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Blocks for: International Law Bad

Only robust ilaw prevents extinction
John William Draper 22, Reference Librarian (Retired), Biddle Law Library, University of
Pennsylvania, Carey Law School, “Why Aim Law Toward Human Survival,” SSRN Scholarly Paper,
ID 4034781, Social Science Research Network, 02/14/2022, papers.ssrn.com,
doi:10.2139/ssrn.4034781
I. RISKS TO HUMAN SURVIVAL

Is it reasonable to believe that humanity is headed toward collapse? As observed by social and political philosopher,
Jean-Pierre Dupuy, “We are living today in the shadow cast by the prospect of catastrophes that,
separately or in combination, threaten to bring about the disappearance of the human race from
earth.”4 Briefly, the risks humanity faces are a combination of too much consumption, too much pollution, and too large a human
population.5 Any one of these problems can be sufficient to be lethal to a large group of humans, even, ultimately, the largest group.

This Part is not background material but a statement of the scope and depth of humanity’s legal problem. We face
many risks in many categories. Although we may not know all the significant risks or even all the
categories, science provides easy windows into several, including insufficient food supply,
fresh-water scarcity in a rising number of locales, pandemics, massive die-offs of other species upon which we
depend, and the exacerbating factor of climate change. We begin with consumption.

A. Consumption

Madison Avenue’s marketers have long worked to create demand. 6 As a consequence, we now consume too much.7 Our impact is
measured by an ecological footprint, a calculation of our consumption. 8 The Global Footprint Network’s website shows that the U.S.
ecological footprint ranks seventh in the world (behind six tiny countries) at 8.1 hectares per person.9 Per person, we use over 4.7
times the resources generated by the planet.10 We are good consumers. Madison Avenue has done its job well.

The 2020 Living Planet Report from WWF (formerly the World Wildlife Federation) and the Zoological Society of London tells the
resulting story of a human footprint that has long outstripped the Earth’s capacity for regeneration.11 With a rapidly rising global
population, humanity is in an increasing bind to produce enough food. We have two connected problems. First, “[b]iodiversity loss
threatens food security and urgent action is needed to address the loss of the biodiversity that feeds the world.”12 Secondly,
“[W]here and how we produce food is one of the biggest human-caused threats to nature and our ecosystems, making the
transformation of our global food system more important than ever.”13

Our increasing demand for food is merely one of the many problems of humanity’s overconsumption.14 We abuse the land to create
more food.15 We are wasteful.16 And we have modified our diets to use our supply of available vegetable oils and meat.17
Unfortunately, these actions cause additional greenhouse gas (GHG) emissions. Meanwhile, “[c]hanges in consumption patterns have
contributed to about two billion adults now being overweight or obese.”18 Nevertheless, hunger remains widespread.19

At the same time, we must use less water to create food. To adapt, we need to change our food supply. For the unwilling, only failing
to adapt could be worse. In a drought, crops can fail. When crops fail repeatedly, a civilization can collapse.20 Like it
or not, in this globalized world we are all part of one enormous human civilization. If we destabilize ourselves with
extreme droughts, resultant migrations increase humanity’s risk of failure.
Excessive consumption can destroy resources rather than allow regeneration (of e.g., soils or fisheries) needed for the longer term.
Our use of lands and waters destroys natural habitats,21 destroys wild food sources,22 harms biodiversity,23 and causes soil damage
and erosion.24

Unfortunately, through neo-classical economic theory, consumption growth is viewed positively. Satisfaction is all about the money.
Maximum profit or income is the goal, even a duty, without regard to externalities.25 Some externalities then harm people with
rights.26 Materialism and immorality are merely symptoms of self-interest27 built into the system’s structures, behavior, and training
(i.e., advertising) to support it all by imploring us to use more and by measuring our behavior.
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The result is our “throwaway society.”28 Why do we overconsume? John McCollough’s empirical study points to convenience and
conspicuous consumption, 29 interests that cannot possibly justify the taking of life.30

Convenience means that it is often cheaper to replace something than to fix it. Time is money; environmental damage is a mere
externality that either has not been factored into our economic decision-making (the problem of social cost) or is merely
compensated with money.31

Conspicuous consumption includes fashion obsolescence. 32 Selling more is more profitable, and together with planned
obsolescence, profit maximization plays a role in our drive to consume. This choice has been encouraged by the short-term profit
motive of the next quarterly report.33

We consume all kinds of things, even land. Consider agriculture. We have long transformed wild habitats to other uses. As our global
population approaches 8 billion34 and rises rapidly,35 we have gone too far.

The resulting extinction crisis36 affects the entirety of nature. All manner of bees, birds, trees, and other fauna
and flora need a safe and healthy place to live and to support human life. But the biosphere of the
Earth, within which humanity developed, 37 is dying. For example, species of amphibians, especially frogs — “nature’s canary in
the mine”38 — have long been dying off.39 Not just a few. Species of mammals, birds, reptiles, fish, invertebrates, and plants are
disappearing.40 A recent UN report compiled by 145 expert authors from 50 countries stresses that natural resources are declining at
rates unmatched in human history and that the rate of extinction is increasing.41 As
extinctions multiply, humanity
can foreseeably be caught in an extinction avalanche.42 We head toward failure.
The human activities at the root of this crisis are both direct and indirect. Direct activities include the clearing of forest and other wild
lands for housing, roads, and food production.

Indirect habitat destruction occurs through climate change. Although we will revisit climate change, here we see its impact on
habitats: “Global warming has led to shifts of climate zones in many world regions, including expansion of arid climate zones and
contraction of polar climate zones. As a consequence, many plant and animal species have experienced changes in their ranges,
abundances, and shifts in their seasonal activities.”43 Changes in ranges and behavior may suffice for some species; others (e.g.,
trees) are unlikely to be able to migrate successfully.

As climate change increases deserts and non-arable lands,44 humanity in turn clears forest to replace lost food production.
Destruction of forests, especially rainforests, exacerbates climate change by reducing carbon sinks and oxygen production. Land
degradation from climate change is part of a vicious circle. 45 Failure to modulate the impacts of climate change with careful land
management will cause the impacts to spiral upward through a feedback loop of increasing erosion of our life support system.46

Forests wither from extreme weather events,47 from infestation of introduced species,48 from acid rain,49 and
from land conversion to agricultural and other uses.50 In connection with this loss, biodiversity is plunging.51 As part of a
larger statement on climate change, a group of over 11,000 scientists says, “We need to quickly curtail habitat and biodiversity loss
…, protecting the remaining primary and intact forests, especially those with high carbon stores and other forests with the capacity
to rapidly sequester carbon (proforestation), while increasing reforestation and afforestation where appropriate at enormous
scales.”52

As we develop or open human access to more lands, including forest lands, humanity is doing the opposite. Wild habitats and the
species that live in them are on course to fall. We are destroying our commons.53 According to Harvard’s Edward O. Wilson, “Unless
humanity learns a great deal more about global biodiversity and moves quickly to protect it, we will soon lose most of the species
composing life on Earth.”54

Remember the clean water each of us needs to live. We memorialized that need with the Clean Water Act of 1972. 55 Use and
efficiency vary by how much we pay.56 We need clean water for more than drink. Food production uses most of our water.57 But
water shortages over vast areas of land make food production increasingly difficult. 58

Excessive consumption, encouraged by a variety of systems and incentives, can be proven rational,59 but consumption itself is not
the only problem. The inefficiencies of production, processing, and distribution, some of them inherent, add to our waste.60 What is
thrown away is not “consumed” per se. Excessive consumption generates a lot of waste, all forms of gaseous, solid, and liquid
waste.61 Our problem with too much consumption is tied to our problem with too much pollution, which we will discuss next.
Fortunately, if we consume less, we will also pollute less.

B. Pollution
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Pollution comes in many forms. We pollute our water and air. We will consider each briefly. Pollution sounds bad, but it is merely
part of life as each of us generates pollution daily for Earth to absorb and process.62 Of course, the more of us there are, the more
waste our planet must process.

Water pollution, long treated as a local matter;63 is also a national problem.64 It has become a global matter.65 Our oceans are full
of plastic which harms sea life and collects in massive garbage patches or gyres.66

River deltas are dead zones from agricultural runoff.67 Some dead zones are as large as a US state.68 They have existed for
decades as the EPA has not regulated agricultural pollution.69 If humanity, through feeding itself or by any other endeavor, ruins its
waters and the life that those waters support, how will we live?

The discharge of toxins can come from industrial activity. For example, the burning of coal releases significant amounts of mercury
into the air.70 Much of that mercury condenses into water, either directly into an ocean or by collecting there from freshwater runoff.
Sea life absorbs it, and the toxin concentrates as it works its way up the food chain. Thus, Inuit, who live far from industrial pollution
sources, suffer serious health effects.71

Ocean pollution ranges from barrels of toxic sludge72 to denim particles from washing machine discharges73 to tiny plastic beads
(nurdles).74 More insidiously, plastics, blowing into our lungs at the beach, 75 may threaten one of humanity’s prime sources of
oxygen.76 All forms of freshwater pollution, from mine tailings77 to agricultural runoff78 to condensed mercury (from forest fires
and air pollution)79 to plastic bottles and other debris80 find that oceans are inevitably downstream.

Entire books are written on aspects of water pollution. The same goes for air pollution. My point here is that it is all deadly, especially
as it accumulates over increasing time frames, and the risks combine but also have synergies. Risk is not just a matter of potential.
People are dying.81 We see this in rates of cancer,82 lung disease,83 and neurological disorders.84

Air pollution is composed of particulates and gasses. Historically, government regulated particulates first,85 probably because we
could see them. Downwind was long the answer to emission problems. Building a taller smokestack moved smoke from the
immediate area of the plant.86

However, current technology allows us to trace plumes of smoke around the globe.87 Pollution is now global. There is no escaping it.
Even for particulates now, everyone is downwind. There is a clear linkage between pollution and child mortality.88 Neither adulthood
nor distance provide immunity.89 Thus, we all bear some risk.

Gas pollution can come from toxic chemicals and even from inert gasses in quantities sufficient to overwhelm Earth’s absorptive
capacities. GHGs represent a global, not just local, challenge. We must stop them globally as well as locally. As we cannot see GHGs, it
has been easier to ignore them.

Carbon dioxide and methane are the most pernicious GHGs; they cause climate change. 90 We will return to climate change shortly.
Climate change is a damage multiplier, adding periods of increasingly extreme heat, leading to long-term sea-level rise, to enhanced
dangerous storm activity, and to hundreds of millions of migrants seeking escape from the effects of those changes. This brings us to
the matter of human population.

C. Population

Both consumption and pollution depend, to some degree, on population. Our global population is approaching 8 billion, but the
long-term capacity of the planet has been estimated to be about five billion.91 As the seas rise and the climate scorches productive
lands, one should expect the Earth’s carrying capacity to drop by hundreds of millions.

Feeding eight billion is already damaging our remaining ecosystems.92 The biodiversity into which our species
was born is disappearing.93 Problematically, our food systems rely on that biodiversity.94

With a rising population (fast in some places), we find ourselves in the uncomfortable position of needing to explore fair and
equitable longer-term approaches to global population control and even reduction. At the same time, we need to protect the rights
to life and health95 for all. Humanity is in a bind, and the size of our population is a major part of the problem.

Our procreational liberties and incentives, world-over, add to the risk of early collapse and death for all of us. As
biologist Wilson puts it, “we must really slow down. Reproduction is obviously necessary, but it is a bad idea, as Pope Francis I has
pointed out, to continue multiplying like rabbits.”96 Wilson adds that demographic projections show the human population rising “to
about eleven billion or slightly more before the end of the century, thereafter peak, and begin to subside.”97 The impact of 11 billion
humans on planet Earth is a frightening prospect. We lack natural resources to support the current population, let alone another
three and a half billion.
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Our population is already a major exacerbating factor in meeting our need to live on a healthy and relatively safe planet.98 We
should quantify our impact. In 2016, Edward O. Wilson reported, “The rate of extinction of species and races is conservatively
estimated to be 877 times above that prevailing before the origin of humanity (the latter rate is one extinction every three million
years).”99 Extinctions from the dodo to the Tasmanian tiger to the Pyrean ibex relate to human activity.100

Our impact on other species matters: If we kill all the main oxygen makers, what will we breathe? Other species include both plants
and animals. Native plants and animals are often displaced by introduced101 species or as habitat gets put to “productive” use,
whether that use be housing, agriculture, or industry. The pressures of an expanding human global population—and its
footprint—are eliminating and overusing102 wild spaces. This increases the risk that we may remove one species too many.

There are many “little” species that have been compared to the rivets holding together an airplane. No single rivet is crucial. One can
remove a rivet. And another. But soon the airplane will not hold together.103 The same goes for the huge collection of species on
which we depend, from pollinators to fungi, or the species upon which they depend. We need crops to be pollinated, and we need
compost to rot. The trouble here is that we have no idea of the damage we are doing to our very own life support system.104
Growing extinctions represent an existential threat.105

Human-caused habitat destruction is leading to mass extinctions that increase significant risk to humanity. According to Professor
Wilson, there are almost countless ways we are unwittingly destroying the millions of species that benefit humanity directly or
indirectly, regardless of “whatever might be their present or future beneficent roles. The human impact is largely due to the excess of
the many quotidian activities we perform just to get on with our personal lives. Those activities have made us the most destructive
species in the history of life.”106 As a result, he says, “[A]ll available evidence points to the same two conclusions. First, the Sixth
Extinction is underway; and second, human activity is its driving force.”107 We are systematically exterminating the other species on
this planet.

This concern for other species leads back to our own. In the process of completing our dominion over the planet, we are putting our
own species at significant risk. As Ronald Dworkin put it,

Our concern for the preservation of animal species reaches its most dramatic and intense form, of course, in the case of
one particular species: our own. It is an inarticulate, unchallenged, almost unnoticed, but nevertheless absolute premise
of our political and economic planning that the human race must survive and prosper.108

Our notions of prosperity threaten our survival. This comes into stark view when we consider our own globalization.

A vast and foundational part of global health security is global food security. Without food and the water upon which it depends, we
have no way to provide for the hungry billions. Unfortunately, our actions are already placing humanity’s food supply at risk. 109 Our
ability to feed five billion, let alone the nearly eight billion already on Earth, is slipping away.

There is more to health security than food. COVID-19 makes that clear. Our global population is high, but it is also interconnected. We
currently lack an effective system to control or limit global interconnections and the significant risks that go with them. This has
special application with introduced species, whether plants, insects, mollusks, or viruses.

There are likely entire categories of risks which we have not yet identified, let alone studied and solved, both on paper and in the real
world. The build-out of a system can enable success. The success of South Korea’s response to COVID-19 in spring 2020 demonstrates
the importance of a system of study, preparation, and cooperation.

We have discussed consumption, pollution, and population. Each or a combination bears risks to humanity, both foreseeable and
significant. We move to another category of significant global risk, systemic risk.

D. Systemic Risks

Humanity builds systems ranging from systems of government to electrical systems to economic systems.
As humanity has grown, so have our systems. As they become bigger, faster, more powerful and complex, systems
are subject to bigger, faster, more powerful and complex failures.110 These risks are both foreseeable and
significant.111 As law professor J.B. Ruhl points out, “[A]lthough we often compartmentalize social, ecological, and
technological systems as distinct, it is becoming difficult to disaggregate them in operation, as
automated online systems increasingly run infrastructure systems, expanding infrastructure systems increasingly degrade ecological
systems, and degraded ecological systems diminish the resilience of human social and economic systems.”112 Thus, humanity
is now subject to global systemic risk.113
Our civilizations and systems all rely on natural systems, including Earth’s biodiversity and its climate. Failure of such enormous and
complex ecological systems can trigger cascade failure in human systems.114 This section examines natural systems at risk of cascade
failure from excessive consumption, pollution, and population. They are quickly eroding.
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Governing the risks of such failures is both a scientific and a policy challenge.115 Professor Ruhl explains: “The science of cascade
failures in social, ecological, and technological systems seeks to understand their causes and behavior and is developing metrics and
principles for describing systemic risk, failure propagation, and network resilience.”116 Governments can then “benefit from the
techniques and strategies cascade failure science is exploring for modeling, monitoring, event prediction, and event prevention,
response, and recovery.”117

Before one can solve a problem, one needs to identify it. The problem of systemic risk lies not in identifying initial triggers so much as
locating the overall systemic or structural cause. While the trigger of an initial failure event may seem small and random in isolation,
118 the exact elements vary with operating conditions, meaning that the same event in the same system will not always start a
cascade failure.119 Earth has an interdependent infrastructure,120 and we need to beware foreseeable failures.

Next, we visit two categories of significant systemic risks, failure of the biodiversity of Earth’s life support system and failure of our
climate system.

1. Failure of Earth’s Life Support System

The world that we grew up in is dying. Once it is gone, we are entirely on our own, without a life support system or a
parachute.121

According to philosopher Jean-Pierre Dupuy, the systemic risks we face represent a kind of evil. 122 We seem to be thoughtlessly
wed to our own systemic destruction. But we cannot use self-interest as a tool to attack this systemic evil due to the political
impotence of goodness.123

Many of us want to believe that science and technology will bail us out of this “moral disaster,”124 but this is a fatal error. 125 We are
on a suicidal path that will kill the biodiversity that supports life on this planet. We need to change the aim of our systems to achieve
a different result.

If we can make the economic transition to a different worldview according to Professor Wilson, “[t]he biosphere and the ten million
species that compose it will no longer be treated as a commodity, but as something vastly more important—a mysterious entity still
beyond the boundaries of our imagination yet vital to long-term human existence.”126

Wilson says Earth’s life support system remains at risk: “We and the rest of life with us are in the middle of a bottleneck of rising
population, shrinking resources, and disappearing species. As its stewards, we need to think of our species as being in a race to save
the living environment.”127 The system can fail. Wilson suggests a way to avoid that risk: “The logical primary goal is to make it
through the bottleneck to a better, less perilous existence while carrying through as much of the rest of life as possible.”128

The collapse of Earth’s biodiversity is not the only global systemic risk humanity faces. We were already eradicating biodiversity, but
now changes in climate systems are enhancing the eradication, risks, and probabilities.

2. Systemic Climate Risk

The Earth’s climate is an enormous natural system, a system of systems. The climate system directly affects our weather and our
well-being. Our vision of the future seems obscured by the systemic changes we have already wrought. However, as we cannot know
the future, we cannot know how much worse it will get. But we can extrapolate from the past, and we can see the trends. Day after
day, year after year, Earth is warming. Many snow-capped mountains are now bare. Glaciers are receding or gone.

Climate change discussions are often about the number of degrees Celsius global mean surface (land and ocean) temperature
(GMST) relative to pre-industrial levels. 129 David Wallace-Wells notes how easy it is to trivialize the differences between such
numbers as two, three, four, or five. We lack a frame of reference for risks with these kinds of thresholds, “but as with world wars or
recurrences of cancer, you don’t want to see even one.”130 We are already rising past 1.2 degrees GMST of warming.131

Climate change is another multiplier, beyond population, affecting both risk and damage. GHGs trap the planet’s heat which then
affects weather patterns. No single storm can be attributed to global warming; according to Wallace-Wells, they all are.132 We have
unleashed a growing global risk: “Climate change isn’t something happening here or there but everywhere, and all at once. And
unless we choose to halt it, it will never stop.”133

Such changes in weather patterns bring “climate cascades,” some of which are local, and some of which are global.134 Climate
cascades are especially likely to occur through the operation of “feedback loops,” which reinforce the operation, erosion, and
destruction of climate change. 135

Those cascades have a multiplier effect. When polar icecaps melt, sea level rise will flood Miami, Dhaka, Shanghai, Hong Kong, and a
hundred other cities around the world.136 Many huge risks are well known.
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What is the holdup? Why is humanity not reducing the risk? Many are caught by our innate self-interest enhanced by a neo-classical
economic philosophy that is baked into the global market system. That philosophy espouses profit or wealth maximization as an
ideal—on one side.

a. The Behavioral Challenge

An alternative view, on the other side, calls for system-level actions and changes to entrenched systems. Until systems change, some
may have little reason to change behavior. When it comes to acting on climate change, we are controlled by such near-term and
normal concerns as jobs and health. Operating outside the system bears significant risks. Thus, while the climate situation
deteriorates, many of us wait in hope of a systemic change.

