posted
I'm a bit perturbed by the US' efforts to undermine the authority of this court. Basically, we've threatened to pull all funding, we throw our weight around in UN peace-keeping missions requiring guarantees that none of our soldiers will EVER be tried by this court for war crimes, etc. But...
1) We have used this court for our own ends in past years, and,
2) The court has jurisdiction only in cases when the accusers can first prove that the defendant's home country has refused to conduct a serious investigation or has otherwise abandoned the attempt to determine if a person is guilty or not.
In short, it appears that our legal system, being functional, and our military justice system (also being functional) would rule out the possibility of one of our citizens ever being tried by this courty in the first place.
And yet...we purposefully are undermining the court because they insist that everyone is ultimately subject to it.
I don't think this works. You can't use the court when it serves your purposes and then claim that all Americans are blanket exempt from it.
It just doesn't work from a moral standpoint.
I'm wondering what the other perspectives are. I know that some fear reprisals against Americans by third-worlders starting suits against our leaders over things that we would never investigate (e.g., Clinton's order to bomb what the Iraqis claimed were "baby formula factories," or fabrication of false intelligence to start the war in Iraq). But is that really all that likely a scenario?
If an American were truly a war criminal, wouldn't we go after them and thus the possibility of this court having jurisdiction is basically nullified?
The latest flap is over the IJC ruling that we failed to meet treaty obligations that would allow foreign prisoners access to consular employees if they are condemned to death. Apparently there's an optional part of the treaty and we've told the UN and the IJC that we're exercising our right not to abide by that portion that makes us give these folks access.
Turns out we're going to give the existing prisoners (mostly Mexican prisoners, mostly in Texas) the access we were supposed to have given them all along. But after that, what? Nobody else gets access?
posted
Bob, that's not an accurate assessment of the situation. All quotes from here:
quote:The State Department, however, notes that fewer than 30 percent of the signatories to the Vienna Convention had agreed to the protocol. Among those that had not done so are Spain, Brazil and Canada, officials said.
quote:The administration's decision does not affect the rest of the Vienna Convention, which requires its 166 signatories to inform foreigners of their right to see a home-country diplomat when detained overseas. But it shows that Washington's desire to counteract international pressure on the death penalty now weighs against a long-standing policy of ensuring the United States a forum in which to enforce its citizens' allegations of abuse.
The treaty rights are still enforcable in American courts. So the asnwer to your questions ("But after that, what? Nobody else gets access?") is no. After this, people get the access the treaty demands, but the U.S. will enforce that access in its own courts, just as 70% of the other signatories do.
posted
Here's the entire article Dag linked to for those who don't have a WP account.
quote:U.S. Quits Pact Used in Capital Cases Foes of Death Penalty Cite Access to Envoys
By Charles Lane Washington Post Staff Writer Thursday, March 10, 2005; Page A01
The Bush administration has decided to pull out of an international agreement that opponents of the death penalty have used to fight the sentences of foreigners on death row in the United States, officials said yesterday.
In a two-paragraph letter dated March 7, Secretary of State Condoleezza Rice informed U.N. Secretary General Kofi Annan that the United States "hereby withdraws" from the Optional Protocol to the Vienna Convention on Consular Relations. The United States proposed the protocol in 1963 and ratified it -- along with the rest of the Vienna Convention -- in 1969.
The protocol requires signatories to let the International Court of Justice (ICJ) make the final decision when their citizens say they have been illegally denied the right to see a home-country diplomat when jailed abroad.
The United States initially backed the measure as a means to protect its citizens abroad. It was also the first country to invoke the protocol before the ICJ, also known as the World Court, successfully suing Iran for the taking of 52 U.S. hostages in Tehran in 1979.
But in recent years, other countries, with the support of U.S. opponents of capital punishment, successfully complained before the World Court that their citizens were sentenced to death by U.S. states without receiving access to diplomats from their home countries.
The Supreme Court is scheduled to hear oral arguments March 28 in the case of a Mexican death row inmate in Texas who is asking the justices to enforce an ICJ decision in favor of Mexico last year. That case has attracted wide attention in Mexico and caused a diplomatic rift between the Bush administration and the government of Mexican President Vicente Fox.
Rice is scheduled to meet with Fox today in Mexico in preparation for a summit meeting at President Bush's ranch in Crawford, Tex., later this month.
