The Trouble with International Courts

[NewsGuy]

Reading through another thread, I came across this thoughtful statement from @Skogan:

What Israel needs to be careful of is the recent E.U. and world courts. In the U.S., we have started to allow CIVIL LAWSUITS by individuals against countries that repress their right to seek redress there. It the citizen wins, the U.S. freezes the assets of that country and awards it to them. I believe this was done by some Bosnians, and a suit is ongoing with victims of 9/11.
Interesting point, and one which brings to mind the issue of international courts in general, and specifically how they have been used as yet another tool by the Arabs to discredit Israel.

I think that many would agree that the concept of international courts is a good one. Theoretically, those who commit crimes on an international level can be held accountable by a neutral "higher authority" court system.

In practice, there are a few problems with the international court concept:

1. These courts are not really independent. In reality, they are being used selectively as a political tool to settle old accounts. For example, the situation in Bosnia and Kosovo entailed crimes against humanity from both sides, yet only the Serbs are being prosecuted. In this case, the ongoing international prosecution is against Milosevic, because it was he who thumbed his nose at the U.S. and Europe, and this is both retribution for his perceived insolence and to serve as intimidation for those who dare defy the U.S. and EU.

So far, we have not seen any Muslims on trial for the ethnic cleansing they have been attempting against their fellow countrymen for decades, and I believe it unlikely that a significant number of Muslims will appear at the Hague any time soon.

2. The concept of the international courts is similar to the concept of the UN in many ways. The UN has failed miserably since it has been hijacked by third-world and rogue nations, and I would rather see a sweeping reform at the UN before giving a similar body such power over international matters.

3. Again, going back to the concept of selective prosecution, the international court system would literally collapse if all the "bad guys" of the world were to be brought to trial. There are simply too many large scale criminals for the system to handle, and if it won't prosecute them all then it doesn't have the moral authority, IMO, to prosecute anyone.

For example, just prosecuting the brutal regimes of all Arab and Islamic countries would take decades, event though I think there is no denying that these regimes have carried out crimes against humanity, in alarming abundance. If you look at their dictators and at all of their second and third-level chieftains, that is enough to fill the Hague ten times over for the next 50 years.

Instead, I hear talk of the leaders of the Arab and Islamic regimes getting away scott-free, while all they scheme about is how they can maneuver a fake-prosecution of Ariel Sharon to try to pin on him some Arab vs. Arab massacres.

And the Muslim crimes against humanity are just the tip of the iceberg. How about the African and Asian butchers of hundreds of thousands? Sure, a select few criminals are being discussed for prosecution, but there are literally thousands of second and third-level international criminals who are completely off the radar.

In short, I support the concept of international accountability, but justice needs to be meted out equally and not selectively as a political tool, which is the case with the Hague currently.

[Skogan]

There will always be a delicate balance between Individual soverighnty and International law. Just how much control does one want to give an international organization over their country is debated heavily.

Right now, the U.S. gives less control to international organizations then most states. Typically, we sign international conventions, but ensure that they can not be enforced (by law suit) without the U.S. permission. Most European countries don't include that.

The varios different International Courts are only relevant in as much as there is globalization, (from a civil law suit perspective). Without that, they have no jurisdication over other nations. But so long as our (or Israeli) commerce and assets are there, they have jurisdiction over that. This is the scenario I could see coming to pass:

Palestinian: " We come before the court to seek justice. The nation of Israel has wrongfully taken our property against International law and standards."

Court:"Why should we allow a civil lawsuit for an international dispute?"

Palestinian: "The world ask the Palestinians to refrain from violence in our quest for justice. We agree, and have put down our stones and bombs."

(applause)

Palestinian: "So now we will resolve our disputes in a civlized manner. In a court of justice, to be tried by neutral and detached magistrates. We will accept the rulings of the court, whatever they may be. You should encourage disputes to be settled in this fashion, if you deny us the right to settle it with force"

Court: "But shouldn't this action take place in Israel?"

Palestinian: "The Israeli's are our oppressors. As such, the relief we seek comes directly at their expense. It flies in the face of reality to believe the occupied can get justice from their occupier. If you seek to have disputes settled in a non violent fashion, you must allow a forum for redress."

Court:"But we have no power to compele Israel to act."

