EU officially excludes Americans from war crimes tribunal.

September 30, 2002 9:07 PM

EU officially excludes Americans from war crimes tribunal. "Defusing a trans-Atlantic spat, the European Union agreed Monday to spare U.S. citizens the fate of standing trial on war crimes charges in the newly created International Criminal Court."
posted by botono9 (45 comments total)

So what happens if American forces commit what is unquestionably a war crime? Does it fall under US military court jurisdiction?
posted by nathan_teske at 9:18 PM on September 30, 2002

Oh boy. It's the new American way - go abroad, orchestrate torture or mass killing, then go home and chill out in the jacuzzi - guilt free! Remember: only losers submit to communal judgement.
posted by troutfishing at 9:20 PM on September 30, 2002

This gives rise to anomalies, such as :
A multinational force, say, in Iraq, is accused of a crime, and evidence suggests a court case. The responsible forces, comprised of a joint patrol of US Marines & SAS soldiers from the UK, would be treated differently. If the governments both refused to prosecute (a necessary first step, as I understand it), then the SAS could be arraigned before an International Court. The US Marine's would not. I can't see that as being useful for the Coalition.
posted by dash_slot- at 9:32 PM on September 30, 2002

Obvious response: There are a lot of people that resent the U.S. and could try to use this apparatus against it unfairly. Would you rather the U.S. stand idly by while people like Milosevic commit genocide (yes, I know there are situations where we have stood idly by) or let our own very respected military justice system handle internal crimes?
posted by gsteff at 9:48 PM on September 30, 2002

Yeah, gsteff, but that assumes that Europeans don't hold themselves to even the most basic standards of justice. It seems pretty presumptuous to claim that every country except the United States is apt to betray their own legal system. If I were in the European community I'd feel really insulted right about now.
posted by Hildago at 9:58 PM on September 30, 2002

Yes, American's deeply admired and respected justice system vigorously prosecutes and convicts our war criminals. We really threw the book at Nixon and Kissinger for bombing Cambodia; those guys are never gonna get out of prison.
posted by George_Spiggott at 10:03 PM on September 30, 2002

Hidalgo:
that assumes that Europeans don't hold themselves to even the most basic standards of justice.

Nah, it just assumes that pols in Europe and elsewhere will have a good reason to start or agitate for arguably frivolous prosecutions (appeasing parts of the electorate), but no concrete reason not to except their own conscience.

What reason would an ambitious politician in .uk or .de or whereever* have to piss off a voter and *not* pursue (or push for pursuit of) bogus charges of having a bomb fall stray or of delousing prisoners (things I've heard Europeans (and others) argue are SERIOUS WAR CRIMES!!!! here and elsewhere)?

*.us too, but you'd need to find someone who'd be aware of an arguable war crime somewhere else, and they're thin on the ground here. We have big problems with this internally since most prosecuting attorneys are elected, largely on the basis of their conviction rate.
posted by ROU_Xenophobe at 10:20 PM on September 30, 2002

So what happens if American forces commit what is unquestionably a war crime? Does it fall under US military court jurisdiction?

only if the military wants it to.
posted by rhyax at 10:55 PM on September 30, 2002

The whole reason the ICC was set up was to deal with situations where the host country refuses to prosecute the accused party.. Look at the US's history. Unfortunately there is not much of a US Historical record of having prosecuted war criminals. However, Lt. William Calley, the man who was the commanding officer during the infamous Mai Lai massacre (where over 400 civilians were slaughtered) was found guilty and convicted of pre-meditated murder, but subsequently pardoned(!!!). Fourteen other officers were charged with My Lai related crimes, but the charges were dropped. Shortly after Calley's sentencing, then President Nixon commuted the imprisonment to house arrest. Calley was released after serving 3 1/2 years.

