Friends, henchmen and lackeys, lend me your eyes, for a topic this

wondrous is something rarer than a golf-ball size pearl, a mountain of

gold, and even a picture of Queen Elizabeth going potty. For the two
months from January, we shall engage in intellectual warfare
concerning the proposition:

Resolved: The United States ought to submit to the jurisdiction of an

international court designed to prosecute crimes against humanity.

This topic analysis note will 1) analyze the key terms in the topic, and
in the process provide a good deal of information on need-to-know
aspects of the International Criminal Court (ICC) and International
Relations/Law, and then 2) provide a primer on the ICC and 3)
International Law.

DEFINITIONAL/INTERPERATIVE ANALYSIS

“THE UNITED STATES OUGHT”

Ought can be defined as expressing a duty/obligation or desirability. To

affirm the resolution is to recommend that the action in the resolution
be taken. To negate means to not recommend that the action be
taken (note: this is different than saying that the action ought not be
taken).

In debate speak, ought is contrasted with other verb phrases like “is
consistent with” or “is just”. The difference is huge. Our task is not to
prove an equation (e.g. felon disenfranchisement = democracy), but to
recommend action.

This means that those ass-stupid truth-testing negative arguments we

like so much, and tautological affirmative underviews that inspire so
much drooling and obsession will have much less utility. This would
have been true on the Felons topic, which was also an “ought” topic,
but for the resolution being contextualized “in a democratic society”.
No such dis-luck here. We aren’t straight-jacketed by any pesky
transcendent values like democracy, justice, or morality. The only
context we’re given is the United States acting in the realm of
international relations/law, which may afford some of these arguments,
but fewer. In any case, this isn’t where we should be focused right
now.

“SUBMIT TO THE JURISDICTION”

Holy god, this is really ambiguous. This has no meaning in IR-speak;

absolutely none. We’re going to come back in detail to this in a
minute.

For now, some International Relations (IR) vocabulary you need to

know (or probably won’t, but you should anyway… you’d better keep
reading or I will end you) when it comes to treaties:

-Ratify … If the President signs a treaty, the Senate must give its
advice and consent, and the President then ratifies the treaty. What?
The President ratifies treaties? Yes, you’ve been lied to your entire
educational lives—take that private school. But for simplicity sake, and
since this is what everybody thinks, go ahead and perpetrate the
fiction: “the president signs treaties, the senate ratifies the treaty into
law”.

-Self-executing … Another footnote you probably won’t need to know is

that ratification does NOT always mean that the terms of the treaty
become law. This only happens if the treaty is self-executing. Most
treaties are not; they require implementing legislation. So what
does the ratification do? It commits the US to a binding international
legal obligation. A treaty is a contract, and it is up to each state to
decide how best to uphold their contractual obligations. A very few
treaties are self-executing, which means they become law from the
moment of their ratification… but these are really rare (in fact, I
struggle to think of one right now). Most treaties have no force in US
law unless further legislation is passed. Some GREAT examples are
the Geneva Conventions (there were four of them, btw), or the
International Covenant on Civil and Political Rights. The US has signed
these documents, but they have not been completely incorporated into
US law. So if the US violates part of the Geneva Conventions that has
not been incorporated into US law, all that means is that the US is in
breach of its treaty obligations. Nothing else! Unless the treaty
provides a mechanism for dispute resolution (which mostly only
happens with trade or investment treaties), there is no international
law recourse against the US. The US has violated international law…
and everybody can point fingers and jeer, but not much else.

-Accede to … This means that the US will abide by the requirements of

a treaty, either by passing legislation or voluntary action, but does not
ratify the agreement. The Law of the Seas Convention is a good
example of this—the US hasn’t ratified it, but we essentially respect all
its provisions.

