Saturday, November 12, 2005
Barnett Wrong on International Criminal Court "Independence" from the United Nations
Note: This is part of a series of reviews for Blueprint for Action. The introduction and table of contents are also available.
"Rome Statute of the International Criminal Court," copyright United Nations, last updated 21 February 2001, http://www.un.org/law/icc/statute/romefra.htm.
"Blueprint for Action: A Future Worth Creating," by Thomas Barnett, 20 October 2005, http://www.amazon.com/exec/obidos/tg/detail/-/0399153128/102-4292267-8637755?v=glance [author blog]
The International Criminal Court, an intergovernmental organization that has refused to promise not to prosecute Americans, is an important part of Dr. Barnett's "Blueprint for Action"
It features in his sixth stage of "successfully processing politically bankrupt states"
6. The final step in the process would involve the criminal prosecution of the indicted / apprehended parties in the International Criminal Court (ICC) located in The Hague, Netherlands (52)
And while Barnett argues for American, and International Peacekeeper, immunity from ICC prosecution
My prediction is this: While the U.S. Leviathan [blitzkrieg] force will never come under the purview of the ICC -- because it will remain deeply embedded in military law -- the far more internationalized SysAdmin [peacekeeper] force, including U.S. components, must reach some blanket-clause protection regarding its activities in the Gap. The reality is that the ICC was not set up to prosecute the "crimes" of peacekeepers and Core military personnel intervening inside the Gap, but rather to extend the Core's principles of war crimes into the Gap and, in this way, provide some sense of international consequence for what in these chronic civil wars, long-running terrorist campaigns, and brutal dictatorships. (68)
He assures us the ICC won't be complicated by entanglements with the United Nations:
Moving on to the last of the six pieces in this A-Z system, I personally place a strong emphasis on funneling any "suspects" we pick up in this process toward the International Criminal Court, an institution that is both free and independent of the UN system as was recently set up specifically to target individuals for prosecution of genocide, crimes against humanity, and related war crimes. (67)
To make sure his point is clear, Barnett later reiterates his suggestion
As for the trials, prisoners will need to be funneled toward the International Criminal Court, which is perfect for this sort of thing. But again, the Untied States, plus the Core group as a whole, would need to reach some direct modus vivendi with the court, and if that didn't work, the group would simply need to set up its own. But my guess is that the ICC would jump at the chance to be accredited in this additional manner, because so long as the United States considers it more of a threat to its ruling making than avenue for rule sharing with the rest of the Core, the ICC will remain vastly underutilized. And no, that wouldn't get us in bed uncomfortably with the UN, because the ICC is independent of the UN. (132)
Hmmm... regular readers of tdaxp may recall a note from International Law & Organization which seems to contradict this...
UNSC can vote to delay ICC proceedings for 1 year, renewable
So what does the Rome Statue of the International Criminal Court say about this? What does the ICC say about its relationship with the UN?
The States Parties to this Statute, ... Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole, (Preamble)
Hmmm... that's a little vague... and it does say "permanent"
The United Nations can refer cases to the International Criminal Court:
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: ... A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations (Article XIII(b)).
And, like my notes said, can delay prosecutions... indefinitely
No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions. (Article XVI)
The treaty also mentions special roles for the Secretary-General, the General Assembly, and other UN organs, but the Security Council's power to start and stop prosecution hardly makes the ICC "free and independent of the UN system" or even just "independent of the UN."
Except maybe in UN speech.
I am disappointed in Barnett's misleading statements. Perhaps he did not read the ICC treaty and has not read any good summaries of it. Or he very selectively used one word in the (non-binding) Preamble, "independent," while ignoring the substantial dependency of the ICC outlined in the treaty itself.
Yeah this is a bit disturbing. I'm reading PNM now and I'm finding a lot that I agre with. But the ICC is something that really rubs me the wrong way. First of all the Constitution very clearly says that the judicial power is constituted in one Supreme Court, so the US gov't has no power to subordinate the American people to a court that is superior to and independent of the Supreme Court.
I agree with Barnett that we need to work towards establishing a global rule set to bring the Gap towards the Core. But the ICC is a free-floating governmental entity that is not accountable to any people. And any such institution needs to be created with the expectation that someone, sometime will abuse this power and so that power must be severely constrained. We need to recognize that there is a war of ideas going on within the West between the socialist worldview and the classical liberal worldview. The ICC, Kyoto, and the recent attempt to steal control of the internet for the UN is part of the transnational socialist agenda. We need to devise a classical liberal agenda that can compete and offer a realistic alternative. Does Barnett acknowledge that there is such an internal conflict within the West?
Posted by: phil | Saturday, November 12, 2005
That is a good point that the Supreme Court is the chief judicial power. Congress does have power to create and regulate inferior courts, though, so a "constitutional" ICC would be overturnabel (at least as far as US law is concerned) by the Supreme Court.
Big Cheese, my international law professor, would say that because the Constitution, laws, and treaties are the "Supreme Law of the Land" every treaty the US enters into has the same power as the original Articles and the Amendments -- in other words, the Constitution is merely a unilateral treaty.
I agree with Chief Justice Roberts that this view is "inappropriate."
There's been a lot of good discussion on the French riots. See especially http://dawnsearlylight.blogs.com/del/2005/11/the_french_riot_2.html, http://www.cominganarchy.com/archives/2005/11/09/black-night-part-deux/, and http://globalguerrillas.typepad.com/globalguerrillas/2005/11/journal_open_so.html.
Additionally, while Barnett is no Communist, he is much more Marxist than I had originally thought (http://tdaxp.blogspirit.com/archive/2005/10/22/marxism-barnettism-tpbm-s-marxist-roots.html).
I agree that his statements on the ICC, when compared to the Statute that set up the court, are disturbing.
Posted by: Dan tdaxp | Sunday, November 13, 2005
I am glad to see Dr. Barnett in PNM (I haven't read the new one yet) trying to find a positive liberal approach to the world. I disagree with him in certain aspects (his excessive optimism regarding China, and failure to see evidence that weighs against his brilliant insight of drawing a circle around the places where the US has intervened and looking for commonalities between the included and excluded parts, and so forth), but I am glad to see the attempt being made. If a muscular Left is to return in the US, this kind of effort is vital.
Possibly doomed to ignominious failure, since he is too internationalist for the Right and too nationalist for the Left, but vital to be attempted nonetheless.
Posted by: Jeff Medcalf | Sunday, November 13, 2005
There's definitely room for liberal hawkishness. Hopefully, works like "A Fighting Faith"  will become a pillar for a post-9/11 left-of-centricism.
Likewise, "Liberals Against Terrorism"  is a vital part of the debate.
Sadly, Tom Barnett's tonedeafness on domestic and global strategy can be counter-productive .
The hardest part of Barnett's strategy is his materialism: both Conservatives and Liberals have idealistic beliefs (defense of democracies, presumptive pacifism) are skepticla of his right marxism . Materialism and realism are not indigenous American political beliefs, and it shows.
Posted by: Dan tdaxp | Sunday, November 13, 2005