ECH Final Exam: Understanding The International Criminal Court PDF

ECH FINAL EXAM Understanding the International Criminal Court (PG 1-21) What is the international Criminal Court? The ICC is a permanent international court established to investigate, prosecute, and try individuals accused of committing the Mose serious crimes of concern to t...

ECH FINAL EXAM Understanding the International Criminal Court (PG 1-21) What is the international Criminal Court? The ICC is a permanent international court established to investigate, prosecute, and try individuals accused of committing the Mose serious crimes of concern to the international community (Genocide, Crimes against humanity, war crimes, and crimes of aggression. Why was the ICC established? There were some of the most heinous crimes committed during the con icts which marked the 20th century. Many violations of international law have remained unpunished. The Nuremberg and Tokyo tribunals were established in the wake of the second world war. In 1948, when the Convention on the Prevention and punishment of the Crime of Genocide was adopted, the United Nations General Assembly recognized the need for a permanent international court to deal with these atrocities which had been perpetrated. The idea of an international criminal court re-emerged after the end of the cold war. However, while negotiations on the ICC Statue were underway at the United Nations, the world was witnessing the commission of crimes in former Yugoslavia and in Rwanda. In response to these atrocities, the United Nations Security Council established an “Ad hoc” tribunal for these situations. These situations have a signi cant impact on the decisions to convene the conference which established the ICC in Rome in summer 1998. What is the Rome Statute? On July 17th, 1998, a conference of 160 states established the rst treaty-based permanent international court. The treaty adopted during that conference is known as the Rome statute of the ICC. It sets out the crimes falling within the jurisdiction of the ICC, the rules of procedure and the mechanisms for States to cooperate with the ICC. The countries which have accepted these rules are known as State Parties and a represented in the Assembly of States Parties. The parties (which meet at least once a year), sets the general policies for the admin of the court and also reviews its activities. States Parties review the activities of the working groups established by the states and any other issues relevant to the ICC, discuss new projects. And adopt the ICC Annual budget. How many countries have rati ed the Rome Statute? Over 120 countries are States Parties to the Rome Statute, representing all the regions: Africa, Asia (paci c), Europe, Latin America, Caribbean, and North America. fi fi fi fi fl Where is the seat of the Court? The seat of the court is in The Hague in the Netherlands. The Court may sit elsewhere whenever the judges consider it desirable. They also set of o ces in areas with investigations. How is the Court Funded? The ICC is funded by states parties, government voluntary contributions, international organizations, individuals, corporations, and more. How is the ICC di erent from other courts? The ICC is a permanent, autonomous court, whereas the tribunals for Yugoslavia and Rwanda were established within the United Nations to deal with speci c situations. The ICC tries individuals, which is di erent from the International Court of Justice, which deals with the disputes between states in the United Nation. The ICJ And International Residual Mechanism for Criminal Tribunals have their seats in the Hague. Is the ICC an agency of the united nations? Nope. On October 4th 2004, the ICC and United Nations signed an agreement dividing their relationship. Does the ICC replace national courts? No, the purpose of the ICC is to compliment them. It can investigate, prosecute and try individuals only if the state concerned does not, cannot, or is unwilling to do so. This occurs where proceedings are delayed or are intended to shield individuals from their criminal responsibility. States retain primary responsibility for trying individuals of the most serious crimes. Under what conditions does the ICC exercise its jurisdiction? When the state becomes a party to the Rome statute, it agrees to submit itself to the jurisdiction of the ICC. Who can be prosecuted before the ICC? The ICC prosecutes individuals, not states or groups. If those who are responsible for the crimes are in political or military power, is there any exemption from prosecution?? NOPE LOL ff ff ffi fi  Can the ICC try children? No you have to be 18. The Structure of the ICC Composed of 4 organs: The Presidency, the Chambers, the O ce of the Prosecutor and the Registry. Presidency The Presidency consists of 3 judges (One President, two Vice-presidents) elected by the majority of the 18 judges of the court for 2 or 3 year terms. They are responsible for the administration of the court, represents the court to the outside world and helps with the organization of the work of the judges. They are also responsible for ensuring the enforcement of the sentence imposed by the court. Chambers 18 judges total (including the Presidency) are assigned to the three judicial divisions: Pre Trial (6 or more judges), Trial (6 or more), and Appeal (5). The judges are elected posses the quali cations required in their respective states