interesting cases for the ICC resolution

What are some of the most interesting cases you've encountered while debating the Jan/Feb international criminal court resolution? List 'em in the comments.

Here are some I've seen...

The Violence Against Women Aff
Since women are the largest single oppressed group, we have a moral imperative and priority to right the wrongs committed against women by joining the ICC.

The IACHR Aff
This case focuses on the Inter-American Court of Human Rights. The reasoning is essentially similar to that of standard ICC cases. One potential advantage is that its jurisdiction is solely over member states; one potential disadvantage is that its scope is narrower, restricted to the Western hemisphere, so it may lack the strength and legitimacy of the ICC. (Here's the Convention that established the IACHR; articles 61ff cover the Court's jurisdiction.)

The Hegemony Aff
To preserve its strategic superiority, the U.S. ought to submit to the jurisdiction of the ICC. It's best to cooperate internationally rather than to try to maintain hegemony alone. (I've seen the Aff try to argue that the ICC wouldn't prosecute an American citizen anyway, since it wouldn't want to risk having the U.S. pull up its stakes and leave camp, but that would seem to make the phrase "submit to the jurisdiction" utterly meaningless.)

The Habermas Neg
Since discourse precedes the establishment of moral universals, and "submitting" means that true discourse is not achieved, the U.S. cannot submit to the jurisdiction of an ICC.

a lack of political will

Suppose it turns out that, legally speaking, acts sanctioned by the Bush administration at Guantanamo constitute torture. Actually, you don't really have to suppose:

In her interview, Crawford acknowledges that it was "the combination of the interrogation techniques, their duration and the impact on Qahtani's health that led to her conclusion. 'The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. … This was not any one particular act; this was just a combination of things that had a medical impact on him. … It was that medical impact that pushed me over the edge' to call it torture." What Crawford has done here is astounding. She has repudiated the formalistic (and perennially shifting) definitions of torture as whatever-it-is-we-don't-do. She has admitted that there is a medical and legal definition for torture and also that we have crossed the line into it.

What then?

The answer to that question takes you to a very different place when the act is torture, as Crawford says it is. Under the 1984 Torture Convention, its 146 state parties (including the United States) are under an obligation to "ensure that all acts of torture are offences under its criminal law." These states must take any person alleged to have committed torture (or been complicit or participated in an act of torture) who is present in their territories into custody. The convention allows no exceptions, as Sen. Pinochet discovered in 1998. The state party to the Torture Convention must then submit the case to its competent authorities for prosecution or extradition for prosecution in another country.

The former chief judge of the United States Court of Appeals for the Armed Forces and general counsel for the Department of the Army has spoken. Her clear words have been picked up around the world. And that takes the prospects of accountability and criminal investigation onto another level. For the Obama administration, the door to the do-nothing option is now closed. That is why today may come to be seen as the turning point.

All LDers should be watching this situation closely, since it puts a sharp edge on the debate over the current resolution. It's entirely conceivable that a former president and high-ranking officials, never mind the soldiers, doctors, and citizen contractors who participated, could be prosecuted under international law. They won't, of course, since the U.S. will never allow it. And Barack Obama isn't going to press the case.

Just last weekend, Obama signaled in a television interview that he was not inclined to launch sweeping new criminal investigations of detainee treatment and interrogations that took place under the Bush administration. "My instinct is for us to focus on how do we make sure that moving forward we are doing the right thing," Obama told ABC's George Stephanopoulos. "That doesn't mean that if somebody has blatantly broken the law, that they are above the law. But my orientation's going to be to move forward."

What then?

Update: Eric Posner (U. Chicago) lists five reasons Eric Holder, the incoming Attorney General, is unlikely to prosecute torture charges.

LD mailbag: retribution and the ICC

Regarding the current resolution, a reader writes:

I'm really struggling with this topic, but I think I have an idea for a case. However, I'm afraid that I'm misunderstanding the topic or this idea isn't addressing it in the entirety that it needs to. The resolution has been reading to me that the question for the affirmative to answer is whether or not the US should (I'm defining ought as "moral rightness") submit itss citizens to the jurisdiction of an ICC. My idea is to have a value of cosmopolitan justice and criterion of retribution with the premise that justice is the highest value of any society, making it the highest value of the world/global society, and that the way for justice to be best achieved in this situation is for retribution to be fulfilled because retribution will give the just due to those who have harmed. My question is about the retribution part; I'm afraid I'm simplifying the debate too much because I'm seeing all of these other arguments that are much more complex. I see many other arguments about how submitting will support human rights, but is it wrong to interpret the topic as a response to injustice? Obviously, if there is a need for a court, then it's after the fact; the time for preserving rights is past, and now all that can be done is to punish those who have harmed. I interpret the debate to be that the US should submit if more justice will be achieved by doing so; one of the biggest benefits of an ICC is that there is an opportunity for retribution that wouldn't exist without it. The rest of my points are set up to prove that more justice is achieved for both US citizens and the rest of the world by submitting, so do you think that this could work? Or, like I said earlier, am I missing the point of the debate?

I think there's much to work with here.

1. Philosophically speaking, retributivism is perhaps the strongest justification of punishment, it a moral duty, and thus fulfilling the burden of "ought" in the resolution. Utilitarian theories (often based on deterrence) are a harder sell, since they require an empirical confirmation that the Court actually deters crime, and can be shown, absent side constraints, to justify horrific punishments to maximize deterrent value.

2. I don't think your doubts about retributivism are due to its weaknesses, but rather due to a misconception of the strength of rights-based affirmatives. It's much easier to show a duty to right a wrong than to show a positive obligation to prevent a wrong, especially in a world where national sovereignty is still alive and well and realpolitik holds sway.

3. One way retributivism might flow to the Neg is to argue that the ICC (and international jurisprudence, generally) prohibit the use of the death penalty. The worst atrocity crimes, including murder, merit at most life in prison without parole. If we have a moral duty to punish proportionally--almost always a key tenet of retributivist theory--and if mass murder requires the death penalty, then the U.S. should not submit to the jurisdiction of a court that will fail to carry out justice. (Even from a utilitarian standpoint, it could be argued that the ICC's inability to sentence criminals to death reduces its deterrent value to nil.) For a retributivist defense of the death penalty, start with Kant.

4. Varieties of retributivism (and the title of an anti-death-penalty retributivist piece.)

5. More on the different justifications for punishment, from the SEP.

Your thoughts and questions, as always, are appreciated.

the United States' obligation to further human rights around the globe

Regarding the current LD resolution, any affirmative looking for an actual part of U.S. law obligating the United States to set the observance of human rights as a positive goal of its foreign policy should turn to Ch. 22, US Code.

Sec. 2304. Human rights and security assistance

(a) Observance of human rights as principal goal of foreign policy; implementation requirements

(1) The United States shall, in accordance with its international obligations as set forth in the Charter of the United Nations and in keeping with the constitutional heritage and traditions of the United States, promote and encourage increased respect for human rights and fundamental freedoms throughout the world without distinction as to race, sex, language, or religion. Accordingly, a principal goal of the foreign policy of the United States shall be to promote the increased observance of internationally recognized human rights by all countries....

(3) In furtherance of paragraphs (1) and (2), the President is directed to formulate and conduct international security assistance programs of the United States in a manner which will promote and advance human rights and avoid identification of the United States, through such programs, with governments which deny to their people internationally recognized human rights and fundamental freedoms, in violation of international law or in contravention of the policy of the United States as expressed in this section or otherwise.

The chapter is one of the few places in United States law includes the phrase "crimes against humanity," commanding the Secretary of State to report on any potential aid recipients' participation in such crimes, among other things.

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.

defining "submit" in the international criminal court resolution

Several readers have asked how "submit" should be defined in the current LD resolution. Here are some thoughts on the subject.

1. Affirmatives especially should look for definitions that involve "yielding to the authority of." For example, from dictionary.com:

to give over or yield to the power or authority of another

or, perhaps

to defer to another's judgment, opinion, decision, etc.

Either of these avoids the negative connotations that involve "surrender."

2. Really, though, the best definition might involve providing an example of the entire phrase, "submit to the jurisdiction of." In layperson's terms, this means that the United States would grant the international court the authority to prosecute its citizens. What if a U.S. general were brought to trial, say, for arresting and detaining inmates held at Guantanamo who were later released without punishment? If the international court found the general guilty, even though he had not been prosecuted under U.S. law, affirming the resolution would mean deferring to the court's judgment, for good or ill. (There are many other crimes considered "crimes against humanity;" this article is extremely helpful.)

