Herewith, Neel Krishnaswami's bill of particulars against the International Criminal Court. [--Patrick]

First off, the most useful webpage about the ICC is, unsurprisingly, its UN homepage. The text of the treaty establishing the ICC, "The Rome Statute of the International Criminal Court", can be found at:

http://www.un.org/law/icc/

This just establishes the ICC. The description of what it actually does is in the "The Rules of Procedure and Evidence", which can be found at:

http://www.un.org/law/icc/statute/rules/rulefra.htm

The Rules are fairly tedious legalese, but for all that they are clear and readable. In fact, they are clear enough that I can go through my list of objections and connect them to the portion of the Rules that spells it out.

* It does not guarantee a right to a speedy trial.

Pre-trial restraint is covered in Rules 117-120. Someone detained by the ICC may, once every six months, make a request to be released pending trial, but the Court is under no obligation to grant it, and there is no limit to how long the prisoner can be detained before trial.

* It does not have any rules against double jeopardy

See Rule 150. The prosecutors can appeal an acquital. This is just broken.

* There are limited protections against self-incrimination.

Rule 74 permits the Court to compel witnesses to give self incriminating testimony, if it promises to keep the testimony secret, including from the defense. I think this manages to simultaneously get the worst of both having and not having the equivalent of 5th Amendment protections.

The ICC:

* permits secret trials,
* permits the use of anonymous testimony and hearsay evidence.
* restricts the rights of cross-examination and of defendants to confront their accusers.

Most of these fall out of Rules 81 and 8 --most of the rules of Chapter 4 of the Rules of Procedure have explicit exceptions for Rules 81 and 82.

The intent of these rules is arguably noble: the Court has broad powers of secrecy in order to protect victims from reprisals or public humiliation. But the effect is that the judges have enormous powers to keep most or all of a trial secret, and there is no way to appeal that decision. Furthermore, not being able to see all the evidence against greatly hampers the ability of the defense counsel to provide a competent defense.

There is absolutely no protection against a corrupt or incompetent trial chamber, and worse still the prosecutors and judges work together as part of the same institution. This makes the risk of institutional groupthink or an old-boy's-network forming between the prosecutors and judges very intense. (I'm especially worried by the fact that there will be lot of political pressure to convict, particularly since you pretty much have to fight a war to bring people in.)

It also does not have jury trials, as verdicts are rendered with a majority vote of the judges.

Cases are decided by a tribunal of 5 judges, of whom 3 must vote guilty for a conviction. While you can make the case that "a jury of peers" doesn't make sense for a war crimes tribunal, I think that at a minimum a unanimous vote for conviction should be required.

Finally, I think you can make a strong case that it's unconstitutional for the US to sign onto the ICC. The legal protections it offers are substantially less thorough than what our own Constitution demands, and signatories must make the ICC the court of last resort. (There's some language that it doesn't preempt national courts, but that's neutralized by the fact that the treaty (correctly) makes clear that you can't "immunize" your nationals by (forex) passing a law making ethnic cleansing legal.) Since a treaty can't preempt Constitutional protections, that means that we can't legally turn American nationals over to the ICC, as we would be obligated to do. That conflict means we can't sign onto it.

Thanks for the information. Though I'm a supporter of international institutions in principle, the details matter. I would prefer the US become more involved in reshaping these things, as with Kyoto, but one wants our international organizations - Trade, Financial, and Justice - to conform to democratic principles.

Seing things from a very special portuguese point of view, I think that opinions like those cannot be defended by the ones who want to lead mankind.

Who would that be, I wonder?

Several of the things described here (tribunals of judges instead of juries, restrictions of cross-examination, no prohibition against 'double jeopardy' and so on) reflect the fact that this court is designed more along Continental lines than Anglo-American ones.

Most people grow up, in the UK and the US both, with huge faith in the merits of adversarial courts with peer juries, despite their obvious fallibilities. I am sure the European model isn't perfect either, but as far as I can tell it doesn't produce a greater number of poor decisions.

Let's look at some of the things above. Restricting rights of cross-examination and of defendants to confront their accusers? This right was restricted in the UK after a series of cases where rape defendants acted as their own advocates and spent days or weeks questioning their victims in great detail. I think the Government was right to restrict that right, and there are many other examples where there is no free right of cross-examination.

The entire principle of cross-examination assumes an adversarial approach, too.

No prohibition against double jeopardy? Well, why on earth shouldn't acquittals be appealable, apart from the fact you were told as a child it was a terrible thing?

And so on.

I personally haven't been debating whether the Continental court model is a "terrible thing." I have been questioning whether the United States would benefit from joining an institution based on it. The best argument I've heard in favor of our joining the ICC is the one articulated by Gary Bass in The New Republic, to which I linked in this post.