-Executive Agreement … Most “treaties” are not treaties in the

technical sense. They are executive agreements, signed by the
president with another country and not subject to congressional
oversight. Many of these concern issues that the president can
unilaterally dictate (eg military policy), and others eventually get
congress involved because they require implementing legislation to
be anything more than a contractual promise. The resolution is not an
example of this.
“AN INTERNATIONAL COURT DESIGNED TO PROSECUTE CRIMES
AGAINST HUMANITY”

There are two approaches that you can take to this: 1) THE
International Criminal Court (ICC); or 2) a hypothetical court.

Option 1

News flash: there is only one international court designed to prosecute

crimes against humanity for which the US could be subject to
jurisdiction (actually, this may not be technically true… I have a sneaky
idea). It’s called the International Criminal Court. I’ll talk more about it
below. For now, all we need to know is that the U.S. has NOT in any
way subjected itself to the ICC’s jurisdiction. In fact, it’s pretty much
blackmailed everybody and their dog to avoid any potential of being
subject to ICC jurisdiction in any way, shape or form or dimension.
Nearly all of the literature you will read when researching will be
talking about the ICC. So advocating that the US submit to ICC
jurisdiction makes a lot of sense. I suspect that debaters at large will
make an implicit bargain with one another to pretend like the topic just
says “the ICC”.

There ARE other international courts designed to prosecute crimes

against humanity. The International Criminal Tribunal for Yugoslavia,
the International Criminal Tribunal for Rwanda, the Sierra Leone
Special Court, and the something something for Cambodia all have
jurisdiction to prosecute crimes against humanity. HOWEVER, the US
could not ever be subject to their jurisdiction because the terms of
their mandates limit their scope in such a way that this would be
impossible (my sneaky idea is that the Yugoslavia does not limit
jurisdiction to combatants from Yugoslavia, in which case, the US may
have committed prosecutable crimes against humanity during its
bombing campaign… hehehe).

One last note so you don’t look silly. The International Court of Justice
(ICJ) is different! It only has jurisdiction over states. The ICC only
has jurisdiction over individuals. This is important: the ICJ is
irrelevant to the debate; and the US as a nation would never be hauled
in front of the ICC—its leaders, maybe; its troops and generals, maybe;
US-citizen mercenaries, maybe; but NEVER the nation as a whole.
Also, a nation cannot commit a crime against humanity—only
individuals, so even if you go with option 2, this will be the case.

Option 2

This option refuses to defend the ICC specifically, but rather some
hypothetical, not-yet-existing court. One basis for this interpretation
focuses on the word DESIGNED. The ICC was not really designed to
prosecute crimes against humanity. As you’ll see below, the ICC has
jurisdiction over four types of offenses: genocide; crimes against
humanity; war crimes; and the crime of aggression. It’s a bit weird to
say it was designed to prosecute only one of those crimes, since the
definition of design implies intentionality or purpose. But probably,
you can have multiple purposes, making this argument a bit weak, in
my opinion. The strategic reason for arguing for this approach is that
the AC will link out of a lot of negative disadvantages that are specific
to the ICC (and oh my, there are many). There are certainly other
reasons the AC could defend this interpretation. But realize the trade-
off is that the AC cannot use any ICC-specific evidence unless the AC
can make the claim that what the evidence is describing is an inherent
feature of ANY international court designed to prosecute crimes
against humanity.
CRIMES AGAINST HUMANITY

Guess what, it doesn’t mean “bad stuff”. It is a distinct legal category.

It has a precise legal meaning. From the Rome Statute, which is the
treaty creating the ICC (though this definition is part of customary
international law, which means it is the generally accepted definition
even outside the ICC-specific context):
"crime against humanity" means any of the following acts when committed as part of a
widespread or systematic attack directed against any civilian population, with knowledge
of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization,
or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national,
ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are
universally recognized as impermissible under international law, in connection with any act
referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or
serious injury to body or to mental or physical health.
2. For the purpose of paragraph 1:
(a) "Attack directed against any civilian population" means a course of conduct involving
the multiple commission of acts referred to in paragraph 1 against any civilian population,
pursuant to or in furtherance of a State or organizational policy to commit such attack;

So, to simplify, there are three elements: a) the actus reus/physical act
element (murder, enslavement, extermination, etc.); b) the
circumstantial element (that physical act/acuts reus was part of a
STATE-sponsored policy of WIDESPREAD or SYSTEMIC attacks directed
against A CIVILIAN POPULATION); c) the mens rea/mental element (the
person committing the actus reus KNOWS of the state-sponsored policy
of systemic or widespread attacks against a civilian population).

