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U.S. Troops Must Not Be at the Mercy of the ICC

 
 
Cycloptichorn
 
  1  
Reply Thu 16 Dec, 2004 08:42 pm
Quote:
The fighters are not all Iraqis and most Iraqis are not fighting.


As long as a significant portion of the population supports the insurgents, we will never beat them without killing vast numbers of innocents. Right now, a significant portion of the population is supporting the insurgents.

Imagine what it would be like if a Shi'ite leader loses his election, declares the whole thing rigged, and calls up his followers to attack? You could face hundreds of thousands of angry civilians, and then what the hell do you do?

We have real problems in Iraq right now, don't kid yourself....

Cycloptichorn
0 Replies
 
dagmaraka
 
  1  
Reply Thu 16 Dec, 2004 11:57 pm
georgeob1 wrote:
Yes a bit different. We do plan to leave. We had to fight hard to get rid of the British.


Actually, not really. Permanent military bases are being built right now and it is expected that a permanent force will stay there after this whole mess is done. Probably 30-40 thousand troops, similar to the setup in Germany from which U.S. pulled out only recently.
0 Replies
 
georgeob1
 
  1  
Reply Fri 17 Dec, 2004 06:34 am
True, but they are ont not at all the same thing. We didn't rule Germany during those years - we have been there in the context of a treaty relationship (NATO) we have with an independent German government. In fact there has been local German resstance to the withdrawl of our troops from their NATO establishment. George III's troops, both British and hired German regiments, were directly involved in the maintenance of British (as opposed to local) governance in their colonies. That is more or less the condition that exists today in Iraq, but we are trying, with mixed success, to advance beyond and away from that.
0 Replies
 
McGentrix
 
  1  
Reply Fri 17 Dec, 2004 07:46 am
dagmaraka wrote:
georgeob1 wrote:
Yes a bit different. We do plan to leave. We had to fight hard to get rid of the British.


Actually, not really. Permanent military bases are being built right now and it is expected that a permanent force will stay there after this whole mess is done. Probably 30-40 thousand troops, similar to the setup in Germany from which U.S. pulled out only recently.


Only with the permission of the Iraqi government. If they are asked to leave once Iraq is stable, they will have to.

I doubt it happens though because of the instability of neighboring countries. Iraq will want a US presence as a deterrant from outside forces.
0 Replies
 
joefromchicago
 
  1  
Reply Fri 17 Dec, 2004 09:26 am
georgeob1 wrote:
The treaty has not been reviewed and ratified by our Senate and it therefore does not apply to us - notwithstanding the claims of signatory nations that it does indeed apply - merely because they said so. Indeed this involuntary jurisdiction was one of the central reasons for our rejection of this ill-conceived treaty.

The ICC can assert jurisdiction in three ways: (1) when the crime occurs in the territory of a signatory state; (2) when the accused is a citizen of a signatory state; or (3) when a non-signatory state agrees to jurisdiction (Art. 12 of the Rome Treaty). Clauses 2 and 3 would not affect any American; therefore, an American citizen can only be tried by the ICC if he or she commits a crime in the territory of a signatory state. Now, how is that different from the situation where an American commits an ordinary crime abroad? If an American murders someone in France, he isn't tried in American courts or according to American law, just as a French citizen committing a murder in the US wouldn't be tried by French courts or according to French law. So if an American commits a war crime in a state that is a signatory to the Rome Treaty, why shouldn't he be tried according to the laws of that state?

georgeob1 wrote:
Perhaps some day there will come a confrontation in which the ICC will arrest and/or claim jurisdiction over some official of our government. We shall see what unfolds. By our law and historical tradition we should consider such an action a hostile act meriting retaliation.

The ICC can only attempt to assert jurisdiction over an official of our government if that official commits a crime in the territory of a signatory state. Furthermore, the ICC will defer prosecution to any national judicial process. Your nightmare visions of ICC prosecutors arresting administration officials and hauling them off to the Hague is nothing but a fantasy.
0 Replies
 
georgeob1
 
  1  
Reply Fri 17 Dec, 2004 10:32 am
Your last two descriptions of the relevant prescriptions reveal a major discrepancy. Namely whether a non signatory state can stop any ICC action against one of its citizens merely by declining to accept its jurisdiction. The fact is revealed by your second statement which indicates the fact that this can be accomplished only if the non signatory state initiates its own investigation and prosecution. The Treaty leaves it to the ICC to determine whether such action is adequate or meets the requirement of the treaty - not the will of the non signatory state.

