The UN, International and Regional Human Rights

1
The UN, International and Regional Human Rights

• International Criminal Court
• ad hoc Criminal Courts
• Regional Human Rights Courts
• A New World Order?

2
The New World Order

• to establish a new world order wherein the rule
  of law rather than the law of the jungle will
  govern the conduct between nations

3
The New World Order

• to establish a new world order wherein the rule
  of law rather than the law of the jungle will
  govern the conduct between nations
• --Republican President George Bush,
• after launching the war against Iraq

4
The New World Order

• To hell with international law! Youve got a
  choice to make. Youre either for us or against
  us, and I only hope for your sake you make the
  right choice.

5
The New World Order

• To hell with international law! Youve got a
  choice to make. Youre either for us or against
  us, and I only hope for your sake you make the
  right choice.
• --Republican Senator Alfonse DAmato
• (New York)

6
International Human Rights

• Outline
• International Law and Canons of Justice

7
International Human Rights

• Outline
• International Law and Canons of Justice
• Significance of the ICC

8
International Human Rights

• Outline
• International Law and Canons of Justice
• Significance of the ICC
• Approaches to Human Rights
• The ICC vs. Human Rights Courts

9
International Human Rights

• Outline
• International Law and Canons of Justice
• Significance of the ICC
• Approaches to Human Rights
• The ICC vs. Human Rights Courts
• The Role and Character of the UN

10
International Human Rights

• Outline
• International Law and Canons of Justice
• Significance of the ICC
• Approaches to Human Rights
• The ICC vs. Human Rights Courts
• The Role and Character of the UN
• The ICC vs. ad hoc Criminal Courts

11
International Human Rights

• Outline
• International Law and Canons of Justice
• Significance of the ICC
• Approaches to Human Rights
• The ICC vs. Human Rights Courts
• The Role and Character of the UN
• The ICC vs. ad hoc Criminal Courts
• A New World Order?

12
Origins of International Law

• Resolution of Conflict between European Imperial
  Powers and with Their Colonies
• Oligarchic

13
Origins of International Law

• Resolution of Conflict between European Imperial
  Powers and with Their Colonies
• Oligarchic
• Plutocratic

14
Origins of International Law

• Resolution of Conflict between European Imperial
  Powers and with Their Colonies
• Oligarchic
• Plutocratic
• Leonine

15
Origins of International Law

• Resolution of Conflict between European Imperial
  Powers and with Their Colonies
• Oligarchic
• Plutocratic
• Leonine
• ---Mohammed Bedjaoui,
• President of the International Court of Justice

16
Nature of International Law

• Geographic (European Law)

17
Nature of International Law

• Geographic (European Law)
• Religious-ethical (Christian Law)

18
Nature of International Law

• Geographic (European Law)
• Religious-ethical (Christian Law)
• Economic (Mercantilist)

19
Nature of International Law

• Geographic (European Law)
• Religious-ethical (Christian Law)
• Economic (Mercantilist)
• Political (Imperialist)
• ---Mohammed Bedjaoui,
• President of the International Court of Justice

20
Principles of Jurisprudence

• Voluntary Compliance 4
• Sense of Justice 3
• Democratic Formulation 3(by governments)

21
Principles of Jurisprudence

• Voluntary Compliance 4
• Sense of Justice 3
• Democratic Formulation 3
• Universal Applicability 4(almost, but not on the
  territory on non-ratifiers)

22
Principles of Jurisprudence

• Voluntary Compliance 4
• Sense of Justice 3
• Democratic Formulation 3
• Universal Applicability 4(almost)
• Uniform Enforcement (promising, within the
  ratification limits)

23
Principles of Jurisprudence

• Voluntary Compliance 4
• Sense of Justice 3
• Democratic Formulation 3
• Universal Applicability 4(almost)
• Uniform Enforcement (promising)
• Due Process 4(extensive, difficult to fault)

24
Principles of Jurisprudence

• Voluntary Compliance 4
• Sense of Justice 3
• Democratic Formulation 3
• Universal Applicability 4(almost)
• Uniform Enforcement (promising)
• Due Process 4(extensive)
• Separation of Powers 4
• Independent Court and Prosecutor 4
• 4 indicates ICC compliance

25
International Judiciaries

• Criminal LawICC and ad hoc UN Security Council
  Courts

26
International Judiciaries

• Criminal Law
• Trade Law Dispute Settlement Body of the World
  Trade Organization

