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Stardate
20020704.1402 (On Screen): In my forum, Frederick recommends that I look at the explicit list of crimes over which the ICC claims jurisdiction. It's quite a list, and I am not reassured by it.
Not even slightly.
Article 7 (1) (e)
Crime against humanity of imprisonment or other severe deprivation of physical liberty
Elements
1. The perpetrator imprisoned one or more persons or otherwise severely deprived one or more persons of physical liberty.
2. The gravity of the conduct was such that it was in violation of fundamental rules of international law.
3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct.
4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.
Here in the US, one of our most sacred principles of criminal law is that anyone should reasonably be able to determine before committing a deliberate act whether or not it is a violation of the law. The Constitution explicitly prohibits ex post facto laws (i.e. laws which apply retroactively) and there is long court precedent for throwing out laws which are vague and not subject to clear interpretation.
The gravity of the conduct was such that it was in violation of fundamental rules of international law. What in the hell does that mean? How is anyone supposed to know ahead of time just how much "gravity" is allowable? The real meaning of this is that it was sufficiently grave to get the prosecutors at the ICC indignant, probably because some reporter caused a stink leading to international outrage.
Article 7 (1) (h)
Crime against humanity of persecution
Elements
1. The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights.
2. The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such.
3. Such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law.
4. The conduct was committed in connection with any act referred to in article 7, paragraph 1, of the Statute or any crime within the jurisdiction of the Court.
5. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
6. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.
Israel is toast. As long as they impose martial law on the Palestinian territories so as to prevent bombing attacks against Israel itself, they'll be in violation of this one, and every complicit member of the Israeli government right up to the Prime Minister could be indicted. Just about five minutes after the machinery of the ICC is in place, expect someone to accuse Ariel Sharon under this provision.
This particular one bothers me a lot. One way or another, I think you can make a case that most governments in the world are violating this one in some way. (For example, British operations in Northern Ireland probably could be prosecuted under this provision.) If this is applied rigorously, the ICC is going to be mighty busy for years.
But it won't be. Another principle of US criminal law is consistent application of the law. It is a valid defense against prosecution to demonstrate that a law is being selectively enforced, and only being applied to certain individuals or groups. It's virtually certain that the "Crime against humanity of persecution" will be very selectively applied. As I read this, for instance, Sharia limitations on activities of women would violate this principle. Think they'll be indicting the King of Saudi Arabia?
Probably not, because of this escape clause:
Since article 7 pertains to international criminal law, its provisions, consistent with article 22, must be strictly construed, taking into account that crimes against humanity as defined in article 7 are among the most serious crimes of concern to the international community as a whole, warrant and entail individual criminal responsibility, and require conduct which is impermissible under generally applicable international law, as recognized by the principal legal systems of the world.
Sharia is certainly one of the "principal legal systems of the world", although it is not held in high regard by those outside the Muslim nations.
Which is why that quaint Sharia punishment of amputation of a hand and a foot for theft also won't be prosecuted, under this provision:
Article 7 (1) (k)
Crime against humanity of other inhumane acts
Elements
1. The perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act.
2. Such act was of a character similar to any other act referred to in article 7, paragraph 1, of the Statute.
3. The perpetrator was aware of the factual circumstances that established the character of the act.
4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.
Man, oh man. Talk about a garbage-can rule. This one's a doozie. Who decides what "great suffering" is? (Consider the mental suffering that the French have to put up with because of the presence of McDonald's Restaurants on their soil.)
How about this one?
Article 8 (2) (b) (iv)
War crime of excessive incidental death, injury, or damage
Elements
1. The perpetrator launched an attack.
2. The attack was such that it would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated.
3. The perpetrator knew that the attack would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated.
4. The conduct took place in the context of and was associated with an international armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
Again, the problem here is vagueness. The critical problem with this one is the following phrase: clearly excessive in relation to the concrete and direct overall military advantage anticipated. Who decides what is "clearly excessive". (Saying that it is "clear", i.e. "obvious" is, I'm afraid, an example of something which in the US would be considered unconstitutionally vague. It leaves too much to the judgment of the prosecutors to decide what is "obvious" and what is not.)
Why am I worried about this one? Consider the bombing campaign against Serbia. You have to understand that war is the application of force to achieve a political goal. In the case of the American bombing which ended Serbian aggression in Kosovo, what our bombers primarily struck was economic targets: telephone exchanges, power plants, bridges, television transmitters, and so on. The intent was to cause a rising and ultimately intolerable level of physical damage while killing as few people as possible. So these facilities were usually hit in the middle of the night, when there were a minimum number of people present.