3. As always, your thoughts, comments, and questions are appreciated.

LD mailbag: consequentialism and the international criminal court resolution

Regarding the Jan/Feb LD resolution, a reader writes,

I was wondering if you could help me with my Aff case.

VP: (Morality?)
VC: (Consequentialism?)
Resolution should be looked at from both a global and US standpoint, should be adopted because it furthers the interests of both.

C1: Signing ICC would further US interests
a) Helps with war on Terror
b) Even if the US does not sign ICC, nations can still bring on cases against US.
c) Helps further US image as Human Rights leader

C2: Signing ICC would help further global interests
a) Helps efficiently prosecute crimes against humanity and bring Justice
b) Helps further international law and global cooperation etc.

This is a very policy-like impacts based case, and I'm having problems figuring out my Value Premise and Value Criterion from it. I've seen people debate LD without a Value or Criterion (and win!), but I'd rather not go that route. The problem with morality as a value is that my case is more arguing that signing the ICC better achieves the interests of both parties, not necessarily that those interests are more moral per se. The consequentialism seems to be a good criterion, but then again, I'm sure there must be something that better links to the resolution and my case. Could you please help me? Thanks!

First, make sure you organize your initial analysis as you do your contentions, since they establish the general warrant for your VC/VP.

Second, a value criterion of consequentialism (or, perhaps to be more specific, universal consequentialism) works best with an ends-based value premise such as societal welfare (or human welfare / global welfare). It's even echoed in the language of the contentions--substitute "welfare" for "interests," and it becomes quite obvious what the VP should be.

There's the potential in the case's construction that either contention could stand or fall on its own. This is good, in the sense that either might be sufficient to affirm, but bad in the sense that it seems to tease apart U.S. and global interests. (It also prompts the question, Why should the U.S. care about global interests?) There needs to be strong rhetoric--perhaps in a third contention--that shows that the U.S.'s interests not only merge with the world's, but that, because of the impact of globalization, they depend on the world's interests. And vice versa.

It's also a nice preemptive move against anyone running a realist case that tries to minimize "morality" as a decision rule for governments.

Lastly, regarding the second contention in particular, the ICC has been viewed as toothless because it has no enforcement authority, which also decreases its deterrent value (which is of great importance in a consequentialist framework). The U.S.'s participation in the process would set the stage for U.S. enforcement of ICC rulings as well.

Readers are, of course, encouraged to offer their own suggestions or questions in the comments.

justice was a long time coming

Since its inception, 36 perpetrators of genocide and crimes against humanity have been convicted by the International Criminal Tribunal for Rwanda. Today marks the latest:

A former Rwandan army colonel was convicted Thursday of genocide and crimes against humanity for masterminding the killings of more than half a million people in a 100-day slaughter in 1994. Survivors in Rwanda welcomed the watershed moment in a long search for justice.

The U.N. courtroom in Tanzania was packed for the culmination of the trial of Theoneste Bagosora, the highest-ranking Rwandan official to be convicted in the genocide. Onlookers were silent as the 67-year-old was sentenced to life in prison.

"Let him think about what he did for the rest of his life," said Jean Pierre Sagahutu, 46, in Rwanda, who lost his parents and seven siblings. He escaped by hiding in a septic tank for 2 1/2 months.

Former military commanders Anatole Nsengiyumva and Aloys Ntabakuze also were found guilty of genocide and crimes against humanity and sentenced to life in prison. The former chief of military operations, Brig. Gratien Kabiligi, was cleared of all charges and released.

Debaters examining the Jan/Feb resolution would do well to consider the utility (or even necessity) of a permanent tribunal along the lines of the ICC. It could potentially speed up and streamline the process, so it wouldn't take the international community 14 years to arrest, prosecute, and convict the most heinous of criminals.

critical theory and the International Criminal Court resolution

A little while back, regarding the Jan/Feb resolution, I mused,

[T]he topic lends itself to critical theory, if you're into that.

This prompted a commentator to respond.

Jim, near the top you mentioned this topic lending itself to critical theory. I have a student who I feel would be very interested in this line of argumentation. Unfortunately, I come from a policy background and I am not sure how to structure or present this type of argument in LD. It might also be helpful to hear one example of what you were thinking when you mentioned it earlier.

First, those unfamiliar with critical theory would do well to investigate the SEP's article on the subject.

