The UN International and Regional Human Rights International

The UN, International and Regional Human Rights • International Criminal Court • ad hoc Criminal Courts • Regional Human Rights Courts • A New World Order? International Human Rights 1

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…” International Human Rights 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…” --Republican President George Bush, after launching the war against Iraq International Human Rights 3

The New World Order • “To hell with international law! You’ve got a choice to make. You’re either for us or against us, and I only hope for your sake you make the right choice. ” International Human Rights 4

The New World Order • “To hell with international law! You’ve got a choice to make. You’re either for us or against us, and I only hope for your sake you make the right choice. ” • --Republican Senator Alfonse D’Amato • (New York) International Human Rights 5

International Human Rights Outline • International Law and Canons of Justice International Human Rights 6

International Human Rights Outline • International Law and Canons of Justice • Significance of the ICC International Human Rights 7

International Human Rights Outline • International Law and Canons of Justice • Significance of the ICC • Approaches to Human Rights: – The ICC vs. Human Rights Courts International Human Rights 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 • The Role and Character of the UN International Human Rights 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 • The ICC vs. ad hoc Criminal Courts International Human Rights 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 • A New World Order? International Human Rights 11

Origins of International Law Resolution of Conflict between European Imperial Powers and with Their Colonies – Oligarchic International Human Rights 12

Origins of International Law Resolution of Conflict between European Imperial Powers and with Their Colonies – Oligarchic – Plutocratic International Human Rights 13

Origins of International Law Resolution of Conflict between European Imperial Powers and with Their Colonies – Oligarchic – Plutocratic – Leonine International Human Rights 14

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 International Human Rights 15

Nature of International Law • Geographic (European Law) International Human Rights 16

Nature of International Law • Geographic (European Law) • Religious-ethical (Christian Law) International Human Rights 17

Nature of International Law • Geographic (European Law) • Religious-ethical (Christian Law) • Economic (Mercantilist) International Human Rights 18

Nature of International Law • • Geographic (European Law) Religious-ethical (Christian Law) Economic (Mercantilist) Political (Imperialist) ---Mohammed Bedjaoui, President of the International Court of Justice International Human Rights 19

Principles of Jurisprudence • Voluntary Compliance 4 – Sense of Justice 3 – Democratic Formulation 3(by governments) International Human Rights 20

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) International Human Rights 21

Principles of Jurisprudence • Voluntary Compliance 4 – Sense of Justice 3 – Democratic Formulation 3 • Universal Applicability 4(almost) • Uniform Enforcement (promising, within the ratification limits) International Human Rights 22

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) International Human Rights 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) Separation of Powers 4 – Independent Court and Prosecutor 4 [4 indicates ICC compliance] International Human Rights 24

International Judiciaries • Criminal Law[ICC and ad hoc UN Security Council Courts] International Human Rights 25

International Judiciaries • Criminal Law • Trade Law [Dispute Settlement Body of the World Trade Organization] International Human Rights 26

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] International Human Rights 27

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] International Human Rights 28

International Tribunals • • • Criminal Law Trade Law Commercial Law Human Rights The Law of the Sea [International Tribunal for the Law of the Sea] International Human Rights 29

International Judiciaries • • • Criminal Law Trade Law Commercial Law Human Rights The Law of the Sea Public Law [The International Court of Justice] International Human Rights 30

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] International Human Rights 31

Approaches to Human Rights • Preventive, Sustained (Human Rights Courts) Remedy grievances before conflict escalates. International Human Rights 32

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. International Human Rights 33

Approaches to Human Rights • Human Rights Courts – Regional Only (EU, OAS, OAU) – UN Human Rights Court? International Human Rights 34

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 International Human Rights 35

Foundations of Human Rights • 1948 Universal Declaration of Human Rights International Human Rights 36

Foundations of Human Rights • 1948 Universal Declaration of Human Rights • 1993 Vienna Convention and Program of Action International Human Rights 37

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 International Human Rights 38

Foundations of International Criminal Law • Nuremberg Principles – Genocide – War Crimes children, – Crimes against Humanity [extended to violence against women and children, including internal violence] International Human Rights 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] • Security Council ad hoc Courts [Violate Article 2] International Human Rights 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] • ICC Statute [by treaty in the absence of a legislature] – Add Aggression [ > 7 years after definition. ] International Human Rights 41

The New World Order – An [“Effective”] UN as tool of the U. S. government. International Human Rights 42

The New World Order – An [“Effective”] UN as tool of the U. S. government. vs. – An “Effective” UN as a Principled Institution. International Human Rights 43

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. International Human Rights 44

A New World Order • UN Charter Reform Route Closed by Article 108 International Human Rights 45

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? International Human Rights 46

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. ” International Human Rights 47

International Criminal Court “What the [ICC] conference needs is a visit from a flight of F 18 s. ” --Official Pentagon Observer [Craig Turner, LA Times Sunday 19 July 1998] International Human Rights 48

International Criminal Court “Right makes might. ” --Former U. S. Attorney General Ramsay Clark International Human Rights 49

ICC treaty Plenary Session International Human Rights 50

ICC Signatory Conference International Human Rights 51

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 humanity’s response will be swift and will be just. ” Kofi Annan International Human Rights 52

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. ” International Human Rights 53

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). International Human Rights 54

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. ” International Human Rights 55

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; “ International Human Rights 56

Crimes against Humanity Article 7 • (f) “Torture; International Human Rights 57

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; International Human Rights 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; • (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] International Human Rights 59

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. ” International Human Rights 60

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; ” International Human Rights 61

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. International Human Rights 62

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] International Human Rights 63

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. ] International Human Rights 64

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] International Human Rights 65

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 two thirds majority of the members of the Assembly of States Parties. ” [Legislation by the Assembly of States Parties. Circumvents the UN and its Security Council!] International Human Rights 66

Conclusions and Consequences • Breaks open gridlock in UN Charter. International Human Rights 67

Conclusions and Consequences • Breaks open gridlock in UN Charter. – U. S. government can’t obstruct through the Security Council. International Human Rights 68

Conclusions and Consequences • Breaks open gridlock in UN Charter. – U. S. government can’t obstruct through the Security Council. – Extra-UN World rule of law by treaty statute with multiple legislatures and affiliated tribunals? International Human Rights 69

Conclusions and Consequences • Breaks open gridlock in UN Charter. – U. S. government can’t 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? International Human Rights 70

Conclusions and Consequences • Breaks open gridlock in UN Charter. – U. S. government can’t 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? International Human Rights 71

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. ] International Human Rights 72

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] International Human Rights 73

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] International Human Rights 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 – Universal Applicability [almost, except on the territory on non-ratifiers] International Human Rights 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 Major atrocities may receive some attention. [East Timor, Guatemala, Myanmar, etc. , …] International Human Rights 76

ICC vs. Human Rights Court • International Criminal Court – Only worst, most egregious violations. – After the fact. – Punishment. – Minimal effect. International Human Rights 77

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. International Human Rights 78

Questions • Why the enthusiasm for the ICC over Human Rights Courts at the UN level? International Human Rights 79

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? International Human Rights 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? • Why the opposition from the U. S. and a few other governments? International Human Rights 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? • How have criminal courts performed compared to human rights courts? International Human Rights 82