That campaign happened before creation of the ICC and the ICC can't prosecute it. But if the ICC had existed then, that campaign could conceivably have been interpreted to have violated this particular rule, and the top officers and politicians involved could conceivably have been prosecuted under it. Maybe, maybe not; the problem would have been who, exactly, decides what was "clearly excessive". I don't think it was excessive, but a prosecutor for the ICC, or someone in the bombed country, might. (It's virtually certain that someone in the country which was on the receiving end of such a bombing would think it was excessive.)
Could this happen in future? You bet. The reason for using this kind of targeting was precisely to keep casualties low. The Yugoslav government (i.e. the Serbs who were still hell-bent on maintaining an empire) eventually decided they couldn't tolerate the level of damage being done, and equally clearly became aware that they were not able to stop it. So they gave in, and we were able to win that war with a very low rate of deaths.
That same tactic could, for instance, be applied (hypothetically) to Saudi Arabia were we to end up in a shooting war with them (which I think is a distinct possibility before this overall war is through). Where they are particularly vulnerable is in sources of water. Saudi Arabia has no important rivers or naturally-renewed sources of fresh water, and they have long since exhausted most of their aquifers (fossil water left over from the last ice age). They now rely heavily on desalinization plants (powered by oil) to create fresh water for their cities. These are easily destroyed and nearly impossible to defend, since they're on the coast. If we wanted to bring pressure to bear on the Saudi government, we might start destroying them, one at a time. They have a certain over-capacity, and it is possible for the population to use much less water than they actually do by cutting back on non-essential uses. A substantial part of their desalinization capacity could be destroyed before it imperiled the population.
This would be an extremely effective way to bring pressure to bear on the Saudi government while minimizing losses. But it also might be interpreted as "excessive damage" under this statute.
Here's one I think is a very good idea:
Article 8 (2) (b) (vii)-4
War crime of improper use of the distinctive emblems of the Geneva Conventions
Elements
1. The perpetrator used the distinctive emblems of the Geneva Conventions.
2. The perpetrator made such use for combatant purposes in a manner prohibited under the international law of armed conflict.
3. The perpetrator knew or should have known of the prohibited nature of such use.
4. The conduct resulted in death or serious personal injury.
5. The perpetrator knew that the conduct could result in death or serious personal injury.
6. The conduct took place in the context of and was associated with an international armed conflict.
7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
Among the things that this refers to are the Red Cross and Red Crescent which identify non-combat emergency vehicles, hospitals, hospital ships and other facilities and vehicles which are to be used for humanitarian purposes in a war zone. (The Red Crescent is used in Muslim nations because of the Christian symbolism inherent in the Red Cross.)
There are many cases now documented where the Israelis have searched ambulances marked with the Red Crescent, and discovered that they were being used to smuggle arms, or explosive belts; or to smuggle wanted militants who were not injured out of a zone that the Israelis were patrolling. When the Israelis were operating in Jenin a couple of months ago, they found that hospitals there had been used to store weapons.
Anyone want to bet whether those kinds of things in future would result in ICC indictments? Fat chance. In fact, the Palestinian Authority, and other Palestinian groups, have been routinely committing many of the war crimes described in this document, but there's zero chance of any actual indictments of Palestinians under it. But just watch all the indictments of Israel and various Israeli leaders which are going to pop up.
Article 8 (2) (b) (ix)
War crime of attacking protected objects
Elements
1. The perpetrator directed an attack.
2. The object of the attack was one or more buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives.
3. The perpetrator intended such building or buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives, to be the object of the attack.
4. The conduct took place in the context of and was associated with an international armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
My problem with this one is that such targets can be "military objectives". First, if there is good reason to believe that the other side is using a hospital improperly in violation of 8 (2) (b) (vii)-4, then during military operations there just isn't time to wait five years for prosecutions to take place. Those weapons are a legitimate military target, and they may need to be destroyed.
But after you've destroyed them, how do you prove they were there? The only evidence that remains is a crater where a hospital used to stand, and now you're up for a war crimes trial.
I also don't agree that historic monuments or religious targets are themselves not legitimate military targets. Remember the discussion above about how destruction of power plants and so on is a way to bring pressure to bear on an industrialized nation without having to slaughter huge numbers of people (such as in Serbia)? Well, when fighting against a non-industrialized theocracy, the threat to destroy their most sacred shrines may well be the only threat to which they'll listen. If, for instance, there's a revolution in Saudi Arabia and extremist Wahabbist elements take control and institute rule along the lines of what the Taliban were doing in Afghanistan, then they won't be impressed by a threat to take out their water supply. Indeed, there are very few threats to which they'll listen, since to them being martyred in the cause of God is a first-class ticket to eternal bliss.
