Final Essay from Amsterdam Program *UPDATED*

This is the final for “Principles and Institutions in International Criminal Law and International Human Rights.”

This examination consists of a single essay question, which might also be viewed as a writing assignment. You’re answer to the question may either be typed, and printed on A-4 paper, in which case it should not be any longer than ten (10) double-spaced, single-sided pages. If your exam is written by hand, it should be written on University of Amsterdam examination paper, and should not exceed twenty (20 single-sided pages in length. Any part of any answer that exceeds the specified length will be disregarded. Your answer to the question should be written legibly, in normal size script, with reasonable margins. THE EXAMINATION IS “OPEN BOOK,” that is, you may use any materials whatsoever that were assigned in any of your courses in answering these questions. You should not do additional research for this examination, other than to read the case, which is attached to this exam.

Question:

Historically, international law, and in particular international criminal law and international human rights law, have been criticized for being impotent, or ineffectual. Much of this criticism has come from judges and academics in the United States, who have argued that international law was little more than whatever the strongest country wanted it to be.

In 1999, the ICJ handed down the decision in the “CASE CONCERNING LEGALITY OF USE OF FORCE” (Yugoslavia v. Belgium (NATO) 1999 I.C.J. 124. A copy of this decision is attached. In 2004, Judge Eric Posner wrote:

[This decision] demonstrated just how incapable the court is of resolving disputes, and what little the new International Criminal Court has to do much better. First, there is no doubt that, in strictly legal terms, NATO’s intervention violated international standards…[T]he court was in an unenviable position: if it had held against the NATO) states, they would surely have ignored the judgment. By holding in favor of these states, the court showed its irrelevance.

Eric A. Posner, All Justice, Too, Is Local, NY Times (Dec. 30, 2004).

It has been 8 years since the opinion in Yugoslavia v. Belgium. Drawing on any and all materials you have been assigned, in any of your course, or to which you have been exposed by virtue of the orientation course, or the field trip [to the Hague], or otherwise, write an essay refuting Judge Posner, by addressing the developments in international criminal law and international human rights law during the last 8 years. To put it another way, construct the most persuasive argument possible for the position that regardless of what the case was in 1999, that as of today international criminal law and international human rights law are real, have power, have meaning, and have a future.

End of exam.

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Answer:

Following the International Court of Justice’s ruling in the Case Concerning Legality of Use of Force (Yugoslavia v. Belgium) [NATO], Judge Eric Posner cited the Court’s decision as proof of its “irrelevance” on the international stage, and by virtue of the court’s irrelevance, the impotence of international law. There is no doubt the court’s decision was designed to avoid confrontation with the world’s superpowers. However, international law, and in particular international criminal law and international human rights law, is an expanding field. The coercive or enforcement powers of this body of law are weak in comparison to domestic criminal law, but do have real and effective power to curb war crimes and human rights violations, and to remedy those wrongs when they occur.

The Development of International Criminal Law and International Human Rights Law

This brief examination of the history and development of international criminal law and international human rights law shows the growth and continuing strengthening of these bodies of law.

Early Development: Creation of the Nation State, Sovereignty and Pre-World War II Treaties.

From 1648 when the Thirty Years War ended by the treaties of Westphalia, the nation-state has been the “major structural units of the legal-political order of the planet.” The notion that nation-states are the sole players in international relations is the foundation for international law. Central to the state’s power is “sovereignty,” which give the nation-state sole power to govern issues within its borders or in territories under the state’s control. In 1648, the treaties granting nation-states sovereignty ended dueling structures of authority within territories; and were intended to end wars of religion. As an unintended consequence, states were able to abuse their own citizens as they saw fit without consequence up until the recent past. In fact, until recently, individuals had no standing to prosecute (or be prosecuted) for violations of international law. Unfortunately, more recent developments of international law that extend international jurisdiction to the internal affairs of a state, have continued the tension between the authority of international law and states’ claims of sovereignty.

The first area of international law to be substantially developed involved the rules of war. The Hague Conventions of 1899 and 1907 governed and protected those participating directly in combat. These conventions prohibited certain acts during warfare, such as the inhumane treatment of prisoners, use of poisoned weapons, improper use of truce flags, etc. The “modern” idea, but not reality, of an international criminal court is attributed to the first Hague Convention of 1899. The Hague convention of 1899 succeeded in creating the first institution of international dispute resolution with the creation of the Permanent Court of Arbitration, for which the Peace Palace was constructed. Unfortunately, one year following the Peace Palace’s opening, World War I broke out.

Following World War I, there was movement on the international stage to prosecute Kaiser Wilhelm II for offences against “international morality and the sanctity of treaties.” That same year, the Allies established a special commission to investigate crimes against humanity and acts of war. However, the increasing authority of international law diminished within a short period. The special commission wanted to include violations of the laws of humanity (specifically acts that occurred in the Armenian genocide) in any international criminal court’s jurisdiction, but U.S. opposition prevented this type of conduct from consideration. Within four years, the Treaty of Lausanne gave perpetrators of the Armenian genocide amnesty from prosecution. There is evidence that the world community’s failure to establish a court and prosecute the Armenian genocide led Hitler to believe that he too would have impunity for his actions.

