ICC v. USA

(rough draft bordering on stream of consciousness )

As the EU, US, and UN argue over whether Sudan’s government sponsered brutality in Darfur are in fact Genocide, and importantly how they should be prosecuted, (with the EU pushing the ICC and the US pushing an ad hoc tribunal) the motivating question should be asked: Q: How do you stop crimes against humanity? A: You have laws that protect humanity and prosecute those who violate these laws.

This is a simple formula used on a national level in every country for a range of crimes large or small. Of course, it is no small matter that a crime against humanity, because of its universality of application, is obviously in conflict with the notion that each state is sovereign within its own borders.

While the treaty of Westphalia is hardly sacrosanct – over the years ad hoc tribunals have been set up for Bosnia, Kosovo, Indonesia, Cambodia, Serrie Leone, and Rwanda, to name a few recent cases – the concept a permanent International Criminal Court would be a large step in legitimizing the notion of international law with universal jurisdiction. This would be a very positive step in my view because as international law becomes more uniform and less ad hoc, governments considering a crime against humanity would need to think twice before proceeding.

Thus since I believe that America should fight vigorously for ending crimes against humanity, I believe America should support the ICC. Of course this ‘ass hole’ (really I think this word is rather apt) administration would never consider joining such a sensible arrangement.

Although now that I’m done venting my frustration I must admit that there are realistic concerns involved with American participation. It is a simple fact that – well – when america acts militarily, the world in large part instinctively opposes such action, and I would say with for understandable reasons. America's cold war and now post 9-11 alliances often are made more for expediency and power politics then for any moral reason. For examples of american hypocrisy we need to look no further than Nicaragua during the cold war and Uzbekistan today. (As a side note it is absolutely amazing to me on some level how the fact that both Afghanistan and Uzbekistan – both more populous than Iraq and Islamic – have extensive military contacts with america including the presence of large bases, basically goes unnoted by both global media and (global) Islamic fundamentalists (I think); with Uzbekistan especially so. Of course there aren't 150,000 americans troops occupying and killing, (and policing and rebuilding) quite like there are in Iraq, but this is kind of circular since the reason there still are that many troops in Iraq is because the insurgents made the presence of Americans an issue.)

Okay I've gotten sidetracked. I’m don’t want to argue right now whether American actions (historical or current) are crimes against humanity or even less technically if the use of american unilateral force has been right or wrong. I’m simply pointing out that bias against American actions exists. My case could be summed up in the following question: For the same crime, would a French general acting in Ivory Coast be tried the same way as an American one acting in Liberia? The answer I'm afraid is probably not. And not only because of a bias against Americans, but also because Americans expect an American exemption to international rules.

Is there a way around such problems? One way to brainstorm for a possible answer is to return to the analogy with national criminal law. Are there provisions that mitigate similar concerns? (Warning: I wouldn’t put my level of expertise much above the regular ‘Law and Order’ viewer). In american courts each individual is afforded the right to be tried by a jury of their peers (in principle); i.e. the jury must be made up of individuals that share similar life experiences, and wouldn’t presumably be biased against them. Thus in analogy, Americans should be tried by their peers. But what would that mean? When Americans are tried by the ICC should they be tried by judges from america, or alternatively judges from British influenced liberal democracies like Britain, Australia, Canada, and with South Africa and India thrown in to round things out.

… Hmm… Now that I’ve gotten the perspective of actually writing these worlds down, maybe this isn't such a good idea. And here is a point that makes it even worse. Who would be the peers of Sudan? Egypt? Uganda? Libya? Chad?

So maybe there isn't a good answer to this problem other than America just simply agreeing to go along with the court and having faith in the fact that when push comes to shove other countries are not going to send american soldiers, even those involved in Abu Guirab or Guantamino to the ICC, even though it’s clear that both instances are clearly wrong and need to be stopped.

But it’s tough because it’s not too hard to think of a future event where the world would want to try an american for crimes against humanity and could possibly have a point. For instance lets say that North Korea Produces 100 nuclear weapons and begins to export the bombs to the highest paying customer, state or non-state. The US feels it must act against the North Korean regime. It launches a preemptive attack and because of the potential counterattack against Seoul, it uses massive force (possibly WMD) killing hundreds of thousands.

Would America be tried for such a crime? Should, America be tried for such a crime?