Hanns Schmidt

[busybody..]

You have lost your FASTBALL

You are a FLUFF poster

You are a junkballer

You are like everyone else on this pathetic site

All Cock and Pussy an Bull Shit all the time

What happened to you?

Someone put panties on you?

SISSY!

 

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[busybody..]

Your panties to tight?

Sweete?

 

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yoursig

 

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[busybody..]

There are some issues on which there can be no compromise. An honest government will recognize them and dig in its heels when they are brought up, and will quite properly ignore international pressure about them.

The United States cannot and will not compromise on the International Criminal Court. Commentary from various European governmental representatives and blathering heads are, for the most part, talking around the reason why. Either it's because they're disingenuous or because they truly don't understand us and our system. For instance, the BBC comments:

To its European and other critics, United States opposition to the Court seems to be based on a fundamental unwillingness to limit American sovereignty in any way.

That makes it sound like we're petulant children unwilling to compromise because we're stupid, ignorant and stubborn. (Where have we heard that before.) Sorry, but it's much deeper than that.

We keep running into this. Again and again, in international treaty negotiations, the Europeans would come up with some grand idea for a treaty clause which had the slight flaw that it violated the US Constitution. They'd then apply pressure to the US to agree to such clauses, and US negotiators would refuse, and the US would get denounced for being stubborn, unilateralist, not a team player. Never mind that stupid Bill of Rights; it's just a piece of paper. National charters are a thing of the past, obsolescent; we're moving past that into postmodern internationalism and trying to form a world confederation, and the only way we can do it is if every country gives up its own sovereignty and becomes part of that process. Now, are you going to play along, or what?

And the answer is, invariably, "or what". No, we're not going to play along. For instance, there was a treaty on biological weapons and part of the enforcement provisions for it would have granted international monitors the right to go anywhere they wanted, to search anything they wanted, any time they wanted, without producing any kind of probable cause or getting any kind of search warrant. The principle is understandable, but it runs right smacko up against the 4th Amendment prohibitions against "unreasonable searches and seizures". The US Government itself doesn't have the ability to look anywhere it wants anytime it wants, and it isn't capable of granting that right to international monitors, either.

There was also a treaty being negotiated about the Internet. One of the provisions of it would have forced every nation to honor online content limitations of other nations, and to enforce their laws. This is basically the Yahoo-France problem: Yahoo had material on its web site in the US which could be accessed from France and which was illegal under French law. A court there tried to issue an order to Yahoo in the US forcing the material to be taken offline. Under this treaty, such a court order would have been binding. It also would have violated First Amendment provisions on free expression, and would have permitted any signatory government anywhere in the world to impose any controls it liked over everything posted online by any American on servers located in the US, as long as that other government could demonstrate that the content could be accessed through the net by its own citizens in violation of its own laws.

The US negotiators made very clear: they could not agree to such a provision because of the Bill of Rights. The US refused to ratify the agreement (it wasn't even signed or proposed to the Senate), and there were yet more accusations against the US of not playing along, of unilateralism, of being self centered, of preventing progress, and on and on. It's like a broken record.

Let's see: there was also an attempt at an arm's control treaty which would have violated the Second Amendment's prohibition against infringement of our right to keep and bear arms. (That one's a favorite whipping boy of foreigners.) And there's the International Criminal Court, which violates Article III, Section 2 of the Constitution.

This keeps happening. The problem is that in Europe their Constitutions are all relatively recent (if they have Constitutions at all) and they are set up in such a way that they can be changed rather easily. Usually all that's required is a legislative measure which may require some sort of super-majority. They do not understand what the US Constitution means to us; they think that we can just ignore it or modify it as necessary, and that we should do so in order to be team players.

What we're running up against here is extremely deep philosophical differences about government itself. The entire American system is based on the assumption that governments can't be trusted, and that unchecked power will eventually be abused. Our entire system is based on the principle of having checks in place to prevent that from happening. Everything in our government is accountable to the people, either directly or indirectly. And no single power in the government is ever unchecked; everything has limits.

"Checks and balances" isn't just a phrase; it's the basic philosophy behind our entire political system. Those limits on governmental power are spelled out in our Constitution, and its primary job is to limit what government can do. Power ultimately vests in the people of the United States, and we grant to our government only such powers as we think it absolutely needs in order to do the job we want it to do. Everything beyond that we keep for ourselves.

