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WAR CRIMES. Kailyn McGillicuddy Hilary Panfili. Issue. Should the United States join the International Criminal Court (ICC) to prosecute War Crimes?. International Humanitarian Law. Humanitarian law seeks to (i) protect persons who are not or are no longer taking part in the hostilities,

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Kailyn McGillicuddy

Hilary Panfili

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  • Should the United States join the International Criminal Court (ICC) to prosecute War Crimes?

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International Humanitarian Law

  • Humanitarian law seeks to

    (i) protect persons who are not or are no longer taking part in the hostilities,

    (ii) restrict the methods and means of warfare employed, and

    (iii) resolve matters of humanitarian concern resulting from war.

  • Henri Dunant - founder of the International Red Cross - helped codify international humanitarian law

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Hague Conference of 1899

  • Hague I - Pacific Settlement of International Disputes : 29 July 1899

  • Hague II - Laws and Customs of War on Land : 29 July 1899

  • Hague III - Adaptation to Maritime Warfare of Principles of Geneva Convention of 1864 : July 29,1899

  • Hague IV - Prohibiting Launching of Projectiles and Explosives from Balloons : July 29, 1899

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Hague Conference of 1899 Cont’d

  • Declaration I - on the Launching of Projectiles and Explosives from Balloons; July 29, 1899

  • Declaration II - on the Use of Projectiles the Object of Which is the Diffusion of Asphyxiating or Deleterious Gases; July 29, 1899

  • Declaration III - on the Use of Bullets Which Expand or Flatten Easily in the Human Body; July 29, 1899

  • Final Act of the International Peace Conference; July 29, 1899

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Hague Conference of 1907

  • Hague I - Pacific Settlement of International Disputes : 18 October 1907

  • Hague II - Limitation of Employment of Force for Recovery of Contract Debts : October 18, 1907

  • Hague III - Opening of Hostilities : 18 October 1907

  • Hague IV - Laws and Customs of War on Land : 18 October 1907

  • Hague V - Rights and Duties of Neutral Powers and Persons in Case of War on Land : 18 October 1907

  • Hague VI - Status of Enemy Merchant Ships at the Outbreak of Hostilities : 18 October 1907

  • Hague XI - Restrictions With Regard to the Exercise of the Right of Capture in Naval War : 18 October 1907

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Geneva Conventions

  • 1949 - Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12

  • 1949 - Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12

  • 1949 - Convention (III) Relative to the Treatment of Prisoners of War; August 12

  • 1949 - Convention (IV) Relative to the Protection of Civilian Persons in Time of War, August 12

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§ 2441. War Crimes

  • Definition.—the term “war crime” means any conduct—

  • (1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

  • (2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

  • (3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; or

  • (4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

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War Crimes

  • Common Article 3 is applicable to armed conflicts “not of an international character” and covers persons taking no active part in hostilities, including those who have laid down their arms or been incapacitated bu capture or injury.

  • Torture

  • Cruel or inhuman treatment

  • Performing biological experiments

  • Murder

  • Mutilation or maiming

  • Intentionally causing serious bodily injury

  • Rape

  • Sexual assault or abuse

  • Taking hostages

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Common Article 3

Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘’hors de combat” by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

  • (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

  • (b) taking of hostages;

  • (c) outrages upon personal dignity, in particular humiliating and degrading treatment;

  • (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

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Hamdan v. Rumsfled

  • Bush Administration had taken the position that the Geneva Conventions did not apply to members of Al Qaeda captured in the global “war on terror.”

  • The Court- “some minimal protection, falling short of full protection under the Conventions, to [any] individuals ... who are involved in a conflict in the territory of a signatory.”

  • Military Commission Act (MCA) of 2006

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International War Crimes

London Charter

Nuremberg Trials(1945-1949)

International Military Tribunal took place between November 11, 1945- October 1, 1946

International Military Tribunal for the Far East 1946

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1992-1995 Bosnian War

International Criminal Tribunal for the Former Yugoslavia (ICTY)


1 January 1994 and 31 December 1994

International Criminal Tribunal for Rwanda (ICTR)

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International Criminal Court

Established by the Rome Statute in 2002

110 members (as of October 2009)

The United States is not currently a member

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Rome Statute

  • Adopted: July 17, 1998

  • Entered into force: July 1, 2002

  • 110 States have ratified

  • 38 States have signed

  • Defines prosecutable crimes as:

    • Genocide

    • War Crimes

    • Crimes Against Humanity

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U.S. Opposition: Rome Statute

1. Jurisdiction over Nationals of Non-Parties

2. Politicized Prosecution

3. The Unaccountable Prosecutor

4. Usurpation of the Role of the U.N. Security Council

5. Lack of Due Process Guarantees

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1. Jurisdiction over Nationals of Non-Parties

Only nations that ratify treaties are bound to observe them. The ICC purports to subject to its jurisdiction citizens of non-party nations, thus binding non-party nations.

