The International Criminal Court - Legitimacy in Counter-Leadership Operations
The ICC represents a paradigm shift in the enforcement of international law and human rights. Rather, than being a UN-redux of "resolutions ad nauseum" it has the potential to act as a major enforcer of human rights, being autonomous of the restrictive Security Council and other UN organs.
First of all, it is the fist permanent international court that can hold individuals criminally responsible for mass atrocity crimes.
Second, it provides a newfound legitimacy in human rights enforcement, being an international institution distinctly separate of historical unilateral judicial endeavours like the Nuremberg trials which have been described by some as "victor's justice".
I'm wondering how one might be able to change the anti-ICC perception in the US and encourage people to see that the ICC will, in the future, become a very important institution for prosecuting mass atrocity crimes, whatever some of its current flaws.
RE an interesting point raised by David Kilcullen on the myth of OBL and al-Qaeda:
Quote:
Let me give you two possible scenarios. Scenario one is, American commandos shoot their way into some valley in Pakistan and kill bin Laden. That doesn't end the war on terror; it makes bin Laden a martyr. But here's scenario two: Imagine that a tribal raiding party captures bin Laden, puts him on television and says, "You are a traitor to Islam and you have killed more Muslims than you have killed infidels, and we're now going to deal with you." They could either then try and execute the guy in accordance with their own laws or hand him over to the International Criminal Court. If that happened, that would be the end of the al-Qaeda myth.
http://www.washingtonpost.com/wp-dyn...031903038.html
Legitimacy, Effectiveness & Multilateral Action
As to this:
Quote:
It would be fair to say that the Bush Administration's exploits with US law (Guantanamo and the Military tribunals, "enemy combatants") have not been met with glee from the international community and the US certainly has a legitimacy problem now, which, until addressed will continue to have a negative impact on GWOT and future Western-led operations.
To use the example of the upcoming KSM trial, however fair that trial might be, it will still be viewed by some as a "show trial" simply because it was an "American court" (id est: the AQ oral history will record "the Americans tried and executed the martyr, KSM")
The US will be a dartboard regardless of what it does - and Lawfare vs it will continue no matter what administration is in office. I'd expect that the US would still be a dartboard even if it retracted in its Worldview to an Americas-centric, Two ocean littorals military force projecton.
Other nations elect to co-operate with the US because of their own enlightened self-interests. The US-UK co-operation against transnational violent non-state actors has occured despite a basic difference in how TVNSAs should be handled - the UK solely via the Rule of Law criminal process; the US under both the Rule of Law and Laws of War.
The question of "whether or not coalitions" is a good question for the future. With the advent of the Bush I New World Order, coalitions became the default. In truth, coalitions are not going to be effective unless all parties are on the same page. An example where they are not is Astan.
The Sierra Leone Special Court has managed to convict 3 RUF commanders, three former members of the Armed Forces Revolutionary Council (AFRC) and two members of the Civil Defence Forces (CDF), Sierra Leone Rebels Guilty of Crimes against Humanity; and is working on Chuckie Taylor Sr, who is starting to testify.
One wonders whether the millions[*] spent on these few trials could have been better spent on a long-term improvement in the local justice system in SL, which if functioning would be capable of dealing with domestic war criminals. But, of course, international justice organizations get the bucks; while the natives have to get by with whatever happens to drop off the cart (or perhaps off the horse would be a better metaphor).
Chuckie Taylor Jr bit the dust more than a year ago in our Federal District Court, as posted here, Charles "Chuckie" Taylor Jr convicted in Miami. He was sentenced under the US Anti-Torture Act to 97 years in prison (in effect a life sentence without parole).
Finally, this may be true:
Quote:
If the events of the last ten years have shown us anything it is that multilateral action certainly achieves much more than unilateral action.
but I can't really think of any major multilateral actions that stand out.
------------------------------
[*] The Special Court costs $25 million per year - more than you might want to know about the Special Court for Sierra Leone. What would $150 million (approx funding for 2004-2009) have done for the local justice systems in SL and Liberia ?
Much more on its Big Brother, The International Criminal Court.
See also, US Opposition to the International Criminal Court for archived articles.
All of the foregoing footnote materials are from the Global Policy Forum, which favors the ICC.
