What The World Thinks of America (BBC program)

George

I studied both, history and law, and know, too, a little bit about the legal and historical differences. :wink:
(We are really old Europeans, since German legal tradition and culture go back to the law of the Roman Empire. :wink: )

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Setanta,

I agree with you that the question of U.S. acceptance of the ICC treaty is moot. The Senate wouldn't approve it and the Supreme Court would find that it doesn't have the power to surrender jurisdiction even if it did.

However, the question, raised by our many European critics, that we ought to accept the claims of the treaty signatories is far from moot. It is a real problem in the real world.

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Well, i can't argue against that, but then one is again up against the wall of treaty approval. Were such a panel to render a judgment against an American citizen or entity, the only enforcement options are to bring a case in the U.S. court system, or to take sanctionary measures. The latter move is one i feel certain most nations would be hesitant about; the former one which would severely reduce the relevancy of the aforementioned panel.

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nimh wrote:

(you're welcome to join, btw)

No I'm not. ;-) That's why I don't.

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Walter Hinteler wrote:

Well, I do hope, no-one has the power to remove judges per se!

The Assembly of the State Parties, i.e., the collective of signatory countries, has the right to remove any ICC judge or prosecutor. (The UN Security Council doesn't, unlike what I mistakenly wrote in the Roundtable thread).

Setanta wrote:

The major governments of Western Europe for many centuries have bickered to and over the brink of war,

That's probably why we are so eager to reach (or maintain / further develop) "a new era, utterly unlike [what] has preceded it", as georgeob1 ironically described it in a related thread.

How I see georgeob1's argument is, he's saying, the nature of nations is such that the realpolitik of wars in the name of national interest is just part of the natural order of things, and to try to impose some new system of 'moral' international justice on that is folly, and dangerous. (That's phrased a bit rhetorically, but I think you'll more or less agree with that, george?)

Especially in Europe, but elsewhere too, many people are saying, the era of national interest as supreme yardstick of international order (pre-WW2) was an utter, violent and dangerous failure ... Thats why, slowly but certainly, from League of Nations to United Nations to War Crimes Tribunals, UN resolution-approved interventions and 'blue helmet' peacekeeping forces, the world has wrought the fundaments of an expanded system of international order, which does have the ambition to constrain the anarchy of nationalist rivalries into some system of international justice. The ICC is a new milestone in that development, whether you consider it for better or for worse. In that sense I think proponents of the ICC have time on their side ;-).

georgeob1 wrote:

Itis simply a fact that the essence of the ICC flies in the face of our system. There is no reason for us to accept it, no matter what the citizens of France, Germany, Liechtenstein and Andorra may think. It is at best presumptious of them to assert that we must - even though our elected government has said NO.

True, but the US is going one step further than simply staying out of it - it is pressuring other countries, using its unrivalled political and military power, to not sign it either.

Specifically, it is trying to intimidate them into signing bilateral treaties that effectively undermine their ratification of the Rome statute, by demanding that it won't pertain to any war crime or crime against humanity any American might ever commit on their territory.

That might sound right to an American, but imagine Germany demanding of the US (or more realistically, Mexico) to guarantee that no German will ever be brought before its Supreme Court for any crime he may commit on its territory? If US cops arrest a Dutch citizen in Cleveland for committing a murder there, doesnt the US in principle have the right to prosecute him in any way it damn well likes?

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Setanta wrote:

Were such a panel to render a judgment against an American citizen or entity, the only enforcement options are to bring a case in the U.S. court system, or to take sanctionary measures.

The ICC would only ever be allowed to even start procedures against an American if the US court system itself, over a time of six months, refused to even investigate the case.

(Sorry for repeating myself)

Craven de Kere wrote:

nimh wrote:
(you're welcome to join, btw)

No I'm not. ;-) That's why I don't.

Ehmm ... I was addressing georgeob1, who is, but, err ... yeh. Embarrassed

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Courts here do not investigate, that is a function of the police and of prosecutors. Despite European contempt for our court system, one of its salutary features is that prosecutorial functions are not a part of the court system. Prosecutors and Defenders both approach the bench from a position of equality.

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Nimh,

Some of this arises from our very different points of view.

I do not impune the motives of the mostly European proponents of the Treaty of Rome. I accept that they may arise as a result of the awful history of Europe. Please note that the United States was created by Europeans escaping that same history. I do, however, seriously dispute their assertion that their treaty and their court can have jurisdiction over the citizens or officials of our country under any circumstances. That we oppose this feature of the treaty in no way limits the ability of Frenchmen and Germans to enjoy the supposed benefits of the treaty as it may relate tho their citizens. I just don't see your logic on this point.

