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Argument: The ICC risks heavy politicization of prosecution

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John R. Bolton, Under Secretary for Arms Control and International Security. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002 - the United States has had considerable experience in the past two decades with domestic "independent counsels," and that history argues overwhelmingly against international repetition. Simply launching massive criminal investigations has an enormous political impact. Although subsequent indictments and convictions are unquestionably more serious, a zealous independent Prosecutor can make dramatic news just by calling witnesses and gathering documents, without ever bringing formal charges.

Indeed, the supposed "independence" of the Prosecutor and the Court from "political" pressures (such as the Security Council) is more a source of concern than an element of protection. "Independent" bodies in the UN system have often proven themselves more highly politicized than some of the explicitly political organs. True political accountability, by contrast, is almost totally absent from the ICC.

[...]precisely contrary to the proper alignment, the ICC has almost no political accountability, and carries an enormous risk of politicization. Even at this early stage in the Court’s existence, there are concerns that its judicial nomination process is being influenced by quota systems and back-room deals.

Henry Kissinger. "The Pitfalls of Universal Jurisdiction: Risking Judicial Tryanny". Foreign Affairs. Aug. 2001 - The instinct to punish must be related, as in every constitutional democratic political structure, to a system of checks and balances that includes other elements critical to the survival and expansion of democracy.

Another grave issue is the use in such cases of extradition procedures designed for ordinary criminals. If the Pinochet case becomes a precedent, magistrates anywhere will be in a position to put forward an extradition request without warning to the accused and regardless of the policies the accused's country might already have in place for dealing with the charges. The country from which extradition is requested then faces a seemingly technical legal decision that, in fact, amounts to the exercise of political discretion -- whether to entertain the claim or not.

Once extradition procedures are in train, they develop a momentum of their own. The accused is not allowed to challenge the substantive merit of the case and instead is confined to procedural issues: that there was, say, some technical flaw in the extradition request, that the judicial system of the requesting country is incapable of providing a fair hearing, or that the crime for which the extradition is sought is not treated as a crime in the country from which extradition has been requested -- thereby conceding much of the merit of the charge. Meanwhile, while these claims are being considered by the judicial system of the country from which extradition is sought, the accused remains in some form of detention, possibly for years. Such procedures provide an opportunity for political harassment long before the accused is in a position to present any defense. It would be ironic if a doctrine designed to transcend the political process turns into a means to pursue political enemies rather than universal justice.

The Pinochet precedent, if literally applied, would permit the two sides in the Arab-Israeli conflict, or those in any other passionate international controversy, to project their battles into the various national courts by pursuing adversaries with extradition requests. When discretion on what crimes are subject to universal jurisdiction and whom to prosecute is left to national prosecutors, the scope for arbitrariness is wide indeed. So far, universal jurisdiction has involved the prosecution of one fashionably reviled man of the right while scores of East European communist leaders -- not to speak of Caribbean, Middle Eastern, or African leaders who inflicted their own full measures of torture and suffering -- have not had to face similar prosecutions.

"U.S. Policy Regarding the International Criminal Court". Congressional Research Service. 29 Aug. 2006 - The ICC’s flaws may allow it to be used by some countries to bring trumped-up charges against American citizens, who, due to the prominent role played by the United States in world affairs, may have greater exposure to such charges than citizens of other nations.

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