The statute itself is so broad and vague in terms of just what constitutes a prohibited action that it does not at all require physical presence in a member state for a crime to have been judged to occur - it is sufficient to have been responsible for actions that occurred on the territory or against the people of a member state.

. The treaty presumes to trump existing agreements on immunity of government officials, Status of Forces Agreements regarding the application of judicial procedure for U.S. troops stationed or operating in other countries - except as specifically negotiated on a bilateral basis by other arrangements.

The U.S. claims the unilateral and absolute right to reject the jurisdiction of the court under any and all circumstances, precisely because we have not signed or ratified the treaty. This as you may know has been a matter in dispute between the U.S. and some European countries. Our efforts to avoid confrontation by negotiating bilateral agreements with new NATO nations were countered by threats from the French government that such agreements would constitute impediments to the then pending admission of these states to the EU.
0 Replies
 
joefromchicago
 
  1  
Reply Fri 17 Dec, 2004 12:48 pm
georgeob1 wrote:
Your last two descriptions of the relevant prescriptions reveal a major discrepancy. Namely whether a non signatory state can stop any ICC action against one of its citizens merely by declining to accept its jurisdiction. The fact is revealed by your second statement which indicates the fact that this can be accomplished only if the non signatory state initiates its own investigation and prosecution. The Treaty leaves it to the ICC to determine whether such action is adequate or meets the requirement of the treaty - not the will of the non signatory state.

You've mixed up two different concepts here: jurisdiction and "deferral." As I mentioned before, the ICC has only three grounds on which to base its jurisdiction. If none of those grounds are met, then the question of whether or not the ICC will defer to national judicial processes is simply moot. In other words, if the ICC can't exercise jurisdiction over a case, it has no decision to make regarding deferral.

Now, if the ICC can exercise jurisdiction, then it's true that it will determine whether or not the national judicial process is sufficient for purposes of deferral. But, as I pointed out before, the only way that an American citizen would ever come under the jurisdiction of the ICC would be if that person committed a listed crime in the territory of one of the signatory states. In that case, however, the US would have no more right to try the accused than if that American citizen had committed an ordinary crime abroad.

For instance, let's say an American citizen is arrested by French authorities and accused of having committed a war crime in French territory. As a signatory to the Rome Treaty, the French refer the case to the ICC for prosecution (if there is any deferral by the ICC in this case, it would be a deferral in favor of France's prosecution of the crime, not America's). The US would have no basis for contesting the ICC's jurisdiction, since it would have had no basis for contesting France's jurisdiction had France decided to keep the case within its own court system. The bottom line is: if an American violates somebody else's law on somebody else's territory, he should expect to be tried according to somebody else's rules.

georgeob1 wrote:
The statute itself is so broad and vague in terms of just what constitutes a prohibited action that it does not at all require physical presence in a member state for a crime to have been judged to occur - it is sufficient to have been responsible for actions that occurred on the territory or against the people of a member state.

That may indeed be true. Of course, the US has its own laws that extend federal criminal jurisdiction beyond US boundaries; I'm sure those laws bother you just as much or more.

georgeob1 wrote:
The U.S. claims the unilateral and absolute right to reject the jurisdiction of the court under any and all circumstances, precisely because we have not signed or ratified the treaty.

The US never signed the French constitution either, but that doesn't mean that the US can reject the jurisdiction of French courts over crimes committed in France. And if France or some other signatory to the Rome Treaty decides to turn over an American to the ICC, the US would have no right to complain.
0 Replies
 
Walter Hinteler
 
  1  
Reply Fri 17 Dec, 2004 01:22 pm
George certainly will know this (and Joe perhaps as well):

Quote:
The general rule of international law is that a sovereign nation has jurisdiction over all persons found within its borders. There can be no derogation of that sovereign right without the consent of the receiving state, and, in the absence of agreement, U.S. personnel are subject to the criminal jurisdiction of the receiving state. On the other hand, the idea of subjecting U.S. personnel to the jurisdiction of a country in whose territory they are present due solely to orders to help defend that country raises serious problems. In recognition of this, and as a result of the Senate's advice and consent to ratification of the NATO SOFA, DoD policy, as stated in DoDD 5525.1, is to maximize the exercise of jurisdiction over U.S. personnel by U.S. authorities.