Why the US People will not accept the ICJ, ICC and for that matter I Law, in the same way as some other nations do, is laid out by Paul Kahn (pro-ICC) in his article, Why the United States Is So Opposed (December 2003), linked from the GPF US Opposition page. Kahn gets this part right:
Quote:
The American National Myth
The behavior of the popular sovereign is what Americans mean by the rule of law: the rule of law is rule by the popular sovereign. This union of the rule of law and popular sovereignty is the great American political achievement. Of course, all of this is true not as a matter of fact, but as a matter of political faith. It is the American civic religion or our national myth. Belief in the popular sovereign as a single, transhistorical subject is at the core of the American democratic project. That project is not about assessing the will of a contemporary majority, but about maintaining the faith in a single, self-governing, plural subject: the People.
Since I Law lays no claim to being derived from the People of the World (it exists as a creation of nation-states, with its individual humanitarian rights being granted by those states), the basis of I Law is contrary to US political (i.e., constitutional) theory - The American Civic Religion.
Thus, Kahn pegs it - what Americans mean by Rule of Law, with these passages:
Quote:
What is the Rule of Law?
The character of the controversy over the Court is particularly difficult to understand because the central term of the debate -- the rule of law -- is itself deeply contested. American political culture does not accept the cosmopolitan view of an opposition between law and politics, with law cast as the expression of reason and politics as self-interest. In the American constitutional frame, popular sovereignty and the rule of law are a single phenomenon constitutive of the national political identity. The rule of law, which begins and ends in American life with the Constitution, is the self-expression of the popular sovereign. The Constitution is the source of all law-making power, and every assertion of a legal rule can be tested against the Constitution. No question more quickly or easily comes forward in our political culture than "Is it constitutional?"
Americans believe they created themselves as a "nation under law." That law is not a set of moral constraints imposed on the political process from outside, whether from natural law, jus cogens, or customary international law. Rather, the law expresses the substantive decisions of a self-governing community. The American Constitution expresses the will of "we the People." The rule of law is binding on the American political community not because it is reasonable or morally correct. It is binding because it arises out of the constitutive act of self-creation by that community. Thus, the rule of law is not a moral norm; rather, it is an existential condition signifying the continuing existence of the popular sovereign.
No one should underestimate the claim that the American Constitution makes upon the American citizen: it defines him as a political being; it is the object of his patriotism and the subject of a profound reverence. Despite the charges of rampant consumerism in modern America, the political culture maintains a cult of sacrifice - amply demonstrated in the post 9/11 events. The Constitution is at the very heart of this cult: in its name, Americans, for 200 years, have willingly taken up the burden of killing and being killed.
Of course, this does not mean that Americans are indifferent to the moral content of their law. They want their law to be reasonable and morally correct, but that means only that they want the community to bind itself by laws that satisfy these standards. They want their law to be morally satisfying in the same way that a parent wants his or her child to be morally good: we want them to be good because we love them; we do not love them because they are good. It is the same with the community that is the United States: citizens have a deep bond to the popular sovereign; because of that, they care deeply about how it behaves. They will not easily abandon this bond, even when they judge that behavior harshly.
I might add that the US, because it does insist that all government and law must derive from the People, is 180 degrees in separation from the UBL-Zawahiri view that all government and law derives from God as expressed in the Koran. While I personally do not believe in "clash of civilizations" arguments, the US Historical Myth (as Kahn calls it) is totally adverse to the AQ Historical Myth (as I will call it).
Regards
Mike
No need for the rest of the story
and in the immortal words of Walter Croncite... and that's the way it was, the way it is, and the way it will always be, Brother...:D
Roger... Out
About Islamic or traditional laws
Hello all of you.
I join lately on this but I found comments on Sharia interresting. Not being Muslim nor religious, I am on the same boat. But having to watch on a daily base implementation of Sharia and other "traditional laws" (I just hate that qualification despite it is relevant) I would like to come with some comments.
First, as the anthropologist Elikia M'Bokolo demonstrated, what froze or fix the understanding of a law referal which is closed as Sharia or traditional African legal system is not the text itself but what the people do with it.
In most of the cases, it is not even the people in charge of interpreting and enforcing the law but the governing people who freeze those legal references.
The best exemple that come to my mind is Mobutu and his adoration for "autentique" (in french). By imposing to the people in Zaire (an "autentique" african name) to act as autentique African people, he just took them the liberty to just live and act in 20th century.