A crime against humanity is worse than a mere war crime in that it is

not a one-off event, but must be part of a deliberate and widespread
assault on CIVILIANS. In other words, somebody can’t accidentally
commit a crime against humanity… somebody could accidentally bomb
a civilian village and commit a war crime. Crimes against humanity
are really bad.

BACK TO “SUBMIT”
We’ve already covered the fact that “submit” has no actual meaning in
international relations. The dictionary definition of submit is something
like “to yield to the authority or will of another”. Assuming that we are
talking about the International Criminal Court (the world of option 1),
submitting to jurisdiction probably means five things (with #1 being
the biggest deal):

1) Ratify and implement the Rome Statute. The Rome Statute is

the treaty that created the ICC, and the US has not ratified it.
Clinton signed it, but didn’t submit it to the Senate for its advice
and consent (ratification); and then Bush un-signed it. Two notes
of terminology: “state party” means a nation-state that has
ratified the Rome Statute; and “national” means an individual
member of a state party (in the US, “nationals” is basically a
synonym for “citizens”). The Rome Statute’s jurisdictional
trigger is explained in Article 12: the ICC can get jurisdiction over
two sorts of people (remember: only people NOT the state party
itself): a) nationals of a state parties; or b) nationals of non-state
parties who commit a crime on the territory of a state party. In
other words, if the US ratified the Rome Statute, (a) any US
national would be subject to ICC jurisdiction; and (b) ANYBODY
would be subject to ICC jurisdiction for a crime committed on US
territory. This part (b) is somewhat of a red herring (read on,
and I’ll explain why)—the big deal is that US nationals (especially
soldiers) would become subject to ICC jurisdiction.

2) The US would suspend its bilateral immunity agreements.

Because of the (1b) jurisdictional trigger, even though the US
had not signed up to the ICC, US nationals could still be brought
before the ICC if they committed a crime against humanity on
the territory of a member-state. To prevent this, the US coerced
 more than 80 countries to sign agreements pledging never to
refer a US national for prosecution, or to extradite a wanted US
national to the ICC.

3) The US would repeal the American Servicemembers

Protection Act and any other legislation like it, which
essentially threatens to, I shit you not, invade The Netherlands to
rescue US military members that the ICC is trying (the ICC is in
the Hague, Netherlands). It authorizes the president to use any
means necessary to obstruct the ICC from prosecuting a US
national. We are dead (giggle) serious about this.

4) The US would stop demanding exemptions through the UN

Security Council as a condition for involving itself in
peacekeeping operations. Because we’re afraid of our troops
getting pulled into an ICC prosecution, before we agree to take
part in UN peacekeeping operations, we demand that the UN
Security Council agree to give us an exemption from prosecution
—preemptive immunity, if you will. (Note: the UN has no army…
peacekeepers are nothing more than national troops loaned to
the UN, who switch uniforms and operate under the UN flag on a
temporary basis). Remember, even though the US hasn’t signed
the ICC, if we engage in peacekeeping operations in countries
that are state parties and our troops commit a crime against
humanity, then technically, our troops would still be liable. We
will not have that.