An exception to the general rule of receiving state jurisdiction is deployment for combat, wherein U.S. forces are generally subject to exclusive U.S. jurisdiction. As the exigencies of combat subside, however, the primary right to exercise criminal jurisdiction may revert to the receiving state.

Status of Forces Agreement. Resolving the issue of FCJ is often the catalyst of a SOFA, so it will be a rare SOFA that does not address it in detail. Article VII of the NATO SOFA provides a scheme of shared jurisdiction among the Receiving State (i.e., the host nation) and the Sending State (i.e., the State sending forces into the host nation). This scheme is the model for many other SOFAs, so it will be discussed in detail. All examples will assume a U.S. soldier stationed in Germany.

Exclusive Jurisdiction in the Sending State. Conduct which constitutes an offense under the law of the Sending State, but not the Receiving State, is tried exclusively by the Sending State. For example, dereliction of duty is an offense under the UCMJ, but not under German law, so exclusive jurisdiction rests with the U.S..

Exclusive Jurisdiction in the Receiving State. Conduct which constitutes an offense under the law of the Receiving State, but not the Sending State, is tried exclusively by the Receiving State. For example, traffic offenses violate German law, but not U.S. law, so Germany has exclusive jurisdiction over the offense.

Concurrent Jurisdiction. For all conduct which constitutes an offense under the laws of both the Receiving and Sending State, there is concurrent jurisdiction, with primary jurisdiction being assigned to one of the parties.
...
....
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more here at the INTERNATIONAL AGREEMENTS and SOFAs website.
0 Replies
 
joefromchicago
 
  1  
Reply Fri 17 Dec, 2004 03:55 pm
Walter Hinteler wrote:
George certainly will know this (and Joe perhaps as well):

Yes, I know that, Walter. In my hypotheticals to george, I assumed that the accused American was not a member of the US armed forces engaged in active combat. Obviously, if an American is charged with war crimes while involved in combat operations, there are different rules that apply.
0 Replies
 
georgeob1
 
  1  
Reply Fri 17 Dec, 2004 08:47 pm
joefromchicago wrote:


Now, if the ICC can exercise jurisdiction, then it's true that it will determine whether or not the national judicial process is sufficient for purposes of deferral. But, as I pointed out before, the only way that an American citizen would ever come under the jurisdiction of the ICC would be if that person committed a listed crime in the territory of one of the signatory states. In that case, however, the US would have no more right to try the accused than if that American citizen had committed an ordinary crime abroad.

As a non-signatory the U.S. does not recognize the ICC and does not consent to the discretion it asserts in any case. It is most assuredly NOT true that. "the only way an American citizen would ever come under the jurisdiction of the ICC would be if that person committed a listed crime in the territory of one of the signatory states". It is sufficient that the citizen be charged with a crime, whether there was a crime or not. Recent history with respect to similar sappy claims of universal jurisdiction (Belgium) strongly point to the potential for mischief and misuse, particularly directed at the officials of nations such as ours. Again the statute is vague and broad in the extreme, and it is not at all clear to me that the actual physical presence of the one so charged must occur - and you appear to have acknowledged this point.

Moreover we do not accept the law itself, which the court is empowered to enforce. This is an important point. A statute so broad and vague which bases so much in subjective aspects of actions which may well be necessary for the protection of our vital interests, and which enables otherwise accountable nations to hand over to an unaccountable non sovereign entity (whose legitimacy we do not recognize) the officials of our government is too capable of malicious misuse. At the same time these same characteristics make it almost certainly useless for the resolution or prevention of real crimes against humanity.

.
Quote:
The US never signed the French constitution either, but that doesn't mean that the US can reject the jurisdiction of French courts over crimes committed in France. And if France or some other signatory to the Rome Treaty decides to turn over an American to the ICC, the US would have no right to complain.
We recognize the sovereign character of the French government, and all the rest flows from that. We do not recognize the ICC and would likely have a basis on which to object to such an action by France. I agree we would have no basis in which to object to judicial action by duly constituted agencies of the French government.