The human system requires modification. 137 We know what to do, but lack the means. We face global problems requiring global
changes in behavior. But governmental systems are not set up to deal with these kinds of problems. Nevertheless, we must change
global behavior now. We have one last chance to avoid climate disaster.138 That chance will require “unprecedented global
cooperation.”139 Like a pandemic, if climate change gets out of control, we are in big trouble.

How we treat climate change in the law depends on how we view its probabilistic causation.140 If we see a probability that warming
is a natural and random occurrence, we tend to favor inaction. While those who see the probability that climate change is
anthropogenically-caused tend to want to treat that probabilistic causation as an urgent legal problem. By necessity we are using
notions of probabilistic causation to call for law. Further, we will likely need to use calculations of probabilistic causation to build the
law and the rules of a protective response.

Science has an answer about which view to take. It says that the odds are overwhelming that humanity has caused the warming of
the Earth and the ensuing climate changes. We can only operate in this realm based on prediction of future classes of effects that fall
more into the areas of social science and medical research.141 Failing to take the probabilities of causation into account in law- and
rule-making is “deeply problematic.”142

Carbon is one of the primary causes of climate change. But climate change is caused by humans, and human activity on the ground
has long released excessive amounts of carbon.143

How we live makes a difference. We cook food. We heat and cool our homes. Most of us live in cities.144 We travel by car and by
airplane. Many of us consume meat and dairy. We see the result on land: “Since the pre-industrial period, the land surface air
temperature has risen nearly twice as much as the global average temperature.”145 Now let us return to food, this time to see how
climate change affects what we eat.

b. Food

“Climate change exacerbates land degradation.”146 Land degradation adversely affects production. As more land degrades, we get
less food.

The carbon and its heat not only reduce food production, higher levels of CO2 also harm food quality. Plants are bigger now but less
nutritious.147 As Wallace-Wells says, “Everything is becoming more like junk food.” Between 1950 and 2004, protein, calcium, iron,
and vitamin C have declined in plants by as much as a third. “Even the protein content of bee pollen has dropped by a third.”148
Researchers looking at the effect on one crop, rice, found that “carbon emissions could imperil the health of 600 million people.”149
The bottom line for food: there will be more of us, there will be less food, the food will be less nutritious, and we will be hungrier.

Climate change impacts the land itself. Some areas will be more scorched. 150 Some are already affected; consider the Middle East.
151

This impact on land harms the inhabitants. Those living in degraded or desertified areas are increasingly impacted by climate
change.152 When impacts worsen, billions will be forced to move in search of a new place to reside. 153 As the acreage of
temperate land shrinks and the number of displaced people rises, another emergency looms.

c. Migration

The migration problem is far greater than several million Americans. In 2018, the World Bank offered a 2050 estimate of 143 million
just in subSaharan Africa, South Asia, and Latin America.154 “For every fraction of a degree that temperatures increase, these
problems will worsen. This is not fearmongering; this is science.”155 The UN’s International Organization for Migration has projected
as many as a billion climate migrants by 2050. 156

What will it be like 50 years from now? What will our children face? By 2070, up to three billion humans will migrate due to extreme
temperatures.157 That does not count migration forced by sea level rise. Are we going to relocate New York City, most of Florida and
much of New Jersey? To where? With rising sea levels, there will be fewer and fewer “wheres” to go to and increasing demand for
food supplies when there is less land to produce the food. Projections say these concerns will need to be addressed even if we make
immediate significant climate progress.
​

Optimists look for better outcomes with fewer people affected. In the analysis of David Wallace-Wells, “the optimists have never, in
the halfcentury of climate anxiety we’ve already endured, been right.”158

d. Our Global Health Emergency

However, humanity itself is not the only system at risk. Our bodies are systems. For example, episodes of great rainfall, increasingly
common with climate change, harm our health: “Historically, in the United States, more than two-thirds of outbreaks of waterborne
disease—illnesses smuggled into humans through algae and bacteria that can produce gastro-intestinal problems—were preceded by
unusually intense rainfall, disrupting local water supplies.”159 Those impacts on our health go beyond the temporary to include
lifetime lost earnings. 160 Lost earnings only begin to tell the story.

Even if, as neo-classical economists, we focus on the money, we still have a problem: “Global gross domestic product could plunge by
nearly a quarter by the end of the century because of the effects of climate change.”161 That is mild compared to the physical
emergency.

There is a physical emergency: “[O]ver 11,000 climate scientists recently warned, clearly and unequivocally that planet Earth is facing
a climate emergency.”162

We have known about warming for decades.163 Yet suddenly we realize that not only is our only home on fire,164 it is burning faster
than we imagined. To save anything, now is the time. Humanity must act on this type and degree of risk now. We must address
foreseeable and significant risks of systemic failure, whether concrete, diffuse, 165 or cascading.

We find ourselves frozen, able only to hope. We see the fires. And we know more warming is coming due to protracted global
processes. But change is hard: “if the next 30 years of industrial activity trace the same arc upward as the last 30 years have, whole
regions will become unlivable by any standard we have today as soon as the end of the century.”166

According to Harvard’s Edward O. Wilson, our planet is in a fight for its life.167 We have made the unthinkable the foreseeable,168
then the probable. When warming reaches its full reality, we will likely be gone.

We would like to think that the problem will go away if we can only control our carbon emissions. If only climate change were so
simple. Unfortunately, there are multiple climate emission gasses.

e. Methane

Consider another GHG: methane. In 2016, Harvard researchers discovered that methane represents a much greater percentage of
warming gas than was previously calculated.169 Hundred-year emissions were used rather than measuring the accumulation of total
warming gases over time in the atmosphere. According to law professor Steven Ferrey, “The impact of short-lived chemicals,
particularly methane, the second element altering climate, has been miscalculated as if time and intensity do not matter.”170
Methane traps three to four times as much heat as previously estimated.171 Recalculations172 provide one breathtaking conclusion:
We are out of time.

We must act. Natural gas, the recent solution to our energy problems, is largely methane and natural gas leakage is a significant
source of climate methane. A 50% global increase in natural gas demand by 2040 is predicted.173 And even if (unrealistically) none
of that methane leaks, a big problem remains: “The [International Energy Agency] forecasts that abundant use of gas could raise
atmospheric concentrations of CO2 to 650 parts per million causing temperature to rise 3.5 degrees Celsius, which is more than
many experts believe is tolerable for the health of the Planet.”174 Thus, even by solving our coal problem through conversion to
natural gas, we will not have solved the carbon and methane problems.

Methane is far more dangerous to humanity than carbon.175 We miscalculated and under-estimated the role of the second-most
prevalent GHG in warming. 176 We leak more methane than ever, 177 and we continue to build out methane (and leakage)
infrastructure.178 Continued fracking will make it nearly impossible for the United States to reach its promised 26-28% reduction
goal from 2005 levels.179 We now share our extraction technology (fracking) with other countries.180 Yet there is no U.S. or global
legal structure or regulation to even encourage methane recovery.181

f. Global Problems and Law

Professor Ferrey observes the real global problem of carbon, methane and other GHGs: “Warming molecules released anywhere on
the Planet, warm the entire world, not just the immediate space where they are released.”182 As methane warms the entire planet,
we are all at risk from any methane emissions. With global warming, humanity has encountered local causes with lethal global
effects. We need global law to protect us.

There have been efforts at international cooperation, but the results are thin: “The Kyoto Protocol achieved,
practically, nothing; in the twenty years since, despite all of our climate advocacy and legislation and progress on green energy, we
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have produced more emissions than in twenty years before.”183 The Paris Agreement was a wonderful step forward,184 but there
remains no legal or regulatory system to ensure that goals become reality.

A single-use piece of international law, like a climate treaty, works only for one problem and does not adapt
well to changing conditions—as would be more likely for regulation. The fact that we were able to leave the Paris Accord185
demonstrates the ineffectiveness of the limited approach.

We in the United States cannot stand alone,186 particularly for an issue with this kind of risk to all our
rights. The rest of our world has waited for us. We, humanity, must pull together to avoid a collapse of trust.187

International law contains violence---assumes realpolitiks.

Khatuna Burkadze 18. Fulbright scholar at the MIT Center of International Studies as well as a
visiting researcher at Columbia University, Bard College and the Fletcher School of Law and
Diplomacy. Graduate of the Fletcher School of Law & Diplomacy, Tufts University. “A Shift in
NATO's Article 5 in the Cyber Era”. 42 42 Fletcher F. World Aff. 215 (2018).

The fact that international law is often dismissed as window-dressing on Realpolitik is misleading.
Such an approach understates the importance of international agreements in maintaining
peace and security. For liberal democracies that respect the rule of law, international law
undoubtedly shapes and bounds governments' activities. At a time when the action's of
unscrupulous states and violent extremist groups continue to threaten peace and security
internationally, it is even more important that such actions are countered with a strong
commitment to existing international law and the values that it represents.'

Absent stable and effective international law, global conflict is inevitable

Wuerth ’17 — Ingrid Wuerth (Helen Strong Curry Professor of International Law, Vanderbilt
Law School); “Using International Law to Prevent Interstate War: How Syrian Airstrikes Make the
World Less Safe;” April 12th, 2017; Lawfare;
https://www.lawfareblog.com/using-international-law-prevent-interstate-war-how-syrian-airstrik
es-make-world-less-safe

War is in the air: figuratively and literally. Even before the air strikes in Syria and the Russian veto of U.N. Security Council
Resolution condemning Syrian use of chemical weapons, President Trump’s unpredictable and combative approach to foreign policy
suggested a variety of paths which could lead to armed conflict with Iran, China, Russia or North Korea as Niall Ferguson, Robert
Kagan, and Fareed Zakaria have all argued. In
the post-World War II period, international law helped
generate conditions which led to interstate peace—the “long peace.” Syrian airstrikes have, however, put
unprecedented stress on the U.N. Charter-based international legal system regulating the use of force.
Perhaps the result will be a more nuanced and better international legal system, one which is carefully calibrated to permit the use of
force in response to humanitarian atrocities, as argued by Harold Koh and Rebecca Ingber. But perhaps degradation
of the
U.N. Charter-based limitations will weaken the international law prohibitions on the use of force,
making regional or global conflict with China, North Korea, and Russia more likely. Those proposing an
erosion of the U.N. Charter system need to consider carefully whether the international legal system is strong enough to make
nuanced use-of-force distinctions. The answer depends in part on politics.

Viewed through a political lens, the

prospects for a nuanced and effective international legal prohibition
on the use of force look dim. Relaxing the prohibition on the use of force is likely to embolden the
territorial ambitions of Russia and China; it will undermine the strength of the U.N. Security Council; and it
​

is especially difficult to administer in a world of fake news and hair-trigger decision-making. The
Syrian atrocities cry out for a response, but now is a dangerous time to tinker with the U.N. Charter’s prohibition on the use of force.

It bears emphasizing that for almost a century, the prevention of interstate conflict has been the core
objective of international law. The League of Nations, established in the aftermath of World War II was designed to
manage great power politics but failed to prevent World War II. That failure was shared by the 1928 Kellogg-Briand pact which
outlawed war for the first time. After World War II, thevictorious powers created the U.N. Charter and the
Security Council with its permanent veto-wielding members: China, France, Russia, United Kingdom, United
States. Note the continuing importance of those five powers. The Charter ushered in a remarkable “Long
Peace”—meaning a dramatic reduction in inter-state armed conflict. The cornerstone of the U.N. Charter and of the
international legal order since 1945 is a prohibition on use of force except in self-defense or as
authorized by the Security Council. The “Long Peace” suggests that it has worked: not to prevent
all conflicts, but to prevent many inter-state conflicts, which is the type of conflict building now.
Using the Syrian airstrikes to craft a humanitarian exception to the prohibition on the use of force puts the “Long Peace” under
unprecedented stress. To be sure, the 1999 NATO bombing of Kosovo for humanitarian purposes violated Article 2(4) of the U.N.
Charter. But the Syrian airstrikes, which involved the U.S. acting alone and without exhausting the avenues for peaceful resolution of
the issue, represents a significant expansion of the Kosovo precedent, as analyzed by Ashley Deeks here.

There are several reasons to think that a

limited and fine-tuned humanitarian exception to the prohibition on the
use of force will not work. First, it will embolden the already emboldened territorial aspirations of Russia and
China. After the bombing campaign and with the strong support of Western European countries
and the United States, Kosovo declared its independence from Serbia in 2008. Serbia and its allies,
especially Russia, strongly condemned the declaration of independence and continue today to refuse to recognize
Kosovo. Russian officials, then, in turn used the Kosovo precedent to support its use of force in both Georgia and Ukraine. Crimea,
which was part of Ukraine, is today Russian. The
core threat to peace with Russia is probably—Syria
notwithstanding—the increasingly militarized borders between NATO (or NATO-allied) countries and
Russia, which includes thousands of NATO troops, the most since the end of the Cold War. The South China Sea is
probably the world’s leading conflict-prone area—China’s territorial ambitions there may explain its
uncharacteristic reluctance to criticize U.S. airstrikes in Syria. These political facts should give pause to those who
seek a carefully-calibrated prohibition on the use of force.

Second, Syrian
airstrikes undermine the United Nations Security Council, which did not authorize them,
either ex ante or ex post. But
the Security Council is a key forum for resolving other threats to interstate
peace, such as Iran and North Korea. China, which is widely viewed as the key to containing North Korea, has recently
highlighted its participation in developing the U.N. Security Council Resolutions designed to deter North Korean nuclear and missile
programs. After all, international
law provides the basis for imposing sanctions on North Korea to
limit its nuclear ambitions. International law serves core North Korean objectives, too, as it
prevents Western military intervention, a fear motivating North Korean policy. The Syrian precedent gives
North Korea reason to worry that the U.S. will attack even over a Chinese veto in the Security Council.
As with North Korea, international law strongly supports U.S. policy objectives of preventing a
nuclear-armed Iran. Sanctions imposed by the United Nations Security Council led to the 2015 Joint Comprehensive Plan of
Action, which relaxed sanctions in return for Iranian concessions on its nuclear program. Undermining the U.N. Security Council
makes peace more difficult to achieve in this context, too.

International law solves incentives for conflict---realism ignores background

norms.
Annabelle Timsit interviewing Oona Hathaway, and Scott Shapiro 17. Hathaway and
Shapiro are Yale law professors. "When the World Outlawed War". Atlantic. 10-19-2017.
​

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na-hathaway-scott-shapiro/542550/

Timsit: Your book’s thesis that law alone has stopped war is controversial. What would you respond to
realist critics of your book, who say it’s really just power that matters?

Hathaway: Realists fail to understand how law works. … When it is most effective, the law does not
induce states to act contrary to incentives; it changes those incentives themselves. To take one
example: After war was outlawed, conquest was no longer legal. As a result, when Japan invaded
Manchuria in 1931, the U.S. and the states that were party to the League of Nations refused to
recognize the conquest, pointing specifically to Japan’s violation of its legal obligations under the Pact, which Japan had
ratified. This change in the rules thus changed the incentives states faced—they could still seize land with
force, but they could no longer enjoy the fruits of their conquests.

The realist might respond that, even if the change in the law changes behavior, that doesn’t prove that law matters: The law is simply
a tool of the powerful—great nations create law that is in their interests, and when the law changes behavior, power is doing the
causal work, not the law. But to
say that the powerful shape the law to reflect their interests is not to say
that law is merely a byproduct of power. Power may lead to rules, but rules take on lives of their own.
They change behavior by changing the incentives for action—not just for the weak but for the strong as well.

Scott Shapiro: So much of our book is an attempt to show that the

law is playing such a strong role in the way
states behave that we don’t even notice it. It’s hiding in plain sight. So it’s kind of a triumph of
the outlawry of war that we don’t even recognize it at work. But, even though we’re lawyers and think law is
really useful, we also think that the law has limits, that is, that there’s not always a legal answer to all the questions that arise. When
that happens, there are arbitral bodies [such as] the International Court of Justice.\
​

Nuclear War/Extinction

The alternative is Nuke war, eco collapse, AI, and biotech cause
extinction---revitalized i-law’s key but at a tipping point.
Shany ’21 [Yuval; 2021; Hersch Lauterpacht Chair in Public International Law; Hebrew
University of Jerusalem Legal Studies Research Paper Series, “The COVID-19 Pandemic Crisis and
International Law: A Constitutional Moment, A Tipping Point or More of the Same,” No. 21-9]
Significantly, these two narratives of historical development of international law are not mutually exclusive. First, certain
developments can be understood as clean breaks from the past, whereas others are the product of a long-term process. Second,
identifying historical trajectories depends on the focal length of the historical lenses used: What is viewed as a major shift in direction
at the time in which events take place, might be regarded decades or centuries later as a minor course correction, a short period of
instability, or a mere point on a pattern showing the overall trajectory. And third, the two narratives may merge to generate
processes of change, accelerating in particular moments in time due to ‘tipping points’
generated by certain dramatic events.5 Indeed, it would appear that certain important developments in
international law can be described as part of long-running trends punctured by sudden
fluctuations correlating to dramatic events. For example, the evolution of IHL norms governing non-international
armed conflicts can be narrated as stemming from a gradual process of restraining violence in and around the battlefield that started
picking up momentum in the mid- 19th century, with certain regulatory peaks occurring after and in connection with major
international crises such as World War Two, Vietnam and the Global War on Terror (e.g., Common article 3 in 1949, the 1977
Additional Protocols, and the development of laws governing transnational or asymmetric armed conflicts in the 2000s).

The COVID-19 Pandemic as the Harbinger of a Constitutional Moment

The question before us is whether COVID-19 has the potential for generating a constitutional
moment or a tipping point for the development of international law separating between epochs
or significantly accelerating already-occurring trends? Discounting serendipitous changes in the course of history
(the ‘unknown unknowns’ of historical change), such a question invites an assessment of whether a structural change in international
law can be envisioned or required in the near future, or whether the current crisis might facilitate such a change or accelerate
existing trends going in this or the other direction. If the answers to these questions are in the negative, then the reaction to the
COVID crisis is likely to showcase ‘more of the same’ for international law.

One possible vision of a percolating crisis that might lead to a new epoch in international law is found in the writing of my Hebrew
University colleague, the historian Yuval Noah Harari. Among the major challenges confronting humanity in the
21st century, which he has identified, are nuclear war, ecological collapse and technological disruption
(e.g., dangerous applications of AI and biotechnology).6 What’s common to these challenges is
their potential for catastrophic consequences, and the need for close global cooperation in
order to effectively address them. In addition, they all fit into a Frankensteinian crisis narrative: Scientific, technological
and economic progress getting out of control and creating a threat to the survival of human civilization (at least
in its current form). Noah Harari advocates in response to the looming threats a change of paradigm of
international relations, a new epoch perhaps, which is based not only on tight global cooperation,7 but also on giving a
prominent role for scientific knowledge in policy debates.8 Arguably, such a new international relations paradigm
would also require a corresponding new international law paradigm.

Prevents nuclear war

Max Yulis 17. Researcher for the Penn Political Review, citing a breadth of international
scholarship including from Columbia University and Foreign Policy. “In Defense of Liberal
​

Internationalism” Penn Political Review. 04/08/2017.

