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Debate: International Criminal Court

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===Background and Context of Debate:=== ===Background and Context of Debate:===
 +The International Criminal Court (ICC or ICCt) was established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression, although it cannot currently exercise jurisdiction over the crime of aggression. The Court came into being on 1 July 2002 — the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force — and it can only prosecute crimes committed on or after that date.
 +As of November 2008, 108 states are members of the Court;A further 40 countries have signed but not ratified the Rome Statute. However, a number of states, including China, Russia, India and the United States, are critical of the Court and have not joined.
 +The Court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the United Nations Security Council. The Court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore left to individual states.
 +This debate asks whether the International Criminal Court is a good thing.
 +
 +<small>Based on [[wikipedia:International Criminal Court|International Criminal Court]]</small>
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Revision as of 21:18, 11 December 2008

What are the pros and cons of the ICC? Should the US and other countries join?


Contents

Background and Context of Debate:

The International Criminal Court (ICC or ICCt) was established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression, although it cannot currently exercise jurisdiction over the crime of aggression. The Court came into being on 1 July 2002 — the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force — and it can only prosecute crimes committed on or after that date.

As of November 2008, 108 states are members of the Court;A further 40 countries have signed but not ratified the Rome Statute. However, a number of states, including China, Russia, India and the United States, are critical of the Court and have not joined. The Court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the United Nations Security Council. The Court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore left to individual states.

This debate asks whether the International Criminal Court is a good thing.

Based on International Criminal Court

Argument #1

Yes

  • Joining ICC will signal renewed American engagement in the world. Roger Cohen. "A Court for a New America". New York Times. 3 Dec. 2008 - "I can think of no better place for President-elect Barack Obama to start in signaling a changed American approach to the world, and particularly its European allies, than the International Criminal Court."
  • The ICC has gained widespread acceptance globally. Roger Cohen. "A Court for a New America". New York Times. 3 Dec. 2008 - "It’s time to look again at the International Criminal Court. Over the past six years, the court has achieved what Philippe Kirsch, its Canadian president, called “a great deal of acceptability.” There are now 108 member countries, including every European Union nation except the Czech Republic, which appears set to join. [...] The United States stands alone among major Western industrial powers in rejecting the court: it has in effect deserted those powers’ attempt to mark a new century with a new commitment to eradicating genocide and crimes against humanity by ensuring there is no impunity for them. Washington has broken ranks with the Western liberal tradition of which it should be a cornerstone."
  • ICC is the best tool for fighting genocide and war crimes Roger Cohen. "A Court for a New America". New York Times. 3 Dec. 2008 - "After the terrible decade of the 1990s, with its genocides in Bosnia and Rwanda and the loss there of a million lives while the United States and its allies dithered, it is unconscionable that America not stand with the institution that constitutes the most effective legal deterrent to such crimes [...] The International Criminal Court has filed charges against alleged war criminals in Congo, Central African Republic, Uganda and Sudan since it started work in 2002. The first trial, involving a Congolese warlord, Thomas Lubanga, is set to begin in January."
  • US opposition to ICC impaired justice in Sudan genocide. Roger Cohen. "A Court for a New America". New York Times. 3 Dec. 2008 - "it is in Sudan that the incoherence of American policy toward the court has been most evident. The United States is against impunity for the genocidal crimes in Darfur, yet it is not a member of the court seeking to prosecute those responsible [...] The court has issued arrest warrants for a former Sudanese government minister, Ahmad Harun, and for Ali Kushayb, a leader of the government-backed janjaweed militia. In July, it requested an arrest warrant for Omar Hassan al-Bashir, the Sudanese president, on charges of genocide, but judges are still reviewing whether to push ahead with the prosecution [...] When I asked Brooke Anderson, Obama’s chief national security spokeswoman, about policy toward the court, I received this e-mail response: 'President-elect Obama strongly supports the I.C.C.’s efforts to investigate and prosecute those responsible for atrocities in Sudan.'"


