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Debate: International Criminal Court

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What are the pros and cons of the ICC? Should the US and other countries join?

Background and context

The International Criminal Court (ICC or ICCt) was established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression, although it cannot currently exercise jurisdiction over the crime of aggression.
The Court came into being on 1 July 2002 — the date that its founding treaty, the Rome Statute of the International Criminal Court, entered into force — and it can only prosecute crimes committed on or after that date. As of November 2008, 108 states are members of the Court; A further 40 countries have signed but not ratified the Rome Statute. However, a number of states, including China, Russia, India and the United States, are critical of the Court and have not joined. The Court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the United Nations Security Council. The Court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore left to individual states. This debate asks whether the International Criminal Court is a good idea. The debate received renewed attention in the United States, during the 2008 elections, as president Barack Obama has indicated that he may engage the United States in the ICC.

Based on International Criminal Court

Contents

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Stability: Is the ICC a valuable tool in ensuring stability?

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Yes

  • ICC can balance need for justice and practical peace "Justice or expediency in Sudan?; The International Criminal Court". The Economist. 19 July 2008 - "Only this week Indonesia and Timor-Leste published a report blaming the Indonesian army for the atrocities committed in the former East Timor. But, to keep the peace, there is no hint of bringing anyone to trial. None of the big shots who oversaw apartheid ever faced serious punishment. Till recently, dictators who ordered thousands of "disappearances" in Latin America's dirty wars were allowed to slip into easeful retirement. Terrorists in Northern Ireland and Palestine have been forgiven their crimes in return for desisting. Such decisions are never easy: just ask the victims. But the hunger for peace will occasionally trump the appetite for justice if forgiveness and amnesty are the only way to end wars or move societies from dictatorship to democracy [...] Where does that leave the high hopes that accompanied the creation of the ICC ten years ago? Still strong, we believe. Examples of justice denied do not mean that this noble enterprise is doomed to fail [...] A court on its own cannot bring either peace or justice."


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No

  • Case-by-case approach is superior to ICC in crises John R. Bolton. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002 - "it is by no means clear that "justice" as defined by the Court and Prosecutor is always consistent with the attainable political resolution of serious political and military disputes. It may be, or it may not be. Human conflict teaches that, much to the dismay of moralists and legal theoreticians, mortal policy makers often must make tradeoffs among inconsistent objectives. This can be a painful and unpleasant realization, confronting us as it does with the irritating facts of human complexity, contradiction, and imperfection [...] Accumulated experience strongly favors a case-by-case approach, politically and legally, rather than the inevitable resort to adjudication. Circumstances differ, and circumstances matter. Atrocities, whether in international wars or in domestic contexts, are by definition uniquely horrible in their own times and places."


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War crimes: Does the ICC help fight genocide and war crimes?

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Yes

  • ICC is the best tool for fighting genocide and war crimes Roger Cohen. "A Court for a New America". New York Times. 3 Dec. 2008 - "After the terrible decade of the 1990s, with its genocides in Bosnia and Rwanda and the loss there of a million lives while the United States and its allies dithered, it is unconscionable that America not stand with the institution that constitutes the most effective legal deterrent to such crimes [...] The International Criminal Court has filed charges against alleged war criminals in Congo, Central African Republic, Uganda and Sudan since it started work in 2002. The first trial, involving a Congolese warlord, Thomas Lubanga, is set to begin in January."
  • The ICC has proven very effective "Let the child live; International Criminal Court". The Economist. 27 Jan. 2007 - "Aged four-and-a-half, the tribunal is proving a lustier infant than many predicted. Its prosecutors have delved deeply into horrible wars in Congo, Sudan and Uganda. The court's first trial—of Thomas Lubanga, a Congolese warlord, accused of using children as soldiers—is due to start later this year. The first indictments for the mass killings in Sudan's Darfur region are expected next month. Five leaders of Uganda's rebel Lord's Resistance Army have already been indicted. One has since been killed, but the other four face trial when caught. An investigation into atrocities in a fourth, as yet unnamed, country is due to be announced soon."