That applies to our courts, just as much as to everything else. All state judges must stand for election on a regular basis, even state Supreme Court judges. If they abuse their power or if they are incompetent, they will not be reelected. Federal judges do not stand for election and they hold their positions for life, but they must be nominated by the President and must be approved by the Senate, and if necessary they can be removed from office by impeachment by the House and trial before the Senate (which has happened many times).

And the Second Amendment provides the ultimate check on government by guaranteeing that the citizens of the United States will always have the means available to implement violent revolution if the government goes completely out of control.

This fundamental distrust of government is not a passing fad. It's not Bush cowboyism. This goes back to the founders and it has been a fundamental part of American politics for the entire life of the Union. And we're not going to give it up now, just to play along.

And if we distrust our own government, we damned well distrust international agencies even more. At least with our own government checks are in place, but with all these international institutions, we citizens of the US would have to grant power to them over us without any commensurate responsibility by them to us, or ability by us to change them if they overstep their bounds.

The one argument that Americans will never accept with respect to any governing body anywhere is to give it power, and trust that it won't be misused. All power will eventually be misused; it's only a matter of time. The reason we remain free is because in our system such grants of power are never unconditional or irrevocable.

The United States will never grant sovereignty to any external court which does not answer directly to the people of the United States. The government of the US cannot sign any treaty which creates such a court, and it cannot accept jurisdiction by any such court. This is based on the most fundamental principles we hold sacred about our nation and the relationship between its citizens and its government. We will never give this up.

Never.

The Europeans counter that such worries are silly. The ICC won't actually be used to persecute American soldiers or politicians; provisions are already in place to protect against that. Besides which, the elder statesmen who will be involved in it will make sure of that. Trust them; it will be OK.

The actual principle to which they refer is more or less summarized thusly:

The International Criminal Court will prosecute those responsible for genocide, crimes against humanity, and war crimes, but it will step in only when countries are unwilling or unable to dispense justice themselves.

See? No problem. As long as the US keeps its own house clean, the ICC won't step in.

No, not exactly. The key word in there which is causing the problem is "unwilling". What the government of the US has been claiming is that enemies of the US will use the ICC to try to persecute American soldiers or politicians frivolously as a way of getting revenge. Given that we're the top dog, the strongest nation, the one a lot of people resent, there are bound to be such cases.

So suppose that one of our enemies claims that something done by the US which we consider a legitimate act of war is rather a "war crime". The US looks at the claim and decides that it's ridiculous, and refuses to even consider investigation.

Bang! The US is "unwilling" to investigate or prosecute, and now the ICC has jurisdiction. It can, in principle, order arrests, confine those who are captured, try them and sentence them (in actuality or in absentia) all without any consent or control by the US.

"Trust us. We'll make sure it doesn't happen. You don't need to worry; the prosecutors at the ICC will make sure that such cases are ignored." Sorry, the whole point is that we don't ever trust governmental agencies. We insist that there be checks on any such function and that they be directly answerable to us, and this court would not be.

Anyway, the record so far doesn't lend much comfort. The case that makes clear our misgivings is where the Belgian government got too big for its britches and decided that it would pass a law granting Belgian courts the right to try any human rights case anywhere. Guess who was almost the first one indicted under that law: Ariel Sharon. The case was brought by his enemies among the Arabs. After years of litigation and a decision by an EU body that the Belgians didn't actually have the right to pass such a law, the court eventually backed down. But during that entire time, in principle if Sharon had visited Belgium, the court there could have ordered him arrested under the indictment.

The European attitude about the ICC is to assume it will run smoothly until proved otherwise. The fundamental American attitude toward all governmental power is to assume that it will eventually be abused unless explicit checks are in place to guarantee otherwise.

And the checks which are in place are not adequate. For instance:

Cases can be referred by states that have ratified the Rome Treaty, the U.N. Security Council or the tribunal's prosecutor after approval from three judges.

The Security Council also has the power to suspend an ICC investigation or prosecution if it believes it could obstruct its efforts to maintain international peace and security.

Yes, the US is a veto power in the Security Council. But if an American were wrongly indicted by the ICC and the US wanted to use the Security Council to prevent a trial, it would have to get a resolution passed by the SC. The US could not use its veto to prevent the trial, but any of the other veto powers could use theirs to force the trial to continue.

