International Law
Andy McCarthy writes:
The International Criminal Court Claims Jurisdiction Over the United States… at least for our “torture” and other “war crimes” in Afghanistan. That we have never ratified the Rome Treaty or agreed to submit to the ICC’s authority is irrelevant, according to the chief prosecutor.
Though I can understand why that abrogation of sovereignty would trouble Mr. McCarthy, who presumably wants powerful international actors to be legitimate and accountable to the populations subject to its coercive power, it is difficult to square with his simultaneous belief that the United States has “jurisdiction” to snatch up anyone in any country on earth, fly them to Gitmo, present no evidence that they are guilty of anything, and hold them until the threat of international terrorism is gone, which is to say, forever.
It will likely be a long time before we can extricate ourselves from this war on terror. We still can’t fully identify the enemy. Eight years is long enough for us to find a way out and use what we do know to build the best defense possible, then establish a non-intervention doctrine. We’ve undoubtedly done a lot right in response, but also a lot wrong — now is time for re-assessment and development of a new plan.
— mike farmer · Nov 29, 01:49 AM · #
“it is difficult to square with his simultaneous belief that the United States has “jurisdiction” to snatch up anyone in any country on earth…”
First of all, at the end of the day, I really couldn’t care less about squaring any “consistency” with “international” “law” — a term whose death will be a happy day.
But to the extent that any of this matters … we claim the right to do seize terrorists, i.e., persons who are acting outside the color of any nation’s law, which is merely a logical extension of longstanding international custom re pirates and other outlaws. These over-reaching “justices” are claiming the right to arrest uniformed American soldiers and/or civilians acting under the color of law, contrary to a sovereign will, which is a completely different circumstance. As such, their seizure would be an act of war against the US under every international convention.
— Victor Morton · Nov 29, 01:57 AM · #
Let me see if I can keep this straight, Victor – you’re saying that it’s our obligation to violate international law to arrest people who are violating international law, because the difference is that we have a nation to tell us to act lawlessly, while they’re just doing so on their own. Whew!
— Chet · Nov 29, 03:13 AM · #
Chet, there is no such thing as a uniform, agreed upon international law. I answer to the laws of the United States and the laws of the state in which I reside. Period.
— Lasorda · Nov 29, 04:01 AM · #
Period? Not your municipal laws? Not the laws of nature? And what should happen when you leave the United States, but do not enter any other nation? Should you be subject to no law whatsoever? Surely you people can’t be serious. And let’s not forget – the terrorists and pirates you want to lawlessly pursue are themselves citizens of various nations, and therefore subject “only, period” to the laws of their nations – not ours.
I’m still not seeing from what basis you expect to go after citizens of other nations for violating our laws, and then not expect Americans to be gone after for violating the laws of others.
— Chet · Nov 29, 04:26 AM · #
Lasorda,
Chet is an imbalanced echobot truther who doesn’t recognize differences in phrases like “subject to” and “answer to” but he’s right:
There is no way we can ever lay hands on foreigners and hold them against their will unless we are acting on the basis of legitimate law grounded on the precepts of imperial Western rationalism (except the Laws of God that Bush follows – somehow that’s different).
It is always illegal simply to assert your power as if you are an uncontested sovereign without going through the proper channels and paying off the right people. (Interesting historical fact: this legitimate legal authority used to be called “divine right” but has today become less dependent on arbitrary facts like actual exercised governance and power, and more a product of the enlightened European mind at the right hand of Reason).
Countries are not “powers” but jurisdictions of international law that the ICC tolerates unless someone it hears about gets out of line. Sort of like the mafia, but with less reach or awareness.
What other basis could there be for going after anyone?
No country ever acts like its laws are absolute and universal and worth enforcing with the full weight of the government, limited by nothing but its own abilities, intelligence, needs, and interests – not without the ICC’s approval. That would simply be barbaric and unthinkable.
It would be like imposing our court system and Western jurisprudence on those “criminals” who allegedly killed Americans for the sake of causes and laws that transcend your recently scribbled constitution and “rights” that only extend to your own borders – because they are not real Laws, but (technically) just parochial customs.
Only hubris would presume someone who harms Americans should be arrested and tried like some common American citizen sharing all our freedoms, luxuries, beliefs, and benefits, as if we civilized Americans are capable of giving such a person a fair trial without fixing the outcome.