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No

  • Deterrence theory untenable; ICC will not deter John R. Bolton, Under Secretary for Arms Control and International Security. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002 - "ICC will not help deter the danger of the ICC may lie in its potential weakness rather than its potential strength. The most basic error is the belief that the ICC will have a substantial deterrent effect against the perpetration of crimes against humanity. Behind their optimistic rhetoric, ICC proponents have not a shred of evidence supporting their deterrence theories. In fact, they fundamentally confuse the appropriate roles of political and economic power, diplomatic efforts, military force, and legal procedures. Recent history is filled with cases where even strong military force or the threat of force failed to deter aggression or gross abuses of human rights. ICC proponents concede as much when they cite cases where the "world community" has failed to pay adequate attention, or failed to intervene in time to prevent genocide or other crimes against humanity. The new Court and Prosecutor, it is said, will now guarantee against similar failures."
  • ICC is too ineffective to deter war crimes John R. Bolton. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002 - "deterrence ultimately depends on perceived effectiveness, and the ICC fails badly on that point. The ICC’s authority is far too attenuated to make the slightest bit of difference either to the war criminals or to the outside world. In cases where the West in particular has been unwilling to intervene militarily to prevent crimes against humanity as they were happening, why will a potential perpetrator feel deterred by the mere possibility of future legal action? A weak and distant Court will have no deterrent effect on the hard men like Pol Pot most likely to commit crimes against humanity. Why should anyone imagine that bewigged judges in The Hague will succeed where cold steel has failed? Holding out the prospect of ICC deterrence to the weak and vulnerable amounts to a cruel joke."
  • ICC is only a tool for protecting interests of powerful states. The ICC like the UN security council will become only a tool for protecting the rights and deeds of a few countries. Genocide in many regions is a problem indeed but the war crimes in Iraq and Afghanistan were never discussed in an international forum. Can this ICC actually check war crime in those countries? Obviously no! How can the US, for instance, join a court that will point out its own crimes? Even before attacking Iraq, the UN was made a tool to attack and not a place to have discussions and to avert war. Since its useless to create such a court in which propaganda, lobbying and influence of power will have the major role, the plan should be abandoned.


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International law: Does the ICC advance international law? Is this good?

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Yes

  • ICC advances universal rights and international law Kofi Annan, Former U.N. Secretary-General at the signing of the Rome Statute of the International Criminal Court - "The establishment of the Court is still a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law."[1]
  • ICC courts uphold individual rights and due process Wes Rist. "The Conservative Case for the International Criminal Court Six Years In". Jurist. 10 Dec. 2008 - "Finally, there are some valid due process concerns relating to the operation of the Rome Statute. While the process provisions of the Rome Statute (Article 67, among others) are not exact copies of US constitutional protections, they hardly create the possibility of an unfair or impartial trial. In fact, the rights spelled out for defendants throughout the entirety of the Rome Statute are some of the strongest criminal defendant protections put in place for any international tribunal and they certainly rise to the level of meeting the judicial guarantees provided for by the Geneva Conventions and international human rights laws such as the International Covenant on Civil and Political Rights."


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No

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Historical roots: Does the ICC complete the process initiated at Nuremberg?

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Yes

Judge Philippe Kirsch, President of the International Criminal Court. "Applying the Principles of Nuremberg in the ICC". Keynote Address at the Conference "Judgment at Nuremberg" held on the 60th Anniversary of the Nuremberg Judgment. 30 Sept. 2006 - "I have emphasised how the International Criminal Court is the continuation of the Nuremberg trials. It took nearly fifty years for the Nuremberg participants’ vision of a permanent successor to their efforts to be established. Now, we have that permanent court. The establishment of the ICC is the natural continuation of the Nuremberg legacy."


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No

  • ICC is not historically comparable to the Nuremberg tribunal Gary T. Dempsey. "Reasonable Doubt: The Case Against the Proposed International Criminal Court". CATO Institute. 16 July 1998 - "It is common for proponents of the ICC to argue that it will function like a permanent Nuremberg tribunal.2 In fact, the city of Nuremberg, where 21 Nazis stood trial for their role in the deaths of more than 20 million people, is mounting a serious campaign to be the permanent home of the proposed court.3 Yet according to John R. Bolton, former assistant secretary of state for international organization affairs, the Nuremberg comparison does not withstand close inspection: "Whenever the idea of a war crimes tribunal is raised, Nuremberg is the model invariably cited. But an international criminal court [will be] nothing like Nuremberg."4 Consider how the Nuremberg trials actually worked. They followed the unconditional military and political surrender of the Axis powers. Prospective defendants were already in custody, and extensive documentary and physical evidence was readily available. Moreover, the Allies shared a common vision of what the postoccupation government should look like, and the defeated peoples endorsed the legitimacy of the war crimes process. Simply reciting that history shows how different Germany and the Nuremberg tribunal were from contemporary cases, like Bosnia and the Yugoslavia tribunal."


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Checks and balances: Does the ICC have sufficient checks and balances?

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Yes


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No

  • ICC lacks separation of powers and checks and balances John R. Bolton. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002 - "The American concept of separation of powers, imperfect though it is, reflects our settled belief that liberty is best protected when the various authorities legitimately exercised by government are, to the maximum extent possible, placed in separate branches. So structuring the national government, the Framers believed, would prevent the excessive accumulation of power in a limited number of hands, thus providing the greatest protection for individual liberty. Continental European constitutional structures do not, by and large, reflect a similar set of beliefs. They do not so thoroughly separate judicial from executive powers, just as their parliamentary systems do not so thoroughly separate executive from legislative powers. That, of course, is entirely Europe’s prerogative, and may help to explain why Europeans appear to be more comfortable with the ICC’s structure, which closely melds prosecutorial and judicial functions in the European fashion."


