hello and welcome to cross town peter lavelle ending international impunity this is the stated goal of the i.c.c. the international criminal court but is it delivering impartial justice to the world the court supporters say after a decade in existence it's too early to say its detractors claim the i.c.c. is racist and hypocritical as well as a tool of the great powers. to cross-talk the i.c.c. today i'm joined by lawrence douglas in chicopee he is a professor of law jurisprudence and social thought at emerson college in boston we

cross to william kaler he is a professor of international relations and history at boston university and in new york we cross to george samuel he is a fellow of the global policy institute of london metropolitan university are a gentleman cross talk rules in effect lawrence if i go to you first is the i.c.c. delivering impartial justice to the world today. i don't know if we can necessarily say it's it's you know this is a fledgling institution which is still getting its sea legs we know that it's only delivered one verdict so far i would say that one verdict met certainly met the our expectations of a fair trial that accorded the defendant due process so i think we have every reason to believe that the court can deliver impartial justice in the future so again i want to emphasize it's still very much an institution that's gaining its sea legs and certainly has certain issues that it's confronting that has to work

through in the years to come george you want to feel the same question yes i don't think there's any evidence at all that the i.c.c. is delivering impartial justice or that we will ever be in a position to deliver impartial justice we saw in the case of libya that jumped in and rushed out indictments of gaddafi and his son within two minutes of within two months sorry of getting a mandate from the security council to conduct an investigation no proper investigation had been undertaken yet he was already in a position to say that gaddafi and his son and committed war crimes yet in the case of iraq. the previous special prosecutor moreno ocampo had declared after three years that the crimes in iraq had not reached the threshold of gravity to warrant an investigation so it's clear that. it's not delivering impartial justice and it's

very unlikely at the delivery impartial justice given the. serving as an adjunct to nato and the united states you're in you're getting a little ahead of me ok ok bill do you want to answer the same question is it is it delivering impartial justice. i mean after all the indictment against africans right now africans only yes that's true we just celebrated the tenth anniversary of the coming into operation of the rome treaty creating the i.c.c. and yet it's still a work in progress i absolutely agree that. every single case has been brought against african. people and therefore it seems as though it really is a kind of almost neo imperial or near or imperialist kind of operation but i think the idea is a sound one and if the other countries of the world that have not joined the

i.c.c. eventually do so and that includes my own country as well as china and india and japan a lot of other very important countries in the world if and when that happens then i think we can move toward a. situation of impartial justice but not until everybody joins and participates ok lawrence if i go to you i mean a lot of people are calling it the african criminal court. yes that's right and again these want to some of the issues that the court confronts i mean on the other hand we should be clear that the african nations themselves were supporters of the court now obviously we've seen some tensions emerge between the african union and the international criminal court the african union has argued that justice actually can be an impediment to some type of peaceful resolution. we've seen

members of the african union urged the i.c.c. to dismiss charges against omar bashir the president of. but the fact that the african nations that a tension has emerged doesn't necessarily putin the quality of the justice that the i.c.c. is dispensing what i think it does that doubles the necessity for the i.c.c. to emerge as a court which deals with. human rights abuses in war crimes in theaters all over the world not simply those in africa but the footprints that you see in that direction is that is the result is united against it it's going in that direction that all any evidence. well i think the evidence would be i mean right now we have ad hoc tribunals that were established to deal for example with. war crimes crimes against humanity genocide in the balkans if such an institution

had not been created on the ad hoc basis by the u.n. security council and had that kind of event unfolded more recently rather than back in the one nine hundred ninety s. i think we would have very much seen that type of dispute being handed over to the i.c.c. so in that case the i.c.c. would have been intervening in a in europe and not just in africa ok but george the united nations security council particularly western powers won't let that happen. no of course not and what we've already seen from those ad hoc tribunals is that the last thing that they deliver is impartial justice and the notion that somehow well there's nothing really wrong with it or that this is a baby steps towards the final goal is an absurdity i mean we've seen in the i.c.t. why. only the so. have been indicted and convicted and where as the nato allies are largely been either not been indicted or how do we know are

they really there it is now at the end i could let me finish please let me finish at the i.c.c. we have already seen the same thing happening where gaddafi was indicted arrest warrants issued there's been no investigation into the crimes committed by gaddafi adversary there's been no investigation into the murder in captivity of gaddafi and there's been no investigation of the war crimes committed by nato and in the end in the case of the ivory coast again the i.c.c. jumped in issued an arrest warrant for the person that was toppled thanks to french intervention in the ivory coast but the people who are now in power in the ivory coast who even the prosecuting insulted said that they had committed crimes none of them had been indicted so it's already clear that it's not at all the minister in any kind of impartial justice warrant you want to jump in go ahead this is crosstown. well first of all the one thing was there was just