That's the fundamental philosophical problem here. There's also a serious constitutional issue involved: the US cannot ratify this treaty unless it passes a Constitutional Amendment. Congress does not have the power to override the supremacy of the US Supreme Court, not by law and not by treaty.

The European response to that ("Just ignore it") doesn't fly. Our government doesn't work that way. And we're not going to change it just to make foreigners happy. Again, the BBC comments:

To its European and other critics, United States opposition to the Court seems to be based on a fundamental unwillingness to limit American sovereignty in any way.

It's more than that: the government of the US doesn't have the power to do so. That's one of those things that we citizens didn't give it permission to do. This is not just a small issue for us; it's the most important thing there is. We govern ourselves; we do not grant governing power to the world or any part of it.

Will the US actually shut down all international peacekeeping because of this? Bet on it. An unnamed "Western diplomat" in Sarajevo is quoted by the AP as saying:

But everything is possible with the U.S. administration. They don't give a crap about peacekeeping.

Not correct. We care a great deal about peacekeeping. But we care a lot more about this fundamental issue. Our rights and our sovereignty (and by that I mean "we" as the citizens of the US, not as our government) are the most important things we own. Nothing is more important.

Nothing.

 

[busybody..]

So What> Who is gonna stop us?

whilst I see your point, the ambit of the US' move is too wide

it gives them a carte blamche to rape, pillage, whatever

and they would get away scot free with it

 

[busybody..]

Article 7 (1) (e)
Crime against humanity of imprisonment or other severe deprivation of physical liberty

Elements

1. The perpetrator imprisoned one or more persons or otherwise severely deprived one or more persons of physical liberty.

2. The gravity of the conduct was such that it was in violation of fundamental rules of international law.

3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct.

4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

Here in the US, one of our most sacred principles of criminal law is that anyone should reasonably be able to determine before committing a deliberate act whether or not it is a violation of the law. The Constitution explicitly prohibits ex post facto laws (i.e. laws which apply retroactively) and there is long court precedent for throwing out laws which are vague and not subject to clear interpretation.

The gravity of the conduct was such that it was in violation of fundamental rules of international law. What in the hell does that mean? How is anyone supposed to know ahead of time just how much "gravity" is allowable? The real meaning of this is that it was sufficiently grave to get the prosecutors at the ICC indignant, probably because some reporter caused a stink leading to international outrage.

Article 7 (1) (h)
Crime against humanity of persecution

Elements

1. The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights.

2. The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such.

3. Such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law.

4. The conduct was committed in connection with any act referred to in article 7, paragraph 1, of the Statute or any crime within the jurisdiction of the Court.

5. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

6. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

Israel is toast. As long as they impose martial law on the Palestinian territories so as to prevent bombing attacks against Israel itself, they'll be in violation of this one, and every complicit member of the Israeli government right up to the Prime Minister could be indicted. Just about five minutes after the machinery of the ICC is in place, expect someone to accuse Ariel Sharon under this provision.

This particular one bothers me a lot. One way or another, I think you can make a case that most governments in the world are violating this one in some way. (For example, British operations in Northern Ireland probably could be prosecuted under this provision.) If this is applied rigorously, the ICC is going to be mighty busy for years.

But it won't be. Another principle of US criminal law is consistent application of the law. It is a valid defense against prosecution to demonstrate that a law is being selectively enforced, and only being applied to certain individuals or groups. It's virtually certain that the "Crime against humanity of persecution" will be very selectively applied. As I read this, for instance, Sharia limitations on activities of women would violate this principle. Think they'll be indicting the King of Saudi Arabia?

Probably not, because of this escape clause:

Since article 7 pertains to international criminal law, its provisions, consistent with article 22, must be strictly construed, taking into account that crimes against humanity as defined in article 7 are among the most serious crimes of concern to the international community as a whole, warrant and entail individual criminal responsibility, and require conduct which is impermissible under generally applicable international law, as recognized by the principal legal systems of the world.

Sharia is certainly one of the "principal legal systems of the world", although it is not held in high regard by those outside the Muslim nations.

Which is why that quaint Sharia punishment of amputation of a hand and a foot for theft also won't be prosecuted, under this provision:

Article 7 (1) (k)
Crime against humanity of other inhumane acts

Elements

1. The perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act.

2. Such act was of a character similar to any other act referred to in article 7, paragraph 1, of the Statute.

3. The perpetrator was aware of the factual circumstances that established the character of the act.

4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

Man, oh man. Talk about a garbage-can rule. This one's a doozie. Who decides what "great suffering" is? (Consider the mental suffering that the French have to put up with because of the presence of McDonald's Restaurants on their soil.)

