International Legal Order

1. International Legal Order Prof. Speedy Rice Visiting Fulbright Scholar in Human Rights University of Montenegro, Law Faculty Serbia and Montenegro

2. International Legal Order in the Context of Human Rights and Criminal Law • Domestic Remedies • Methods of International Enforcement • Pre-Nuremberg • Nuremberg • Modern Tribunals • International Criminal Court • Sources of International Law

3. Domestic Remedies • Who is in power? • Who has the power? • Who has jurisdiction? • Who has the right? • Whose law applies?

4. Why Domestic Remedies Will Not Work for Certain Crimes • Genocide • Terrorism • Crimes of Aggression • War Crimes • Trafficking in People, etc… • -- All stem from political power, not individual action--

5. The Armenians • In 1915 the Turkish government presided over the killing by firing squad, bayoneting, bludgeoning, and starvation of nearly 1 million Armenians. • Efforts to bring the Turkish leaders to justice after World War I fizzled and set the stage for later atrocities in Europe.

6. “It was knowingly and lightheartedly that Genghis Khan sent thousands of women and children to their deaths. History sees in him only the founder of a state…. The aim of war is not to reach definite lines but to annihilate the enemy physically. It is by this means that we shall obtain the living space we need. Who today still speaks of the massacre of the Armenians?”

7. Hitler, August 1939 • One week later the Germans invaded Poland and began the extermination of the Polish Jews, Roma and undesirables. • By the end of World War II, some 6 million Jews and 5 million Poles, Roma, Communists and other undesirables had been slaughtered.

8. Nurnberg (Nuremberg) • Nazi leaders tried for four crimes: • Conspiracy to Commit Wars of Aggression Against Independent Sovereigns • Crime Against Peace – AGGRESSIVE WAR • War Crimes - MURDER AND ILL-TREATMENT OF CIVILIAN POPULATIONS OF OR IN OCCUPIED TERRITORY AND ON THE HIGH SEAS; and DEPORTATION FOR SLAVE LABOR AND FOR OTHER PURPOSES OF THE CIVILIAN POPULATIONS OF AND IN OCCUPIED TERRITORIES

9. COUNT FOUR • MURDER, EXTERMINATION, ENSLAVEMENT, DEPORTATION, AND OTHER INHUMANE ACTS COMMITTED AGAINST CIVILIAN POPULATIONS BEFORE AND DURING THE WAR • PERSECUTION ON POLITICAL, RACIAL, AND RELIGIOUS GROUNDS IN EXECUTION OF AND IN CONNECTION WITH THE COMMON PLAN MENTIONED IN COUNT ONE • Included only acts from the date of the invasion of Poland in 1939.

10. The Genocide ConventionFirst UN Convention, adopted December 9, 1948; entry into force 12 January 1951 • “any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, such as: • Killing members of the group; • Causing serious bodily or mental harm to members of the group; • Conditions of life calculated to bring about the physical destruction of the group; • Measures intended to prevent births within the group; • Forcibly transferring Children away from the group.

11. Major Genocides Since 1948 • Cambodia: Over 2 million in 3.5 years • Iraq: Over 200,000 Kurds by gas and chemical attacks in 1989-90 • Bosnia and Kosovo – Over 100,000 Muslims massacred • Rwanda – Almost 1 million, mostly hacked to death • Many others

12. Major International Treaties Specific to International Criminal Law • Genocide Convention 1948 (US ratification 1988) • Dec. 10, 1948 Universal Declaration of Human Rights, detailing human rights and fundamental freedoms (Statement of principles, not a treaty) • Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity; 26 November 1968, entry into force 11 November 1970 (no US) • Principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity; Adopted by General Assembly resolution 3 December 1973 • Rome Statute of the International Criminal Court

13. International Bill of Human Rights Universal Declaration of Human Rights • International Covenant on Economic, Social and Cultural Rights (1966/1976; US signed 1977) • International Covenant on Civil and Political Rights (1966/1976; US 1992) • Optional Protocol to the International Covenant on Civil and Political Rights (1966/1976; no) • Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (1989/ -- / no)