Palestinian:"True enough, but you do have power over all Israeli activities in your jurisdiction. Therefore you have the right and the power to determine who has the just claim to them. Additionally, you have the power to place tax upon all goods coming into your jurisdiction. These will be more then adequate to make us whole."


After that, your just a few Amnesty International reports and U.N. findings away from a verdict in favor of the palestinians, enforceable by sizure of assets in E.U. and taxes upon Israeli imports.

Right now, the families of 9/11 are in U.S. court trying to recieve compensation from the frozen Iranian assets, contending that they were co-conspirators in the wrongful death of their spouses. The outcome of this is still uncertain, and depend largely on the whether the U.S. will quash the action. They did allow civil suits in the U.S. against Yugoslavian officials, even though there was no connection between either party and the U.S., except the holding of assets in country.

I'm not sure about the jurisdiction of E.U. courts. But it is not a stretch to see them allow civil suits against sovergn nations, with the justification that they are providing courts of law as an alternative to war.


Skogan

[takeo]

"In short, I support the concept of international accountability, but justice needs to be meted out equally and not selectively as a political tool, which is the case with the Hague currently."

I agree, but that means israel- and US-officials can be indicted too.

[NewsGuy]

Originally posted by takeo
I agree, but that means israel- and US-officials can be indicted too.
Yes. One standard of justice for all.

But you know, if all international criminals, including the leaders and chieftains of all brutal regimes and the heads of all governments which engaged in any armed conflict (innocent people are always hurt) are all put on trial and incarcerated, here's what we will find: The UN will be empty and there would be no more governments left standing. It would take an area the size of Lichtenstein to build a jail large enough to house them all.

Unified International law and justice is a nice concept, but our civilization is not yet ready for that.

[NewsGuy]

Originally posted by Skogan
I'm not sure about the jurisdiction of E.U. courts. But it is not a stretch to see them allow civil suits against sovergn nations, with the justification that they are providing courts of law as an alternative to war.
Great post, Skogan. Very cool!

Well, civil suits are a big issue. But the realism in your example is that there would be a biased court influenced by Amnesty International and the UN, which are two organizations with a history of bias against Israel.

If there was to be a neutral international court, though, the outcome would be different, becasue there would be counter-suits entertained.

For example, Israel could sue the Palestinians for all the damages caused to Israel by decades of terrorism and war. Then, Israel could sue all the invading Arab countries for damages, as well as damages incurred as a result of official and unofficial embargoes. And then Israel would sue all Arab countries for the land and other property of Jews who were natives of those countries and who were robbed and expelled by the Arabs.

By the time those lawsuits would be resolved, Israel would be rich enough to buy enough Microsoft stock for all its all citizens to retire comfortably in Miami Beach.

[takeo]

don't count on it, because Palestinians would sue israel for all their lost properties, for the decades of occupation and destruction, for every palestinian who was killed by the IDF, also Libanon would sue israel for all the damages it caused in libanon and decades of occupation of southern libanon, Egypt would sue israel for the invasion in the 50's and 1967, I think Israel would be bankrupt.


" Yes. One standard of justice for all.

But you know, if all international criminals, including the leaders and chieftains of all brutal regimes and the heads of all governments which engaged in any armed conflict (innocent people are always hurt) are all put on trial and incarcerated, here's what we will find: The UN will be empty and there would be no more governments left standing. It would take an area the size of Lichtenstein to build a jail large enough to house them all.

Unified International law and justice is a nice concept, but our civilization is not yet ready for that."

i agree it's very idealistic and in the current conditions quite unrealistic, yet this should be the ultimate goal.

[Mediocrates]

Originally posted by takeo
"In short, I support the concept of international accountability, but justice needs to be meted out equally and not selectively as a political tool, which is the case with the Hague currently."

I agree, but that means israel- and US-officials can be indicted too.


Your words betray you. You want revenge, not justice.

[takeo]

no, I really want justice, revenge is blind and generally targets the wrong persons (many people here you included want revenge against all Palestinians, no justice)
Justice means also that all sides are persecuted for the same crimes and get the same punishments, if they are American, Arab or israeli doesn't matter, nobody can be above the law. (yes also Sharon and Arafat should be sued if they committed crimes)
I agree with newsguy that the international court of The Hague is quite biased. (no persecution for NATO-leaders, no persecution for KLA-terrorists who killed civilians)

[Mediocrates]

"don't count on it, because Palestinians would sue israel for all their lost properties, for the decades of occupation and destruction, for every palestinian who was killed by the IDF, also Libanon would sue israel for all the damages it caused in libanon and decades of occupation of southern libanon, Egypt would sue israel for the invasion in the 50's and 1967, I think Israel would be bankrupt. "



Once again your words betray you. You state categorically that Israel should and would lose. Which kind of defeats the purpose of due process, no? I guess courts to you mean little more than show trials. Well, one would figure....

