WAR CRIMES

1
WAR CRIMES

• Kailyn McGillicuddy
• Hilary Panfili

2
Issue

• Should the United States join the International
  Criminal Court (ICC) to prosecute War Crimes?

3
International Humanitarian Law

• Humanitarian law seeks to
• (i) protect persons who are not or are no longer
  taking part in the hostilities,
• (ii) restrict the methods and means of warfare
  employed, and
• (iii) resolve matters of humanitarian concern
  resulting from war.
• Henri Dunant - founder of the International Red
  Cross - helped codify international humanitarian
  law

4
Hague Conference of 1899

• Hague I - Pacific Settlement of International
  Disputes 29 July 1899
• Hague II - Laws and Customs of War on Land 29
  July 1899
• Hague III - Adaptation to Maritime Warfare of
  Principles of Geneva Convention of 1864 July
  29,1899
• Hague IV - Prohibiting Launching of Projectiles
  and Explosives from Balloons July 29, 1899

5
Hague Conference of 1899 Contd

• Declaration I - on the Launching of Projectiles
  and Explosives from Balloons July 29, 1899
• Declaration II - on the Use of Projectiles the
  Object of Which is the Diffusion of Asphyxiating
  or Deleterious Gases July 29, 1899
• Declaration III - on the Use of Bullets Which
  Expand or Flatten Easily in the Human Body July
  29, 1899
• Final Act of the International Peace
  Conference July 29, 1899

6
Hague Conference of 1907

• Hague I - Pacific Settlement of International
  Disputes 18 October 1907
• Hague II - Limitation of Employment of Force
  for Recovery of Contract Debts October 18, 1907
• Hague III - Opening of Hostilities 18 October
  1907
• Hague IV - Laws and Customs of War on Land 18
  October 1907
• Hague V - Rights and Duties of Neutral Powers
  and Persons in Case of War on Land 18 October
  1907
• Hague VI - Status of Enemy Merchant Ships at
  the Outbreak of Hostilities 18 October 1907
• Hague XI - Restrictions With Regard to the
  Exercise of the Right of Capture in Naval War
  18 October 1907

7
Geneva Conventions

• 1949 - Convention (I) for the Amelioration of
  the Condition of the Wounded and Sick in Armed
  Forces in the Field, August 12
• 1949 - Convention (II) for the Amelioration of
  the Condition of Wounded, Sick and Shipwrecked
  Members of Armed Forces at Sea, August 12
• 1949 - Convention (III) Relative to the
  Treatment of Prisoners of War August 12
• 1949 - Convention (IV) Relative to the
  Protection of Civilian Persons in Time of War,
  August 12

8
(No Transcript)
9
2441. War Crimes

• Definition.the term war crime means any
  conduct
• (1) defined as a grave breach in any of the
  international conventions signed at Geneva 12
  August 1949, or any protocol to such convention
  to which the United States is a party
• (2) prohibited by Article 23, 25, 27, or 28 of
  the Annex to the Hague Convention IV, Respecting
  the Laws and Customs of War on Land, signed 18
  October 1907
• (3) which constitutes a grave breach of common
  Article 3 (as defined in subsection (d)) when
  committed in the context of and in association
  with an armed conflict not of an international
  character or
• (4) of a person who, in relation to an armed
  conflict and contrary to the provisions of the
  Protocol on Prohibitions or Restrictions on the
  Use of Mines, Booby-Traps and Other Devices as
  amended at Geneva on 3 May 1996 (Protocol II as
  amended on 3 May 1996), when the United States is
  a party to such Protocol, willfully kills or
  causes serious injury to civilians.