5) The US would stop obstructing ICC investigations using its UN

Security Council veto. The Rome Statute allows the UN Security
Council to refer situations to the ICC for investigation and
potential prosecution. Since the US hates the ICC, it has patently
refused to do this, except in one case (Darfur). In fact, since the
US has veto power on the UN Security Council (it is one of the
permanent five members, the others being Russia, China, UK,
and France), it has threatened to veto Security Council
resolutions that refer other situations to the ICC. Now, there are
other ways to initiate an ICC investigation (see below), so this
obstruction isn’t fatal, but it’s certainly not helpful.

Big Question: would the US submit to jurisdiction for ALL CRIMES, or

ONLY for crimes against humanity? Remember, that the ICC has
jurisdiction over four crimes: Genocide; Crimes Against Humanity; War
Crimes; and the Crime of Aggression. (see below for a more in depth
discussion on the ICC). The Rome Statue does not seem to allow for
partial ratification—it’s either ratified or it isn’t; and if it’s ratified, the
ratifying state party is subject to all of its provisions (except for the
possibility in Article 124 of a seven year transitional exemption from
prosecution for war crimes).

It is very difficult to know what would happen differently under option

2 (a hypothetical court, rather than the ICC). But it seems safe to say
that all of the above would be consistent with an affirmation, though
perhaps only #1 would be certain to happen. In other words, #2-5 are
specific to US opposition to the ICC, so if we are discussing a
hypothetical court, it cannot be certain that #2-5 would even be
issues, though if they were, the US would have to do them. But we can
probably assume that #1 speaks to an inherent feature of any
international court. Crimes against humanity can only be committed
by individuals, and the US has the power to subject its nationals to ICC
jurisdiction, therefore submitting to jurisdiction would probably have to
mean that US nationals could be prosecuted from crimes against
humanity. It might also mean that crimes against humanity committed
on US territory would be subject to ICC jurisdiction, but this is sort of a
red herring… when was the last time you heard about a systematic
and widespread attack on civilians that involved murder,
extermination, enslavement, etc.? (NOTE: the ICC only has jurisdiction
over crimes committed after the Rome Statue’s entry into force in
2002 [as per Article 11], so the Native Americans don’t count… ha!
thought you found a loophole, didn’t you? I WIN!).

However, in regards to the big question in the world of a hypothetical

court, we don’t know anything else about it other than that it was
designed to prosecute crimes against humanity, so the answer is
almost certainly that the US would not be subject to prosecution for
other sorts of crimes like war crimes, genocide, and the crime of
aggression.

A PRIMER ON THE INTERNATIONAL CRIMINAL COURT

First some background on international criminal justice. In the

aftermath of WWII, the Nazis and Japanese were tried at Nuremberg
(there are movies about it) and Tokyo for various crimes: the crime of
aggression (they called it “crime against peace”), crimes against
humanity, and war crimes. Many were convicted. Many were
whacked, others imprisoned. Nothing else happens until…

Fast-forward to 1991. Yugoslavia begins breaking up, with Bosnia,

Croatia, and then Kosovo declaring themselves independent states.
The republic of Serbia (formerly the hub of Yugoslavia… sort of like
Russia was to the Soviet Union) and also members of the minority Serb
population living in each of the breakaway republics committed war
crimes and crimes against humanity against the majority Bosnian
Muslims, the Croats, and the Kosovo Ethnic Albanians; in turn, each of
these majority groups committed offenses against the minority Serbs.
The UN Security Council set up the International Criminal Tribunal for
Yugoslavia (ICTY) to try war criminals on both sides of the conflict. To
date, some 60 have been convicted, and many more are under
indictment, awaiting trial.

In 1994 in Rwanda, Hutu extremists carried out a genocide against the

Tutsis and moderate Hutus. The UN Security Council set up the
International Criminal Tribunal for Rwanda (ICTR) to try the Hutu
offenders. 30 have been convicted for genocide, crimes against
humanity, and other grave crimes.

Both the ICTY and ICTR were ad-hoc tribunals: they were created to
try crimes committed during a specific conflict. They are not
permanent courts. They only have jurisdiction over a limited set of
crimes, with a limited temporal jurisdiction (only crimes after 1991 in
Yugoslavia, and only during 1994 in Rwanda), and a limited geographic
jurisdiction (only in Yugoslavia and Rwanda).

