Putting aside the irony of having Henry Kissinger write an article about the ability of third parties to prosecute people for human rights abuses or crimes against humanity, I believe the article raises some good points. Each country should be able to decide on its own what will happen to its own ex-despots. Different cultures have different ideas of what a just punishment is and what constitutes illegal behavior. Anti-death penalty
That being said I believe there are certain crimes that should be punished by an international court. Genocide is one of those. Heinous war crimes committed during an international conflict might also apply. But I would argue that they would have to be extreme war crimes. It is too easy to say that someone targeted civilians or something similar. War is not pretty and to expect it to be a totally clean enterprise is misguided. But if a country were to use WMD’s unprovoked that might be bad enough for an international trial.
Allowing third party countries to prosecute ex-leaders opens up to many difficult questions, while achieving very little, thus I tend to agree with what Henry Kissinger is arguing.
Matt Bank
12 comments:
I don’t think the issue of different punishments is a problem. The principle of complementarity means that a state has first crack at any offenders. If they investigate potential crimes, then prosecute them if necessary, they and they alone decide the punishment. The ICC is only designed to step in in cases where national judiciaries fail.
I don’t buy the idea that cultural differences in terms of what is and is not criminal mean the ICC is a bad idea. We’re not exactly talking about zoning here—we’re talking about things like genocide and crimes against humanity. And I don’t believe we should respect any country that pretends its culture justifies acts like mass murder or rape.
I think we actually agree on this point; you say the ICC should only be used in extreme cases, and the ICC sets the bar pretty high. According to “Toward an International Criminal Court,” the treaty actually included language proposed by the U.S. delegation to ensure the “disproportionate harm to civilians” charge is prosecuted “only in the clearest of cases, not in the event of error or a second-guessed judgment call.” Indeed, the cases currently before the ICC are pretty clear-cut. It’s hard to argue that the crimes committed by the Lord’s Resistance Army, the janjaweed, both sides in Congo’s civil war, and both sides in the Central African Republic are run-of-the-mill occurrences that the international community should ignore.
You mention WMDs. Unfortunately they are not included in the Rome Statute because it was too hard to get agreement. Nor is drug trafficking, if I remember correctly. These are some of those difficult issues raised by the current incarnation of the ICC. However, I think the biggest problem is the vagueness of the language. While the lack of definition of “crimes of aggression” could pose future issues for the ICC, it is also bad for it because it makes it much easier for the U.S. to stay out. U.S. support could bolster the court’s legitimacy and help it exercise its authority, but while some of the language is unclear, the U.S. looks reasonable enough for not signing on.
I don’t agree that there is little to be gained from prosecuting people in the ICC. I think certain crimes ought to be prosecuted to the fullest extent of the law, and sometimes the only way to do that is through the international community. However, I agree that the ICC raises a lot of questions, and maybe I’ll post again later about some of the other problems associated with it.
this place has become kinda dead.
anyway, i have a conflicted relationship with international law and with universal jurisdiction. universal jurisdiction is a largely European relic of the age of piracy. pirates were rogue actors (sometimes financed by states but often private enterprises and not conventional military forces) who operated in international waters. European states therefore declared universal jurisdiction which gave them the legal right to punish crimes against national or allied citizens regardless of where the crimes was committed. In many ways the problems of piracy and terrorim are similar and European universal jurisdiction is helpful; however, the application of this concept to national leaders acting under the direct mandate of the state is a bit fuzzier and disconcerting.
furthermore, the biggest issue i have with the prosecution on individuals under international auspices is that the crimes they are held accountable for were often not crimes when committed. this is the application of Jus Cogens. this principle of vague and ill defined norms is contrary to customary law, common law, statutory law, and ex-post-facto previsions.
while i agree that international laws should exist to guide states and leaders the laws must be consented to for legitimation and they must therefore also be well defined. so i support the creation of the ICC and of international law in principle but am apprehensive about certain legal principles which it recognizes.
The ICC doesn't prosecute crimes committed before enough states ratified the Rome Statute for it to come into effect. It is not retroactive. So, any crimes the ICC prosecutes were definitely considered criminal when committed.
I find myself in agreement Chris Patten's 2002 Washington Post piece. There are legitimate problems with the ICC, but the US should remain a part of the process to help solve them. Furthermore, on a PR level it makes far more sense for the US to sign on to the ICC than to isolate itself from the world by refusing to do so. The perception of the UNited States putting itself above the ICC's reach is damaging to US soft power, and signing on to the treaty really doesn't compromise the US.