The U.S. government has expended considerable energy in establishing a network of bilateral agreements nullifying options under the treaty by many of the signatory nations, precisely to avoid these issues. We have also indicated an unwillingness to participate in any UN sanctioned peacekeeping operations that might make our forces subject to the misapplication of this law and this unique non sovereign entity.
0 Replies
 
joefromchicago
 
  1  
Reply Mon 20 Dec, 2004 09:33 am
georgeob1 wrote:
As a non-signatory the U.S. does not recognize the ICC and does not consent to the discretion it asserts in any case.

The US has no say in the matter if an American commits a crime in the territory of a signatory nation. It is immaterial whether the nation prosecutes the case in its own court system or refers the prosecution to the ICC: from the perspective of the US, there is no difference (just as a foreign state would have no control over whether a case in the US was heard in state or federal court).

georgeob1 wrote:
It is most assuredly NOT true that. "the only way an American citizen would ever come under the jurisdiction of the ICC would be if that person committed a listed crime in the territory of one of the signatory states". It is sufficient that the citizen be charged with a crime, whether there was a crime or not.

Well, that's the case with all crimes. If an American abroad is charged with violating a local law, he can be convicted even if his actions would not have violated the law in the US.

georgeob1 wrote:
Recent history with respect to similar sappy claims of universal jurisdiction (Belgium) strongly point to the potential for mischief and misuse, particularly directed at the officials of nations such as ours. Again the statute is vague and broad in the extreme, and it is not at all clear to me that the actual physical presence of the one so charged must occur - and you appear to have acknowledged this point.

I think it is quite possible that a prosecutor might seek to extend the territorial reach of the ICC. Of course, just as the Belgian cases proved, making a charge and getting a conviction are entirely different matters: most of the defendants in the Belgian cases were never even arrested.

georgeob1 wrote:
Moreover we do not accept the law itself, which the court is empowered to enforce. This is an important point.

Yes we do. The ICC enforces what is, in large part, the customary law of nations with regard to war crimes and crimes against humanity, as that law has developed over the past century.

georgeob1 wrote:
We recognize the sovereign character of the French government, and all the rest flows from that. We do not recognize the ICC and would likely have a basis on which to object to such an action by France. I agree we would have no basis in which to object to judicial action by duly constituted agencies of the French government.

Under French law, cases that come within the purview of the ICC are handled by the ICC. It is, therefore, irrelevant whether the French government prosecutes the case itself or refers it to the ICC. In either event, the case would be handled in accordance with French law.
0 Replies
 
georgeob1
 
  1  
Reply Mon 20 Dec, 2004 12:24 pm
Joe, argues that, in effect, the ICC & Treaty of Rome add nothing at all to (1) settled international law; (2) the ability of signatory nations to arrest and prosecute persons accused of violating their laws while on their territory; (3) the liability under the law of persons not in the territory of signatory nations when acts falling under the law are said to have occurred; (4) the vulnerability of.U.S. Military or government officials, acting under the legal authority of the U.S. government, to capricious or malicious misuse of the statute, the new court and its prosecutor - accountable as they are to no government.

If all this is so, then several basic questions immediately arise. (1) What is the unique role, function and benefit of the law and court established by the Treaty of Rome?

If, both in matters of law and prosecutorial authority, the Treaty adds nothing at all to the ability of the signatory nations to deal with crimes done in their territory, what then is its purpose????? Why, if they already have this ability, do the signatory states go to such great lengths and expend so much political capital in extending the reach of the new institution to non-signatory states that oppose it???

