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Tuesday, 06 March 2007 18:20 |
By JIM GENARO
After outlining many of the International Criminal Courtís historical precedents and context at UNC Ashevilleís Humanities Lecture Hall on Feb. 27, lecturer Paul J. Magnarella answered questions about the political challenges now facing the court.
About 40 people attended the talk, which was part of the Great Decisions 2007 lecture series sponsored by the World Affairs Council of Western North Carolina.
ìWould you summarize the U.S. position against the ICC?î a man asked.
ìThe
claim is that you might get some politically motivated prosecutor who
might launch investigations against the U.S.,î Magnarella replied.
However, he
noted that this was not so much U.S. policy, but the policy of the Bush
administration ó President Bill Clinton had supported the creation of
the court.
He added that the U.S. is ìvery reluctant to expose itself to the judgements of other nations.î
The man
responded by saying, ìThe Department of Defense was deadset against
thisî and that American soldiers could be harassed through the court if
the U.S. joined it.
ìTheyíd only be harassed if they committed crimes against humanity,î Magnarella told him. ìAnd they should be.î
ìWhat are the
reasons for other countries not joining?î a man asked, noting that
Russia, India and China were among the nations that had not signed on
to the tribunal.
ìFor Russia, I think itís Chechnya,î Magnarella answered. ìI think crimes against humanity have been committed there.î
Furthermore, he added, China is generally opposed to ìany meddling in its affairs.î
ìIf the U.S. had
been a party to the I.C.C., would the crimes ... at Abu Graib have
fallen under their jurisdiction and also at Guantanamo?î a woman asked
him.
ìPotentially, yes,î he replied, but added the caveat that the U.S. would have had to join prior to those incidents.
He added his
opinion that ìthe torture that went on there would violate the Geneva
Conventions,î but noted that ìour current attorney general thinks the
Geneva Conventions are quaint.î
At that point,
Belk Distinguished Professor Mark Gibney, a specialist in the field of
human rights law, spoke up, noting that the ICC is only authorized to
intervene in cases in which the state where the crimes took place is
either unwilling or unable to prosecute them. In the case of Abu Graib,
some soldiers were prosecuted, so the court could only intervene if a
prosecutor determined that those soldiers were acting on the orders of
superiors.
A man argued that the court could be used to demean the U.S. by falsely accusing American officials.
ìI donít think
that could happen,î Magnarella answered. The judges and prosecutors at
the ICC ìbend over backwards to see that defendants have their rights.
These are people who have devoted their lives to international law.î
A man in the
audience then offered his own opinion, saying that ìanother reason why
the Chinese might be reluctant to joinî is that during the colonial
era, foreign courts existed in China that mostly served to absolve
British and other European colonists of crimes against Chinese people.
ìTheir experience with international tribunals ... has not been a positive one,î he added.
ìWas it a crime against the peace to invade Iraq?î a woman asked.
ìPersonally, Iíd say yes,î Magnarella replied.
He added that
British Prime Minister Tony Blairís chief advisor had told him that
that was his assessment as well, in a secret memo sent prior to the
invasion.
ìPressure was
put on that particular legal council to change his view and once he
did, people under him resigned,î Magnarella added. ìThe foreign
minister resigned.î
ìIím wondering about the implications that the hanging of Saddam (Hussein) has had on international law,î a man said.
Magnarella
replied that Husseinís trial had been a national trial, not one
conducted by an international tribunal, and therfore did not have much
bearing on international law. However, he added, had the former
dictator been tried by the ICC, ìit would have been handled much
better.î
Gibney then expressed concern that the ICC ìwill become an African-only court ó a first-world tribunal against the third world.î
ìThatís how itís looking,î Magnarella replied, noting that so far, only African cases had been tried by the ICC.
ìWho are these judges and how are they chosen?î a man asked.
The judges on
the ICC are chosen by the parties to the statute that founded the
court, Magnarella said. Any country that is a member can nominate a
judge, but that person must be qualified to sit on that countryís
highest court ó such as the U.S. Supreme Court.
ìIs there a process like indictments?î a man asked.
ìYes,î Magnarella replied. ìThere are a lot of checks and balances.î
A woman asked if
any of the people convicted by the Nuremburg Trials was convicted of
crimes of mass destruction against civilians.
Magnarella
replied that some were, as such activities are prohibited by
international laws that outline what constitutes crimes against
humanity.
Included in such
guidelines, are ìany weapon that causes unnecessary suffering,î
including cluster bombs land mines and dum-dum bullets that cause
exceptional pain to their victims.
He added that
the International Court of Justice once gave an opinion that the use of
nuclear weapons constituted a crime against humanity.
However,
Magnarella added, on a one-vote decision the court made a caveat.
Nuclear weapons, it ruled, could only legally be used ìas a last resort
for a state to save itself from utter destruction.î
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