The ICC was envisioned as a permanent court without geographic or

temporal jurisdictional limitations. It was a pipe dream for fifty years.
The idea originally came up in 1947 when the UN was founded. It was
not until 1998 until the Rome Statute was finally agreed. (The Rome
Statue was the treaty creating the ICC).

According to the Rome Statue, the ICC could only come into being once
60 states ratified the Rome Statue, and this happened in 2002. So the
ICC came into being in 2002. To date, it has prosecuted NOBODY. It
has indicted 11 or 12 people based on offenses committed in Congo,
Uganda, Central African Republic, and Darfur.

Here are the salient features of the ICC, in my opinion. As much as

anything, this is a summary of the Rome Statute, highlighting key
parts. You should also read the Rome Statute (yes, the whole thing).

1) The ICC has jurisdiction over four crimes: genocide; crimes

against humanity; war crimes; and the crime of aggression.

a. Genocide means any of several acts (eg killings, forced

sterilization, baby theft) designed to destroy, in part or in
full, a national, ethnic, racial, or religious group.

b. Crimes against humanity is defined above.

c. War crimes is a massive category consisting of rules of war

—what you are allowed to do to your enemy after they
surrender, and what you are not allowed to do to civilians.
It encompasses the Geneva Conventions.

d. The crime of aggression is IRRELEVANT to our purposes,

 because the Rome Statue didn’t agree on a definition of
the crime, and the ICC is barred from prosecuting the
crime until a definition is agreed, which hasn’t happened
yet. I have spent all semester researching this issue, and
it’s totally intractable… trust me. In effect, you can say
that the ICC really only has jurisdiction over the above
three crimes.

2) The ICC can exercise jurisdiction over two sorts of people for the
above crimes: nationals of state parties (ie those states that
ratify the Rome Statute); and ANYBODY who commits one of the
above crimes on the territory of a state party.

3) The ICC may initiate an investigation into a crime in one of three

ways: 1) a state party may refer the situation to the ICC; 2) the
UN Security Council may refer a situation; 3) the Chief Prosecutor
may initiate his/her own investigation, so long as a Pre-Trial
Chamber of judges authorizes it.

4) The UN Security Council can postpone any investigation for a 12

month period, and can renew it as many times as it wishes.
Realize that any permanent member of the UN Security Council
(US, UK, France, Russia, China) can veto such a postponement.

5) All state parties accept the obligation to assist the ICC with its
investigations. This includes arrest and extradition of suspects
to the ICC. Other than this, the ICC has no ‘independent
enforcement.’

6) The principle of complementarity. This is very important. In

short it means that the ICC must yield to national courts. If
national courts are investigating the crime, the ICC must yield to
them. If the national court has indicted or prosecuted the
offender, the ICC must respect the national court’s verdict
UNLESS the national court action was a sham designed to shield
the individual from ICC prosecution OR the national court action
was unjustifiably delayed in reaching a result. In other words, if
the US were to investigate and clear an individual, or prosecute
and acquit an individual, the ICC would have to respect that
unless they could prove that the US process had been a sham
(which is pretty unlikely, given that the US is a standard-bearer
for appropriate standards of justice). So the state party gets
‘first crack’ at investigation and prosecution. It’s only if the state
party is unwilling or unable to investigate and prosecute that the
ICC can get involved.

A PRIMER ON INTERNATIONAL LAW

You have been obsessed with international law for years. But do you
really know what it means? We’ll see.

There are two sources of international law. They are: treaties and
custom.