If the Treaty, its court, and prosecutor truly have no autonomy and act only in accord with the existing laws and expressed initiatives of its signatory states, confining their actions only to crimes done on their soil by accused parties over whom they already have accepted jurisdiction (and, presumably, the right of extradition subject to existing bilateral treaty), then what explains the extraordinary actions of the U. S, government in negotiating and concluding about 17 bilateral treaties, nullifying the options of the ICC with respect to U.S. citizens??? Given that this was done in the face of rather strong opposition and on occasion even threats by former allies to the nations with which we were negotiating, what could possibly explain the persistence and resolve of these contending parties?? Has so much effort been expended and rancor suffered on both sides - for nothing?? This defies belief.
0 Replies
 
Walter Hinteler
 
  1  
Reply Mon 20 Dec, 2004 12:42 pm
Just of pure interest, George:

do you think, US citizens shouldn't be convicted by foreign courts under foreign law at all?
0 Replies
 
McGentrix
 
  1  
Reply Mon 20 Dec, 2004 12:49 pm
That seems to be a silly question Walter.

A civilian living in Germany would be expected to live under German law. A US Soldier, working for the UN would be expected to live under US law.

Look at ambassadors for example. They generally are expected to not be liable to a host countries law, correct? Isn't that the reason they can claim "diplomatic immunity"? Isn't that why they can rack up thousands of dollars in parking fees in NYC when they are in town?
0 Replies
 
Walter Hinteler
 
  1  
Reply Mon 20 Dec, 2004 12:59 pm
Diplomatic Immunity was created at the Vienna Congress in 1815 and has no connection at all to soldier but only to persons with diplomatic status.

(In Berlin, the US diplomates are in the top ten league not paying fees, btw.)

US soldiers are expected to live under German law here in Germany as well - when you look at the quotation I gave before? (Actuallly, I'd been the probation officer for one, years back :wink: )
0 Replies
 
ehBeth
 
  1  
Reply Mon 20 Dec, 2004 01:04 pm
U.S. soldiers living in Canada/travelling through Canada are handled under Canadian law. I've got a couple of cases involving soldiers on their way back to Fort Drum.


Interestingly (?), the Russian government has in a number of cases waived the immunity of their diplomats here. Most notably in some drunk-driving homicides.
0 Replies
 
georgeob1
 
  1  
Reply Mon 20 Dec, 2004 01:36 pm
Walter Hinteler wrote:
Just of pure interest, George:

do you think, US citizens shouldn't be convicted by foreign courts under foreign law at all?


I have no problem whatever with this Walter, and recognize that the U.S. forces in Germany have functioned for decades with appropriate provisions for jurisdiction by both German and U.S. nilitary courts. My understanding is that, overall, this has functioned to the satisfaction of both parties. Judging by the affection many returning U.S. servicemen have for Germany and things German, and , as well, the expressions of concern from several German communities for the impending departure of our forcrs from them, there appears to have developed a mutually satisfactory arrangement for living together.

As I have stated, I have profound suspicions for the potential of this new, utterly vague law, and the mostly unaccountable institution created to administer it, to do serious mischief and worse, almost no good.in dealing with serious problems. At best it is yet another illusion with our European friends will use as an excuse to hide from their historical responsibilities and misuse to distract us from more important things. Finally it is yet another element in the growing gulf which Europe is creating between itself and America. In view of all this why would a thinking and historically aware American see it otherwise?

I shall await the moment when the ICC provides a solution to a serious problem that would hav eotherwise gone unresolved. So far none has arisen.
0 Replies
 
ehBeth
 
  1  
Reply Mon 20 Dec, 2004 02:13 pm
georgeob1 wrote:
Finally it is yet another element in the growing gulf which Europe is creating between itself and America.


Interesting that you choose to phrase it in this manner, rather than in the inverse/reverse (whichever is the correct English usage).
0 Replies
 
Frank Apisa
 
  1  
Reply Mon 20 Dec, 2004 02:45 pm
ehBeth wrote:
georgeob1 wrote:
Finally it is yet another element in the growing gulf which Europe is creating between itself and America.


Interesting that you choose to phrase it in this manner, rather than in the inverse/reverse (whichever is the correct English usage).



AMEN!

What the hell are you thinking about, George?

America...in the person of George Bush...has done goddam near everything possible to create a chasm between Europe and America.

Even our closest allies...the British...have a huge majority showing negative feelings about the United States right now. And it takes very little research to see that this is a trend DIRECTLY ATTRIBUTABLE to Bush.
0 Replies
 
McGentrix
 
  1  
Reply Mon 20 Dec, 2004 02:58 pm
What are the Europeans doing to rectify this ill-will?

I suppose they could burn some more effigies. That always makes me want to be more European. Rolling Eyes
0 Replies
 
 

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