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Comment by llimos | Hacker News Reader

I'm going to give an unpopular view here because I think we need to look at actual facts and laws instead of emotions.

Buried right at the bottom of the article: "the US is not a party to the international tribunal".

Now, you can say they should be. But they're not. So if you look at it from a purely impartial and dispassionate standpoint, the court shouldn't get any special treatment - and the US would be entitled to take such actions against any other foreign group that set itself up and issued threats. It's like me setting up my own private court and then coming to arrest you.

The fact that most other countries are part of it may make a moral case for the US to join but not a legal one, which means that, again looking dispassionately, the US is entitled to do this.

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On the other hand, Afghanistan, where the actions being investigated allegedly took place, is a party. I don't see anything illegitimate about Afghanistan investigating events that took place within its borders, or to delegate that to an international tribunal of which it is a member.

This is a good point and may well be the case, we'd have to look at the exact rules of jurisdiction.

But even if it's true, that's not something that obligates the US to play ball. They don't have any obligations to the Court.

Criminals rarely have any obligation to the courts in which they are prosecuted.

So what?

They do. If they live in a country where the court has jurisdiction, they have obligations. (To show up, to cooperate, etc.) They may choose not to fulfil those obligations, in which case they can be punished (legitimately).

If there's no jurisdiction there's no obligation to start with.

Case in point: China has made it illegal worldwide to criticize what they're doing in Hong Kong[1]. That doesn't mean you have to listen to them if you're in a country that doesn't care.

[1]: https://www.axios.com/china-hong-kong-law-global-activism-ff...

You misunderstood: the US government is the suspected "criminal" in this case.

If I, living in, say, the UK, criticize China's handling of Hong Kong, I am also a suspected criminal in their eyes. Do I have to care about that if I don't recognize their court's jurisdiction over me?

Wouldn't a US citizen still have those obligations if they, for example, had committed crimes in Germany but just happened to fly back to the US before being arrested?

Yes, but only because the US and Germany have an extradition treaty[0]. And even then, I assume the US government could still refuse to extradite for various reasons.

The US has no such treaty with Afghanistan, and is not a party to the ICC.

Whether or not the US should cooperate with the ICC is another matter, but the US has no legal or diplomatic obligation to do so. And in fact the US executive branch is required by US law to actively thwart ICC action against US servicemembers[1].

[0] https://en.wikipedia.org/wiki/List_of_United_States_extradit...

[1] https://en.wikipedia.org/wiki/United_States_and_the_Internat...

I will disagree. Jurisdiction is in the eye of the beholder. Truth is that nobody has any obligations or anyone or anything, all the courts get their authority by the guns that back them up.

Criminals abrogate themselves from that responsibility by committing the crime. Their obligations are no longer relevant until the use of force is applied to make them fulfil that obligation - i.e. they are arrested and prosecuted. It is innocent civilians (i.e. non-criminals) who are fulfilling their responsibility to NOT commit crime - criminals are beyond that point.

America is getting away with its war crimes and crimes against humanity, simply because there isn't a system by which it can have its obligations not to murder millions of people enforced by external force. Yet. That day may change, one can only hope ..

You are equating right with might and dressing this up in pseudo-legalism.

I think that's an uncharitable interpretation of what the parent said (they did not pass any judgment for or against the current state of affairs), and there's nothing "pseudo" about it; the US has no legal obligation toward the ICC whatsoever.

For the record, I think the US should be a member of the ICC, but we're not, and the US Congress passed a law many years ago instructing the executive branch to protect US servicemembers from the ICC. That's just the legal reality.

I am not any kind of lawyer, but here's my interpretation:

The usage of "legal" in this thread is highly misleading: partly erroneous and partly just a red herring. You are right about the USA national law, but that's the red herring part, because it is irrelevant in this international context with sovereign states and the ICC as parties. As far as the ICC is concerned (or rather international law and the treaty, the Rome Statute, which established the ICC) the suspected crimes were committed on party territory (Afghanistan; but also Poland, Romania and Lithuania; the latter three hosted the CIA black sites where prisoners were taken) and the USA government is not willing to prosecute themselves; so the ICC's purpose is to prosecute them.

