Sunday, August 07, 2005

Iraq and the International Criminal Court: Decision Time

This report suggests that the international and domestic human rights groups have turned up the pressure on Iraq's new government to join the ICC. Indeed, this report indicates that the Iraqis drafting their permanent constitution are considering an "international law" supremacy clause that would subordinate domestic Iraqi laws, including constitutional laws, to international treaties, thereby giving institutions like the ICC potentially broad authority if Iraq signs up.

Now the Iraqi constitutional process has lots of different problems, and the role of the ICC and other international organizations is probably not on the top of the list. But it is far from trivial if Iraq signs the ICC treaty, since it will be exposing both U.S. and its own military forces (currently engaged in a desparate anti-insurgent struggle) to oversight by the ICC. This may or may not be a good thing depending on one's faith in the judgment of the ICC, but it is certainly a rather large and dangerous step for Iraq's interim government.

7 Comments:

Anonymous Ross Gordon said...

There are many aspects to constitution writing one of them being a recognition of where writers are coming from, this includes the past as well as the present; another of them being, to where they wish to go, and perhaps most important how they wish or believe they will get there and so some of the isolation of Islam must be included in the constitution and also some of the roads already travelled by others and found to be useful in getting there needs also to be included.
Having stated the above it is clearly also necessary to recognise that getting there to quickly like driving to fast can result in a serious accident and to also recognise that driving an unfamiliar vehicle is also dangerous.
Perhaps the best solution is to take on those aspects if International law that can currently be safely incorporated into the new society that is now being created. There is no country today that can safely exclude interntional law as we are in what is termed a global village and all who live in the village are affected by the laws, rules and customs of the village.

8/07/2005 10:03 AM  
Blogger Peggy McGuinness said...

Julian--

On the question of whether Iraq's accession to the ICC would make US troops vulnerable to ICC jurisdiction, the short answer is no, at least under the current Multnational Force arrangement. See my earlier post on this here:
http://lawofnations.blogspot.com/2005/02/us-troops-in-iraq-likely-out-of-reach.html

Iraqi troops that are actually assigned to the MNF (as opposed to those fighting under direct command of the Iraqi government)might also fall under the exemtion of ICC jurisdiction due to the Security Council Chapter VII mandate for the MNF.

And keep in mind that ICC jurisdiciton is subject to the principle of complementarity.

I have a lot of issues with the idea of a permanent international prosecutorial function. But if Iraq is going to join the community of nations, signing up to the ICC is a relatively low cost way of expressing its commitment to accountability for war crimes and crimes against humanity.

Peggy

8/07/2005 4:41 PM  
Blogger Andreas Paulus said...

Peggy,
I would not be so certain that any of your arguments holds. If there is a SOFA at all, it is questionable whether it could be used before the ICC as long as it is secret and not referred to the UN for inclusion in the treaty series (Article 102 of the Charter). Secondly, the SC resolutions regarding personnel exempted from ICC jurisdiction under Article 16 have lapsed. Absent a SOFA, any exclusion of US personnel is more than doubtful.
Of course, any ICC jurisdiction presupposes the entry into force of the Statute for Iraq. And that may indeed leave enough time for an Article 98 agreement to be negotiated and properly published.
Best, Andreas

8/08/2005 1:25 PM  
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