How about this one?

Article 8 (2) (b) (iv)
War crime of excessive incidental death, injury, or damage

Elements

1. The perpetrator launched an attack.

2. The attack was such that it would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

3. The perpetrator knew that the attack would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

4. The conduct took place in the context of and was associated with an international armed conflict.

5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Again, the problem here is vagueness. The critical problem with this one is the following phrase: clearly excessive in relation to the concrete and direct overall military advantage anticipated. Who decides what is "clearly excessive". (Saying that it is "clear", i.e. "obvious" is, I'm afraid, an example of something which in the US would be considered unconstitutionally vague. It leaves too much to the judgment of the prosecutors to decide what is "obvious" and what is not.)

Why am I worried about this one? Consider the bombing campaign against Serbia. You have to understand that war is the application of force to achieve a political goal. In the case of the American bombing which ended Serbian aggression in Kosovo, what our bombers primarily struck was economic targets: telephone exchanges, power plants, bridges, television transmitters, and so on. The intent was to cause a rising and ultimately intolerable level of physical damage while killing as few people as possible. So these facilities were usually hit in the middle of the night, when there were a minimum number of people present.

That campaign happened before creation of the ICC and the ICC can't prosecute it. But if the ICC had existed then, that campaign could conceivably have been interpreted to have violated this particular rule, and the top officers and politicians involved could conceivably have been prosecuted under it. Maybe, maybe not; the problem would have been who, exactly, decides what was "clearly excessive". I don't think it was excessive, but a prosecutor for the ICC, or someone in the bombed country, might. (It's virtually certain that someone in the country which was on the receiving end of such a bombing would think it was excessive.)

Could this happen in future? You bet. The reason for using this kind of targeting was precisely to keep casualties low. The Yugoslav government (i.e. the Serbs who were still hell-bent on maintaining an empire) eventually decided they couldn't tolerate the level of damage being done, and equally clearly became aware that they were not able to stop it. So they gave in, and we were able to win that war with a very low rate of deaths.

That same tactic could, for instance, be applied (hypothetically) to Saudi Arabia were we to end up in a shooting war with them (which I think is a distinct possibility before this overall war is through). Where they are particularly vulnerable is in sources of water. Saudi Arabia has no important rivers or naturally-renewed sources of fresh water, and they have long since exhausted most of their aquifers (fossil water left over from the last ice age). They now rely heavily on desalinization plants (powered by oil) to create fresh water for their cities. These are easily destroyed and nearly impossible to defend, since they're on the coast. If we wanted to bring pressure to bear on the Saudi government, we might start destroying them, one at a time. They have a certain over-capacity, and it is possible for the population to use much less water than they actually do by cutting back on non-essential uses. A substantial part of their desalinization capacity could be destroyed before it imperiled the population.

This would be an extremely effective way to bring pressure to bear on the Saudi government while minimizing losses. But it also might be interpreted as "excessive damage" under this statute.

Here's one I think is a very good idea:

Article 8 (2) (b) (vii)-4
War crime of improper use of the distinctive emblems of the Geneva Conventions

Elements

1. The perpetrator used the distinctive emblems of the Geneva Conventions.

2. The perpetrator made such use for combatant purposes in a manner prohibited under the international law of armed conflict.

3. The perpetrator knew or should have known of the prohibited nature of such use.

4. The conduct resulted in death or serious personal injury.

5. The perpetrator knew that the conduct could result in death or serious personal injury.

6. The conduct took place in the context of and was associated with an international armed conflict.

7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Among the things that this refers to are the Red Cross and Red Crescent which identify non-combat emergency vehicles, hospitals, hospital ships and other facilities and vehicles which are to be used for humanitarian purposes in a war zone. (The Red Crescent is used in Muslim nations because of the Christian symbolism inherent in the Red Cross.)

There are many cases now documented where the Israelis have searched ambulances marked with the Red Crescent, and discovered that they were being used to smuggle arms, or explosive belts; or to smuggle wanted militants who were not injured out of a zone that the Israelis were patrolling. When the Israelis were operating in Jenin a couple of months ago, they found that hospitals there had been used to store weapons.