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2. Politicized Prosecution

The ICC’s flaws may allow it to be used by some countries to bring trumped-up charges against American citizens, who, due to the prominent role played by the United States in world affairs, may have greater exposure to such charges than citizens of other nations.

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3. The Unaccountable Prosecutor

The Office of the Prosecutor, an organ of the ICC that is not controlled by any separate political authority, has unchecked discretion to initiate cases, which could lead to “politicized prosecutions.”

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4. Usurpation of the Role of the U.N. Security Council

The ICC Statute gives the ICC the authority to define and punish the crime of “aggression,” which is solely the prerogative of the Security Council of the United Nations under the U.N. Charter.

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5. Lack of Due Process Guarantees

The ICC will not offer accused Americans the due process rights guaranteed them under the U.S. Constitution, such as the right to a jury trial.

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Congressional Action Against ICC

1. American Servicemembers’ Protection Act of 2002

2. The Nethercutt Amendment

3. National Defense Authorization Act for FY2007

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1. ASPA (2002)

The ASPA prohibits cooperation with the ICC by any agency or entity of the federal government, or any state or local government.

It prohibits agents of the ICC from conducting any investigative activity on U.S. soil related to matters of the ICC.

It does not prevent private citizens from providing testimony or evidence to the ICC.

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ASPA and Article 98

An “Article 98” agreement is a bilateral pact wherein countries pledge not to seek the prosecution of U.S. citizens in the International Criminal Court.

This law prohibits U.S. military assistance to countries that have not signed “Article 98” agreements.

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2. Nethercutt Amendment

Named for former Rep. George Nethercutt and bundled in a 2004 appropriations bill -- cut economic support funds to nations that ratified the International Criminal Court without signing a Bilateral Immunity Agreement with the Bush administration.

Policy was reversed in March 2009 by Rep. Nita Lowey and Sen. Patrick Leahy.

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3. National Defense Authorization Act for FY2007

The Senate version modified ASPA to end the ban on International Military Education and Training (IMET) assistance to countries that are members of the ICC and that have not implemented Article 98 agreements.

The House version did not contain such a provision; however, the House Armed Services Committee reported its view that the President’s authority to waive ASPA funding restrictions can and should be invoked where necessary.

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How is the ICC different?

  • Serves as a permanent deterrent.

  • The ICC has much wider jurisdiction than existing ad hoc tribunals.

    • Yugoslavia and Rwanda are limited to crimes committed in a particular territory.

  • The Rome Statute contains advanced provisions for the protection of victims from retraumatization.

    • The court may order a convicted person to provide reparation as it deems appropriate.

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Notable ICC Cases

Uganda: The Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen

Democratic Republic of the Congo (DRC): The Prosecutor v. Thomas Lubanga Dyilo

Sudan: The Prosecutor v. Ahmad Muhammad Harun and Ali Huhammad Ali Abd-al-Rahman

Central African Republic (CAR)

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Should the U.S. join?

  • The United States appears to be exempting itself from rules of the game that it believes should apply to others.

  • The U.S. claim for special status undermines the very idea of the rule of law as a single, principled normative order to which all are bound.

  • It may undermine the great international effort of the last century to subject the use of force to the rule of law.

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Heritage Foundation

  • The U.S. should NOT join the ICC because it…

    • “Lacks prudent safeguards against political manipulation, possesses sweeping authority without accountability … and violates national sovereignty”

    • Lacks checks and balances

    • Is slow to act

    • Has no measurable deterrent effect

    • Has the ability to “investigate and prosecute crimes only after the fact”

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Amnesty International

  • The U.S. SHOULD join the ICC because…

    • The Rome Statute incorporates safeguards against politically motivated prosecutions

    • It would only investigate cases involving U.S. nationals if the U.S. failed to investigate

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Current Administration’s Stance on ICC

Secretary of State Clinton recently stated that one of her greatest regrets is that the US is not part of the ICC, which indicates a significant policy shift in favor of the court.

Under the new administration of President Barack Obama, there have been hints of greater U.S. cooperation with the ICC, although no formal shift in policy.

Some advocate caution, saying the president can afford not to rush membership and should wait to see how the ICC evolves.

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Policy Options to Make it Work

  • The U.S. could have jurisdiction to prosecute crimes committed by Americans.

    • This would preempt the ICC though application of the complementarity principle.

  • The U.S. should cooperate with the ICC in the prosecution of persons accused of war crimes.

    • Transparency would further enhance the image of the U.S. as fair and credible .

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The ICC ensures that those who commit serious human rights violations are held accountable.

Justice helps promote lasting peace, enables victims to rebuild their lives and sends a strong message that perpetrators of war crimes will not go unpunished.

Should the United States of America choose to join the ICC, its reputation as a promoter of human rights and the rule of law would be significantly enhanced in the eyes of the international community.