Jan 7, 2009

some strategic considerations for the ICC resolution

Here are some things I've been mentally batting around over the last couple weeks: some strategic moves for the Affirmative and Negative concerning the Jan / Feb international criminal court resolution.

Take 'em with a hefty dose of salt, and suggest your own in the comments.

If I were writing an Aff case, my first choice would have to be whether to go with the real ICC, or something like it. I've presented reasons for the former; however, the latter avoids some of the potential problems with the real ICC, described immediately below.

Thus, it's probably wise to have two Neg cases: one versus the "real ICC" aff, and one against the hypothetical. The real ICC can be attacked in many ways: loopholes, Security Council chicanery, lack of enforcement, lack of jury trials, etc. A hypothetical ICC presents even larger problems: a slippery slope to global tyranny, slippery conceptions of "crimes against humanity," uncertainty about jurisdiction or enforcement.

It's also extremely important to clearly define "crimes against humanity." If you haven't already done so, read this article. (Wikipedia, believe it or not, also has a decent summary.) I don't think the Neg should waste any time trying to minimize the badness of most crimes against humanity; as I mention above, it's more about their potential for prosecutorial abuse, either through slippery definitions or politically-motivated charges.

Many, if not most, Aff arguments I've seen involve the importance of protecting all human rights. It's a moral issue; after all, the resolution says "ought."
If I were running the Neg, I'd immediately place two burdens on the Affirmative:
1. To prove that nations have moral obligations. If they can't do this, we can't affirm, since "ought" is moral.
2. To prove that the U.S. has obligations beyond the immediate good of its own citizens.
In other words, why does any one nation have a duty to humanity as a whole? Don't let Affirmatives merely assert that since something is really, really bad, the US has an obligation to fight against it, etc. They have to warrant this.

A Negative styled after hardline Political Realism would be a perfect way to take Burden #1 above. A Negative based on sovereignty (framed by the Lockean social contract) would be perfect to go with #2.

Another thing no Neg should let the Aff presume is the efficacy of the ICC, real or hypothetical. Aff's running the "real ICC," and Negs facing it, should consider Jack Goldsmith's "The Self-Defeating International Criminal Court," found in the Winter 2003 edition of the University of Chicago Law Review. Not only is the ICC ineffective, Goldsmith argues, but it threatens the effectiveness of current rights protection. A sampling:
The most salient class of human rights violators during the past century has been oppressive leaders who abuse their own people within national borders. Under the traveling dictator exception, the ICC does not touch this class of offenders, even if they travel abroad. Unless oppressive regimes ratify the ICC (something few are expected to do), the ICC simply fails to address the most serious human rights abuses.
The only way to overcome the exception is through Security Council action, which means that "such a referral remains subject to the permanent member politics that so worried ICC supporters." Furthermore, the ICC lacks the resources to extricate a tyrant.

22 comments:

Idaho Debater said...

Would you say that Iraq could be a pertinent example of how violating sovereignty makes things worse? I thought, at first, that it was relevant, yet I'm not quite so sure as the court would hardly be invading any countries.

Jim Anderson said...

Good question. However, for the ICC to have any teeth, it has to "bring in the bad guys." Otherwise, a Saddam can violate rights with impunity. So, for the ICC (or something like it) to be effective, it has to actually violate sovereignty, you can argue.

Idaho Debater said...

Ah. Thanks. And if it isn't effective, then why have it?

Jim Anderson said...

That, indeed, is the other tine of the fork. Now, go out there and slice up some competition.

Comakid said...

The reason it doesn't work is because some countries refuse to acknowledge its jurisdiction. Usually, those are the countries where crimes against humanity have been committed. That's why we need the US, and conversely, the entire world on board.

Some other things to consider:

Affirmatives everywhere should be building a real politik case. If you can come up with a real world reason why the US should submit to this court, then your chances of winning will go up.

