Title: WAR CRIMES
1WAR CRIMES
- Kailyn McGillicuddy
- Hilary Panfili
2Issue
- Should the United States join the International
Criminal Court (ICC) to prosecute War Crimes?
3International 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
4Hague 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
5Hague 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
6Hague 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
7Geneva 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
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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.
10War 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
11Common 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.
12Hamdan 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
13International 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
14Genocide
- 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)
15International Criminal Court
- Established by the Rome Statute in 2002
- 110 members (as of October 2009)
- The United States is not currently a member
16Rome 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
17U.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
181. 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.
192. 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.
203. 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.
214. 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.
225. 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.
23Congressional Action Against ICC
- 1. American Servicemembers Protection Act of
2002 - 2. The Nethercutt Amendment
- 3. National Defense Authorization Act for FY2007
241. 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.
25ASPA 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.
262. 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.
273. 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.
28How 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.
29Notable 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)
30Should 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.
31Heritage 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
32Amnesty 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
33Current 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.
34Policy 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 .
35Conclusion
- 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.
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