Nothing in our opposition to the ICC in any way limits the existing application of national laws or courts to the actions of Americans taken in the territories in which they apply. That is a red herring.

Is "intimidation" or attempts to persuade on the part of the United States any different from intimidation or attempts to persuade on the part of European governments or functionaries of the EU when addressing candidate members? I find your statements in this area decidedly hypocritical.

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Setanta wrote:

Courts here do not investigate, that is a function of the police and of prosecutors. Despite European contempt for our court system, one of its salutary features is that prosecutorial functions are not a part of the court system. Prosecutors and Defenders both approach the bench from a position of equality.

Well, that's similar here in Germany as well (police acting on demand of the prosecution office).

Other countries have special prosecution judges (Italy, France e.g.), additionally to the prosecution office.

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Setanta wrote:

Courts here do not investigate, that is a function of the police and of prosecutors. Despite European contempt for our court system, one of its salutary features is that prosecutorial functions are not a part of the court system. Prosecutors and Defenders both approach the bench from a position of equality.

Let me correct myself, then: the ICC would only ever be allowed to even start procedures against an American if the US itself, over a time of six months, refused to even investigate the case.

(This, at least, (again) was what HRW wrote about it:

"f a U.S. citizen were accused of a crime, the court's judges would be obliged, upon request, to defer to U.S. justice, standing down for at least six months while the United States pursued its own investigation and, if appropriate, prosecution. After that period, the judges would be able to authorize investigations only if they decided that the U.S. judicial system was willfully obstructing justice")

(dont worry, I wont repeat that anymore).

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Much of the objection to the ICC seems to be as much a theological one as a factual one.

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Ah, the monumental hubris . . . I forget the crusty old Junkers name, but i am reminded of the comment of one of the Prussian officers on the subject of the reforms proposed by Stein, Scharnhorst and others:

"The rage of dreaming sheep . . . "

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georgeob1 wrote:

Is "intimidation" or attempts to persuade on the part of the United States any different from intimidation or attempts to persuade on the part of European governments or functionaries of the EU when addressing candidate members? I find your statements in this area decidedly hypocritical.

Hypocritical, 's a big word <grins>. Yes, should the EU threaten any candidate member state to not allow them into the EU if they dont ratify the ICC, that'd be intimidation, too.

But in this actual instance, I was referring to the current, high-profile efforts of the US to make countries that have already, out of their own autonomous volition, ratified the ICC (whether because they believe in it or think they'll curry favour with it), sign specific bilateral treaties with it. Bilateral treaties that would exclude any American citizen that may ever enter these countries' territory from falling under this newly adopted piece of law. So yes, in response to your:

georgeob1 wrote:

Nothing in our opposition to the ICC in any way limits the existing application of national laws or courts to the actions of Americans taken in the territories in which they apply. That is a red herring.

.. by insisting to countries that they sign such a bilateral treaty, the US is, indeed, trying to "limit the existing application of national laws to the actions of Americans taken in the territories in which they apply". *

And it's forsure applying some strongarm tactics on it. (See for more, HRW: The United States and the International Criminal Court.

*(Am I, linguistically speaking, correct to use the word "law" or "legislation" when referring to the ratification, by signatory states, of the ICC's judicial authority over war crimes in their country?)

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"Dreaming sheep", that's pretty ... He was good.

All I could come up with, if I'd try to be remotely as clever, would be something like, I dunno ... "Ah - the spite of grumpy goats ..."

Decidedly less pretty a sight.

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What Nimh and others will not consider is the fact that the United States, and many other nations do not recognize either the law embedded in the Treaty of Rome, or the court which it established or the Assembly of Signatory States which supposedly governs it. We do recognize the governments of most signatory nations, their laws, and their applicability in their territory to U.S. citizens while there, subject to any agreements that may be in place between our governments such as Status of Forces agreements governing our military forces based there.

The Treaty of Rome purports to have created a new supra-national body with both lawmaking power and judicial power which it claims can be invoked on the citizens of any nation whether or not they recognize the legitimacy of that new supra-national body. This body has declared that its laws trump the agreements we have made with other sovereign nations. But we do not recognize this body and quite properly regard the (apparently) passive assent of signatory nations with which we have individual agreements, many of which predate the Treaty of Rome, as a violation of duly executed agreements between us and them. There is nothing improper about our vigorous defense of our rights under bilateral agreements when a new body whose legitimacy, law, and jurisdiction we do not recognize attempts to subvert them.