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Universal jurisdiction: Is this ICC principle legitimate?

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Yes


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No

  • Universal Jurisdiction was never a legal principle Henry Kissinger. "The Pitfalls of Universal Jurisdiction: Risking Judicial Tryanny". Foreign Affairs. Aug. 2001 - "The doctrine of universal jurisdiction asserts that some crimes are so heinous that their perpetrators should not escape justice by invoking doctrines of sovereign immunity or the sacrosanct nature of national frontiers [...] The very concept of universal jurisdiction is of recent vintage. [...] It is unlikely that any of the signatories of either the U.N. conventions or the Helsinki Final Act thought it possible that national judges would use them as a basis for extradition requests regarding alleged crimes committed outside their jurisdictions. The drafters almost certainly believed that they were stating general principles, not laws that would be enforced by national courts."
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Jurisdiction: Does the ICC have the right amount of authority/jurisdiction?

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Yes

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No

  • The ICC's authority is vague and over-reaching John R. Bolton. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002 - "As to the former, the ICC’s authority is vague and excessively elastic, and the Court’s discretion ranges far beyond normal or acceptable judicial responsibilities, giving it broad and unacceptable powers of interpretation that are essentially political and legislative in nature. This is most emphatically not a Court of limited jurisdiction. Crimes can be added subsequently that go beyond those included in the Rome Statute. Parties to the Statute are subject to these subsequently-added crimes only if they affirmatively accept them, but the Statute purports automatically to bind non-parties, such as the United States, to any such new crimes. It is neither reasonable nor fair that these crimes would apply to a greater extent to states that have not agreed to the terms of the Rome Statute than to those that have."
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Aggression: Does the ICC have an appropriate definition of "aggression"?

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Yes


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No


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Politicization: Can politicization of ICC prosecutions be avoided?

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Yes


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No


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Servicemen: Does the ICC protect or threaten service men and women abroad?

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Yes

  • ICC helps protect captured servicemen abroad Benjamin B. Ferencz, J.D. Harvard 1943 and a Former Nuremberg War Crimes Prosecutor. "Response to Henry Kissinger's essay 'The Pitfalls of Universal Jurisdiction'." 2 July 2001 - "Kissinger's misperceptions about current international law lead him to the erroneous conclusion that if the U.S. dos not ratify the ICC treaty Americans will be outside its reach and hence protected from malicious accusations. He fails to notice that without the protective shield of binding international law and institutions to enforce it, the military captive is completely at the mercy of his captors [...] Outstanding American international legal experts, including ten former Presidents of the American Society of International Law and the American Bar Association have, after careful study, concluded that it would be in the best interests of the United States and its military personnel for the United States to accept the proposed ICC as quickly as possible. The same conclusion was reached in 2000 by outstanding professors of the Harvard law School after a careful study by leading military and legal experts assembled by the venerated American Academy of Arts and Sciences."
  • ICC can try servicemen only if domestic courts do not Wes Rist. "The Conservative Case for the International Criminal Court Six Years In". Jurist. 10 Dec. 2008 - "The possibility that American servicemen and women and political and military leaders could be held up to scrutiny for their actions is not a new one. It has been enshrined in American law from the foundation of the country under the Articles of War and later the Uniform Code of Military Justice. The ICC merely adds the opportunity for the prosecution of individuals who might have escaped the domestic system of justice. If there is enough evidence that the prosecutor for the ICC could even consider an investigation of a US political or military official for the crimes set out in the Rome Statute, then American conservatives should already have been at the forefront of the call for a domestic investigation. Since the principle of complementarity in Article 17 of the Rome Statute prohibits the ICC from initiating an investigation when a domestic judicial system has already addressed the issue, an American investigation into our own “dirty laundry” would prevent any ICC jurisdiction."
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No

  • ICC puts national servicemen abroad at risk of prosecution President George W. Bush said in the first term of his administration: "The United States cooperates with many other nations to keep the peace, but we will not submit American troops to prosecutors and judges whose jurisdiction we do not accept.… Every person who serves under the American flag will answer to his or her own superiors and to military law, not to the rulings of an unaccountable International Criminal Court."
  • Article 98 agreements help protect US citizens from ICC John R. Bolton. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002 - "As the ICC comes into being, we will address our concerns about the ICC’s jurisdictional claims using the remedy laid out for us by the Rome Statute itself and the UN Security Council in the case of the peacekeeping force in the former Yugoslavia. Using Article 98 of the Rome Statute as a basis, we are negotiating bilateral, legally-binding agreements with individual States Parties to protect our citizens from being handed over to the Court. Since the European Union’s decision in September to permit its member states to conclude Article 98 agreements with the United States, our negotiators have been engaged in bilateral discussions with several EU countries. In the near future we will also be holding discussions on the issue with several countries in the Middle East and South Asia. Our ultimate goal is to conclude Article 98 agreements with every country in the world, regardless of whether they have signed or ratified the ICC, regardless of whether they intend to in the future. These agreements will allow us the necessary protections in a manner that is legally permissible and consistent with the letter and spirit of the Rome Statute."
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Leaders: Is the ICC right to subject all leaders to the courts?