But they'll damned well listen to a threat to destroy the Two Mosques in Mecca, and if destroying one of them can end a war before it is necessary to invade, or to do something much worse (like nuking a city), then in the long run it is merciful.
But it would also be a war crime. Cue the prosecutors.
Article 8 (2) (b) (xiv)
War crime of depriving the nationals of the hostile power of rights or actions
Elements
1. The perpetrator effected the abolition, suspension or termination of admissibility in a court of law of certain rights or actions.
2. The abolition, suspension or termination was directed at the nationals of a hostile party.
3. The perpetrator intended the abolition, suspension or termination to be directed at the nationals of a hostile party.
4. The conduct took place in the context of and was associated with an international armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
Oh, now this is a good'n. You know what it means? If we conquer a nation where Sharia is the law of the land, and refuse to let them practice it any longer, then we're committing a war crime. Marvelous.
Here's another garbage-can:
Article 8 (2) (b) (xx)
War crime of employing weapons, projectiles or materials or methods of warfare listed in the Annex to the Statute
Elements
[Elements will have to be drafted once weapons, projectiles or material or methods of warfare have been included in an annex to the Statute.]
Oh, great. How much you want to bet that they try to use this to ban land mines, cluster bombs, napalm, DU projectiles, and lots of other things like that? And I'll be really interested to see what "methods of warfare" they decide to ban. Just what do they have in mind? On what basis will they be choosing what kinds of weapons will be permitted and which will be illegal from now on?
Given that Russia, China and the US will not be parties to this negotiation, there's a strong sense here of "mice belling the cat", with weak nations trying to use this process to outlaw the weapons that the strong nations have which give them an advantage. Will they ban precision guided munitions? Cruise missiles? Chobham armor? Attacks at night using IR vision equipment against a foe which is not equivalently equipped? Submarines? Any aircraft capable of flying above the reach of anti-aircraft guns? The mind boggles.
And then there's this tribute to Political Correctness:
Article 8 (2) (b) (xxi)
War crime of outrages upon personal dignity
Elements
1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons.
2. The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity.
3. The conduct took place in the context of and was associated with an international armed conflict.
4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
Footnote: For this crime, "persons" can include dead persons. It is understood that the victim need not personally be aware of the existence of the humiliation or degradation or other violation. This element takes into account relevant aspects of the cultural background of the victim.
"They're searching our good Muslim women at their checkpoints. Never mind that last week they found that some of them were smuggling weapons under their abayas, we consider it degrading for foreign men to touch Muslim women."
But that's not the least of the ways in which this can be applied. What hostile action doesn't "humiliate, degrade or violate the dignity" of those on the other side? The mere act of defeating them in war is itself humiliation. In fact, bin Laden thinks (or thought [RIP]) that the mere presence of American troops on holy Arab soil was humiliating. And many of the Palestinians consider themselves to be humiliated by Israel simply because Israel exists.
Who decides what is generally recognized as an outrage? (The Muslims? Berkeley intellectuals?) Is having uniformed women serving in your army a humiliation to the other side? (The Muslims certainly think so.) Yet another of those vague phrases which lends itself to highly-biased enforcement.
Article 8 (2) (b) (xxiv)
War crime of attacking objects or persons using the distinctive emblems of the Geneva Conventions
Elements
1. The perpetrator attacked one or more persons, buildings, medical units or transports or other objects using, in conformity with international law, a distinctive emblem or other method of identification indicating protection under the Geneva Conventions.
2. The perpetrator intended such persons, buildings, units or transports or other objects so using such identification to be the object of the attack.
3. The conduct took place in the context of and was associated with an international armed conflict.
4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
The problem here is in dealing with cases where the other side is cheating. If they're using ambulances to move ammunition around, then they are in violation of other provisions of this list of statutes, and the ambulances are legitimate targets even if they sport the Red Cross or Red Crescent. The problem is that if you attack the ambulances and destroy them, you've also destroyed the evidence you can use in your defense when you get indicted under this statute. You can no longer prove that they were violating Article 8 (2) (b) (vii)-4, but they can damned well prove that you violated this one as long as you aren't able to prove their violation.
And woe be to you if 90% of their ambulances carry ammunition, and you guess wrong and hit one of the remaining 10% which was actually being used to carry wounded.