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Over the past decade, international headlines have been bombarded with stories about the unraveling of
the post-Cold War world order, the creation of revolutionary smart devices and military technologies, the rise of
militant jihadist organizations, and nuclear proliferation. Indeed, times are paradoxically promising and alarming.
In relation to treating the world's ills, fortunately, there is a capable hegemon- one that has the ability to
revive the world order and traditionally hallmarked human rights, peace, and democracy. The United
States, with all of its shortcomings, had crafted an international agenda that significantly impacted the
post-WWII landscape. Countries invested their ambitions into security communities, international
institutions, and international law in an effort to mitigate the chances of a nuclear catastrophe or another
World War. The horrors and atrocities of the two Great Wars had traumatized the global community,
which spurred calls for peace and the creation of a universalist agenda. Today, the world's fickle and declining
hegemon still has the ability, but not the will, to uphold the world order that it had so carefully and eagerly
helped construct. Now, the stakes are too high, and there must be a mighty and willing global leader to
lead the effort of diffusing democratic ideals and reinforcing stability through both military and
diplomatic means. To do this, the United States must abandon its insurgent wave of isolationism and
protectionism, and come to grips with the newly transnational nature of problems ranging from climate
change to international terrorism. First, the increase in intra-state conflict should warrant concern as
many countries, namely in Africa and the Middle East, are seeing the total collapse of civil society and
government. These power vacuums are being filled with increasingly ideological and dangerous tribal and
non-state actors, such as Boko Haram, ISIS, and Al-Shabaab. Other bloody civil wars in Rwanda,
Sudan, and the Congo have contributed to the deaths of millions in the past two decades. As the West has
seen, however, military intervention has not been all that successful in building and empowering democratic
institutions in the Far East. A civil crusade, along with the strengthening of international institutions, may in
fact be the answer to undoing tribal, religious, and sectarian divisions, thereby mitigating the prospects of civil
conflict. During the Wilsonian era, missionaries did their part to internationalize the concept of higher education, which has
contributed to the growth of universities in formerly underdeveloped countries such as China and
South Korea.[1] In addition, the teachings of missionaries emphasized the universality of humanity and the oneness of man,
which was antithetical to the justifications for imperialism and the rampant sectarianism that plagued
much of the Middle East and Africa.[2] Seeing that an increase in the magnitude of human casualty is becoming more of a
reality due to advancements in military technology and the increasing outbreaks of civil war, international
cooperation and the diffusion of norms that highlight the importance of stable governance,
democracy, and human rights is the only recourse to address the rise in sectarian divides and civil conflicts. So long as the trend
of the West's desire to look inward continues, it is likely that nation states mired in conflict will
devolve into ethnic or tribal enclaves bent on relying on war to maintain their legitimacy and power. Aside
from growing sectarianism and the increasing prevalence of failed states, an even more daunting threat
come from weapons that transcend the costs of conventional warfare. The problem of nuclear
proliferation has been around for decades, and on the eve of President Trump's inauguration, it appeared that
Obama's lofty goal of advocating for nonproliferation would no longer be a priority of American foreign
policy.[3] In addition, now that the American president is threatening to undo much of the United States'
extensive network of alliances, formerly non-nuclear states may be forced to rearm themselves.
Disarmament is central to liberal internationalism, as was apparent by the Washington Naval Treaty advocated by
Wilson, and by the modern CTBT treaty. The reverse is, however, being seen in the modern era, with cries coming
from Japan and South Korea to remobilize and begin their own nuclear weapon programs.[4] A world
​

with more nuclear actors is a formula for chaos, especially if nuclear weapons become
mass-produced. Non-state actors will increasingly eye these nuclear sites as was the case near a
Belgian nuclear power plant just over a year ago.[5] If any government commits a serious misstep, access
to nuclear weapons on the behalf of terrorist and insurgent groups will become a reality, especially if
a civil war occurs. States with nuclear weapons require domestic stability and strong security, which is
why states such as Israel, North Korea, and Pakistan could be in serious trouble in the event of a
domestic uprising or military coup. The disarmament of all states is essential for human survival, and if it is not achieved, then
a world full of nuclear weapons and an international system guided by realpolitik could give rise to
nuclear warfare. In today's world, nuclear weapons leave all states virtually defenseless. But, for nuclear
deproliferation to become a cornerstone of the global agenda, a pacifying and democratic power
must rise to the limelight to advocate the virtues of peace, stability, and human rights. Those who
equivocate democratic interventionism as an idealistic crusade cannot be further from the truth.
Some, however, see it as an effective foreign policy that has a grand scheme for peace in mind.[6] The latter contention, despite
being widely disputed, holds the premise for the democratic peace theory. Throughout the history of all democracies,
not one modern-day democracy has fought against another democracy.[7] Whether that's because of ideational
symmetry, similar objectives and morals, or generally pacific foreign policies, such a phenomenon must be given attention by
policymakers. According to liberal internationalists, democracies
make better partners, tend to move towards
increased political and moral agreement, oppose illiberal regimes, and support disarmament policies.
This supposition is heavily supported by the smooth post-WWII transitions that the German,
Japanese, and Italian governments underwent. All of the governments were formerly fascistic and
authoritarian, but with intensive military and economic support from the West, they became some of the most
shining exemplars of democratic societies. Even today, Germany is the backbone of the European
Union and repeatedly champions democratic norms, such as human rights, economic freedom, and individual
liberty.[8] Equipping other countries with the necessary foundations for democracy is no easy feat, but the
fight for peace far outweighs the costs of inhabiting a world rife with nuclear-armed authoritarian and
belligerent states. In conclusion, liberal internationalism can have a lasting legacy on the prospects for peace
if it is executed properly. Putting democracy, humanism, and liberty on a pedestal is what states ought to do if they seek to save
humanity from itself. Although the rise of transnational
issues pertaining to climate change, nuclear weapons,
and civil wars should make international cooperation an increasingly desired aim, states seem to be
thinking just the opposite. Only time will tell whether this is a short-lived trend, or a more ominous warning for the world at large.

Judicial application of i-law solves multiple existential threats

Nagan 14 (Winston P. Nagan, Research Scholar and Professor of Law, Affiliate Professor of
Anthropology, Latin-American Studies, and African Studies, and Founding Director, Institute for
Human Rights and Peace Development, Levin College of Law, University of Florida, International
Editorial Advisor to the Journal of Law and Politics, former president of Policy Sciences Center,
Yale Law School, former Chairman of Amnesty International USA, J.S.D., Yale Law School, LL.M.,
M.C.L., Duke Law School, M.A., B.A., Brasenose College at Oxford University, B.A., University of
South Africa, “The Crisis of the Existing Global Paradigm of Governance and Political Economy,”
Cadmus, 2(2), 4-20-2014, http://www.cadmusjournal.org/node/391)

This article seeks to underline the

central challenges to world order that are outcomes of our current system
of global, social, power and constitutional processes. The article outlines these major problems which it is suggested
represent a crisis for the future trajectory of human survival and well-being. The paper then uses the
problem of the emergence of transnational criminal activity in order to underline the limits of the current global paradigm of

governance. In effect, in the criminal law context the jurisdiction of sovereign states to attack the problem of transnational crime is hedged
​

with severe limitations. The most important of these limitations is the fact that the jurisdiction over crimes by sovereigns is limited by
the territorial character of the definition of sovereignty. Thus a sovereign has a limited capacity to control and police
criminal activity whose main locus of operation is generated outside of the territorial reach of the sovereign state. This essentially means that the

element of global governance generates a juridical vacuum which permits organized crime to flourish outside of the
boundaries of the state but at the same time, having the capacity to penetrate and corrupt the social, political and juridical processes of the sovereign
state. The article explores the effort of the UN to provide some form of response to this crisis in the form of an international agreement. The most
important global expectation about global governance is reflected in the Preamble of the UN Charter and it is authorized by “we, the people” of the
earth/space community. That expectation includes the high priority humanity gives to international peace and security; the reaffirmation of faith and
fundamental human rights, in the dignity and worth of the human person, and equal rights for men and women and nations of whatever size. It also
underscores the importance of the global rule of law as well as the promotion of social progress, better standards of life,
and expanding freedoms. That is the promise. However, at the practical level the institutions of global governance have been to a large extent a captive
of their own history. That history emerged with scholars in the late 1500s and early 1600s (Bodin and Hobbes) and later was given a juridical imperator
in the Treaty of Westphalia (1648). In the early 19th century Bodin, Hobbes, and Westphalia were given a powerful juridical imprimatur when John
Austin published his influential book The Province of Jurisprudence Determined. In effect, from Bodin to Austin we have the developments from
scholarship, to political agreement to creation of a jurisprudential foundation for the notion of the
territorially organized sovereign
state. The sovereign state became the currency of international relations, diplomacy, international law, as well as a powerful
limitation on the force and efficacy of both international law and constitutional law. In the 20th century
the sovereignty idea contained no obvious constraints that could limit a drift into a global war
(WWI). Moreover, the creation of the League of Nations system and the Covenant of the League was itself limited in a context of facilitating
international peace and security by state claims to sovereign absolutism. At the end of WWII the victorious powers adopted the Charter of the United
Nations. The Charter reflected ambiguity of its authority resting in “we, the people” and the residual strength and ambition of sovereign state powers,
claiming frequently the competence to trump activities challenging their ambitions and interests. The
current paradigm is thus
responsible for generating problems that now seem to challenge the survivability of humanity,
as well as undermine the prospect of global policy and practice that moves in a trajectory that
secures humanity's wellbeing for the future. We list several of the most obvious scenarios where
the state/sovereign-centered paradigm is limited in its capacity to respond effectively to the
crisis of humanity’s future survivability and wellbeing. These are listed as follows: 1. The crisis of the global
war system. States no longer have an effective monopoly on war making. States have been involved in
privatizing the functions of the military with unforeseeable consequences. There continues to be the emergence of mercenary-like forces
for hire in the global environment. The proliferation of the flow of arms and armaments in the global arms market remains

significantly unregulated. The existence of weapons of mass destruction (nuclear, chemical and biological) still
represents a major crisis regarding the acquisition of the technologies and assets of these weapons systems
falling into the hands of terrorists groups or organized crime cartels.1 2. The growth of civil society deviance
may threaten world order when it develops into forms of apocalyptic terrorism, state terrorism,
organized crime, human trafficking, global drug production and distribution, and trading in small arms
and/or components of mass destruction. 3. Global political economy of radical inequality. Conventional economic
theory seems to lead a global race to the bottom. More wealth is produced than ever before and greater inequality is
produced as well. Greater wealth concentrations often result in plutocracy which favors the wealthy and greater

alienation for the impoverished. What is needed is an economic paradigm that is not confined to a
single state or sovereign but a paradigm that functions within the context of a global, social and political process and
responds to the problems that emerge from this process from a global inclusive perspective. 4. The depreciation of a human right to development, a
depreciation that undermines the value potentials of human capital for the improvement of the human prospect. Clearly, the right to development is a
human right of global dimensions and requires a global solution to effectively respond to it. The solution here is beyond the parochialism of national
sovereignty. 5. The importance of a
viable ecosystem for the survival of humanity requires policy making that
is beyond the nation states’ competence. In short, global warming and climate change are matters
of inclusive global concern. All must participate because all have a stake in preserving a viable ecosystem for all. 6. Human
demographics and human survivability. The radical population increases raise the question of whether food

security and accessibility to clean healthy water may be put at risk when earth’s population exponentially increases.
Demographic growth may well challenge eco-social and economic capacity of the earth to
​

indefinitely sustain such increases without important radical innovations in birth control, food production, and water conservation.
These issues transcend any particular nation state. 7. The global capacity to respond to natural
catastrophes (tsunamis, earthquakes, hurricanes, asteroid collisions). It’s now well accepted that such
catastrophes require global action because the capacity of any particular sovereign is limited in this
regard. 8. The global health crisis (AIDS, malaria, TB, Ebola, etc). It is clear today that any emergent global

pandemic will be beyond the capacity of any single sovereign state. Such health threats are really beyond the
current paradigm. 9. The global crisis of human rights and humanitarian values. Notwithstanding the

vigorous advocacy for the promotion and defense of basic human rights, it is still the case that we have a great
human rights crisis on the planet. At the heart of this crisis is the muted claim of unlimited sovereign absolutism. The human rights
crisis cannot be solved exclusively within the sovereign state. It is a global problem that implicates the global
authority of “we the people.” The issues listed above represent a crisis for global humanity and as well underline a

weakness of the existing paradigm which is a state sovereign dominant paradigm. This underscores the
need for new and fresh thinking, nothing short of a new paradigm for understanding and responding to the
global crisis of our time. To provide a more detailed explanation of the limits of the state sovereign paradigm we provide an overview of
the background and possible value for humanity of an important UN initiative to enhance a global paradigm of

governance with regard to a particular problem that defies the exclusive authority of the sovereignty approach. In this initiative we
underscore the effort to strengthen the global rule of law, as an indispensable element for a
new paradigm of global governance.

International law solves several existential threats

Gregory Shaffer 12, Melvin C. Steen Professor of Law, and Affiliated Professor in the
Department of Political Science, University of Minnesota, “International Law and Global Public
Goods in a Legal Pluralist World,” Eur J Int Law (2012) 23 (3): 669-693,
http://ejil.oxfordjournals.org/content/23/3/669.full

Power fragments and states holding nuclear weapons destabilize,

We face imminent financial collapse with scant collective will to address it.

risking nuclear proliferation and terrorist use. Climate change intensifies while states eventual that are the main

dither
contributors Fisheries deplete, deserts expand, and
and politicians with veto power trivialize repeated scientific findings as ‘the greatest hoax ever perpetrated’.1

aquifers diminish . International law scholarship, in the meantime, takes a turn towards celebrating pluralism without sufficiently accounting for institutional variation to address different contexts. Those writing on global public goods

Increased transnational interdependence recasts domestic issues

challenges, at the same time, tend to come from disciplines other than law.2

into global ones . To give one mundane example, until 1997, corporate insolvency law in Indonesia was considered a purely local matter. But with the onset of the Asian financial crisis, the World Bank, International Monetary Fund, and

examples include
Asian Development Bank rethought domestic corporate insolvency law as a global issue in light of the risks of financial contagion, threatening a global public good, financial stability.3 Other domestic banking regulation,

public health, and civil conflict

tax avoidance (given the impact on state sovereign debt crises), pest control, . In response, states create new international institutions and existing international institutions expand
their mandates. The UN Security Council has expanded its mandate for overseeing international peace and security to authorize ‘humanitarian intervention’, and the World Health Organization has done so to address public health in response to the SARS epidemic
and similar threats.4 States and state institutions sometimes create international club-like institutions with limited membership, such as the Financial Action Task Force and the Basel Committee on Banking Supervision, with the express aim of affecting behaviour in
non-members, such as over money laundering and bank capital requirements.5 So what is international law’s role in the production of global public goods? Where are greater international legal constraints and international institutions needed, and where should
international law retain slack? International law both is required to produce global public goods and can potentially impede dynamic processes that are needed to address global public goods challenges. This article provides a framework for addressing these issues in
light of variation in the properties of global public goods (section 3), their distributive implications (section 4), and alternative institutional choices for confronting them, as reflected in different theoretical visions for global governance advanced within international
law scholarship (section 5). But first we address the rise of the legal pluralist vision (section 1) and the tensions between it and the concept of global public goods (section 2). 1 The Rise of the Legal Pluralist Vision Legal pluralism seems a bit of a fad in international law
scholarship today, just as dialectical federalism may be a bit of a fad in the United States, and constitutional pluralism in the European Union.6 Legal pluralism is a construct, a way of understanding and envisaging the world, both positively (the way the world is) and
normatively (the way it should be). The challenge with the legal pluralist construct is how it takes account of the global public goods challenges confronting us. What has led to the rise of this academic construct, its proliferation, its catching on, its enticement of our
imaginations? In part, the concept resonates with our experience of multiple overlapping orders in tension with each other, with no clear centre. In part, the concept provides a normative vision of restructuring plural orders into pluralist ones – that is, re-envisaging
them from fragmented, closed, sovereign legal orders into an open, interacting, interlinked, interdependent, multi-level structure of legal ordering. In part, it particularly resonates with those writing in Europe, reflecting the European experience with supranational
law. The European experience, encompassing both economic regulation and human rights protection, is viewed as an experimental model and ‘laboratory’ for the ordering of a global legal pluralism, one which provides order without centralized hierarchy, hegemony,
or the abandonment of public law principles to transnational market forces.7 Yet the turn to a pluralist vision also has something to do with our disenchantments, our disenchantment with international law, the limits of the European experiment where a
constitutional order exists but has been formally rejected by its citizens, and the failure of progressive politics in the US at the national level, spurring a strategic retreat out of political necessity to bottom up progressive initiatives from small municipal activist havens
like Berkeley, California, and Madison, Wisconsin. There are good reasons for such disenchantment within the US, with the populist lure of the Tea Party’s destructive rhetoric of any sense of collective purpose, its members cheering at Republican debates at the
prospect of Americans dying because they do not have health insurance. There are good reasons for this disenchantment in Europe with little sense of solidarity in facing a crisis threatening the Euro, the Union itself, and the world, with the biggest sovereign defaults
in history, ones that would dwarf earlier defaults in South America and Asia. It is a crisis which – to play with Hobbes’ famous phrase – could be nasty and brutish, but not short. And there are good reasons for such disenchantment globally, with the cynicism of the
Bush administration’s despising of international law in invading Iraq, its trivializing of torture, and its ordering the freeze of individual assets through Security Council resolutions with no concern for due process. International law failed to constrain power when power
chose to belittle and ignore it, and it served to legitimize power when power deigned to deploy it. The concept of pluralism certainly captures much going on in the world better than its occasional foil, the concept of constitutionalism.8 There is rarely any central
hierarchy in international law. And even where there is a glimpse of a shadow of hierarchy, such as decisions by the UN Security Council or of the WTO Appellate Body, there always follows the challenge of implementation. International law depends on national
systems and private actors to implement its dictates, and it has little authority to ensure that they do so. We have a fragmented plurality of legal orders spatially in at least three senses.9 First, as international functional organizations proliferate, we have a plurality at
the international level – constituting a horizontal plurality. Different semi-autonomous international institutions address common issue areas in different ways. At times actors may strategically create overlap among international institutions to reorient international
legal norms when they are unable to trigger such change within an existing institution. The tensions between the rules of the WTO and the Convention on Biodiversity and its Biosafety Protocol are a salient example.10 Institutions with overlapping mandates may also
compete for leadership on a legal issue, as the World Bank, International Monetary Fund, and Asian Development Bank did during the Asian financial crisis.11 Secondly, we have a plurality of legal orders between levels of governance – constituting a vertical plurality.
Since considerable power remains at the nation state level, whether for producing detailed law, implementing it, or enforcing it, international law must interact with national law to be effective. In practice, domestic law and institutions will always remain critical parts
of a recursive process of resistance, adoption, and adaptation of international legal norms, which in turn can reshape those international norms. Thirdly, in an economically interdependent world, private actors develop non-public legal orders at the state and
international levels. They are sometimes encouraged by public actors that may later codify these private legal norms, or enforce them judicially, or collaborate through forming ‘public–private partnerships’. We thus also have a plurality of public and private legal
orders.12 The concept of legal pluralism does not signify disorder – per the international relations trope of anarchy. Legal pluralism, with its account of interacting legal orders, takes the idea of international law seriously. Otherwise, there is nothing with which
national legal systems can interact, except with each other or with private legal ordering. The normative vision of legal pluralism rather aims to foster transnational and global legal order out of the plural; it aims to structure out of the many one, but with the one
constituted by the interactions of the many.13 2 Legal Pluralism and the Challenge of Global Public Goods Despite the appeal of the legal pluralist vision, one realizes in reading thought-provoking authors on legal pluralism, such as Mireille Delmas-Marty and Nico
Krisch, that though they compellingly support their arguments with examples and case studies, their case studies do not focus on the challenges of global public goods. They do not, one might conjecture, because there is a tension between the operation of legal
pluralism and the production of global public goods where processes of pluralist interaction will provide too little too late. What do we mean by a global public good? In economic theory, a public good, in contrast to a private good, is one that is non-excludable (no
one can be excluded from the good’s consumption) and non-rivalrous (the good’s consumption does not reduce its availability to others).14 Clean air, for example, is a public good because it is not depleted by our breathing it, and it cannot be appropriated by a few.
The term ‘good’ refers to a product, and not a normative attribute. A public good thus can be positive (such as knowledge), or negative, a good that we wish to curtail so that our aim is to produce its absence (such as terrorism). Those promoting international
​

