Why the US Needs to Join the International Criminal Court

I used to think that the US should not join the International Criminal Court because it too greatly intruded on our sovereignty. I am more and more convinced that I had it backwards: we need to join the ICC to save ourselves from ourselves.

The heart of the ICC scheme is a complementarity of jurisdiction: the ICC has jurisdiction only over very serious crimes against humanity such as genocide or war crimes. And even then, only if the crime happened in a signatory state or was committed by a national of a signatory state.

And even then the ICC only has the power to act only if the state with jurisdiction over the alleged criminal is unwilling or unable to genuinely prosecute him.

Which brings me to why the ICC is looking better all the time:

Pentagon Will Not Try 17 G.I.'s Implicated in Prisoners' Deaths: Despite recommendations by Army investigators, commanders have decided not to prosecute 17 American soldiers implicated in the deaths of three prisoners in Iraq and Afghanistan in 2003 and 2004, according to a new accounting released Friday by the Army.

Investigators had recommended that all 17 soldiers be charged in the cases, according to the accounting by the Army Criminal Investigation Command. The charges included murder, conspiracy and negligent homicide. While none of the 17 will face any prosecution, one received a letter of reprimand and another was discharged after the investigations.

This comes on the heels of a bizarre defense offered to Congress by Vice Adm. Albert T. Church III for his report on why no higher-ups are responsible for anything bad:

When pressed to explain why he did not hold anyone accountable for failing to establish clear interrogation procedures in Iraq and Afghanistan, Admiral Church told reporters, “I don't know who you would have assigned responsibility necessarily to do that.”

When our government admits we have killed 27 POWs (something we used to take rather seriously when it was US POWs in the hands of the Vietnamese and the Viet Cong), tortured who knows how many, and then our government says no one is to be held accountable — that's when the case for joining the ICC, as a last-gasp line of defense of our decency — seems at its strongest.

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18 Responses to Why the US Needs to Join the International Criminal Court

  1. john doe says:

    But wouldn’t that give Schavio’s parents yet another court to harrass?

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  3. Pepsiholic says:

    Excuse me but what army do these terrorists belong to that they should have POW status??? The Geneva convention was written to protect BOTH sides. Do the terrorists give our military people whom they captured the same rights??? I could care less if these animals are tortured or killed.

  4. michael says:

    Either they were POWs or they were civilians. It’s murder either way. It’s murder even if they are spies or terrorists of [insert evil category] if there’s no trial. (And, at least as regards the Iraqi captures, our government said they would be given Geneva Convention protections.)

    The argument that our enemies act like barbarians, therefore we should feel free to act like barbarians too, strikes me as evil (and stupid, as it destroys our ‘soft power’ – our claim to a moral advantage). It certainly isn’t an argument our military likes, as they are the ones who will suffer the retaliation for it.

  5. Chris Vosburg says:

    Pepsiholic writes: I could care less if these animals are tortured or killed.

    I’ts also clear that you don’t care whether they are innocent or guilty, terrorist or civilian, woman or child, combatant or noncombatant. They are the Other, and you are very, very scared of them.

    Try to calm down, Pepsi. Switching to Pepsico’s decaffeinated version of its popular soft drink may help.

  6. Pepsiholic says:

    Michael writes: It certainly isn’t an argument our military likes, as they are the ones who will suffer the retaliation for it.

    Excuse me but can you document a single instance where the insurgents/terrorists treated ANYONE they captured humanely (other than those for ransom)??? Typically it’s a bullet to the head or a beheading caught on tape. Typical liberal lunacy… if we treat them nice they will treat us nice.

    And Chris… They don’t put pickpockets in a military prison. It’s resereved for people caught with weapons. Chris is probably the type that thinks they should be released so they can go out and blow up more woman and children.

  7. Ereshkigal says:

    I seem to remember the Bush administration arguing against U.S. participation in the ICC for the very reason that American soldiers would be subject to prosecution under ICC, and that other nations would use the ICC process to disrupt our military by hailing our troops and officers before the ICC.