Maybe having a kangaroo as the judge and some wallabies in the jury box and printing out the verdict 15 days before a trial is held is what goes for justice where you live. Thank god it's not where I live.

.......wait wait let me guess, the US legal system is a corrupt evil slavery machine and only the French got it right...

Every time you slather for the death of Israel it just gets more crystallized for the rest of us here.

[takeo]

No, i just said that if israel could sue the Palestinians for this and this reason, the palestinians could sue israel as well, and because palestinians suffered more than Israel, israel would have to pay more.

I don't want a kangeroo-process, that's more something you guys would like to see for "Arafat and his thugs" (you condamned him already), or maybe the kind of process the al-quaida members will have, in military courts... or the show-trial Noriega got...
I'm talking about a real civilian internationl court where all parties are treated equally, Sharon as well as bush as Arafat and others, no one above the law.

the US legal system is more fair than in most countries around the world, yet it's a fact that the more money you have, the better lawyers can convince the jury. (O. J. Simpson...)
here in France it is the same problem, yet in most cases your lawyer is paid by the state.

[Skogan]

I don't see a court that is so powerful that it would be able to indict Bush, Blair, or any of the major world powers. The power of a court is limited to its ability to enforce its mandates. There is no way that, in a criminal context, the major powers in the world would delgate that authority to a foreign power. Hypocritical? Maybe, but to enforce it, you would have to be willing to attack the U.S., or Britan, or wherever. So international criminal courts will remain a tool to distribute justice to the poorer, less powerful countries in the world. With that limitation in mind, you can decide if it is a good thing or not. Is it worth having, if you can only enforce its verdicts against the less powerful? I say yes, and even less powerful nations would probably agree. There citizens are the prime beneficiars.

In a civil context however, major world powers may be more vulnerable to an international courts power. Its much easier to enforce a civil fine then a criminal one. We are all subject to global trade, especially the world super powers. It is easy enough to create tarrifs against an isolated offender if need be. That country doesnt have to agree to be subject to the courts decision for it to feel its effect. And you can't make someone trade with you by bombing them. So civil law suits stand a better chance of providing global justice to smaller countries. (Of course, it will be hard to get a loan at the world bank after that, I suppose.)

As far as U.S. courts go, there are a lot of things wrong with the U.S. legal system. People who say it is the best system in the world have never studied others, not in any depth anyway. But in criminal courts, money isn't as much of a factor as you would think. First, 90 percent of cases are plea bargined. That doesn't cost a whole lot. Futher, you can predict the sentence a person will recieve 85 percent of the time if you know what the charge was, prior offenses, and if there was a victim. The difference a lawyer makes in that process is minimal. People who spend a lot of money on a lawyer end up getting about what someone who gets a public defender would. Evidence makes more difference then the cost of a lawyer. It does make a difference in really complex cases, where there is a need to call many expert witness, but those aren't as common.

Most of our problems come from outdated laws and court decisions that turn the search for truth into a sporting event. The exclusionary rule, right to remain silent, etc. are our sacred cows that you wont find in most other advanced legal systems. They in no way contribute to our pursuit of justice, but we are so used to them, it seems like hearsy to argue against it.

Skogan

[takeo]

maybe you are right about the american justice system.

about the international court i agree with most what you said, except: if states and leaders can't be persecuted by the same standard, i prefere no international court at all but instead as you said "in a civil context"

However anc international world-court can be enforced if all states in the world agree to cooperate with this world-court and make it superior to their own legal system. as long as many states, and especially the most powerfull, do not agree to cooperate with this, it doesn't make any sence.

[Mediocrates]

Originally posted by takeo
maybe you are right about the american justice system.

about the international court i agree with most what you said, except: if states and leaders can't be persecuted by the same standard, i prefere no international court at all but instead as you said "in a civil context"

However anc international world-court can be enforced if all states in the world agree to cooperate with this world-court and make it superior to their own legal system. as long as many states, and especially the most powerfull, do not agree to cooperate with this, it doesn't make any sence.