You seem to want to protect your citizens and go after those of other countries at the same time. Uh, double standard alert. That is so outrageously hypocritical (and wrong). If we can’t recite some (European) Law, then there is just no basis to go after anyone. That’s just the way of the orderly harmonious world we live in – there are laws of physics and laws of justice, and we have no choice but to follow them, or else. All law is very powerful, and if you like your laws, you’d better respect every law equally, or you will be inconsistent and criminal and the law in the sky (of Europe) will get you.
Which is why I am sure the ICC will act with swiftness and courage in enforcing their words. They are very consistent and serious, and go after atrocity (unless it is merely aggression) wherever it shows up. I am sure they would not assert their authority without being able and ready to use it, much more so than a mere “country” acting out of its own “interests,” or out of the sanctity and supremacy of its “laws.”
And Conor is of course quite right to point out the hypocrisy of McCarthy who seems to think a country harming outsiders for the sake of its random clique has more of a right than a body of objective experts who have no bias or cause except their very clear and consistent principles of justice.
Sounds like McCarthy is a little too biased in favor of one country in particular to see how inconsistent he is on this matter (score one for the cosmopolitans!).
— Sircaste Philoppe Fiat · Nov 29, 07:41 AM · #
Just to clarify – I’m not, nor have ever been, a “truther.” (I don’t know what an “echobot” is supposed to be, though I don’t make any claim that my viewpoint is particularly unique or nonobvious.)
— Chet · Nov 29, 01:12 PM · #
Then it is ok if other countries send their secret police to grab people they think are terrorists off of our soil? Sovereignty should mean something.
Steve
— steve · Nov 29, 03:36 PM · #
Yes Steve, it’s “ok,” if they can do it (without getting caught by the ever vigilant police force of the supremely sovereign ICC), and it benefits them more than it harms them.
Sovereignty is not an inalienable, hallowed limit on all human action and endeavor – it only means something when it can be enforced, even on your own sacred soil.
— Putin · Nov 29, 06:41 PM · #
“Let me see if I can keep this straight”
You can’t.
“you’re saying that it’s our obligation to violate international law”
Bzzzzzt … not what I said
“to arrest people who are violating international law,”
Bzzzzzt … not what I said
Your reading accuracy is as good as your argument parsing that caused me to dismiss you on principle last time.
http://theamericanscene.com/2009/07/28/the-role-of-the-beat-cop
— Victor Morton · Nov 29, 08:20 PM · #
Victor – if you could have supplied an interpretation of your remarks that showed that mine was improper, you would have. Thus it’s proper to conclude that I was on the mark, and that you’re trying to furiously backpedal from the absurd contradiction you painted yourself into. Simply denying the most obvious unpacking of your argument isn’t going to cut it.
I’m perfectly happy to reply to your remarks with absolutely no comment from you, incidentally. You may wish to wonder if completely ceding the conversation to me is in the best interests of your argument.
— Chet · Nov 29, 10:25 PM · #
“if you could have supplied an interpretation of your remarks that showed that mine was improper, you would have.”
I don’t have to. You ascribed to me statements I did not make and do not believe. I point that out. Period. End of Story. Finis.
“You may wish to wonder if completely ceding the conversation to me is in the best interests of your argument.”
Nobody whose opinion I gave a crap about would be convinced by anything you say.
— Victor Morton · Nov 29, 10:34 PM · #
I’ve ascribed to you nothing more than what you’ve actually said. You can hardly complain about pirates and terrorists operating outside of the laws of any nation and then affirm the United States’ right to apprehend those persons by means that violate the laws of this and other nations, as well as international law. Of course, that’s exactly what you did, because you’re a reflexive, unthinking right-wing authoritarian. Whatever the US does is right, whatever our enemies do is wrong – even if those are the exact same thing.
Yet you keep replying. Honestly, the “I’m gonna take my ball and go home!” shtick loses something the third or fourth time the threat is made.
— Chet · Nov 29, 10:59 PM · #
“I’ve ascribed to you nothing more than what you’ve actually said.”
This is real simple.
“you’re saying that it’s our obligation to violate international law”
Please quote my exact words to that effect.
“to arrest people who are violating international law,”
Please quote my exact words to that effect.
You have no ability to read people who disagree with you.
— Victor Morton · Nov 29, 11:16 PM · #
Easily:
Violating international law to seize those who are violating international law. That’s the principle you’re defending. In other words – it’s wrong when they do it, it’s ok when we do it to get them. When you put it as plainly as that, of course it sounds incredibly stupid; thus your immediate and furious backpedal.