    The US was able to fend off international doubt because we had a pretty credible history of enforcing international law through our domestic and military courts.

    It looks like international doubt was justified.

    I guess we won’t be getting any passes in the future because of our credibility, will we?

  8. Randy Paul says:

    Shorter Pepsiholic:

    Two wrongs do make a right.

    P.S. You might want to acquaint yourself with the Convention Against Torture. It’s not just a good idea: it’s the law.

  9. j.froomkin says:


    During the Korean war, your father as a draftee, heard a lecture during his basic training that he was not required to give anything besides his name, rank and serial number to his captors. Anything more might have made subject to a court martial. He was also told that if he were assaulted or tortured by his captors, they would be subject to prosecution as war criminals.

    There was little doubt that the same rules applied to war prisoners on the other side.

    The excuses that members of the armed forces were not aware of these rules appear ridiculous.

    In those cases where force was used to quell a “riot.” There is no evidence that the riot was not caused by illegal force used to question the captured members of an enemy force, nor that the force used to control was proportional to the threat of their jailers. Hm.. not being a lawyer, but a veteran, I just cannot believe that the arguments used not to prosecute killers of enemy combatants make any sense.
    Help me, give a rationale for some of the decisions where there are a few facts about the events which led to the death of the detainees.

  10. How interesting that I should read this post on the very day that I should encounter the following quote within this worthwhile piece by Mark Steyn:

    “It is a big mistake for us to grant any validity to international law even when it may seem in our short-term interest to do so — because, over the long term, the goal of those who think that international law really means anything are those who want to constrict the United States.”
    –John Bolton, U.S. Ambassador to the U.N.

    Well, as long as everyone agrees….

  11. Apian says:

    “What the administration is trying to do is create a new legal regime,” said (then) Deputy Assistant Attorney General John Yoo. This new legal regime of Empire has been a long time in the making, and requires withdrawal from all international treaties. (Gonzales, during his confirmation hearings, said it might be time to revise the Geneva Conventions.) What cannot be un-signed is twisted, redefined, reframed.

    For now, on paper, the Convention Against Torture still holds… or does it? The Code of Military Justice still holds… or does it?

    Also, I might ask, what army does the CIA belong to that it might be exempt from the law forbidding torture, ghosting, rendition to countries who torture, and summary execution of prisoners?

  12. Too Kind By Half says:

    The US was able to fend off international doubt because we had a pretty credible history of enforcing international law through our domestic and military courts.

    Sorry but this nostalgic view is just wrong. First of all, we don’t have a credible history of respecting international law. (Ereshkigal, your word was ‘enforcing,’ which may have unconciously reflected a particular, but common, view of the relation of the USA to the Law…)

    A small example should suffice. How many nations have successfully flouted the condemnation of the World Court for ‘unlawful use of force’, as we did, in the case of the mining/blockade of Nicaragua’s ports in 1984? And it wasn’t sufficient for us to merely ignore that court, we also had to veto two UN Security Council resolutions that affirmed the Court’s judgement and explicitly called on us to observe international law.

    I guess we won’t be getting any passes in the future because of our credibility, will we?

    Yes, we will get many more passes. They are granted all the time.
    The trick is to understand what’s the basis for getting a pass.

    John Bolton knows, as Veiled-Chameleon shows, apparently approving(?), in the quote he provides above.

    Laws are a tool of the weak.
    We’re above such things.

    Lest we forget this, it is spelled out again recently in “The National Defense Strategy of the United States of America.” That’s a document released a couple of weeks ago that tells us a little bit about how the USA (the Bush administration as our representatives) views the world:

    “Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.”

    The Law. A ‘strategy of the weak.’
    Now we’re all clear on that.