That's why I called Llimos' position pseudo-legalist. (And also because the ICC is not a "private court" any more than the SCOTUS is a "private court".)

On the other hand, the USA is a sovereign state and its government is presumably in a position to ignore the international tribunal. This is the might part, which some are equating with a legally nonexistent right.

I don't know what exactly makes the USA different in this regard to some other relatively democratic state that finds its military and government under investigation by an international tribunal. It's surely got to do something with USA's might (power the US government is able to project across the world, e.g. sanctions) and worldwide reputation; but I think public opinion within the (democratic) country in conflict with the ICC is also hugely relevant in such cases, thus I'd say the US voters don't care about democracy or justice enough (otherwise the US politicians wouldn't dare do this, or pass the relevant laws).

For a comparison, I doubt there is currently an European internationally recognized state besides Russia and, maybe, Belarus whose governing politicians would dare defy something like the ICC; and sanctions by any state other than the USA would also carry much less weight.

Taking another look at the top-level comment, another thing that is visible in it apart from fake legalism is the "if it is legal, it is right", or, alternatively, "if it is within my might, it is right" point of view. That, too, is horrible; I guess I just didn't notice it consciously before.

That's fair; "legality" doesn't really matter much on the international stage. A country can do whatever it wants up to the point where it gets crippled by sanctions, or loses a war.

But I think it's still correct to say that the US is not legally beholden to the ICC, just as any other country not party to the Rome Statute is not. It's a voluntary thing, and there are plenty of countries in the world with less might than the US that are non ICC members. If Rome Statute signatories could just flat-out decide what and what is not legal for everyone, that wouldn't be a great outcome for the concept of sovereignty.

> I'd say the US voters don't care about democracy or justice enough (otherwise the US politicians wouldn't dare do this, or pass the relevant laws).

I think that's an uncharitable view that paints with a way-too-broad brush. Mine is that US citizens do generally care about these things, but don't trust the idea of a foreign body having oversight in criminal matters. Sure, there almost certainly is some subset that believes that "those terrorists deserve what they get", and believe that due process should go out the window whenever someone utters the magic phrase "national security", and that's shameful.

> the suspected crimes were committed on party territory (Afghanistan; but also Poland, Romania and Lithuania; the latter three hosted the CIA black sites where prisoners were taken)

This is also interesting, though: has the ICC been investigating, and potentially prosecuting individuals in, Poland, Romania, and Lithuania for their part in allowing this stuff to happen on their soil? If not, why not? Seems like it would make sense for them to concentrate where the targets of potential prosecution are actually within their jurisdiction, no?

I agree that "if it is within my might, it is right" is reprehensible, but I don't think that explains the situation fully. I think it's reasonable to disagree with the ICC's implementation, and to want nothing to do with it, even if its intended mission is an honorable one.

Exactly. The dominant global superpower has no interest in international tribunals, since it has the power to enforce its will directly. They are above the law because they don't need the law as leverage against anybody else.

Joining the ICC has no upside for this country since it simply enforces its will upon the world directly. Why would the empire limit its own ability to commit war crimes for nothing in return? The US government can label any action it disagrees with as terrorism and act unilaterally.

> They don't have any obligations to the Court.

While this is true they certainly also don't have an obligation to attack individuals, who happen to work for the court.

That's just a totally underhanded shit move of a bully and, I strongly suspect, it's red meat for a certain segment of voters.

No matter how you look at it. This move is fucking disgusting.

Nations may of course enforce their own laws while foreign nationals are on in their jurisdiction, but once they are outside that jurisdiction, they are at the mercy of the foreigners' home country for extradition. If that country doesn't care to extradite, they're out of luck (barring extraordinary rendition). Delegating the investigation to an international body doesn't change that (not to mention that the US is not a part of and has been actively hostile toward the ICC).