cooperation often broaden the definition of a public good classically used in economic theory, which was statist in its initial focus, to encompass a larger number of issues for global action. On the one hand, the two-fold ‘publicness’ of a good in practice often lies
along a continuum, so that goods may combine public and private attributes, complicating the assessment of how to generate them.15 On the other hand, one reason policy-makers arguably have developed a broader definition of global public goods is to enhance
the scope for global governance projects and thus legitimize their pursuit.16 The concept of global public goods, for example, was originated under a project sponsored by the UN Development Programme which seeks funding for projects. Inge Kaul and her
collaborators, leading that project, use a relaxed definition of public good as ‘goods with benefits that extend to all countries, people, and generations’,17 while noting that the concept of public good is a social construction.18 Such expanded definitions, however, risk
making the concept of global public goods so malleable that it becomes abused, leading to scepticism and cynicism regarding its relevance.19 As we will see in section 3, we rather need to differentiate among different types of public goods in order meaningfully to
address the role of international law and organizations in their production. The major challenge for the production of many (but not all) global public goods, as well as those public goods that are transnational (but not global) in scope,20 and thus the challenge of
celebrating legal pluralism, is collective action and free riding. Nation states and other actors will not invest in global public goods if their independent action will have no impact, or if they can free ride on the investment of others. To produce global public goods often
requires a sense of collective purpose based on mutual interests and understandings. To arrive at that collective purpose, we need (for economists) an alignment of incentives, and (for sociologists) socialization processes that lead to a common identity (such as
national citizens). We are then more likely to cooperate and create institutions that invest in producing public goods. The creation of nation states with general taxing powers and a monopoly of the legitimate use of force facilitated the production of national public
goods. The development of the theory of public goods correspondingly has been statist on account of the existence of centralized decision-making in nation states which produce them.21 The most salient challenge internationally is that we lack legitimate, centralized
institutions with general taxing and regulatory powers. We thus have traditionally depended on cooperation between nation states involving decentralized forms of implementation and enforcement to advance collective goals. International law facilitates this
cooperation through creating international institutions and common norms and rules, thereby reducing transaction, monitoring, and enforcement costs and building shared understandings.22 States created the UN and its Security Council to help to ensure the global
public good of international peace and security. They created the World Health Organization to protect public health from the spread of infectious diseases, the UN Framework Convention on Climate Change to address climate stabilization, the World Trade
Organization to address trade liberalization and help to manage inter-state trade conflicts so that they do not escalate into 1930s beggar-thy-neighbour policies, the Financial Action Task Force to address money laundering of illicit funds, and the International
Monetary Fund to stabilize currency and sovereign debt crises. The concerns addressed by these institutions can be viewed in global public goods terms. Yet none of these institutions has a general taxing power to address them. All of them depend on negotiations
between states over the amount of ‘contributions’. 3 The Need to Differentiate between Global Public Goods In order to assess the place and role of international law and institutions to promote and govern the production of global public goods, we need to
differentiate among the range of public goods challenges faced, as opposed to speaking of global public goods and international law in the abstract. Global public goods come in different varieties, calling for different institutional responses, sometimes involving
greater centralization through international law and institutions, and sometimes not. There is no one size fits all, no one optimal institutional structure. For the production of many global public goods, legal pluralism, in which different legal orders interact with each
other, works fine. There may be little need for international law, at least in its hard (mandatory) law variety, much less centralized international institutions. Since global public goods do not come in one variety, international law plays a variable role in their production.
As Scott Barrett conceptualizes in his book Why Cooperate?: The Incentive to Supply Global Public Goods,23 some global public goods raise collective action problems and others do not. Barrett, following other economists, classifies global public goods into three
varieties: single best efforts goods, weakest links goods, and aggregate efforts goods.24 An example of a single best efforts public good, on the cover of his book, is the crashing of a giant asteroid into the earth. All countries are affected by this prospect. Scientists do
not know when one will hit and what size it will be, but they find that small ones hit the earth about once a month, and estimate that potentially catastrophic ones that could devastate an area the size of Manhattan every 250 years, and one that could cause the
extinction of most life forms every 65 million years.25 For this global public good, the US has the incentive to finance research and implement technology to detect and deter such happenings. No international treaty is required for it to do so. Other countries may free
ride on the US’s research, or may engage in complementary research, but that will not deter the US from investing. Similarly, countries, companies, and even individual researchers have incentives to invest in basic science on their own which can benefit the world.
Joseph Salk’s development of the polio vaccine in the US was a gift to the world, as he did not patent the polio vaccine.26 Such a good can be produced by private initiatives (such as those of pharmaceutical companies and of the Gates Foundation), purely national
ones (such as those of the National Institutes of Health), or international collaborative ones (such as the UNICEF/UNDP/World Bank/WHO Special Programme in Tropical Diseases).27 Is there no required role for international law in these cases? Even in the asteroid
case, Barrett notes the potential negative externalities of other countries relying on the US. The US may have the incentive to invest in producing the global public good, but in a way that could create a new risk. If an asteroid bears toward the earth, and if the existing
technology is such that the asteroid could only be slightly deflected so that it would crash into a different part of the earth, who should make the decision regarding its deflection? Even if it were to be deflected into the ocean, the location of its impact would raise

differential risks for countries of a tsunami.28 Similarly, geoengineering increasingly looks like an important policy option for climate
stabilization , given the world’s inability to reduce carbon emissions. It thus can be viewed as a global public good, at least to avoid abrupt and catastrophic climate change.29 Since engineering the climate may be relatively cheap, it could be a

Yet geoengineering may benefit some countries and harm others. Climate
single best efforts global public good. like climate change itself,

engineering constitutes a huge experiment that poses unforeseeable, differential risks for countries in light of

If different countries engage in

uncertainties. A wealthy country may decide to invest in geoengineering to assist its own climate situation, but in the process have negative externalities on others.

climate engineering, their plural efforts will interact, potentially undercutting each other.
Coordination over climate change thus raises governance challenges . Who should decide whether and how the climate should be engineered?

there is a role for international law and international institutions in coordinating decisions
Once again, even

Eliminating infectious diseases and curtailing

though only one or a few wealthy countries invest in geoengineering on their own. w m d the proliferation of eapons of ass estruction

are weakest link public goods . A wealthy country can invest in preventing an infectious disease within its borders through financing the vaccination of its population each year. The US does so, for example, with polio
vaccines. Yet it would be much more cost effective to eradicate polio, as the world did for smallpox in the 1970s. The benefit-cost ratio for smallpox eradication is thought to be 159:1, if all costs are included, and 483:1, if only international funds for financing
eradication efforts in developing countries are considered.30 That is a remarkable rate of return. Investing in polio eradication could provide another global public good. Yet, in order to eradicate polio, poor and failed states, such as Somalia, are the weakest links. The

World Health Organization, an international institution created under the auspices of the UN and

leads the eradication efforts

inheriting the mandate of an earlier institution created pursuant to the League of Nations, . The WHO includes distinct voting rules for its regulations on infectious diseases, which facilitate
collective action for collective purposes. The general rule of international law of treaties is an ‘opt in’ rule. A state is not bound unless it consents. Under Articles 21 and 22 of the WHO constitution, however, a majority decision is binding on matters involving
‘procedures designed to prevent the international spread of disease’, unless a state opts out. The WHO created new International Health Regulations in 2005 pursuant to these provisions, which require states to build institutional capacity toward containing
communicable diseases, collaborate with each other, and maintain clear points of contact.31 In parallel, the regulations expand the legal authority of the WHO’s Director-General to intervene in response to communicable disease outbreaks, including through a system
for convening experts and declaring a public health emergency of international concern. As has been shown experimentally and statistically, opt-out rules generate much broader participation than do opt-in rules.32 No WHO member, in fact, opted out of the 2005

Keeping weapons of mass destruction out of terrorist hands is another weakest link
International Health Regulations.33

global public good . We do not know where or when such weapons will be used, but the fallout of their use will have global repercussions, whether for life and health, civil rights, or the global economy. Countries thus have the incentive
to keep these weapons out of terrorist hands, but the result will depend on the weakest links. The weakest links today are Pakistan, Russia, and North Korea. New weakest links may emerge, as more states invest in nuclear technology to gain advantage or parity with
their rivals. States in 1968 signed the Nuclear Non-Proliferation Treaty (NPT), which was extended indefinitely in 1995,34 and the Convention on the Physical Protection of Nuclear Material in 1987, amended in 2005.35 In addition, the UN Security Council passed
Resolution 1540 in 2004 which enjoins all states to take measures to prevent nuclear weapons materials from being obtained by non-state actors having ‘terrorist purposes’.36 The non-proliferation regime, however, has been under some risk of unravelling, as the
Bush administration created a special regime for India and reconsidered the US’s first strike options and weapons development plans.37 The severest global public goods challenge today is what Barrett calls an aggregate efforts public good – that is, where the global
public good can only be produced through the aggregate efforts of multiple countries. The world appears to have been startlingly successful in addressing the depletion of the ozone layer, starting with a framework convention, then turning to hard law obligations that
were progressively enhanced, and then using soft law mechanisms to facilitate compliance, even when formally hard law sanctions were available.38 The Montreal Protocol on Substances that Deplete the Ozone Layer created a variety of sticks and carrots to realign
incent ives, including potential trade sanctions and a Multilateral Fund for Implementation for developing countries. In contrast, the world has been completely unsuccessful in addressing climate change mitigation, which is a much more complex and difficult issue
that is more susceptible to free riding, undermining collective action. Human-induced climate change is happening and it is not clear what, if anything, effectively will be done to reduce emissions. These different public goods entail different problem types. That of
weakest link public goods involves a holdout problem, whether the holdout is an unwilling one, such as North Korea over nuclear weapons, or an unable one, such as Somalia regarding polio eradication. That of aggregate efforts public goods involves a free
rider/collective action problem, resulting in underinvestment in providing a solution. And that of best shot public goods involves a positive externalities problem because the investor does not fully capture the benefits. It is easier to fund best shot public goods, even if
the result is overinvestment from the perspective of global efficiency. A technological alternative to chlorofluorocarbons (CFCs) for refrigerants, propellants, and solvents (a best shot problem) appears to have resolved ozone layer depletion by facilitating the
phase-out of CFCs (an aggregate efforts problem). Similarly, climate engineering (a best shot problem) has become a default solution for addressing climate change because of the difficulty of agreeing to emissions reductions (an aggregate efforts problem). There is a
varying role for international law and international institutions in producing these different global public goods. For best shot global public goods, an international institution is not needed to develop them. Private foundations could provide some of these goods, such
as through prizes for the development of new drugs to combat tropical diseases. Yet where decisions over implementation can have negative externalities, international legal obligations and institutions that constrain unilateral action can better ensure fairness and
manage conflicts, and possibly produce public goods more efficiently, as in the case of asteroid deflection and climate engineering. For aggregate efforts public goods, in comparison, there is a greater need for centralized institutions to produce them, leading to a
relinquishment of some national sovereignty. The opening quotation from Nordhaus reflects his frustration with the global collective failure to address climate change. In contrast, with weakest link public goods, the challenge sometimes lies in building state
sovereignty. The challenge for disease eradication, for example, is with ‘failed states’ that lack functional governing institutions. In other weakest-link situations involving states unwilling to cooperate, such as that of nuclear proliferation, there is greater need for an
international institution such as the UN Security Council, combined with financial transfers to secure nuclear materials. Otherwise, pressure for unilateral action will increase. In sum, international law and organizations play varying roles in the production and
governance of global public goods. Table 1 summarizes the relationship of different types of global public goods with international law and organizations in a legal pluralist world. 4 The Challenge of Distributive Conflict and the Production of Global Public Goods
International law, like all law, has distributive consequences, posing particular challenges for governing the production of global public goods. These distributive issues cannot be elided, although they often are in legal scholarship. At least three distributive issues arise
in decisions over the provision of global public goods: the specific terms of cooperation for producing a global public good; choices among producing different global public goods in a world of limited resources; and the potential of actual conflict in the pursuit of
different public goods which can act at cross-purposes to each other. It is striking that many of the international legal scholars who incorporate ra tional international relations theory to explain international cooperation have drawn on the familiar Prisoner’s Dilemma
(PD) situation from game theory.40 The Prisoner’s Dilemma game, however, elides distributive issues. In the classic PD model, states are assumed to have a defined set of preferences and a common interest in reaching a cooperative outcome, and the primary
impediment to be overcome is the fear that other states will cheat on their agreements. In PD models, mechanisms for the monitoring of state behaviour and the sanctioning of states that violate the terms of the agreement can be created to address these concerns.
International law thus comes to the rescue to facilitate mutually beneficial outcomes. Since concerns over cheating, shirking, and slacking inhibit the production of global public goods through international cooperation, the PD model may seem appropriate. However,
the Prisoner’s Dilemma game ignores another important obstacle to successful cooperation, namely conflicts among states with different interests over the distribution of the costs and benefits of cooperation.41 When states cooperate in international politics, they
do not simply choose between ‘cooperation’ and ‘defection’, the binary choices available in PD games. They rather choose among specific terms of cooperation, which raise distributive issues.42 Different states and constituencies within them can have competing
preferences for different international rules and standards. States, and especially powerful states, thus jockey to employ different forms of international law in a world of fragmented institutions in an effort to influence the development, meaning, and impact of
international law.43 Secondly, different states and private actors benefit from the production of some global public goods more than others. Since resources are limited, they face opportunity costs when they make choices regarding the production of public goods.
They must determine not only which public goods to fund, but also how much to fund each of them.44 Distributive concerns arise in choice and budgeting decisions, given states’ and private actors’ conflicting views. Thirdly, the pursuit of different public goods can
conflict in a more direct sense. One public good may interfere with the pursuit of another. For example, choices over the generation of at least four public goods arise in the debate over the interaction of public health, pharmaceutical patent protection, human rights,
and trade policy: knowledge-generation, liberalized trade, public health, and the right to life and human dignity.45 Knowledge has public-good attributes since once knowledge enters the public domain it is no longer excludable and our consumption does not diminish
its availability.46 The central issue is how to generate knowledge that facilitates new inventions and understandings most effectively and equitably. International trade law similarly has public good attributes, since all countries benefit not only from the wider variety of
products made available at lower prices that trade liberalization facilitates, but also because they benefit from rules constraining mutually harmful beggar-thy-neighbour policies.47 Public health constitutes a third implicated public good since we all benefit from the
global eradication of diseases and we do not diminish that good when we benefit from it.48 The right to life and human dignity can be viewed as yet another affected public good to the extent that it affects our moral sensibilities.49 The production of these public
goods, however, can conflict, complicating global decision-making over the terms of international law. The recognition and enforcement of patent rights under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) and other
conventions can generate incentives for the production of knowledge and new drugs for the protection of human life. But the protection of pharmaceutical patent rights also can diminish the benefits of liberalized trade by reducing the consumption possibilities of
citizens, interfere with the provision of public health policies in containing diseases, and raise human rights concerns, as the AIDS epidemic illustrates. Moreover, mandatory vaccination policies to protect public health raise human rights concerns, especially from a
libertarian perspective, and in particular given uncertainty regarding the consequences of vaccinations. In sum, choices over global governance policies involve different values, priorities, and perspectives, considerable uncertainty, and rival public goods. As a result,
although the definition of a single global public good is one that is non-rivalrous, global public goods are collectively rivalrous because choices must be made among them, including in funding their production. Decisions over producing global public goods thus raise
the question of alternative institutional choices in light of trade-offs. 5 Alternative Institutional Choices for the Production of Global Public Goods: Global Constitutional, Administrative Law, and Legal Pluralist Approaches For the efficient production of pure private
goods we rely on (imperfect) preference revelation through the market. For the efficient production of pure public goods we rely on (imperfect) preference revelation through democratic voting. The conventional (although not sole) solution is thus to rely on the state
for the production of public goods.50 State decisions, in turn, are constrained by constitutionally provided checks and balances involving different state institutions, including democratically elected legislatures and courts which exercise judicial review of legislative and
executive decisions. For the production of global public goods, the institutional analogues are international organizations. Since centralizing decision-making within them raises serious legitimacy concerns, institutional choice poses the ultimate question for the
production of global public goods. Although economists and law and economic scholars tend to address the production of global public goods in terms of substantive effectiveness, and thus start with an assumption of what is to be measured, we first need agreement
over the goal. Priorities and goals are determined through institutional processes. Where choices among institutions affect opportunities to participate, institutional analysis is needed to focus on the relative biases of participation in alternative decision-making
processes that may define priorities and goals. Problems of biased participation beset all institutional alternatives on account of informational and resource asymmetries and divergent incentives to participate because of varying per capita stakes in outcomes. A major
challenge in relying on national institutions is that they make decisions which affect outsiders who are not represented before them. In the case of many global public goods, moreover, reliance on national decision-making raises collective action problems and free
rider concerns which undercut each nation’s ability to attain its goals. International institutions can help to overcome collective action problems, as well as to reduce bias in participation in national decision-making. However, the major challenge with international
institutions is their remoteness from affected constituencies and local contexts, raising legitimacy concerns when decision-making has distributive implications. A key issue from a public policy perspective is thus the assessment of the relative merits of institutional
​

processes, and different combinations of them, in terms of the relatively unbiased participation of affected parties compared with other (non-idealized) institutional alternatives.51 That is, who decides regarding the production of global public goods? Or, put
differently, which institutional process, among alternative political, market, and judicial processes at the national, local, regional, and international levels, should be granted how much authority to decide on the appropriate balancing of different goals in light of their
distributive implications? These institutional choices affect how different interests, directly and indirectly, are taken into account. Such an approach is decidedly pragmatist. It recognizes that there is no single best approach to producing global public goods, but rather
alternative approaches that involve trade-offs which vary in light of particular global public goods problems, and from which we can learn through practice. In current international law scholarship, three analytic frameworks compete for addressing the challenges of
global governance, and thus implicitly of the production of global public goods: constitutionalism, global administrative law, and legal pluralism. These frameworks are sometimes put forward as alternatives that better address global governance challenges; yet, for
our purposes, they are better viewed as complements that apply differentially to the types of global public goods we have discussed. These frameworks each have attributes and deficiencies that make them more suitable frameworks for some issues compared to
others. A The Global Constitutional Approach Global constitutionalism is one of legal pluralism’s chief rivals as a contemporary vision for organizing, constraining, and legitimizing international law.52 The constitutional vision of international law comes in different
varieties, but, relative to the pluralist vision, one of its major attributes is its framing international law and international institutions in constitutional terms that involves centralized international institutions,53 often involving some form of majoritarian or
supra-majoritarian decision-making. The global constitutional vision is suitable, in particular, for addressing the production of aggregate efforts global public goods. Centralized institutions operating under international law help to align national incentives and to

if climate change stabilization is to occur, centralized rules

overcome free rider problems facing the production of aggregate efforts global public goods. For example,

and institutions to oversee their application will be required, as in the case of the occurred successfully

protection of the ozone layer . Under the Montreal Protocol on Substances that Deplete the Ozone Layer, amendments to emissions limits can be made by a two-thirds vote of the parties representing at least half of
the total consumption of the parties of controlled ozone-depleting substances, if there is no consensus.54 Analogous voting arrangements will need to be developed for the international regulation of climate change mitigation that take account of those most

For global public goods challenges that pose imminent threats, existing institutions
implicated. UN , and in particular the

will need to be reformed

UN Security Council, Issues such as
and updated. The issue of UN reform was considered in the 1990s and 2000s, but remains needed to reflect today’s global context.55

asteroid collisions and climate change pose international security could even be considered within a reformed Security Council where they

risks Centralized institutions

. have become important for coordinating the monitoring of
and regulations

dangerous diseases and declaring international public health emergencies , as we saw under the WHO’s 2005 International Health

