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

The fighters are not all Iraqis and most Iraqis are not fighting.

Yes a bit different. We do plan to leave. We had to fight hard to get rid of the British.

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.

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.

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.

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 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 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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George certainly will know this (and Joe perhaps as well):

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.

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.

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.

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.

Just of pure interest, George:

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

Finally it is yet another element in the growing gulf which Europe is creating between itself and America.

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).