for appointment to the highest judicial o ces. They are elected by the assembly of states parties on the basis of their established competence in criminal law and procedure and in areas of international law (IHL and HRL). Pre-Trial Chambers Supervise how the O ce of the Prosecutor carries out its investigatory and prosecutorial activities, to guarantee the rights of the suspects, victims and witnesses during investigation. The Pre-Trial Chambers then decide whether or not to issue warrants of arrest or summonses to appear at the O ce of the Prosecutor’s request and whether or not to con rm the charges against a person suspected of a crime. Trial Chambers After the arrest is warranted, the alleged perpetrator arrested and the charges con rmed by pre trial, the presidency constitutes a trial chamber composed of 3 judges to try the case. The Trial chambers’ function is to ensure the trials are care with full respect for the rights of the accused. They determined whether the accused is innocent or guilty. Appeals Chamber May uphold, reverse, or amend the decision appeals from, including judgements and sentencing decisions. Composed of the President and 4 judges. fi ffi ffi ffi fi fi ffi  O ce of the Prosecutor Independent from the ICC. Its mandate is to receive and analyze situations referred in order to determine whether theres a reasonable basis to initiate an investigation. The investigation division is responsible for the investigations and establishing the truth. The prosecution division litigates cases before the various court chambers. The Complementary and cooperation division assesses info received and situations referred to the court to determine their admissibility and helps secure the cooperation required by the o ce of the prosecutor in order to ful l its mandate. Registry The Registry helps the Court to conduct fair, impartial and public trials. The core function of the Registry is to provide administrative and operational support to the Chambers and the O ce of the Prosecutor. It also supports the Registrar’s activities in relation to defence, victims, communication and security matters. It ensures that the Court is properly serviced and develops e ective mechanisms for assisting victims, witnesses and the defence in order to safeguard their rights under the Rome Statute and the Rules of Procedure and Evidence. The Globalization of World Politics (Chapter 32) Introduction - Armed humanitarian intervention was not a legitimate practice during the cold war because states placed more value on sovereignty and order than on the enforcement of human rights - Ko Annan declared that there was a 'developing international norm' to forcibly protect civilians who were at risk from genocide and mass killing. - The new norm was a weak one, however. Not until it adopted Resolution 1973 in 2011 in relation to the humanitarian crisis in Libya did the UN Security Council (UNSC) authorize forcible intervention against a fully functioning sovereign state, and intervention without UNSC authority remained deeply controversial. - From both the global North and global South, and non-governmental organizations (NGOs) attempted to build a consensus around the principle of the responsibility to protect. The responsibility to protect insists that states have , Primary responsibility for protecting their own populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. However, if they manifestly fail to protect their populations, the responsibility to end atrocities is transferred to the wider 'international community', acting through the UN. - The responsibility to protect was adopted by the UN General Assembly in a formal declaration at the 2005 UN World Summit. - Its advocates argue that it marks a signi cant commitment to the protection of people from acts of conscience shocking inhumanity and that it will play an important role in building consensus about humanitarian action, while making it harder for states to abuse humanitarian justi cations. E orts have begun at the UN to translate the principle from words into deeds. - ffi fi fi ff fi ff fi ffi ffi  Legal Argument - Counter restrictionists argue that human rights are just as important as peace and security in the UN Charter. - This has led counter-restrictionists to read a humanitarian exception to the ban on the use of force in the UN Charter. Michael Reisman (1985: 279-85) argued that, given the human rights principles in the Charter, the UNSC should have taken armed action during the cold war against states that committed genocide and mass murder. The on-going failure of the UNSC to ful l this legal responsibility led him to assert that a legal exception to the ban on the use of force in Article 2(4) of the Charter should be created that would permit individual states to use force on humanitarian grounds. - Likewise, some international lawyers (e.g. Damrosch 1991: 219) have argued that humanitarian intervention does not breach Article 2(4) because the Article prohibits the use of force only against the 'political independence' and 'territorial integrity' of states, and humanitarian intervention does neither of these things. The moral case - Many writers argue that, irrespective of what the law says, there is a moral duty to intervene to protect civilians from genocide and mass killing. They argue that sovereignty derives from a state's responsibility to protect its citizens; therefore when a state fails in this duty, it should lose its sovereign rights. - Some point to the idea of common humanity to argue that all individuals have basic human rights and duties to uphold the rights of others. The case against humanitarian intervention 1. No basis for humanitarian intervention in international law - Restrictionist international lawyers insist that the common good is best preserved by maintaining a ban on any use of force not authorized by the UNSC. 2. States do not intervene for primarily humanitarian reasons - States almost always have mixed motives for intervening, and are rarely prepared to sacri ce their own soldiers overseas unless they have self-interested reasons for doing so. For realists, this means that genuine humanitarian intervention is imprudent because it does not serve the national interest. 