If US Soldiers are immune from ICC prosecution then the ICC is pointless, since the purpose of it is to make sure people are held accountable for their actions, even when their own government refuses to take real action.
posted by Babylonian at 11:34 PM on September 30, 2002

The US only does this because they can't control the Court with vetos and the like as in the UN security council.
Which is basically the same reason as the planned war against Iraq. The world needs to know that the US doesn't need any international laws, they make the laws according to their own hegemonial needs.
posted by zerofoks at 11:45 PM on September 30, 2002

And then of course there's the Iran Contra affair: a number of people fairly high in the administration were tried and convicted -- only to be pardoned by President Bush I. Keep in mind now that Bush himself had been vice president during the whole affair, and the report of the special investigator showed his complicity in the matter.

Foxes and henhouses, anyone?
posted by George_Spiggott at 11:46 PM on September 30, 2002

Eh, there's no need to have US citizens be put on war crimes tribunals, the US can just throw them in 'indefinet detention' whenever they please.
posted by delmoi at 11:54 PM on September 30, 2002

Unbelievable.

If I were in the European community I'd feel really insulted right about now.

I'm in the EU. I feel insulted. The US actively tried to sabotage the International Criminal Court from day one. Now it seems they got away with it as well. Shame on the EU for letting this happen, but more shame on the US. This, for me and a lot of other Europeans, is the moment that the US loses any claim to being "a symbol of freedom and human rights everywhere in the world" and the usual blablabla that you can hear in Bush speeches.

The US has shown itself for what it really is (and not for the first time during the Bush administration): the arrogant empire.

How in the world are you people going to convince Serbian people that you can convict Milosevic but that you will not be held answerable to the same standards?
posted by NekulturnY at 1:07 AM on October 1, 2002

NekulturnY: I'm in the EU. I feel insulted.
Yep, me too, this is how a vassal state would act. I expect us to start tribute payments to our American overlords any day now.
posted by talos at 2:16 AM on October 1, 2002

I expect us to start tribute payments to our American overlords any day now.

Great. Europe's got a ways to go before it repays the Marshall Plan.
posted by gsteff at 2:50 AM on October 1, 2002

I reckon America is trying to neutralise the ICC while Milosevic is on trial because there is evidence of collaboration between American forces and Al Qaeda in Bosnia.
posted by col at 3:20 AM on October 1, 2002

I, for one, welcome...oh bollocks to it.

I'm pretty annoyed about it. It's apparently one rule for America and another for the rest of the world. How is this supposed to give America any sort of moral legitimacy in world affairs?

It's not quite as bad as the FPP suggested: from the link, "The EU foreign ministers agreed on a deal preventing them from extraditing U.S. soldiers or government officials to the ICC provided Washington guarantees any Americans suspected of war crimes will be tried in the United States."

Since the ICC is designed to step in when Governments refuse to act, you couldargue that the EU has made no concession at all really. American objection centred around frivolous prosecution by third world states. The EU said this was ridiculous scare-mongering. This announcement allows both sides to claim a victory.
posted by salmacis at 3:29 AM on October 1, 2002

the marshall plan was self-serving. What use is industrial pre-eminenece without markets with which to export to and so maintain year on year growth.
posted by johnnyboy at 5:22 AM on October 1, 2002

I am so proud.

All hail your new American overlords...
posted by rushmc at 6:17 AM on October 1, 2002

(Is it ok to start laughing maniacally?)
posted by insomnyuk at 6:21 AM on October 1, 2002

If other countries could control themselves we wouldn't have to go in there all the time and try to 'solve' their own problems.

-flame bait off-
posted by LinemanBear at 6:22 AM on October 1, 2002

The article says that "U.S. soldiers or government officials" can't be extradited. Is that current or past? Could a former official be tried by virtue of no longer having a government job?

I doubt that the legal language of the agreement holds any such ambiguity, but the article isn't clear on this point.
posted by Johnny Assay at 6:24 AM on October 1, 2002

Anti-globalisation protestors have been complaining for many years about the lack of democratic representation in institutions like the WTO and the IMF. Why doesn't the same criticism apply to the ICC?

The ICC will have scary prosecutorial powers, but where are the checks and balances that will prevent these powers from being abused? Who makes the laws that the ICC enforces? What guarantees that the ICC will respect these laws? Whose interests does the ICC really represent?
posted by fuzz at 7:00 AM on October 1, 2002

If other countries could control themselves we wouldn't have to go in there all the time and try to 'solve' their own problems.

