Bill Bartlett wrote:
>
> Martin W. Smith wrote:
>
> >The US Constitution, the preamble of which is shown above, did in fact
> >assert the primacy of [some] international
> >institutions over the thirteen nation states.  So the argument against
> >ratifying the ICC cannot be that proponents want to assert the primacy
> >of international institutions, since the Constitution is based on that
> >very principle.  I suppose that the people in power, who will refuse to
> >ratify the ICC, will do so to maintain their international power, but
> >the support for not ratifying that they derive from the people (who gain
> >nothing by not having the ICC) must be racism.
>
> Whatever the US constitution might say, the individual states of the US
> are no longer sovereign nation states in anything but name. By ceding
> their foreign affairs powers to the federal government, they cede their
> sovereignty.

The point was that *before* the Constitution, the states *were*
sovereign nation states, and that by adopting the Constitution, they
asserted the primacy of some international institutions over their
rights as sovereign states.  That is exactly the process required for
adopting the ICC, so the US cannot argue against it on the grounds that
it requires them to assert the primacy of some international
institutions over its rights as a sovereign.  Of course it does, and the
reasons for doing so are expressed in the preamble to the Constitution.
By arguing that the ICC is not legitimate on the grounds that
international institutions should not have primacy over states rights,
the US is arguing for its own dissolution, which isn't going to happen.

In fact the US states don't cede all there foreign affairs powers to the
federal government.  In particular, you will find that individual states
often send delegations to foreign countries to negotiate business deals,
as do corporations.  The states cede defense and political decisions to
the federal government.

> By the same token of course, the ICC explicitly recognises the primacy
> of national law. The US has first crack at prosecuting US nationals
> accused of war crimes, the ICC only being entitled to exercise
> jurisdiction in the event that the US is unable or unwilling to do so.

...which means the ICC doesn't recognize the primacy of national law for
war crimes.  Also, wars can be intra-national as well as inter-national,
as in Yugoslavia, and intra-national wars can be political, as in China
under Mao.  Let's not kid ourselves.  The US raises a real concern,
IMO.  It's just that the better path is to have the outside world
involved as a third party, just as any court system is involved as a
third party.  The US position is like the retisence of the brutish
husband who refuses to go to marriage counseling because What do those
namby pamby therapists know anyway?

> Since it is obvious that the US is perfectly capable of prosecuting
> war crimes, there seems little doubt that the US government is
> motivated by an unwillingness to prosecute US war criminals. The US
> government is brazenly insisting on its right to harbour war criminals.
>
> But the ICC nations are being pig-headed and insisting that
> international law can't exempt the US from international law.
> One European ICC proponent put it this way: "If the US wants
> to be the world's policeman, it will have to play by the world's
> rules".

But that's ethically correct, if the world can agree on a set of rules.
What is pig-headed about that?  I agree that the ICC should go ahead
with or without the US, but there should be no exemption.

martin

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