17 Aug Revolting Against the Article 98 ICC Agreements
I’m also back after another short hiatus. I will post at greater length later this week, but for now I just wanted to note some recent pushback on those controversial Article 98 Agreements between the U.S. with a number of its allies preventing U.S. soldiers from being extradited to the International Criminal Court. Nigeria’s Senate recently passed a resolution declaring Nigeria’s Article 98 Agreement with the U.S. void because it violates Nigeria’s constitutional processes. Meanwhile, Jordan’s parliament will be convening special sessions to consider a similar agreement.
Whatever the legality of these agreements under international law, they appear to place the U.S. in a tricky policy position, especially in Africa. While the U.S. is trying to get Sudan to cooperate with the ICC, it is at the same time aggressively seeking exemptions for its soldiers. No doubt there is a fine legal point here: the U.S. supports ICC prosecutions that are controlled by the Security Council but not otherwise. This fine point, however, is probably a hard sell these days with the legislators of its partners and allies.
Good for Nigeria! Come on, Jordan! Under the Tinoco Arbitration that I mentioned a couple of blogs back, the US is charged with knowledge of Nigeria’s internal constitutional processes. Moreover, back in the SEATO and CENTO days, we inserted a subject-to-our-Constitution in mutual defense treaties (and why that didn’t contradict the purpose of the treaty we’ll never know, because if the US decided it did not want to go to the defense of its treaty partner, the US would get away with noncompliance either by virtue of the subject-to-the-Constitution clause or by virtue of the nullification of the treaty itself!
Hi all! Great blog by the way! I have just written an undergrad paper on the validity of Art 98s at international law. I focused mainly on (1) defeating the object and purpose, which becomes less relevant as more States ratify, (2) whether these types of agreements were considered by the Art itself (this goes fairly deeply into treaty interpretation, Vienna Convention, Ian Sinclair etc, and (3) whether the agreements could be invalidated on the basis of jus cogens. Basically I used a lot of Geoffrey Robertson and the ‘what is the point in having international criminal mechanisms which do not actually provide a proper deterrent’ kind of argument. I came to the conclusion that the agreements themselves were not invalid on a jus cogens basis, but that when they were applied, they might violate jus cogens. I don’t know, if anybody is interested in reading it, they can email me at winerack@pobox.com, I would be happy to email it. This is an incredibly interesting area of international law, yes?!
[Basically I used a lot of Geoffrey Robertson and the ‘what is the point in having international criminal mechanisms which do not actually provide a proper deterrent’ kind of argument.] Excellent. Your mentors have taught you well. What university do you attend? The value of treaty law may not need the application of force, however. For example, if you were to draw up a treaty with my nation-state and in bargaining I knew that you could never enforce it, walking away from the treaty without the application of force used against me by you would humiliate my country in the international community. It would mean that my country is less civil and I would lose national prestige. Men like me hope that folks like you that are going to be dealing with the world’s problems in the future as leaders recognize these points. Only the nation-state that loses its humanity will walk away from treaties that seek to enforce humanity. ICC law is dangerous for the United States insofar as our enemies want to accomplish two very specific things: 1) Prevent the application of force by the United States in the international community regardless of justness or reason. That means… Read more »
One other comment on this excellent subject. The United States is one of only a handful of countries that have created a form of ICC desired control over its military forces since Vietnam. The United States learned in Vietnam that imprecise munitions and imprecise application of military power empowered communist PSYOPS to propagate against our country. Thus the United States developed weapons such as laser-guided bombs to strike military targets with much greater precision and to prevent the unwarranted accidental killing of non-combatants. No other country has invested so much time and national treasure to do that. Most other countries still use imprecise munitions and conventional weapons that kill indiscrimately. Combined with precision weapons development, US military forces are also trained to a much higher standard in the recognition of human rights and international law. So to me, the US military is the epitome of what can be done both in fighting wars and preventing the wanton slaughter of innocents. Now, ICC law will go after the United States. How can that be if we have the higheest standard in warfighting and preventing civilian casualties? If the bar of ICC law reaches into the levels of professionalism of the US… Read more »
Obtestor said “Thus the United States developed weapons such as laser-guided bombs to strike military targets with much greater precision and to prevent the unwarranted accidental killing of non-combatants.” Well, I suppose while this is arguably one substantial collateral benefit from precision munitions, we most certainty did not develop precision-guided munitions to prevent accidental non-combatants deaths. Nice thought, though. Rather, dumb bombs are paradoxically extremely expensive in terms of the number of sorties required to destroy targets, and added sorties — in this day and age of guided AA missiles versus WWII era flack — increases our own KIA rate sharply. There’s a famous story from Vietnam of a bridge that survived 20 or so bombing runs with dumb bombs before finally being fully taken out by one crude laser-guided bomb, which were just then coming on the scene. As for the ICC, though I view it more properly described as a hybrid political/judical organ than a pure justice body (witness the early attempts before Belgium narrowed its own jurisdiction of groups trying to indict Rumsfeld, et. al; or the apparently epic never-ending Milosovic trial), there is value in certain narrow areas. Will the U.S. ever submit fully to an… Read more »