Conversely, negatives might want to shoot for a morals based case. It's totally unexpected; give a moral reason to not only refuse to join, but to despise the ICC. Make the ICC a vision of hate and death. It's a nice change-up from political realism negs.

If you're going to use an affirmative hypothetical court, don't just use some ideal, or else the neg can use hypothetical ideas on you, like global tyranny. Instead, design your court. Make it your baby, decide how its run, and put it out there. The neg, if they're good, will figure out what's wrong with it and you can improve it for next round; if not, they'll just say something stupid like "It's abusive!"

Give yourself burdens. The aff needs to do it to kick out of the neg's burdens, and the neg needs to do it to guide the case. Like a missile, your case needs a target.

And finally, under your affirmative RA, try to show that the US is NOT the only country that should submit. That should make your job easier.

Matt said...

would it even be legal to "create" your hypothetical court? sounds like a plan...

Assuming it is legal:

The Neg could say that if the AFF assumes a specific court then so can the neg, the neg court is more relevant as it is currently in existence, and the Aff gets tied to the ICC again

Asian!!! said...

hi, I was wondering what you thought of this neg case.

V: Justice
C: Mill's Harm Principle

Individuals have the right to do whatever they please as long as it does not harm others. When it does, the jury system steps in to help. This is the basis of justice in modern liberalized society.

C1: There is no such thing as a "crime against humanity" because crimes are committed against individuals and humanity is a collective term which de-emphasizes the role of the individual and would ruin the justice system of modern liberalized society.

C2: You can't prosecute against humanity because it is an abstract ideal. Such prosecution can not possibly fit ideal judicial procedure because abstract ideals are harder to prosecute than actual crimes against individuals.

Sexy Beast said...

Asian, where is the link in your contentions to your value/criterion?

Comakid said...

Matt, the point of using a hypothetical court is to kick out of neg arguments. All the aff has to do is say; "Hey, you never know what the ICC will do; it could become my court."

I guess I WILL admit that building your entire case off of the court is probably bad. Using the court as a shield is a whole 'nother story.

Matt said...

Hypo court does kick out some Neg put creates new ones... It stops constitutionality, but creates specifics contentions(contentions that essentially point out we don't know specifics) that would say "we should not blindly submit"

Anonymous said...

Jim, I hate to nitpick, but your burdens don't seem 100% sound. Your #1 doesn't warrant why "ought" presents a form of morality. This is a problem for when you debate affs that define ought as desirability or as a logical consequence. The #2 wouldn't work against an aff case that gives reasons why the joining the ICC helps the U.S. That way, joining the ICC could help U.S. citizens, so the U.S. wouldn't need to have a moral obligation to another. (There's some interesting literature on this for those writing cases FYI)

Jim Anderson said...

anonymous, the first nitpick is accurate; the person using it would have to explain the moral basis of "ought," including the matters of justice, rights, and the like.

To the second one, I'd note that merely *benefiting* U.S. citizens doesn't meet the burden of an obligation; what's good for me is not necessarily requisite. (That, in fact, is a third burden I've considered for the Neg.)

Comakid said...

Here's a fun experience and a bad one:

Never debate National Sovereignty and "Organizations don't work because bureaucracy is dumb/selfish" at the same time.

Why? Because the US is an organization. If we shouldn't work with other states, then why should we even work with each other as human beings, if organizations don't work?

Bad news: I LINKED my opponent's case to the Holocaust, and at the end of the round, the judge said she didn't pick me up because I didn't explain WHY THE HOLOCAUST WAS BAD.

So, the lesson? The Holocaust makes your life forfeit. Your feelings and humanity don't matter; if I think you're causing a problem, I can torture and kill you as soon as this round is over. So, once you link the Holocaust and explain why it's bad, claim IN-ROUND MPX. I know, it sounds policy, but here's how you work it; by voting for me, (probably Aff), then I'm validating your existence. Your life is worth nothing if you vote for my opponent, but simply by picking me up, your right to live will exist, and I won't kill you after round.