— Chet · Nov 29, 11:23 PM · #
Those who can read you will realize immediately that I quite explicitly say (the whole “i.e.” clause) that unilaterally seizing pirates and terrorists is NOT a violation of international law.
This is what I mean when I call Chet an illiterate.
— Victor Morton · Nov 29, 11:48 PM · #
Victor, here’s the conduct you rose up to defend:
Surely you couldn’t be so dense as to believe that such conduct doesn’t violate international law? Articles of the Geneva Conventions and the like? If, indeed, such conduct doesn’t violate international law, why is the ICC prepared to detain and try Americans who committed and ordered these acts?
We can indeed read, Victor; most pertinently we can read the thread in which you chose to participate. However, that you’re under the impression that we’re just talking about arresting pirates for piracy makes us wonder about your literacy.
— Chet · Nov 30, 12:05 AM · #
Victor,
You were warned. Truthers cannot help but falsely attribute statements and actions to others in order to keep their minds “open” to the possibility that the world is a simplistic world that only they are complex enough to understand. There is no reason for them to think because they know that others’ complete evil/idiocy fully justifies, nay demands, their arrogant ass-toolery.
It is a waste of time to engage.
— Chet is a Truther · Nov 30, 05:15 AM · #
“Surely you couldn’t be so dense as to believe that such conduct doesn’t violate international law? Articles of the Geneva Conventions and the like?”
Well, the simple answer is no, it doesn’t violate the Geneva Conventions. Have you actually read those things?
Hot tip: None of the Prisoner of War protections apply to illegal combatants, including terrorists and pirates. Also, the Fourth Convention, which treats non-combatants, explicitly makes the exception that spies and insurgents are not covered by the convention (Article 5). The U.S. would have been equally within international law to simply shoot all captured terrorists and insurgents.
The question of whether it would have been right for us to do so, or whether it is right for us to do what we have done and are now doing, is entirely separate from the question of whether it is legal under international law.
— Ethan C. · Nov 30, 08:47 AM · #
The post deserves this thread, I suppose.
Conor, a wise man knows something about everything and everything about something. The latter can take a lifetime, but, with the internet, it’s now possible to fake the former.
So at least fake it, eh? Learn international law before commenting on another’s inconsistency. Set aside intuitions of dissonance and do some damn work. You might be right that McCarthy’s position is inconsistent, but I bet dollars to donuts you can’t explain why.
Of course, this time you are wrong. It is not difficult to square McCarthy’s various positions on international law. You just have to adopt a few axioms arguendo and proceed in good faith.
Now, I’ve read enough McCarthy to know that he, like you, starts with intuitions and then glues them together with argument. Most people do. But he’s also a good lawyer — despite his reactionary jingoism — which means he is by definition skilled at finding sufficient reasons for his positions. And since international law is in his wheelhouse — and not in yours — you should probably have thought twice (and studied!) before saying to the world that you think McCarthy’s beliefs are obviously incoherent. They are not.
— Kristoffer V. Sargent · Nov 30, 04:22 PM · #
Chet says, Victor – you’re saying that it’s our obligation to violate international law to arrest people who are violating international law
Wait a minute — you don’t believe in Santa Clause? So the reindeer drive the sleigh all by themselves? Reindeer traverse the chimney, reindeer eat the cookies?
Ha! What an idiot!
— Kristoffer V. Sargent · Nov 30, 04:30 PM · #
“you should probably have thought twice (and studied!) before saying to the world that you think McCarthy’s beliefs are obviously incoherent. They are not.”
Except the part he quoted is basically the definition of incoherent. He’s clearly arguing that the U.S. not signing the Rome Treaty or agreeing to be under the jurisdiction of the ICC is legally significant. The principle he’s obviously invoking is that since the U.S. isn’t a participant in those legal conventions, they can’t govern U.S. behavior in the world. But if that’s the case, what is the legal justification for the U.S. enforcing it’s legal conventions on others who have signed no treaty nor agreed to be subject to U.S. law?
Unless McCarthy holds that international law itself is a fiction and the world is a Hobbesian jungle where the most powerful nations do whatever they hell they want, his thinking does seem to be incoherent.
Mike
— MBunge · Nov 30, 04:44 PM · #
KVS – I LOL’d. You’re good for that, at least.