Also following the end of World War I, the League of Nations was created, whose goals were to promote the collective security of states through diplomacy and disarmament. Unfortunately, the United States did not join the League of Nations and the organization did not have the force it might have had with U.S. participation. Despite this, one particular event was significant to later prosecutions of violators of international law. The September 24, 1927 Declaration of the Assembly of the League of Nations (including German, Italian and Japanese delegates) denounced wars of aggression. The Nuremburg tribunal cited this declaration as part of their decision to establish that international law was the basis for prosecution of Nazi war criminals.

Post World War II: The “Modern” Era of International Law

The atrocities and numbers of deaths in World War II, estimated to be 75 million, forced the world community to acknowledge that states could no longer have de facto impunity from prosecution for war crimes and crimes against humanity, which resulted from past failures to prosecute these offenses. From the period of 1945 to the present, there has been an explosion of international law and accountability, including the extension of rights and duties to individuals and the creation of supranational organizations to enforce the laws. However, due to the very same tensions between sovereignty and the authority of these bodies, enforcement remains relatively weak.

Nuremburg Tribunal - The Nuremburg tribunal was not the first military tribunals established following conflict to prosecute war criminals. However, it was significantly the first tribunal to include prosecution of “crimes against humanity” committed during international war. Although these “crimes against humanity” were not codified in any treaties, per se, the Nuremburg tribunal established that individuals could be prosecuted for violations of customary international law and jus cogens offenses.

Geneva Conventions – Also following World War II, the 1949 Geneva Conventions extended protections during international warfare to those hors du combat, including civilians and wounded, captured or surrendered soldiers. These protections include prohibitions against willful killing; torture or inhumane treatment; willfully causing great suffering, or serious injury to body or health; extensive destruction and appropriation of property; taking hostages or unlawful deportation; or transfer or unlawful confinement, among others. Significant to international law’s encroachment on state sovereignty, Common Article 3 to the Geneva Conventions regulate armed conflict not of an international character and include prohibitions against violence to life and person, including murder; mutilation, cruel treatment and torture; outrages upon personal dignity, in particular humiliating and degrading treatment; taking hostages and extrajudicial executions.

International Court of Justice – As part of the creation of the United Nations, the International Court of Justice (also known as the World Court) was established. The ICJ statute was taken “virtually verbatim from the League of Nations Statute of the Permanent Court of International Justice.” The court has jurisdiction over many international agreements and Article 94 of the United Nations charter mandates that each member state “undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.” The court’s decisions are final and without appeal, but have no binding force except between the parties in relation to the particular dispute being adjudicated. The statute giving the court authority specifically mandates the court to consider international law in its decisions in the following hierarchy:

1. International conventions;
2. International custom, as evidenced of a general practice accepted as law;
3. The general principles of law recognized by civilized nations;
4. Judicial decisions and teachings, as subsidiary means for the determination of the law.

It is important to note that having international custom and general principles as binding authority is not specific to the International Court of Justice. Many nations’ constitutions make their domestic laws subordinate to international law, including: The Philippine Constitution of 1987; The Russian Constitution of 1993; The German Constitution of 1949; The Italian Constitution of 1959; The Greek Constitution of 1975; The Slovenia Constitution of 1997; as well as the Irish, Japanese and Hungarian Constitutions.

The Extension of Rights to Individuals and During Peacetime

One of the most significant developments in international law has been the extension of specific rights to individuals, during both times of war and peace.
The United Nations adopted the Universal Declaration of Human Rights in 1948, which by virtue of their membership, states agree that:

THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Following the Universal Declaration of Human Rights, in 1966 the U.N. adopted the “Bill of Human Rights:” the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. These Covenants gave individuals both negative rights, prohibiting the state from infringing on certain rights, such as the right to vote, to self-determination, to due process of law, etc., and positive rights, such as the right to economic and social security.

Since the creation of the “Bill of Human Rights,” the U.N. adopted and entered into force other treaties such as:

• The Convention against Genocide (passed by U.N. 1948)
• The Convention on the Rights of the Child (passed by U.N. 1998)
• The Convention Against Torture (passed by U.N. 1984)
• Convention on the Elimination of All Forms of Discrimination Against Women (passed by U.N. in 1979)

From the creation of the nation-state with exclusive sovereignty over the internal affairs of its nation to the “modern” creation of the United Nations and multi-lateral treaties governing states’ conduct towards their citizens, the progression and strength of international law is clear.