  13. Mojo says:

    Pepsiholic: Various insurgent groups in Iraq have treated prisoners humanely on numerous occasions. Research the stories of US and allied personnel who have escaped from or been released by their captors. (Tip: you won’t find these stories on the Fox Network.) Some groups mistreat their captives horribly and even behead them while others simply hold them in conditions considerably better than Abu Ghraib. The vast majority of insurgent groups in Iraq don’t have any captives at all.
    However, that is all irrelevant to this case as nobody ever bothered to prove that these prisoners of the US military were terrorists in the first place. Killing someone while torturing them to find out if they are bad enough to deserve to be tortured seems to have a slight gap in the logic train.

  14. russ says:

    This clown is kidding, right?

    Those 17 G.I.s were martyred at the altar of leftie political correctness…

    What torture? Now if all 17 of those G.I.s had used a Zippo, a K-bar, and some strips of raw bacon to deal with the terrorist towel heads, then maybe there might have been some grounds to deal with these 17 G.I.s…

  15. Brett Bellmore says:

    I”m at something of a loss as to why “complementarity of jurisdiction” should reassure anybody who’s dubious about the ICC. So, “the ICC only has the power to act only if the state with jurisdiction over the alleged criminal is unwilling or unable to genuinely prosecute him.”

    While you can doubtless think of things our government has done, that SHOULD have been prosecuted, but weren’t, (I certainly can!) I can also think of a hell of a lot of things that get prosecuted in other countries, that we don’t prosecute, because we think they’re civil liberties.

    So somebody writes a book in the US, that gets ordered in Greece off of Amazon.com, and the reader there finds it offensive. Right now, the author only has to worry about being dragged in front of a court if he visits the EU. We join the ICC, and staying in the US won’t be safe, either. Because when people publish books that offend some ethnic group, our government is “unwilling to genuinely prosecute them”, and that gives the ICC a green light to override the First amendment.

  16. Michael says:

    Bret, I think you missed the part about the narrowness of the jurisdiction: the ICC’s jurisdiction is limited to a subset of the most serious crimes, all of which are recognized as major crimes in both international law and the domestic law of every nation, including in the USA: things like war crimes, or genocide. Neither libel, nor treason, nor insulting the Maximum Leader nor anything like those are within the ICC’s jurisdiction. Think of it as an institutionalized Nuremberg tribunal and you are fairly close. There is nothing within its jurisdiction that’s a civil liberties issue; the problem in some people’s eyes is the war crimes jurisdiction, which some feared — perhaps with reason — could have been invoked in the Vietnam conflict and thus — they reasoned — would be too constraining for the US.

  17. Brett Bellmore says:

    Camel’s nose under the edge of the tent, Michael. The jurisdiction of the ICC can be expanded, and we can’t veto the expansion.

  18. Michael says:

    Have you read Art. 121 of the Rome Statute? It’s true we cannot “veto” an expansion of jurisdiction desired by a large majority of the other signatories — but it’s also true we can ensure it doesn’t apply to us (by objection, or in some cases withdrawal). So I don’t think this is ought to be a deal-breaking worry.

    Here is the amendment process:

    1. After the expiry of seven years from the entry into force of this Statute, any State Party may propose amendments thereto. The text of any proposed amendment shall be submitted to the Secretary-General of the United Nations, who shall promptly circulate it to all States Parties.

    2. No sooner than three months from the date of notification, the Assembly of States Parties, at its next meeting, shall, by a majority of those present and voting, decide whether to take up the proposal. The Assembly may deal with the proposal directly or convene a Review Conference if the issue involved so warrants.

    3. The adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a two-thirds majority of States Parties.

    4. Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary- General of the United Nations by seven-eighths of them.

    5. Any amendment to articles 5, 6, 7 and 8 of this Statute [AMF note: the jurisdictional parts] shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.

    6. If an amendment has been accepted by seven-eighths of States Parties in accordance with paragraph 4, any State Party which has not accepted the amendment may withdraw from this Statute with immediate effect, notwithstanding article 127, paragraph 1, but subject to article 127, paragraph 2, by giving notice no later than one year after the entry into force of such amendment.

    7. The Secretary-General of the United Nations shall circulate to all States Parties any amendment adopted at a meeting of the Assembly of States Parties or at a Review Conference.


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