3. States are not allowed to risk the lives of their soldiers to save strangers - Political leaders do not have the moral right to shed the blood of their own citizens on behalf of su ering foreigners. 4. The problem of abuse - In the absence of an impartial mechanism for deciding when humanitarian intervention is permissible, states might espouse humanitarian motives as a pretext to cover the pursuit of national self-interest. The classic case of abuse was Hitler's argument that it was necessary to invade Czechoslovakia to protect the 'life and liberty' of that country's German population. Creating a right of humanitarian intervention would only make it easier for the powerful to justify interfering in the a airs of the weak. fi ff fi ff  5. Selectivity of response - States always apply principles of humanitarian intervention selectively, resulting in an inconsistency in policy. Because state behaviour is governed by what governments judge to be in their interest, they are selective about when they choose to intervene. The problem of selectivity arises when an agreed moral principle is at stake in more than one situation, but national interest dictates di erent responses. 6. Disagreement about moral principles - Pluralist international society theory identi es an additional objection to humanitarian intervention: the problem of how to reach a consensus on what moral principles should underpin it. Pluralism is sensitive to human rights concerns but argues that humanitarian intervention should not be permitted in the face of disagreement about what constitutes extreme human rights violations. 7. Intervention does not work - A nal set of criticisms suggests that humanitarian intervention should be avoided because it is impossible for outsiders to impose human rights. Some liberals argue that states are established by the informed consent of their citizens. Thus, one of the foremost nineteenth-century liberal thinkers, John Stuart Mill (1973: 377-8), argued that democracy could be established only by a domestic struggle for liberty. Human rights cannot take root if they are imposed or enforced by outsiders. The 1990s: a golden era of humanitarian activism? The role of humanitarian sentiments in decisions to intervene - In the case of northern Iraq in April 1991 and Somalia in December 1992, domestic public opinion played an important role in pressurizing policy-makers into using force for humanitarian purposes. - There was a refugee crisis caused by Saddam Hussein’s oppression of the Kurds after the 1991 gulf war. The US, British, French< and Dutch military forces intervened to create protected ‘safe havens’ for the Kurdish people. - The US military intervention in Somalia in December 1992 was a response to sentiments of compassion on the part of US citizens. However, this sense of solidarity disappeared once the United States began sustaining casualties, indicating how capricious public opinion is. - The French intervention in Rwanda in July 1994 seems to be an example of abuse. The French government emphasized the strictly humanitarian character of the operation, but this interpretation lacks credibility given the evidence that they were covertly pursuing national self-interest. - French intervention might have saved some lives, but it came far too late to halt the genocide, which killed some 800,000 people in a mere hundred days. There was no intervention for the simple reason that those with the military capability to stop the genocide were unwilling to sacri ce troops and resources to protect Rwandans. - At the beginning of the war, NATO said it was intervening to prevent a humanitarian catastrophe. Two arguments were adduced to support NATO's claim that the resort to force was justi able. First, Serbian actions in Kosovo had created a humanitarian emergency and breached international legal commitments. Second, the Serbs were committing crimes against humanity and challenging common humanity. This supports the proposition that humanitarian intervention is nearly always prompted by mixed motives. However, this fi fi fi ff fi  becomes a problem only if the non-humanitarian motives undermine the chances of achieving the humanitarian purposes. How legal and legitimate were these interventions? - Many peacekeeping mandates passed by the UNSC since 2000 contain an instruction for international soldiers to protect endangered civilians, using force if necessary and prudent. - Chapter VII of the Charter enables the UNSC to authorize military enforcement action only in cases where it nds a threat to 'international peace and security. - Since the early 1990s, the