First you must understand the nature of the system we are dealing
with. We are dealing with ~182 sovereign, co-equal, independent
states. It’s ANARCHY OUT THERE. There is no world government, no
higher authority. There is NO LAW other than that which the world’s
nation-states agree to create. Unless sovereignty is ceded
intentionally, sovereignty is absolute. The world agreed to create the
UN, which is why the UN Security Council has special powers (eg to
authorize peacekeeping—a violation of national sovereignty—or to
create the ICTY or ICTR, which violate sovereignty by ordering the
former Yugoslavia and Rwanda to cooperate).

Bottom line: international law only trumps national law if nations agree
to let that be the case.

So, let’s discuss the two sources of international law: treaties and
custom.

Treaties we have already discussed. If nations sign an agreement, like

the Rome Statue, agreeing to surrender sovereignty over certain areas
like the prosecution of crimes against humanity, that is a viable way to
create international law. Realize however, that this is only
international law between those who have signed the Rome Statute.
Most would generally accept that the UN Declaration of Human Rights
reflects international law… but wait! That is only the case insofar as
nations have signed up to it.

There is another source of international law: customary international

law. A norm (by this I mean a commandment or prohibition) become
part of international law if: a) it is general practice among nations; and
b) the reason nations do it/refrain from doing it is because they
consider it to be a binding legal obligation. For example, terrorism is a
violation of customary international law: a) basically all nations
condemn terrorism; and b) the reason that nations condemn terrorism
is that they consider it to be illegal. A counter-example: a) nearly all
nations dispatched a congratulatory message to Obama when he won
the election; BUT b) this wasn’t because they considered it to be a
legal obligation, they were just being nice. So in some ways,
customary international law is like consensus-based law-making…
everybody knows it’s the law, even if they haven’t signed up to it
explicitly. Examples of customary norms include: before WWII, there
was no treaty defining crimes against humanity or genocide, however
these were considered violations of customary international law, which
is how the Nazis could be prosecuted; piracy is a violation of customary
international law; and attacking a diplomat is a violation of customary
international law.

Does international law trump national law? It depends on the country.

In Germany, international law is superior to national law. However, in
the US, it DOES NOT. See the above discussion about self-executing
agreements… bottom line, international law (as either treaties or
custom) has no force in US law unless specifically
implemented/incorporated into US law. If international law (as either a
treaty or custom) violates the Constitution, the Constitution trumps. If
international law is contradicted by a statute passed by Congress, the
statute trumps international law. The fact that something is
international law is TOTALLY IRRELEVANT unless Congress has passed
it into law.
So what happens when a nation violates international law? On face,
nothing. If a treaty has been violated, the treaty may have a dispute-
resolution clause that creates an arbitration process. But that is not
automatic—it would have to be part of the treaty. International law is
really self-enforcing/self-policing/an honor code—there is no
enforcement, there is no world court . (The International Court of
Justice has jurisdiction in some cases… but a nation can usually refuse
to accept its jurisdiction, and refusing to abide by its judgment has no
consequence... the US has certainly given the ICJ the finger before).
International law is in some ways no more than a suggestive moral
code.

A specific species of international law is international humanitarian law

(ie the international law criminalizing crimes against humanity, war
crimes, genocide). This refers to crimes committed by individuals
(either on their own or on behalf of the state) against other individual
victims. What happens when an individual violates international
humanitarian law? Again, on face, NOTHING. If a nation has passed
laws against these offenses, then they can prosecute individuals for
these crimes when they are committed on its territory, or prosecute its
nationals for committing these crimes elsewhere. But if a nation has
not PASSED THE LAWS to prohibit it, nothing happens. The resolution
is one form of passing laws against these offenses.

The resolution represents an attempt to give some teeth to

international law. By signing up to an international court designed to
prosecute crimes against humanity, nations are ceding sovereignty to
an international body. They are allowing an international court to have
authority that would otherwise be their sovereign right—the right to
pass laws against and prosecute its nationals.
In the default, international law has no enforcement authority. The
resolution seeks to change that. If we affirm, no longer is international
law a self-enforcing/self-policing/honor code… it becomes something
with binding power.