I am pretty strongly in favor of things like the right of a defendant to confront their accusers, and in fact one of Alison's own sentences illustrates exactly why this sort of legal punctiliousness is important:

"This right was restricted in the UK after a series of cases where rape defendants acted as their own advocates and spent days or weeks questioning their victims in great detail."

I doubt I was the only reader to notice that Alison's "defendant" was invisibly transformed into a convicted criminal ("their victims") between the beginning and end of this sentence. Our minds work like this. There's a powerful inclination to believe that if someone's on trial, they must have done something wrong. What Alison calls the "adversarial" aspects of Anglo-American jurisprudence evolved as ways of compensating for this.

"Why on earth shouldn't acquittals be appealable, apart from the fact you were told as a child it was a terrible thing?" Because the state should not have the right to keep prosecuting someone over and over again for the same claimed offense until they secure a conviction. Because the power to prosecute, being one of the state's gravest powers, must be limited. Because unlimited power corrupts. That's why.

It could be that, as Alison suggests, I only think this because of what I was "told as a child." Though exactly what Alison knows about what I was told as a child is another question. What I remember being told as a child is that the American way of doing things isn't always necessarily superior, and that I should think for myself rather than uncritically accepting the claims of propagandists. I've tried to do just that. If this isn't evident to Alison despite several years of friendly acquaintance, I am grieved, but I can't imagine what more I could do to change this state of affairs.

Not having read the entire text of the rules of evidence of the ICC, I can't respond to the entirety Neel Krishnaswami's "bill of particulars."

But I will respond to one: that the protections against self-incrimination are too modest. For one, Rule 74 does not say that the evidence is not to be disclosed to the Defense. It says the evidence will not be disclosed to the the public or to any State.

Rule 74 also says that the self-incriminating evidence cannot be used against the witness except under Article 70 and 71, which relate to perjury and misconduct before the court. So the person being compelled to testify under what is basically an immunity deal. No problem here. People are compelled to give otherwise self-incriminating testimony under these conditions all the time. Think Monica Lewinsky.

Of course, the self-incriminating witness is not only under jeopardy from prosecution, but from whatever state he or she committed the crime. But the ICC cannot grant grant immunity from prosecution in an American court, for example. So what do the rules do? They say that the testimony must be given in camera and it cannot be disclosed to the public, and the record is sealed.

Somebody appears to be confused. Because the Rule says the evidence is to be confidential, Krishnaswami seems to think that means the defense doesn't get to see the evidence.

Rule 74(7)(c) says that the Chamber shall "specifically advise the Prosecutor, the accused, the defence counsel...of the consequences" of breaching confidentiality. Why must it be necessary to prevent the defense from disclosing evidence it has never seen? Obviously because it has seen it.

Right to a speedy trial. It is true that the Rules do not "guarantee" a speedy trial.

Article 60 does require that the ICC ensure that a person is "not detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor." The Court is required to consider Article 60, and may consider releasing a person with or without conditions. In practice, there probably no difference from US procedure, since prosecutors can delay trial for a long time, so long as the delay is "excusable." Prosecutions can easily go beyond a year or two before going to trial while defendants remain in custody, despite the guarantees regarding bail. It is not unheard for defendants spend more time in jail awaiting trial than they faced as a maximum sentence for their alleged crimes. In practice, the ICC procedure will be little different.

Article 67 provides that defendant has a right to a trial "without undue delay."

It also provides that the trial be public. Granted, there is latitude for a tribunal to close the trial to the public for the protection of witnesses and/or evidence. But that is not a qualitative difference with American practice. It may, in practice, be a matter of degree if at all. Trials are sometimes closed to protect witnesses, for example in Mafia trials, or to protect young victims of sexual abuse. There are rape shield laws that protect the identity of victims from the public. Are these extraordinary situations in American practice? Of course. But we must remember that the ICC is designed to prosecute crimes that are themselves extraordinary. The same concerns about the witnesses and the sources of information that rarely arise in ordinary criminal prosecutions are likely to arise far more frequently in ICC ones. That does not mean that the ICC is not protecting due process. What is important for the sake of this argument is whether US courts will act the same way as the ICC under the same extraordinary cicrumstances. My feeling is that that difference, if any, will not be significant. I doubt Krishnaswami can answer that question.

As for the restriction of the right of cross-examination, I can't help but point out that the right in rape cases has been significantly curtailed here.
I don't know about the specific restrictions that are thought to be reprehensible, but has anybody noticed that it is no longer permissible in US federal court for a rape defendant to question the alleged victim about his/her prior sexual history? Certainly that's a restriction that on the right to cross-examine, yet, again what is important is the degree to which the ICC would depart from American practice-at least if we are going to make the argument that what's wrong about the ICC is it's total lack of protections for defendants.

These would all seem to be reasonable points.