Obtestor – I’m at the University of Melbourne, in Australia. I’m at work so don’t have time for a detailed response, but just to get a bit of debate and thinking started, I really wanted to ask whether people thought the ICC would ‘go after’ the US? I think the US is powerful enough to prevent these prosecutions anyway. In any event, if the US won’t submit to the jurisdiction because it fears being prosecuted, why should anybody else? This is an area in which the US should be using its global leadership for an end which is basically in its own interests. The existence of an ICC surely assists prosecution of international crime in a way national courts cannot. Why should Bosnians, Rwandans, Congolese etc etc etc submit to the authority of an ICC if the US will not? Further, why should the US not submit to the jurisdiction of an ICC unless it has some potential defedants to protect? I mean, if the US is NOT committing war crimes, which I won’t go into, why should the US fear prosecution for such war crimes? If we are going to prosecute SOME international criminals, why should we not prosecute… Read more »
[In any event, if the US won’t submit to the jurisdiction because it fears being prosecuted, why should anybody else?] The United States is the only country capable of seeking enforcement of war crimes prosecutions globally. The United States is the only country that has the political will to use military force and to gather coalitions together against aggressor nation-states. The only reason why Bosnian Serbs are at the Hague right now is because the United States dropped munitions on Yugoslavia to end the conflict in Bosnia-Hercegovina. The Hague has a list of war criminals that they want from Bosnia, Serbia and Croatia. Croatia is being penalized right now by being denied access into the EU because they refuse to give up their “Heroj”. There is also a belief that Serbia is seeking Croatian lands taken by Croatia during Operation Storm, a military operation overwatched by US special operations personnel that drove Serbians out of Croatia and secured Bosnian battle positions. The genocide in Rwanda was caused by the application of US military power in Somalia. When I was in Somalia, I predicted that if there was a rapid US withdrawal that some other country in the region would take… Read more »
Obtestor – I agree with some of your points, but not all. [“The United States is the only country capable of seeking enforcement of war crimes prosecutions globally. “] This idea, which runs through your post, is, I think, unjustifiable. I think there is a huge international movement towards the prosecution of international crime by international organs, even without the recent assistance of the US. Even when the US pulled out of the ICC, progress was stalled but not stopped. I think it is a bit unsustainable to argue that the US is the only country willing to enforce war crime prosecution. Some would argue the US is in fact one of the few countries not willing to enforce war crime prosecution ANY MORE, rather than in the recent past. There would be an argument that this unwillingness correlates with the growing accusations against US personnel. [“The Rwandan Hutu’s knew that no one in the international community was going to come to the rescue of the Tutsis when the killing started.”] The above is exactly why we need an international criminal court. I agree, nobody was going to come. Nobody went at the beginning of the Bosnian crisis either, before… Read more »
[We can’t have these double standards which say ‘our tortures are immune, yours are not’.] The point that you are missing that I was hinting to is that the United States prosecutes all bad behavior in the US military. The folks at Abu Gharab were prosecuted, including the commanding officer. Insofar as photos go of soldiers raping children, we would need to see the evidence to support the accusation. I am not saying such evidence doesn’t exist, it is just that the leftist media has the tendency to demonize US troops to attack the Republican administration. There were only 14 war crimes prosecuted during the Vietnam War by the United States with its forces. That is a remarkable statistic and reinforces what I keep saying about military discipline. It is a fact our troops our disciplined better than any other military force in the entire world. The facts speak for themselves. Abu Gharab and incidents like them were isolated to individual units and those do occur and I already admitted that. If the United States were incapable of prosecuting such incidents, then I would support an ICC function. Since the United States does clearly prosecute all such cases, no claim… Read more »
Obtestor – valid comments on a number of points. I’m about to leave work so I won’t be able to reply in depth, but I would like to tomorrow. On a minor point, I agree that the UN can’t agree on anything, the whole structure of the system creates stagnation. However, I think the UN and its dysfunctionality is separable from the ICC. I don’t think the ICC is relevant to Oil-for-Food or taking bribe money. My point has always been that a strong criminal justice system, possibly even divorced from the UN but based on broad consent and procedural transparency, would make potential offenders, whatever their nationality, hesistate before commission of an international crime.