Anyone want to bet whether those kinds of things in future would result in ICC indictments? Fat chance. In fact, the Palestinian Authority, and other Palestinian groups, have been routinely committing many of the war crimes described in this document, but there's zero chance of any actual indictments of Palestinians under it. But just watch all the indictments of Israel and various Israeli leaders which are going to pop up.

Article 8 (2) (b) (ix)
War crime of attacking protected objects

Elements

1. The perpetrator directed an attack.

2. The object of the attack was one or more buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives.

3. The perpetrator intended such building or buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives, to be the object of the attack.

4. The conduct took place in the context of and was associated with an international armed conflict.

5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

My problem with this one is that such targets can be "military objectives". First, if there is good reason to believe that the other side is using a hospital improperly in violation of 8 (2) (b) (vii)-4, then during military operations there just isn't time to wait five years for prosecutions to take place. Those weapons are a legitimate military target, and they may need to be destroyed.

But after you've destroyed them, how do you prove they were there? The only evidence that remains is a crater where a hospital used to stand, and now you're up for a war crimes trial.

I also don't agree that historic monuments or religious targets are themselves not legitimate military targets. Remember the discussion above about how destruction of power plants and so on is a way to bring pressure to bear on an industrialized nation without having to slaughter huge numbers of people (such as in Serbia)? Well, when fighting against a non-industrialized theocracy, the threat to destroy their most sacred shrines may well be the only threat to which they'll listen. If, for instance, there's a revolution in Saudi Arabia and extremist Wahabbist elements take control and institute rule along the lines of what the Taliban were doing in Afghanistan, then they won't be impressed by a threat to take out their water supply. Indeed, there are very few threats to which they'll listen, since to them being martyred in the cause of God is a first-class ticket to eternal bliss.

But they'll damned well listen to a threat to destroy the Two Mosques in Mecca, and if destroying one of them can end a war before it is necessary to invade, or to do something much worse (like nuking a city), then in the long run it is merciful.

But it would also be a war crime. Cue the prosecutors.

Article 8 (2) (b) (xiv)
War crime of depriving the nationals of the hostile power of rights or actions

Elements

1. The perpetrator effected the abolition, suspension or termination of admissibility in a court of law of certain rights or actions.

2. The abolition, suspension or termination was directed at the nationals of a hostile party.

3. The perpetrator intended the abolition, suspension or termination to be directed at the nationals of a hostile party.

4. The conduct took place in the context of and was associated with an international armed conflict.

5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Oh, now this is a good'n. You know what it means? If we conquer a nation where Sharia is the law of the land, and refuse to let them practice it any longer, then we're committing a war crime. Marvelous.

Here's another garbage-can:

Article 8 (2) (b) (xx)
War crime of employing weapons, projectiles or materials or methods of warfare listed in the Annex to the Statute

Elements

[Elements will have to be drafted once weapons, projectiles or material or methods of warfare have been included in an annex to the Statute.]

Oh, great. How much you want to bet that they try to use this to ban land mines, cluster bombs, napalm, DU projectiles, and lots of other things like that? And I'll be really interested to see what "methods of warfare" they decide to ban. Just what do they have in mind? On what basis will they be choosing what kinds of weapons will be permitted and which will be illegal from now on?

Given that Russia, China and the US will not be parties to this negotiation, there's a strong sense here of "mice belling the cat", with weak nations trying to use this process to outlaw the weapons that the strong nations have which give them an advantage. Will they ban precision guided munitions? Cruise missiles? Chobham armor? Attacks at night using IR vision equipment against a foe which is not equivalently equipped? Submarines? Any aircraft capable of flying above the reach of anti-aircraft guns? The mind boggles.

And then there's this tribute to Political Correctness:

Article 8 (2) (b) (xxi)
War crime of outrages upon personal dignity

Elements

1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons.

2. The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity.

3. The conduct took place in the context of and was associated with an international armed conflict.

4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Footnote: For this crime, "persons" can include dead persons. It is understood that the victim need not personally be aware of the existence of the humiliation or degradation or other violation. This element takes into account relevant aspects of the cultural background of the victim.

"They're searching our good Muslim women at their checkpoints. Never mind that last week they found that some of them were smuggling weapons under their abayas, we consider it degrading for foreign men to touch Muslim women."