I'm still a little stuck on a basic question, which is: why should we trust a "world" body to reliably operate within post-Enlightenment standards of justice, when we've recently seen similar "world" bodies so disgracefully hijacked by obvious injustice? Note that I am not saying any of the following:

* that there's no good answer to that question;

* that the operation of our own system never yields injustice; or

* that we should never join international bodies so long as cultural differences and disagreements exist.

I am saying, though, that I have a lot of doubt about the usefulness of "international" bodies such as this, right now. And that, at the moment, such doubt is by no means confined to the sorts of Americans who always oppose international agreements. Do not confuse doubt with final rejection; but don't think that mere appeals to abstract internationalism, or to arguments based in "what-makes-you-think-you're-so-great," will cut a great deal of mustard. The point-by-point approach used by Phil is useful and informative, and it'll be interesting to see what anyone else has to say.

I fear I am expected to explain every word I use. Please trust I use them with the sorts of levels of care appropriate for the form of writing (ie, more careful than notes to the milkman and less careful than notes to the Big Head Boss Chap.) An example; I used the word 'victim', because the defendants in question were convicted. If they hadn't been, I would have chosen a different word.

Meanwhile, you write, quoting me: ' "Why on earth shouldn't acquittals be appealable, apart from the fact you were told as a child it was a terrible thing?" Because the state should not have the right to keep prosecuting someone over and over again for the same claimed offense until they secure a conviction.' Appeals processes are limited; they don't amount to 'prosecuting someone over and over again'. Nor did I suggest that this would be a good idea. Aren't you playing with words in exactly the way you suggested I did?

My comment wasn't in response to your writing, but to someone whose comments showed exactly no sign of ever having entertained the possibility of justice being fairly administered in a way different from the system he was used to. Example: describing the possibility of acquittal appeal as 'just broken'. It might not be to his personal taste, but it's not necessarily unreasonable. It might be unreasonable, but we can't tell from the information here.

And that 'you' should have been a general 'one'; I struggled immensely with the European court structure, European legislation, and (particularly) the way that case law develops in Europe, because my ingrained sense of How These Things Work was challenged at every stage. What little understanding of European law I have is almost entirely civil law, but there are things about it that still feel utterly alien to me.

I didn't mean to suggest that you were brought up to accept notions uncritically -- I know that's not the case. I was, though. Didn't stick.

Alison, I hope you don't feel too put upon, but you asked "Why on earth shouldn't acquittals be appealable?" I answered by citing the sort of abuse that a principle of unappealable acquittal is meant to forestall. You now respond that "appeals processes are limited" and suggest that I'm "playing with words." I'm sorry, but your original question wasn't "Why on earth shouldn't aquittals be open to prosecutorial appeal, within some reasonable limit?" Had you asked that, I would have said "Because it's unfair to individuals to let the government have multiple cracks at them, even if it is a supposedly limited number of cracks." Yes, I do think that, as a principle, it's "broken", which is to say, fundamentally unconducive to freedom and fairness. I don't think it makes any society that practices it into a complete tyranny overnight; note that I would also be happy to describe capital punishment as "broken." But I certainly don't agree with your view that calling it "broken" demonstrates that the speaker has failed to consider alternatives.

You are making the perfectly reasonable point that the Anglo-American system isn't necessarily the summum bonum of all things juridicial. And I agree. And yet there really are distinctive aspects of American (and, as you know, Bob, British) law and practice that did in fact come into being for good reasons, often in reaction to the abuses to which "Continental" systems, with their magistrates and prosecuting judges, can at times be prone. I am suspicious of American exceptionalism and I am not part of the beat-up-on-Europe faction of the blogoverse, but I do think that one ought to be able to profess a strong preference for our standards of evidence, proof, etc., without having to defend one's self against charges of simple dim provincialism.

You may not have seriously meant the suggestion that I or anyone else only think what we think because we were raised to think that, but borderline-snide imputations like that have become, I'm sorry to say, habitual in the way intelligent Brits and Europeans argue with their American friends and colleagues. To the point where the Europeans don't see it. Yes, I'm generalizing; I'm generalizing just as much as you folks, including the nicest of you, generalize about us. It gets to the point where Americans feel that by the time we've finished proving that we're not a bunch of ignorant provincials, we're too tired to actually have a discussion of the facts.

Actually, I think the British, on the whole, are rather more defensive about their court system than the Americans, and with no more cause (and probably less).

I'm sure I'm as capable of talking down to Americans as the next person, but (a) I don't have the faintest idea whether the correspondent who started this thread was American, and certainly didn't assume that he was, and (b) no one nationality has any sort of monopoly on believing that their system is better than the alternatives.

Your general point is fair. It's certainly true that many Brits spot the weirdly provinical aura of many US writers and thinkers, and assume either that all Americans are like this all the time, or that because the writers show little understanding of other cultures, they are unperceptive in other matters.