What does a legal verdict accomplish that mutually agreed upon sanction does not? Do you propose to arrest everyone a-la Milosevic and put them in the dock and more or less decide for everyone who runs a country and who does not? Barring that, what is a plausible verdict and what does ir represent? Another footnote to long list of 'fair' UN resolutions you can point to? Unless you're prepared to topple governments. Of course you can only execute your judgments on countries willing to participate.

It's a little like tax laws. They're great for people who pay taxes and are meaningless for people who are totally off the grid.

So we would construct a mechanism where only the worst of the worst are immunized from prosecution. I can't imagine you arresting the president or Syria or an Iranian mullah. What you're left with is some kind of show trial against everyone else.

[takeo]

"What does a legal verdict accomplish that mutually agreed upon sanction does not? Do you propose to arrest everyone a-la Milosevic and put them in the dock and more or less decide for everyone who runs a country and who does not? Barring that, what is a plausible verdict and what does ir represent? Another footnote to long list of 'fair' UN resolutions you can point to? Unless you're prepared to topple governments. Of course you can only execute your judgments on countries willing to participate. "


well, it all depends what we understand under an international court. In that case the Geneva-conventions and un-resolutions would be binding for all particiâting countries. Governments not willing to participate can be legally punished by embargo etc. (this can be included in the legal system), pretty much as happened with Yougoslavia, but than on the condition of course that the court is fair and all parties receive equal judging, witch is currently not the case.
however i doubt that the court would ever be able to persecute for example the US-president. if those top-guns remain untouchable but only governments or leaders of small countries can be persecuted, than the court is totally baseless of course.
The only garantee for justice is if all countries agree beforehand to accept to cooperate with the tribunal.

Mutually agreed upon sanctions can be a method of pressure but are very selective, the countries with most economic power as the US or China will be untouchable by such a system.

"So we would construct a mechanism where only the worst of the worst are immunized from prosecution. I can't imagine you arresting the president or Syria or an Iranian mullah. What you're left with is some kind of show trial against everyone else."

i think the president of syria in any system would have a far bigger chance of standing trial than the president of the US, because Syria can easily be pressured to cooperate, the us can not.

[Skogan]

However anc international world-court can be enforced if all states in the world agree to cooperate with this world-court and make it superior to their own legal system. as long as many states, and especially the most powerfull, do not agree to cooperate with this, it doesn't make any sence.

That, of course, could not occure in any of the Islamic theocracies. The rational of their legal system is that it is proscribed by Allah. There can be no man law greater than it, it can not be subordinate to any other legal system. They often do not enforce international treaties for this very reason.

Your general point that we could have an international criminal court that applies civil sanctions is noted. However, the very distinction between civil and criminal courts is the sanctions they can enforce. A criminal court that is limited to civil sanctions is just a civil court. (Criminal courts grant greater constitutional rights in the U.S., but that is a safety mechanism because the sactions are greater.) Both make it illegal to murder, one provides a jail sentence for its infraction, the other monetary compensation.

I think a criminal court COULD be useful, even if its jurisdiction is limited to less powerful countries. Certainly, not if their conflict is with the U.S. or china, but in other matters. Milosovics trial, for example, is useful, even if the same trial couldn't have been enforced against Stalin. If one tribe in africa commits genocide against another, justice still could still be provided there, regardless if it will be in other area's of the world. The people of the smaller despotic countries benefit from an international criminal court, even if it is not evenly applied around the world.

I'll use the O.J. case as an anology: If the rich can sometimes get away with murder while the poor can not, does that mean we should not have murder trials?

Skogan

[takeo]

Well ok, i got your point, however in the case of O.J. simpson, the ones that will escape from justice are few and are lucky, on international level the most important states will escape from justice, and can use the court as a political tool.
For example the The Hague-tribunal, Milosevic stands trial, but NATO and the UCK are not. i don't think it can be called justice if only one party gets persecuted, in that case it is better to "forget and forgive" as happens in South Africa or Northern Ireland. That's at least my opinion.

I think here in Europe we don't have the division between criminal and civil court, our justice-system is based on the code Napoléon.

You are right of course about the theocracies, they will never accept a higher jurisdiction not based on the sharia, so any higher jurisdiction will have to be enforced.