[Critical theorists] do not merely seek to provide the means to achieve some independent goal, but rather (as in Horkheimer's famous definition mentioned above) seek “human emancipation” in circumstances of domination and oppression....

It follows from Horkheimer's definition that a critical theory is adequate only if it meets three criteria: it must be explanatory, practical, and normative, all at the same time. That is, it must explain what is wrong with current social reality, identify the actors to change it, and provide both clear norms for criticism and achievable practical goals for social transformation.

So, to maintain a classic LD advocacy, it's important to use critical theory (or a subset, such as feminist theory) as your criterion, with a value of "human emancipation" or "freedom" or "autonomy" or "value pluralism" or somesuch.

To some degree, critical theorists support an affirmative stance:

In discussions of theories of globalization, the fact of global interdependence refers to the unprecedented extent, intensity, and speed of social interactions across borders, encompassing diverse dimensions of human conduct from trade and cultural exchange to migration (Held, et al 1999). The inference from these facts of interdependence is that existing forms of democracy within the nation-state must be transformed and that institutions ought to be established that solve problems that transcend national boundaries (Held 1995, 98-101).

However, a tension exists between cosmopolitan theorists and, say, post-colonialists or anti-hegemonists who reject globalization or multinational initiatives as tools of (predominantly Western) capitalism.

See also Wikipedia's list of critical theory topics for an introduction to many of the schools and big names within critical theory.

a legal loophole for Blackwater in Iraq

Regarding the Jan/Feb LD resolution, reader F. Ivie asks,

Do you think the US occupation of Iraq will be an issue in this resolution?

Potentially--or, at least, in principle.

Jacob Sullum describes how five former Blackwater employees in Iraq might escape prosecution for manslaughter because of a loophole in American law.

According to Ridgeway, members of the convoy made "no attempt to provide reasonable warnings" to the Kia driver, and "turret gunners in the convoy continued to fire their machine guns at civilian vehicles that posed no threat."

Such actions do appear to qualify as voluntary manslaughter, defined by federal law as "the unlawful killing of a human being without malice...upon a sudden quarrel or heat of passion." The problem is that U.S. criminal law generally does not apply in foreign countries.

The Military Extraterritorial Jurisdiction Act (MEJA), the 2000 statute under which the Blackwater guards are charged, covers people "employed by or accompanying the Armed Forces outside the United States," including Defense Department contractors. But Blackwater was hired by the State Department....

The obvious solution is to prosecute the former Blackwater employees under Iraqi law. But an order by the provisional government created after the U.S. invasion made contractors immune from local prosecutions for work-related conduct. Largely as a result of outrage over the Nisour Square incident, that immunity will be lifted under an agreement that takes effect in January--too late for justice in this case.

Though the five employees are not on trial for a "crime against humanity," the principle is the same: when U.S. law is insufficient to carry out prosecutions, or when the U.S. places politics over clear rights violations, the ICC (or something like it) provides a clear, nonnegotiable framework for ensuring that criminals receive due punishment.

Potentially--or, at least, in principle.

all sovereignty, all the time

For your perusal: a collection of classic posts on national sovereignty, originally created for the March/April resolution of 2007, but now appropriate for the January/February resolution of 2008.

For aff or neg. Enjoy.

I discuss how Simon Caney's conception of "cosmopolitan justice" supports giving priority to human rights over national sovereignty in the context of international law.

And then I give time to the alternate view by Margaret Moore. Sovereignty grounds autonomy and respects diversity.

Jerry Pubantz's "Constructing Reason: Human Rights and the Democratization of the United Nations" shows that the UN's mission to promote human rights isn't just a dream of western liberal elites. Useful for anyone trying to block "critical theory."

Anyone arguing for "human rights" had better define them carefully.

Stuart Elden's "Contingent Sovereignty, Territorial Integrity and the Sanctity of Borders" not only describes the UN's commitment to sovereignty, but offers four potentially interactive and different definitions of the term. A must-read. Sovereignty isn't simple.

Ekaterina Kuznetsova's "Limit Sovereignty if the State Abuses It" describes a more cosmopolitan view of international law called "Humanitarian Law."

Also, William C. Gay explains why statism is "warist.", an attack on sovereigntist views.

The SEP's articles on sovereignty and world government offer good background and potential Neg objections to violations of sovereignty, respectively.

Jürgen Habermas makes an appearance, talking about global values and imperialism.