27
International Judiciaries

• Criminal Law
• Trade Law
• Commercial Law European Court of Justice The
  International Court of Arbitration American
  Arbitration Association the UN Commission on
  International Trade Law Iran-U.S. Claims
  Tribunal UN Compensation Commission
  International Centre for the Settlement of
  Investment Disputes

28
International Judiciaries

• Criminal Law
• Trade Law
• Commercial Law
• Human Rights Regional courts for the Council of
  Europe, the Organization of American States, and
  the Organization of African Unity

29
International Tribunals

• Criminal Law
• Trade Law
• Commercial Law
• Human Rights
• The Law of the Sea International Tribunal for
  the Law of the Sea

30
International Judiciaries

• Criminal Law
• Trade Law
• Commercial Law
• Human Rights
• The Law of the Sea
• Public Law The International Court of Justice

31
International Judiciaries

• Criminal Law
• Trade Law
• Commercial Law
• Human Rights
• The Law of the Sea
• Public Law
• Environmental Law Chamber for Environmental
  Matters of the ICJ

32
Approaches to Human Rights

• Preventive, Sustained (Human Rights Courts)
• Remedy grievances before conflict escalates.

33
Approaches to Human Rights

• Preventive, Sustained (Human Rights Courts)
• Remedy grievances before conflict escalates.
• Deterrent, Sporadic (Criminal Courts)
• Deter abuses (hopefully) by threat of punishment
  and retribution.

34
Approaches to Human Rights

• Human Rights Courts
• Regional Only (EU, OAS, OAU)
• UN Human Rights Court?

35
Approaches to Human Rights

• Human Rights Courts
• Regional Only (EU, OAS, OAU)
• UN Human Rights Court?
• Criminal Courts
• Ad hoc (Ex-Yugoslavia, Rwanda, Somalia?)
• International Criminal Court
• No regional courts

36
Foundations of Human Rights

• 1948 Universal Declaration of Human Rights

37
Foundations of Human Rights

• 1948 Universal Declaration of Human Rights
• 1993 Vienna Convention and Program of Action

38
Foundations of Human Rights

• 1948 Universal Declaration of Human Rights
• 1993 Vienna Convention and Program of Action
• Regional Conventions
• Council of Europe
• Organization of American States
• Organization of African Unity

39
Foundations of International Criminal Law

• Nuremberg Principles
• Genocide
• War Crimes children,
• Crimes against Humanity
• extended to violence against women and children,
  including internal violence

40
Foundations of International Criminal Law

• Nuremberg Principles
• Genocide
• War Crimes children,
• Crimes against Humanity
• extended to violence against women and children,
  including internal violence
• Security Council ad hoc Courts Violate Article 2

41
Foundations of International Criminal Law

• Nuremberg Principles
• Genocide
• War Crimes children,
• Crimes against Humanity
• extended to violence against women and children,
  including internal violence
• Security Council ad hoc Courts Violate Article
  2
• ICC Statute by treaty in the absence of a
  legislature
• Add Aggression gt 7 years after definition.

42
The New World Order

• An Effective UN as tool of the U.S.
  government.

43
The New World Order

• An Effective UN as tool of the U.S.
  government.
• vs.
• An Effective UN as a Principled Institution.

44
The New World Order

• An Effective UN as tool of the U.S.
  government.
• vs.
• An Effective UN as a Principled Institution.
• vs.
• An Extra-UN World Order.

45
A New World Order

• UN Charter Reform Route Closed by Article 108

46
A New World Order

• UN Charter Reform Route Closed by Article 108
• General Assembly Resolution Treaty Route
• Rome International ICC Statute Treaty Conference
• International ICC Statute Treaty Friday 17 July
  1998
• Approved 120, 7, 21, with the U.S.
  administration leading the opposition of Israel,
  Iraq, Libya, Mexico...
• Treaty Revision Conference in Seven Years
• Define Aggression
• Extend Jurisdiction?

47
International Criminal Court Authorization

• Article 95
• Nothing in the present UN Charter shall
  prevent Members of the United Nations from
  entrusting the solution of their differences to
  other tribunals by virtue of agreements already
  in existence or which may be concluded in the
  future.