— Chet · Nov 30, 05:17 PM · #
There is no contractual prerequisite between the doer and the done-to, not even in principle. You join treaties to protect yourself. You give a promise to get a promise; you limit yourself to limit others. That’s the incentive to join. To maintain this incentive, and to avoid a free-rider problem, non-signatories must not enjoy the benefits of contracted limitations. If no contract exists, the only issue is one of power and practicality. Can I enforce my will? Can you stop me?
And that’s just one example. You could also argue universal jurisdiction over particularly odious acts (see pirating and the five theories of international jurisdiction). Hell, everyone recognizes that nations enjoy certain extra-legal, inalienable rights (e.g., self-defense) — even the UN and ICC. Like Unitary Executive Theory, one may argue an extreme version of sovereign natural rights in an international state of nature, and do so consistently, even while advocating Constitutional rights for American citizens and the rule of law here at home.
There are in fact myriad consistent explanations for McCarthy’s views. International law is a subtle field. None of which make his positions right or useful (I strongly disagree with McCarthy on a strategic level). But he’s fine from a consistency standpoint.
That’s from the perspective of the doer. From the perspective of the done-to, as is the case with the ICC, it’s very easy to pivot on contractual grounds and assert that, obligations don’t exist to outsiders unless we’ve contracted into them. So the ICC can do what it wants, and it can render judgments against Americans, but there is no obligation or moral imperative for America to abide by them. Then it becomes a matter of enforcement in a state of nature. Good bloody luck, we say, and trim our fingernails with a bowie knife.
Side Note: This is a very weak statement. Ask any mathematician what he thinks about consistency proofs. Most of them will tell you, “Not much.” But language matters, and Conor chose to make a stand on consistency. He deserves to be called out on it.
— Kristoffer V. Sargent · Nov 30, 06:06 PM · #
In other words, don’t underestimate the importance of domain specificity. It’s what allows the radical existentialist to be anti-cancer and consistent.
— Kristoffer V. Sargent · Nov 30, 06:13 PM · #
I can take every argument you just made above and apply them to ICC prosecutors looking to arrest and detain American citizens for acts in the GWoT. That’s McCarthy’s consistency problem. There’s no justification for our power to arrest and detain (Indefinitely! Without trial!) terrorists and pirates that can’t also be applied to Americans committing war crimes.
“Domain specificity” is precisely what I accused Victor of, above. He seemed to think it was a bad thing. Maybe you should take it up with him?
— Chet · Nov 30, 06:30 PM · #
Chet: “I can take every argument you just made above and apply them to ICC prosecutors looking to arrest and detain American citizens for acts in the GWoT.”
It’s enlightening to do so. I square McCarthy’s positions by saying, if no contractual obligations exist, legal justification is not necessary; in fact, talking in those terms is a distraction. The issue is instead one of practicality, that is, intent and capability in a state of nature. Without a treaty and without the power to enforce their will, the ICC prosecutors have the intent but not the capability. With Al’Qaeda, they don’t enjoy the protections of a treaty, and unlike the ICC prosecutors, we have the intent and the power to enforce our will upon them, subject only to our own internal (Constitutional) limitations.
The powerful can do X. The impotent cannot. Perfectly consistent.
— Kristoffer V. Sargent · Nov 30, 06:50 PM · #
“So the ICC can do what it wants, and it can render judgments against Americans, but there is no obligation or moral imperative for America to abide by them. Then it becomes a matter of enforcement in a state of nature. Good bloody luck, we say, and trim our fingernails with a bowie knife.”
The inconsistency, if it exists, would relate to whether McCarthy extends the above principle to the way other countries react/respond to U.S. actions in the GWoT. I’m not sure, but I suspect, that McCarthy’s reaction to other nations telling the U.S. to go ‘eff itself over such matters would involve a great deal of legal pontificating and not an unhappy acceptance that they’re entirely within their rights to do so.
Mike
— MBunge · Nov 30, 06:53 PM · #
“The powerful can do X. The impotent cannot. Perfectly consistent.”
Not under the principles of law, or at least the legal tradition that McCarthy is supposed to be a part of.
Mike
— MBunge · Nov 30, 06:54 PM · #
Mike, that’s why I brought up domain specificity. The principles of law apply within but not between societies (national and international are two distinct domains); that is, these principles apply (to update Weber) when power is monopolized by a sufficiently legitimated authority.
Between societies, however, there is no monopoly of power, and there is no sufficiently legitimated authority. In that case, we look to the principles of contract.
If you want to end indefinite detentions of foreign nationals caught in the WOT, it’s much more preferable to argue internal (Constitutional) limitations and strategic utility. International law is too fuzzy on this subject to clinch the debate; there are too many “fundamental” differences between viable theories.