Is sovereignty obsolete?

Does the World Court (a body similar to the ICC) respect sovereignty?

Does respecting sovereignty save lives?

Can sovereignty and rights be balanced?

the history and potential constitutionality of the International Criminal Court

An article titled "The Constitutionality of the Rome Statue of the International Criminal Court," [pdf]* by David Scheffer and Ashley Cox, found in the Spring 2008 Journal of Criminal Law and Criminology, is absolutely essential reading for any LDer considering the merits of the January / February resolution. In a sweeping analysis of the ICC's history, judicature and relation to the U.S Constitution, the authors attempt to show how, with a few minor tweaks to U.S. law and policy, ratifying the Rome Statute would be constitutionally permissible.

The ICC follows a tradition of international tribunals established to punish the perpetrators of war crimes, such as courts for the former Yugoslavia and Rwanda. But why the need for a permanent establishment?

While those tribunals were evolving, the international community embraced the idea of a permanent criminal court that in most respects would obviate the need for the timeconsuming and costly creation of specialized international or hybrid (part national, part international) courts for individual atrocity situations as they erupt anywhere in the world. Although the United Nations Security Council had created and empowered the ICTY and ICTR under the U.N. Charter's Chapter VII enforcement authority, the only way a permanent court with broad jurisdiction would be established was through the treaty process whereby sovereign nations consented to the investigation and prosecution, under certain circumstances, of their own nationals before a global court of criminal law. Because criminal prosecutions are traditionally a national prerogative, this would be no easy task to accomplish on an international platform.

One of the major Neg arguments is that by "submitting" to the jurisdiction of the ICC (or an ICC-like entity) the United States would give up its sovereignty. How the ICC respects sovereignty has to be a critical part of any affirmative case.

Consider, first of all, that the US has been involved in Court procedures, even though the U.S. is not a signatory State.

[T]he United States actively participated in further negotiations on the Rules of Procedure and Evidence and the Elements of Crime for the ICC. Both of these documents, upon which the U.S. delegation had insisted in Rome and to which the delegation had made major contributions, such as preparing the first draft of the Elements of Crimes and leading negotiations thereafter, were adopted by consensus, joined by the United States, in June 2000.

Furthermore, it's important to note that the ICC, at least as it stands, is not composed of hostile nations with an anti-American agenda.

As of October 1, 2008, there will be 108 State Parties to the Rome Statute. These include almost every major ally of the United States, many nations that are considered friends, and none that are characterized as evil, Communist, or adversarial. They consist of all but one of the European Union nations, Canada, Mexico, most of Latin America and the Caribbean, a majority of African countries, and sixteen Asia-Pacific nations, including Australia, Japan, and the Republic of Korea.

It's also important to understand the limitations on the jurisdiction of the ICC.

The ICC is not a court of universal jurisdiction that can prosecute anyone who has committed an atrocity crime anywhere in the world. There are usually certain preconditions to personal jurisdiction: the individual charged with atrocity crimes must be a national of a State Party to the ICC, or the territory on which the crime was committed must belong to a State Party to the ICC. If the Security Council refers the situation to the ICC, however, these preconditions do not apply: a national of a nonparty State may be prosecuted, and the crimes need not be committed on the territory of a State Party. Finally, a non-party State may file a declaration with the ICC inviting it to investigate a situation in which the crimes occurred in its territory or one or more of its nationals are suspected of having perpetrated such crimes.

Thus, the ICC focuses on prosecuting crimes in nations where the extant judicial system is incapable. Since its inception,

[t]he ICC has accepted four atrocity crimes situations for investigation and prosecution and issued indictments in most of them: the Democratic Republic of the Congo, regarding which arrests have been made and pre-trial proceedings are underway, Uganda, the Central African Republic, and Darfur.

How might the United States be affected were it to join?

Provided U.S. judicial authorities act with foresight and professional objectivity, and provided federal criminal law is amended to fully cover atrocity crimes, there should be no reason for the ICC to determine that the United States is, following the language of the Rome Statute, either "unwilling or unable genuinely" to carry out an investigation or prosecution of a suspect, thus entitling the ICC to find the case admissible and to seek custody of the suspect.This feature of the Rome Statute reflects the overriding presumption in the negotiations that the ICC would focus its attention on situations where national legal systems are devastated, perhaps practically nonexistent, in the wake of conflict and atrocities or where cynical governments, perhaps implicated in the horrors, show no ability to bring their own perpetrators of atrocity crimes to justice. As it happens, three of the four situations currently before the ICC are selfreferrals, made by governments that decided to refer internal atrocity situations to the ICC because of inadequate domestic legal capabilities, or for political reasons, to confront rebel movements head-on with international justice.

