The US signature was shaky to begin with (it was never really ratified through the proper channels) and I doubt they would've kept their signatures with the impending invasions following 9/11.
With the so-dubbed "The Hague Invasion Act" I'd say the US has not only withdrawn its signature, it actively threatens anyone trying to hold their citizens accountable to things like war crimes. Officially, they're an observer these days, but practically, I think they're only there to see their enemies get convicted, and nothing else.
> The US signature was shaky to begin with (it was never really ratified through the proper channels) and I doubt they would've kept their signatures with the impending invasions following 9/11.
What you are saying here is a bit confused. Under US domestic law, the President has the unilateral authority to sign whatever treaties the President wishes. Ratification comes after signature, the US never ratified the Statute. So there was nothing actually "shaky" about the signature.
This is a topic which confuses a lot of people. Agreeing treaties under international law is a two-stage process – the first stage, "signature" is in-principle agreement but isn't actually legally binding (except for a limited obligation "not to defeat the object and purpose of the treaty", and it isn't very clear what that even means); "ratification" (sometimes also called "acceptance" or "approval") is fully binding agreement. For less important treaties, the two stages are sometimes collapsed into one ("signature without reservation as to ratification"), but for major treaties the distinction is generally preserved. Also, joining a multilateral treaty subsequent to its entry into force is often a single stage process ("accession"). However, the average person doesn't understand this two-stage process, and is used to everyday contexts where signing a contract is sufficient to make it legally binding.
There are some particular reasons why Americans find this even more confusing than people of most countries do. Many Americans have the idea that the US Constitution requires treaties to be ratified by a two-thirds majority of the US Senate. However, strictly speaking, the President ratifies treaties, not the Senate; the Senate just gives the President permission to do so. Furthermore, US law distinguishes between "treaties" (whose ratification requires two-thirds Senate consent) and "international agreements" (whose ratification doesn't) – but as far as international law is concerned, both are treaties – whether some act of ratification requires consent by the US Senate is an internal American matter with which international law is largely unconcerned.
Actually, US law distinguishes three types of "international agreements" (all of which are treaties as far as international law is concerned) – treaties (President ratifies with consent of two-thirds of Senate), congressional-executive agreements (President ratifies with consent of ordinary majority of both House and Senate), and sole executive agreements (President ratifies unilaterally). It is generally understood that "treaties" are used for foundational legal issues, military alliances, borders, human rights, etc; congressional-executive agreements are primarily used for trade; sole executive agreements are used for more minor matters of international cooperation. However, there is no precise legal rule regarding what type of agreement is to be used for which category–the Supreme Court views it as a "political question" which it expects the President and Congress to sort out between themselves, largely without its input. Under international law (Vienna Convention on the Law of Treaties article 47), if the President ratifies something, that ratification is still binding under international law on the US, even if US Congress (or even the Supreme Court!) decides the ratification to be illegal or unconstitutional – unless its illegality/unconstitutionality was "manifest" and "objectively evident" to the other states parties at the time the President made it.
Is it not a three-stage process? I found that treaties seem to be unenforceable unless there is a legally mandatory statutory implementation of them, regardless of whether they are ratified.
For instance, in Illinois there was until recently no punishment for a violation of the Vienna Convention by law enforcement, therefore the Convention was essentially worthless. (Illinois state law generally requires a punishment to be attached to make a law mandatory, otherwise the reading of "shall" is directory)
> Is it not a three-stage process? I found that treaties seem to be unenforceable unless there is a legally mandatory statutory implementation of them, regardless of whether they are ratified.
As far as international law is concerned, once a treaty has been ratified and entered into force, it is binding on the ratifying state, they have an international legal obligation to obey it, and they can be subject to consequences under international law if they violate it. The nature of those consequences vary greatly depending on the details of the treaty - often treaties have dispute resolution mechanisms to be invoked if one party claims another is violating it (such as the ICJ, arbitration, WTO dispute settlement, etc). Trade treaties often permit imposition of tariffs in cases of violation. In extreme cases, violating a treaty could even result in military action (e.g. what happens if you sign a peace treaty to end a war and then decide not to comply with it?) On the other hand, many treaties are rather toothless in that they fail to provide any real consequences for violations. Still, just because there might not be any real consequence for the violation, doesn’t negate the violation’s legal existence.