The administration's decision does not affect the rest of the Vienna Convention, which requires its 166 signatories to inform foreigners of their right to see a home-country diplomat when detained overseas. But it shows that Washington's desire to counteract international pressure on the death penalty now weighs against a long-standing policy of ensuring the United States a forum in which to enforce its citizens' allegations of abuse.
"The International Court of Justice has interpreted the Vienna Consular Convention in ways that we had not anticipated that involved state criminal prosecutions and the death penalty, effectively asking the court to supervise our domestic criminal system," State Department spokeswoman Darla Jordan said yesterday.
Withdrawal from the protocol is a way of "protecting against future International Court of Justice judgments that might similarly interpret the consular convention or disrupt our domestic criminal system in ways we did not anticipate when we joined the convention," Jordan added.
The administration's action comes after its Feb. 28 decision to grant 51 Mexicans on death row in Texas and elsewhere new state court hearings, as the ICJ had ordered.
But withdrawal from the protocol means that the United States will not have to bow to the ICJ again, legal analysts said.
Some said the decision would weaken both protections for U.S. citizens abroad and the idea of reciprocal obligation that the protocol embodied.
"It's encouraging that the president wants to comply with the ICJ judgment" in the Mexicans' case, said Frederic L. Kirgis, a professor of international law at Washington and Lee University. "But it's discouraging that it's now saying we're taking our marbles and going home."
The State Department, however, notes that fewer than 30 percent of the signatories to the Vienna Convention had agreed to the protocol. Among those that had not done so are Spain, Brazil and Canada, officials said.
Bush's decision to enforce the ICJ judgment in the case of the Mexicans "should ensure that our withdrawal is not interpreted as an indication that we will not fulfill our international obligations," said Jordan of the State Department.
Meanwhile, the president's decision has thrown the Supreme Court case regarding the Mexicans into limbo. Some legal analysts suggest the case may now be moot.
Attorneys for Jose Ernesto Medellin, a convicted murderer on death row in Texas who is seeking review of his assertion that a lack of consular access harmed his case at trial, have asked the justices to put the case on hold until after Medellin has had his hearing in Texas state court.
The Texas attorney general's office, meanwhile, issued a statement Tuesday saying, "We respectfully believe" that the president's decision "exceeds constitutional bounds for federal authority."
Dag, I still don't get it. See bolded statemetns above. Basically, just because we have state's rights in THIS country doesn't mean that international laws don't apply to the states if the US signs a treaty. I know this protocol is optional, but the point is that we seem to be doing our best to undermine the ICJ because it is working in ways we didn't think of when we wrote the treaty in the first place.
And the concern that eroding the power of this court will also erode protections for our citizens abroad seems like a valid concern to me.
I also don't necessarily trust the administration's commitment to abide by the protocol even after pulling out. The bottom line is that they may not be able to force the states to do what we're nationally obligated to do, and pulling out of the treaty seems like a way to avoid having to address this conflict in the future. If we're not bound by it, then the states do whatever they want. No national oversight in the case of foreign nationals in state prisons.
Maybe I'm reading too much into this, though.
Posts: 22497 | Registered: Sep 2000
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quote:The bottom line is that they may not be able to force the states to do what we're nationally obligated to do
They absolutely have a means to enforce it - appeals of convictions and habeas petitions are designed for precisely this type of situation. The national government enforce Miranda against the express wishes of the other two branches.
As for protection abroad, we're not losing the protection (that's guaranteed in the non-optional part), but access to a particular forum for protection. And we'd have that access only in 30% of the signatories, because it's reciprocal and optional.
posted
Mmm. I don't really have anything useful to add (yet), but we've just started studying the ICJ in International Environmental Law at the moment, and to tell the truth America doesn't really come out looking that great. Not just with the ICJ but with treaties that have to be so watered down as to be nearly meaningless before the US will ratify, and well, international law in general.
Of course, the current lecturer is Canadian, so that's probably to be expected. Posts: 1431 | Registered: Aug 2003
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posted
Thanks Dag. As I said, I really didn't get it.
Interesting that TX's A.G. thinks this whole thing can't be shoved down that state's throat, though. I wonder if he'll learn a few things or whether the Administration will.
posted
He'll lose, I think. This is well within the bounds of foreign policy and well within traditional federal powers.
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