can universal jurisdiction prevent atrocities? global human rights

Can universal jurisdiction prevent atrocities?

Global human rights

Topics in global affairs Four topics

Global justice/human rights Global economic relations/integration (trade/aid) Global environment Global security

Wednesday, 3/19/2008 Hans Peter Schmitz

Topics today

Events of the day/week/month Tibet and Kosovo The Tanker Deal

Global justice/human rights Defining human rights International human rights (IHRL) and international

humanitarian law (IHL) What is Universal Jurisdiction (UJ)? Readings: Kenneth Roth (a constructivist) against

Henry Kissinger (a realist)


What are “human rights”?

Human rights are inalienable entitlements held equally by every human being simply because they are human.

International human rights law challenge the idea of state sovereignty, because it prescribes a specific behavior of states towards their own citizens.

What is universal jurisdiction?

Jurisdiction: the authority to regulate the conduct of persons (criminal and civil). States have jurisdiction over territory and population

(sovereignty). Universal jurisdiction: Asserting authority over

offences committed abroad by non-residents. Example: A Spanish court charging A. Pinochet (not a

resident of Spain) with human rights abuses he allegedly committed in Chile (not on the territory of Spain).


Human rights in global affairs

Before 1945: International law only recognized states as subjects in international law.

Before 1945, humanitarian and human rights issues were only raised in a few limited areas:

protection of minorities and foreign nationals; Labor standards (International Labor Organization, ILO);

Rules of war (Henri Dunant, The International Red Cross);

Slavery and Women’s rights. .

UN human rights mandate

Accomplishments

Human rights are now internationally recognized as universal norms.

The UN has a mandate to promote human rights. The UN can require the cooperation of member

states in the promotion of human rights.

UN human rights mandate: limits

Limits

HR are relegated to the less important area of “social and economic cooperation (Chapter XI)

The UN Charter reaffirms the primacy of “state sovereignty”, in direct contradiction with the idea of “human rights”

No powerful enforcement mechanisms for “human rights”

What is International Human Rights Law (IHRL)?

IHRL regulates the domestic conduct of states at any time.

International Human Rights Law protects individuals from human rights violations. Provides civil, political, social, economic, and cultural

rights to individuals. Requests states to promote the rights of its citizens.


What is International Humanitarian Law (IHL)?

IHL regulates the conduct of states during international (to some degree also: domestic) armed conflicts.

International Humanitarian Law protects those who do or can not participate in

hostilities (wounded combatants, civilians, and POWs).

gives rights to humanitarian organizations to bring relief to the above mentioned groups.

limits the means of warfare to prevent "unnecessary suffering" (most notable bans: poisonous gas and expanding bullets).


Theories of IR and IHL

Neorealism: Regulating war is impossible and unduly limits the means of warfare.

Liberal institutionalism: Regulating warfare is in the best interest of states. As long as war exists, states should regulate warfare without compromising sovereignty.

Constructivism/Idealism: War itself is a violation of fundamental rights. International humanitarian law must aim to abolish war (and states).


Theories of IR and IHRL

Neorealism: Human rights concerns are dangerous. State sovereignty must trump human rights concerns. If states cared about human rights elsewhere, it will only increase the likelihood of war.

Liberal institutionalism: Human rights will emerge as a result of economic development and global trade. They are not a primary goal of international politics.

Constructivism/Idealism: Human rights should replace sovereignty as the basic principle of international relations.


Comparing IHL and IHRL

IHL regulates the conduct of states during armed conflicts.

Not a direct challenge to state sovereignty Protects wounded combatants, POW, and civilians Regulates means of warfare Gives access to relief organizations Is limited to situations of armed conflict

IHRL gives universal rights to all human beings. Fundamental challenge to state sovereignty Gives rights to all humans Is valid at all times and in all places


The International Criminal Court

The International Criminal Court (ICC) promotes both IHRL and IHL by prosecuting those accused of violating basic human rights and committing atrocities.