This cuts both ways. The affirmative can argue that there is minimal risk that the ICC will attempt to prosecute a U.S. national, since the U.S. judicial system will largely take care of things. (But see below.) Meanwhile, the Negative might use this to argue that, therefore, it's largely unnecessary for the U.S. to join.

The Affirmative response should be threefold: first, to argue that the U.S. would add further legitimacy to the Court; second, to describe the current treaties the U.S. has signed that place international considerations at the forefront; and third, to note that the ICC covers crimes outside the framework of U.S. law.

The ICC was neither conceived nor established for the purpose of "emasculating constitutional courts." The subject matter jurisdiction embodied in the Rome Statute consists exclusively of international crimes, only some of which are codified in U.S. law. These are crimes of concern to the entire international community, striking at the heart of humankind. Much of the subject matter jurisdiction in the Rome Statute, particularly crimes against humanity and some war crimes, does not exist in federal criminal law and even in U.S. military law, so there would be no transfer of jurisdiction of existing Article III power with respect to those crimes if the United States were to ratify the Rome Statute.

The authors cite the crime against humanity of "persecution," a designation for "ethnic cleansing." No such domestic classification exists; furthermore, "U.S. law may not even provide jurisdiction over the U.S. national who commits such an atrocity crime on foreign territory." Hence, the Aff may argue, the need to join the ICC, or something like it.

The authors also note, in passing, a feature of the Rome Statute that might not square with certain retributive views of justice.

The sentencing provisions of the Rome Statute do not permit the death penalty, which might have attracted troublesome scrutiny under constitutional law if it had been included as a sentencing option.

Last, if an Affirmative is concerned about Constitutionality, which, I'd argue, is another potentially powerful Negative line of attack, we have another critical question: what part of the Constitution might allow the United States to let an international court to try American citizens for crimes against humanity?

The Constitution is a document of enumerated powers, and there is a very powerful one that often goes unnoticed. Article I, Section 8, Clause 10 of the Constitution grants Congress the power to "define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." Particularly with respect to atrocity crimes, it would be an entirely logical and warranted exercise of such constitutional power to create, in concert with other governments, an international criminal court that defines, prosecutes, and punishes such incontrovertible "Offences against the Law of Nations," namely, atrocity crimes, and to legislate that such an international court's judgments and sentences be given effect in the United States to the same extent as they are recognized by and enforced in other State Parties to the Rome Statute.

There's much more to digest in the article than I've been able to mention in this brief review. Its summary of the ICC's history is one of the most accessible I've read, and its treatment of the Constitutional matter is nuanced and provocative. Ignore it at your own peril.

Questions or thoughts? Fire away in the comments.

*Update: Krista Stone-Manista writes,

Hi Mr. Anderson,

I'm a former LD debater, now a third-year law student, and the Editor-in-Chief of the Journal of Criminal Law and Criminology. I wanted to thank you for reviewing the Scheffer/Cox article and let you know that it's now available in PDF on our website.

Excellent. Thanks!

value and criterion pairs for the international criminal court resolution

Here are several value/criterion structures to consider for the January/February resolution, "The United States ought to submit to the jurisdiction of an international court designed to prosecute crimes against humanity."

I'll try to group them by relative "fit" to either side, Aff or Neg, but in some cases they'll work for either.

This is a first draft; as I go along, I'll add analysis.

Feel free to suggest your own--which I'll tack on at the bottom--or critique the various offerings in the comments.

Affirmative V/C Combinations

V: Justice (or morality)
C: Protecting Human Rights
Thesis: If protecting human rights is essential to justice (or morality), then prosecuting "crimes against humanity" is an obligation for all nations.

V: Justice
C: International Law
Thesis: International law offers the most universal criterion for justice possible in the "real world."

V: Justice (or Human Rights)
C: Cosmopolitanism
Thesis: if justice (rights) claims are universal, we cannot let provincialism dictate policy, and thus global citizenship is a moral imperative.