Like you did in Chile?

Like you did in Vietnam?

Like you did in Cambodja, East Timor, Indochina, Cyprus?

- flame bait off

The ICC is about war crimes. Commit no war crimes, and you won't have to answer before the court. It's that simple.
posted by NekulturnY at 7:02 AM on October 1, 2002

The ICC will have scary prosecutorial powers, but where are the checks and balances that will prevent these powers from being abused?

I bet you are scared of the UN too.
posted by magullo at 7:13 AM on October 1, 2002

I bet you are scared of the UN too

The UN doesn't have the same type of power. Otherwise, based on their resolutions, Saddam Hussein would already be gone. The state of Israel too.

It's not a problem of being scared. It's that the whole idea of international criminal law is wonderful in principle, but in practice it's just another way to create a corrupt power structure that can be manipulated.

As long as there is no basis for democracy and checks and balances at a worldwide level, there is no basis for morality at a worldwide level. International relations are still based on anarchy and the law of the stronger. This doesn't mean that the US, with its gigantic armies, always wins. There are many ways for other states to join together or to bind the US with international agreements. And US power, while enormous, is still limited by what people on the ground actually are willing to support.

International organizations are just another tactic that countries use to promote their self-interests. I don't claim that that is a good thing, it's just the way things are. It would be nice if the world could establish a working democracy. But until that happens, the idea of international criminal justice is a dangerous and hypocritical fiction, with laws and prosecutions decided by diplomatic horse-trading and balances of power. At least the IMF and the WTO don't pretend to be based on notions of universal morality.
posted by fuzz at 7:37 AM on October 1, 2002

The ICC is about war crimes. Commit no war crimes, and you won't have to answer before the court. It's that simple.

Gosh, you sound just like John Ashcroft justifying the PATRIOT Act.
posted by fuzz at 7:40 AM on October 1, 2002

Listen up, all you residents of Dacia and Anglia and Gallia Transalpina and all the other remote corners of our empire: we fight off the barbarians, and in return we get to do whatever we want. Now go worship the Emperor. It's the law.
[/procurator]
posted by languagehat at 8:38 AM on October 1, 2002

The purpose of the ICC was not to provide an instrument with which to humiliate the US. Indeed, we bent over backwards in during its folrmulation trying to find a form that would suit them.

The chances of American ending up before the ICC were almost nil. They would have been subject to the ICC's jurisdiction only if they had committed widespread and systematic war crimes or crimes against civilians (random shootings or mistakes such as the bombing of an Afghan wedding are too ordinary for the ICC).

Even in the unlikely event that American generals intentionally ordered widespread atrocities, the ICC could not act unless America itself refused to investigate or prosecute them, or staged a sham trial to exonerate them. It seems unlikely that either condition could be met in a transparent democracy such as the United States without sparking a huge public outcry. (quoted from the Economist)

Instead, its purpose was to provide an instrument with which to hold less scrupulous nations to account under the rule of law. That objective has been fatally damaged.

The betrayal is not of Europe, or the United Nations. It is of those many countries where atrocities are a real danger and which have been denied an opportunity to extend the rule of law and bring mass murderes to justice.

"America first" is a fundamentally toxic approach to world politics. This is yet another example of why this is so.
posted by RichLyon at 12:06 PM on October 1, 2002

The betrayal is not of Europe, or the United Nations. It is of those many countries where atrocities are a real danger and which have been denied an opportunity to extend the rule of law and bring mass murderes to justice.
Why would that be? How is an absent US preventing other interested parties from taking part in this? If the court needs the cache of US involvement to appear legitimate, then I am unbothered. I think the court is hollow, and never had any right to even considering having any jurisdiction over my country. This is good news, tho I do think I might have preferred that Europe pressed the issue if it resulted in a pullback of American troops from abroad. Europe chooses the easy way, which is not a surprise.
posted by thirteen at 12:57 PM on October 1, 2002

Thirteen

The moral basis of the court's ability to act is the voluntary participation of the world's nations. As one of the world's more significant nations, your refusal to do so weakens that basis. This is not a complex point.