Centralized institutions
Regulation. Finally, as we have seen, even the production of best shot global public goods raises distributive concerns that centralized governance can help to address. , operating under a constitutional

can help to keep national decision-makers accountable

frame of checks and balances, in . We have seen these issues raised

decision-making over geo-engineering and asteroid deflection for national defence. As globalization and technological
advance increase the need for centralized international decision-making, a constitutional frame will become of growing importance for critically scrutinizing and checking these institutions’ exercise of power. Nonetheless, although the global constitutional vision has
certain attributes regarding the governance of centralized institutions needed to provide global public goods, these institutions face major legitimacy challenges. The production by national institutions of public goods is beset by trade-offs, ranging from bureaucratic
inefficiencies to political corruption. A vastly greater challenge at the global level is the lack of democratic processes that reveal preferences, reflecting the lack of a global demos.56 To the extent that we rely on states to represent citizens’ interests, moreover, many
states are not democratic.57 States vary considerably in terms of population, so that decision-making arguably should take into account differences in the size of states (as opposed to generally relying on consensus voting at the international level). Since international
institutions are so distant from citizens that it is difficult to conceive of democratic global institutions, we will need to re-conceive or otherwise adapt our concept of democratic checks and balances to the international level,58 and rely on other forms of accountability
mechanisms. Curiously, the existing literature on global constitutionalism has been largely silent on the issue of global public goods.59 B The Global Legal Pluralist Approach Although the concept of global public goods poses challenges for the legal pluralist vision and
its focus on decentralized processes, this approach remains extremely relevant. Among legal pluralism’s virtues is that pluralism accounts better for divergences in community values, priorities, and perspectives in light of the distributive consequences at stake in the
production of global public goods. Enumerating and deliberating over these distributive issues highlights the need for pluralism to contest centralized policies. The legal pluralist vision calls to the forefront the importance of ongoing interaction with state institutions in
order for global-public-goods governance to be accountable and effective. From an accountability perspective, the pluralist approach provides a needed check on centralized decision-making at the global level, such as for the production of aggregate efforts public
goods. From the perspective of effectiveness, international law is more likely to be implemented if it engages and takes account of state perceptions and concerns through pluralist interaction. Legal pluralists focus on the potential pathologies of centralized
institutions and the role of pluralism in checking these pathologies. Krisch shows how, in our current socio-political context, the interaction of pluralist legal orders can produce superior ordering to a constitutionalism that is based on hierarchic, centralized
decision-making, since mutual accommodation that can result from pluralist interaction will be grounded in greater legitimacy.60 Krisch illustrates, for example, how the UN Security Council reassessed and revised its procedures regarding the freezing of individuals’
assets in the ‘war on terror’ in light of due process concerns, only after states and other actors challenged and resisted implementation of its resolutions.61 Delmas-Marty demonstrates how pluralism can also lead to a unification of legal norms based on a ‘hybrid’
melding of different ‘ensembles’ of law, rather than on hegemony.62 Such a pluralist hybrid is more legitimate, in that it takes into account, and borrows from, different national legal systems. Because it is more legitimate, it is more likely to be implemented in practice
by states. Ultimately, international law depends on national implementation. Concerns over implementation are particularly salient regarding weakest link public goods. If an infectious disease is to be eradicated, for example, then capacity must be built in a weakest
link state. Otherwise, centralized decision-making will be ineffective. Weakest link global public goods highlight the need for pluralist interaction with states having meaningful capacity to engage with policies, such as disease eradication. Take, for example, the
distribution of antiretroviral drugs to combat the AIDS crisis. Their effective use for constraining the epidemic’s ravages are enhanced where developing countries have the capacity to provide meaningful input to tailor policies and to carry out such tailored
programmes effectively. C The Global Administrative Law Approach The global administrative law approach helps to address the deficiencies of the global constitutional vision through providing other accountability mechanisms, derived from national administrative
law, which can be used to check centralized international decision-making.63 As national governments grew during the twentieth century in response to the growing complexity of national public goods challenges, legislatures delegated increasing powers to agencies.
States correspondingly developed administrative law accountability mechanisms to apply to agencies, given that legislatures were unable to oversee them sufficiently. International institutions can be viewed analogously to national government agencies, in that both
involve a delegation of power to an unelected body. The accountability mechanisms highlighted by the global administrative law pro ject are pragmatically useful for governing the production of global public goods. They include transparency and access to
information; engagement with civil society and with national parliaments; monitoring, inspection, reporting, and notice and comment procedures; reason-giving requirements; substantive standards, such as proportionality, that must be met; and judicial review.64
These accountability mechanisms can be developed through international treaties, such as under the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters,65 and through national and
international judicial decisions. Decision-making within international institutions must be overseen, in particular, through private groups placing pressure on public representatives. Making international decision-making more transparent facilitates such processes. To
give one example of the usefulness of the global administrative law framework in the context of global public health, the WHO is increasingly engaging in public–private partnerships for innovative drug development because of the challenges of obtaining sufficient
public financing.66 These partnerships raise conflicts-of-interest concerns that a global administrative law model can help to address through transparency and other administrative law mechanisms. The global administrative law model also offers the advantage of
being applicable to national decision-making over the production of global public goods, thus providing checks on decentralization under a legal pluralist model. As we have seen, the deployment of best shot global public goods, such as technologies for asteroid
deflection and climate engineering, may not require an international institution. Yet, the externalities involved in their deployment by states calls for accountability checks. Such national decision-making can be subject to due process requirements and to monitoring
and review before international administrative bodies and courts. The WTO Shrimp–Turtle case provides an excellent example. The US exercised unilateral action to help preserve an endangered species on the high seas (a global public good). Its efforts, however, had
significant implications for developing countries and their traders. The WTO Appellate Body successfully pressed the US to change its administrative law procedures better to assure due process review of the situations and concerns of these countries and their
traders.67 Nonetheless, despite its many attributes, the global administrative law approach is rather technocratic and thus lacks ambition regarding larger scale questions of governance requiring political decision-making for the production of global public goods. Each
of these three leading analytic frameworks for assessing law’s role in global governance focuses in a different way on the issues of accountability and legitimacy. Their relative attributes can be assessed in relation to different global public goods. For the production of
aggregate efforts public goods where more centralization is needed, the legal pluralist vision is particularly insufficient. The global constitutionalist perspective, which legal pluralists have criticized, offers a complementary frame for building and critically scrutinizing
centralized international institutions to which important secondary rule-making powers are delegated in light of imminent global public goods challenges, such as over international security and climate change. The global administrative law project has been
particularly important in providing practical tools drawn from domestic administrative law for enhancing the accountability of decision-making in the production of global public goods, whether at the international or at the national level. The case of best shot public
goods, for example, illustrates concerns regarding decision-making at the national level. Finally, the challenges of weakest link public goods highlight the need for ongoing interaction between centralized entities and nation states if international law and policy are to
be implemented effectively. Each approach, in short, has attributes and deficiencies, involving trade-offs and potential complementarities. They should be viewed in comparative institutional analytic terms in relation to different global public goods challenges. Table 2
summarizes our discussion.68 Although these analytic approaches are sometimes advanced as alternatives, they play important complementary roles for enhancing the legitimacy of the international institutions that we need to produce different types of global
public goods. 6 International Law as Facilitator of, and Potential Constraint on, the Production of Global Public Goods Law (in general) and international law (in particular) can be viewed as a public good in providing for order and stability.69 Law (in general) and

international law can be viewed as an intermediate public good that facilitates the
(in particular) also

production of final substantive public goods – such as the avoidance of ozone depletion, the
provision of a stable climate through mitigation and geoengineering, financial stability, and
peace between nations. International law and institutions overcome collective action and
70 help to

free rider problems. They facilitate interaction that can produce shared understandings and
common purposes. And they manage the frictions between pluralist legal orders that govern
help to

different public goods . In this way, international law helps to provide for public order. However, international law, in its prescriptive and proscriptive forms, can also constrain the production of global public goods. It may do so by
creating positive or negative obligations that interfere with their production. Some contend, for example, that the positive obligations under the WTO TRIPs Agreement and other international intellectual property conventions reduce the supply of knowledge and
constrain the protection of public health.71 Others contend that the negative obligations provided in other WTO agreements could constrain needed national action on climate change, such as through carbon taxes, an emissions-trading system, or a product ‘life cycle’
labelling regime.72 To the extent that decisions under the Convention on Biodiversity limit research on geoengineering, they too are suspect.73 Unilateral action is problematic because it can be self-serving and fail to take account of the values and perspectives of
affected others. Yet unilateral action may also be an important part of a broader transnational process leading to the production of a global public good over time. In a world of interacting legal orders, certain actors will have to act, sometimes unilaterally, to catalyse
international and global action. These actors most likely will exercise some form of power, such as market power wielded by the US and EU. To advance climate change policies globally, the US or EU may need to take unilateral action by creating its own internal system
and then imposing some form of a border tax adjustment or penalty applied to applicable imports and cross-border services from countries that do not have a remediation system of comparable effectiveness.74 In a world without centralization and hierarchy, there
will often be a need for unilateral action to spur the production of global public goods by inciting reactions and interactions which lead to the emergence of international law and international institutions to govern conflicts and maintain order. In practice,
unilateralism may help to produce a global public good where common action fails, especially in light of opt-in rules under international treaties. Although international law can help to produce global public goods, it also can get in the way of their production. The
possibility of unilateral action is not available to all, and the results often reflect biases. For example, John Yoo has written of global security as a public good which is not provided by global institutions in order to justify US intervention in Iraq and other unilateral
policies.75 The example of Iraq makes clear the need for some form of international constraint on unilateral action so that a nation must justify its acts and take into account their impact on others. The WTO provides such a possibility in the area of regulation. It
creates constraints and has a mandatory dispute settlement system to hear legal complaints, backed by sanctions. Its dispute settlement system can press a country to negotiate in good faith with third countries and create internal administrative law mechanisms in
which non-citizens’ interests are heard. These constraints are less binding in other areas, such as international security, as represented by the US invasion of Iraq, NATO’s intervention in Kosovo, and US missile and drone attacks in the territories of other states. In sum,
international law represents an important ‘constraint on the unilateral definition of a global public good’.76 The stringency of this constraint, however, should vary in light of the objective at stake, the effectiveness of a multilateral alternative, and the possibility that
the national measure can take better account of its implications on outsiders in an unbiased manner. There are thus compelling reasons to refocus attention from public international law to processes of transnational legal ordering in which international law is one

Globalization pressures transform issues that formerly were national in

element in a broader interactive process. 7 Conclusion

scope into global ones. With globalization, national decision-making increasingly has
externalities on outsiders, and it is increasingly insufficient to attain national goals. International
​

law and institutions thus rise in importance . Choices over the terms of international law, however, have distributive consequences, and the choice among global public goods and their funding
involves rivalry. As a result, the key normative question becomes a comparative institutional one: that is, under what conditions are more or less centralization and hierarchy preferable? While the choice among alternatives may be complicated at the national level,
the choice becomes much more so at the international level where problems of numbers and complexity multiply. The global public goods framework helps us to see both the attributes and limits of a legal pluralist approach toward international law and institutions.
Legal pluralism’s starting assumption is about the need for communities to have a voice in shaping their own destinies. It thus distrusts order imposed by hierarchical, centralized institutional authority. The starting assumption for the production of many global public
goods, in contrast, is the need for collective action to cooperate for common benefits. These starting points create a tension. There are risks of too much comfort with the legal pluralist framework as an organizing concept for the production of global public goods. But
there are parallel risks with legitimizing centralized international decision-making without global democratic checks. Comparative institutional analysis is thus required which is tailored to the particular challenges raised by the production of different global public

International law will play a critical role by facilitating the creation, maintenance, oversight,
goods.

and constraint of centralized international institutions, and the monitoring and review of
national institutions, in relation to decision-making implicating the production of global public
goods in different contexts. Given the varying contexts of different global public goods, there is no single best, universalist approach. Rather, a pragmatic approach is required in relation to different types of public goods and real world institutional limits.
These strategies must include greater international centralization (for which constitutional principles are needed), multi-level institutional interaction (highlighting the key role of pluralism), and hybrids that include public–private partnerships (for which administrative
law principles are required).
​

Environment

Adapting international law to new forms of warfare solves Bio-d and pollution
Ted Piccone 17, Nonresident Senior Fellow, Security and Strategy - Foreign Policy, 4/12/17,
“Why international law serves U.S. national interests”,
https://www.brookings.edu/research/why-international-law-serves-u-s-national-interests/

Now, with over 560 major multilateral instruments deposited with the United Nations alone,
citizens around the world benefit every day from rules their governments have adopted
conjointly with each other. These agreements, as the American Society of International Law has
documented, enable worldwide telecommunications and postal networks; universal recognition
of time standards; improved weather forecasting; stronger safety standards for automobiles,
airplanes, and ships; sharing of information about the origin of our food and other products;
protection of software, literary, and artistic works; and preservation of cultural heritage sites
and endangered species, to name a few.[1] With the adoption of international human rights
treaties after World War II, these rules expanded to protect people from torture and other forms
of inhumane treatment; promote equal protection for women and children, including for
adopted children and those caught in custody disputes; and facilitate pursuit of war criminals,
terrorists, human smugglers, and drug traffickers. Agreements to protect the public and the
environment from chlorofluorocarbons (CFCs) and other harmful pollutants are among some of
the more effective binding instruments of modern international law. Despite these and many other obvious benefits from international law, the
political culture of the United States has turned markedly sour when it comes to ratifying treaties that demonstrably serve its national interests. Two recent examples immediately come to mind: The U.N. Convention on the Rights of Persons with Disabilities, which is
modeled on the Americans with Disabilities Act of 1990 and would protect disabled Americans when traveling overseas, was denied Senate ratification in 2012 based on spurious charges it would impinge on home schooling.[2] Similarly, the U.N. Convention on the
Law of the Sea, endorsed by senior U.S. military, defense, business, and environmental leaders as a key instrument for protecting U.S. interests in safe passage for its vessels and in its 200-nautical-mile exclusive economic zone, was blocked by 34 Republican senators
in 2012 on grounds it would, inter alia, bind the United States to third party arbitration.[3] Meanwhile, China and others are shaping the rules and practices of the treaty body that regulates exploitation of seabed resources without Washington having a seat at the
table. Such pro-sovereignty sentiments are now the dominant view in the White House and most of the Republican-controlled Congress. That is likely to spell further trouble for preserving U.S. leadership of an international order which has overwhelmingly served
U.S. interests in a coherent system of rules and customs that has given us 70 years free of direct major power conflict and impressive economic prosperity. The Justice Stephen Breyer Lecture series on international law, formally established in 2014 in partnership
with the Netherlands Foreign Ministry, the mayor of The Hague, and The Hague Institute for Global Justice, was created to help policymakers on both sides of the Atlantic think about new challenges to international law and order. It would be fair to say that when our
cooperation on this initiative began in 2013, we did not imagine that the pendulum swing against the underpinnings of the international order would advance as far and as fast as it has in the last year. Core beliefs and lessons learned from the 20th century are up for
grabs around the world, including on both sides of the Atlantic, at least judging from current political discourse favoring nationalism over “globalism.” A trans-Atlantic approach, therefore, is particularly timely and relevant. A trans-Atlantic perspective is also
valuable as an intellectual endeavor because Europeans and Americans come from different historical perspectives, a point James Madison made in 1792: “The [U.S.] Constitution is a charter of power granted by liberty,” not, as in Europe, “a charter of
liberty…granted by power.”[4] The Declaration of Independence’s reference to “a decent respect to the opinions of mankind” was an early indication, however, that America’s founding fathers felt an obligation to consider the views of others, even its former colonial
masters, in matters of law and justice. Justice Breyer, “the great transnationalist judge of our age,” has taken up that charge in the modern era, following in the tradition of Chief Justices John Marshall and John Jay.[5] Since then, trans-Atlantic jurisprudence has
largely converged around some fundamental principles based on national constitutions, the United Nations Charter, and institutions founded after World War II—“shared public norms with similar meanings in every national system of the world,” as Professor Harold
Koh puts it. But meaningful differences remain and often revolve around the limits to which citizens and their representatives are prepared to cede traditional sovereignty to an international body. The European Union, for example, is wrestling mightily with both the
benefits and costs of “pooled sovereignty.” While the United States may be a laggard when it comes to adopting certain treaties, it is not immune from the judicial and legislative decisions of other countries, as Justice Breyer himself explained so well in his inaugural
lecture at Brookings. In a quickly changing world, he said, “we better learn what is going on elsewhere because that affects directly what we do at the Supreme Court. In a word, understanding and referring to what is happening abroad is often the best way to
preserve our American values,”[6] particularly our faith in the rule of law for ourselves and in our relations with others. Justice Breyer’s analysis of five areas in which the development of law in other parts of the world has a direct effect on U.S. judicial
decisionmaking includes matters highly relevant to public debates today, from protecting civil liberties from executive overreach to determining the application of World Trade Organization rules and decisions to U.S. domestic law. Under a Trump White House and
Republican-controlled Congress clamoring to put America first, these issues are bound to be fiercely contested in the months ahead.

One area of international law that is not contested, at least not by the United States, is the strict
prohibition against the production, stockpiling, and use of chemical weapons and their
precursors, as set forth in the U.N. Chemical Weapons Convention (CWC).[7] Ratified in 1997 by
the U.S. Senate after intense debate, the CWC and its implementation arm, the Organization for
the Prohibition of Chemical Weapons (OPCW), headquartered in The Hague, is the only legally
binding instrument to ban comprehensively an entire class of weapons of mass destruction
under international verification. More importantly, it has established a process in which the vast
majority of states have declared their chemical weapons stockpiles for the purpose of their
destruction under international monitoring. The United States and Russia, which hold the largest
amount of such weapons, have committed to destroy their holdings completely by December
2020 and September 2023, respectively. The task of ridding the world of these reprehensible
weapons will not be complete, however, until states outside the convention, like North Korea,
are brought to heel. Even more challenging, as OPCW Director General Ahmet Üzümcü warned
in his remarks at Brookings in April 2015, is stopping terrorists and other rogue actors from using
​

chemical weapons to attack U.S. troops and innocent civilians, as seen in Iraq and Syria in
2016.[8]

In addition to the overwhelming international consensus to stop the use of chemical weapons,
recent events in Syria have demonstrated the operational value of such binding commitments.
After reports of chemical weapons attacks against Syrians were tragically confirmed in August
2013 when an estimated 1,500 people died from a sarin nerve gas attack in Ghouta, the treaty
was quickly put to work. In short order, a U.N. investigation confirmed the use of chemical
weapons, Syria submitted its instrument of accession to the CWC, and Russia and the United
States agreed on a framework for the elimination of the Bashar Assad regime’s chemical
weapons program. The OPCW then fast-tracked approval of a plan to eliminate the weapons,
which the Security Council endorsed the same day.[9] Three days later, OPCW experts were on
the ground in Damascus to help verify Syria’s stockpile of approximately 1,300 metric tons of
chemical weapons and oversee their destruction. As further elaborated by Director General
Üzümcüin his speech at Brookings, a remarkable multilateral response involving contributions
from 35 OPCW member states led ultimately to the removal and destruction of all of Syria’s
declared chemical weapons by January 2016.

Unfortunately, the story does not end there. Reports of new attacks in Syria, this time with
chlorine agents, emerged in 2015 and led to further U.N. investigations, spurring additional U.N.
Security Council proposals by the United States and others to hold perpetrators accountable.
This time, however, U.S.-Russia cooperation had evaporated, leading to a joint Russia-China veto
of a U.N. Security Council resolution in February 2017 that would have imposed sanctions under
Chapter VII of the U.N. Charter on Syrian government officials and entities linked to chemical
weapons attacks; placed an embargo on arms sales and chemicals intended to be used as
weapons; and established a mechanism to monitor implementation.[10]

The lessons learned from the Syria case about the realities of international law and politics are
manifold: (1) establish clear rules of the road and mechanisms for implementation before a crisis
hits; (2) move quickly on windows of opportunity when they arise; and (3) fortify the political
will among major powers to ensure concrete action.[11] The CWC worked well when all three
factors were present, and fell short when the third element dried up. Consensus broke down in
part because of the demand for punishment of specific government officials and agencies, a step
apparently too far for Syria’s chief defenders on the Security Council. On balance, the CWC and
its quick implementation in the Syria case certainly advanced U.S. national security interests in
containing the spread of chemical weapons in a volatile part of the world. But the current lack of
accountability for blatant violations raises serious questions about the deterrent value of the
instrument.

While chemical weapons were prevalent over a century ago, new forms of warfare are emerging
that test the boundaries of national and international laws rooted in core principles of necessity,
proportionality, reciprocity, and human rights. The absence of specific rules that govern the use
of new technologies like armed drones and offensive cyber weapons requires policymakers and
lawyers, in Harold Koh’s view, to “translate what Montesquieu called ‘the spirit of the laws’ to
present day situations,” at least until paralyzed legislatures are able to write new laws.[12]
Under the administration of President Obama, decisionmakers looked both to international and
​

U.S. law for proper authority and guidance on how to engage in non-traditional armed conflict
between a state and a transnational terrorist network like al-Qaida. These rules included
humane treatment of combatants and noncombatants,[13] as well as the strict prohibition of
torture in all places and at all times with no exceptions.[14] Targeted killings were considered
permissible if in accordance with international humanitarian law (e.g., in situations of imminent
threat, an act of self-defense, or an armed conflict where a combatant has no immunity), if the
action was authorized under domestic and international law, and if the target’s rights have been
considered and sovereignty of the relevant nation respected.
​

AT: UN Failing
The impact is linear---current UN is better than complete dissolution.
Dr Shashi Tharoor 2/27/22. Third-term MP for Thiruvananthapuram. "Russia-Ukraine War:
Even a Weak United Nations is Better Than No United Nations". TheQuint. 2-27-2022.
https://www.thequint.com/voices/opinion/russia-ukraine-war-even-a-weak-united-nations-is-be
tter-than-no-united-nations-vladimir-putin-zelenskyy

UN is Both a Stage and an Actor

The UN works best when its member states on the Security Council can agree on an issue, and deploy
the human, material and military resources needed to address it. When the political will for agreement is absent, and worse, when
the superpowers are divided, the UN cannot act.