a factual claim being made that the only persons that were indicted before the international criminal tribunal for yugoslavia were serbs and that's simply i mean that just historically force that's just a false claim i mean they haven't tried i did. which was i thought what i said. but the majority of the. difference is quitting majority acquittal an acquittal most of them had in the equations and very few of those lives to milly's this case the only reasonable animals and then there's a legal way should have been. if if i could please finish what you said i was. trying to say that go ahead lawrence well you made an incorrect claim at first now you're saying now you're saying in fact these people were indicted tried and acquitted well the fact that someone is acquitted is not an example of the failure of impartial justice in fact in many ways is an example of the success of impartial justice because what that indicates is simply that the prosecutor fail to make his

or her case beyond a reasonable doubt and in fact it is the case that you know when you engage in a trial a trial is not a forum for simply venting political grievances it is a form that requires that criminal guilt be proven and that the very fast of what he was going through he was using cases and wrongfully errors and also he. meant to that was the. georgia reply and i want to go to you don't prosecute cases yes if you don't prosecute cases properly as was the case with nasir already well of course you're going to come to the conclusion that no proper cases been made. the case of nasir orange any number of witnesses who could have been who could have been called by the i c t y as for evidence about his crimes including in general for the including journalists with scene films of his killing and torturing

people none of them was called by the i c t y as of course the eyes anyway said oh well there's not enough evidence to warrant a conviction well if you reject the case then obviously you're going to say in one case yes there's plenty of evidence and in other cases no there's no evidence ok bill i want you to jump in. yes i just want to add it's worth remembering that the entire concept of crimes against humanity and war crimes was created at the end of world war two and the nuremberg trials and the tokyo trials were certainly not examples of impartial justice they were victor's justice the judges all came from the countries that had defeated nazi germany and imperial japan but the him but still we have to recognize that some kind of effort at impartial justice is. is necessary it's not perfect and there are always examples of

this misuse of power but the alternative is to have no international tribunal present to investigate alleged war crimes and crimes against humanity so it's as i said at the beginning it's a work in progress we've got to have more of the countries of the world joining it but. the alternative is just to scrap it and then to allow crimes against humanity and other violent crimes to go on but unpunished but they go unpunished all of the time ok been the i.c.c. isn't doing anything about it. well if i'm going to run and able to convict i don't think we can say they go on ok gentlemen we're going to go to a short break we're going to continue on questions of war crimes committed by the united states and its allies after a short break we'll continue our discussion of the search for international justice

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well come across the time get about three months we're talking about the international criminal court. bill don't you find it very problematic that the united states likes to support the i.c.c. against its enemies but it's not a member of it and will not join it. it's hypocrisy absolutely. yeah. that is a very appropriate allegation of hypocrisy and i have spoken out publicly in favor of the u.s. joining the i.c.c. i think it's outrageous that we claim to be a country devoted to the principles of. vod justice and equity and yet

do not join an international organization. that upholds those principles the i.c.c. was created largely as a result of pressure being brought by n.g.o.s such as human rights watch and amnesty international and so forth. the governments were not pressing the governments were brought into it but the problem is is that many of the important countries of the world the great powers of the world if you will including the united states china japan india and so forth have refused to join and as long as those countries are repudiating the i.c.c. it loses its credibility ok lawrence i mean what do you think about this i mean you've got a who looks out to the united states to make sure it doesn't commit war crimes there is no institution impunity well with. yes i want to see

impunity i mean i do think that you know the united states is a nation of the rule of law and we take that responsibility seriously domestically i agree completely that i look forward to the day that the united states participates in as a member of the i.c.c. i do want to make clear though that there has been a very fundamental shift under the obama administration i mean we should recall that in the waning days of the clinton administration united states did sign on to the i.c.c. in an unprecedented move president bush signed us from the room statute and under the obama administration we've actually been cooperating with the i.c.c. that is very different in the stand it's very different i mean they. are using drones while using these drones killing people the u.s. wants to join the i.c.c. george jumping the united states is more than happy to cooperate with the i.c.c.

when the i.c.c. is indicting and prosecuting adversaries of the united states of course it was absolutely delighted when the i.c.c. took on the case of gaddafi and then issued its indictment of gaddafi without any proper investigation and in due course moreno ocampo put out the most nonsensical propaganda stick statements of the americans such as gaddafi was. torture in which people were killed you know the cia instituted torture first of

all the u.s. attorney general announced that so long as you were following the d.o.j. legal guidelines then torture was fine and then he said well ok we'll investigate some of the people who have gone beyond the guidelines and he went on so that he decided there wasn't really enough of a case to answer so no one has been prosecuted for any of the wars in iraq so how likely is it that the americans will one day wake up and say yes yes we will accept i.c.c. jurisdiction over a possible war crimes bill would you like to reply. but i just absolutely agree that the united states and every other country ought to be required to part to participate in the i.c.c. going to and to support it activities and i fully agree. it's home here it's not proper for us to. support.

