Monday, December 04, 2006

Questions, questions, questions

A classmate asks: "I understand the dilemma of sovereignty and our reason for not signing on with the ICC, but even if we arent bound by the jurisdiction (technically we are if the UN refered Rumsfield to the ICC) shouldnt we still act in the manner outlined by the ICC? We are the champions of democracy and the rule of law, in order for us to maintain our credibility we must act credibly."

My reponse: I make a couple of points. 1) International law is not synonmous with the ICC. and 2) The ICC's jurisdiction is whatever the UN and the ICC says it is.

Reagarding point 1), Gen Pinochet can confirm this. Some of the families of people who disappeared during Pinochet's rule in Chile prevailed upon a Spanish judge for justice. This judge investigated the charges and issued an arrest warrant that Scotland Yard enforced when Pinochet showed up in England in 1998 for back surgery. The judge based his warrant on the theory of "universal jurisdiction" the idea that some crimes are such an affront that all humanity has an obligation to pursue the offender, and bring him to justice. (The Ripple Effect of the Pinochet Case By Stacie Jonas Human Rights Brief, Volume 11, Issue 3, pgs. 36-38 May 24, 2004) We therefore see a Spanish judge issuing a warrant that was enforced in England against a Chilean citizen for acts committed in Chile that were considered to be violations of Spanish law. Part of the deal that got Pinochet to give up power was the grant of immunity that was negotiated with other Chilean politicians. What tyrant, seeing the idea of "universal jurisdiction" enforced everywhere in the world, would ever give up the reins of power lest some mischief maker somewhere else in the world decide he was going to bring that tyrant to justice? Such a possibility would make a mediator's job very difficult if the goal were to have the tyrant reliquish power. This is also the theory in the complaint against Rumsfeld. According to press accounts: "The groups' lawyers say their case model was former Chilean dictator Augusto Pinochet, who had been arrested five times since 1998 due to human rights cases against him."

Regarding point 2) the Security Council can refer anything or anyone it wants to the ICC for trial. If the powers of the world decide that atrocities occuring in southern Thailand or the Marshall Islands or southeast Chad are so heinous that the perpetrators are committing crimes against humanity, if those individuals are somehow caught, they can be hauled up in front of the ICC.

Another classmate asks: "How legitimate is its power?"

My response: I am not sure who you are referring to when you ask "how legitimate is its power?" For either the US or the ICC, the question pivots on the definition of "legitimate." America's power in the world is undeniable; it is the third most populous country in the world, the largest economy in the world, has the most capable military and outspends the next 44 countries in defense expenditure.

The ICC, on the other hand, has seen its ratification treaty legitimately signed by 139+ countries, but the same question Stalin asked about the Vatican during WWII must be asked about the ICC: "How many divisions has it got?" Without some way to compel unwilling actors to comply with the rulings of the ICC, it is an inert body. The only way to compel anyone is with sufficient force, force that only the US and its allies can provide.