1 Boring Old Man

While the British and the Bush Administration approached the question of the legality of the Iraq War in very different ways, in the end, both had flawed processes. I would call the our way psychopathic, and the British way a rationalization [making the irrational out to be rational]. Actually, it was all for show. There’s no court of review, no oversight, for this part of international law. One might as well say that the only arbiter of international law about war in the UN Security Council, but even that’s a reach as this case shows. The Security Council didn’t act, the war has raged for over six years, and where’s the international law in the process. Most of us would say it is "lawless." Why is there no "court?"

^{The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands. Its main functions are to settle legal disputes submitted to it by states and to give advisory opinions on legal questions submitted to it by duly authorized international organs, agencies, and the UN General Assembly.}

^{The Peace Palace: the Hague}

^{Generally, the Court has been most successful resolving border delineation and the use of oceans and waterways. While the Court has, in some instances, resolved claims by one State espoused on behalf of its nationals, the Court has generally refrained from hearing contentious cases that are political in nature, due in part to its lack of enforcement mechanism and its lack of compulsory jurisdiction. The Court has generally found it did not have jurisdiction to hear cases involving the use of force.}

^{The International Criminal Court [commonly referred to as the ICC or ICCt] is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression [although it cannot currently exercise jurisdiction over the crime of aggression]…}

^{ICC: The Hague}

^{The establishment of an international tribunal to judge political leaders accused of war crimes was first made during the Paris Peace Conference in 1919 by the Commission of Responsibilities. The issue was addressed again at conference held in Geneva under the auspices of the League of Nations on November 1-16, 1937, but no practical results followed. In 1948, following the Nuremberg and Tokyo Tribunals, the United Nations General Assembly recognized the need for a permanent international court to deal with atrocities of the kind committed during World War II. At the request of the General Assembly, the International Law Commission drafted two statutes by the early 1950s but these were shelved as the Cold War made the establishment of an international criminal court politically unrealistic.}

^{Benjamin B. Ferencz, an investigator of Nazi war crimes after World War II and the Chief Prosecutor for the United States Army at the Einsatzgruppen Trial, one of the twelve military trials held by the U.S. authorities at Nuremberg, later became a vocal advocate of the establishment of an international rule of law and of an International Criminal Court. In his first book published in 1975, entitled Defining International Aggression-The Search for World Peace, he argued for the establishment of such an international court.}

^{The idea was revived in 1989 when A. N. R. Robinson, then Prime Minister of Trinidad and Tobago, proposed the creation of a permanent international court to deal with the illegal drug trade. While work began on a draft statute, the international community established ad hoc tribunals to try war crimes in the former Yugoslavia and Rwanda, further highlighting the need for a permanent international criminal court.}

^{Following years of negotiations, the General Assembly convened a conference in Rome in June 1998, with the aim of finalising a treaty. On 17 July 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the United States, and Yemen.}

^{The Rome Statute became a binding treaty on 11 April 2002, when the number of countries that had ratified it reached 60. The Statute legally came into force on 1 July 2002, and the ICC can only prosecute crimes committed after that date. The first bench of 18 judges was elected by an Assembly of States Parties in February 2003. They were sworn in at the inaugural session of the court on 1 March 2003. The court issued its first arrest warrants on 8 July 2005, and the first pre-trial hearings were held in 2006.}

Ratified, Signed but not Ratified, Not signed

^{Although the then U.S. President, Bill Clinton, signed the Rome Statute of the International Criminal Court in 2000, he stated that although he would not submit it to the Senate for advice and consent for ratification until the U.S. government had a chance to assess the functioning of the court, he nonetheless supported the proposed role of the ICC and its aims:}

^{The United States should have the chance to observe and assess the functioning of the court, over time, before choosing to become subject to its jurisdiction. Given these concerns, I will not, and do not recommend that my successor, submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied.}
^{Nonetheless, signature is the right action to take at this point. I believe that a properly constituted and structured International Criminal Court would make a profound contribution in deterring egregious human rights abuses worldwide, and that signature increases the chances for productive discussions with other governments to advance these goals in the months and years ahead.}

^{After the Rome Statute reached the requisite 60 ratifications in 2002, President George W. Bush’s Administration sent a note to the UN Secretary General on May 6, 2002. The note suspended the signature of the US and informed the Secretary General that the US recognized no obligation toward the Rome Statute. In addition, the US stated that its intention not to be become a member state be reflected in the UN depositry’s list. This is because signatories have an obligation not to undermine the object and purpose of a treaty. The US could engage with the Court by reactivating its signature to the Rome Statute by a letter to the UN Secretary General. A treaty that is not ratified is not legally binding.}

I feel kind of ashamed that I didn’t know much about the ICC. It’s a big deal. While we do have some legitimate reasons to be wary – issues of sovereignty and such – the opposition of the Bush Administration was just plain crazy [spearheaded by John Bolton]. Time to do some homework:

Obama Administration’s approach to the ICC: Most recently, the Obama Administration has stated its intent to cooperate with the International Criminal Court. On November 16th, Ambassador-at-large for war crimes issues Stephen Rapp announced that he would lead the U.S. delegation to the ICC’s annual meeting of the Assembly of States Parties in The Hague. He told journalists "Our government has now made the decision that Americans will return to engagement at the ICC." The U.S. will participate as an observer. In response to a question from the Senate Foreign Relations Committee, Secretary of State Hillary Rodham Clinton remarked that the US will end its “hostility” towards the Court. In addition, Susan Rice, US Ambassador to the United Nations, in her first address to the Security Council, expressed US support for the Court’s investigation in Sudan. These statements coupled with the removal of sanctions to the Bilateral Immunity agreements (BIAs) signals a positive shift in the US cooperation with the Court and may lead to greater participation with it…

International Criminal Court proposes powers to try politicians who wage ‘illegal wars’
^{The International Criminal Court (ICC) in the Hague is proposing to take new powers to put politicians who launch "illegal wars" on trial}
telegraph.co.uk
By Andrew Gilligan
30 Jan 2010

At a special "review conference" in Kampala, Uganda, the nations which have signed up to the court, including Britain, will consider a proposal to let the court try the "crime of aggression" – the offence allegedly committed by Tony Blair. If the proposal, backed by more than 70 countries, passes, national leaders alleged to have launched "illegal" wars could be seized, transported to the Hague, tried and imprisoned.

UK law requires British police to enforce indictments and arrest warrants issued by the court. Britain, a member of the court, is not against the plan in principle but is fighting furiously for safeguards that would protect Mr Blair and future British prime ministers from arrest…