Incidently, I asked elsewhere regarding the paradox of a nation so untrusting of its government's agents at home that it cannot bear the prospect of even the most elementary aspects of domestic security, yet so trusting of them when abroad that it cannot bear the prospect of subjecting them to international rule of law.

Now *that* is an easy way. (Oh, and as for being unbothered..., no surprises there, either.)
posted by RichLyon at 1:21 PM on October 1, 2002

Even in the unlikely event that American generals intentionally ordered widespread atrocities, the ICC could not act unless America itself refused to investigate or prosecute them, or staged a sham trial to exonerate them. It seems unlikely that either condition could be met in a transparent democracy such as the United States without sparking a huge public outcry. (quoted from the Economist)

This is why I've let my subscription to the Economist lapse: their persistent refusal to critically examine America and particularly the Bush administration; often using profound illogic to dismiss even the possibility of American wrongdoing.

If you want an example of how America skirts justice, it's quite simple: they do the same thing, refusing to acknowledge wrongdoing in the first place. You don't have to prosecute it if you can successfully pretend that what occurred was not a crime.
posted by George_Spiggott at 1:25 PM on October 1, 2002

George Spiggott - I don't think the Economist has it in mind that their journal is the exclusive means by which US democracy is rendered transparent. That being the case, I'm not sure I understand how your point follows but agree with its conclusion. (Thank you for the interesting post, BTW.)
posted by RichLyon at 1:47 PM on October 1, 2002

The moral basis of the court's ability to act is the voluntary participation of the world's nations. As one of the world's more significant nations, your refusal to do so weakens that basis. This is not a complex point.

Incidentally, I asked elsewhere regarding the paradox of a nation so untrusting of its government's agents at home that it cannot bear the prospect of even the most elementary aspects of domestic security, yet so trusting of them when abroad that it cannot bear the prospect of subjecting them to international rule of law.


Moral? From my perspective, the court cannot be legitimate, and if it fails because of a lack of US involvement, then I do not consider it a loss. You are correct, it is not complex, but it does appear to be a deal breaker. No one can enter into this agreement without changing the nature of my government, and removing several citizen rights, and for what? I suspect the court is good for Europe, so pick it up and go with it.

I am hardly trusting of any American military abroad, and do not think American troops have any business being anywhere outside of the US. I consider it a different issue. The court has no legal hold over Americans, if you are concerned about American war crimes, do not invite Americans to your wars/pseudo wars. (Certainly, Americans are also responsible for keeping our troops at home, and out of Iraq and whatever other wars seem like fun to whoever is in office) Europe is quite welcome to say they are going to hold anyone they can catch. The states cannot stop that, tho there is some danger in that. Europe was informed that if they planned to do that, US troops would be withdrawn. That is the easy part I was speaking of. If the court was so important, why did Europe sell it out so cheap. It is easier to use American troops and complain about their lack of accountability than to hold the moral high ground and waste your own troops babysitting the world.
posted by thirteen at 1:49 PM on October 1, 2002

if you are concerned about American war crimes, do not invite Americans to your wars/pseudo wars.

This could be parsed as: "If you are an Afghan, do not invite Americans to your wedding party."
posted by riviera at 1:59 PM on October 1, 2002

"If you are an Afghan, do not invite Americans to your wedding party."

Probably not a bad idea.
posted by thirteen at 2:18 PM on October 1, 2002

RichLyon: I don't think the Economist has it in mind that their journal is the exclusive means by which US democracy is rendered transparent. That being the case, I'm not sure I understand how your point follows but agree with its conclusion.

No, my point was that the Economist is always saying stuff like that: note that they say "unlikely" twice in the quote, as if it were a foregone conclusion that America just doesn't do things like that, or can't get away with it. Well, history proves the Economist wrong on both counts -- America does commit crimes, and its "transparent" society does not prevent them from being swept under the rug. The thing that they blithely dismiss as "unlikely" happens almost as a matter of routine. If they subjected America to the same intelligent analysis that they do everything else, they'd know that.