But that's not the least of the ways in which this can be applied. What hostile action doesn't "humiliate, degrade or violate the dignity" of those on the other side? The mere act of defeating them in war is itself humiliation. In fact, bin Laden thinks (or thought [RIP]) that the mere presence of American troops on holy Arab soil was humiliating. And many of the Palestinians consider themselves to be humiliated by Israel simply because Israel exists.

Who decides what is generally recognized as an outrage? (The Muslims? Berkeley intellectuals?) Is having uniformed women serving in your army a humiliation to the other side? (The Muslims certainly think so.) Yet another of those vague phrases which lends itself to highly-biased enforcement.

Article 8 (2) (b) (xxiv)
War crime of attacking objects or persons using the distinctive emblems of the Geneva Conventions

Elements

1. The perpetrator attacked one or more persons, buildings, medical units or transports or other objects using, in conformity with international law, a distinctive emblem or other method of identification indicating protection under the Geneva Conventions.

2. The perpetrator intended such persons, buildings, units or transports or other objects so using such identification to be the object of the attack.

3. The conduct took place in the context of and was associated with an international armed conflict.

4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

The problem here is in dealing with cases where the other side is cheating. If they're using ambulances to move ammunition around, then they are in violation of other provisions of this list of statutes, and the ambulances are legitimate targets even if they sport the Red Cross or Red Crescent. The problem is that if you attack the ambulances and destroy them, you've also destroyed the evidence you can use in your defense when you get indicted under this statute. You can no longer prove that they were violating Article 8 (2) (b) (vii)-4, but they can damned well prove that you violated this one as long as you aren't able to prove their violation.

And woe be to you if 90% of their ambulances carry ammunition, and you guess wrong and hit one of the remaining 10% which was actually being used to carry wounded.

Article 8 (2) (b) (xxv)
War crime of starvation as a method of warfare

Elements

1. The perpetrator deprived civilians of objects indispensable to their survival.

2. The perpetrator intended to starve civilians as a method of warfare.

3. The conduct took place in the context of and was associated with an international armed conflict.

4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

During the early stages of our war in Afghanistan, many people who objected to the war claimed that the US bombing campaign was going to cause widespread starvation among the people of Afghanistan because it would be impossible to move food around during the bombing. This was used to try to justify a demand that the US stop bombing Afghanistan (which, as we now know, would have had the effect of drastically prolonging the war and of massively increasing the number of casualties). Indeed, it was claimed at the time by some that the US was in this way committing a war crime. It's a fine point whether we would have been in violation of this particular rule, because it depends entirely on how you interpret the word "intend".

The American military planners were not trying to stop the movement of food as a primary goal of the bombing campaign, but they knew and accepted it as one of the effects of the bombing and they refused to modify the bombing campaign in such a way as to avoid stopping the movement of food. So is that "intentional"? It depends entirely on how hostile the prosecutors are.

Here's another one aimed directly at Israel:

Article 8 (2) (c) (I)-1
War crime of murder

Elements

1. The perpetrator killed one or more persons.

2. Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities.

3. The perpetrator was aware of the factual circumstances that established this status.

4. The conduct took place in the context of and was associated with an armed conflict not of an international character.

5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

If it were not for the 4th part of this, everyone ever involved in a war would be guilty of a war crime, because the death of any civilian for any reason in the course of a war would be prohibited, and it is not yet possible to fight wars without causing at least a few civilian deaths, unless you use completely absurd tactics which result in huge casualties among your own soldiers.

But even with that 4th part, this still applies to any kind of operation involving insurrection within one's own borders, or, as in the case of Israel, territory whose nationality is legally ambiguous. Technically speaking, the Palestinian territories are currently considered Israeli. They were conquered in the 1967 war, and both Jordan and Egypt have given up all sovereignty over them. There is no formal Palestinian state, so the current struggle between Israel and the Palestinians is arguably not "of an international character" because it takes place entirely within territory which is nominally under Israeli sovereignty.

Which means that if either side ever kills a civilian, no matter why or how, then they are in violation of this statute. However, the problem here is again going to be one of selective enforcement: it's virtually certain that Palestinians responsible for bombings in Israel won't be indicted under this if for no other reason than because it will be extremely difficult to apprehend them or to produce adequate proof of complicity for any kind of fair trial. But when any Palestinian civilian dies then the Israelis involved will have committed a war crime.