There are real issues here, mostly regarding the governance of U.S. military forces in other countries. Given the spineless ineptitude of the major European powers during the early stages of the Serbian genocide in Bosnia, and their evident proclivity to put legal and procedural form over substance, even when thousands of lives were at stake, no one can rightly assert that our concerns in this area are unfounded

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georgeob1 in his post of Wed Sep 10, 2003 1:09 pm states:

Quote:

"The Treaty of Rome purports to have created a new supra-national body with both lawmaking power and judicial power which it claims can be invoked on the citizens of any nation whether or not they recognize the legitimacy of that new supra-national body. This body has declared that its laws trump the agreements we have made with other sovereign nations."

This pretty much sums up my opinion of the ICC. nimh has been kind enough to supply the ICC's website which I read with interest. During that read something jumped out at me.

The ICC's own web site

http://www.icc-cpi.int/php/show.php?id=basicdocuments

gives this encapsulation of part II of the Rome Statute of the International Criminal Court.

Quote:

"...Cases may be submitted to it either by the Security Council, or by a State Party, or by the ex-officio Prosecutor, acting on the basis of information received in particular from victims, NGOs or other sources it considers appropriate. When cases are submitted to the Court either by a State Party or by the Prosecutor acting in an ex-officio capacity, it may only exercise its competence when the State on whose territory the crimes took place or the State of which the person accused of the crime is a citizen have either ratified the Statute or accepted the Court's competence by means of a declaration filed with the Court Registrar. Without doubt, the most important principle of the Statute of Rome is that the Court complements national jurisdictions and that it may only exercise its jurisdiction if the States concerned are unable or unwilling to prosecute the perpetrators of crimes which fall within the competence of the Court."

Noteworthy is the use of the logical operator "OR" in the statute'. When this operator is used in a conditional statement only one condition need be true for the statement to be found true. So, here we see the ICC assuring us that it promises that it is limiting its authority to only those cases where either both governments agree to the court's jurisdiction, only one government agrees, or there is absolutely no government involved but merely a non-governmental organization (NGO). Clearly the only thing that determines non-jurisdiction of the ICC is the answer to the compound question: What is an NGO and who and how does one manage to become this entity? In two of the above cases where the ICC would see fit to interject itself the seemingly deciding institution could be as unilateral as the ICC's prosecutor.

I know that at this point many might exclaim as to their faith in an impartial judicial system that surely would only act magnanimously and with only the good of the entire world as the driving force behind its motives. I would only hope these same individuals did not align themselves with the argument against the U.S. and Britain for unilateral resolution of the Iraq question while the International Community dickered. However, we see the same forces in Europe crying out for the same unilateralist behavior they have recently condemned of others.

Then, of course, we have the ICC giving special dispensation to the U.S. in return for a possible AOK from the U.S. that might add to the ICC's legitimacy. Why would other nations wish judgment by such international jurisprudence?

I must admit from my discussion with others on the ICC that on the surface it seems a good concept but just as others have pointed to the U.S. as being imperfect, the same is true of other nations and there in lies my hesitation to the ICC. I trust only that other nations ultimately will act in their own interest.

Americans traditionally mistrust authority and Europeans seem willing to give up a considerable amount of national interest for perceived overall security. Given that there still exist powers in the world as China, Russia, India, and the movement towards an Islamic Caliphate, I sleep better knowing the U.S. still has the ability to pull various national chestnuts out of international fires.

JM

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JamesMorrison wrote:

So, here we see the ICC assuring us that it promises that it is limiting its authority to only those cases where either both governments agree to the court's jurisdiction, only one government agrees, or there is absolutely no government involved but merely a non-governmental organization (NGO). Clearly the only thing that determines non-jurisdiction of the ICC is the answer to the compound question: What is an NGO and who and how does one manage to become this entity?

Ehm ... unless I am very mistaken, you are misreading here. The only mention of the role of an "NGO" in your quote is where it says that an NGO - like any other person or entity - is free to provide the Prosecutor with "information". Thats about all the extent there is to the role of an NGO.

A case may be initiated in three kinds of ways: when the UN Security Council proposes one to the Prosecutor; when one of the signatory states proposes one to the Prosecutor; and when the Prosecutor decides to do so himself.

