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from the streets of canada. joint operation to rule the day. we need to. go and welcome the crosstown 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 fun 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 e. 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 at sea legs we know that it's only delivered one verdict so far i would say that one verdict. certainly met the our expectations of a fair trial and 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 i can 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 ok george you want to feel the same question. yes i don't think there's any evidence it's 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 he was jumped in and rushed out indictments of gadhafi 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 gadhafi and his son has committed war crimes yet in the case of iraq. the previous special prosecutor moreno ocampo had declared out the three is that the crimes in iraq had not reached the threshold of gravity to warrant an

investigation so it's clear that that it's not delivering impartial justice and it's very unlikely to deliver impartial justice given the that it's serving as an adjunct to nato and 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. 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 of 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 urge 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 and doesn't necessarily impugn the quality of the justice that the i.c.c. is dispensing what i think it does it redoubles the necessity for the i.c.c. to emerge as a court which deals with. human rights abuses in war crimes in theatres all over the world not simply those in africa but the but aren't there you see it in that direction. and 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. 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 so in that case the i.c.c. when europe and not just in africa ok but judge 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 whereas

the nato allies largely either not been indicted or how do we know are they ready to go 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 of sulphide said that 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 laurent 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 forced the just the false claim i mean they haven't tried it . which was always that's not what i said. but the majority of the. difference is quitting the jury or an acquittal most of them had a. leaders to milly's days then lead on a reasonable animals and then there's a little way you should have. if i could please finish what you said if i'm sure i'm 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 a quit it is not an example of the failure of impartial justice in fact in many ways it's 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 is going through because you think cases and wrongfully. 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 and case of not so 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 morning and including journalists with scene films of his killing and torturing

people none of them was called by the i c t y and so of course the eyes of us thought 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 imp 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

mis 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 but unpunished but they go unpunished all of the time ok been the i.c.c. isn't doing anything about it. well a fire in iran they will only convert i don't think we can say they go on ok gentlemen we're going to go to a short break on the one hundredth time corralling the 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 day with. the woman. what's makes life complete. knows and a happy family. or self-expression. a call to action. scenes so true to. the little lady's child. you know sometimes you see a story and it seems so you think you understand it and then you glimpse something

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and the thing. is that. welcome back to cross talk about two minds 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. a flawed 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 it 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 who's going to who looks after the united states to make sure it doesn't commit war crimes there is no institution impunity well it will. 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 and is 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 windies 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. using drones while using these drones killing people the u.s. wants to join the i.c.c. george jump in 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. feeding his men with in order to commit rape so yes of course the united states is happy to cooperate when it goes after its adversaries but there is when you look at the united states is it really likely that it's going to accept jurisdiction by an international court when it is reluctant to prosecute its own crimes even in its

domestic courts i mean remember president obama as soon as he was elected and now so we must look forwards not backwards and we've seen that in the cases of torture in which people were killed you know in cia you. the torture first of all the u.s. attorney general announced that so long as you were following 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 to that 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 only here it's not proper for us to. support. you know indictments of gadhafi and bashir and the other ones and not at 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 the 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 they hear one about the illegal alien invasion is very random that went out in support that 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 that 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 things which again in nuremberg it was the crime of crimes there's something aspirational a very attractive about coming along and saying well without 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 it was 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 well it's a political of justice is better than no justice no. 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. 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. the 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 day. 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 the international court of justice that deals with disputes between and among states so this whole concept

but if you know indicting the guiding united states or any other country for war crimes simply because it's telling of a going on the states don't go ahead george. yeah of course there's going all states when they moreno ocampo indicted god does see it in the indict him because he was an individual he indicted him because he was the head of state the same way when the i.c.t. why in diets also if you don't diet him because he's an individual you think diets 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 the state of bosnia and the same thing with the croatian serbs 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 if it had to turn 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 committing 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. balik function again i wouldn't necessarily offer as a prime justification deterrence it might deter 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 have to jump in here we have run out of time fascinating discussion many thanks indeed and my guests in new york boston entropy and thanks to our viewers for watching us here see you next time and remember. you know the only thing. worse for those. white house of a. radio guy. because you've never seen anything like this.

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