Article 8 (2) (b) (xxv)
War crime of starvation as a method of warfare
Elements
1. The perpetrator deprived civilians of objects indispensable to their survival.
2. The perpetrator intended to starve civilians as a method of warfare.
3. The conduct took place in the context of and was associated with an international armed conflict.
4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
During the early stages of our war in Afghanistan, many people who objected to the war claimed that the US bombing campaign was going to cause widespread starvation among the people of Afghanistan because it would be impossible to move food around during the bombing. This was used to try to justify a demand that the US stop bombing Afghanistan (which, as we now know, would have had the effect of drastically prolonging the war and of massively increasing the number of casualties). Indeed, it was claimed at the time by some that the US was in this way committing a war crime. It's a fine point whether we would have been in violation of this particular rule, because it depends entirely on how you interpret the word "intend".
The American military planners were not trying to stop the movement of food as a primary goal of the bombing campaign, but they knew and accepted it as one of the effects of the bombing and they refused to modify the bombing campaign in such a way as to avoid stopping the movement of food. So is that "intentional"? It depends entirely on how hostile the prosecutors are.
Here's another one aimed directly at Israel:
Article 8 (2) (c) (I)-1
War crime of murder
Elements
1. The perpetrator killed one or more persons.
2. Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities.
3. The perpetrator was aware of the factual circumstances that established this status.
4. The conduct took place in the context of and was associated with an armed conflict not of an international character.
5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
If it were not for the 4th part of this, everyone ever involved in a war would be guilty of a war crime, because the death of any civilian for any reason in the course of a war would be prohibited, and it is not yet possible to fight wars without causing at least a few civilian deaths, unless you use completely absurd tactics which result in huge casualties among your own soldiers.
But even with that 4th part, this still applies to any kind of operation involving insurrection within one's own borders, or, as in the case of Israel, territory whose nationality is legally ambiguous. Technically speaking, the Palestinian territories are currently considered Israeli. They were conquered in the 1967 war, and both Jordan and Egypt have given up all sovereignty over them. There is no formal Palestinian state, so the current struggle between Israel and the Palestinians is arguably not "of an international character" because it takes place entirely within territory which is nominally under Israeli sovereignty.
Which means that if either side ever kills a civilian, no matter why or how, then they are in violation of this statute. However, the problem here is again going to be one of selective enforcement: it's virtually certain that Palestinians responsible for bombings in Israel won't be indicted under this if for no other reason than because it will be extremely difficult to apprehend them or to produce adequate proof of complicity for any kind of fair trial. But when any Palestinian civilian dies then the Israelis involved will have committed a war crime.
And when you're talking about a popular insurrection such as this one, who isn't a civilian? If the Israelis shoot and kill a bomber at a checkpoint before he can complete his attack, isn't he technically a civilian under this statute? He's not a uniformed combatant of a recognized army, so what is he?
But why stop with just banning murder?
Article 8 (2) (c) (I)-3
War crime of cruel treatment
Elements
1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.
2. Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities.
3. The perpetrator was aware of the factual circumstances that established this status.
4. The conduct took place in the context of and was associated with an armed conflict not of an international character.
5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
Simply making the Palestinians miserable (causing "mental pain or suffering") is enough. How, exactly, is any nation supposed to operate against internal insurrection without making at least one civilian unhappy while doing so? (For instance, consider the operations in Colombia right now against the FARC.) Naturally, you don't want any government to be deliberately trying to punish random civilians in such a case, but as written this rule applies whether the suffering was intentionally caused or not. And, of course, who decides how much suffering is "severe"?
But forget "severe suffering", just humiliating someone while operating against insurrection is a war crime, too:
Article 8 (2) (c) (ii)
War crime of outrages upon personal dignity
Elements
1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons.
2. The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity.
3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities.
4. The perpetrator was aware of the factual circumstances that established this status.
5. The conduct took place in the context of and was associated with an armed conflict not of an international character.
6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
Footnote: For this crime, "persons" can include dead persons. It is understood that the victim need not personally be aware of the existence of the humiliation or degradation or other violation. This element takes into account relevant aspects of the cultural background of the victim.
Marvelous: they don't even need to know about the humiliation for it to be a war crime. We've entered a whole new era: telling demeaning barracks-room jokes about the enemy is now a war crime, as is referring to them with disparaging nicknames. Even if they can't hear it.
Who decides what is generally recognized as an outrage upon personal dignity? Generally recognized by who?
Now it should be clear that what I'm doing is to look for the most pernicious interpretations of these rules. The response from defenders of the ICC would be that my constructions are not how they would actually be applied. But the only guarantee of that is the good intentions of those who serve as part of the court, and there's no way of knowing whether they might end up at least once in a while attempting to enforce one of these rules in an equivalently pernicious way.
"Trust us!", they say. I'm sorry, I'm not a trusting individual when it comes to unbridled governmental or bureaucratic power. Unfortunately, the record on such international organizations acting in a "reasonable" fashion is extremely poor. Shall we go through a list of all the stupid, unreasonable and totally biased proclamations coming out
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