Coming to your question about implementing legislation - different countries have different systems. In countries with a “monist” system, international law is considered part of domestic law, and so a treaty once ratified automatically becomes part of the law of the land. Conversely, in countries with a “dualist” system, international law and domestic law are viewed as two independent spheres, and the domestic legal system will not consider a treaty binding absent domestic implementing legislation. And “monist” and “dualist” are ideal types, and some national legal systems are actually hybrids that don’t neatly fit in either category, combining elements of both - they may be monist with respect to certain categories of treaties and dualist with respect to others. Even in a purely monist system, some treaties might be considered “non-self executing” - for example, some treaties require states to criminalise certain acts under their domestic law, but leave the detailed definition of those crimes up to each state party - even in a monist system, such a treaty will likely be viewed as domestically ineffective absent domestic implementing legislation, since the crimes it seeks to create are too vaguely defined to actually be prosecuted. Also, in some countries with a federal system, e.g. the US, implementing legislation may be required at both the federal and state levels; in others, the federal level has the power to impose treaties on the states, even in areas where it would not normally have legislative competence (e.g. the external affairs power under the Australian constitution)
However, from an international law perspective, the question of whether domestic implementing legislation exists is irrelevant. If a state ratifies a treaty and it enters into force, they have an international legal obligation to obey it - and if they fail to do so because they haven’t enacted the necessary domestic legislation, international law does not consider that a valid excuse-they are guilty of violating it, and have to face the consequences of that violation, whatever those may be.
You are talking about the Vienna Convention on Consular Relations. There was a 2001 ICJ case on that, the LaGrand case (Germany vs United States). The LaGrand brothers were born in Germany, moved to the United States, never became US citizens, stabbed a man to death in 1982 in Arizona in the course of a bungled bank robbery. Under the Convention, they had the right to German consular assistance, and US authorities had the duty to inform them of that right, but failed to do so. They were sentenced to death, and the state of Arizona executed them in 1999. Germany got an order from the ICJ that the execution not go ahead, but the US chose to defy the ICJ order and execute them anyway. In 2001, the ICJ found that the US had violated Germany’s rights under the Convention by so doing. However, given Germany did not make any request for damages, and the US decided to formally apologise to Germany, the ICJ did not impose any penalties on the US for the violation.
The US argued that under the US constitution the federal government was powerless to compel the state of Arizona to comply with the Convention or the ICJ’s order. Germany even filed a case with the US Supreme Court seeking it to compel Arizona to comply, but it ruled that under the US constitution Arizona didn’t have to. However, international law doesn’t care about the US constitution. If the US constitution prevents the US from obeying international law, that’s an internal US problem of zero relevance to other countries or to international institutions such as the ICJ. Given there are over 190 sovereign states in the world, if national constitutions were an excuse for disobeying international law, international law would quickly turn into a dead letter. Also, while US law considers the federal government and state governments to be “separate sovereigns”, as far as international law is concerned, it is all one country, and the US (represented by the President and State Department) is internationally responsible for the acts of all its subdivisions, and if the federal government lacks the constitutional authority to make states obey international law, that’s its internal problem, with which other countries ought not need to be concerned
This has to be the most comprehensive and informative reply to any question I've posed on the Internet in the last 30 years of being online. Thank you!
I'd not heard about the Arizona case; it actually tracks almost identically an Illinois case, People v. Madej, with a Polish citizen under the same circumstances (although zero information online outside of the court filings).
What powers would the ICJ have to punish individual actors at fault in a situation like this? Or to force an injunction? (outside of monetary damages which does you no good if you're dead)
> This has to be the most comprehensive and informative reply to any question I've posed on the Internet in the last 30 years of being online. Thank you!
Law has always been a passion of mine, and international law in particular. I even applied for law school once but wasn’t accepted. If I tried again, applied to more schools, I probably would have been accepted by one of them eventually, but I took it as a message from the great beyond that it wasn’t meant to be. Still, if one believes in parallel universes, I reckon there must be one out there in which right now I’m a lawyer instead of a software engineer
> What powers would the ICJ have to punish individual actors at fault in a situation like this? Or to force an injunction? (outside of monetary damages which does you no good if you're dead)
The ICJ has very broad powers to order states to do things. The only real limit is its own judgement about what is legal and what is prudent-if it starts ordering things which the international community views as unreasonable, it could greatly harm its own reputation, and I think its judges are aware of that risk and keep it in mind when making decisions.
However, while the ICJ can order states to do things, it has no actual power to compel them to obey its orders. Under the UN Charter, that’s the job of the Security Council. In theory, if a state violates an ICJ order, the Security Council can order military action to enforce it. In practice, that obviously doesn’t work when one of the P5 is the respondent, since they aren’t going to vote for military action against themselves. And even if the respondent is some friendless pariah country, other states might not view enforcing an ICJ order as worth going to war over.