Rise of Supranational Organization

The creation and ratification of multi-lateral human rights and international criminal law treaties are not the only developments solidifying the place and importance of international law. The United Nations was “based on the principle of the sovereign equality of all its members.” Therefore, by virtue of its charter, the U.N. maintains the age-old struggle between sovereignty and international law. However, since the creation of the United Nations, more and more nations have been willing to enter into multi-lateral treaties and create supranational organizations with real enforcement power. The European Union is a supranational organization designed to promote the well-being of Europe and peace among those states, for which those states exchange a certain amount of their sovereignty. This is in essence a re-structuring of the “social contract” from being a contract between citizens and their state to being between states and the supranational organization. In addition, Europe created the European Court of Human Rights in 2003. Europe has not been reticent, as the United States has, in giving their citizens a direct right of and access to redress in the event they cannot obtain relief in that state’s courts for wrongs by their government.

Recent Developments in International Criminal Law

The idea of military tribunals to prosecute war criminals is not new. Even though the Hague Conventions of 1899 and 1907 prohibited certain acts during warfare, they did not specifically designate such acts as “criminal.” However, military tribunals still punished war criminals under the authority of those laws. As stated previously, the Nuremburg Tribunal extended prosecution to “crimes against humanity” committed during wartime.

There was not another international tribunal for 50 years following Nuremburg until the creation of the International Criminal Tribunal for the Former Yugoslavia. The ICTY was set up to prosecute “serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.” Ater inception of the ICTY, there has been a “cascade” of international tribunals, with the creation of the International Criminal Tribunal for Rwanda, and the tribunals for Cambodia and Sierra Leone. However, these tribunals are expensive and cumbersome.

Therefore, to streamline prosecutions of “the most serious international crimes,” member nations of the U.N. created the International Criminal Court by a treaty in 1998 (The Rome Statute). Most world powers are members of the court; however, the second Bush Administration has declined U.S. participation. Nevertheless, some effects of the International Criminal Court are already becoming apparent. The U.N. Security Council referred the “situation” in Darfur to the International Criminal Court for investigation. Since the ICC’s report found crimes against humanity, (even though acts meeting the definition of “genocide” were not found), certain Sudanese perpetrators of crimes against humanity in Darfur are willing to negotiate a peace agreement in exchange for immunity from prosecution by the International Criminal Court. This is a testament to the ICC’s strength on the world stage.

United States Participation

If viewed from a U.S-centric lens, Judge Posner’s opinion that international law and the international courts are “irrelevant” has merit. However, the strength of international treaties, laws, supranational organizations and courts has always been derived from states’ willingness to relinquish sovereignty in exchange for the stability and good those entities provide. The United States has been less willing to exchange its sovereignty for these benefits, probably because of the 75 million people who died in World War II, “only” 406,000 were Americans. If the United States had first-hand experience of the devastation that governments can cause to each other and on their own citizens, America would probably be more willing to participate. However, as it stands, the Unites States has:

• Ratified the International Covenant on Civil and Political Rights, while reserving the right to execute its own citizens, and making the treaty non-self-executing.
• Ratified the Convention against Torture, while reserving the right to “define” torture as “cruel and unusual punishment” as interpreted by the Supreme Court, instead of the more broad treaty definition of “cruel, inhumane or degrading” treatment.
• Failed to ratify the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of Discrimination Against Women; and the Convention on the Rights of the Child (the most ratified treaty, with only the United States and Sudan failing to be parties).
• Went to war with Iraq without Security Council approval under the new “doctrine of preemption” to justify the invasion.
• Failed to hold those up the chain of command accountable for breaches of international law at Abu Ghraib
• Been given relative impunity for the legal “black hole” that is the detention center at Guantanamo Bay, by holding “unlawful enemy combatants” without the protections required by either the Hague Conventions or the Geneva Conventions;
• Been given relative impunity for actions of the CIA in performing “extraordinary renditions” of terror suspects to states where they are likely to be tortured, in contravention of the Convention Against Torture, or detaining those suspects in “secret prisons.”

However, despite the United States’ failure to ratify many treaties and participate like an equal player in supranational organizations, its actions themselves verify the validity and strength of international law. The United States has consistently attempted, in recent years, to “justify” its actions. For example, President Bush withdrew the United States signature to the Rome Statute under the guise that it could be used to disproportionately prosecute United States Servicemen. Following the International Criminal Court’s decision in the Mexico v. United States (Avena) case, the United States withdrew from the optional protocol to the Vienna Convention on Consular Relations, which gave the ICJ jurisdiction to hear disputes arising from the treaty. The Bush Administration has likewise attempted to justify its actions regarding the prisoners at Guantanamo Bay by “redefining torture” and arguing that the prisoners do not fall within the purview of The Hague or Geneva Conventions. If international law and courts were irrelevant as Judge Posner asserts, the United States government would not go to such pains to present their actions as lawful under international law.

While still nascent, international criminal law and international human rights law is now the context in which most developed nations view their laws and duties, both foreign and domestic. As more and more nations are willing to subscribe to this view (for peace, for economic reasons or whatever other self-interest that drives states), these bodies of law will only grow in strength. Rather than being “irrelevant” as described by Judge Posner, the actions of nation-states in conforming, or at least in attempting to justify their behavior as being in conformance, with international law, have proven the power of the International Court of Justice and international law.