The International Criminal Court should move to Nuremberg

So I’m fed up with the whole pussy-footing, walking-on-eggshells approach to International Criminal Law, as practiced in The Hague. Don’t get me wrong: I’m a huge fan of the ICC.

The problem is the huge, glaring discrepancy between the ICC preaching and practice. We have the ICC pursuing people in Africa and the “former Yugoslavia”. And yet, obvious criminal behaviour – like the whole Baha Mousa disaster – is somehow not within the purview of the Court. Of course, the Statute of Rome specifically says that war crimes should be prosecuted within the court system of the nations that might be implicated. So we’ve seen where that led in the United Kingdom – nowhere. The most obvious perpetrator got a year in jail, and everybody else got a free ride.

He's got a fabulous name, this perpetrator: "Don Payne", The Assistant Asshole to the Asshole-in-Chief. Who knows where he is now? A "private contractor" in Iraq or Afghanistan? Uzbekistan presidential chief of security? An east London hood? The good news is that it’s not over yet.

You know, that’s not the way the Nuremberg Principles were formulated, and it’s not the way the London Charter of 1945 was formulated either. Furthermore, we have the words of Robert H. Jackson to spell out the principles:

"It is much too early to appraise the influence of Nuremberg. But I would disclaim any expectation that it alone is enough to prevent future wars. When stakes are high enough and chances of success look good enough, I suppose reckless leaders may again plunge their people into war, just as men still resort to murder, notwithstanding the law’s penalty. But I do think that we have forever laid to rest in the minds of statesmen the vicious assumptions that all war must be regarded as legal and just, and that while the law imposes personal responsibility for starting a street riot, it imposes none for inciting and launching a world war."

If there was any doubt about this, Canadian law spells it out further in the Crimes Against Humanity and War Crimes Act of 2000.

Breach of responsibility by military commander

7. (1) A military commander commits an indictable offence if
(a) the military commander, outside Canada,
(i) fails to exercise control properly over a person under their effective command and control or effective authority and control, and as a result the person commits an offence under section 4, or
(ii) fails, before or after the coming into force of this section, to exercise control properly over a person under their effective command and control or effective authority and control, and as a result the person commits an offence under section 6;
(b) the military commander knows, or is criminally negligent in failing to know, that the person is about to commit or is committing such an offence; and
(c) the military commander subsequently
(i) fails to take, as soon as practicable, all necessary and reasonable measures within their power to prevent or repress the commission of the offence, or the further commission of offences under section 4 or 6, or
(ii) fails to take, as soon as practicable, all necessary and reasonable measures within their power to submit the matter to the competent authorities for investigation and prosecution.

Breach of responsibility by a superior

(2) A superior commits an indictable offence if
(a) the superior, outside Canada,
(i) fails to exercise control properly over a person under their effective authority and control, and as a result the person commits an offence under section 4, or
(ii) fails, before or after the coming into force of this section, to exercise control properly over a person under their effective authority and control, and as a result the person commits an offence under section 6;
(b) the superior knows that the person is about to commit or is committing such an offence, or consciously disregards information that clearly indicates that such an offence is about to be committed or is being committed by the person;
(c) the offence relates to activities for which the superior has effective authority and control; and
(d) the superior subsequently
(i) fails to take, as soon as practicable, all necessary and reasonable measures within their power to prevent or repress the commission of the offence, or the further commission of offences under section 4 or 6, or
(ii) fails to take, as soon as practicable, all necessary and reasonable measures within their power to submit the matter to the competent authorities for investigation and prosecution.

Conspiracy, attempt, etc.

(2.1) Every person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection (1) or (2) is guilty of an indictable offence.

Jurisdiction

(3) A person who is alleged to have committed an offence under subsection (1), (2) or (2.1) may be prosecuted for that offence in accordance with section 8.

Punishment

(4) Every person who commits an offence under subsection (1), (2) or (2.1) is liable to imprisonment for life.

Application before coming into force

*(5) Where an act or omission constituting an offence under this section occurred before the coming into force of this section, subparagraphs (1)(a)(ii) and (2)(a)(ii) apply to the extent that, at the time and in the place of the act or omission, the act or omission constituted a contravention of customary international law or conventional international law or was criminal according to the general principles of law recognized by the community of nations, whether or not it constituted a contravention of the law in force at the time and in the place of its commission.
*[Note: Section 7 in force October 23, 2000, see SI/2000-95.]

Definitions

(6) The definitions in this subsection apply in this section.
“military commander”
« chef militaire »
“military commander” includes a person effectively acting as a military commander and a person who commands police with a degree of authority and control comparable to a military commander.

“superior”
« supérieur »
“superior” means a person in authority, other than a military commander.



So there you have it. Ordinary soldiers are expected to know the difference between right and wrong. Commanding officers are responsible for acts committed by soldiers under their command. The laws concerning prisoners taken in actions “sanctioned” by the United Nations are those of the Geneva Conventions of 1949, which are crystal clear in stating that the “Detaining Power” that takes prisoners is responsible for their care, and in particular responsible for knowing that the care such prisoners receive after transfer to a “Transferring Power” meets the standard of the Third Geneva Convention.

Part II. General Protection of Prisoners of War

Art 12. Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them.

Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody.

Nevertheless, if that Power fails to carry out the provisions of the Convention in any important respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the prisoners of war. Such requests must be complied with.

If you take prisoners, they’re yours. NATO's prisoners in Afghanistan are ours.