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
Court's jurisdiction covers acts on or after 7/1/2002.
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] .
"[T]he enjoyment of property [lives, liberties, and estates] is very unsafe, very insecure."(76)
(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
(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)?
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
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] ).
[WJT1]as of Feb. 2012; 60 ratifications in April 2002 triggered the statute, effective 7/1/2002
[WJT4]Mayerfeld ICC Web site
[WJT8]M 109-111; note on our discussion of robust MORAL rights of self-determination.
[WJT9] M 111-114
[WJT10]M 113; Judge Balthazar Garzon.
[WJT13]Read Mayerfeld 95; the annual immunity which was not renewed after Abu Ghraib;
Vonnegut 35-150,000 dead
[WJT18]1994 Smithsonian Enola Gay controversy; Paul Tibbets, pilot of the Enola Gay died in 2007.
[WJT19]Chris Smith M 119; John Bolton M 120; "Fog of War" McNamara and Curtis LeMay. Vonnegut survived Dresden in an underground meat locker.
[BT20]US received UN waiver of ICC in 2002 and 2003. Not renewed in 2004, because of Abu Graib revelations in April of that year.