week 8: the international criminal court (icc)

What is the icc?

• Could be rooted in post ww2 poltics. 

• Biased. Not fair in its application in the international rules of war or human rights norms. 

1. An international insittuion created in 1998 via the rome statute

2. Located in the hague, netherlands

3. An isntutions that ahs generated a lot of optimism among legal experts and human rights actiivsits. Missing ingredient in human rights politics. 

   1. U used to have extensive human rights treaties, but seen as authoritative. The problem was the norms were not enforced. The international system prior to this didnt have enforcement, u could commit crimes and be embarrased or wtv, but no punishment mechanism.

4. An internattional insitution that prosecutes individuals suspected of committing tt least one of the following

   1. War crimes

      1. Actions that involve ppl engaging in rape, looting, torture, denial of medical care, and deliberate targetting of civilians among other things during war

   2. Crimes against humanity

      1. Widespread or systematic war crimes

   3. Genocide

      1. Actions w the specific intent ot destroy, in whole or part, a racial, ethnic, religious or national group

   4. Aggression

      1. The use of military force that does not contitute self defense or that is not authorized by the un. 

   5. None of this means tthatt it would hold up in court tho. Tthese concepts are specific, and not easy to prove. 

An international institution that can only prosecute a subset of political leaders, 3 conditions

1. The leader has to be suspected of committing one of the crimes ^

2. If they are from or ina  country that has signed the rome statue, or if theyre referred to the icc by the un council

3. If they are from a country where the domestic legal system is incapable of or unwilling to prosecute individuals suspected of crimes above^

   1. Reflective of teh engotiating process. Limits icc power. We can deal w this internally. How the rome was negotiated and how states are willing to agree to shit like this. 

The icc is an insitution w a giant budget, 250mill each year, involved in

• 31 active prosecution focusing on ppl from africans tates

• 17 investigations in african countries

• 3 prelim investigation in nigeria, venzuela , and drc. 

An institution that emplopys a more coercive tactic to promote state compliance w inntenrational law

• Think abt what the icc does vs the un, the icc isnt technically part of the un. 

• The major strategy the un uses to promote international law is naming and shaming; putting social pressures on leaders to do tehr right thing. 

• The icc adds how if u do commit a crime, u can go to court and be jailed if convicted officailly. Coercive element. 

The icc origins can be analyzed at three levels

1. Historical origins

2. 19th century

3. 20th century. 

Lets examine each. 

The historical origins

• The icc reps thousands of years of thinking abt ethical poltiical behavoiour. Think of vitoria. 

• Hes not the only one though. Surya subedi. 

  • According to his analysis, ancient hindu thinkers thought abt a number of behaviours they deemed uneehical and violation of laws of war

1. Crime to wage war for the purpose of spreading religion or defeating religioin.

2. Crime to wage war for offensive reasons (acquiring territory/resources)

3. Crime to wage war before all other things of resolution were offered. 

4. Crime to wage war without notifying ur oppenent first, including the specific time and location. 

   1. Fun fact, the surprise attack rn is legal. Weird relationship between these restrictions and modern restrictions. Modern restrictions allow more brutal things for winners and losers. 

5. Crime to wage war with concealded weapons, poiseoned arrows, or darts blazing with fire. Fun. 

   1. According to some geneva conventions, this is true kinda. U cant use chemical weapons tdy = poisoned arrows. Darts w fire is legal tho, missiles. 

6. Crime to attack those who are defenseless, fatigues, armed only w a broken weapon, naked, terrified, not facing forwards, or hair covering their eyes. Cool. 

   1. Youd have to be terrified and naked to survive

7. Crime to wage war in a garden, in a temple, or at night. 

   1. Sacred places. At night is interesting tho cuz modernly, nightly attacks are advantageous. 

Why do these hindu laws relate to teh creation of the icc thousands of years later?

• They set the tone, ideological context abt ideas and norms abt international laws and stuff. 

• The geneva convention, hague convention, updates to the conventions. They all reflect on waging war ethically. 

It was in the 5th century when we see the beginnignnof states using formal legal procedures to enforce war laws and prosecute violations. 

• The victor would punish the defeated. 

• The courts in the 5th century had two key things

1. Victors were ad hoc (set up to address only specific wars

2. Establish by victors. 

Fast fwd to 19th cent

• The idea of a permanent and independent international court to enforece the laws of war becme more porminent

• Gustave in 1872 cofounder of icrc, proposed the ida for creating icc. Why?

1. He had lsat faith in the ability of public opinion toprevfent wartime violeces, given how ppl behaved during the franco prussian war

2. Lost faith in states willingness to pass legislation cosnnistet w the geneva convention.