Thanks for your other comments and I will reply in depth when I get a chance!! Cheers
Obtestor – sorry, while I am away, could you please explain in more depth your paragraph beginning ‘it is moral relativist thinking etc.’? I am not sure I understand the concept behind that paragraph or what it is saying. Some further explanation would be appreciated!! Thanks heaps and look forward to responding.
Moral relativist thinking is a logic fallacy. It is flawed thinking insofar as any moral outcome, goodness or evil, must be approached collectively with the same level of force or reward. Some examples of moral relativist logic fallacy thinking are: 1) North Korea is a terrifying communist police state that shouldn’t be held accountable for its daily war crimes and crimes against humanity in an ICC capacity because the United States, a free country that doesn’t commit war crimes and guarantees its citizens inaliable rights under God won’t join the ICC either. Moral relativist logic fallacy. 2) A convicted murderer is released on parole and moves into a neighborhood. When the parole officer keeps tight control over the parolee, the parolee goes to the media and complains: “My constitutional rights are being violated. None of you are held to the same standard of parole that I am. If you are going to make me go see a parole officer, everyone in my neighborhood should as well.” Moral relativist logic fallacy. 3) A group of Nazi Landesgrupen are captured executing 1,000 Jewish prisoners. The Nazis are taken to the Hague for prosecution. Their defense? We are human beings and all human… Read more »
Obtestor says: “There were only 14 war crimes prosecuted during the Vietnam War by the United States with its forces. That is a remarkable statistic and reinforces what I keep saying about military discipline. It is a fact our troops our disciplined better than any other military force in the entire world. The facts speak for themselves.”
When you talk about people being blind to facts staring them in the face, you ought to stop for a moment and reread what you have said. The fact that only 14 war crimes were prosecuted hardly means that only 14 war crimes were committed. There were, in fact, thousands of war crimes committed in Vietnam. I pointed out many of these in an article published in 1969, at the height of the war. Although my evidence for this article was second-hand, none of it has subsequently been challenged.
YOu can access the article at
http://anthonydamato.law.northwestern.edu/Adobefiles/A69d-nurembergdef.pdf
Obtestor – please don’t flatter the US so much. The reason people want an ICC is to prevent the commission of war crimes/crimes against humanity etc. The thinking behind the ICC is much broader than ‘let’s get the US’. As an Australian (and yes, we are in Iraq too) what I want from an ICC is the prosecution of people like Pinochet, Pol Pot, the leaders of Darfur and it goes on. Yes, if the US soldiers behave in the same way, which even I am prepared to admit they really don’t, they should be prosecuted as well. Why can’t we start with the big stuff, so that the ICC proves its legitimacy and transparency? Go after the Pinochets of the world first, because it is only when we do that others will think twice about committing exactly the same crimes. The mistake Americans seem to make is thinking that we all care so much about ‘getting back at the US’. Frankly, I disagree with the direction of your current administration. However, I couldn’t care less about them, really. Someone like George Bush will be gone and forgotten half an hour after he leaves office. What I am interested in… Read more »
We can’t advance this debate any further until you talk about The Oil for Food Program extortionist scandal against the Iraqi people and the United States and the UN failure to define terrorism, one of the most savage war crimes that is easily defineable. How is it possible that you can support a European-centric ICC when European states in alliance with nation-states hostile to the United States worked through the organization of peace known as the United Nations to prevent the United States from freeing 25 million enslaved Iraqis from one of the most brutal dictators on the planet? President Bush will not be forgotten the day after the next election. President Bush will be viewed as one of the most important presidents in the history of the United States. What annoys the utopian crowd, the crowd that just can’t shake Marx, is the fact that President Bush had the intestinal fortitude, the pure will to push ahead and face the international evil knowing that what he was doing was for the greater good. So it is the utopian derailment, the pause in the leftist global collectivist plan, the mistakes by France, Germany, Russia and others while taking protection money… Read more »
Obtestor – thanks for your quick response to my last post. I think the Oil for Food program, whilst obviously exploited and probably stupid in the first place, was not only exploited by Europeans, but Americans as well. I think the whole system was corrupt, not just Europeans involved. I have just read an interesting report in BusinessWeek (July 18th edition) which you should read. It details Marc Rich’s exploitaiton of the Oil for Food program and how a corrupt, covert bank of oil traders took huge advantage of that system. I don’t really know much about Oil for Food, but my immediate reaction is that everybody involved was making a buck, not just Europeans. Not just governments, but individuals also. US refineries bought oil from traders they knew to be paying bribes for extra allocations to Saddam Hussein. So, whilst I need to better my knowledge of this particular situation, I can’t really see how it is relevant to the establishment of an ICC. I think you are pushing a different agenda. In terms of defining terrorism, yes, the UN has failed. That doesn’t mean the ICC should be dumped. Instead, people in the UN should be a bit… Read more »
