Download Global human rights

Global human rights
Can universal jurisdiction prevent
atrocities?
Topics in global affairs
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Four topics
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Global justice/human rights
Global economic relations/integration (trade/aid)
Global environment
Global security
Wednesday, 3/19/2008
Hans Peter Schmitz
Topics today
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Events of the day/week/month
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Tibet and Kosovo
The Tanker Deal
Global justice/human rights
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Defining human rights
International human rights (IHRL) and international
humanitarian law (IHL)
What is Universal Jurisdiction (UJ)?
Readings: Kenneth Roth (a constructivist) against
Henry Kissinger (a realist)
Wednesday, 3/19/2008
Hans Peter Schmitz
Wednesday, 3/19/2008
Hans Peter Schmitz
What are “human rights”?
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Human rights are inalienable entitlements
held equally by every human being simply
because they are human.
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International human rights law challenge the
idea of state sovereignty, because it
prescribes a specific behavior of states towards
their own citizens.
What is universal jurisdiction?
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Jurisdiction: the authority to regulate the conduct
of persons (criminal and civil).
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States have jurisdiction over territory and population
(sovereignty).
Universal jurisdiction: Asserting authority over
offences committed abroad by non-residents.
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Example: A Spanish court charging A. Pinochet (not a
resident of Spain) with human rights abuses he allegedly
committed in Chile (not on the territory of Spain).
Wednesday, 3/19/2008
Hans Peter Schmitz
Human rights in global affairs
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Before 1945: International law only recognized
states as subjects in international law.
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Before 1945, humanitarian and human rights issues were
only raised in a few limited areas:
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protection of minorities and foreign nationals;
Labor standards (International Labor Organization, ILO);
Rules of war (Henri Dunant, The International Red Cross);
Slavery and Women’s rights. .
UN human rights mandate
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Accomplishments
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Human rights are now internationally recognized as
universal norms.
The UN has a mandate to promote human rights.
The UN can require the cooperation of member
states in the promotion of human rights.
UN human rights mandate: limits
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Limits
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HR are relegated to the less important area of “social
and economic cooperation (Chapter XI)
The UN Charter reaffirms the primacy of “state
sovereignty”, in direct contradiction with the idea of
“human rights”
No powerful enforcement mechanisms for “human
rights”
What is International Human
Rights Law (IHRL)?
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IHRL regulates the domestic conduct of
states at any time.
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International Human Rights Law
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protects individuals from human rights violations.
Provides civil, political, social, economic, and cultural
rights to individuals.
Requests states to promote the rights of its citizens.
Wednesday, 3/19/2008
Hans Peter Schmitz
What is International Humanitarian
Law (IHL)?
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IHL regulates the conduct of states during
international (to some degree also: domestic) armed
conflicts.
International Humanitarian Law
protects those who do or can not participate in
hostilities (wounded combatants, civilians, and
POWs).
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gives rights to humanitarian organizations to bring
relief to the above mentioned groups.
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limits the means of warfare to prevent "unnecessary
suffering" (most notable bans: poisonous gas and
expanding bullets). Hans Peter Schmitz
Wednesday, 3/19/2008
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Theories of IR and IHL
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Neorealism: Regulating war is impossible and unduly
limits the means of warfare.
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Liberal institutionalism: Regulating warfare is in the best
interest of states. As long as war exists, states should
regulate warfare without compromising sovereignty.
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Constructivism/Idealism: War itself is a violation of
fundamental rights. International humanitarian law must
aim to abolish war (and states).
Wednesday, 3/19/2008
Hans Peter Schmitz
Theories of IR and IHRL
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Neorealism: Human rights concerns are dangerous. State
sovereignty must trump human rights concerns. If states
cared about human rights elsewhere, it will only increase
the likelihood of war.
Liberal institutionalism: Human rights will emerge as a
result of economic development and global trade. They
are not a primary goal of international politics.
Constructivism/Idealism: Human rights should replace
sovereignty as the basic principle of international relations.
Wednesday, 3/19/2008
Hans Peter Schmitz
Comparing IHL and IHRL
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IHL regulates the conduct of states during armed
conflicts.
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Not a direct challenge to state sovereignty
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Protects wounded combatants, POW, and civilians
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Regulates means of warfare
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Gives access to relief organizations
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Is limited to situations of armed conflict
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IHRL gives universal rights to all human beings.
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Fundamental challenge to state sovereignty
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Gives rights to all humans
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Is valid at all times and in all places
Wednesday, 3/19/2008
Hans Peter Schmitz
The International Criminal Court
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The International Criminal Court (ICC) promotes
both IHRL and IHL by prosecuting those accused
of violating basic human rights and committing
atrocities.