10
War Crimes

• Common Article 3 is applicable to armed conflicts
  not of an international character and covers
  persons taking no active part in hostilities,
  including those who have laid down their arms or
  been incapacitated bu capture or injury.
• Torture
• Cruel or inhuman treatment
• Performing biological experiments
• Murder
• Mutilation or maiming
• Intentionally causing serious bodily injury
• Rape
• Sexual assault or abuse
• Taking hostages

11
Common Article 3

• Persons taking no active part in the hostilities,
  including members of armed forces who have laid
  down their arms and those placed hors de
  combat by sickness, wounds, detention, or any
  other cause, shall in all circumstances be
  treated humanely, without any adverse distinction
  founded on race, color, religion or faith, sex,
  birth or wealth, or any other similar criteria.
• To this end, the following acts are and shall
  remain prohibited at any time and in any place
  whatsoever with respect to the above-mentioned
  persons
• (a) violence to life and person, in
  particular murder of all kinds, mutilation, cruel
  treatment and torture
• (b) taking of hostages
• (c) outrages upon personal dignity, in
  particular humiliating and degrading treatment
• (d) the passing of sentences and the carrying
  out of executions without previous judgment
  pronounced by a regularly constituted court,
  affording all the judicial guarantees which are
  recognized as indispensable by civilized peoples.

12
Hamdan v. Rumsfled

• Bush Administration had taken the position that
  the Geneva Conventions did not apply to members
  of Al Qaeda captured in the global war on
  terror.
• The Court- some minimal protection, falling
  short of full protection under the Conventions,
  to any individuals ... who are involved in a
  conflict in the territory of a signatory.
• Military Commission Act (MCA) of 2006

13
International War Crimes

• London Charter
• Nuremberg Trials(1945-1949)
• International Military Tribunal took place
  between November 11, 1945- October 1, 1946
• International Military Tribunal for the Far East
  1946

14
Genocide

• Yugoslavia
• 1992-1995 Bosnian War
• International Criminal Tribunal for the Former
  Yugoslavia (ICTY)
• Rwanda
• 1 January 1994 and 31 December 1994
• International Criminal Tribunal for Rwanda
  (ICTR)

15
International Criminal Court

• Established by the Rome Statute in 2002
• 110 members (as of October 2009)
• The United States is not currently a member

16
Rome Statute

• Adopted July 17, 1998
• Entered into force July 1, 2002
• 110 States have ratified
• 38 States have signed
• Defines prosecutable crimes as
• Genocide
• War Crimes
• Crimes Against Humanity

17
U.S. Opposition Rome Statute

• 1. Jurisdiction over Nationals of Non-Parties
• 2. Politicized Prosecution
• 3. The Unaccountable Prosecutor
• 4. Usurpation of the Role of the U.N. Security
  Council
• 5. Lack of Due Process Guarantees

18
1. Jurisdiction over Nationals of Non-Parties

• Only nations that ratify treaties are bound to
  observe them. The ICC purports to subject to its
  jurisdiction citizens of non-party nations, thus
  binding non-party nations.

19
2. Politicized Prosecution

• The ICCs flaws may allow it to be used by some
  countries to bring trumped-up charges against
  American citizens, who, due to the prominent role
  played by the United States in world affairs, may
  have greater exposure to such charges than
  citizens of other nations.

20
3. The Unaccountable Prosecutor

• The Office of the Prosecutor, an organ of the
  ICC that is not controlled by any separate
  political authority, has unchecked discretion to
  initiate cases, which could lead to politicized
  prosecutions.

21
4. Usurpation of the Role of the U.N. Security
Council

• The ICC Statute gives the ICC the authority to
  define and punish the crime of aggression,
  which is solely the prerogative of the Security
  Council of the United Nations under the U.N.
  Charter.

22
5. Lack of Due Process Guarantees

• The ICC will not offer accused Americans the due
  process rights guaranteed them under the U.S.
  Constitution, such as the right to a jury trial.

23
Congressional Action Against ICC

• 1. American Servicemembers Protection Act of
  2002
• 2. The Nethercutt Amendment
• 3. National Defense Authorization Act for FY2007

24
1. ASPA (2002)

• The ASPA prohibits cooperation with the ICC by
  any agency or entity of the federal government,
  or any state or local government.
• It prohibits agents of the ICC from conducting
  any investigative activity on U.S. soil related
  to matters of the ICC.
• It does not prevent private citizens from
  providing testimony or evidence to the ICC.