It is still a useful forum for states to vent their opinions and frustrations on issues, as the debate
on Ukraine demonstrated. The US went ahead with its Security Council resolution knowing full well that it would be vetoed,
knowing that the debate would reveal the principles and stake and show up Russia’s relative isolation in the world.

Indeed, though three states, including India, abstained, no one voted alongside Russia against the resolution. The
“demonstration effect” served a purpose too.

Let’s not forget the

UN is both a stage and an actor. It is a stage for its member states to declaim
their differences and celebrate their convergences; and it is an actor, in the shape of its Secretary-General, its
various agencies and its peace-keeping forces, to execute what those member states agree upon.

UN's Limitations Need to be Understood with an Open Mind

Some Secretaries-General are able to rise above the status of “international civil servant” to command a moral presence on the
world stage. Dag Hammarskjold and Kofi Annan, both Nobel laureates, are examples.

Annan was even described as a “secular Pope”. When they spoke, the world listened.

The current Secretary-General, Antonio Guterres, a well-meaning former Portuguese Prime Minister, resorted to the pulpit himself
when he appealed to Russia “in the name of humanity” to stop its invasion. But the limits of moral suasion were apparent in the way
his appeal went unheeded, and without response.

At the height of the Cold War during the 1950s, Hammarskjold was asked about the limitations of the organisation, and replied
pithily: “the
United Nations was not created to take mankind to heaven, but rather, to save
humanity from hell.”
His point was clear: one should not seek perfection from an institution of member states which would always be, more or less, the
sum of its parts. But an imperfect United Nations was better than none at all.
Let's Be Grateful for the UN We Have

The long-serving Soviet Ambassador to the UN in the 1960s, Yakov Malik, famously said that people dismissing the
UN as an ineffective body reminded him of an old story about Adam and Eve in the Garden of Eden. Adam, he
said, found that Eve was being indifferent to him; so he asked her, “Eve, is there someone else?”

That’s the point about the UN – is

there anything else? It may be helpless and hopeless sometimes, but it
is the only global platform where every government in the world can come together to discuss
issues and policies, raise global consciousness and when possible, agree on meaningful action.
​

If the United Nations did not exist, today’s divided world would be incapable of inventing it. Let’s
be grateful for the UN we have. We’d be much worse off without it.
​

AT: Norm Violations

Norms delay and prevent violation.
Henry Farrell and Charles L. Glaser 17. George Washington University. "role of effects,
saliencies and norms in US Cyberwar doctrine". OUP Academic. 3-31-2017.
https://academic.oup.com/cybersecurity/article/3/1/7/3074707#64534665

Another possible criticism is that states often violate norms and specifically that they have often
violated the norms against harming non-combatants. Hence, one might argue that norms are effectively
worthless. However, in wars of attrition, states have often not violated the norm against targeting
civilians until late in the war, and violate the norm out of determination or even desperation to win [40]. If the same
logic applied to cyber war, then a norm against counter-infrastructure attacks could contribute to delaying
these attacks and possibly thereby avoiding them.
​

General

International legalistic order is good

Andrea Kendall-Taylor 16. Deputy National Intelligence officer for Russia and Eurasia at the
National Intelligence Council, adjunct professor in political science at Georgetown and American
Universities, Ph.D. in political science from the University of California, Los Angeles, Senior
Associate for the Human Rights Initiative at the Center for Strategic & International Studies.
“How Democracy’s Decline Would Undermine the International Order” CSIS. 7/15/16.
https://www.csis.org/analysis/how-democracy%E2%80%99s-decline-would-undermine-internati
onal-order

It is rare that policymakers,

analysts, and academics agree. But there is an emerging consensus in the
world of foreign policy: threats to the stability of the current international order are rising. The norms,
values, laws, and institutions that have undergirded the international system and governed relationships
between nations are being gradually dismantled. The most discussed sources of this pressure are the ascent of China and
other non-Western countries, Russia’s assertive foreign policy, and the diffusion of power from traditional nation-states to nonstate
actors, such as nongovernmental organizations, multinational corporations, and technology-empowered individuals. Largely
missing from these discussions, however, is the specter of widespread democratic decline. Rising
challenges to democratic governance across the globe are a major strain on the international system,
but they receive far less attention in discussions of the shifting world order. In the 70 years since the end
of World War II, the United States has fostered a global order dominated by states that are liberal,
capitalist, and democratic. The United States has promoted the spread of democracy to strengthen
global norms and rules that constitute the foundation of our current international system. However,
despite the steady rise of democracy since the end of the Cold War, over the last 10 years we have seen
dramatic reversals in respect for democratic principles across the globe. A 2015 Freedom House report stated that
the “acceptance of democracy as the world’s dominant form of government—and of an
international system built on democratic ideals—is under greater threat than at any point in the
last 25 years.” Although the number of democracies in the world is at an all-time high, there are a number of key trends that are
working to undermine democracy. The rollback of democracy in a few influential states or even in a number of less
consequential ones would almost certainly accelerate meaningful changes in today’s global order.
Democratic decline would weaken U.S. partnerships and erode an important foundation for U.S.
cooperation abroad. Research demonstrates that domestic politics are a key determinant of the international behavior of
states. In particular, democracies are more likely to form alliances and cooperate more fully with other
democracies than with autocracies. Similarly, authoritarian countries have established mechanisms for cooperation and
sharing of “worst practices.” An increase in authoritarian countries, then, would provide a broader platform
for coordination that could enable these countries to overcome their divergent histories, values, and
interests—factors that are frequently cited as obstacles to the formation of a cohesive challenge to the U.S.-led
international system. Recent examples support the empirical data. Democratic backsliding in
Hungary and the hardening of Egypt’s autocracy under Abdel Fattah el-Sisi have led to enhanced relations
between these countries and Russia. Likewise, democratic decline in Bangladesh has led Sheikh Hasina Wazed and her
ruling Awami League to seek closer relations with China and Russia, in part to mitigate Western pressure and bolster the regime’s
domestic standing. Although none of these burgeoning relationships has developed into a highly unified partnership, democratic
backsliding in these countries has provided a basis for cooperation where it did not previously exist. And
while the United States certainly finds common cause with authoritarian partners on specific issues,
​

the depth and reliability of such cooperation is limited. Consequently, further democratic decline could
seriously compromise the United States’ ability to form the kinds of deep partnerships that will be required
to confront today’s increasingly complex challenges. Global issues such as climate change,
migration, and violent extremism demand the coordination and cooperation that democratic
backsliding would put in peril. Put simply, the United States is a less effective and influential actor if it
loses its ability to rely on its partnerships with other democratic nations. A slide toward authoritarianism
could also challenge the current global order by diluting U.S. influence in critical international
institutions, including the United Nations, the World Bank, and the International Monetary Fund (IMF). Democratic
decline would weaken Western efforts within these institutions to advance issues such as Internet freedom and the responsibility to
protect. In the case of Internet governance, for example, Western democracies support an open, largely private, global Internet.
Autocracies, in contrast, promote state control over the Internet, including laws and other mechanisms that
facilitate their ability to censor and persecute dissidents. Already many autocracies, including Belarus, China, Iran, and Zimbabwe,
have coalesced in the “Likeminded Group of Developing Countries” within the United Nations to advocate their interests. Within
the IMF and World Bank, autocracies—along with other developing nations—seek to water down conditionality
or the reforms that lenders require in exchange for financial support. If successful, diminished conditionality would
enfeeble an important incentive for governance reforms. In a more extreme scenario, the rising influence of autocracies
could enable these countries to bypass the IMF and World Bank all together. For example, the
Chinese-created Asian Infrastructure and Investment Bank and the BRICS Bank—which includes
Russia, China, and an increasingly authoritarian South Africa—provide countries with the potential
to bypass existing global financial institutions when it suits their interests. Authoritarian-led alternatives pose the risk
that global economic governance will become fragmented and less effective. Violence and
instability would also likely increase if more democracies give way to autocracy. International relations
literature tells us that democracies are less likely to fight wars against other democracies, suggesting
that interstate wars would rise as the number of democracies declines. Moreover, within countries
that are already autocratic, additional movement away from democracy, or an “authoritarian
hardening,” would increase global instability. Highly repressive autocracies are the most likely to
experience state failure, as was the case in the Central African Republic, Libya, Somalia, Syria, and Yemen. In this way,
democratic decline would significantly strain the international order because rising levels of instability would exceed the
West’s ability to respond to the tremendous costs of peacekeeping, humanitarian assistance, and refugee
flows. Finally, widespread democratic decline would contribute to rising anti-U.S. sentiment that
could fuel a global order that is increasingly antagonistic to the United States and its values. Most autocracies
are highly suspicious of U.S. intentions and view the creation of an external enemy as an effective means for boosting
their own public support. Russian president Vladimir Putin, Venezuelan president Nicolas Maduro, and Bolivian president Evo
Morales regularly accuse the United States of fomenting instability and supporting regime change. This vilification
of the
United States is a convenient way of distracting their publics from regime shortcomings and fostering
public support for strongman tactics. Since 9/11, and particularly in the wake of the Arab Spring, Western
enthusiasm for democracy support has waned. Rising levels of instability, including in Ukraine and
the Middle East, fragile governance in Afghanistan and Iraq, and sustained threats from terrorist groups
such as ISIL have increased Western focus on security and stability. U.S. preoccupation with
intelligence sharing, basing and overflight rights, along with the perception that autocracy equates with stability, are
trumping democracy and human rights considerations. While rising levels of global instability explain part of
Washington’s shift from an historical commitment to democracy, the nature of the policy process itself is a less appreciated factor.
Policy discussions tend to occur on a country-by-country basis—leading to choices that weigh the costs and benefits of democracy
support within the confines of a single country. From this perspective, the benefits of counterterrorism cooperation or access to
natural resources are regularly judged to outweigh the perceived costs of supporting human rights. A serious problem arises,
however, when this process is replicated across countries. The bilateral focus rarely incorporates the risks to the
​

U.S.-led global order that arise from widespread democratic decline across multiple countries. Many of the threats
to the current global order, such as China’s rise or the diffusion of power, are driven by factors that the United States and West more
generally have little leverage to influence or control. Democracy, however, is
an area where Western actions can
affect outcomes. Factoring in the risks that arise from a global democratic decline into policy discussions is
a vital step to building a comprehensive approach to democracy support. Bringing this perspective to the table
may not lead to dramatic shifts in foreign policy, but it would ensure that we are having the right conversation.
​

Blocks for:Useless/Hasn’t Done Anything

ICC has produced many benefits other than trials

Sigall Horovitz, Gilad Noam, Yuval Shany, 2014, Assessing the Effectiveness of International Courts,
2014, Print ISBN-13: 9780199643295. Horovitz -- University of Haifa, Faculty of Law, Post-Doc. Studies
International Law, Transitional Justice, and International Criminal Law. Noam -- a LLD candidate
(doctorate in law) at the Hebrew University of Jerusalem. Hersch Lauterpacht Chair in Public International
Law and Dean. Hebrew University, p. 224

The ICC has been in existence for just over a decade, with active investigations starting
only in mid 2004. Its first trial began in early 2009, and at the time of writing, only two
trial judgments have been issued (both are currently under appeal). Still, the ICC has also
issued important prosecutorial and interim judicial decisions and arrest warrants,
undertaken extensive investigative activities, interacted with national authorities, held
on-site visits, established witness protection schemes, conducted outreach programs, and
supported education and capacity-building initiatives. Moreover, the mere existence of
the ICC seems to have already affected the conduct of international affairs.

ICC has secured positive outcomes

Sigall Horovitz, Gilad Noam, Yuval Shany, 2014, Assessing the Effectiveness of International Courts,
2014, Print ISBN-13: 9780199643295. Horovitz -- University of Haifa, Faculty of Law, Post-Doc. Studies
International Law, Transitional Justice, and International Criminal Law. Noam -- a LLD candidate
(doctorate in law) at the Hebrew University of Jerusalem. Hersch Lauterpacht Chair in Public International
Law and Dean. Hebrew University, p. 250-1

The literature about the ICC includes very few empirical studies about the
Court’s actual outcomes. One exception is a recent study undertaken by the
Project on the Impact of International Courts on Domestic Criminal
Procedures in Mass Atrocity Cases (DOMAC Project) (in which the authors
were involved), which examined the impact of international criminal
tribunals on domestic atrocity proceedings in the countries in which
international crimes were committee. Of the ten countries examined in the
DOMAC study, four were subject to ICC proceedings or preliminary
examination of a situation: the DRC, Uganda, Sudan, and Colombia. The
study demonstrated that ICC outputs, as well as some of the Court’s
structural and procedural features, may have led to significant outcomes
particularly in states subject to ICC proceedings. For example, the ICC’s
investigations combined with its outreach programs and interactions with
officials in Uganda (outputs) raised local awareness to the need to establish
accountability for atrocities, which seems to be, in turn, one of the factors
that led to the creation of a International Crimes Division in the High Court
​

of Uganda in 2008, the initiation of the country’s first ever war-crimes

investigation in 2009 (in the case against LRA commander Thomas
Kwoyelo), and the introduction of the national ICC Act of 2010. While these
outcomes were also the result of the shift in Ugandan policies on
accountability, that very paradigmatic shift was in itself encouraged (at least
in part) by the above-mentioned ICC outputs. Hence, we may conclude that
ICC outputs played a role in encouraging certain outcomes in Uganda that
correspond to several ICC goals—in particular, norm support and regime
legitimization.

Other ICC outputs that advance outcomes corresponding to the Court’s goal
of encouraging national trials include technical assistance offered by the
OTP to actors engaged in judicial reforms in conflict and post-conflict
countries. For example, the OTP assisted the EU-led “Rejusco” program that
rehabilitated the justice system in the eastern DRC and enabled criminal
trials to take place there (including trials addressing war-related atrocities).
This, in turn, promoted norm-internalization and ending impunity in the
Congolese context.

Surveys of domestic implementation of the Statute may also provide us with

valuable information about ICC goal attainment, as amendment of penal
laws by state parties is indicative of norm-internalization leading to
deterrence and reduced impunity.146 (Such surveys often ignore, however, the
question of whether the domestic legislation was applied in practice.) For
example, the existence of domestic laws criminalizing genocide, war crimes,
and crimes against humanity would likely promote greater compliance with
ICL than would have taken place in absence of such domestic laws.
Extensive engagement with ICL by domestic legal systems can also
contribute to the attainment of other ICC ultimate ends, such as norm
support, regime legitimization, and regime support.

The impact of the Court’s norms is particularly significant in states subject

to ICC proceedings. For example, a study conducted in 2009 by the NGO
Avocats Sans Frontières shows that national military courts in the DRC
directly applied the Statute’s definitions of crimes and sentencing provisions
with a view to improving the quality of their judgments. Although the ICC
did not actively encourage the DRC military courts to apply its norms, it
stands to reason that the ICC’s involvement in the DRC (including through
outreach activities and other interactions with local stakeholders) created a
certain environment of readiness and awareness in which local courts were
​

inclined to refer to ICC norms.148 Another possible example of a normative

impact can be found in the situation of Colombia, where the ICC norm of
complementarity encouraged national criminal proceedings to apply certain
ICL norms to civil war atrocities (an outcome that corresponds with an ICC
goal).

Interestingly enough, even in a non-cooperative country such as Sudan, the

ICC’s involvement contributed to an increased national awareness of the
need to create a national infrastructure that could facilitate atrocity
prosecutions (even if only relating to the ICC’s investigation into events in
Darfur).150 Consequently, Sudan enacted laws and created institutions
enabling the prosecution of atrocities. In particular, national laws were
amended to cover international crimes, a Special Prosecutor was appointed
to investigate crimes in Darfur, and three Special Courts for Darfur were
established. In other words, the desire to “fend off” the ICC has led the
Sudanese government to create legal norms and institutions that could
facilitate national atrocity-related prosecutions. In addition, the significant
pressure imposed by the African Union (AU) on Sudan to establish
accountability for the atrocities in Darfur is attributable, at least in part, to
the ICC’s involvement therein. Even if no serious proceedings have yet
taken place in Sudan, the new laws and institutions created there may
actually be used one day for their declared purpose of prosecuting atrocities.

While legal developments in the DRC, Uganda, Colombia, and Sudan may
have also been encouraged by other variables (such as public pressure and
development aid), the DOMAC Project suggested that they would not have
transpired had it not been for the involvement of the ICC. We accordingly
regard these as ICC outcomes. Such outcomes correspond to several ICC
goals, including peace enhancement, deterrence, ICL compliance, regime
legitimating, encouragement of local proceedings, and victim satisfaction.
Through the domestic legal outcomes generated by the ICC, the Court may
continue to influence ICL application long after it terminates its involvement
in the country in question.152 Still, the said outcomes have presented
themselves to date only in certain contexts and with respect to specific
country situations. Thus, they may not tell us much about whether the ICC is
effective overall.

An additional set of ICC outputs that could yield relevant outcomes is found
in the field of victim participation and reparation schemes. To date, the ICC
has allowed thousands of victims to participate in court proceedings, by
​

voicing their views and concerns (through their legal representatives),

calling expert witnesses, presenting their own evidence, submitting written
motions, etc.The effects of these measures have not been scientifically
assessed, but it has been argued that “victim participation would bring the
Court ‘closer to the persons who have suffered atrocities’ and, thus, increase
the likelihood that victims would be satisfied that justice was done.”

Victim participation can also have a restorative effect on the victims

themselves and their communities, helping them regain their dignity and
achieve a sense of closure and allowing them to put the past behind them
and build a new future. Such a restorative outcome appears to correspond
with the ICC’s peace promoting goal. At the same time, victim participation
may significantly lengthen the proceedings, risking violating the accused’s
rights to a speedy trial; it may also place the accused in the seemingly unfair
predicament of having to face two sets of accusers—the prosecution and the
victims. Consequently, widespread victim participation may generate
significant cost-effectiveness problems and detract from the image of
procedural fairness that the ICC attempts to project. Such a practice may
thus weaken the perceived legitimacy of the Court in the eyes of some
observers. To conclude, ICC norms (including complementarity) and judicial
outputs have encouraged legal and institutional developments in certain
states because they joined the Statute and/or because they sought to shield
their nationals from ICC proceedings. Notably, in cases where legal reforms
were adopted by an ICC state party, such a development usually resulted
from that state’s own sense of commitment to the ICL regime, as the Statute
does not obligate its members to implement the Statute domestically (it only
requires them to cooperate with the ICC). To date, the ICC’s impact on states
that have not joined the Statute and that are not subject to ICC proceedings
has received very limited scholarly attention.

Despite limitations, ICC developing and making progress

LEILA NADYA SADAT, Washington University School of Law , 2012, American

Journal of International Law, July The International Criminal Court: A
Commentary on the Rome Statute, p. 708-9

In the summer of 1998, 165 countries and at least 250 nongovernmental

organizations convened in Rome to negotiate a treaty to establish a permanent
international criminal court. Against all odds, they did so, and the Statute for the
International Criminal Court (Rome Statute) was adopted. Less than four years
later, that treaty had acquired the necessary 60 ratifications to enter into force, and
​

the International Criminal Court (ICC) could begin its work. As of this writing,
this fledgling international institution has 121 states parties and is addressing
crimes committed in 7 countries, with the prosecutor closely following situations
in 8 others. The ICC has faced many major challenges in its early years, including
punishment from the United States, anger from many African leaders, and
indifference from many of those that it counted as supporters. Yet at the most
recent meeting of the ICC's Assembly of States Parties in New York, at which it
elected the second chief prosecutor and six new judges in December 2011, one
could be cautiously optimistic that this new and controversial institution is
becoming part of the international landscape, slowly finding its footing in a
difficult world and gaining the respect of the constituencies that it was created to
serve.