UNSC has expanded its list of what counts as a threat to the peace to include human su ering, the overthrow of democratic government, state failure, refugee movements, and ethnic cleansing. Were the interventions successful? - Humanitarian outcomes might usefully be divided into short- and long-term outcomes. The former refer to the immediate alleviation of human su ering through the termination of genocide or mass murder and/or the delivery of humanitarian aid to civilians trapped in war zones. Long-term humanitarian outcomes focus on how far intervention addresses the underlying causes of human su ering by facilitating con ict resolution and the construction of viable polities. - 'Operation Provide Comfort' in northern Iraq enjoyed initial success in dealing with the displacement problem and clearly saved lives. However, as the media spotlight began to shift elsewhere and public interest waned, so did the commitment of Western governments to protect the Kurds. While Western air forces continued to police a 'no- y zone' over northern Iraq, the intervening states quickly handed over the running of the safe havens to what they knew was an ill-equipped and badly supported UN relief operation. - The conclusion that emerges from this brief overview is that forcible intervention in humanitarian crises is most likely to be a short-term palliative that can e ectively halt mass atrocities. By itself, however, it cannot address the underlying political causes of the violence and su ering. It is for this reason that the International Commission on Intervention and State Sovereignty (ICISS) insisted that intervention was only one of three international responsibilities, the other two involving prevention and rebuilding. The Responsibility to Protect (RtoP) - When international negotiations, sanctions, and observers failed to stem the tide of violence against civilians there, NATO decided to intervene militarily despite not having a UN Security Council mandate to do so. The intervention triggered a major debate on the circumstances in which the use of force for human protection purposes might be justi able. - At issue was the relationship between the state and its own population, the credibility of the international community's commitment to very basic standards of human rights, and the role of the UN in the twenty- rst century. - It was in part to nd answers to these questions that Canada decided to establish an International Commission on Intervention and State Sovereignty (ICISS) in 2000. From this ff fi fi fi ff ff ff fl fi ff fl  perspective, responsibility to protect (RtoP) comprised three interrelated sets of responsibilities: to prevent, to react, and to rebuild. - The Commission identi ed proposals designed to strengthen the international community's e ectiveness in each of these, including the articulation of a prevention toolkit, decision making criteria for the use of force, and a hierarchy of international authority in situations where the Security Council was divided. - It argued that although Security Council authorization was preferable, there may be situations in which intervention might be legitimate even without Council authorization. It also suggested that the Council's failure to act in such cases would weaken its own legitimacy. - RtoP was unanimously endorsed by the 2005 World Summit, the largest ever gathering of heads of state and government. The Summit's outcome document was later adopted as a General Assembly resolution. - This strategy was organized around the idea that, as agreed by member states in 2005, RtoP rests on three pillars. These pillars are non-sequential (one does not need to apply pillars one and two before moving to pillar three) and of equal importance-the whole edi ce ofRtoP would collapse if it were not supported by all three pillars: 1. The primary responsibility of the state to protect its population from genocide, war crimes, ethnic cleansing, and crimes against humanity, and from their incitement. The Secretary- General described this pillar as the 'bedrock' ofRtoP, which derives from sovereign responsibility itself and the international legal obligations that states already had. 2. The international community's responsibility to assist and encourage states to ful l their responsibility to protect, particularly by helping them to address the underlying causes of genocide and mass atrocities, build the capacity to prevent these crimes, and address problems before they escalate. 3. The international community's responsibility to take timely and decisive action to protect populations from the four crimes through diplomatic, humanitarian, and other peaceful means (principally in accordance with Chapters VI and VIII of the UN Charter) and, on a case-by-case basis, if peaceful means 'prove inadequate' and national authorities are manifestly failing to protect their populations, other more forceful means through Chapter VII of the UN Charter. - However, it is important to distinguish between the RtoP that governments have agreed to adopt and the ideas that helped shape it, including the proposals of the ICISS, mentioned earlier. There are ve key points to bear in mind in this regard: 1. All states have a permanent responsibility to protect their populations from the four crimes. The concept does not relate to threats to human life stemming from natural disasters, diseases, armed con ict in general, or nondemocratic forms of government. 