Thank you for the useful link. It appears several (but not all) of the things I thought I knew were in fact wrong.
For one thing, amnesty is built into the Rome statute; it could prosecute only crimes committed after its adoption. The ICC would not try Henry Kissinger or Paul Aussaresses.
It does have appeals. Whatever I saw that claimed that it didn't was FUD.
The power-holders behind the court would be a new "Assembly of States Parties," in which each state would have exactly one vote - not the General Assembly or the Security Council.
The one-vote policy would give a decisive advantage to blocs of small states over single, large states like Russia, China, India, and the US. Not surprisingly, lots of small states have ratified, but Russia, China, India, and the US have not (China and India didn't even sign).
(Europe would get to have it both ways by getting N votes even as it begins to act in practice as one federal entity - this would be like giving individual votes to all the states of the US.)
This assembly would appoint judges and prosecutors by secret ballot, so big states couldn't identify their smaller tormentors to pressure them through other means.
The procedural rules and standards of evidence would need to be interpreted by some lawyers to judge them against, say, their equivalents in US and European courts.
The crimes covered are mostly typical war crimes. Interestingly, it includes "aggression" (pending its later definition), taking hostages, hiding behind civilians, and committing broadly defined "outrages upon personal dignity"; and lists drunkenness as grounds for excluding criminal responsibility - quite an invitation to moral hazard (I can just see armies starting to issue canteens of gin).
So what do I think of all this?
What would happen if some big states ratified, and stuck to an intent to avoid prosecution?
Well, the court would immediately turn into a weapon used by small states to counterbalance the power of big ones (except for Europe, which - as noted above - would get to have it both ways.)
The crimes are defined broadly enough that plenty of them get committed in even the cleanest war, war being the dirty thing it is. Big states like the United States (except for Europe, with its N votes) would therefore have to evacuate all foreign military bases and stop fighting foreign wars.
This would strip the United States of the ability to retaliate against or effectively combat small states that send trained commandos into the US mainland for the explicit purpose of killing civilians and destroying civilian infrastructure. Such attacks, now sheltered against retaliation, escalate. Eventually, to save its remaining cities and citizens, the US is left with no choice but to take the desperate and inhumane step of expelling many foreigners to their countries of origin and sealing off its borders. Families are torn apart, the countries of origin reel under the flood of returning expatriates, and world economies and markets tank.
The military withdrawal of big signatories leaves behind a giant power vacuum. Massive wars immediately begin in the Middle East, the Balkans, and Southeast Asia, just in time for many of those unhappy returning expatriates to die in. Europe (with its pumped-up voting power) or better yet, a non-signatory big country, one which (unlike the courageous signatories) feels no obligation to uphold international law, steps in to fill the vacuum. A massive war for control of most of the world ensues, one decisively and bloodily won by Europe or a big non-signatory. Meanwhile, big signatories lurk behind their newly militarized borders, holding off invasion by the new superpower with the renewed threat of a massive nuclear launch.
Uneasy stability returns, with untold millions of dead, thousands of nuclear missiles primed for quick launch, and most of the world under a far worse thumb than that of the United States, with most of the damage ironically concentrated in small signatories.
Conclusion? This court is a great idea, but it's not workable in its current form. Any big country ratifying it would be either suicidal or planning to ignore it despite ratifying, while there would be an irresistible incentive for any big country to avoid ratifying and watch its rivals be the ones who are crippled.
The big-state / small-state problem had to be addressed even by the framers of the US constitution, and the problem there was much smaller than this proposed insane voting parity between China and Luxembourg. It's hard to take seriously an ICC proposal that makes so little effort to address such a massive problem.
Further, even if that were addressed by some careful balancing of powers, the proposal is still worthless because it imposes and enforces no obligations on non-ratifiers! This provides an irresistibly strong incentive for powerful states (not just the US) to avoid ratifying, then fill the power vacuum left by those that did; it basically guarantees that as a universal international institution the proposed court in its current form will never see the light of day.
To function in a reasonable and credible way and end up reducing the crimes of the powerful as well as those of the weak, the proposal would not only need to make a more serious attempt to address the small state / big state problem, but would also need to include some kind of multilateral enforcement against even non-ratifiers, so that even non-ratifiers could be held to account.
After reading this and seeing its severe structural problems, I'm forced to conclude that Clinton signed this thing only because he thought it would look good in the papers and leave behind an unratifiable public relations mess for the Republican (at the time) Senate.
I would really, really like to see an international court capable of deterring war crimes and other inhumane behavior, and there's a lot of good language in the parts of the convention that aren't broken, but in its current form this proposal should not pass.
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