Tuesday, 18 March 2008
Sunday, 16 March 2008
How about keeping and torturing the alleged terrorists in Guantanamo bay?
1 thing can be added to : how about terrorism issues? Neither ad-hoc Tribunals nor the ICC is able to deal with terrorism. Secondly, those 'terrorists' kept in Guantanamo are considered terrorists but are not over any ICC jurisdiction or any Tribunal, they are simply 'treated' by Bush's policy and no criminal court or Tribunal can take action to stop the inhuman and cruel treatment of the detainees in Guantanamo. That argument puts all of us in difficult situation and probably the whole discussion will lead to conclusion, that there should be an other option which would bring the international justice. Other than ad-hoc Tribunals and ICC.
another thought
just something we could maybe end on:
ask whether or not we should in fact be seeking justice or peace (if indeed we need to pick one or the other) - as loadsa former yugoslavia lot on both sides think the tribunals create more tension.
Thoughts
As with Amanda and Grace, i see this as about tribunals such as the ICTY/R as being inadequate, and i guess the Q leaves room for arguments re the adequacy of alternatives eg the ICC [although i reckon the focus is on the crappiness of ICTY/R, since that's what the Q specifically asks]. Thoughts as to why international tribunals just don't cut it (in no particular order):
- What is justice? (I don't think this is the time for deep debate, but do think the issue needs to be at least vaguely addressed, since it is in the question) - if we mean acknowledgment of crimes committed, holding those who committed crimes accountable, and punishing those accountable, then do the tribunals achieve this? One argument as pointed out in the class is that (cf Pinochet) many of those who actually committed the crimes are still in prison and have not been put on trial because these tribunals are underfunded/under-resourced - that these tribunals can only try the head honchos (and couldn't even get this done in the case of Pinochet) and so do not achieve justice in this sense.
- These tribunals are set up by the SC which poses two problems re justice:
- 1. SC/P-5/veto issue - if that lot don't have an interest in the matter, or have an interest in avoiding the setting up of a tribunal (eg they don't want to mess up what is a good trading alliance) then the tribunal will not come into existence. Obv this won't achieve justice (eg Bush has arguably...committed war crimes (allowed them to be committed) but i don't see a ICTAmerica being set up to try him). The fact that Americans can be held to trial under ICC is precisely why US won't sign up to it, whereas not much fuss is made against these ad hoc tribunals coz they really are unlikely to be created in certain powerful states.
- 1.5 Related to this is the issue of eg individs from NATO countries not being tried at the ICTY - they helped to set it up/provide much of the funding, its v unlikely that they would be tried (icty is tres expensive and all the costs are dealt with by UN members)
- 2. The UN/SC are under public scrutiny and as with other courts are often under pressure to 'be seen' to be doing something ('show trials') - if there's a humanitarian crisis going on somewhere, they may set up a tribunal knowing full well from the start that they want to 'punish the bad guy' - ie it may not be the fairest of trials - eg ICTY, most prosecutions were Serbs, yet crimes against Serbs were not brought to justice...arguably. The statutes creating the tribunals may in themselves be written so as to lead to the desired result (it's possible, esp since the tribunals are creating for that very specific purpose)
- Again, issue re what we mean by justice and the impartiality of judges: a bit like the Eurovision song contest, you know whose going to vote which way before he voting begins - there will be some biased [ie because of the country 'under trial' and relations with their own state] judges in there
- The tribunals are based in Geneva - i can;t think why this is shit just now, but i assume there are reasons...i'll come back to this later if my mind starts working properly. Maybe there's something about cultural relativism [ie in the application of laws - compare eg to the Supreme Iraqi Criminal Tribunal which was set up for Saddam Hussein and co - he was hanged/hung and some may argue that this was justice. I don't fully understand this tribunal, i don't think its international although i think those who set it up claimed they were doing so under the SC powers - which reminds me of other point (already mentioned i think) that these tribunals may not even be legit since the SC may not have the power to set them up] in there, that often comes up...West imposing its idea of what are human rights/massive lack of connection to the states in which the crimes were committed.
- The tribunals have no power of arrest, so in addition to being v.slow (and hence many prisoners are not tried), many of those who committed crimes continued to roam free.