The interpretation of Sharia is closed? Well no! Sharia is a base to build legal system. Stoning women seems to be an atrocity (and it is) now days. But when it was set up, women found Sharia as a progress as they had a legal status and in exchange of some behaviours (as no adultary) they could access some rights. We have to remember here that women are considered as equal of men in most western countries since a very short time. In France, women can vote only since 1949. And I am not talking about having a personal bank account without their husband authorisation. Can't remember when but less than 50 years.
In some Islamic republic or Muslim countries, the law is not syaing that women have to be stoned in case of adultary. Just that on a legal base, it is a divorse in favour of the man. It was quite the same in our western countries just 50 years ago. So it is not the referal that has to change, it is its interpretation. And this is possible Even with Sharia.
Secondly, the ICC is a perfect example of West being particularly "traditionalist" or concervative. ICC is a progress as all law of war and geneva conventions recognise the individual responsability of war criminals. ICC is then just trying to be a court (the system is not perfect, far from it) that judge individual and not nations or armies. Nothing much new.
But, international powers as the US do not want ICC to overpass their privileges. International relations, especially war or the use of force, should not be judge by someone else than the country the criminal belongs to.
Basically, countries, at least governing people, are fine with what is and just do not want it to change.
Like JMM my cristal ball is cloudy for 1400 years far ahead predictions. But I gess that within 14 years nothing would have change much. Specially if rule of law enforcement and promotion does not change and pass through occupation and fake elections.
M-A
1 Attachment(s)
PTE, our Worldviews (of the US role) ...
are so different that I am not the right person to debate. What follows is my personal opinion.
Let me make it clear that I do not favor the US in the roles you seem to suggest in prior posts:
Quote:
It is a real opportunity for a legitimate "global law-enforcer" beyond the heavily-criticised "Team America and the Allies".
or as "police officer" (your last analogy); or as the primary sheepdog protector (to borrow an analogy from Dave Grossman) of other herds. I would adopt a much more limited geographic scope for US application of the "M" in DIME - unless attacked, where we still have to retain a solid global reach capability (the "compressed spring" concept).
The historical global strength of the US has been economic, and to some extent informational. We have not done a very good job in those areas recently; and have pursued a rather insane economic policy for decades.
In my list of what the US should be doing to correct its Worldview, the ICC would be in the bottom tier (if at all). End personal opinion.
------------------------------
For those interested in the ICC, several Wikis provide some links and coverage of the starting points: International Criminal Court, Rome Statute of the International Criminal Court, States Parties to the Rome Statute of the International Criminal Court, United States and the International Criminal Court.
Here is a graphic (as of 10 Oct 2009) of ICC ratified members (green), signed but non-ratified nations (orange) and non-signed nations (gray):
Attachment 1015
As of Oct 2009:
Quote:
... the court has opened investigations into four situations: Northern Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur.[14] The court has
indicted fourteen people; seven of whom remain fugitives, two have died (or are believed to have died), four are in custody, and one is appearing voluntarily before the court.
14. International Criminal Court, 2007. Situations and Cases. Accessed 26 January 2009.
What the ICC might do with some "Small Wars" issues is a valid concern for those who fight them.
For example, let's take a difficult area as in this SWC thread recently updated, HVTs/Political Assassination. Some of the legal problems in this area are addressed by Kenneth Anderson, ‘Targeted Killing in U.S. Counterterrorism Law and Strategy’, A Working Paper on Counterterrorism and American Statutory Law, a Joint Project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution, 11 May 2009. In that article, Anderson cites the ICCPR (International Covenant on Civil and Political Rights) 22 times. Arguably, any violation of that somewhat murky convention would constitute a "war crime" - and notably, our (US) drone strikes and other direct actions have been claimed to violate that convention.
------------------------
I got to thinking about our US courts and prosecutors; briefly:
1. Michigan judges and prosecutors are elected - hence, the People have direct control over who those folks are (other checks and balances also exist).
2. Federal judges and prosecutors are appointed - by folks elected by the People (other checks and balances also exist there).
The ICC's judges and prosecutors are elected by the nation-state members. There, Cambodia and the US would have equal voting rights (one nation, one vote); not quite the US constitutional concept of one person, one vote.
Regards
Mike