V: Human Dignity
C: Protecting Human Rights
Thesis: If protecting human rights respects human dignity, then the U.S. should take a crucial step to protecting rights globally.

V: Peace
C: International Law
Thesis: International Law offers the surest possible route to peace. (A variant might involve "democratic peace theory.")



Negative V/C Combinations

V: Governmental Legitimacy
C: Constitutionality
Thesis: Violating the Constitution by submitting to the jurisdiction of the ICC (Or something like it) would make the US government illegitimate.

V: Governmental Legitimacy
C: National Sovereignty
Thesis: a government that cedes its sovereignty to an international body is no longer legitimate.

V: Democracy
C: National Sovereignty
Thesis: Democracy requires citizenship and constituencies that are only achievable in a sovereign state. (Furthermore, many nations do not have jury trials, an anti-democratic feature made part of the framework of the ICC.)

V: Prudence (defined as carefully weighing political options; see Morgenthau)
C: Political realism
Thesis: The US must act in its best interests, which does not include ceding sovereignty to the ICC or limiting its actions due to the threat of prosecution. (Use against any cases based on universal moral principles.)

V: Pluralism / Diversity
C: National Sovereignty / Critical Theory
Thesis: The ICC is an instrument of globalization, which not only threatens global tyranny, but to continue to wipe out indigenous cultures or language groups, and continue the homogenization of the globe.

should the real ICC be the focus of the debate?

The Jan/Feb LD resolution reads,

The United States ought to submit to the jurisdiction of an international court designed to prosecute crimes against humanity.

Debaters might wish to use the International Criminal Court in their rhetoric and argumentation, both for the affirmative and the negative.

Since the resolution doesn't specify the ICC, though, if you take your case in this direction, you'd better offer several reasons for the step. Here are several. Note that they might overlap; use the ones you think are best. (Have better ideas or counterarguments? Throw 'em in the comments.)

1. Although some LDers like to say that the word "ought" places the debate in the ethereal realm of ideals, the resolution is already contextualized in the "real world," by referring to the United States rather than to "nations" or "all nations."

2. The U.S. is already (in)famous for refusing to sign on to the ICC, making this topic particularly relevant, timely, and educational, provided that the ICC is the focus of the debate.

3. The phrase "crimes against humanity" is well established in international law; the ICC is expressly designed to prosecute such crimes, and thus offers clear definitions for the key terms in the debate.

4. The ICC is bound to enter the debate anyhow. Anytime an affirmative gushes about universally protecting human rights, or a negative hypothesizes ridiculous risks inherent to an international judicial system, opponents are going to say, "Well, that's an interesting possibility, but not exactly how it's playing out in the real world." Again, if the resolution presumes the existence of the United States, doesn't it also presume an extant global political and legal framework?

Some might cry "Policy!" and complain that this somehow dilutes the purity of Lincoln-Douglas debate. Maybe so. But it's the resolution we have, and we should make the best of it.

"crimes against humanity" and sovereignty

Regarding the Jan/Feb NFL resolution, the relationship between the International Criminal Court and sovereignty, at first, seems straightforward. "Crimes against humanity," as M. Cherif Bassiouni explains, are the unique province of international law.

Crimes against humanity have existed in customary international law for over half a century and are also evidenced in prosecutions before some national courts. The most notable of these trials include those of Paul Touvier, Klaus Barbie, and Maurice Papon in France, and Imre Finta in Canada. But crimes against humanity are also deemed to be part of jus cogens—the highest standing in international legal norms. Thus, they constitute a non-derogable rule of international law. The implication of this standing is that they are subject to universal jurisdiction, meaning that all States can exercise their jurisdiction in prosecuting a perpetrator irrespective of where the crime was committed. It also means that all States have the duty to prosecute or extradite, that no person charged with that crime can claim the “political offense exception” to extradition, and that States have the duty to assist each other in securing evidence needed to prosecute. But of greater importance is the fact that no perpetrator can claim the “defense of obedience to superior orders” and that no statute of limitation contained in the laws of any State can apply. Lastly, no one is immune from prosecution for such crimes, even a head of State.

It would thus seem that prosecution of "crimes against humanity" requires a view of international law that, to say the least, places sovereignty concerns beneath those of human rights. In other words, it is essentially cosmopolitan, valuing humans as humans rather than as citizens.