Their use of "unlikely" as if the word alone preempted the possibility of wrongdoing is reminiscent of Ashcroft's "I don't think the president is going to abuse these powers" in the Congressional hearings to grant Bush emergency powers. "Gosh, I just don't think there'll be a problem because everyone involved is honorable." What a load of crap: we are supposed to be a nation of laws, not of men, and we need legal guarantees and legal protections. Saying that abuses are "unlikely" because we think that the persons involved are such good chaps is not a good enough reason to dismiss legal protections.
posted by George_Spiggott at 2:28 PM on October 1, 2002

It's that the whole idea of international criminal law is wonderful in principle, but in practice it's just another way to create a corrupt power structure that can be manipulated.

The same could be said about the whole idea of federal criminal law.
posted by rushmc at 3:28 PM on October 1, 2002

George - well OK then. I find myself violently agreeing with you, and don't feel like acting as their apologist.
posted by RichLyon at 3:41 PM on October 1, 2002

Thirteen: The court has no legal hold over Americans, if you are concerned about American war crimes, do not invite Americans to your wars/pseudo wars. My emphasis.

Well, maybe we [I think you mean us soft, decadent Euro's - you don't make that clear] 'invited', as you put it, your troops to Bosnia & Kosovo (tho' I'd say the inhabitants of those countries would be better placed to say that), but we didnt invite you to Iraq, Vietnam, Grenada, Cambodia, etc. You do a good job of that yourself. Why should your troops not be under scrutiny: if we have a right to try generals, politicians & camp guards after a war [trying not to invoke G*dwin] in Europe - say, Yugoslavia - why not in Iraq? Or The Phillipines? Or wherever next ?
posted by dash_slot- at 7:41 PM on October 1, 2002

Probably not a bad idea.

Sarcasm's so lost on you, thirteen. And yet you're involuntarily hilarious. Strange, that.
posted by riviera at 8:05 PM on October 1, 2002

if we have a right to try generals, politicians & camp guards after a war [trying not to invoke G*dwin] in Europe - say, Yugoslavia - why not in Iraq? Or The Phillipines? Or wherever next ?

I am not saying you do not have that right already. I am saying that my government cannot give your court any legal jurisdiction over American citizens, and that I am glad of that. I am not sure what would happen if a European court decided to grab some American politician, but I doubt it would be good. It is one of those things, and it comes down to how bad you want it.

I do not support any of the military interventions in any of the countries you mentioned, and I do feel bad that I cannot stop my government. There is absolutely no American war I feel was justified, (Not even the Revolution, tho I feel that was better than any of the others) so I am not against you on that. I would include the world wars in the ones Europe egged on too, and consider Vietnam a french problem that the US later managed to pervert even more.

if we have a right to try generals, politicians & camp guards after a war [trying not to invoke G*dwin] in Europe - say, Yugoslavia
I consider that court to be invalid too, I just do not care. War crimes courts are for the winners, and they are of little interest.

My preference would be too live in an America that had no troops abroad, and therefore could not even possibly commit a war crime. How does that sound? It guts NATO and the UN forces, but so what.

Sarcasm's so lost on you, thirteen
Perhaps a smiley would have helped. What makes you think I did not understand your sarcasm? You are hardly subtle. Forgive my attempt to be good natured.
posted by thirteen at 4:05 PM on October 2, 2002

Forgive my attempt to be good natured.

You mean that hateful xenophobia is a synonym of 'good natured' these days? I must update my thesaurus.
posted by riviera at 5:01 PM on October 2, 2002

This decision suck, it's weird, but it's also the only fair one. American military justice will likely be more severe than that exected by the Court in question. Chill out, everyone.
posted by ParisParamus at 6:25 PM on October 2, 2002

You mean that hateful xenophobia is a synonym of 'good natured' these days? I must update my thesaurus.

You really should, especially if you are under the impression that it is hateful not to invite Americans who will end up killing your guests to a wedding. You may not be as clever as you think. Certainly, you did not think my comment through. (I could be wrong, you were refering to the Americans who bombed the Afghan wedding party were you not?)
posted by thirteen at 4:02 PM on October 3, 2002