CentralCaliBike said:
As an aside - your definition of torture might change if you ever watched the Ng tapes (the ones he and his partner made while murdering a number of women).
It's not my definition of 'torture' that matters, it's the legal 'definition' (which is left vague intentionally because it would otherwise entice perpetrators to be creative in their cruel acts to avoid violations of clearly stated methods). The 'legal definition' of torture - as a side note a violation of the provision which can also includes the lesser degrees of inhumane and degrading treatment - is restricted to perpetration by state agents or public officials.
The right is intended as a protection of the individual against the state's potentially pervasive powers.
It is tempting to question your abilities to navigate the internet and assimilate information. If you clicked on the links and actually read you might not have made a statement that anyone here would see is incorrect. The information was in abstract format but it left a clear statement of the research findings.
I usually don't go by abstract, because they are too short to fully comprehend the matter at hand.
Anyway, I still don't fully understand how these sources used in support of your claim that the
ICJ has an agenda and is
political in nature, have any relevance on my argument that
'International Human Rights laws do not cease in times of war', which I was supported by reference to an interpretation of an aspect of international law
in an advisory opinion (which is intended to elucidate the current status of the law, by experts), and which was shared amongst all panel members.
First of all, it seems like a 'poisoning the well' type of argument. Because of the allegation that the ICJ is ‘politicized’ and has ‘an agenda’ (left implicit that ‘being political in nature’ and their ‘agenda’ carries a ‘negative’ connotation, or at least an ‘agenda’ and ‘political nature’ you don’t agree with), everything it does (decisions/arguments) should therefore be tainted?
Then I haven't even begun to ask what ‘agenda’ the ICJ has.
Since we seemed to agree that the US Supreme Court judges also have their cultural/political/economic/sexual etc identities anyone could thus say the same about the Supreme Court. Because of its selection methods and composition, the Court is also 'political in nature' and has an 'agenda' (whatever that means). Should therefore its decisions or its existence even be put into question?
But let's turn to the articles and see what they say exactly:
SOURCE
The success of any court is dependent to a large degree upon its reputation for
impartial adjudication [...] This study examines the
voting behavior of the Court's members for the purpose of determining if the justices have been impartial. The results indicate that the justices have shown a disposition to favor their own countries. This pattern is not related, however, to the importance of the decisions for the countries; the justices do not show a statistically significant tendency to support their countries in decisions of greater national importance.
Rather, the more subtle influence of culturally inculcated values seems to account for the propensity of justices to vote with their own countries, and it is argued that this does not violate the criterion for impartial adjudication
1 - This (as the other articles) talk about bias and/or disputed impartiality. They don't say anything about (secret) agenda's.
2 - I quoted para 25 from an Advisory Opinion, in other words an interpretation of the state of international law. Hence, there was no 'adjudication' and therefore falls outside the scope of this and other articles. (Im)partiality – and a very specific one, namely national prejudice - was only measured in settlement cases, not interpretations of the status of the law.
3 - the last sentence then reveals that even though judges are 'culturally' shaped - similarly to what we agreed upon in the case of the US Supreme Court judges - it apparently does
not violate their impartial adjudication.
SOURCE
[...]We have not shown in a straightforward way that judges are consciously biased. All that we have shown is that the judges, on the margin, do not vote impartially in the manner prescribed by the null hypothesis. The motivation for their votes may be
psychological or cultural ; a judge does not necessarily consciously choose to favor a state that is similar to his or her own states. We also have not shown that judges—consciously or unconsciously— vote in a manner that promotes that strategic interests of their home states; it is possible that the judges vote in a manner that reflects their own psychological or philosophical biases. [...]
1 – The only thing the article seems to confirm is that ICJ judges suffer from the same type of ‘bias’ that apparently affects any judge when they reach conclusions in cases they adjudicate, and interpret the law. They all have backgrounds, or multiple identity(y)/(ies) (national, ethnic, political, social, historical, sexual, cultural, religious etc). On the international level, national bias seems to be overriding, while domestically others prevail.
The evidence also does not prove that the ICJ is dysfunctional […] For our evidence suggests that even nonparty judges would be influenced by legally irrelevant factors
2 – That seems to be obvious, because otherwise one could do away with all Courts. It seems to come down to the question of whether any court and their judges can actually be (perfectly) impartial. No court. or better, their judges seems to be able to leave their identities at the door step of the Court, so why that would carry more weight in relation to ICJ than any domestic Court is puzzling.
3 - Lastly, the ‘statistical claim’ to judicial bias omits actual legal reasoning in unique cases by different national judges over the past 63 years (including a highly politicized Cold War). A judge siding with the US in 1 case in 1946-1954 and another judge in 1954-1963 siding with the US in 15 cases, would prove that the ICJ is biased? Or would that be evidence that one US judge was biased? If the latter, which of the two? Or could we not infer anything at all, because we don’t know what their legal reasoning was?
In general then:
1 – As a Permanent Member in the UN Security Council, the US has had a permanent judge present at the ICJ since 1960. From both articles one can thus conclude that the US judge(s) over the years are biased in favor of the US, in cases where the US was a plaintiff/defendant.
2 - The make up of the current Court is such that 6 (German, Japan, US, France, New Zealand, the UK) out of 15 judges are all from strong (parliamentary) democracies with well established rule of law systems. The articles claim to bias would thus entail that there is a strong likelihood that judges are biased towards these type of States when they are involved in disputes. In a way, the ICJ thus seems to favor (besides Great Powers) democracies with a strong rule of law and a capitalist economy, over small, weak or failed states, with a non-existing or weak parliamentary system, and underdeveloped economy.
Is this the ‘agenda’ and ‘politicization’ you were referring to?
3 - If we grant that ICJ judges are biased in advisory opinions - interpretations of the state of law – because of their identities, it would seem to favor democracies with a strong rule of law. In that case, advisory opinions would only 'reinforce', 'reflect' and possibly even 'promote' what their 'home nations' believe in. Human Rights in general, and more specifically fair trial and a commitment against torture, seem to rank high amongst those ideals.