Wednesday, 3/19/2008
Hans Peter Schmitz
Henry Kissinger: Pitfalls of UJ
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Key arguments
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Universal jurisdiction violates the basic rule of
sovereignty underlying the state system.
State sovereignty trumps human rights.
States never agreed to establish ‘universal jurisdiction.’
Governments, not unelected judges, should rule in
global affairs.
Judicial mechanisms are inappropriate for global
affairs. Political solutions have to be found.
Wednesday, 3/19/2008
Hans Peter Schmitz
Henry Kissinger: Pitfalls of UJ
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Key arguments
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UJ is being used by the ‘left’ for political purposes (to
go after A. Pinochet).
UJ undermines national reconciliation efforts and
imposes foreign law.
Americans could be prosecuted by these courts, thus
violating our national interests.
Alternatives:
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Strengthen the human rights role of the UN SC.
Create ad hoc tribunals.
Wednesday, 3/19/2008
Hans Peter Schmitz
Kenneth Roth: Defending UJ
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Key arguments
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Human rights trump state sovereignty.
States have failed to enforce human rights abroad and
atrocities need to end.
The International Criminal Court (ICC) will serve as a
deterrent to future atrocities.
Wednesday, 3/19/2008
Hans Peter Schmitz
Answering Kissinger’s claims I
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UJ is a new concept.
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Crimes under UJ are vaguely defined.
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Answer: Crimes are clearly defined.
Judges are not accountable.
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Answer: it is not new; there is precedent ant intent by
states. What is new is a greater willingness to enforce.
Answer: Judges can be removed by member states.
Americans could be put on trial.
 Answer: Only if they commit atrocities and the
domestic courts fails to prosecute.
Wednesday, 3/19/2008
Hans Peter Schmitz
Answering Kissinger’s claims II
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The ICC fails to have due process (trial by jury)
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National courts play ‘politics’ and advance a
leftist agenda.
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Answer: The U.S. does not always use jury trials and
the ICC has standard due process procedures.
Answer: Pinochet was put on trial for human rights
violations, not for being right-wing.
UJ interferes with national reconciliation.
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Answer: Impunity undermines and reconciliation.
Wednesday, 3/19/2008
Hans Peter Schmitz
The Nuremberg Principles, 1945
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“Crimes against peace/aggression" become a crime under
international law
“Crimes against humanity” enter international law
Nuremberg and Tokyo Trials
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Rationale for tribunal (Harry Truman)
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It exposed war crimes more effectively.
It averts future hostilities by exacting justice rather than
revenge.
It targets the leadership, rather then the population.
ICC and ICJ
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The International Court of Justice (ICJ) is a civil tribunal
that decides only disputes between states.
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The International Criminal Court (ICC) is a criminal court
that will prosecute individuals.
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Like the ICJ, the ICC is permanent and not geographically
limited. Both courts are headquartered in The Hague,
Netherlands.
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Check out the ICC webpage and the ICJ webpage.
Mandate of the ICC
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What the ICC prosecutes
 Crimes Against Humanity
 War Crimes
 Genocide
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What the ICC does not prosecute
 Terrorism
 Aggression (still to be defined)
 Crimes committed prior to its establishment on
July 1, 2002.
How cases get to the ICC
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Three ways of activating the ICC:
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2.
3.
The UN Security Council can authorize the
court’s actions.
State parties can complain to the court about a
situation of alleged violations.
Court’s Prosecutor can initiate an investigation,
but needs to convince a pre-trial chamber of
three judges.
The jurisdiction of the ICC
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Crimes committed in the territory of a state which
has ratified the Rome Statute.
Crimes committed by a citizen of a state which
has ratified the Rome Statute.
The ICC prosecutes individuals regardless of
their civilian or military status.
The ICC, the UN, and national courts
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The ICC complements, rather than replaces
domestic prosecution (unlike the Rwanda and
Yugoslavia tribunals). Only if domestic courts are
“unable or unwilling” to prosecute, the ICC
will step in.
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The UN Security Council can suspend ICC
proceedings for up to 12 months, if the SC is
concerned that the court’s proceedings may
interfere with the SC’s responsibility “to maintain
international peace and security”.
The United States and the ICC
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Should the United States join the ICC?
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Why or why not?
Theories of IR and the ICC
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Neorealism: no (Kissinger)
Neoliberal institutionalism: yes
Idealism/Constructivism: yes (Roth)