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The International Criminal Court is launching a formal investigation into the crisis in Darfur. (Link courtesy of reader Chris Pettit).
I have no aversion to this. My problems with the ICC reside in its makeup and its politicized nature, but with the Security Council providing its support, and with the dire need to do something, this would seem to be a logical place for ICC action. The question, of course, becomes efficacy after they find something. Genocidaires tend not to respect the rule of law, international or otherwise. That is why they are genocidaires. This stems back to one of my main skepticisms about the court – what sort of enforcement mechanism does it have? If this proves fruitful, I am all for it. I am just not certain that it will. Courts rule with the consent of the governed. When that consent is not present, more coercive measures are almost always necessary. I do not see the Sudanese leadership and their janjaweed henchmen paying much heed to whatever the ICC does. I sincerely hope that they do.
What if a lawyer, politician, mechanic, whomever, came and stated that the most brilliant and authoritative historians were not to be listened to and that he/she was going to write a definitive history and could tell you why they were wrong? Would you listen to the person's input? Sure, but in the end you would expect that person to respect the authoritative accounts of history and those people who were considered the most brilliant and authoritative. The same goes for law and rights. Your input is fine, but in the end, the law derives its authority from itself, not from someone enforcing it. And those people who are considered the best and the brightest in terms of law and rights theory are those on the international courts (with the exception of politically ideological appointments from the P5). So you may not like a courts decision, but you must respect it as the right one. If you can muster enough evidence NOT based in ideology regarding the SUBSTANCE of the decisions, then maybe we can talk. But as it stands, your complaints are with the procedure and what you ideologically view to be a biased international system...something I do not address, instead choosing to look at the court decisions of those legal scholars trained in rights and law to an extent that you are the mechanic or whoever trying to do the heart transplant. Your other option is to muster overwhelming public opinion (such as through the Martens Clause) to show that an overwhelming majority of the pubilc finds the decision of the "wise men" to be wrong...something you cannot possibly muster.
So if you want to complain about the procedure and that due to nation state bias and whatnot the US and Israel are targeted by other states, fine. I think it is a load of crap, but you can at least make the argument and point out the flaws in the international system. If you can provide sound legal or rights reasoning based in critical analysis and not ideology or power politics to try and refute one of the findings of a particular case, that is fine as well...but I have not seen you provide that sort of argument yet, partially because you are not highly educated and trained enough in law and rights theory to be able to (but only partially). Otherwise, please respect the authority of the law and those who are highly educated, impartial, non-ideological, and able to try and rise above those prejudices that are created by the different ideologies of the world in search of universalism. You consistently twist (or misunderstand) your arguments to attack the scholars and the courts, when they are either ideological positions, or are attacking the procedure and structure of the international system. Just think about it and see if it makes any sense...
CP
chris l pettit -
6/7/2005
You are not, and I would never paint you as, hostile to human rights or human rights scholars...I was simply trying to illustrate the facetiousness of your reasoning. Apologies if it came across in a more negative light. It does get me awfully riled up that you would criticize some of the foremost legal and rights scholars in the world who are chosen to be justices on the ICJ and ICC. These are the people who we should be listening to in terms of ALL nations and the crimes they and the individuals who run their governments...these are the highly trained, educated and non-ideological individuals who i speak of all the time. In fact, as I have demonstrated consistently in the past, the only bias in terms of the positions of individual judges comes from the politically motivated nominations of the US, China, Russia, and the UK to the ICJ...something that surely does not match with the argument you try to present. The ICC is free from such political shenanigans at the moment.
If you want to criticise how cases get before the ICC, that is fine, and I find procedural problems as well...but once the cases are in front of the court, it is a travesty for you to criticize a) their decisions and b) accuse them of being biased in any way. Your criticism can be procedural, but personal attacks on the judges are simply untenable.
The ICC has never dealt with Israel...you are simply mistaken to claim it has. The ICJ has...and the decision was absolutely correct under international law.