- Is focusing on an individual the best way to attain justice? Many crimes against humanity can only work not because of a single leader but because of the massive support he gains from his 'followers' - so should the 'state'/the 'system' be held responsible? And does prosecuting a few randoms who happened to be put to trial amount to justice? This links in to my 'show trials' point above. Is this more like 'symbolic justice' and is this truly justice?
- Was it the ICTY or R or both that developed the law on rape? Either way - is this justice? Creating new crimes and then holding those who committed this crimes responsible for them - isn't this a bit retro-active and therefore kinda wrong? (obv i think they created brill laws which i reckon should be translated to domestic law also - dont want u to think i am a fan of the baddies...)
I can;t think of anything else right not. Plus i seem to be falling asleep. 8.30 is pretty damn late.
Saturday, 15 March 2008
Readings and further points
First off, has anyone found anything worth reading? Am working my way through the reading list, but haven't found anything amazingly useful yet.
Secondly - Grace, I read the question the same way as you; I assumed the word 'tribunal' was used deliberately. I suppose we could talk about the ICC as well, but I had seen it more as a 'the ICC is a better model than the ICTY/R'.
It's true that they were used before the ICC came into existance, however, imo the comparison is still valid because those who committed war crimes are still being tried in the tribunals, rather than under the jurisdiction of the ICC.
I'm not sure wading into philosophical definitions of justice is appropriate in a legal forum, but i guess it could be approached in this way? However, reading the question, the way it's phrased implies that maybe she wants us to examine this point.
Maybe this means there are two things to discuss - the adequecy of tribunals vs a permanent court and then the problems of 'international justice' overall?
amanda
Secondly - Grace, I read the question the same way as you; I assumed the word 'tribunal' was used deliberately. I suppose we could talk about the ICC as well, but I had seen it more as a 'the ICC is a better model than the ICTY/R'.
It's true that they were used before the ICC came into existance, however, imo the comparison is still valid because those who committed war crimes are still being tried in the tribunals, rather than under the jurisdiction of the ICC.
I'm not sure wading into philosophical definitions of justice is appropriate in a legal forum, but i guess it could be approached in this way? However, reading the question, the way it's phrased implies that maybe she wants us to examine this point.
Maybe this means there are two things to discuss - the adequecy of tribunals vs a permanent court and then the problems of 'international justice' overall?
amanda
Friday, 14 March 2008
Whoa, question
Hey I'm a little confused here.
I have read the reference to international tribunals as meaning the ad hoc tribunals, rather than both ad hoc tribunals AND the ICC, because it is a permanent court (although of course it can also be referred to as a tribunal). How does everyone else read this question?
Grace
I have read the reference to international tribunals as meaning the ad hoc tribunals, rather than both ad hoc tribunals AND the ICC, because it is a permanent court (although of course it can also be referred to as a tribunal). How does everyone else read this question?
Grace
Three Points:
If I am to advocate these are the three points I think I would like to raise:
1. If the central term of the title question is "justice" and we are being asked whether or not IT are an 'adequate' means to enforce then I would argue that the justice is a broad term, and even when restricted to its criminal sense refers to far more crimes than the ICC or either ad-hoc tribunal has jurisdiction over. Article 5 of the Rome Statue sets out that the only crimes over which the ICC has jurisdiction are:
- the crime of genocide
- crimes against humanity
- war crimes
- the crime of aggression (and no subsequent additonal provision has been adopted to create a defined form of jurisdiction over this).
This means that the ICC is unable to deal with a number of other issues of criminal justice. The point that highlights this best, is that the ICC is unable to deal with the crime Trindad and Tobago had in mind when they made the inital suggestion regarding the existence of an international criminal court. Trindad and Tobago wanted an international judicial body to be created that would be able to deal with the crime of narcotics trading - a matter of international criminal justice - but the ICC is unable to deal with this.
In limiing the nature of crimes against which it can prosecute, in order to insure state consent to its jurisdiction, the ICC has undermined itself as an enforcer of international justice.