14. Selected International Treaties on Conduct • International Convention on the Elimination of All Forms of Racial Discrimination (1965 /1969 US 1994) • Convention on the Elimination of All Forms of Discrimination against Women (1979 /1981 US signed 1980) • Convention on the Rights of the Child (1989 /1990 US signed 1995) • Optional Protocols on armed conflict and prostitution/pornography ratified by US 2002 • Slavery Convention (1926 / 1955 US signed 1956) • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984 / 1987 US 1994, no to OP) • http://www.unhchr.ch/html/intlinst.htm

15. Language v. Action • Though called for in the 1948 Genocide Convention, efforts to establish a permanent court were delayed for decades by the cold war and refusal of governments to accept an international legal jurisdiction.  • While the language and forums for expressing human rights concerns have existed since the founding of the UN Human Rights Commission, only in the last 10 years has actual intervention over the objections of sovereignty become acceptable.

16. International Criminal Tribunal for the Former Yugoslavia • In 1993, the conflict in the former Yugoslavia erupted, which led to establishment of ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY)., to hold individuals accountable for war crimes, crimes against humanity and genocide.

17. International Criminal Tribunal for Rwanda • Established for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda between 1 January 1994 and 31 December 1994.

18. Other International Tribunal Discussions • Cambodia, none established • East Timor, none established • Sierra Leon, forming now

19. ICTY, ICTR and the ICC • Each of these is a statement of International Norms having supremacy over national sovereignty. • US supports specific event / mandate tribunals when in its interest but strongly opposes the general events mandate of the ICC • All since 1990

20. The Rome Conference • The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome Conference). • Held in Rome, Italy, from 15 June to 17 July 1998, "to finalize and adopt a convention on the establishment of an international criminal court". • The ICC established on ratification by 60 countries. (July 2002) Currently the Rome Statute of the ICC has 139 Signatories and 92 Ratifications.

21. -- Kofi Annan, United Nations Secretary-General • "In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realization. We will do our part to see it through till the end. We ask you . . . to do yours in our struggle to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished."

22. What Crimes Are Covered?Jurisdiction only since July 2002 • The crime of genocide • The crime of aggression • War crimes • Crimes Against Humanity • Crimes Against United Nations and associated personnel • Other Categories: • Terrorism • Drug and Psychotropic Trafficking

23. The Crime of Genocide • Article 5 of the statute took the definition of “genocide” verbatim as it was defined in Genocide Convention (1948). • “Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: • Killing members of the group; • Causing serious bodily or mental harm to members of the group; • Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; • Imposing measures intended to prevent births within the group; • Forcibly transferring children of the group to another group.

24. The Crime of Aggression • Definition: In 1974 the United Nations General Assembly defined aggression as “initiating, planning, preparing or waging aggression.” • Problem: Finding a suitable Definition. Some do not want this listed as a crime due to lack of suitable definition. • Others who want to include the crime of aggression maintain the definition can rest with the U.N. Security Council, and may be determined on an ad hoc basis. • Proposed Definition: “Planning, Preparing, Ordering, Initiating, or Carrying out an armed attack, or the use of force, or a war of aggression, or a war in violation of international treaties or agreements, by a State, against the territorial integrity of another State, against the provisions in the U.N. Charter.”

25. War Crimes • The statute enumerates four different categories of war crimes: • Grave breaches of the four Geneva Conventions of 12 August 1949. • Other serious violations of the laws and customs applicable in international armed conflicts (largely derived from the Hague law, limiting the methods of waging war). • In 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. • Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law.

26. Grave Breaches of Geneva Convention • The four Geneva Conventions of 1949 extend special protections to certain categories of persons--wounded and sick in armed forces in the field; wounded, sick and shipwrecked members of armed forces at sea; POWs; and civilians during wartime. • Willful killing; Torture or inhuman treatment • Willfully causing great suffering, or serious injury • Extensive destruction or appropriation of property • Compelling POWs to serve in the forces of a hostile Power • Unlawful deportation, transfer, or confinement

27. Crimes Against United Nations • Crimes against United Nations and associated personnel is currently not under the jurisdiction of the ICC, as the Geneva Convention does not provide any protection or guarantee that perpetrators will be brought to justice. • Due to the increasing safety concerns for the UN and associated personnel after the 1990s, peacekeepers, humanitarian workers and civilian staff members of the UN are lobbying for this crime to fall within the jurisdiction of the ICC.