you know indictments of gadhafi and bashir and the other ones and not least hold ourselves to the same standard lawrence what do you think about that. yes well i think i'm kind of somewhere between the two positions i agree completely on the other hand i think that for an international criminal court to work there has to be what i would describe as an egregious in a standard built in to prosecutions that is you can't prosecute every single war crime it might be a nice thing to be able to do but i think at some point you have to say there are trepidations that just goo beyond the pale now i actually would argue that with the americans have done do it doesn't necessarily rise to that egregiousness standard for example one thing that you mentioned is the use of predator drones isn't it have hypocritical that he went about the illegal invasion as very random that went out in support that's agree just isn't but there really but for example i mean yes

except that aggression aggression is not a crime that is currently under the jurisdiction of the international criminal court should we might have a grievance shouldn't be there but we can't say that was there criminal action should it be there i personally am not a huge favor of the crime of aggression being something adjudicated before the i c c i think aggression is one of those. in nuremberg it was the crime of crimes there's something aspirational be very attractive about coming along and saying well without a war you don't get war crimes you know crimes against humanity and these other horrible things but the fact of the matter is it is awfully difficult to arrive at a satisfactory legal definition of aggression and i do worry about using the courts simply as a tool to settle political grievances between nations george you want to jump in

there. let's go george you know yes it's very hard to see how. the invasion and destruction of iraq which u.s. government officials i just don't rumsfeld have admitted to cause the death of some one hundred thousand iraqis how that doesn't reach the threshold of gravity to warrant an investigation of this is warranting an investigation it was no investigation. when moreno ocampo was able to declare after two months of what gadhafi did did indeed merit not only investigation but an indictment so it's going to be ridiculous to say well this this doesn't warrant it this does the same with in the case of the ivory coast the crimes of one political leader well these do indeed rise to the threshold of gravity but the equal crimes of the others who happen to be the proxies of france or nato they they they don't

rise to the threshold of gravity i mean clearly it's making these political decisions and so that's why i totally disagree with the idea that. justice is better than no justice no. a hard justice is worse than no justice because hard justice is a mockery of justice lawrence go ahead reply i think church is running together two separate issues i was a very critic and remain of the critic of the original invasion of iraq that is still very different from saying that the invasion is a crime it simply is not at this stage a crime that the international criminal court could consider we have all sorts of reasons to believe that it was an egregious awful ill fated action for the united states to engage it it's still different then calling it a crime now as the destruction of georgia of one hundred thousand deaths he's talking about one hundred he's talking about one hundred thousand deaths

a lot of those deaths the over one. majority was the result of the insurgency with iraq itself now if the united states creek perpetrated unmistakeable war crimes that is not the decision to invade but the way they conducted the war once the invasion took place was a dabbling of you for having some kind of legal response bill you want to jump in there yes importance important to remember that the i.c.c. was set up not to respond to war crimes committed by states but rather to work crimes committed by individuals we already we already had be international court of justice that deals with disputes between and among states so this whole concept of . you know indicting the guiding united states or any other country for war crimes simply because that's how they are going on the state's job go ahead

george yeah of course is going out on stage when the moreno ocampo indicted guy does see it in the indictment because he was an individual he indicted him because he was the head of state the same way when the i.c.t. why indicts also if you don't indict him because he's an individual you think it's milosevic because he's the head of state of serbia and then head of state of yugoslavia say when he indicts. she doesn't indict him as an individual because he's had a slate of bosnian serbs and the same thing with the croatian subs i mean it's totally disingenuous to say that we goes off their individual who are these individuals individuals or heads of state ok lawrence i want to ask another gear before we end the program is it a deterrent to the i.c.c. to people to commit crimes. you think it were it's working. i don't think we. my own view is that international criminal law the justification for the international criminal law is not so much that it deters future leaders for.

similar kinds of atrocities it might but deterrence is a negative effect it's very very difficult to prove it's very difficult to prove even in a domestic law model so i look at the justification for international criminal prosecutions more as a symbolic gesture on the part of the global community that certain acts are just beyond the pale and i think it performs an extremely important symbolic function though again i wouldn't necessarily offer as a prime justification deterrence it might be we simply don't know and the fact of course that the i.c.c. is such a young institution also suggests that if there's going to be any kind of deterrence effect that's likely not to kick in in told it has a much more robust rationale may they have to judge.

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