This leads to my second point:
2. Both the ICC and the ICT Y and R face jurisdictional problems, although in the two cases the tension between state sovereignty and the enforcement of international justice pulls in opposite directions. The point here is that states are unwilling to submit to the jurisdiction of an international tribunal with regard to criminal matters, as jurisdiction with regard to crime is typically an area dealt with by a state, within its own borders. Submitting jurisdiction to an international court consequently means a loss of state-power. In the case of the ICC, as mentioned above, this tension has led to a limitation on the powers of the Court. Further to this however, it has also meant that the Court does not have univeral jurisdiction; a crime can only be considered it intially falls within the jurisdiction of a State Party to the Rome Statue (which states are not necessitated to be; a total of 105 states have assented) and if that crime has not, by reasons of choice or circumstance, been prosecuted in that national jurisdiction. Articles 1 and 17 sets out these parameters,, and a wide margin (somewhat mitigated by the role of the Prosecutor) is given to states, in terms of the expectation that they will prosecute the crime within their own borders. The lack of universal jurisdiction of the ICC due to concerns regarding state sovereignty, undermines its claims to 'adequate' provision with regard to international justice, where international justice is considered a concept which is not defined within state borders. From the opposite perspective, the nature of the ICT Y and R are problematic, as if state sovereignty is viewed as a concern, the imposition of a compulsory war crimes tribunal on a state, by the SC can be seen as an impostion on this sovereignty, as there is considerable debate as to whether the creation of these tribunals is within the SC's Article VII powers; the question is, in what way does is the creation of an international criminal tribunal a genuine counteraction to a 'threat to international peace and security'?
3. On a more pragmatic note international tribunals (both the ad-hoc tribunals and the ICC) are inadequately funded to enforce even the limited notion of international justice for which their statutes provide. The cases that run in the courts are notoriously long running, as the Milosevic case in the ICT Y - which remained unconcluded at his death -proves. The ad-hoc tribunals are also unable to hear the vast number of cases that could possibly be heard before them. Given the notion of secondary liability enshrined in the Celadic and Akeyasu cases, and the resource contraints the focus has been on prosecuting those in command of regimes under which criminal acts have been committed; large numbers of those who followed the orders of commanders however, remain unprosecuted. This does not paint a picture of an 'adequate' system of international justice. Further to this, the ICC has heard very few cases since its inception (a total of 9), again pointing towards a body unable to take on the expansive role that its own statue appears to imply. Arguably more than 9 cases of crimes of the form listed in the Article 5 of the Rome Statute, and which have not been fully investigated by states, have occurred since the court's inception.
Hope that's OK!
Zoe
1. If the central term of the title question is "justice" and we are being asked whether or not IT are an 'adequate' means to enforce then I would argue that the justice is a broad term, and even when restricted to its criminal sense refers to far more crimes than the ICC or either ad-hoc tribunal has jurisdiction over. Article 5 of the Rome Statue sets out that the only crimes over which the ICC has jurisdiction are:
- the crime of genocide
- crimes against humanity
- war crimes
- the crime of aggression (and no subsequent additonal provision has been adopted to create a defined form of jurisdiction over this).
This means that the ICC is unable to deal with a number of other issues of criminal justice. The point that highlights this best, is that the ICC is unable to deal with the crime Trindad and Tobago had in mind when they made the inital suggestion regarding the existence of an international criminal court. Trindad and Tobago wanted an international judicial body to be created that would be able to deal with the crime of narcotics trading - a matter of international criminal justice - but the ICC is unable to deal with this.
In limiing the nature of crimes against which it can prosecute, in order to insure state consent to its jurisdiction, the ICC has undermined itself as an enforcer of international justice.