An unenforceable order isn’t entirely worthless though. Obviously it can have negative diplomatic and political consequences for the state concerned, it can harm their reputation in the court of international public opinion. And a case can be valuable for establishing legal precedent. The LaGrand case actually was important in that the ICJ for the first time ruled that its provisional measures (basically a preliminary injunction) were legally binding. This was unclear because the wording of the English text of the Statute of the ICJ suggests they are not but the French text suggests they are, and both the English and French are equally authoritative. Faced with that contradiction, the ICJ decided in this case to follow the French over the English.
Whereas Palestine's signature is fake. I don't know how else to call it. I mean are we now to believe the "state of Palestine" is going to arrest and deliver Sinwar, Deif AND deliver the hostages to Israel just because this guy asks?
And they didn't waste any time in stating they would never actually execute the signed treaty. At least we already know that:
(Yes, I know what the BBC title says, Hamas statement that they won't follow the treaties they agreed to uphold is there, for their own people. In THE SAME STATEMENT they complain that it isn't applied faster to their opponents)
(Also: obvious conclusion, if Hamas has no intention of holding up treaties they signed, then that makes any peace with them worthless, even if it's a signed treaty. Without a trusted counterparty there is no choice)
I think you need to make a distinction here between the Palestinian Authority (which signed it) and Hamas (that supplanted it through violent uprising). The PA still exists and would happily comply, they just don’t have a presence in Gaza.
Absolutely true; Gaza’s system of government has collapsed since long ago, and the “democratic” election, that many people use to justify the equivocation of the Gaza population and Hamas, involved less than half the population of the enclave and had numerous other issues that make the Hamas rule a farce.
That being said, even those that didn’t vote for Hamas would probably not have elected the PA, as public trust of Palestinians in the PA has eroded due to Mahmoud Abbas’s unwillingness to step down and the perception that the PA is a puppet government.
All this to say that Palestinians lack a trustworthy government, much less a government that could be responsible for turning in the Hamas members the ICC wants to arrest.
If you think like this, then "warcrimes" are bullshit. The whole point of the UN, the Geneva convention, warcrimes legislation, ... is that it would apply 100% in situations where government collapses, in situations where there is nothing but violence, in civil wars (arguably worse than the current situation). That genocide is forbidden AND punished even in the total absense of public trust, in the absense of government, in war, ...
So that's the problem I have with the statement: it's true, absolutely, but if we think like this then human rights aren't human rights, but merely subject to governance. Your statement is true, but is a denial of international law. If your statement is true, you may as well abolish the international criminal court. After all, if a government exists, there's no need for them and if a government doesn't exist (or doesn't apply) then, as you say, the rules don't apply. So what's the point?
Your statement is true, but the world would be a much better place if your statement was false, and therefore we'll at least pretend it is false.
(and, of course, if you think like this, then absolutely anything goes in war)
In fairness, Israel did have a point that the original judge selection process was unfair to them. Realistically though that is probably not the main reason they didn't sign it and that issue has since been rectified.
It's not about being held accountable at all - it's about who is holding them accountable.
The belief is that as sovereign nations, they can hold their own people accountable, and no one else should have the right to hold them accountable instead.
Is not one of the principles of the ICJ that if a nation process their own war criminal citizen, the ICJ has no jurisdiction. But if they do not properly, the ICJ does.
You are confusing ICJ & ICC. But yes, that is one of the principles of the ICC.
(ICJ = a court for countries to go to when they disagree on how to interpret a treaty. ICC = throw individual people in jail who commit war crimes, crimes against humanity or genocide)
Only if the country brings good faith cases themselves against the individuals involved in the war crimes. And it only gives them cover for the crimes they are tried for.
> Except when they can't, as in the case of senior government figures.
It is a principle of democracy that senior government figures can be held accountable.
E.g. in the US, Trump, a former president and a potential future president, is currently in several trials.
E.g. in Israel, where Netanyahu is under trial in several cases (unrelated to the ICJ) and where e.g. a former PM was convicted of several charges and served time in prison.
I could be missing something but I don’t think any of those three have ever been convicted by the ICC.
The examples are domestic crimes because the argument is that the US doesn’t need to be party to the Rome Statute because it would enforce similar penalties on servicemen and leaders using domestic jurisdiction. Others countered that the US somehow can’t do that despite the former president literally being on trial as we speak and the above commenter provided examples to the contrary.
