international human rights1 the un, international and regional human rights international criminal...

International Human Rights 1

The UN, International and Regional Human Rights

• International Criminal Court• ad hoc Criminal Courts• Regional Human Rights Courts

• A New World Order?


The New World Order

“…to establish a new world order wherein the rule of law rather than the law of the jungle will govern the conduct between nations…”


The New World Order

“…to establish a new world order wherein the rule of law rather than the law of the jungle will govern the conduct between nations…”

--Republican President George Bush,

after launching the war against Iraq


• “To hell with international law! You’ve got a choice to make. You’re either for us or against us, and I only hope for your sake you make the right choice.”

The New World Order


• “To hell with international law! You’ve got a choice to make. You’re either for us or against us, and I only hope for your sake you make the right choice.”

• --Republican Senator Alfonse D’Amato

• (New York)

The New World Order


International Human Rights

Outline• International Law and Canons of

Justice




Justice• Significance of the ICC




Justice• Significance of the ICC• Approaches to Human Rights:

– The ICC vs. Human Rights Courts






• The Role and Character of the UN






• The Role and Character of the UN• The ICC vs. ad hoc Criminal Courts



Outline• International Law and Canons of Justice• Significance of the ICC• Approaches to Human Rights:


• The Role and Character of the UN• The ICC vs. ad hoc Criminal Courts• A New World Order?


Origins of International Law

Resolution of Conflict between European Imperial Powers and with Their Colonies

–Oligarchic




–Oligarchic–Plutocratic




–Oligarchic–Plutocratic –Leonine




–Oligarchic–Plutocratic –Leonine

---Mohammed Bedjaoui, President of the International Court of

Justice


Nature of International Law

• Geographic (European Law)



• Geographic (European Law)• Religious-ethical (Christian Law)



• Geographic (European Law)• Religious-ethical (Christian Law)• Economic (Mercantilist)



• Geographic (European Law)• Religious-ethical (Christian Law)• Economic (Mercantilist)• Political (Imperialist)

---Mohammed Bedjaoui, President of the International Court

of Justice


Principles of Jurisprudence• Voluntary Compliance

– Sense of Justice – Democratic Formulation (by

governments)



– Sense of Justice – Democratic Formulation

• Universal Applicability (almost, but not on the territory on non-ratifiers)




• Universal Applicability (almost)

• Uniform Enforcement (promising, within the ratification limits)





• Uniform Enforcement (promising)

• Due Process (extensive, difficult to fault)





• Uniform Enforcement (promising)

• Due Process (extensive)

• Separation of Powers – Independent Court and Prosecutor

[ indicates ICC compliance]


International Judiciaries

• Criminal Law[ICC and ad hoc UN Security Council Courts]



• Criminal Law• Trade Law [Dispute Settlement

Body of the World Trade Organization]



• Criminal Law• Trade Law• Commercial Law [European Court of

Justice; The International Court of Arbitration; American Arbitration Association; the UN Commission on International Trade Law; Iran-U.S. Claims Tribunal; UN Compensation Commission; International Centre for the Settlement of Investment Disputes]



• Criminal Law• Trade Law• Commercial Law • Human Rights [Regional

courts for the Council of Europe, the Organization of American States, and the Organization of African Unity]


International Tribunals

• Criminal Law• Trade Law• Commercial Law • Human Rights• The Law of the Sea

[International Tribunal for the Law of the Sea]



• Criminal Law• Trade Law• Commercial Law • Human Rights• The Law of the Sea• Public Law [The International

Court of Justice]



• Criminal Law• Trade Law• Commercial Law • Human Rights• The Law of the Sea• Public Law • Environmental Law [Chamber for

Environmental Matters of the ICJ]


Approaches to Human Rights

• Preventive, Sustained (Human Rights Courts)

Remedy grievances before conflict escalates.



• Preventive, Sustained (Human Rights Courts)

Remedy grievances before conflict escalates.

• Deterrent, Sporadic (Criminal Courts)

Deter abuses (hopefully) by threat of punishment and retribution.



• Human Rights Courts– Regional Only (EU, OAS, OAU)

– UN Human Rights Court?



• Human Rights Courts– Regional Only (EU, OAS, OAU)

– UN Human Rights Court?

• Criminal Courts– Ad hoc (Ex-Yugoslavia, Rwanda, Somalia?)

– International Criminal Court

– No regional courts


Foundations of Human Rights

• 1948 Universal Declaration of Human Rights




• 1993 Vienna Convention and Program of Action




• 1993 Vienna Convention and Program of Action

• Regional Conventions• Council of Europe• Organization of American States• Organization of African Unity


Foundations of International Criminal Law

• Nuremberg Principles– Genocide– War Crimes children,– Crimes against Humanity[extended to violence against women and

children, including internal violence]




children, including internal violence]• Security Council ad hoc Courts [Violate

Article 2]




children, including internal violence]• Security Council ad hoc Courts [Violate Article 2]

• ICC Statute [by treaty in the absence of a legislature]

– Add Aggression [ > 7 years after definition.]


The New World Order

– An [“Effective”] UN as tool of the U.S. government.


The New World Order


vs.– An “Effective” UN as a Principled

Institution.


The New World Order


vs.– An “Effective” UN as a Principled

Institution.vs.

– An Extra-UN World Order.