2. States have a responsibility to protect all populations under their care, not just citizens. 3. RtoP is based on well-established principles of existing international law. The crimes to which it relates are enumerated in international law. RtoP is to be implemented through the UN Charter. Nothing in the RtoP principle permits states or regional organizations to act ff fi fl fi fi fi  outside the Charter, suggesting that humanitarian intervention not authorized by the Security Council is both illegal and illegitimate. 4. The World Summit Outcome Document calls explicitly for the prevention of the four crimes and their incitement. As such, prevention is at the core of RtoP, with other measures contemplated only when prevention fails or (in line with Article 42 of the UN Charter) is thought likely to fail by the UN Security Council. 5. Force may be used only when authorized by the UN Security Council and when other, peaceful, measures adopted under Chapters VI and VIII of the UN Charter are thought unlikely to succeed. RtoP in Action - Resistance to implementing RtoP was also evident in other UN bodies. For example, when the UN Human Rights Council's HighLevel Mission to Darfur reported in 2007 that the government of Sudan was failing in its responsibility to protect Darfuris, the Arab Group, Asia Group, and Organization of lslamic Conferences all questioned the report's legitimacy. - Committee on International Development judged that 'if the responsibility to protect means anything, it ought to mean something in Darfur'. It was a test RtoP was widely judged to have failed. - This was despite the facts that the peak of the crisis in Darfur (2003-4) pre-dated international agreement on RtoP (2005) and that international activism on Darfur increased signi cantly after the adoption of this concept. - In the aftermath of the disputed 30 December 2007 elections in Kenya, ethnic and tribal violence resulted in the killing of some 1,500 people and the displacement of 300,000 more. The international community responded with a coordinated diplomatic e ort. - This diplomatic e ort, couched squarely in RtoP terms, pulled the two leaders back from the brink and saved Kenya from a terrible fate. It also provided a tangible demonstration of RtoP's capacity to facilitate atrocity prevention through peaceful means. - The worst moments for RtoP arguably came later in 2008 and in the rst half of 2009, in Sri Lanka. Government forces launched a major o ensive in the Wanni region aimed at eliminating the Tamil Tigers. - The UN Country Team decided to withdraw its sta and remained mute on potential violations of international human rights and humanitarian law by government forces. - The ghting killed approximately 40,000 civilians, the great majority as a result of government actions, and a UN investigation found that both parties may have committed war crimes. - In 2012, an Internal Review Panel established by the SecretaryGeneral to review the UN's actions in that case concluded that the organization had failed to adequately respond to the protection crisis in Sri Lanka in 2008-9. - It noted that 'when confronted by similar situations, the UN must be able to meet a much higher standard in ful lling its protection and humanitarian responsibilities’. fi fi ff fi ff ff fi ff  Trends in Armed Con ict, 1946-2017 - The year 2017 was marked as one of the most violent since the Cold War, despite a slight decline in violence from 2016. - The number of state-based armed con icts dropped from 53 in 2016 to 49 in 2017, with the Islamic State (IS) involved in 31% of these. - Non-state con icts surged considerably, increasing from 62 in 2016 to 82 in 2017. - Con ict-related casualties decreased by 22% in 2017 compared to 2016, with Syria remaining the deadliest con ict, accounting for one-third of state-based con ict deaths. - Trends indicate a complex landscape of armed con ict globally. - Almost 69,000 fatalities were linked to state-based con icts in 2017. - Notable reductions in violence were seen in Syria, while Iraq and Afghanistan experienced escalated violence - Overall, 34 countries were involved in armed con icts in 2017. - The data re ects a long-term decline in armed con ict since the Cold War, eclipsed by surges in violent episodes. - Internationalized intrastate con icts pose signi cant threats, with external involvement observed in 40% of such con icts. - The trend displays a steady presence of violence, in uenced by various actors, with the U.S. particularly active in ghts against extremist groups. - Islamic extremism is highlighted as a major contemporary threat to global peace. - IS’s in uence continues to contribute signi cantly to casualties in con icts in Syria, Afghanistan, and Iraq. - Non-state violence grew dramatically, led by con icts in the Middle East and also notably increasing in Africa and Latin America. - Countries such as the Democratic Republic of Congo, Mexico, and Brazil reported rising fatalities due to non-state violence. - Future projections suggest a continuing cycle of con ict without signi cant changes in the short term. - Sustained tensions are expected in regions like the Middle East, Sahel, Afghanistan, and Venezuela. - Trends from the post-World War II era indicate a slow but steady path toward reduced con ict through ongoing democratization e orts. fl fl fl fl fl fi fl fl fl fl fl fi ff fi fl fl fl fl fl fl fl fi fl fl