I must be mis-remembering some Facebook memes based on the 2012 conviction in absentia by a Malaysian tribunal. Seems like the ICC never took it up; although they almost certainly should have. US sanctions and pressure on the ICC not to seems to be working.
> The belief is that as sovereign nations, they can hold their own people accountable, and no one else should have the right to hold them accountable instead.
There is no such thing as a sovereign nation in the modern age.
Even if you ignore the dependence on international trade (i.e. relying on other nations to trade with you), sovereignty requires the military ability to defend yourself against any adversary trying to impose their will on you. In the nuclear age we've effectively abolished this concept thanks to Mutually Assured Destruction. If China wants the US gone, either China "wins" (i.e. the US surrenders or offers a compromise) or the world ends (i.e. the outcome of global thermonuclear war makes "US" and "China" meaningless concepts).
So if "as sovereign nations" is no more than a meaningful flourish, the belief becomes simply this:
> they can hold their own people accountable, and no on else should have the right to hold them accountable instead
We can break this down again:
> they can hold their own people accountable
It's interesting that you say "can", which already admits that there is a difference between the ability and willingness to do so. But even if we ignore this, the important consideration here is that there can be a mismatch between what "they" think "holding their own people accountable" means and what others think.
By "they" you reference the US and Israel but legal entities don't do anything, people do things. Granted, those people exist within social systems of power but at the end of the day people within those states will be the ones holding people accountable or not. If you think of this in terms of people, a potential conflict of interest becomes apparent: the people being held accountable are the military and political leadership and legislators, the people holding them accountable are military and political investigators and courts. The victims of the alleged crimes are not represented by either of these groups as Gazans are generally not fully Israeli citizens.
This isn't to say that Israel's legal system might be unfairly biased against Gazans or that it might err on the side of ignoring crimes against them or that this might be a systemic problem. My point is merely that there's a credible reason to believe that an investigation by Israel into alleged actions by its government against Gazans might be biased simply based on an in-group/out-group distinction between the involved groups.
> no one else should have the right to hold them accountable
This is begging the question of "accountable for what". You can only hold someone accountable if there's some bar they're supposed to meet. Israel was a signatory to the Rome Statute (although it walked back from it in 2002 along with the US) and we're talking about the ICC so the bar seems to be "upholding human rights and abstaining from human rights abuses and war crimes".
You might argue that no outside state should be allowed to intervene in another state's human rights abuses as long as they are contained to that state's territory or only people who are subjects of that state. But clearly Israel doesn't believe this or otherwise the Mossad wouldn't have a history of abductions and assassinations. And it's a good thing too because otherwise we wouldn't look at events like the Rwandan genocide as a horrific failure of the international community and instead just consider it business as usual.
Legally speaking, the ICC clearly has the "right to" do what it is doing. But if you mean morally, again I don't think you believe this unless you believe interventionism is never justified. In other words that would mean you want to go back to the Peace of Westphalia and abolish the notion of universal human rights entirely and allow states to commit genocides, engage in chattel slavery or do all kinds of unspeakable horrors as long as they do so within the confines of their own territory.
I don't think you're saying any of that. I think what you're instead arguing for is nothing more than special pleading: it's different when {the US, Israel} does it.
I don't think the US govt gives a hoot for the common soldier except where their warrant would provide precedence for a senator or president to also be arrested.
It's politically embarrassing as attempted prosecutions of soldiers in Northern Ireland have shown. It all gets swept under the carpet, on a pretence it's not good for national security. If you prosecute successfully an individual there is a reasonable chance all military personnel involved could be successfully prosecuted is perhaps another reason it won't happen.
Using the military to prosecute aggressive military operations in an area the clear majority are unarmed, unprotected civilians again shows there is virtually no chance of prosecutions being taken.
Add to that the severe limits added to press freedom, to the point it's obvious the plan is there is no independent reporting, the repeated and systematic targeting of hospitals, ambulances, medical and aid workers, treatment of people detained, never mind densely packed civilian areas which in similar ongoing conflicts (Ukraine/Russia) would be directly called out as war crimes without equivocation, but are ignored, then is there even any point attempting to prosecute individual soldiers?
Seeking arrest warrants for those with most direct decision making powers is far more legitimate, necessary even. Demands for limitless, in all senses, military operations help no one longer term.
https://en.wikipedia.org/wiki/International_Criminal_Court#/...