And when you're talking about a popular insurrection such as this one, who isn't a civilian? If the Israelis shoot and kill a bomber at a checkpoint before he can complete his attack, isn't he technically a civilian under this statute? He's not a uniformed combatant of a recognized army, so what is he?

But why stop with just banning murder?

Article 8 (2) (c) (I)-3
War crime of cruel treatment

Elements

1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.

2. Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities.

3. The perpetrator was aware of the factual circumstances that established this status.

4. The conduct took place in the context of and was associated with an armed conflict not of an international character.

5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Simply making the Palestinians miserable (causing "mental pain or suffering") is enough. How, exactly, is any nation supposed to operate against internal insurrection without making at least one civilian unhappy while doing so? (For instance, consider the operations in Colombia right now against the FARC.) Naturally, you don't want any government to be deliberately trying to punish random civilians in such a case, but as written this rule applies whether the suffering was intentionally caused or not. And, of course, who decides how much suffering is "severe"?

But forget "severe suffering", just humiliating someone while operating against insurrection is a war crime, too:

Article 8 (2) (c) (ii)
War crime of outrages upon personal dignity

Elements

1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons.

2. The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity.

3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities.

4. The perpetrator was aware of the factual circumstances that established this status.

5. The conduct took place in the context of and was associated with an armed conflict not of an international character.

6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Footnote: For this crime, "persons" can include dead persons. It is understood that the victim need not personally be aware of the existence of the humiliation or degradation or other violation. This element takes into account relevant aspects of the cultural background of the victim.

Marvelous: they don't even need to know about the humiliation for it to be a war crime. We've entered a whole new era: telling demeaning barracks-room jokes about the enemy is now a war crime, as is referring to them with disparaging nicknames. Even if they can't hear it.

Who decides what is generally recognized as an outrage upon personal dignity? Generally recognized by who?

Now it should be clear that what I'm doing is to look for the most pernicious interpretations of these rules. The response from defenders of the ICC would be that my constructions are not how they would actually be applied. But the only guarantee of that is the good intentions of those who serve as part of the court, and there's no way of knowing whether they might end up at least once in a while attempting to enforce one of these rules in an equivalently pernicious way.

"Trust us!", they say. I'm sorry, I'm not a trusting individual when it comes to unbridled governmental or bureaucratic power. Unfortunately, the record on such international organizations acting in a "reasonable" fashion is extremely poor. Shall we go through a list of all the stupid, unreasonable and totally biased proclamations coming out of the UN High Commission for Refugees, for example? Or talk about the wonderfully balanced agenda at last year's UN Conference on Racism held in Durban?

During the initial bombing of Afghanistan last autumn, I'm aware of at least three times where various groups tried to claim that the US was committing war crimes, and under the rules described here, the US could conceivably have been indicted for all three given a sufficient willingness by the prosecutors to look for the appropriate interpretations of these rules.

First, any and all incidental civilian casualties caused by the bombing might have been interpreted as a war crime. Second, the fact that the bombing temporarily stopped the movement of food and humanitarian supplies inside the country could have been a war crime. Third, there was the detention in Guantanamo which, for a while, European governments were condemning as a violation of the Geneva Convention.

The first two won't be but only because they happened before the ICC was instituted, and the ICC doesn't apply retroactively. But since the detention in Guantanamo continues, we may well see it referred to the ICC once they get going. And similar things in future could well land us in court.

Despite what fans of the court think, this is no idle concern, because unlike the Geneva Convention, those who established the ICC have decided that it has jurisdiction over everyone, even those who are not parties to the treaty. The Geneva Convention, on the other hand, only applies to nations which are party to it, and most provisions of the Geneva Convention do not apply even to signatories when they are involved in conflicts with non-signatories.

And here is the real point: I believe that many (not all, but many) of those who are supporting the ICC are lying when they say it won't be applied to the US and to Israel in this fashion. I think that the reason they are in favor of it is exactly that they hope it can be used to bring the US down a notch. There is, here in the US, a strikingly great correlation between those who are in favor of the ICC and those who otherwise profess that the US is too powerful, too influential, consumes too much, does too much, etc. You'll find that most of those who favor the court and think the US should not oppose it are also in favor of the anti-globalization movement, and also oppose all offensive operations by the US military no matter why. You'll find that these are the ones who were the biggest fans of the "root causes" explanation for last September's attack.

I'm supposed to trust the good intentions of these people? Fat chance.