After all, if worse comes to worse the US can always simply ignore the ICC. Who's going to force the United States to turn over someone to the ICC? So why not play along?
I agree with Flecher, what risk is the US really taking? One of the articles mentioned that the ICC would never become a political tool to use against the US because the US bankrolls the ICC. Like all international organizations it only has as much power as its members. No court would ever take arms against the US because it would only mean the end of the court. The only risk I can see is that any charges against the US for its military actions would be more visible maybe...although still not likely to turn in to anything serious. To me it seems like all the legal ambiguities and possible loopholes are extremely unlikely to be exploited; so many horrible things happen but the court has focused on things that everyone agrees is wrong--even if they are no worse in reality than something more controvertial (Iraq?) On an ethical note, it also seems inconsistant to think that the US should have different standards because it has so many more military responsibilities abroad. Just because it is statistically more likely to offend doesn't mean it shouldn't be subject to the threat of punishment (as Amelia mentioned...in the case that the US didn't take care of it before the ICC would have to say anything)
no, the ICC is not retroactive, but the legal doctrine of jos cogens applies making ex-post-facto laws possible.
the carrot of us involvement in the ICC is how you get the changes. and it is not good for our soft power or the ICC if we agree and still flout the law.
the US withdrew from the ICJ which it funds because it kept having cases that it was going to lose. I'm all for an ethical foreign policy where we don't get into these scrapes but how can you honestly tell me that no court would bring cases against a major funder. the ECJ and the supreme court routinely find ageist the gov't (see the recent EPA decision).
Earlier, I didn't mean that because the US pays for the court that they would not dare bring any cases against the US at all, the US pays for half the international system but that doesn't mean they don't ever get a hard time from the UN or the WTO or whoever it may be. I meant that it would not be used as a political tool to gang up on US power abroad in the same way the UN is not...far from that. I wasn't aware that the US had pulled out of the ICJ because there were so many cases against it in it though...actually I hadn't even made the connection that the ICJ and the ICC were different things. Thanks for clearing that up for me!
EVENT: (I have class but I thought it was relevant to us if anyone is interested)
Transatlantic Cooperation and Security in the Middle East
Given the challenging situation in Iraq, Iran’s nuclear ambitions and the stalled Israeli-Palestinian peace process, the transatlantic partners share the belief that only a regional approach will be successful in creating a sustainable peace. Americans and Europeans, however, pursue different strategies towards the common goal.
Should the Americans engage in a bilateral dialogue with states like Syria and Iran or should Europeans facilitate a new “trialogue”? Are there strategies that have worked in the past in other regions and what are the common lessons we have learned? How can Europeans and Americans, both states and non-state actors, develop an integrated approach to the region and ensure coherence?
Thursday, April 19, 2007
3:00 p.m. - 4:30 p.m.
New America Foundation
1630 Connecticut Ave, NW, 7th Floor
Washington, DC
To RSVP for this event, reply to this email: communications@newamerica.net with name, affiliation, and contact information.
http://www.newamerica.net/events/2007/transatlantic_cooperation_and_security_in_the_middle_east
Since so much has already been said I will just add a few more lines. Though I agree with the idea of having an International Court in a set place with the proper infrastructure and buildings to carry out justice I do not support the ICC. I think it is disrespectful to create a treaty that is supposed to be universal. A state either signs on or does not, a country should not be held liable for something it never even agreed to in the first place.
On another note I do not feel that the US needs the ICC to prosecute its own because the US has the legal systems and mechanisms to prosecute and bring justice to light.
I have more to say but I will stay true to my word and keep this post short.
Within this entire debate I think we are kind of forgetting what is trying to be done here. The ICC is the first international institution that prosecutes crimes that are so severe that they should not be restricted by borders and national jurisdiction. Given the legacy of World War II and the atrocities that were committed during it, one can only hope that an institution such as the ICC exists and functions effectively. Since the ICC would mainly prosecute severe crimes such as genocide I don't really understand why there isn't enough support for such an institution. Crimes against humanity are called this way because they know no national borders, otherwise they would be called crimes against Americans or crimes against Indians or whatever. Additionally once a country's government or population is capable of committing a severe crime such as genocide it doesn't take a genius to assume that the respective country will most likely not have the adequate means or institutions to carry out a fair and effective trial. It would therefore be in everyone's interest to have an institution such as the ICC jump in and conduct a fair and neutral trial. After all it would be ridiculous to think that countries such as Germany or Rwanda would have been able to conduct fair and neutral trials after all the atrocities that had been committed towards the members of each respective society.
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