As Adrian L. Jones writes in "Continental Divide and the Politics of Complex Sovereignty: Canada, The United States and the International Criminal Court," found in the Canadian Journal of Political Science, June 2006,

Though without territorial jurisdiction as such, its legal jurisdiction is potentially universal, and without regard to state borders (Rome Statute, 1998: art. 4(2)). In this crucial respect, the Rome Statute establishes a direct nexus between the ICC and individual persons. Individuals are both its primary subjects, pursuant to the principle of individual criminal responsibility (art. 25), and its ultimate objects, given the transnational values of human security that it embodies (Preamble, paras. 1-2). Though the ICC is in practical terms mediated by states under the complementary jurisdictional framework of the Rome Statute (arts. 1 and 17), the legal and normative significance of this relationship is fundamentally supranational in nature.

However, there is one critical point that both sides must recognize: the ICC allows for States to prosecute their own criminals; it is only when they fail to do so that the ICC takes over jurisdiction. In other words, the cosmopolitan aim of the Court operates within certain sovereigntist constraints. Jones, again:

[A] case is inadmissible where it is being investigated or prosecuted by a State that has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution (art. 17(1)(a)).

Now, all this is to say that the LD resolution does not literally prescribe defending or attacking the ICC; however, you can make a strong case that the perfect "test case" for the resolution, since it already exists, and since the U.S. has (quite famously) refused to join, is the ICC.

Regardless, nothing in the resolution requires that sovereignty be eliminated and violated willy-nilly in the service of prosecuting "crimes against humanity" in an international court, real or imagined. Then again, nothing requires that it can't. It's something the Affirmative and Negative may have to settle in the debate.

Resolved: The United States ought to submit to the jurisdiction of an international court designed to prosecute crimes against humanity.

The NFL has released the January / February resolution:

The United States ought to submit to the jurisdiction of an international court designed to prosecute crimes against humanity.

Obviously, one of the most popular values--for good reason--will be justice. National sovereignty, whether as a value or a criterion, will be huge for the Neg.

Oh, and by the way, the current body "designed to prosecute crimes against humanity," implied by the resolution, is the International Criminal Court. That should help facilitate your research.

Though many of the recent resolutions have taken a US-centric stance, at least this one places the US in a global context. I'm going to dig through my archives and see how this relates to the UN resolution from a couple years ago.

More analysis, links, and commentary to follow. As always, post your questions, case ideas, and comments. More dialogue = better debate.

Initial Analysis
Ought the United States cede aspects of its sovereignty and let an international court try American citizens who are charged with "crimes against humanity?" That is the fundamental question for this resolution. It pits notions of universal human rights, international law, and cosmopolitan justice against those of sovereignty and independence. This raises several questions: what constitutes a "crime against humanity?" What is the proper balance between sovereignty and the rule of international law? Why, if at all, should we have an international legal framework? Are human rights universal? Is the United States' refusal to join the ICC a dodge?

Links
1. In late 2002, John Bolton, U.S. ambassador to the U.N., laid out the reasons the U.S. has not signed on to the ICC.
2. Here's a typical article supporting the ICC [pdf], in hopes that it would foster greater protection for human rights and respect for the rule of law.
3. The ICC's website.
4. The SEP on Cosmopolitanism in its various forms.
5. Ilya Somin on world government and its critics. The SEP on the same.
6. Is a temporary tribunal sufficient? Consider the ICTR.

Definitions
1. A thoroughgoing analysis of the phrase "crimes against humanity," specifically, how they are defined in international law, and how they are partially distinct from genocide or war crimes.
2. Should we use the real ICC as the focus of the debate?
3. "Submit."

Deeper Analysis
1. I take a look at the cosmopolitan foundations (and supranational reach) of the International Criminal Court, and the implications for the debate.
2. Value and criterion pairs: an initial list.
3. I discuss a thoroughgoing analysis of the history and constitutionality of the ICC.
4. Sovereignty, sovereignty, sovereignty.
5. Critical theory as an approach to the resolution.
6. Consequentialism as an affirmative criterion is considered.
7. Some considerations of debate strategy.
8. Furthering a human rights agenda is actually a part of US law.
9. What about retribution?
10. Does the U.S. lack the political will to prosecute its own?
11. Some interesting cases I've seen recently. Post your own!

For Beginners
Along with specific analysis, check out these resources: how to construct cases, use a criterion, major philosophers to know, etc.

[The Nov./Dec. felon resolution is available here.]