The fact that the ICC counts many nations as members certainly makes it feel like the US should cooperate on moral/ethical grounds, but it has no legal requirement to do so.

At the end there is no real difference between moral and law. Laws are just something people have decided to judge each other by. Laws and jurisdiction are just the implementation, which might change, the specs seem well defined (when it comes to war crimes).

The US had the power to establish before committing war crimes, that it does not want to be investigated (acting lawfully but immorally), while any other criminal would not have the power to plan ahead and could only try to escape justice after having committed a crime (acting immorally and unlawfully).

So what I am saying is: Nobody cares about acting lawfully when it comes to war crimes. Especially not, when you base your dominance on your fantasy of a moral high ground.

> At the end there is no real difference between moral and law.

That's demonstrably incorrect, and we're talking about this exact counterexample. You're saying that the US has acted immorally (which I agree with!) while simultaneously saying the US is legally responsible, which it is not. That right there suggests that morality and law are not aligned, and that there is sometimes quite a big difference between the two.

And yet, the US don't hesitate to go after individuals in other countries where they could kidnap and bring them to US to be judged by "law". Haha

Pretty sure I covered that with my original comment. Never said it was a good thing, and expressly pointed out that I don't believe it is.

Have you read the rest of my comment and what I wanted to say? Of course there is a difference. I am saying, the difference does not really matter, because "being lawful" does not really matter when it comes to war crimes.

The Nazis acted "lawfully" under their jurisdiction, but because the laws themself were unjust, it is widely recognized that they in fact did not act lawfully and so they have been trialed for it. It's called "legal positivism". The concept means, that there is in fact no difference between "law" and "moral", when it comes to war crimes. Ironically, it was the US, which established that concept.

I guess I'm just not understanding what the point is, then? Obviously morality and legality are not the same thing; the law can be immoral, and the law can also allow people to do immoral things.

And I absolutely agree that we can say that some countries do things that are entirely consistent with their own laws, that we will nevertheless judge to be immoral. The US is sadly no stranger to this phenomenon.

But again... what's the point? My original comment was simply addressing the legality of the situation. The US has no legal requirement to cooperate with the ICC, and has enough clout on the international stage to maintain that position. When it comes to international relations, "law" isn't the same thing as what it is between a government and its citizens. International "law" can only be enforced either through the consent of those who are party to it, or through economic or military might.

I guess, we are not really disagreeing then. I just wanted to voice the thought that judging your own war crimes under your own jurisdiction and finding out they are legal is kind of a pointless mental excercise. So I am not saying you are wrong, it's more of a: "Yes, true. But so what?"

It's not like you setting up your private court at all. It's more like the UN (the majority of UN member states are also ICC members). It has plenty of legitimacy.

https://en.wikipedia.org/wiki/International_Criminal_Court

To those parties who accepted the treaty, sure. We didn’t.

The highest court in the US is the supreme court and every court any of us can be subjected to is under it. The ICC has no sovereignty over the US. Our foreign policy with regards to international law is to support it having sovereignty over others but not ourselves, the world peace enjoyed for the past eight decades or so is a direct result of American hegemony and if you don’t like it start building a military to rival ours.

There is a power imbalance on purpose which results in a little injustice and a big lack of armed conflict.

World peace? Did you ever looked at all the wars that happened since? Many involving the US army ... And not in a nice way...

If you speak of the western world, the main reason for peace is the construction of the european union, creating much more cooperation between countries that had always been fighting each other.

US foreign policy is not driven by peace, freedom or whatever propanganda created to have people's support but by self-interest. It's the same for any country.

> the world peace enjoyed for the past eight decades or so is a direct result of American hegemony

Have you had a look at American foreign policy last eight decades?

> and if you don’t like it start building a military to rival ours.

Yeah, that sounds totally like what peace and democracy loving entity would say.

> The highest court in the US is the supreme court and every court any of us can be subjected to is under it.

