International Enforcement of Human Rights: Humanitarian Intervention

The history: Iraq (1991), Somalia (1993), Haiti (1994), Rwanda (1994), Bosnia-Herzegovina (1995-96), Serbia (1999), Afghanistan (2001-), Iraq (2003-2011), Libya (2011).

International Enforcement of Human Rights: The International Criminal Court

Statute creating the ICC has

139 Signatories and 120[WJT1] Ratifications.

Court's jurisdiction covers acts on or after 7/1/2002.

First Judges Elected Feb. 2003[WJT2] . Elected by Assembly of State Parties (one country, one vote).

Court Began Work in Summer 2003.

Court to have jurisdiction over war crimes, crimes against humanity, and genocide that are committed by a citizen of a ratifying state or that occur in the territory of a ratifying state[WJT3] . (Also, the U.N. Security Council can initiate a prosecution.) Jurisdiction is prospective, not retroactive.

Will have jurisdiction over crimes of aggression:

When at least 30 States Parties have ratified the definition of aggression proposed by a review committee in 2010 and when a decision is taken by two–thirds of States Parties to activate the jurisdiction at any time after 1 January 2017.

Pre-Trial Judges (typically, but not always, in groups of three) determine whether to commence an investigation and oversee pretrial proceedings. Trial Judges in groups of three conduct trials and determine guilt or innocence. A group of five appeals judges hears and decides appeals[WJT4] .

Principle of Complementarity[WJT5] .

The International State of Nature: The State of Nature Between States, Not Individuals[WJT6]

Why, according to Locke, will people in a State of Nature consent to limitations on their rights required to a democratic government[WJT7] ?

"[T]he enjoyment of property [lives, liberties, and estates] is very unsafe, very insecure."(76)

Three reasons:

(1) lack of an "established, settled, known law."(77)

(2) lack of a "known and indifferent [impartial] judge."(77)

(3) lack of enforcement power.(77)

Locke's insight: The Problem of Partiality of Judgment.

Did all three of these conditions apply in the international state of nature before the ICC was established?

Mayerfeld's Review of the Four Alternatives for International Enforcement of Human Rights

(1) Non-Enforcement (Absolute Sovereignty[WJT8] )

(2) Anarchic Enforcement (Universal Jurisdiction [WJT9] ). The example of the Pinochet indictment in Spain[WJT10] .

(3) One-Sided Or Unidirectional Enforcement (Security Council Prosecutions[WJT11] ). The U.S. as "beneficent world sovereign[WJT12] ." This is the position favored by the U.S.

(4) Collective Enforcement. Symmetrical (rather than one-sided) enforcement in a court of democracies. The ICC.

Why did the U.S. oppose this alternative (and why does it continue to do so)?

THE U.S. OPPOSITION TO THE ICC[WJT13]

1. the danger of politically motivated prosecutions

Why would a body made up of almost all of the world's democracies be politically motivated to prosecute the U.S.? Consider how impartiality is protected by the way that judges are selected and how judicial decisions are made.

2. due process and jurisdiction

The State Parties are generally the rights-respecting governments of the world.

3. no Security Council oversight

No US veto.

The international state of nature is not a problem for the U.S. Why? A democratic international tribunal would limit the unilateral use of force by the U.S.

4. the unstated concern: The specter of Dresden[WJT14] , Tokyo[WJT15] , Hiroshima[WJT16] , and Nagasaki[WJT17] [WJT18] [WJT19] .

The ICC represents the idea that war criminals should be punished on both sides.

The U.S. response: American Servicemembers' Protection Act of 2002: bars U.S. participation in peacekeeping operations in countries that have ratified the ICC; cuts off military aid to countries that have ratified the ICC unless they promise not to apply the law to US citizens; and authorizes military action to "extract" US service members taken into the court's custody (Mayerfeld, p. 95[BT20] ).

Should the U.S. ratify the ICC statute?

Will the U.S. ever ratify the ICC statute?