In all of these situations, the jurisdiction of the ICC is still limited to cases where the alleged crime either has taken place on the territory of one of the countries that accept the Court's authority, or when the person accused is a citizen of one of the countries that accept the Court's authority.

So although its true that the Prosecutor can initiate a case "unilaterally" (though additional prior approval of the Pre-Trial Chamber of Judges would be necessary), this "unilateral" action has nothing to do with the question of "What an NGO is and how one manages to become this entity". NGOs are no entity in the process - at most they can do what any of us can do - send the Prosecutor information, and hope he will one day do something with it.

Summarising: when you write, "here we see the ICC assuring us that it promises that it is limiting its authority to only those cases where either both governments agree to the court's jurisdiction, only one government agrees, or there is absolutely no government involved but merely a non-governmental organization (NGO)", you can scrap the part after the last comma, the part that seems to worry you so much. Even if the Prosecutor "unilaterally" decides to initiate a case, the case still has to concern a crime committed either on the territory of a country - or by a citizen of a country - that accepts the Court's authority.

I hope that clears that bit of confusion up.

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I.C.C. web site wrote:

Without doubt, the most important principle of the Statute of Rome is that the Court complements national jurisdictions and that it may only exercise its jurisdiction if the States concerned are unable or unwilling to prosecute the perpetrators of crimes which fall within the competence of the Court."

I hope it will clear up Habibi's confusion to note that an authority of a signatory nation could bring an action against a non-signatory nation, or entity within that nation, or citizen of that nation, and the court would consider itself competent in the matter, in any case in which the court, in its own judgment, determined that the non-signatory nation were unable or unwilling to prosecute the perpetrators of crimes within the competence of the court. I would underline the absence of any reference to an allegation, rather the court seems to be competent to also assign guilt in advance of asserting its competence in a case in which it judges that a nation is unwilling or unable to prosecute. Absent any other qualifier, this allows a situation in which an NGO, a prosecutor or a court of another nation signatory to the Rome Treaty could bring an action against the United States, an entity of the United States, or a citizen of the United States, present it to the Court, which could determine of its own competence that the United States, or the entity, or the citizen, were the perpetrator of a crime within its competence, and, further, that the United States were unwilling to prosecute, and thereby authorize a legal action against the United States, or said entity or said citizen.

It's small wonder that the United States Senate will have no truck with such claptrap.

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Setanta wrote:

I hope it will clear up Habibi's confusion to note that an authority of a signatory nation could bring an action against a non-signatory nation, or entity within that nation, or citizen of that nation, and the court would consider itself competent in the matter,

Only "when the State on whose territory the crime took place [..] has either ratified the Statute or accepted the Court's competence". Since your argument concerns an accusation against a non-signatory nation, the only other option, in which "the State of which the person accused of the crime is a citizen" must have accepted the Court's authority, is out.

I.e., a signatory nation can only propose a case against a citizen of the US, which has not ratified, if he is accused of committing the crime in question on the territory of a signatory nation.

It's then that the rest of your text becomes relevant.

Setanta wrote:

I would underline the absence of any reference to an allegation, rather the court seems to be competent to also assign guilt in advance of asserting its competence in a case in which it judges that a nation is unwilling or unable to prosecute.

I don't know about "assigning guilt", but yes, the Chief Prosecutor can "decide that there is a reasonable basis to proceed with an investigation", and then will have to request the Pre-Trial Chamber to authorise such an investigation. Thats the "unilateral" part we were talking about above.

Again, not possible if neither the State on the territory of which the suspected crime occurred, nor the State of which the person suspected of having committed the crime is a national, has accepted the Court's authority. In that case, the States concerned may be as "unwilling or unable" as possible, yet still the ICC won't have jurisdiction.

Setanta wrote:

Absent any other qualifier, this allows a situation in which an NGO, a prosecutor or a court of another nation signatory to the Rome Treaty could bring an action

An NGO can not bring an action to the court. We discussed this in the post above. Any individual or organisation can send in "information" to the Prosecutor and hope he will, at some point in time, deign to bring a case related to it to the Pre-Trial Chamber of Judges and ask for authorization to investigate.

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nimh wrote:

Any individual or organisation can send in "information" to the Prosecutor and hope he will, at some point in time, deign to bring a case related to it to the Pre-Trial Chamber of Judges and ask for authorization to investigate.

As is the case in almost all courts that have ever existed.

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What The World Thinks of America (BBC program)

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