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Yes

  • The innocent have nothing to fear from the ICC. Countries such as the United States have avoided joining the ICC out of concern for protecting its leaders from prosecution. Yet, the ICC is established only to prosecute the worst war criminals in fairly clear-cut cases. Therefore, unless the US or other countries plan on protecting war criminals in their midst, they have nothing to fear from the ICC.
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No

  • ICC wrongly allows prosecution of legitimate leaders John R. Bolton. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002 - "We are considering, in the Prosecutor, a powerful and necessary element of executive power, the power of law-enforcement. Never before has the United States been asked to place any of that power outside the complete control of our national government without our consent. Our concern goes beyond the possibility that the Prosecutor will target for indictment the isolated U.S. soldier who violates our own laws and values by allegedly committing a war crime. Our principal concern is for our country’s top civilian and military leaders, those responsible for our defense and foreign policy. They are the ones potentially at risk at the hands of the ICC’s politically unaccountable Prosecutor, as part of an agenda to restrain American discretion, even when our actions are legitimated by the operation of our own constitutional system."
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Sudan: Has the ICC helped or hurt in Sudan?

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Yes

  • US opposition to ICC impairs action and justice in Sudan Roger Cohen. "A Court for a New America". New York Times. 3 Dec. 2008 - "it is in Sudan that the incoherence of American policy toward the court has been most evident. The United States is against impunity for the genocidal crimes in Darfur, yet it is not a member of the court seeking to prosecute those responsible [...] The court has issued arrest warrants for a former Sudanese government minister, Ahmad Harun, and for Ali Kushayb, a leader of the government-backed janjaweed militia. In July, it requested an arrest warrant for Omar Hassan al-Bashir, the Sudanese president, on charges of genocide, but judges are still reviewing whether to push ahead with the prosecution [...] When I asked Brooke Anderson, Obama’s chief national security spokeswoman, about policy toward the court, I received this e-mail response: 'President-elect Obama strongly supports the I.C.C.’s efforts to investigate and prosecute those responsible for atrocities in Sudan.'"


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No

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America: What are the arguments specific to America? Should it join?

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Yes

  • US double standard in trying only foreigners in ICC Ian Williams. "Immune from prosecution". Salon. 16 June 2000 - "Other nations' delegations are aghast at what many frankly call the hypocrisy of the American position. After all, Congress vociferously wants international trials for prosecutions of Slobodan Milosevic and Saddam Hussein, not to mention Foday Sankoh from Sierra Leone, the leaders of Khmer Rouge from Cambodia and the Hutu genocide instigators from Rwanda -- and if they could get their hands on him, Moammar Gadhafi of Libya would certainly be dragged before the court [...] So committed is the United States to the principle of trials for all that it sent an army to Panama to bring back President Manuel Noriega to put him in the dock in Miami. But there is one major exception to this principle. We can try who we like, but don't anyone try to try one of ours. For the sake of that, the U.S. delegation is prepared to let a whole rogues' gallery run loose."
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No

  • US does not believe it is above the law in opposing ICC "Frequently Asked Questions About the U.S. Government's Policy Regarding the International Criminal Court (ICC)". State Department. 30 July 2003 - "Why does the U.S. think its people should be above the law?
  • The U.S. does not seek to put its people "above the law," rather we want to ensure that our nationals are dealt with by our system of laws and due process.
  • We as a nation believe in justice and the rule of law, and in accountability for war crimes, crimes against humanity, and genocide, and have vigorously pursued the highest standards in this regard.
  • We accept the responsibility to investigate and prosecute our own citizens for such offenses should they occur. Our policy is to encourage states to pursue credible justice within their own institutions, consistent with their responsibilities as sovereign states.
  • We object, however, to the investigation or prosecution of our citizens by the ICC, whose jurisdiction we have not consented to and which lacks necessary safeguards to ensure against politically motivated investigations and prosecutions."
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Pro/con sources

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Yes

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No

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Pro/con videos

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Yes


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No

References

Motions

  • This House Believes that the US Should Not Support the International Criminal Court
  • This House Believes that the Creation of the ICC is a Crime

In legislation, policy, and the real world

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