28. Other Categories of Crime • Terrorism • Crimes Involving the Illicit Traffic in Narcotic Drugs and Psychotropic Substances

29. Trigger Mechanisms • There are three possible mechanisms by which the jurisdiction of the ICC may be triggered: • Complaint by a State Party • A State Party can lodge a complaint with the Prosecutor and ask him to investigate the situation. • State bringing complaint must be: State on territory where act was committed; Custodial State where accused officer is present; State of the nationality of the suspect; or State of the nationality of the victims. • Referral by the Security Council • The United Nation’s Security Council can refer a specific matter to the Court for an investigation. • Trigger by the Prosecutor • Prosecutor may bring a matter before the Court.

30. To Achieve Justice For All • ICC = “the missing link” in the international legal system. • The International Court of Justice at The Hague handles only cases between States, not individuals. • With no ICC, acts of genocide and egregious violations of human rights often go unpunished. • Lack of accountability over the last 50 years. • Cambodia in 1970s • Mozambique, Liberia, El Salvador, etc. • Algeria and the Great Lakes region of Africa.

31. To End Impunity • "A person stands a better chance of being tried and judged for killing one human being than for killing 100,000." -- José Ayala Lasso, former United Nations High Commissioner for Human Rights • According to the Draft Code of Crimes against the Peace and Security of Mankind, completed in 1996 (by the International Law Commission at the request of the General Assembly) enforcement of international law applies equally and without exception to any individual throughout the governmental hierarchy or military chain of command. • And the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the United Nations in 1948 recognizes that the crime of genocide may be committed by constitutionally responsible rulers, public officials or private individuals.

32. To Help End Conflicts • "There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance." -- Benjamin Ferencz, former Nürnberg prosecutor • The guarantee that at least some perpetrators of war crimes or genocide may be brought to justice acts as a deterrent and enhances the possibility of bringing a conflict to an end.

33. To remedy the deficiencies of ad hoc tribunals • “Selective justice: " Why has there been no war crimes tribunal for the "killing fields" in Cambodia? A permanent court could operate in a more consistent way. • “Tribunal fatigue:” Problems with Ad Hoc Tribunals: • crucial evidence deteriorated/destroyed; • perpetrators can escape or disappear; and • witnesses can relocate or be intimidated. • Investigation increasingly expensive; • Ad hoc tribunals are subject to limits of time or place. • Crimes committed since that time are not covered.

34. To take over when national criminal justice institutions are unwilling or unable to act • "Crimes under international law by their very nature often require the direct or indirect participation of a number of individuals at least some of whom are in positions of governmental authority or military command." -- Report of the International Law Commission, 1996 • National institutions often either unwilling or unable to act, usually for one of two reasons: • Governments often lack the political will to prosecute their own citizens; Or • National institutions may have collapsed, as in the case of Rwanda.

35. Argentines Face Human Rights Trials in Europe July 28, 2003 • At least 40 retired Argentine military officials accused of human rights violations during the 1976-1983 dictatorship are now in custody in Argentina and facing trials in Europe after the new government moved late last week to strip them of their longstanding immunity from extradition. • On Friday, President Néstor Kirchner, who took office two months ago, revoked a government edict that prohibited Argentine officials from being handed over to foreign countries to face criminal charges abroad.

36. Foreign governments seem especially interested in trying Alfredo Astiz, a 50-year-old naval captain who has become perhaps the most notorious symbol of Argentina's Dirty War. Nicknamed "the blond angel of death," Captain Astiz infiltrated human rights groups and is accused of having designated which of their leaders were to be kidnapped, tortured and killed.