ICC one of many tools that works to deter and prevent genocide

Nick Grono, 2012, former Deputy President and COO, and Anna de Courcy
Wheeler, Research Analyst, International Crisis Group, for the conference “The
Law and Practice of the International Criminal Court: Achievements, Impact
and Challenges”at the Peace Palace, the Hague on 26 September 2012, The
deterrent effect of the ICC on the commission of international crimes by
government leaders,
http://www.crisisgroup.org/en/publication-type/speeches/2012/grono-the-
deterrent-effect-of-the-icc.aspx DOA: 11-29-14

Sceptics of the Court’s deterrent impact, however, have no shortage of examples to back their case
that the court has failed to prevent horrendous crimes, even in cases where it is actively
investigating or prosecuting. And again, many of the same situations – such as Libya, Sudan,
Uganda, the Congo - are cited as examples.

These sceptics argue that the very nature of the crimes prosecuted by the International Criminal
Court – war crimes, crimes against humanity and genocide – make them resistant to deterrence
through prosecution, and that the record so far suggests that not only do international prosecutions
offer little hope of preventing future atrocities, they in fact risk prolonging conflicts.

There is, however, a much-overlooked middle ground.

What we want to explore is the possibility that the risk of ICC prosecution may be one of a range
of factors taken into account in the calculations made by government leaders determining how to
respond to a challenge to their authority – be it a nascent rebellion, or proposed secession, or
simply a vigorous political opposition.

Our proposition is that where a regime still perceives room for manoeuvre then the prospect of
such prosecution may be one of a range of domestic and international factors – such as the
​

possibility of internal opposition, financial consequences, likelihood of military success,

international disapproval short of prosecutions, and the possibility of sanctions and other coercive
measures – that could impact upon its strategic calculations.

There is some evidence that suggests national leaders are increasingly aware of the possibility of
ICC prosecution, and that this can influence their decision-making calculus, for better or worse.
And if ICC prosecution factors into a regime or leader’s determination to cling to power, it is not
unreasonable to conclude that such a fear may also, in certain circumstances, act to curtail abuses
and shift the calculus in favour of avoiding war crimes or crimes against humanity.

Though there are plenty of examples in which the threat of criminal prosecution has failed to
deter perpetrators of crimes against humanity or atrocities, this does not mean that deterrence has
not worked or could not work. Those who argue against deterrence often focus on “specific
deterrence”, that is, the possibility that prosecutions can deter leaders who have already
committed war crimes or crimes against humanity from committing them in the future.

But these are, in fact, the very situations where prosecutions are most unlikely to deter. In such
situations, prosecution by the International Criminal Court will more likely represent an
existential threat to a ruler, or ruling party, and is thus more likely to cause national leaders to
seek to entrench themselves, and hence maintain or even escalate an abusive or criminal
campaign. We have seen this in Sudan, where President Bashir’s indictment by the ICC has done
little to halt attacks on civilians in both Darfur and, more recently, South Kordofan.

Instead our focus should be on longer-term legal deterrence and the entrenchment of human rights
norms. Over the longer term prosecutions can act to dissuade future generations of leaders from
the commission of such crimes.

Strengthening the ICC strengthens norms that make it more likely it will prevent genocide

Nick Grono, 2012, former Deputy President and COO, and Anna de Courcy
Wheeler, Research Analyst, International Crisis Group, for the conference “The
Law and Practice of the International Criminal Court: Achievements, Impact
and Challenges”at the Peace Palace, the Hague on 26 September 2012, The
deterrent effect of the ICC on the commission of international crimes by
government leaders,
http://www.crisisgroup.org/en/publication-type/speeches/2012/grono-the-
deterrent-effect-of-the-icc.aspx DOA: 11-29-14

Concrete evidence of immediate or short-term deterrence resulting from ICC prosecutions will by
its nature remain scant, and it is currently too early to trace any longer-term deterrent effect. But if
there is reason to believe that fear of ICC prosecution factors into a leader’s determination to cling
onto power, it is not unreasonable to suggest that such a fear may also, in certain circumstances,
factor into the cost-benefit analysis of an authoritarian intent on crushing a secessionist or
revolutionary movement, ethnic group or the opposition. Anecdotal evidence from states subject
to ICC investigations, indictments or prosecutions indicates cause to be hopeful.
​

As the ICC becomes more widely known, and its norms deeper entrenched, there appears to be a
growing awareness amongst government, and perhaps more surprisingly rebel leaders, that they
too could find themselves in the dock.

A stronger ICC makes it more likely that it will deter

Nick Grono, 2012, former Deputy President and COO, and Anna de Courcy
Wheeler, Research Analyst, International Crisis Group, for the conference “The
Law and Practice of the International Criminal Court: Achievements, Impact
and Challenges”at the Peace Palace, the Hague on 26 September 2012, The
deterrent effect of the ICC on the commission of international crimes by
government leaders,
http://www.crisisgroup.org/en/publication-type/speeches/2012/grono-the-
deterrent-effect-of-the-icc.aspx DOA: 11-29-14

One of the main challenges for international policymakers in their efforts to resolve conflicts or
reduce human rights abuses is that they often lack effective incentives or sanctions (diplomatic,
legal, military or economic) of sufficient credibility to influence the calculations of the warring
parties.

But it is possible to construct a framework for elite decision-making that can elucidate how
international pressure, including in the form of ICC prosecution, can most influence the
decision-making process of domestic leaders. The starting point is the assumption that leaders –
of governments or of rebel groups – wish to either maintain or attain access to domestic power,
and that these leaders take rational and goal-oriented decisions.

The important point here is that prosecution of government leaders imposes personal culpability.
It poses a threat to power they have already attained, and thus may have greater influence or
deterrent impact. If the threat of prosecution for future atrocities is a credible threat, then a
government leader will arguably weigh that risk when deciding how to respond to a challenge to
their authority, assuming a rational decision-making process.

Furthermore, not only are government leaders more likely to have knowledge of the international
legal system and the concept of international individual criminal responsibility than an average
citizen, they are also arguably more likely to be motivated by rational considerations that allow
for the kind of cost-benefit analysis central to any model of deterrence.

Of course, different regime types will react differently to pressure. Certain regimes – those which
are heavily reliant on patronage networks and payoffs to a small ruling elite – are generally more
vulnerable to external pressure, particularly economic sanctions. Like economic sanctions, ICC
prosecutions can erode the power base of leaders who rely on highly personalised systems of
government by increasing the costs of supporting that leader

However the degree to which the ICC can hope to deter will always be hostage to the immediate
domestic context - autocratic leaders who face an existential threat are unlikely be swayed by the
​

possibility of prosecution, but those with hope of retaining power through non-criminal means are
more likely to view the threat of indictment as a disincentive to criminal action.

We should support incremental policy change

Nick Grono, 2012, former Deputy President and COO, and Anna de Courcy
Wheeler, Research Analyst, International Crisis Group, for the conference “The
Law and Practice of the International Criminal Court: Achievements, Impact
and Challenges”at the Peace Palace, the Hague on 26 September 2012, The
deterrent effect of the ICC on the commission of international crimes by
government leaders,
http://www.crisisgroup.org/en/publication-type/speeches/2012/grono-the-
deterrent-effect-of-the-icc.aspx DOA: 11-29-14

When combined with a rationalist theory of domestic policy decision-making, the theory of
incrementalism – which posits that public policy is structurally biased towards incremental
changes to a largely stable status quo – gives a more nuanced understanding of how and why
national leaders make certain policy decisions with implications for foreign relations, particularly
in the context of human rights.

Incrementalism has been observed on a much larger, and longer, scale by philosopher Steven
Pinker. Writing on the decline in violence over the millennia, he has emphasised the growing
intolerance of human society towards war, torture and other forms of brutality, reflecting a
normative shift in what is viewed as acceptable and part of the status quo (Steven Pinker (2011),
The Better Angels of Our Nature: The Decline of Violence in History and its Causes (London:
Penguin Books).

A similar, more narrowly focussed shift can be seen in international politics and the human rights
movement, with a growing focus by the international institutions on the conduct of state leaders
within their states, a development that would have been unthinkable in previous centuries where
state sovereignty precluded outside interference in the internal affairs of another state.

The fact is that prosecutions for war crimes or crimes against humanity are progressively
narrowing the space for criminal courses of action that as recently as 60 years ago were deemed
beyond the concern of the international community.

The conviction of former Liberian president Charles Taylor, the indictment of Bashir, and the
arrests Slobodan Milosevic and Cote d’Ivoire’s former president Laurent Gbagbo, all demonstrate
that even national leaders who would have once been able to claim state immunity are no longer
viewed as immune from international criminal prosecution for war crimes or crimes against
humanity.

Effective deterrence relies on both normative pressures and material punishment (Hoon Kim and
Kathryn Sikkink, “Explaining the Deterrence Effect of Human Rights Prosecutions for
Transitional Countries”, International Studies Quarterly, Vol. 54, No. 4, p.942.). The ICC through
its prosecutions, has the opportunity to contribute to emerging culpability norms that act to limit
future atrocity crimes both by making them more costly in terms of a rational public policy choice
​

analysis, and by establishing such crimes as firmly outside the status quo of behaviour accepted
on the international scale.

Strengthening the ICC makes it more likely it will deter genocide when it can

Nick Grono, 2012, former Deputy President and COO, and Anna de Courcy
Wheeler, Research Analyst, International Crisis Group, for the conference “The
Law and Practice of the International Criminal Court: Achievements, Impact
and Challenges”at the Peace Palace, the Hague on 26 September 2012, The
deterrent effect of the ICC on the commission of international crimes by
government leaders,
http://www.crisisgroup.org/en/publication-type/speeches/2012/grono-the-
deterrent-effect-of-the-icc.aspx DOA: 11-29-14

Of course all of this requires successful ICC prosecutions.

It will only be possible over time to impose a high cost on the use of atrocities to advance political
goals when national or international institutions establish a credible and consistent pattern of
accountability replacing impunity, and that is the challenge that remains for the Court and its
supporters. We’ve explored those challenges in depth over the last couple of days, so we don’t
propose to recount them here.

Instead we’ll conclude by asserting the court does have the potential to deter those contemplating
future atrocities – not in all cases, and probably not in the midst of conflict – but in those
situations where the commission of crimes is one of a series of policy options available to a leader
facing a challenge to his authority. The hope is that future leaders, cognisant of the prosecutions
of Taylor and Milsoevic and Gbabgo and Bashir, may factor the possibility of his or her own
prosecution into policy choices, such as whether to crush a growing opposition with violence, or
negotiate, or address the underlying grievances. It will not be a determinative factor, but it will
hopefully carry significant and increasing weight.

To ensure that this potential deterrent impact becomes more actual than theoretical, the court
through its actions, and state parties through their support, need to enhance the consistency and
credibility of ICC prosecution. Only then will the court begin living up to its founders’
expectations that it will contribute to the prevention of international crimes.

ICC demobilized aggression Colombia

Nick Grono, 2012, former Deputy President and COO, and Anna de Courcy
Wheeler, Research Analyst, International Crisis Group, for the conference “The
Law and Practice of the International Criminal Court: Achievements, Impact
and Challenges”at the Peace Palace, the Hague on 26 September 2012, The
deterrent effect of the ICC on the commission of international crimes by
government leaders,
​

http://www.crisisgroup.org/en/publication-type/speeches/2012/grono-the-
deterrent-effect-of-the-icc.aspx DOA: 11-29-14

Since the Office of the Prosecutor announced its interest in Colombia in 2006,
the government has taken a number of measures – most notably
promulgating the Peace and Justice Law – arguably designed to avoid the
spectacle of high-ranking government officials and army officers appearing at
The Hague. The threat of ICC prosecution appears to not only have influenced
the calculations of the Colombian government – including former President
Pastrana who, according to cables published by Wikileaks, expressed
(unwarranted) concern that he may be prosecuted by the ICC for his actions
while in power from 1998-2002 – but also by key rebels. And at least one of
the leading paramilitary leaders, Vincente Castrano (AUC), was apparently
sharply aware and fearful of the possibility of ICC prosecution, a fear that
reportedly directly contributed to his demobilisation. Clearly a number of
paramilitary commanders in Colombia were aware of the risk of ICC
prosecution and took this risk into account when deciding to demobilise.

ICC impacting the Congo

Nick Grono, 2012, former Deputy President and COO, and Anna de Courcy
Wheeler, Research Analyst, International Crisis Group, for the conference “The
Law and Practice of the International Criminal Court: Achievements, Impact
and Challenges”at the Peace Palace, the Hague on 26 September 2012, The
deterrent effect of the ICC on the commission of international crimes by
government leaders,
http://www.crisisgroup.org/en/publication-type/speeches/2012/grono-the-
deterrent-effect-of-the-icc.aspx DOA: 11-29-14

In the Democratic Republic of the Congo, home of the ICC’s first convict
Thomas Lubang Dyilo, there is some evidence that ICC prosecutions are
having some impact on the strategic decisions of troop commanders. Media
reports suggest a number of ex-combatants have noticed a modification in the
behaviour of rebel commanders designed to avoid the possibility of ICC
prosecution, particularly in Ituri which has been the focus of the ICC’s
investigative and prosecutorial activities.
​

Blocks for: Lack of Support Kills the ICC/It’s a Shell of an

Institution
Their evidence is old – Court now well-financed and supported

David Bosco, 2014, Rough Justice: The International Criminal Court in A World
of Power Politics, Kindle Edition, page at the end of the card

Recognizing the institution’s risks, several powerful states at first resisted the
court. The United States even launched a worldwide diplomatic campaign to limit
its reach. That tension has abated in the decade since the court opened its doors. It
has rapidly become part of the international architecture and has grown from a
hollow shell to a bustling institution with an annual budget of more than
$100 million. The United States has turned from the court’s principal adversary to
an ally. Other skeptical powers have grudgingly acknowledged that the court has
an important role to play. Bosco, David (2013-12-17). Rough Justice: The
International Criminal Court in a World of Power Politics (Page 2). Oxford
University Press. Kindle Edition.
​

Blocks for: Politicization

Safeguards mean ICC ratification won’t result in frivolous challenges to US policy

William L. Nash, Retired Army General and John W. Vessey Senior Fellow and
Director of the Center for Preventive Action, THE UNITED STATES AND THE
INTERNATIONAL CRIMINAL COURT, edited by Sarah Sewall and Carl
Kaysen, 2000, p. http://www.amacad.org/publications/icc9.htm. (DRG/C602)
But as Bartrarn Brown's chapter (chapter 4) explains, many procedural safeguards
to prevent frivolous prosecution have been built into the Court's jurisdiction and
operation. Moreover, there are other forums and means to challenge U.S. policy;
the ICC will not be the only vehicle for so doing, and it may well prove to be a
less effective venue than a press conference. Treating the ICC as though it will
become the prime mechanism to challenge American global leadership is to vest
more power in the Court than it could, ever have.
​

Blocks for:Security Council Solves Aggression

Security Council won’t check aggression, ICC will

Rob Grace, June 4, 2010, a contributor to Foreign Policy In Focus, blogs for the
Foreign Policy Association, U.S. v. ICC?, http://fpif.org/us_vs_icc/

Furthermore, though Padmanabhan advocates for Security Council control over

the ICC’s aggression jurisdiction, the Security Council’s track record on
aggression is poor. Because all five of the Council’s permanent members (P-5)
enjoy veto power, Security Council gridlock often hampers U.S. efforts to punish
aggressors. The United States and U.S. allies have thus historically sought other
international institutional avenues. The Soviets vetoed a resolution regarding the
1946 Corfu Channel incident, and Britain took the case to the ICJ, eventually
winning $2 million in compensation. When the Soviet Union vetoed Security
Council condemnation of its Afghanistan invasion, the UN General Assembly
took up the issue and passed a resolution calling for Soviet withdrawal. Keeping
the ICC’s aggression jurisdiction free from Security Council control would allow
the court to function as yet another venue for delegitimizing and punishing P-5
acts of aggression.
​

Blocks for: ICC Exposes US Military Personnel to

Prosecution
US military personnel exposed to prosecution even without the US joining the court

Vijay Padmanabhan, Visiting Assistant Professor of Law, Benjamin N. Cardozo

School of Law, Yeshiva University, 2010, From Rome to Kampala: The U.S.
Approach to the 2010 International Criminal Court Review Conference,
http://www.cfr.org/courts-and-tribunals/rome-kampala/p21934 DOA: 11-22-14

Nevertheless, the United States was one of only seven states to vote against the final Rome
Statute.2 The United States had two main objections. First, the text granted the ICC
jurisdiction over crimes committed by nationals of states that are not parties to the Rome
Statute if the crimes occur in the territory of a state party. This provision potentially exposes
U.S. military personnel involved in peacekeeping and other security operations to the risk of
ICC prosecution, regardless of whether the United States joins the court.
​

Blocks for: Domestic Courts Solve

Universal jurisdiction necessary to compensate for weaknesses in domestic jurisdiction

Paul Chevigny, Global Policy Forum, 2006, The Limitations of Universal

Jurisdiction,
https://www.globalpolicy.org/component/content/article/97/32133.html DOA
11-23-14

Universal jurisdiction is not destined to be a mockery, for some of the same reasons that
we do not think that domestic jurisdiction in criminal cases, for all its limitations, is a
mockery. Domestic criminal jurisdiction, at its best, aspires to be free of politics and
discrimination, but of course it is not; cases are pressed or dismissed because of bias,
whether overt or unconscious. At its worst, it is a state instrument of oppression. Interest
in universal jurisdiction has grown in recent years partly because of the biases in
domestic jurisdiction. The limitations of international criminal jurisdiction cannot mean
that it must disappear, any more than we expect domestic jurisdiction to disappear.

Recent events in the ICC provide some hope that universal jurisdiction may be applied to
good effect.. Its prosecutor has begun to investigate the international crimes in Darfur, in
the Sudan, an action for which even the United States has expressed approval. And the
government of the Congo has turned over a warlord, Thomas Lubanga, for his alleged
crimes against humanity, after the government was able to capture him. A cynical view of
these cases suggests that they have gained what strength they have through politics. The
international community, including the United States would love to be seen to do
something about Darfur, providing it does not have to risk troops. And Lubanga is one of
the losers in the conflict in the Congo; justice for him will be victors' justice. But if the
tribunal is one that is fairly chosen, these are not fatal objections to the jurisdiction.

Compare the situation with domestic criminal jurisdiction. Defendants escape domestic
criminal justice because of influence and wealth; others are subjected to it because of
poverty. Those are fair grounds for criticism of criminal justice systems, which should
strive to eliminate the disparities. But we are still relieved to see that the criminal justice
system punishes some of the guilty, even if it fails to punish others. We are thankful for
the cases when, for reasons that are themselves social and political, social and political
forces do not impede criminal justice. A system does not lose all legitimacy because it
cannot do justice in all the cases, because no system does so.

International criminal jurisdiction, for all its failings, is going to compensate for some of
the weaknesses of domestic criminal jurisdiction; it is going to act in some cases where
local social and political forces prevent a domestic prosecution. That will be a net gain,
even if international prosecution is not possible in many cases and perhaps not even in
the ones we would most like to see prosecuted.

Just because they are complementary to the domestic system, the workings of
international justice can create a dialogue, however limited, that increases the possibility
that justice may be done. In the Pinochet case, the British authorities finally avoided the
​

act of extradition because of the defendant's alleged illness; but the courts recognized that
the crimes were heinous enough to support extradition. That finding is one element that
has driven Chile to undertake its own case against Pinochet. There universal jurisdiction
has served one of its principal purposes: to make it clear to the nations that they should
take responsibility for crimes on their soil.

Jurisdictional conflicts prevent effective domestic trials of international crimes.