Maybe not the kill part, but still, claim those impacts, and you're set to win.

Matt said...

Jim, I used the necessity burden on my Neg and it essentially won me my neg cases. Although it may not fly with all judges, who automatically vote on which side proved "on balance who's was better"

also another thing that works well for neg, essentially say that even if your opponents criterion is better national sovereignty is still essential to government so points still must pass the sovereignty test. (be sure to give a warrant to this argument, but it works well)

Jim Anderson said...

Comakid, your judge didn't automatically equate the Holocaust with badness? That is absurd. We can't spend time warranting every last little thing in a debate--at some point, we simply require common ground, be it linguistic or historical. Frankly, if I were a coach hearing about a judge like that, I'd have been going to the tournament director and demanding that judge be removed from the pool.

Matt, that "pass the national sovereignty test" is a really good way to put it.

Anonymous said...

could you give me an example of the positive effects the ICC can have on the US?

Matt said...

Read Jims Post on Blackwater... Link it to the ICC Helped to win a round...

Also If you have ever seen Monty Pythons Spanish Inquisition Skit... the whole idea around "nobody expects the Spanish Inquisition" We never know when something will happen...

Or have a contention saying the U.S Joining would legitimize the ICC further

Or the use Jims post around the U.S legal Obligation to protect human rights

okiedebater said...

Random ideas:

1) Do you think that it would work to run an ends-based/utilitarian case on Aff? I would be defining ought as "Used to indicate advisability or prudence" (from the American Heritage Dictionary of the English Language) and showing that the ICC fits the designation of "international court designed to prosecute crimes against humanity".
I would then show that the US submitting to the ICC would 1) benefit the ICC with both resources and legitimacy, and 2) benefit the US in terms of global opinion. Overall, this would be providing the greatest good for the greatest number.

2) Regarding using the real ICC versus a hypothetical court, I think it may be possible to combine the two. As AFF, I would argue using the ICC as an example of a likely format, such that any empirical evidence is still relevant, but say that the court could always be modified to some extent. The US could have a hand in re-shaping the court, and as long as the end result is the US submitting to its jurisdiction, it would still be topical. This strategy seems like it could maybe work to take out some of the NEG Constitution arguments regarding things like double-jeopardy and jury trials, while maintaining some ICC principles such as complementarity.

Disclaimer: These are just random thoughts for now, so I'm not sure yet how well they'll work out in rounds.

Jim Anderson said...

okiedebater, the Utilitarian outlook is very viable for the Aff, though it depends alot on empirical evidence. I'd suggest Christine Chung's "The Punishment and Prevention of Genocide" as a place to look.

As far as combining a real and hypothetical court, how would you avoid the charge of ad hoc / arbitrary features? Couldn't the Neg equally argue that the hypothetical court would be even worse than the real one?

okiedebater said...

It is true that the NEG could potentially argue that the hypothetical court could be worse. However, I would mainly use this idea of combining ICC with hypothetical if the NEG was running something along the lines of "The ICC fails to ensure constitutional rights", or some similar complaint about not fitting with the US system. As a response to the argument of it being worse, I would say that if adapting to fit the constitution makes it worse, then why do we still abide by the Constitution? Essentially, if they are arguing the court is flawed b/c it lacks constitutional guarantees, they must believe these to be good/effective. I would then argue that adding them to the international court, by their own line of reasoning, should make it even more effective/better.

Rod said...

Okie, I hit a Utilitarian Aff in an elim round last weekend. It was tough, I barely picked up on a split decision because I attacked the case links, and argued that the Value of Justice and Criterion of Utilitarianism inherently contradict. So go for it, it seems like it works.

Matt said...

The Neg Just has to say that the U.S should not submit blindly to a court as that would just be plain stupid...(obviously articulate this better)

If you are set on the ICC set up a sort of fork argument.

"either we accept the ICC as the Focus of the debate or the AFF must defend Blind Submission as a PRO"