#11452 - Enforcement And Implementation - International Humanitarian Law

Mechanisms

1. National level

   1. Strongest enforcer/implementer is states

   2. The US with respect to its own militaries

      1. Use court marshal process

      2. Example: My Lai Massacre: Liutenant Calley follows illegal order to execute unarmed prisoners, and was then tried

   3. The US with respect to its enemies

      1. If unclear of combatant status: use GC3:5

         1. We set up CSRT in 2004 (is this enough? Why not mimic a court marshal scheme? Why not use federal courts?)

      2. Importance of Hamdan: finds that CA3 applies to people in Guantanamo. CA3 has a provision that says you can’t have prosecutions until you have regularly constituted court, affording all judicial guarantees. Court says that this language is not being met by the current processes in Guantanamo.

2. International mechanisms

   1. ICC

      1. 1998 Rome Statute – came into force in 2002

      2. 121 state parties, including some of our allies (Canada, UK, Australia, NATO). No big military countries (Israel, China, Russia, US)

      3. Court of last resort. National courts are supposed to handle problems first, but if they can’t/unwilling to, then ICC will step in. complimentary.

      4. Jurisdiction

         1. Self Referral by state party – country refers person to ICC if they are unable to prosecute them themselves (territorial jurisdiction)

            1. First Govt to do this: Uganda

         2. Security Council Referral – doesn’t matter if the person’s country of origin is a state party or not.

         3. Prosecutor can initiate an investigation (in propiu motu)

            1. Current Prosecutor: Faou Bensouda (African)

      5. US Relationship: hostile

         1. Clinton signed the statute, but Bush sent letter before Senate ratified saying we would never sign it.

         2. Took steps to encourage others not to enforce.

         3. Made 100 bilateral treaties (Article 98 agreements): we don’t turn any of your people over if you don’t turn ours over. Mutual Non Cooperation.

         4. American Service Protection Act (Hague Invasion Act): Congress in 2002. Authorizes use of military force to liberate people from the Hague

         5. Chavez analysis

            1. We have been cooperative with ICC thusfar

            2. We missed out on chance of diplomacy. Lost an opportunity to help shape the court. The fact that we didn’t agree with it might have been one of the reasons so many other countries signed on.

         6. Bolton’s analysis (ambassador to the UN in the Bush Admin)

            1. Doesn’t like Int. law or orgs.

            2. Specially affected states: the US is the only affected state because of our position in the world, so we should be the ones to determine what is CIL and whether the ICC should go forward

               1. What does SAS mean to the US?

                  1. more active in law and operation of war;

                  2. US views should get more weight in the determination of customary international law.

         7. Bellinger’s analysis (legal adviers to state dept. in Bush admin)

            1. Congress should revisit the ASPA. US is, to some extent, trying to dig itself out of this hole.

      6. Problems

         1. Posner: very costly – Uganda trial took 6 years. ICC is extra concerned with being thorough because of the criticism that ad-hoc tribunals were only “winner’s courts.” Trying to create a credible institution means leaning to err on defendant’s rights.

      7. Positives

         1. ICC focuses on victim participation

            1. Adds to the length of the case

            2. But remedies the criticism of other ad-hoc tribunals that they didn’t pay enough attention to victims or give victims a voice

         2. Educational function

            1. Might encourage national prosecutions

         3. Has led to progress in International Constiutional Law – we have more decisions and judicial explorations going to basic and complicated issues. Good laws on evidence and procedure. Training the next generation.

   2. Ad-hoc tribunals

      1. ICTY and ICTR

         1. Patricia Wald (US judge appointed to ICTY)

            1. Adhocs have made 5 contributions.

               1. Help end the culture of impunity

               2. Establish individual guild, not collective guilt (hopefully works to break down stereotypes)

               3. Creates historical record in the same way that Nuremburg did

               4. Make law

               5. Do justice

      2. Hybrids: Sierra Leone, East Timor, Cambodia, Lebanon, etc.

   3. Where does the ICRC fit in?

      1. ICRC has nothing to do with tribunal function. No enforcement. But they provide education and training to military and civlians (prison vists, try to develop domestic law).

         1. Only sanction: criticism, which they rarely go public with.

         2. Diplmoatic approach

      2. ICRC’s neutrality is in question, which is putting their personnel at risk (ICRC patients with ICRC prosthetic legs in Afghanistan kill an ICRC agent).

         1. ICRC is linked with military operations.

            1. Receives aid from US

            2. “instrumentalization of aid” – military uses humanitarian assistance as inducement

            3. military now has more “ownership” of humanitarian relief and that has been a bad thing for the ICRC’s reputation

         2. ICRC as a tool for western imperialism

         3. ICRC as a tool for aiding terrorists

            1. From US military, getting frustrated.

         4. They are a neutral org, but NEITHER side accepts their position of neutrality.

            1. Sense that jus ad bellum should not cross into jus in bello issues

            2. How to deal with women’s issues or other cultural issues that just seem fucking wrong

            3. How to help people even though it might be seen as influenced by...