48
International Criminal Court

• What the ICC conference needs is a visit from
  a flight of F-18s.
• --Official Pentagon Observer
• Craig Turner, LA Times Sunday 19 July 1998

49
International Criminal Court

• Right makes might.
• --Former U.S. Attorney General Ramsay Clark

50
ICC treaty Plenary Session
51
ICC Signatory Conference
52
International Criminal Court

• There can be no global justice unless the worst
  of crimes--crimes against humanity--are subject
  to the law.
• In this age more than ever we recognize that the
  crime of genocide against one people truly is an
  assault on us all--a crime against humanity.
• The establishment of an International Criminal
  Court will ensure that humanitys response
• will be swift and will be just.
• Kofi Annan

53
The UN and the ICC

• Article 2
• The Court shall be brought into relationship
  with the United Nations through an agreement to
  be approved by the Assembly of States Parties to
  this Statute and thereafter concluded by the
  President of the Court on its behalf.

54
Criminal Jurisdiction of the ICC

• Article 5
• (a) The crime of genocide
• (b) Crimes against humanity
• (c) War crimes
• (d) The crime of aggression
• (once a provision is adopted...defining the
  crime).

55
Genocide

• Article 6
• (a) Killing members of the group
• (b) Causing serious bodily or mental harm to
  members of the group
• (c) Deliberately inflicting on the group
  conditions of life calculated to bring about its
  physical destruction in whole or in part
• (d) Imposing measures intended to prevent births
  within the group
• (e) Forcibly transferring children of the group
  to another group.

56
Crimes against Humanity

• Article 7
• (a) Murder
• (b) Extermination
• (c) Enslavement
• (d) Deportation or forcible transfer of
  population
• (e) Imprisonment or other severe deprivation of
  physical liberty in violation of fundamental
  rules of international law

57
Crimes against Humanity

• Article 7
• (f) Torture

58
Crimes against Humanity

• Article 7
• (f) Torture
• (g) Rape, sexual slavery, enforced prostitution,
  forced pregnancy, enforced sterilization, or any
  other form of sexual violence of comparable
  gravity

59
Crimes against Humanity

• Article 7
• (f) Torture
• (g) Rape, sexual slavery, enforced prostitution,
  forced pregnancy, enforced sterilization, or any
  other form of sexual violence of comparable
  gravity
• (h) Persecution against any identifiable group
  or collectivity on political, racial, national,
  ethnic, cultural, religious, gender as defined in
  paragraph 3, or other grounds that are
  universally recognized as impermissible under
  international law, in connection with any act
  referred to in this paragraph or any crime within
  the jurisdiction of the Court Apartheid,
  Zionism

60
Crimes against Humanity

• Article 7
• (i) Enforced disappearance of persons
• (j) The crime of apartheid
• (k) Other inhumane acts of a similar character
  intentionally causing great suffering, or serious
  injury to body or to mental or physical health.

61
Crimes against Humanity

• Article 7
• (f) Forced pregnancy means the unlawful
  confinement, of a woman forcibly made pregnant,
  with the intent of affecting the ethnic
  composition of any population or carrying out
  other grave violations of international law. This
  definition shall not in any way be interpreted as
  affecting national laws relating to pregnancy

62
War Crimes Article 8

• (a) Grave breaches of the Geneva Conventions of
  12 August 1949, namely, any of the following acts
  against persons or property protected under the
  provisions of the relevant Geneva Convention
• (i) Willful killing
• (ii) Torture or inhuman treatment, including
  biological experiments
• (iii) Willfully causing great suffering, or
  serious injury to body or health
• (iv) Extensive destruction and appropriation of
  property, not justified by military necessity and
  carried out unlawfully and wantonly
• (v) Compelling a prisoner of war or other
  protected person to serve in the forces of a
  hostile Power
• (vi) Willfully depriving a prisoner of war or
  other protected person of the rights of fair and
  regular trial
• (vii) Unlawful deportation or transfer or
  unlawful confinement
• (viii) Taking of hostages.

63
War Crimes Article 8

• (b) (viii) The transfer, directly or indirectly,
  by the Occupying Power of parts of its own
  civilian population into the territory it
  occupies, or the deportation or transfer of all
  or parts of the population of the occupied
  territory within or outside this territory.
• Ethnic Cleansing, Zionism

64
War Crimes

• Article 8
• 2(b) Other serious violations of the laws and
  customs applicable in international armed
  conflict, within the established framework of
  international law, namely, any of the following
  acts 27 items, including conscription of
  children
• Legitimizes war by defining rules of
  engagement.
• Aggression will be illegal (and still
  undefined), but not war.