You missed the point that I was making. The Oil For Food Program was deliberately corrupted by European states to protect Saddamn Hussein, not just to make money. They wanted Saddamn in power so that the State of Israel would be under continuous attack in the region and the United States would find it difficult to impossible to respond to Saddamn. Iraq geographically is the key to Islamic genocide of the Jews. The UN was in essence creating a military alliance with Saddamn against the United States. So what the Oil for Food Program really was then was vote-buying at the UN Security Council level specifically to protect Saddamn Hussein. That is what was going on. It was racketeering and corrupt influence on organizations. Under Kofi Annan’s watch over $18 billion dollars was stolen from starving Iraqis and given to hostile states instead just to keep Saddamn in power. Marc Rich was under US indictment at the time that his company was approached by the Oil for Food racketeers. US corporate involvement in the Oil for Food racket was very narrow and the individuals involved are being investigated by the DOJ and the US Congress. So I think it is… Read more »
Sorry Obtestor, that started out as a really good discussion, but you have started ranting about UN corruption, which is completely separate to the issue of the ICC. Frankly, I couldn’t give a crap who runs an ICC, as long as there is one. It seems to me that the US uses these kind of arguments to distract people from the real issues, as you seem to do also. The point is, only when we have this institution, or one like it, will war crimes be punishable on all sides. You continue to harp on about Jews when, really, it isn’t an issue in question in most ICC discourse. Just because some people on the margins would say ‘let’s prosecute all those US soldiers and, now I think about it, why don’t we nail all those Jews too’, doesn’t mean that outcome will be realised. Whenever you set up an institution like this, there will be people on the margins bleating about their little cause. That doesn’t mean their cause gets pushed in the mainstream, or within the institution itself. It is people like you who use these arguments to prevent the creation of the institution itself. In terms of… Read more »
[It is people like you who use these arguments to prevent the creation of the institution itself.] That is a terribly unfair thing to say. I have seen war crimes take place in Africa personally when I witnessed them being conducted in the nation-state I was in by folks who lived there against their own people. I have been hunted in anger by enemy soldiers on two different continents. I completely understand the need for an ICC and to be frank, I am a major supporter of human rights. I have risked my own life to save thousands of other human beings. So I completely agree with you insofar as the good intentions that you have is an ideal that I admire. Beyond that however, you express utopian thinking. You think that the world will just all fall into line if an ICC appears. There are serious questions to consider when creating an international court that has subpoena power over citizens of sovereign states. You describe that as a non-issue, but it goes to the heart of the resistance to the ICC. It can’t be ignored. The most important facet of being a scholar is looking at issues without bias.… Read more »
Obtestor – my apologies, I probably overreacted in that last comment. I am sorry you had to go through those kind of experiences, might I ask what you are doing now? What institution do you work for? I am trying not to be utopian. I don’t think the world will just fall into line. What I am saying, I guess, is that the establishment of the ICC is only the first step in addressing these problems. No, the institution will not be perfect, but surely we can give it a crack and work on it. I am also trying not to be biased, even though I admit my ideals lead me to advocate a strong international criminal justice system in the best possible form. My view is, at the moment, this is the best way to do it. Of course, I could be wrong, but there you go, my bias is admitted and I try very hard to address opposing views, like yours, without simply asserting my own view. My interpretation of international law at the moment is the move towards this supra-national power. Phillippe Sands puts it best, I think, when he says Europeans are more used to this… Read more »
[Obtestor – my apologies, I probably overreacted in that last comment. I am sorry you had to go through those kind of experiences, might I ask what you are doing now? What institution do you work for?] I volunteered to go through all of my experiences so there is no need to apologize. I had a similiar view that you did when I was an undergrad student of bringing folks in line internationally. It is a much more difficult challenge than meets the eye. As for who I work for, I work only for my country, the United States. It is all that matters to me and nothing else. The ICC wouldn’t garner any respect without UN involvement at the diplomatic level. Creating an ICC isn’t like starting a small business that fails over time. When dealing internationally with hostile states, you get one crack it. You don’t reopen a new ICC with a new business plan when the first ICC fails, at least not without expending 100 years in the process. Foreign states understand the seriousness of war crimes and crimes against humanity. The ICC will not hasten further enlightenment on that issue. That is why when an ICC… Read more »
