as the 9th amendment points out if you study its exact wording and don't read between the lines and find words that aren't there).
Even the founding fathers believed Americans would change it to suit a future society as they fit (as indeed they have).
Relying solely on a 200-year-old piece of paper to make most of your decisions in this regard is follish in the extreme. Americans should probably have a good think about what the constitution is; and what it is not.
Regardless, given America's current standing in the world - and I don't believe the America haters are on the side of the good guys - the US is right to be wary about the ICC.
But it shouldn't mean there should be a blanket refusal by the US to be a part of it. There is room for reflection on it, and the US should take the time to think about its global obligations and its responses and how it would all work if it did join.
There is a tendency for Americans to see what others might see as world domination or empire building they as bringing freedom and democracy, and the American system of law and government as the fairest there is.
It's part of the myth of American exceptionalism and others don't agree/ The Arabas have a saying about it: "You better be nice to the Americans, or they'll bring you democracy".
Worth thinking about, especially as Americans and America, in a wold largely of its own making, no longer can afford to believe they live in a vacuum and that the standards applied by them to others don't apply to Americans when the shoe is on the other foot.
16 - STM
And before you pick up on the typos, Al, which I already know about and which are simply a function of me being a 300mph two-finger typist, let's get to the meat of the matter. I firmly believe in what I've written and honestly hold that the American-held myth of American exceptionalism holds the US back in a lot of areas and opens the US up to quite valid claims of hypocrisy.
However, no one should mistake what I see as valid criticism for America-bashing or America-hating. I genuinely fall firmly into the opposite camp on that score.
But as a citizen of a nation strongly allied with America for the best part of 100 years, and while I value that relationship, love the company of Americans and believe in the anglo-American tradition of law and democracy, I'm also convinced that my non-American viewpoint enables me to look a bit more objectively at America's role in the world than most Americans do.
If a citizen of one of your only real friends won't tell you, who will?
17 - roger nowosielski
I think Alan is shrewd enough to see America's faults; if he doesn't, then he's a fool.
So the likelihood is, he's just being his old argumentative self, a side of his I've long learned to ignore.
And I do hope, BTW, you're not taking my solitary comment as an instance of "America's bashing." There are principles of higher conduct than those which issue from the mouths of self-serving, sovereign states. To deny such principles or to argue against their legitimacy is simply to insist on relativity of state-initiated conduct for the very reason that it's protected by the sovereign status of the state. Which is to say, we can do such and such simply because we can.
18 - zingzing
stm: "America, in a wold largely of its own making, no longer can afford to believe they live in a vacuum and that the standards applied by them to others don't apply to Americans when the shoe is on the other foot."
the problem is, from our perspective, there is no other foot. we don't need to walk anywhere. we're on top. there's only down to go, and we ain't going that way of our own volition.
we have no readily identifiable reason to give a shit. such is the american condition. or so it's been for quite some time. all our life and all our parents' lives. maybe things are changing.
but habits don't bend, they're broke. this idea that we should care what you (any you foreigners) think is new and won't come easy. you're really going to have to lead us on a political death march before it happens. stubborn people, we are.
american exceptionalism may end up our only strength. what do you have to fight against it? irrational pride is a tough foe. can't reason with it. can't destroy it. it only gets stronger than it was.
but we made this world, and we'll unmake it if we have to. just you watch. you, world, are our bitches. if we can't have you, we'll blow your shit up. or shove you back inside us.
signed,
america, your mother
19 - STM
I don't know whether you half-serious or only half-joking here, zing.
Come on, you know where I'm coming from on this. Exceptionalism has been the downfall of other empires ... the Brits and the Soviets, most recently.
You might be standing at less slippery spot on the moral high ground than the Reds, but you're no less arrogant than the British and look what happened to them.
At least they've come to terms with it, though.
I wonder if America will do so that easily.
20 - STM
Rog: "And I do hope, BTW, you're not taking my solitary comment as an instance of "America's bashing."
No Rog, I don't see you as an America basher. Like I say, criticism is always valid. I mostly agree with your view on this stuff.
21 - Cannonshop
Considering the failures of other supranational "governing" bodies, (the U.N. being a prime example) sacrificing sovereignty to an international tribunal that works in such an ad-hoc basis as the ICC isn't a good idea.
There's a college student in prison in Italy right now, and even the prosecutors don't believe their case-but the system in Italy does not require strict evidence requirements, nor does it require the level of disclosure required in U.S. systems. It strikes me that generally speaking the ICC doesn't have the level of protections for the accused (or evidence requirements) that, say, a typical American small-claims court requires. Considering that I don't personally see much chance that an ICC would NOT be used to score "Points" against the U.S. by playing combination Kangaroo-Court and Star Chamber...
Thanks, I'll take my barbaric system with its extensive appeals structure, strict "Innocent Until Proven Guilty" principles, and Habeas Corpus protections with extensive requirements for Evidence, and strict basic guideline requiring beyond-a-reasonable-doubt to convict (and Jury system.)
I'd rather NOT be under Continental European rules, and we really do NOT need any MORE systems that over-ride our constitution, allowing the ruling bodies of foreign nations to decide that really, you don't need all ten of those amendments...
22 - Jordan Richardson
Cannonshop, what country in the world do you think has the highest documented incarceration rate per 100,000 citizens? Or what country in the world do you think has about 23% or so of the planet's inmates but under 5% of the planet's population?
Is it the one with "strict evidence requirements" and "protections for the accused" and the "extensive requirements for evidence" and "Habeas Corpus protections (unless you're a Muslim)?"
Yes, yes it is.
And what makes you think those dreaded "foreign nations" - oooh, scary, those bastards - want or care what you do with your "amendments?"
C'mon. Your mighty fair and true justice system is throwing everyone and his/her dog in jail, man. Drug convictions, theft, vandalism, etc. are all tossing non-violent, non-threatening people in jail faster than you can say "We, the people."
I seriously doubt any Europeans are scrambling with jealousy over America's justice system, I can tell you that. And do you really think those courts don't rely on evidence and rule of law?
23 - zingzing
stm: "I don't know whether you half-serious or only half-joking here, zing."
well, i was completely joking, but unfortunately serious. don't think you're telling me anything i don't already know.
24 - Cannonshop
Jordan, it's the difference between a conviction that can be appealed, and a system where conviction has more to do with what your President's popularity overseas might be.
Our system's not perfect, but it's got built-in safeties that don't exist in ICC style tribunals, and it's largely apolitical.
Given that we have some poor choices in terms of sentencing, and that it IS imperfect, it is, at least, somewhat less vulnerable to political fashions.
I'm rather less inclined to accept an "over system" that is governed by "Amerika the Great Satan" thinking, thanks.
25 - Cannonshop
To put it in a current-era example, Jordan, there's an American girl in prison right now in Italy-not because she was GUILTY, but because she is AMERICAN.