This leads to my second point:
2. Both the ICC and the ICT Y and R face jurisdictional problems, although in the two cases the tension between state sovereignty and the enforcement of international justice pulls in opposite directions. The point here is that states are unwilling to submit to the jurisdiction of an international tribunal with regard to criminal matters, as jurisdiction with regard to crime is typically an area dealt with by a state, within its own borders. Submitting jurisdiction to an international court consequently means a loss of state-power. In the case of the ICC, as mentioned above, this tension has led to a limitation on the powers of the Court. Further to this however, it has also meant that the Court does not have univeral jurisdiction; a crime can only be considered it intially falls within the jurisdiction of a State Party to the Rome Statue (which states are not necessitated to be; a total of 105 states have assented) and if that crime has not, by reasons of choice or circumstance, been prosecuted in that national jurisdiction. Articles 1 and 17 sets out these parameters,, and a wide margin (somewhat mitigated by the role of the Prosecutor) is given to states, in terms of the expectation that they will prosecute the crime within their own borders. The lack of universal jurisdiction of the ICC due to concerns regarding state sovereignty, undermines its claims to 'adequate' provision with regard to international justice, where international justice is considered a concept which is not defined within state borders. From the opposite perspective, the nature of the ICT Y and R are problematic, as if state sovereignty is viewed as a concern, the imposition of a compulsory war crimes tribunal on a state, by the SC can be seen as an impostion on this sovereignty, as there is considerable debate as to whether the creation of these tribunals is within the SC's Article VII powers; the question is, in what way does is the creation of an international criminal tribunal a genuine counteraction to a 'threat to international peace and security'?
3. On a more pragmatic note international tribunals (both the ad-hoc tribunals and the ICC) are inadequately funded to enforce even the limited notion of international justice for which their statutes provide. The cases that run in the courts are notoriously long running, as the Milosevic case in the ICT Y - which remained unconcluded at his death -proves. The ad-hoc tribunals are also unable to hear the vast number of cases that could possibly be heard before them. Given the notion of secondary liability enshrined in the Celadic and Akeyasu cases, and the resource contraints the focus has been on prosecuting those in command of regimes under which criminal acts have been committed; large numbers of those who followed the orders of commanders however, remain unprosecuted. This does not paint a picture of an 'adequate' system of international justice. Further to this, the ICC has heard very few cases since its inception (a total of 9), again pointing towards a body unable to take on the expansive role that its own statue appears to imply. Arguably more than 9 cases of crimes of the form listed in the Article 5 of the Rome Statute, and which have not been fully investigated by states, have occurred since the court's inception.
Hope that's OK!
Zoe
Ideas
Hey here are some ideas I have come across:
--Obviously I think our main argument is what Amanda and Magda stated below that ad hoc tribunals cannot be adequate to meet the demands of international justice precisely because they are ad hoc. They are temporary measures set up during the 1990's because the ICC was not established yet to handle these special situations. The idea of an international criminal law organ has been contemplated for more than a century, so the idea of a single, permanent and international body has far pre-dated the idea of ad hoc tribunals, which I think implies its superiority itself, the fact that ad hoc tribunals are just a stop-gap measure. The statute of the ICTY actually borrowed a lot from the draft versions of the ICC statute which was being written in the early 1990's. (Although of course it is true that the ad hoc tribunals have had an equally huge influence on the ICC Statute. If this is used as a counterargument on the other side, I guess our response is just that that's not really relevant to how effective the ICC is now in meeting the requirements of international justice.)
--Another advantage is that the ICC, unlike the tribunals, is completely independent of the Security Council which is a bit... shall we say... erratic in the application of its authority. Unlike the tribunals, the ICC cannot be terminated or politically influenced by the SC and the UN.
Now for arguments on the other side.
I can see how the other side will make this argument:
--That the ICC has only a limited subject-matter jurisdiction, that they only deal with the most grave crimes and only where the state is unwilling or unable to prosecute effectively.
And I think the counterarguments are:
--Yes, it does only deal with the most grave crimes, but that is what it is intended to do, it can't be the world court for minor crimes, it can't handle every case
--But nothing stops the country in question from prosecuting war crimes and crimes against humanity internally (and in cases where they are unable or unwilling to do so, this is within the remit of the ICC)
--When such a state exists, the ICC will take over, as it has done in Sudan, the Democratic Republic of the Congo, Uganda and the Central Africa Republic
--Also, part of the purpose of the ICC is to give countries some guidance and set some precedents about how to handle war crime and crimes against humanity cases in their own jurisdictions
That's all I've got for now. Will post more later, if I run into anything. Feel free to make a new thread with more info, so you don't have to post in comments.