65
War Crimes

• Article 8
• 2(c) In the case of an armed conflict not of an
  international character, serious violations of
  Article 3 common to the four Geneva Conventions
  of 12 August 1949,
• Erodes national sovereignty

66
War Crimes

• Article 9 Elements of Crimes
• 1. Elements of Crimes shall assist the Court in
  the interpretation and application of articles 6,
  7 and 8. They shall be adopted by a twothirds
  majority of the members of the Assembly of States
  Parties.
• Legislation by the Assembly of States Parties.
• Circumvents the UN and its Security Council!

67
Conclusions and Consequences

• Breaks open gridlock in UN Charter.

68
Conclusions and Consequences

• Breaks open gridlock in UN Charter.
• U.S. government cant obstruct through the
  Security Council.

69
Conclusions and Consequences

• Breaks open gridlock in UN Charter.
• U.S. government cant obstruct through the
  Security Council.
• Extra-UN World rule of law by treaty statute with
  multiple legislatures and affiliated tribunals?

70
Conclusions and Consequences

• Breaks open gridlock in UN Charter.
• U.S. government cant obstruct through the
  Security Council.
• Extra-UN World rule of law by treaty statute with
  multiple legislatures and affiliated tribunals?
• Opening for UN Human Rights Court?

71
Conclusions and Consequences

• Breaks open gridlock in UN Charter.
• U.S. government cant obstruct through the
  Security Council.
• Extra-UN World rule of law by treaty statute with
  multiple legislatures and affiliated tribunals?
• Opening for UN Human Rights Court?
• No more Security Council ad hoc courts?

72
Conclusions and Consequences

• ICC respects basic principles.
• Expansion of Nuremberg jurisdiction
• Violence against women and children
• Aggression
• Non-international (internal) conflict
• More specificity is provided in the definitions
  of crimes. Provision for the definition of the
  elements of crime by the Assembly of States
  Parties.

73
Conclusions and Consequences

• ICC respects basic principles.
• Expansion of Nuremberg jurisdiction
• Violence against women and children
• Aggression
• Non-international conflict
• Independent Prosecutor can initiate
  investigations to submit to the Pre-Trial Chamber

74
Conclusions and Consequences

• ICC respects basic principles.
• Expansion of Nuremberg jurisdiction
• Violence against women and children
• Aggression
• Non-international conflict
• Independent Prosecutor
• Independent Court 9 judges with competence in
  criminal law 5 judges with competence in
  international human rights and humanitarian law

75
Conclusions and Consequences

• ICC respects basic principles.
• Expansion of Nuremberg jurisdiction
• Violence against women and children
• Aggression
• Non-international conflict
• Independent Prosecutor
• Independent Court
• Universal Applicability almost, except on the
  territory on non-ratifiers

76
Conclusions and Consequences

• ICC respects basic principles.
• Expansion of Nuremberg jurisdiction
• Violence against women and children
• Aggression
• Non-international conflict
• Independent Prosecutor
• Independent Court
• Universal Applicability
• Major atrocities may receive some attention.
• East Timor, Guatemala, Myanmar, etc.,

77
ICC vs. Human Rights Court

• International Criminal Court
• Only worst, most egregious violations.
• After the fact.
• Punishment.
• Minimal effect.

78
ICC vs. Human Rights Court

• International Criminal Court
• Only worst, most egregious violations.
• After the fact.
• Punishment.
• Minimal effect.
• Human Rights Courts
• Wide mandate (and work load) and preventive
  character.
• Redress of Grievances.
• Preventive.
• Large potential effect.

79
Questions

• Why the enthusiasm for the ICC over Human Rights
  Courts at the UN level?

80
Questions

• Why the enthusiasm for the ICC over Human Rights
  Courts at the UN level?
• Why the presence of regional Human Rights Courts
  instead of Criminal Courts?

81
Questions

• Why the enthusiasm for the ICC over Human Rights
  Courts at the UN level?
• Why the presence of regional Human Rights Courts
  instead of Criminal Courts?
• Why the opposition from the U.S. and a few other
  governments?

82
Questions

• Why the enthusiasm for the ICC over Human Rights
  Courts at the UN level?
• Why the presence of regional Human Rights Courts
  instead of Criminal Courts?
• Why the opposition from the U.S. and a few other
  governments?
• How have criminal courts performed compared to
  human rights courts?