Even your arguments about children at bus stops are based in ideological political argument. Try and find me legal basis for what you are saying that does not utilize manipulation of verbiage...it is impossible. "Defense" does not allow land grabs...it does not allow violations of basic rights...it does not allow house demolitions and assassinations...it allows for defense, meaning in Israel's case that, if it wants to build the fence (since that is what we are discussing) on the borders recognized in international law by mminds much more brilliant than you and I, that is where it should be built. The law and the judges overcome your ideological bias, as well as that of the Palestinian nuts.
We should leave the interpretation of the international law to the legal authorities who are highly trained, educated, non-ideological, and leaders in protecting UNIVERSAL human rights. Get the politics, historians, ideologues, religious nuts, Machiavellian dreamers, etc, the hell out of it...rights law exists on a universal level to overcome prejudices based in your various ideologies. if you dislike that, you live in a world that decries all law, morality, ethics, reason, rationality, etc. that is purely ideological and power based. How you cannot see this is rather unbelievable to me...
CP
Derek Charles Catsam -
6/7/2005
Chris --
Let's stop the nionsense of painting me as hostile to human rights and please, let's avoid dimwitted analogies like the mechanic doing my heart surgery. The law is not the same as an internal combustion engine or a heart valve. You love to deride the idea of expertise while at the same time embracing it when it suits your argument.
Look, just because someone is believed to be an expert does not mean that other ideological vantage points should not be welcome. As for holding Israel to the same standards as the rest of the world, that is just nonsense. Israel is far more democratic, liberal and open than any country in its region, and yet the criminal court/ICJ manage to single it out routinely. The leg I stand on is comparative history and politics. If you'd care to explain why Israel has been singled out by international alw more than all of the nations surrounding it combined, then we can see who has a leg to stand on. As it is, you come across as the intellectual double amputee here. Israel is the consistent subject of harassment by your beloved courts. Not Syria or Saudi Arabia which allows its citizens to be stoned to death. Only Israel, the only state in the Middle East with substantive due process. Israel, the only state that allows its Arab citizens to vote even as someone with an Israeli passport cannot even enter some of the nations surrounding it. That you continue to proclaim that the US and Israel are somehow less open, free or democratic than most any nation on earth is baffling to me. In your haste to make whatever legitimate points of criticism you have about these states, you try to argue that they are somehow singularly bad. The same standards as the rest of the world? My God, Chris -- do you honestly feel that way? You cannot possibly believe this cant. Single out Israel, ignore violations that are exponentially worse in Syria, Saudi Arabia, Yemen, Egypt, Iran, etc. etc. etc. I am just baffled.
Your views of universalism are touching, but it amounts to nothing at all. What is "universalism," when it forbids Israel to protect children at bus stops beyond more cant? Your "universalism" has equated the United States as being parallel with Syria. This is not universalism, it is a level of blind relativism that prizes theoretical nonsense over actual conditions on the ground. Your hatred of Israel and the US clearly knows no bounds, and you rationalize it by these amorphous judicial standards that somehow elude other courts in the world. I am certain you'll argue that the criminal court is better than the US Supreme Court, which is nonsense, and the US Supreme Court manages to both value rights and consist of representatives from across the political spectrum who oftentimes disagree but who equally value the conception of law even if they disagree about what that law always means. That you think that such disagreements are not possible in international law is astounding. That you paint others as being ideological when calling for evenhandedness while your lack of evenhandedness is supposed to stand for a nonideological approach is why i remain one of the few folks over here at Rebunk who will still engage you. They think I am nuts for bothering. Every time I try to reason otherwise, you produce a comment like this last one. Holding the US and Israel to the same standards as the rest of the world. Egads.