And, as with any prejudice, when British writers demonstrate little-Englander tendencies(have you been reading Matthew Engel's series of dreadful pieces poking fun at perfectly ordinary bits of Americana?) we tend to say 'oh, that's just an isolated case, we're all terrifically cosmopolitan as a rule.'

But I think in this case, you're imputing a form of abuse that I wasn't indulging in. Which doesn't mean I won't do it some other time, and feel free to call me on it.

Oh, okay, fair enough.

Regarding the Matthew Engel series in the Grauniad: yes, I've read some of them, and they've been the occasion of quite a bit of mockery over here. James Lileks wrote a rather funny takedown of one of them that was linked to by about nine zillion bloggers. God knows, of course, that American journalists write equally lazy things about foreign countries frequently enough; indeed, Lileks' own piece begins with a pastiche of just such a typical thumbsucker.

When I first read Patrick's comment to Alison, I had a reaction similar to Allison's: The right to appeal an acquital is not, on its face, absurd. Under US law, the ways in which court cases can be appealled are relatively limited, and almost always are related to abuses of court procedure or questions of the validity of the laws applied in the case. Under such a system, I think that appeals of acquitals *might* sometimes be reasonable; judges do incredibly stupid things, and I don't think that the plaintiff in criminal cases (i.e., thee and me) is always well-served by this lack of ability to point this out to a court of appeals.

(Of course, the possibility exists that a prosecutor in such a system will appeal an acquital on no particularly good grounds precisely to bring a case to trial repeatedly, trying to punish the person for being innocent. I think that there might be ways to safeguard against that.)

Then I read the section on the appeal process for the ICC, and I noted that, at least as presented, the Appeals Chamber has no limitations. They could, as nearly as I can tell, reverse an acquital on grounds of "this person is clearly guilty and needs to be re-tried until you get it right". Such a system is, indeed, wide open to the worst kind of double jeopardy abuse, and I would opposed such a system until the nature and jurisdiction of the Appeals Chamber was far better defined.

It also seems to me that in the type of cases the ICC is likely to hear, it's a fair bet that if the prosecutors can't get a conviction on the first try, they're not going to get it ever, so the idea of appealing acquitals has a second big strike against it.

There is an aspect of the kinds of cases the ICC is likely to hear (as Kevin put it) that perhaps makes a fundamental difference to how just the rules under which the ICC would operate are (I haven't decided for myself):

If the ICC is limited to trying people for war crimes, then cases will be brought only when national legal systems are unable or unwilling to prosecute. In these cases, the defendant may have the full support of the state on behalf of which war crimes were committed. In that case, the defendant is fairly powerful and the ICC may be quite weak in comparison, having no standing army and no authority to prosecute a war, or even a police action, to hale the defendant forth, protect witnesses, compel disclosure of evidence or testimony, etc..

Thinking about the situation in the framework of a court that only has the power of the UN behind it, a lot of the issues with the powers and procedures of the court make sense (although they may not be a justification): not the absence of a jury (though some nations seem to treat juries as suspiciously as we treat panels of judges), but the secret testimony, right of the prosecution to appeal, and a limited ability for the defendant to request release as the court tries to get its case together in the face of opposition from a country the size of, say, Yugoslavia.

On the whole, I find the Statute of Rome pretty scary and don't like the exceptions to "good justice" that others are complaining about. I am not convinced that it will only be applied to people rightly accused of crimes against humanity. The overview section points out that Trinidad and Tobago were looking for an ICC to prosecute some-drug crimes, for example. I'm even more frightened by the fact that the US has had secret testimony and disguised witnesses, abrogation of the right to speedy charges and a trial, the right to strip a defendant of assets which may be requried to pay for a good attorney, and the right of the prosecution to appeal its defeats for some time now, largely under the umbrella justifications of the war on some drugs and to "protect the children."

The other things is that what we have now, in place of an ICC, and what does that look like to the rest of the world? Nations invade other nations or would-be nations, take away the accused, and deliver them up to some other nation's courts (e.g. Noriega, tried in the US) or an ad hoc tribunal (e.g. Milosevic). The people in the nation of origin of the accused and allied countries often have little or no faith that the accused is not effectively convicted before he's tried, that the relevant circumstances will be fully explored, or that a trial will even really be held.

Arrest by the "international community" is not so much better: as the background to the ICC points out, ad hoc tribunals are not satisfactory as a means of administering even-handed and consistent justice.

I think that the world can use something like the ICC, a tribunal established through a process that all UN members, at least, can feel they helped shape and which they might come to regard as a trustworthy forum for the determination of fact. If I could trust the ICC to restrict itself to prosecuting "warlords" and officers of their respective states charged with active and direct crimes against individual human victims, I might find it an improvement over having nations or small groups of nations planning and acting against people who aren't their citizens, subjects, residents, or otherwise participants in their national social contracts.