— Kristoffer V. Sargent · Nov 30, 07:08 PM · #
That would indeed be inconsistent. I haven’t seen him do this, but I don’t doubt he’s capable of it (I’m not a fan).
— Kristoffer V. Sargent · Nov 30, 07:11 PM · #
It’s not that difficult to square. You may not find the distinction compelling, but the IPCC would have similar “jurisdiction” if it were a sovereign power and declared war on the United States. It would be a particularly square case if the US had committed an act of war against the IPCC first.
— J Mann · Nov 30, 07:31 PM · #
I’ll just ramble a bit more and say, in a state of nature, reputation (honor and integrity) is of primary importance. This creates a large incentive to abide by the terms of a contract.
It also creates an incentive to not promiscuously extend the benefits of a contract to third parties, unless not extending these benefits somehow implicates an issue of honor (and therefore the second part of reputation).
That is why we shouldn’t mistreat detainees and keep them indefinitely without trial. Not because we gave our word. We didn’t, not to them, not to others about them. No — we shouldn’t do it because it is a question of honor, which is a subset of reputation, which is an absolutely vital asset in a state of nature.
That’s what we should be arguing. This international law business is a sideshow.
— Kristoffer V. Sargent · Nov 30, 07:36 PM · #
One last thing (promise). Questions of reputation and national honor are not within the purview of the Supreme Court. They are inherently political, and belong exclusively to the political branches of government. I’m assuming this is obvious, but you know never.
— Kristoffer V. Sargent · Nov 30, 07:47 PM · #
KVS – why do you think the ICC lacks the capability? It’s not hard to imagine them seizing Americans on vacation in a country that is an ICC participant. Isn’t that, in fact, the exact scenario McCarthy is afraid of?
— Chet · Nov 30, 08:23 PM · #
“Between societies, however, there is no monopoly of power, and there is no sufficiently legitimated authority.”
What constitutes a “legitimated authority”? Why can the U.S. contest the legitimacy of the ICC but a terrorist or another country can’t contest the legitimacy of U.S. acts?
Mike
— MBunge · Nov 30, 10:55 PM · #
Many things and many theories, but a psychology of submission underscores them all — submission by a sufficient number of the powerful.
We do, all the time. They do, all the time. Both for the same reason: “We did not and do not submit.”
— Kristoffer V. Sargent · Dec 1, 04:53 PM · #
Exactly. The ICC may do this in countries which submit to its jurisdiction. But it cannot enforce its holdings against America, and America has no legal or moral imperative to abide by them.
Now, this starts getting us into the weeds. What about Americans who are charged with acts done while in an official capacity? May a court claim universal jurisdiction over acts done anywhere in the world at any time by anybody? What remedies should be available to this court? What if any deference? What are the practical effects of a “coalition of the willing” claiming such power over citizens of other countries? What about an appeals process, or a jury of your peers? What about venue concerns?
Let’s put that aside for now. It’s much simpler to focus on the question of free and knowing submission, which, from the United States, has yet to occur, and which, from my perspective, is completely unnecessary and should never occur unless we see a radical phase change in humanity or the world.
— Kristoffer V. Sargent · Dec 1, 05:11 PM · #
My understanding is that the ICC tries individuals, not nations. And I don’t see why the ICC needs the co-operation of the United States any more than the United States feels it needs the co-operation of Pakistan to bomb bin Laden. Now, of course, it’s easy to imagine certain individuals likely to be sought by the ICC for war crimes deciding never to vacation in certain countries, but then isn’t that an attempt to flee from or hide from prosecution, and therefore something of an admission of guilt?
You’re still not making sense to me, I guess, at least if I’m supposed to be reading your posts as germaine to the question of consistency and “domain specificity” (a synonym for which would, apparently, be “situational ethics.”)
It strikes me that until the US is willing to be a signatory to the ICC we’d have absolutely no basis to complain about any of these things.
— Chet · Dec 1, 05:20 PM · #
Why are you so gung-ho about a foreign authority? Is DC justice not remote enough for you?
— Kristoffer V. Sargent · Dec 1, 05:26 PM · #
Instead of asking me all these questions, why not go out and buy a text book on international law, or read published theories of the ICC from its own perspective and from America’s (multivalent) perspective? Those are my sources, they can be yours as well.
— Kristoffer V. Sargent · Dec 1, 05:30 PM · #