dc
dc
chris l pettit -
6/6/2005
should I take this to mean that you view anyone that is viewed as a leading human rights scholar is "left wing to far-left wing?" The judges on the court are universally (though not unanimously) viewed as leading scholars and academics in the field of human rights. Simply because they hold the US and Israel to the same standards of the rest of the world makes them left wing? Surely you must jest...you simply do not have a leg to stand on in this case. let me ask you this...would you want a Christian Scientist or mechanic doing your heart transplant? of course not...so why not leave the interpretation of universal human rights, the international rule of law, and humanitarian law to those who are authorities in the field and are not ideologically affiliated. I really do feel that your ideology is standing in the way in this case. It is damn near impossible to demonstrate any anti-Israeli or US bias on the court outside of disagreeing with the self interested positions of the US and Israel and holding them to the same standards to which everyone else is held. you will note also that the ICC has not yet addressed Israel in any forum...perhaps you are confusing the ICC with the ICJ? Because I know several judges on the court personally, I do have to admit that I have a personal stake...but can swear on whatever you like that there is no anti-US or Israel bias...just a simple desire to treat everyone with the same standards of universal rights. We have already discussed your misplaced fears regarding the ICJ and the fact that the only bias there is from the US, Russian and UK judges and that you can find no proof anywhere of anti-US and anti-Israel bias in the writings of other judges. But this has to do with the ICC...totally different. Still no bias...except towards the P5...but totally differnt nonetheless.
A court should represent human rights and universalisms. if you view this as left or right wing, so be it...it will be according to your ideology. Ideology does not play a role in the application of universal rights and obligations...the law exists on its own authority, not that of a sovereign enforcer...and is thus universal.
CP
Derek Charles Catsam -
6/6/2005
Chris --
The ideological makeup of the judges can best be described as covering the gamut from left wing to far-left wing. As someone on the left side of thje spectrum, one might think that I would support this. I do not. I think that a court that does not seriously try to cover the gamut of ideologies is set to be a disaster. This is independent of the anti-Israel and to a lesser degree anti-US bias of the court, which is demonstrable. A court that singles out Israel and ignores almost every nation-state surrounding it is not an honest broker.
dc
chris l pettit -
6/6/2005
I am also of the opinion that it is "politicized" but that is because the members of the SC (particularly the US) torpedoed some of the more dynamic provisions that had been invisioned by international legal scholars to allow the court to apply human rights universally and get nation-state governments to enforce the rulings. In addition, the US doing everything it can to protest the court doing anything, and using extortion to get states to sign bi-lateral agreements hasn't helped any. One cannot argue with the make up of the court in terms of the justices involved...or the prosecutors office for that matter. The procedure is, in fact, problematic...but that it because the SC is usually needed for a problem to be referred to the court, which means the US, Israel, UK, France, Russia, and China won't be before the court anytime soon (with a caveat on the UK, who actually have a complaint against them re:the Iraq War against them at the court at the moment...time will tell whether they are called and whether they actually comply). In addition, there is this little problem of "all domestic remedies must be exhausted and states have the obligation to in good faith take care of their own problems"...which, while fine and respecting sovereignty to a point, makes it way too easy for states to say that they are taking steps and that all remedies have not been exhausted (there are better ways of achieving what was wanted and still upholding the rule of law). God knows the US is not acting in good faith regarding Gitmo (hypothetical - if the US were party to the Rome Statute) but they could argue that since they were prosecuting lower level blamees and not those actually responsible, they were exhausting local rememdies.
Re: Sudanese government...should they not comply with the decisions of the ICC and hand over perpetrators, the AU and/or the UN would then be authorised to take action (the UN under Article VII of the charter) since it would be a verifiable threat to international peace and security (interestingly, the fact that it was even brought to the ICC could be used for this purpose, although this opens a whole new can of worms). This could incluse humanitarian intervention, etc. The thing is, the action would actually have legitimacy, which the philosophies of Kristof and Power do not have, under the rule of law and the international community. It again removes us from the realm of power politics and self interest, and gives some rights law legitimacy to the process.
THe only politicization argument that could be made that I could see is the argument by the Sudanese government that the ICC is too politicised in that only cases that are approved by the self interested power states on the SC can be pursued and guaranteed to be followed up. Somehow, I don't think that this is the case that you are trying to make. The arguments made by the US are totally baseless given the fact that the court is staffed with highly educated and impartial jurists, and cases that were politically motivated with no merit would not make it beyond the preliminary investigatory stages. Similar to our own system, only cases that can be sustained under international law give rise to an inquiry. So you will have to do really well to convince me of any politicization from the P5 side. Are there procedural problems...yes, but they reflect negatively on the P5 (particularly US) actions, not anyone elses.
Just explain to me what you mean, and I will do my best to explain either why I think they are a bit off, or admit you have a good point.