--Obviously I think our main argument is what Amanda and Magda stated below that ad hoc tribunals cannot be adequate to meet the demands of international justice precisely because they are ad hoc. They are temporary measures set up during the 1990's because the ICC was not established yet to handle these special situations. The idea of an international criminal law organ has been contemplated for more than a century, so the idea of a single, permanent and international body has far pre-dated the idea of ad hoc tribunals, which I think implies its superiority itself, the fact that ad hoc tribunals are just a stop-gap measure. The statute of the ICTY actually borrowed a lot from the draft versions of the ICC statute which was being written in the early 1990's. (Although of course it is true that the ad hoc tribunals have had an equally huge influence on the ICC Statute. If this is used as a counterargument on the other side, I guess our response is just that that's not really relevant to how effective the ICC is now in meeting the requirements of international justice.)
--Another advantage is that the ICC, unlike the tribunals, is completely independent of the Security Council which is a bit... shall we say... erratic in the application of its authority. Unlike the tribunals, the ICC cannot be terminated or politically influenced by the SC and the UN.
Now for arguments on the other side.
I can see how the other side will make this argument:
--That the ICC has only a limited subject-matter jurisdiction, that they only deal with the most grave crimes and only where the state is unwilling or unable to prosecute effectively.
And I think the counterarguments are:
--Yes, it does only deal with the most grave crimes, but that is what it is intended to do, it can't be the world court for minor crimes, it can't handle every case
--But nothing stops the country in question from prosecuting war crimes and crimes against humanity internally (and in cases where they are unable or unwilling to do so, this is within the remit of the ICC)
--When such a state exists, the ICC will take over, as it has done in Sudan, the Democratic Republic of the Congo, Uganda and the Central Africa Republic
--Also, part of the purpose of the ICC is to give countries some guidance and set some precedents about how to handle war crime and crimes against humanity cases in their own jurisdictions
That's all I've got for now. Will post more later, if I run into anything. Feel free to make a new thread with more info, so you don't have to post in comments.
Wednesday, 12 March 2008
General Comment No. 1 of the Grace Committee for Human Rights
Hey ya'll just wanted to say this stuff is really exciting and interesting and I will put up some preliminary thoughts/arguments tomorrow. This is really closely related to my dissertation topic, so I'm really glad we're defending this side of the question. I'm excited to get blogging/discussion flowing!
Advocates
So I believe that Amanda, Natasha, Tony and Zoe are our advocates. Is this still correct? I should say I was originally going to be one, so if anyone else has a problem, I can do it, or sub in or whatever.
Random ideas:
If anyone has ideas of cases to refer to, please comment!
My rough idea:
Split the tribunal process, then critique the different sections:
(This is just an example!)
Jurisdiction
Formation of tribunals
General processes (told you this was a rough idea!)
Punitative measures
Case examples.
Being abit pedantic, but do you guys think we need to come up with our idea of justice?
Will post more, but have just finished work and am spaced! Please input ideas, even if it is just to laugh at mine!
Frankie
My rough idea:
Split the tribunal process, then critique the different sections:
(This is just an example!)
Jurisdiction
Formation of tribunals
General processes (told you this was a rough idea!)
Punitative measures
Case examples.
Being abit pedantic, but do you guys think we need to come up with our idea of justice?
Will post more, but have just finished work and am spaced! Please input ideas, even if it is just to laugh at mine!
Frankie
Intro
***So is this a bad idea or a good idea? Yes, I am a geek. I know.***
I have sent an email to everyone on the distribution list, enabling you all to post, although over the weekend I will cut and paste comments from those of you who aren't familiar with blogger. I was going to insert a live chat function, but they are full of spyware.
There are those of you that have an infinitely better grasp of the subject and better organisational skils so feel free to take over!
First of all, who are the lawyers? Please comment or edit this post.
Then I'm just going to post a list of keywords, we can treat this like a brain storm - post links, articles etc.
If anyone has a clear idea of how to segment our approach please submit!
Frankie
I have sent an email to everyone on the distribution list, enabling you all to post, although over the weekend I will cut and paste comments from those of you who aren't familiar with blogger. I was going to insert a live chat function, but they are full of spyware.
There are those of you that have an infinitely better grasp of the subject and better organisational skils so feel free to take over!
First of all, who are the lawyers? Please comment or edit this post.
Then I'm just going to post a list of keywords, we can treat this like a brain storm - post links, articles etc.
If anyone has a clear idea of how to segment our approach please submit!
Frankie
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