No

  • ICC can pass unaccountable rulings on a country's troops. President George W. Bush said in the first term of his administration: "The United States cooperates with many other nations to keep the peace, but we will not submit American troops to prosecutors and judges whose jurisdiction we do not accept.… Every person who serves under the American flag will answer to his or her own superiors and to military law, not to the rulings of an unaccountable International Criminal Court."
  • The ICC's authority is vague and over-reaches. John R. Bolton, Under Secretary for Arms Control and International Security. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002 - "As to the former, the ICC’s authority is vague and excessively elastic, and the Court’s discretion ranges far beyond normal or acceptable judicial responsibilities, giving it broad and unacceptable powers of interpretation that are essentially political and legislative in nature. This is most emphatically not a Court of limited jurisdiction. Crimes can be added subsequently that go beyond those included in the Rome Statute. Parties to the Statute are subject to these subsequently-added crimes only if they affirmatively accept them, but the Statute purports automatically to bind non-parties, such as the United States, to any such new crimes. It is neither reasonable nor fair that these crimes would apply to a greater extent to states that have not agreed to the terms of the Rome Statute than to those that have."
  • ICC adopts an unacceptably vague definition of "aggression". John R. Bolton, Under Secretary for Arms Control and International Security. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002 - "Numerous prospective "crimes" were suggested at Rome and commanded wide support from participating nations, such as the crime of "aggression," which was included in the Statute, but not defined. Although frequently easy to identify, "aggression" can at times be something in the eye of the beholder. For example, Israel justifiably feared in Rome that certain actions, such as its initial use of force in the Six Day War, would be perceived as illegitimate preemptive strikes that almost certainly would have provoked proceedings against top Israeli officials. Moreover, there seems little doubt that Israel will be the target of a complaint in the ICC concerning conditions and practices by the Israeli military in the West Bank and Gaza. Israel recently decided to declare its intention not to become a party to the ICC or to be bound by the Statute’s obligations [...] A fair reading of the treaty leaves one unable to answer with confidence whether the United States would now be accused of war crimes for legitimate but controversial uses of force to protect world peace. No U.S. Presidents or their advisors could be assured that they would be unequivocally safe from politicized charges of criminal liability."
  • ICC lacks separation of powers and checks and balances John R. Bolton, Under Secretary for Arms Control and International Security. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002 - "The American concept of separation of powers, imperfect though it is, reflects our settled belief that liberty is best protected when the various authorities legitimately exercised by government are, to the maximum extent possible, placed in separate branches. So structuring the national government, the Framers believed, would prevent the excessive accumulation of power in a limited number of hands, thus providing the greatest protection for individual liberty. Continental European constitutional structures do not, by and large, reflect a similar set of beliefs. They do not so thoroughly separate judicial from executive powers, just as their parliamentary systems do not so thoroughly separate executive from legislative powers. That, of course, is entirely Europe’s prerogative, and may help to explain why Europeans appear to be more comfortable with the ICC’s structure, which closely melds prosecutorial and judicial functions in the European fashion."
  • ICC subjects top national leaders to risk of prosecution. John R. Bolton, Under Secretary for Arms Control and International Security. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002 - "We are considering, in the Prosecutor, a powerful and necessary element of executive power, the power of law-enforcement. Never before has the United States been asked to place any of that power outside the complete control of our national government without our consent. Our concern goes beyond the possibility that the Prosecutor will target for indictment the isolated U.S. soldier who violates our own laws and values by allegedly committing a war crime. Our principal concern is for our country’s top civilian and military leaders, those responsible for our defense and foreign policy. They are the ones potentially at risk at the hands of the ICC’s politically unaccountable Prosecutor, as part of an agenda to restrain American discretion, even when our actions are legitimated by the operation of our own constitutional system."
  • Argument: ICC may interfere with the work of the UN Security Council "Under the UN Charter, the Security Council has primary responsibility for the maintenance of international peace and security. The ICC’s efforts could easily conflict with the Council’s work. Indeed, the Statute of Rome substantially minimized the Security Council’s role in ICC affairs. While the Security Council may refer matters to the ICC, or order it to refrain from commencing or proceeding with an investigation or prosecution , the Council is precluded from a meaningful role in the ICC’s work. In requiring an affirmative Council vote to stop a case, the Statute shifts the balance of authority from the Council to the ICC."


Deterrence: Will the ICC help deter war crimes?

Yes

No

  • Deterrence theory is untenable; ICC will not deter. John R. Bolton, Under Secretary for Arms Control and International Security. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002 - "ICC will not help deter the danger of the ICC may lie in its potential weakness rather than its potential strength. The most basic error is the belief that the ICC will have a substantial deterrent effect against the perpetration of crimes against humanity. Behind their optimistic rhetoric, ICC proponents have not a shred of evidence supporting their deterrence theories. In fact, they fundamentally confuse the appropriate roles of political and economic power, diplomatic efforts, military force, and legal procedures. Recent history is filled with cases where even strong military force or the threat of force failed to deter aggression or gross abuses of human rights. ICC proponents concede as much when they cite cases where the "world community" has failed to pay adequate attention, or failed to intervene in time to prevent genocide or other crimes against humanity. The new Court and Prosecutor, it is said, will now guarantee against similar failures."
  • ICC is too ineffective to deter war crimes. John R. Bolton, Under Secretary for Arms Control and International Security. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002 - "deterrence ultimately depends on perceived effectiveness, and the ICC fails badly on that point. The ICC’s authority is far too attenuated to make the slightest bit of difference either to the war criminals or to the outside world. In cases where the West in particular has been unwilling to intervene militarily to prevent crimes against humanity as they were happening, why will a potential perpetrator feel deterred by the mere possibility of future legal action? A weak and distant Court will have no deterrent effect on the hard men like Pol Pot most likely to commit crimes against humanity. Why should anyone imagine that bewigged judges in The Hague will succeed where cold steel has failed? Holding out the prospect of ICC deterrence to the weak and vulnerable amounts to a cruel joke."


US article 98 agreements: Are the US bilateral agreements invalid?

Yes

No

  • Article 98 agreements help protect US citizens from ICC. John R. Bolton, Under Secretary for Arms Control and International Security. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002 - "in order to protect our citizens, we are in the process of negotiating bilateral agreements with the largest possible number of states, including non-Parties. These Article 98 agreements, as they are called, provide American citizens with essential protection against the Court’s purported jurisdiction claims, and allow us to remain engaged internationally with our friends and allies. To date, 14 countries have signed Article 98 agreements with us. It is a misconception that the United States wants to use these Article 98 agreements to undermine the ICC. To the contrary, we are determined to work with States Parties, utilizing a mechanism prescribed within the Rome Statute itself, to find an acceptable solution to one of the main problems posed by the ICC.


Argument #3

Yes

No

Argument #4

Yes

No

Pro/con sources

Yes


No

References:

Motions:

  • This House Believes that the US Should Not Support the International Criminal Court
  • This House Believes that the Creation of the ICC is a Crime

In legislation, policy, and the real world:

See also on Debatepedia:

External links and resources:

Books:

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