I'll buy that argument as long as Americans stay inside their own borders. When you choose to enter another country you are subject to their laws whether you agree with them or not. Afghanistan has signed on to the ICC and the activities being investigated took place in Afghanistan.

Having said that I don't expect US policy to change on this issue regardless of who wins the next election. Letting US soldiers be tried for war crimes is bad politics.

> The ICC has no sovereignty over the US.

When a US citizen is in another country, they are under the power of the courts of that other country. Why is this so hard to understand?

The US military members, when in Afghanistan, are subject to Afghanistan courts jurisdiction—one of those courts is the ICC because Afghanistan gave the ICC jurisdiction by signing the treaty.

When the CIA operatives were in Italy they were under the jurisdiction of the Italian courts and were thus so convicted:

* https://en.wikipedia.org/wiki/Abu_Omar_case

If you do not want to be under the jurisdiction of non-US courts then do not leave the US. Once you step over the border you have to follow the rules of the other country.

Legally, it is like a private court. From the point of view of someone who is not a member, it's the same thing.

Let's take a hypothetical scenario. The majority of UN member states are not democracies. If all of these non-democracies would set up a court, with the legitimacy of 'the majority of UN members', would they automatically have the right to prosecute the other countries?

'Legitimacy' is a moral concept. The legal concept that matters is 'jurisdiction'.

They may not have the right, but they may have the power.

Also, more than 100 states out of 167 are democracies, so majority of states are democracies.

> more than 100 states out of 167 are democracies,

They're not.

The current https://en.wikipedia.org/wiki/Democracy_Index lists 22 "full democracies", 64 "flawed democracies" and 24 "hybrid regimes".

  22+64 = 86
  86/167 = 51.5%

Majority of countries are democracies.

86 < 100

less than 100 states are democracies

Whether they are a majority or not is irrelevant to what lazyjones said.

Hybrid regimes are defined as "Hybrid regimes are nations with regular electoral frauds, preventing them from being fair and free democracies.", so they ARE democracies with regular electoral frauds.

86 + 24 = 110 > 100

More than 100 states are democracies.

Democracies like… for example Belarus?

I can't think of a single real democracy that isn't deeply flawed except for Switzerland.

What is so special about Switzerland then? How is it so much better than say NZ?

It's the only direct democracy in the world, where the people really vote on issues instead of on representatives. For example, we don't really have a president. Laws written by parliament are put to quarterly nation-wide ballots.

I get to vote on what I believe is right on every issue, instead of getting tricked by politicians who have positions that they later compromise on.

> For example, we don't really have a president.

This actually nothing to do with being a direct democracy. You still have an executive cabinet selected by (but not responsible to) parliament. It's just that every member of the executive is selected by the parliament, instead of the parliament selecting a leader who picks the rest.

> I get to vote on what I believe is right on every issue, instead of getting tricked by politicians

You can still get tricked by politicians. America has very many citizens-initiated referenda, but it cannot be said to have improved their democratic outcomes.

> Legally, it is like a private court. From the point of view of someone who is not a member, it's the same thing.

The US is not part of the Italian legal system, and yet when CIA officials were in Italy, and committed crimes in Italy, and were convicted by an Italian court for those crimes in absentia, is anyone questioning that?

* https://www.nytimes.com/2009/11/05/world/europe/05italy.html

* https://en.wikipedia.org/wiki/Abu_Omar_case

The crimes were committed in a country that gave jurisdiction to the court.

> The majority of UN member states are not democracies. If all of these non-democracies would set up a court, with the legitimacy of 'the majority of UN members', would they automatically have the right to prosecute the other countries?

If the prosecuted countries/people committed crimes in the jurisdictions of those non-democracies, yes it would have the right.

The crimes were allegedly occurred in Afghanistan, and the ICC has jurisdiction in Afghanistan because Afghanistan gave it.