25
ASPA and Article 98

• An Article 98 agreement is a bilateral pact
  wherein countries pledge not to seek the
  prosecution of U.S. citizens in the International
  Criminal Court.
• This law prohibits U.S. military assistance to
  countries that have not signed Article 98
  agreements.

26
2. Nethercutt Amendment

• Named for former Rep. George Nethercutt and
  bundled in a 2004 appropriations bill -- cut
  economic support funds to nations that ratified
  the International Criminal Court without signing
  a Bilateral Immunity Agreement with the Bush
  administration.
• Policy was reversed in March 2009 by Rep. Nita
  Lowey and Sen. Patrick Leahy.

27
3. National Defense Authorization Act for FY2007

• The Senate version modified ASPA to end the ban
  on International Military Education and Training
  (IMET) assistance to countries that are members
  of the ICC and that have not implemented Article
  98 agreements.
• The House version did not contain such a
  provision however, the House Armed Services
  Committee reported its view that the Presidents
  authority to waive ASPA funding restrictions can
  and should be invoked where necessary.

28
How is the ICC different?

• Serves as a permanent deterrent.
• The ICC has much wider jurisdiction than existing
  ad hoc tribunals.
• Yugoslavia and Rwanda are limited to crimes
  committed in a particular territory.
• The Rome Statute contains advanced provisions for
  the protection of victims from retraumatization.
• The court may order a convicted person to provide
  reparation as it deems appropriate.

29
Notable ICC Cases

• Uganda The Prosecutor v. Joseph Kony, Vincent
  Otti, Raska Lukwiya, Okot Odhiambo and Dominic
  Ongwen
• Democratic Republic of the Congo (DRC) The
  Prosecutor v. Thomas Lubanga Dyilo
• Sudan The Prosecutor v. Ahmad Muhammad Harun and
  Ali Huhammad Ali Abd-al-Rahman
• Central African Republic (CAR)

30
Should the U.S. join?

• The United States appears to be exempting itself
  from rules of the game that it believes should
  apply to others.
• The U.S. claim for special status undermines the
  very idea of the rule of law as a single,
  principled normative order to which all are
  bound.
• It may undermine the great international effort
  of the last century to subject the use of force
  to the rule of law.

31
Heritage Foundation

• The U.S. should NOT join the ICC because it
• Lacks prudent safeguards against political
  manipulation, possesses sweeping authority
  without accountability and violates national
  sovereignty
• Lacks checks and balances
• Is slow to act
• Has no measurable deterrent effect
• Has the ability to investigate and prosecute
  crimes only after the fact

32
Amnesty International

• The U.S. SHOULD join the ICC because
• The Rome Statute incorporates safeguards against
  politically motivated prosecutions
• It would only investigate cases involving U.S.
  nationals if the U.S. failed to investigate

33
Current Administrations Stance on ICC

• Secretary of State Clinton recently stated that
  one of her greatest regrets is that the US is not
  part of the ICC, which indicates a significant
  policy shift in favor of the court.
• Under the new administration of President Barack
  Obama, there have been hints of greater U.S.
  cooperation with the ICC, although no formal
  shift in policy.
• Some advocate caution, saying the president can
  afford not to rush membership and should wait to
  see how the ICC evolves.

34
Policy Options to Make it Work

• The U.S. could have jurisdiction to prosecute
  crimes committed by Americans.
• This would preempt the ICC though application of
  the complementarity principle.
• The U.S. should cooperate with the ICC in the
  prosecution of persons accused of war crimes.
• Transparency would further enhance the image of
  the U.S. as fair and credible .

35
Conclusion

• The ICC ensures that those who commit serious
  human rights violations are held accountable.
• Justice helps promote lasting peace, enables
  victims to rebuild their lives and sends a strong
  message that perpetrators of war crimes will not
  go unpunished.
• Should the United States of America choose to
  join the ICC, its reputation as a promoter of
  human rights and the rule of law would be
  significantly enhanced in the eyes of the
  international community.

36
(No Transcript)