Henry Kissinger: Pitfalls of UJ

Key arguments Universal jurisdiction violates the basic rule of

sovereignty underlying the state system. State sovereignty trumps human rights. States never agreed to establish ‘universal jurisdiction.’ Governments, not unelected judges, should rule in

global affairs. Judicial mechanisms are inappropriate for global affairs.

Political solutions have to be found.


Henry Kissinger: Pitfalls of UJ

Key arguments UJ is being used by the ‘left’ for political purposes (to go

after A. Pinochet). UJ undermines national reconciliation efforts and

imposes foreign law. Americans could be prosecuted by these courts, thus

violating our national interests. Alternatives:

Strengthen the human rights role of the UN SC. Create ad hoc tribunals.


Kenneth Roth: Defending UJ

Key arguments

Human rights trump state sovereignty. States have failed to enforce human rights abroad and

atrocities need to end. The International Criminal Court (ICC) will serve as a

deterrent to future atrocities.


Answering Kissinger’s claims I

UJ is a new concept. Answer: it is not new; there is precedent ant intent by

states. What is new is a greater willingness to enforce. Crimes under UJ are vaguely defined.

Answer: Crimes are clearly defined. Judges are not accountable.

Answer: Judges can be removed by member states. Americans could be put on trial.

Answer: Only if they commit atrocities and the domestic courts fails to prosecute.


Answering Kissinger’s claims II

The ICC fails to have due process (trial by jury) Answer: The U.S. does not always use jury trials and

the ICC has standard due process procedures. National courts play ‘politics’ and advance a

leftist agenda. Answer: Pinochet was put on trial for human rights

violations, not for being right-wing. UJ interferes with national reconciliation.

Answer: Impunity undermines and reconciliation.


The Nuremberg Principles, 1945

“Crimes against peace/aggression" become a crime under international law

“Crimes against humanity” enter international law Nuremberg and Tokyo Trials

Rationale for tribunal (Harry Truman) It exposed war crimes more effectively. It averts future hostilities by exacting justice rather than

revenge. It targets the leadership, rather then the population.

ICC and ICJ

The International Court of Justice (ICJ) is a civil tribunal that decides only disputes between states.

The International Criminal Court (ICC) is a criminal court that will prosecute individuals.

Like the ICJ, the ICC is permanent and not geographically limited. Both courts are headquartered in The Hague, Netherlands.

Check out the ICC webpage and the ICJ webpage.

Mandate of the ICC

What the ICC prosecutes Crimes Against Humanity War Crimes Genocide

What the ICC does not prosecute Terrorism Aggression (still to be defined) Crimes committed prior to its establishment on

July 1, 2002.

How cases get to the ICC

Three ways of activating the ICC:

1. The UN Security Council can authorize the court’s actions.

2. State parties can complain to the court about a situation of alleged violations.

3. Court’s Prosecutor can initiate an investigation, but needs to convince a pre-trial chamber of three judges.

The jurisdiction of the ICC

Crimes committed in the territory of a state which has ratified the Rome Statute.

Crimes committed by a citizen of a state which has ratified the Rome Statute.

The ICC prosecutes individuals regardless of their civilian or military status.

The ICC, the UN, and national courts

The ICC complements, rather than replaces domestic prosecution (unlike the Rwanda and Yugoslavia tribunals). Only if domestic courts are “unable or unwilling” to prosecute, the ICC will step in.

The UN Security Council can suspend ICC proceedings for up to 12 months, if the SC is concerned that the court’s proceedings may interfere with the SC’s responsibility “to maintain international peace and security”.

The United States and the ICC

Should the United States join the ICC? Why or why not?

Theories of IR and the ICC Neorealism: no (Kissinger) Neoliberal institutionalism: yes Idealism/Constructivism: yes (Roth)

can universal jurisdiction prevent atrocities? global human rights

Documents

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