> The ICC lacks universal territorial jurisdiction, and may only investigate and prosecute crimes committed within member states, crimes committed by nationals of member states, or crimes in situations referred to the Court by the United Nations Security Council.

* https://en.wikipedia.org/wiki/International_Criminal_Court

If the alleged crimes happened in Somalia, which is a non-member / non-signatory (AFAICT), then the ICC would have no jurisdiction.

* https://en.wikipedia.org/wiki/States_parties_to_the_Rome_Sta...

How much legitimacy does the UN Human Rights Commission have? (Hint: Look at the members.)

Having members in common with the UN does not automatically give it legitimacy. The UN does some good things, and does some things that are to give tinpot third-world dictators a chance to look respectable. The efforts involving the second are fine for trying to nudge countries into being more like the normal world, but should not be given any real authority over anything.

The question is, which camp does the ICC fall into? That question tells how much legitimacy it has as a court. (And I don't know the answer, so I'm not going to give one. All I'm saying is "It's like the UN" doesn't make it legitimate, at all.)

The UN RHC has legitimacy, even with its flaws. Political organisations have flaws. Even though not all members are really democratic, the vast majority are. The UN has problems (arguable less so than the US government) but it's the best we have.

(Click saver for others, the members:

1. Ms. Tania María Abdo Rocholl Paraguay 2017–2020

2. Mr. Yadh Ben Achour Tunisia 2019-2022

3. Ms. Ilze Brands Kehris Latvia 2017–2020

4. Mr. Christopher Arif Bulkan Guyana 2019-2022

5. Mr. Ahmed Amin Fathalla Egypt 2017–2020

6. Mr. Shuichi Furuya Japan 2019–2022

7. Mr. Christof Heyns South Africa 2017–2020

8. Mr. Hernán Quezada Cabrera Chile 2019–2022

9. Mr. Bamariam Koita Mauritania 2017–2020

10. Ms. Marcia. V. J. Kran Canada 2017–2020

11. Mr. Duncan Laki Muhumuza Uganda 2019–2022

12. Ms. Photini Pazartzis Greece 2019–2022

13. Ms. Vasilka Sancin Slovenia 2019–2022

14. Mr. José Manuel Santos Pais Portugal 2017–2020

15. Mr. Yuval Shany Israel 2013–2020

16. Ms. Hélène Tigroudja France 2019–2022

17. Mr. Gentian Zyberi Albania 2019–2022

18. Mr. Andreas B. Zimmermann Germany 2018–2020 )

That's actually a pretty good list. China, Venezuela, Cuba, and Saudi Arabia aren't members any more.

The US used to be part of the international tribunal until they lost a case on warcrime, instead of paying reparations they signed out and left chat.

As I understand it:

The US signed the Rome Statute, but never ratified it.

Once a country ratifies the statute, it's in until a year after it gives notice to quit. And, even then, quitting has no effect on investigations already in progress.

You can get out even if you ratify the statue, membership is basically "as long as you want" and the US' way of handling the ICC has been nothing but a farce, threatening them everytime some US soldier is investigated for war crimes.

And the US still refuses to pay those reparations.

Another perspective: if a US citizen, or a criminal organization that includes US citizens were suspected of committing a serious crime abroad, you would presumably have no problem with them being prosecuted (and not by the US). The main difference here is that those citizens were operating as part of the US Government.

You are using supposed "rationality" to just ignore facts and reality. US is entitled to not cooperate. But bullying individual prosecutors is disgusting.

So where are the alternative "facts" he is ignoring? That, in your opinion, something is "disgusting", is an opinion and not a fact. Your moral position doesn't change, nor trump the simple facts he posted.

The top-level commenter is ignoring the fact that the Rome Statute, which set up the ICC legally, gives the Court power to prosecute crimes that happened on Rome Statute party territory. The issue here is just that the US Government is powerful enough to ignore the ICC and retaliate/abuse the Court, and probably also that the US voters don't care about democracy or justice enough (otherwise the US politicians wouldn't dare do this).

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