37. The Spanish judge who made the extradition request, Baltazar Garzón, is the same judge whose efforts led to the detention of Gen. Augusto Pinochet, Chile's former military dictator, in Britain in 1998. • With the 30th anniversary of the coup that brought General Pinochet to power now less than two months away, Argentina's actions are certain to add to an already heated debate in Chile about how to deal with military human rights abusers there. • "It sends a very powerful signal to those who commit these types of crimes that today is a day of international justice," the Chilean president, Ricardo Lagos, said in a radio interview on Saturday.

38. Why There is a Lot of Work Still To be Done • Spain's government decided on August 29th not to seek the extradition of 40 Argentines indicted here for abuses during their country's "dirty war" under military rule, saying they should be tried at home. • The government rejected a Spanish judge's request because Argentina's Congress this month voted to repeal two laws that had shielded hundreds of military officers from prosecution for abuses during the 1976-83 dictatorship. • Under the extradition treaty between Spain and Argentina, the 40 suspects should now be tried in Argentina, Deputy Prime Minister Mariano Rajoy said. • "When certain crimes are committed in a country and it is possible to try them, it must be done in that country. That's the principle of territoriality," Rajoy said after a cabinet meeting.

39. Other Systems in the International Legal Order – Human Rights • The United Nations Human Rights System • The European System For The Protection Of Human Rights • The Inter-American Human Rights System • The African System Of Human And Peoples’ Rights • Humanitarian Law • Non-Governmental Human Rights Organizations

40. THE UNITED NATIONS HUMAN RIGHTS SYSTEM • The UN Charter • The International Bill of Human Rights • Other Major UN Human Rights Treaties • UN Charter-Based Institutions • Specialized Agencies

41. The UN Charter • The human rights provisions that ultimately found their way into the Charter of the United Nations fell far short of expectations. • That was to be expected, for each of the main powers had troublesome human rights problems. The Soviet Union had its Gulag, the United States its de jure racial discrimination, France and Great Britain their colonial empires.

42. Human Rights in the UN Charter • Article 1(3) of the Charter of the United Nations proclaims the following goal as one of the “purposes” of the UN: • To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.

43. Article 55 • …the United Nations shall promote: • (a) higher standards of living, full employment, and conditions of economic and social progress and development; • (b) solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and • (c) universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

44. Article 56 • All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purpose set forth in Article 55. • The Charter confers similar power on the UN Economic and Social Council (ECOSOC). It authorizes the ECOSOC to “make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all” and requires it to “set up commissions in economic and social fields and for the promotion of human rights….” Arts 62(2) and 68.

45. International Bill of Human Rights Universal Declaration of Human Rights • International Covenant on Economic, Social and Cultural Rights (1966/1976; US signed 1977) • International Covenant on Civil and Political Rights (1966/1976; US 1992) • Optional Protocol to the International Covenant on Civil and Political Rights (1966/1976; no) • Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (1989/ -- / no)

46. Other Major UN Human Rights Treaties • The Convention on the Prevention and Punishment of the crime of Genocide, • International Convention on the Elimination of All Forms of Racial Discrimination, • International Convention on the Suppression and the Punishment of the Crime of Apartheid, • Convention on the Elimination of all forms of Discrimination against Women, • Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, • Convention on the Rights of the Child.

47. UN Charter-Based Institutions • Commission on Human Rights • Sub-Commission on Promotion and Protection of Human Rights • Commission on the Status of Women • The High Commissioner for Human Rights • Field Offices • Conferences and Resolutiuons

48. Specialized Agencies • The International Labor Organization • The International Labor Organization, established in 1919 by the Treaty of Versailles, focuses on those human rights related to the right to work and to working conditions, including the right to form trade unions, the right to strike, the right to be free from slavery and forced labor, equal employment and training opportunities, the right to safe and healthy working conditions, and the right to social security.

49. Specialized Agencies • UNESCO (UN Educational, Scientific, and Cultural Org.) promotes teaching and research on human rights, adopts conventions and recommendations on human rights related to its subject areas. • It has also established a complaints procedure available to individuals and NGOs. • World Health Organization, etc

50. THE EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS • The European Convention on Human Rights • The Enforcement Mechanism of the Convention • The European Social Charter • Council of Europe Human Rights Treaties • The European Union • Organization for Security and Cooperation in Europe (OSCE)