A New World Order

• UN Charter Reform Route Closed by Article 108


A New World Order

• UN Charter Reform Route Closed by Article 108• General Assembly Resolution Treaty

Route– Rome International ICC Statute Treaty Conference– International ICC Statute Treaty: Friday 17 July 1998

[Approved: 120, 7, 21, with the U.S. administration leading the opposition of Israel, Iraq, Libya, Mexico...]

– Treaty Revision Conference in Seven Years

• Define Aggression

• Extend Jurisdiction?


International Criminal Court Authorization

Article 95

“Nothing in the present [UN] Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future.”


International Criminal Court

“What the [ICC] conference needs is a visit from a flight of F-18s.”

--Official Pentagon Observer[Craig Turner, LA Times Sunday 19 July 1998]



“Right makes might.”

--Former U.S. Attorney General Ramsay Clark


ICC treaty Plenary Session


ICC Signatory Conference



“There can be no global justice unless the worst of crimes--crimes against humanity--are subject to the

law. In this age more than ever we recognize that the

crime of genocide against one people truly is an assault on us all--a crime against humanity.

The establishment of an International Criminal Court will ensure that humanity’s response

will be swift and will be just.”

Kofi Annan


The UN and the ICC

Article 2

“The Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf.”


Criminal Jurisdiction of the ICC

Article 5

• (a) “The crime of genocide;

• (b) “Crimes against humanity;

• (c) “War crimes;

• (d) “The crime of aggression”

(once a provision is adopted...defining the crime).


GenocideArticle 6

• (a) “Killing members of the group;

• (b) “Causing serious bodily or mental harm to members of the group;

• (c) “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

• (d) “Imposing measures intended to prevent births within the group;

• (e) “Forcibly transferring children of the group to another

group.”


Crimes against Humanity

Article 7

• (a) “Murder;

• (b) “Extermination;

• (c) “Enslavement;

• (d) “Deportation or forcible transfer of population;

• (e) “Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;“


Crimes against HumanityArticle 7

• (f) “Torture;



• (f) “Torture;

• (g) “Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;



• (f) “Torture;

• (g) “Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

• (h) “Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;” [Apartheid, Zionism]



Article 7

• (i) “Enforced disappearance of persons;

• (j) “The crime of apartheid;

• (k)” Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”



Article 7

(f) “’Forced pregnancy’ means the unlawful confinement, of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;”


War Crimes [Article 8]

• (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

• (i) Willful killing;

• (ii) Torture or inhuman treatment, including biological experiments;

• (iii) Willfully causing great suffering, or serious injury to body or health;

• (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

• (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

• (vi) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

• (vii) Unlawful deportation or transfer or unlawful confinement;

• (viii) Taking of hostages.


War Crimes [Article 8]

(b) (viii) “The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.”

[“ Ethnic Cleansing”, Zionism]


War Crimes

Article 8

“2(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any

of the following acts:” [27 items, including conscription of children]

[Legitimizes war by defining rules of engagement.]

[Aggression will be illegal (and still undefined), but not war.]


War Crimes

Article 8

2(c) “In the case of an armed conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949, …”

[Erodes national sovereignty]


War Crimes

Article 9 Elements of Crimes

1. “Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall be adopted by a two thirds majority of the members of the Assembly of States Parties.”

[Legislation by the Assembly of States Parties.

Circumvents the UN and its Security Council!]


Conclusions and Consequences

• Breaks open gridlock in UN Charter.



• Breaks open gridlock in UN Charter.– U.S. government can’t obstruct through the

Security Council.




Security Council.– Extra-UN World rule of law by treaty

statute with multiple legislatures and affiliated tribunals?






– Opening for UN Human Rights Court?






– Opening for UN Human Rights Court? • No more Security Council ad hoc courts?



• ICC respects basic principles. – Expansion of Nuremberg jurisdiction:

• Violence against women and children

• Aggression

• Non-international (internal) conflict

[More specificity is provided in the definitions of crimes. Provision for the definition of the elements

of crime by the Assembly of States Parties.]





• Aggression

• Non-international conflict

– Independent Prosecutor [can initiate investigations to submit to the Pre-Trial Chamber]





• Aggression


– Independent Prosecutor

– Independent Court [9 judges with competence in criminal law; 5 judges with competence in international human rights and humanitarian law]





• Aggression



– Independent Court

– Universal Applicability [almost, except on the territory on non-ratifiers]





• Aggression



– Independent Court

– Universal Applicability

– Major atrocities may receive some attention.

[East Timor, Guatemala, Myanmar, etc.,…]


ICC vs. Human Rights Court

• International Criminal Court

– Only worst, most egregious violations.

– After the fact.– Punishment.– Minimal effect.


ICC vs. Human Rights Court

• International Criminal Court– Only worst, most egregious violations. – After the fact.– Punishment.– Minimal effect.

• Human Rights Courts– Wide mandate (and work load) and preventive

character.– Redress of Grievances.– Preventive.– Large potential effect.


Questions

• Why the enthusiasm for the ICC over Human Rights Courts at the UN level?


Questions


• Why the presence of regional Human Rights Courts instead of Criminal Courts?


Questions



• Why the opposition from the U.S. and a few other governments?


Questions



• Why the opposition from the U.S. and a few other governments?

• How have criminal courts performed compared to human rights courts?