(It is only the ignorant who limit themselves.) I am unable to further the legal discussion on this matter but on the basis that the very best legal opinion must also be for the good of the participants, I wish to add a comment).The world certainly gets smaller, and the smaller it gets the more those surrounding us (whoever us (US) maybe), will impose their viewpoint. In that we all live on the same world and we all need to live in peace and harmony with each other tradeoffs have to be developed between neighbouring countries. This I take it is the situation the US finds itself in today, i.e. having a set of laws (Constitution) that has allowed it survive and grow where so many others have fallen and disentegrated; To what extent can or should the US allow other laws and customs alter or amend the legal structure on which this success has been based.The US also permits and encourages immigration and in consequence local communities of the ‘outside’ world will establish themselves together with the customs brought over from those worlds, this despite the ‘americanisation’ of all immigrants.So lets get to the meat of the argument, does… Read more »
To Obtestor: You want international law to infiltrate American law when it’s an improvement over American law, but not when it’s worse than American law. But what if Rule X is incorporated because it’s an improvement, yet two years from now our situation changes so that it is no longer in our interest to comply with X? Are you arguing that X should then be banished from American law? Conversely, what if we bar Rule Y from becoming incorporated into American law, and then two years later find that changed circumstances argue in favor of Rule Y? Can we suddenly reverse field and incorporate it?
I ask these questions as a matter of logic; in practice, I don’t know what possible mechanism there would be for any country to pick and choose from among the rules of international law those rules that are in its self-interest.
[But what if Rule X is incorporated because it’s an improvement, yet two years from now our situation changes so that it is no longer in our interest to comply with X? Are you arguing that X should then be banished from American law?] Professor D’Amato, that is a great point. I am not saying that we should pick and choose what laws we will obey and what laws we shouldn’t. The SCOTUS recently said that US judges should look to international law for enlightenment. I have a hard time seeing any enlightenment from international law unless you know some international law that you think I would be interested in. Legalizing marijuana, advanced abortion rackets, issues that destabilize countries and the like, to me, isn’t legal progress. I would really enjoy laws on terrorism unified internationally, but there are none. Human rights laws that have teeth are another series of laws that I would really enjoy seeing enacted. The confiscation of private property so that socialists can rob land owners isn’t very productive. Neither is legalising drugs nor expanding the feminist police state mechanism, but those types of laws are what are being sliced out to us from international law.… Read more »
Obtestor – maybe the question for Americans is not what is Europe doing that is so good you should join them. Maybe the question is why, when the US is intent on trying to influence international law when it suits, is the US not interested in taking on the whole of the obligations associated. Having the US as a willing part of the international legal system is a good thing for everyone.
You can use your influence to get those human rights with teeth, for example. The trick is, the US doesn’t want to have to enforce those rights domestically. The thing is, nobody can escape international law anymore. Surely active US participation and involvement is in your interests. Better to be influencing what one sees as a bad system from within that system than getting angry about how bad the system is from without.
Don’t forget, the US can benefit from strong rules of international law, that much is obvious. It is not all about losing your sovereignty.
[Don’t forget, the US can benefit from strong rules of international law, that much is obvious. It is not all about losing your sovereignty.] All that government and law is to humans is the application of force. That is all that it is. So when you say that America should embrace international law, you are saying that we should embrace the foreign application of force upon American citizens and government and the coercions that will appear shortly thereafter. We have already had a great taste of European law in our history and we had a revolution over the rejecting of that law. Most nation-states wouldn’t dream of giving their citizens the rights that Americans enjoy. So what human rights issues do you think that Americans suffer from domestically? There aren’t any gulags in America like there are right now in Vietnam, China, North Korea, Venezuela and other countries. Funny how those never get discussed (but obvious). The international community then is concerned about American’s rights? Laughable! The international community simply seeks to control US application of power internationally and they are very annoyed that we have the resources and the will to do it. Europe and other states brought this… Read more »