Ron Sievert, “A New Perspective on the International Criminal Court: Why the Right Should
Embrace the ICC and How America Can Use It”, University of Pittsburgh Law Review,
Volume 68, 2006.
Accordingly, the largest terrorist case in history is spread between three nations, all of which,
to one degree or another, are interfering with the other's ability to handle the cases
appropriately. It may thus be more efficient to try future terrorist acts before the single forum
of an international criminal court. As Louis O'Campo has stated, these offenses may
occasionally fit within the elements of various Crimes Against Humanity. It is probably even
better, however, as noted in the next section, to define and establish in the code of the ICC an
offense of international terrorism.
​

US Citizens Subject to ICC Arrest & Prosecution

Complementarity principle means US citizens are not at risk

Butch Bracknell, May 26, 2011, Los Angeles Times, “The U.S. and the
International Criminal Court: An unfinished debate,”
http://articles.latimes.com/2011/may/26/opinion/la-oe-bracknell-icc-20110526

The ICC poses extraordinarily low risk to U.S. sovereignty, service members and
public officials abroad. Under the Rome Statute's "complementarity" principle,
before the court asserts jurisdiction over a citizen, the ICC prosecutor must
determine and substantiate that the citizen's country is operating with impunity or
that its judicial processes are broken or powerless. To avoid ICC jurisdiction over
American service members and public officials, the United States would not have
to charge, indict and bring cases to court. All that is required is for the U.S. to
undertake a good-faith investigative effort of offenses under the statute and
domestic law, and meaningfully assert national jurisdiction over alleged offenses.
​

Blocks for: US Military Forces Subject to Arrest

The US has also negotiated many agreements to prevent its military forces from being arrested and prosecuted

Vijay Padmanabhan, Visiting Assistant Professor of Law, Benjamin N. Cardozo

School of Law, Yeshiva University, 2010, From Rome to Kampala: The U.S.
Approach to the 2010 International Criminal Court Review Conference,
http://www.cfr.org/courts-and-tribunals/rome-kampala/p21934 DOA: 11-22-14

Later in 2002, Congress passed and President Bush signed the American Service-Members’
Protection Act (ASPA). ASPA prohibited sharing classified information and other forms of
cooperation with the ICC, restricted aid to state parties that did not complete bilateral
non-surrender agreements (also called Article 98 agreements), shielding U.S. forces from
ICC jurisdiction, and authorized the president to use “all means necessary” to secure the
release of U.S. or allied officials detained at the ICC’s request. Consistent with ASPA, the
United States began blocking reauthorization of UN peacekeeping missions whose mandates
did not guarantee immunity for U.S. forces from ICC jurisdiction. The United States also
negotiated more than one hundred bilateral non-surrender agreements prohibiting transfer of
American citizens to the ICC. All of these steps were widely perceived by ICC parties as part
of a strategy by the Bush administration to undermine the fledgling court.

There have been no politicized prosecutions against US interests

Vijay Padmanabhan, Visiting Assistant Professor of Law, Benjamin N. Cardozo

School of Law, Yeshiva University, 2010, From Rome to Kampala: The U.S.
Approach to the 2010 International Criminal Court Review Conference,
http://www.cfr.org/courts-and-tribunals/rome-kampala/p21934 DOA: 11-22-14

Amid these problems, the primary U.S. concern—fear that a self-initiating prosecutor would
zealously pursue cases counter to U.S. interests—has not materialized. The ICC rejected
complaints against
British soldiers in Iraq, who were alleged to have violated targeting rules and assisted in
detainee abuse perpetrated by American forces. The ICC prosecutor did so because of the
relatively small scale of the allegations, and because an ongoing British investigation of the
allegations suggested the matter was being handled appropriately at the national level.
​

Blocks for: ICC Violates Sovereignty

ICC depends on the support of states to function

David Bosco, 2014, Rough Justice: The International Criminal Court in A World
of Power Politics, Kindle Edition, page at the end of the card

Yet the Rome Statute also made clear that the court would be entirely dependent
on state resources to succeed. Negotiators gave the court no enforcement tools of
its own. Investigations on national soil require official permission and access. To
apprehend suspects, the court leans on state police and military forces. Financially,
the court relies on annual dues from members. As the court’s prosecutor said
shortly aft er taking office, “the ICC is independent and interdependent at the
same time.” In this sense at least, the ICC is very much like other international
organizations. States in the past century have consented to create dozens of these
institutions, but they rarely endow them with permanent resources or enforcement
power. They are quite intentionally left dependent on state resources. Bosco,
David (2013-12-17). Rough Justice: The International Criminal Court in a World
of Power Politics (Page 4). Oxford University Press. Kindle Edition.
We should rethink sovereignty in terms of a rights-holding membership within the global community.

R David L. Blaney, “Reconceptualizing Autonomy: The Difference Dependency Theory

Makes”, Review of International Political Economy, Vol. 3, No. 3, 1996
By authorizing us to think of states and peoples as essentially independent political and
economic units, the social practice of sovereignty both constructs an aspiration for
self-realization by political communities and, by demarcating states as economic units,
functions as a distributive device, constituting and legitimating a hierarchy of wealth and
uneven capacities for realizing that aspiration. The deployment of sovereignty within
dependency argument, perhaps inadvertently, exposes these contradictory implications of our
current understanding of the autonomy of political communities. Sovereignty is thereby
revealed as a self-defeating social practice, where the multiple uses of boundaries as political
and economic demarcations are found to be in tension. Thus, reclaiming the legacy of
dependency thinking goes beyond the critical deployment of the principle of sovereignty to
expose the need to rethink sovereignty. In fact, dependency argument appears to rest on an
intuition that the terminology of 'sovereignty' can be made to endorse a global ethical vision,
broader than that suggested by current usage. More precisely, by rejecting 'sovereignty' as
implying an essential independence of peoples, we can defend a conception of national
autonomy within social relationships, endorsing a vision of the pursuit of local ways of life
and global projects by every people or state within an interdependent and more egalitarian
global society. That is, we can come to see the autonomy of political communities as a kind
of relationship available in a global society supportive of self- determination and self-
realization, not as separation from others.
Valuing sovereignty over global consensus leads to condemnation.

Steven R. Ratner, “International Law: The Trials of Global Norms”, Foreign Policy, No. 110,
1998.
​

In the other direction, the proliferation of new norms has direct effects on debates over
globalization-the "Jihad versus McWorld" controversy. A global treaty on ozone or
greenhouse gases, for instanc, will clearly accommodate different perspectives on the priority
of environ- mental protection versus development, but once adopted it cannot tolerate
violations in the name of "diversity." Indeed, almost by definition, the decision by states to
subject a once strictly domestic concern to international regulation means that cultural,
value-based, or "sovereignty" arguments no longer enjoy the upper hand. If a state elects not
to sign a major treaty, or ignores one it has signed-as with the United States and the
agreement on the elimination of landmines or Iraq and the one on nuclear nonproliferation-it
is more likely to be condemned as a pariah than admired for its rugged individualism.
Not submitting to an international court would undermine US values.

Sarah Sewall and Carly Kaysen, The United States and the International Criminal Court:
National Security and International Law. Rowman & Littlefield, 2000
The ICC cannot be judged only on the basis of its own strengths and weaknesses. It also must
be placed in the larger context of a world shaped by law. U.S. foreign policy has consistently
stressed the value of international law in creating a world more congruent with U.S. interests.
International law today is no longer utopian rhetoric. Chayes and Slaughter argue, but rather
“hardheaded realism.” Efforts to regulate and fuel the global economy, to protect the
environment, to manage weapons proliferation, and to defend against terrorism all rely on an
international legal framework. Throughout the past decades. The United States has played a
leading role in strengthening international law in order to protect U.S. interests. Every new
international legal instrument or institution has entailed obligations and required concessions
of some form. The price of the accommodation has been outweighed by the benefits of both
the specific institution and the expansion of a legal framework hospitable to U.S. interests
and values. An essential element of the legal framework is the idea of equality under the law.
Seeking an exemption from that principle strikes a heavy blow against the international rule
of law.
​

Blocks for: International Law Bad

International law is not undemocratic
Cleveland, UT Prof of Law, 2006 (Sarah. Winter. 31 Yale J. Int'l L. 1)
First, emphasis on the "foreign" origins of international law overlooks the fact that the United States is a major and active

participant in the creation, development, and interpretation of international

law. The United States was the primary instigator behind the establishment of the UN system and the creation of modern international treaties ranging from human
rights 705 and humanitarian law to international intellectual property and international trade. 706 In the post-9/11 world, the United States has maintained that the
adoption of the Bush preemption doctrine does not breach, but rather alters, traditional rules regarding the international use of force. The familiar quip that "other
nations violate international law while the United States just creates precedent' may overstate the case, but it contains an important kernel of truth regarding the

treaties that the United States has ratified are consistent with
significance of U.S. influence over the international legal system. Moreover,

any plausible theory of U.S. popular sovereignty, since they are made by the President and Senate according to
constitutionally mandated procedures. Second, the concern that international law is not the product of democratic institutions, to the extent that it is correct, is a red
herring, which rests on a fundamental misconception of American lawmaking as purely majoritarian. Justice Scalia perhaps stated the mischaracterization most
succinctly in his opinion in Sosa v. Alvarez-Machain, in which he unfavorably contrasted international law with "American law - the law made by the people's [*103]

many forms of "American" law are not made by elected

democratically elected representatives." 707 But

representatives, notably including the common law and federal and most state constitutional
decisions. Furthermore, many sources that jurists legitimately rely upon in
interpreting the Constitution are not created through democratic
decisionmaking. Prominent examples include consideration of the common law, historical sources, social science and scientific data, law and
economics theory, pragmatic policy concerns, and judge-made rules of construction, including principles of stare decisis. All of these are interpretive sources that are not
produced by democratic lawmaking. Thus, it cannot be the nondemocratic (or nonmajoritarian) process that creates international law that renders it ineligible for use in
constitutional analysis, when American judges provide the filter for its domestication. Ultimately, the democratic deficit criticism seems to boil down to a third concern:
that American law developed autonomously from the international community and that international law simply is not part of American traditions. As Jed Rubenfeld has
urged, "the U.S. Constitution is supposed to reflect our own fundamental legal and political commitments ... . It is the self-givenness of the Constitution ... that gives it
authority as law." 708 Under this concern, reliance on examples from history, Anglo-American traditions, and practices under the common law all could be distinguished
from the use of international law on the grounds that the former are at least the products of "We the People" and their progeny, and reflect uniquely American values.
International law, by contrast, is viewed as an alien "other," which is not part of the American tradition. The historical record regarding the use of international law in
constitutional interpretation, however, belies this final legitimacy concern. The record of constitutional decisionmaking demonstrates that resort to international law to
inform constitutional meaning is one of many longstanding and accepted U.S. interpretive traditions, and that international law has been considered a legitimate source
of law in constitutional analysis throughout the course of the nation's history. International law has entered constitutional construction both as part of the common law
and as an independent source of interpretive authority. The judicial practice of considering international rules, in other words, historically has been a legitimate "rule of
recognition" of the American legal system. 709 Indeed, a nineteenth-century judge would find the modern objection quite baffling, since in the last century, international
and public law was assumed to inform the meaning [*104] of many constitutional concepts that are now presumed "domestic," including concepts of commerce,
freedom of contract, and eminent domain. 710 This does not mean, of course, that a tradition once legitimate may not be later rejected or unraveled, and the current
challenge to the use of international authorities may be seeking to accomplish just that. But the tradition does mean that the current attack on the use of international
sources cannot begin from the premise that the practice is illegitimate because it is new. It must instead demonstrate why an accepted practice of judges within the legal
system should no longer be considered valid. It is possible to imagine a relationship between international law and constitutional interpretation that would raise valid
concerns about popular sovereignty and domestic control of the law-making process. If, for example, the Supreme Court decided that U.S. constitutional law regarding a
certain topic should be determined entirely by international rules made by an international body, without any intervening filtering through domestic U.S. legislative or
judicial processes, then, to paraphrase Attorney General Alberto Gonzales, "that foreign judge ... [would] bind[] us on key constitutional issues." 711 That would constitute
a basic abdication of the judicial function. 712 But considering international values as one element in the test for identifying cruel and unusual punishments under the
Eighth Amendment, or even the Court's more robust use of international law to effectively provide the rule of decision in constitutional contexts ranging from war to
personal jurisdiction, does not rise to this level. Ultimately, it is duly appointed domestic judges who make the decisions about the Constitution's meaning and the

Democratic deficit objections accordingly appear to be

relevance of international law thereto.

based on mistaken assumptions regarding both the nature of judicial lawmaking and the role of international law in U.S. traditions.
​

Blocks for: Budgetary Oversight Triggers Manipulation of

the Court
Budget oversight by members does not result in manipulation of the court

David Bosco, 2014, Rough Justice: The International Criminal Court in A World
of Power Politics, Kindle Edition, page at the end of the card

For major-power member states, larger budget assessments are the only way that
the ICC system formally recognizes their status. Through the court’s Assembly of
States Parties (ASP), major-power member states might use the resulting financial
leverage to exercise control over the institution. There is little evidence that this
has happened. As with all international organizations, major powers have
scrutinized the court budget to ensure that it does not expand too rapidly. But
there is no evidence that states have attempted to use budget processes to directly
or indirectly influence the investigative strategy of the court. Despite the concerns
of the prosecutor, it also does not appear that ASP oversight of court personnel
has been used in an eff ort to influence court strategy or investigations. Bosco,
David (2013-12-17). Rough Justice: The International Criminal Court in a World
of Power Politics (Page 183). Oxford University Press. Kindle Edition.
​

Blocks for: No Jurisdiction Over the US

Not accepting jurisdiction makes it harder to punish international criminals.

Michael Scharf, “The United States and the International Criminal Court: The ICC’s
Jurisdiction Over the Nationals of Non-Party States: A Critique of the U.S. Position”, Law
and Contemporary Problems, Volume 64, 2001.
In its refusal to recognize this reality, the Executive Branch has resorted to a legal
interpretation that is not only based on selective use of the historic record and incomplete
analysis of the guiding precedents, but also has the potential of undermining important U.S.
law enforcement interests. Unless the Executive Branch abandons (or significantly modifies)
its controversial legal argument, Ambassador Scheffer's sweeping statement that a treaty
cannot legitimately provide the basis for jurisdiction with respect to nationals of non-party
states will almost certainly be cited by accused terrorists, torturers, war criminals, and drug
traffickers to block future U.S. efforts to exercise treaty-based jurisdiction over such persons
​

Blocks for: ICC Will Dominate Weak States

International courts are a good avenue for weak states to shift the balance of power.

Madeline Morris, “High Crimes and Misconceptions: The ICC and Non-Party States” Law
and Contemporary Problems, Vol. 64, No. 1, 2001
Perhaps, in addition, some states wished to use ICC jurisdiction to effectuate a change in
interstate power relations by moving an important category of interstate disputes out of the
diplomatic realm and into that of compulsory adjudication. As Arthur Rovine has noted,
"weaker states derive an obvious advantage from legal settlement in disputes with more
powerful opponents.... Clearly, the strong give up much of their leverage in a contest of legal
briefs and argumentation." Or some participants in the ICC negotiations may have wished to
expand the power of international institutions, including courts, without regard to the
resultant redistribution of power among particular states.
​

Blocks for: ICC Jurisdiction Threatens Peacekeeping

PEACEKEEPERS SUBJECT TO HOME-STATE JURISDICTION—PRECLUDES ICC JURISDICTION

Annan, Kofi, Secretary General, UN, Global Policy Forum, “Secretary General
Criticizes US-Backed Extension of Immunity from ICC”, June 12, 2003,
http://www.globalpolicy.org/intljustice/icc/crisis/0612sg.htm. (HARVUN1808)

Secondly, people serving in United Nations peacekeeping missions remain under

the jurisdiction of their home States. Whenever one of them is accused of
committing a crime during a mission, that person is immediately repatriated and is
dealt with by the national courts of his or her own country. And thirdly, under
Article 17 of the Rome Statute, no case is admissible in the ICC if it already has
been or is being investigated or prosecuted by a State which has jurisdiction over
it, unless that State is unwilling or unable genuinely to investigate or to prosecute.
I assume that, in the case where a person serving in an operation established or
authorized by this Council were to be accused of the kind of crime that falls under
the jurisdiction of the ICC – a case which we must all hope and expect would
never occur – the home State of that person would be the most anxious to
investigate that accusation and, if the investigation showed that there was a prima
facie case, to prosecute that person. The case would then not be admissible in the
ICC.

IMPOSSIBLE FOR US PEACEKEEPERS IN CURRENT PKOS TO BE SUBJECT TO ICC JURISDICTION ANYWAY

Amnesty International, ICC: The Unlawful Attempt by the Security Council to

Give US Citizens Permanent Impunity from International Justice, May 1, 2003,
http://web.amnesty.org/library/index/engior400062003 (HARVUN1816)
There are few US nationals involved in UN peace-keeping operations.(18) Indeed,
one confidential UN study obtained by non-governmental organizations indicated
that there were no US peace-keepers in UN peace-keeping operations that could
conceivably face arrest and surrender to the International Criminal Court, either
because there were no US nationals in the peace-keeping operation or because the
host state was not a party to the Rome Statute.
​

Blocks for: ICC Violates the Constitution

JUSTICE DEPARTMENT SAYS ICC FINE

Sarah Sewall, Programs Director of the Carr Center for Human Rights Policy at
the John F. Kennedy School of Government and Carl Kaysen, Co-chairman of the
Committee on International Security Studies at the American Academy of Arts
and Sciences, AMERICAN ACADEMY OF ARTS & SCIENCES, 2000, p.
http://www.amacad.org/projects/iccarticle. (DRG/C618)

Because the international Court reflects a mix of common and civil law traditions,
it lacks the requirement of a trial by jury and other cherished U.S. Constitutional
protections for the accused. Some of the most emotional arguments offered against
the ICC revolve around this compromise: the ICC simply does not feel
constitutional. Yet even in an Administration skeptical of the ICC, the Justice
Department has ruled that there are no constitutional barriers to joining the ICC.
CONSTITUTION DOES NOT TRAVEL WITH CITIZENS

Sarah Sewall, Programs Director of the Carr Center for Human Rights Policy at
the John F. Kennedy School of Government and Carl Kaysen, Co-chairman of the
Committee on International Security Studies at the American Academy of Arts
and Sciences, AMERICAN ACADEMY OF ARTS & SCIENCES, 2000, p.
http://www.amacad.org/projects/iccarticle. (DRG/C619)

For actions that occur abroad and otherwise would fall within foreign national
jurisdiction, ICC proceedings should be compared with those of a foreign state,
not an American court. Americans abroad are subject to the jurisdiction of foreign
courts; the Constitution does not travel with them. Individuals already face the
possibility of foreign prosecution for ICC-covered crimes.
EXTRADITION PROVES ICC LEGITIMATE

Sarah Sewall, Programs Director of the Carr Center for Human Rights Policy at
the John F. Kennedy School of Government and Carl Kaysen, Co-chairman of the
Committee on International Security Studies at the American Academy of Arts
and Sciences, AMERICAN ACADEMY OF ARTS & SCIENCES, 2000, p.
http://www.amacad.org/projects/iccarticle. (DRG/C620)

Another point of comparison is extradition of American citizens for trial abroad.

This has been common practice for two hundred years, established by treaties in
which the United States has delegated the trial of Americans to foreign states. The
ICC can be viewed as another type of court to which the prosecution of Americans
​

is delegated, and, again, in many cases the ICC will feel far more similar to a U.S.
court than a foreign court.

ICC SIMILAR TO MILITARY COURTS

Sarah Sewall, Programs Director of the Carr Center for Human Rights Policy at
the John F. Kennedy School of Government and Carl Kaysen, Co-chairman of the
Committee on International Security Studies at the American Academy of Arts
and Sciences, AMERICAN ACADEMY OF ARTS & SCIENCES, 2000, p.
http://www.amacad.org/projects/iccarticle. (DRG/C621)

A third comparative basis for judging the ICC’s constitutionality is the American
military justice system. American service members are subject to courts martial
that employ fundamentally different procedures than those available in a civilian
court. Some of the most cherished American rights (e.g. trial by jury) do not
extend to active duty members of the Armed Forces.
ICC DOES NOT DENY US CITIZENS THEIR CONSTITUTIONAL RIGHTS

Teresa Young Reeves, JD Candidate, Washington College of Law, Human Rights

Brief, Volume 8, Issue 1, 2001, http://www.wcl.american.edu/hrbrief/08/1icc.cfm
(HARVUN1987)

The Rome Statute does not deny U.S. citizens their rights under the U.S.
Constitution. According to Yale Law School Professor Ruth Wedgwood's
extensive study, there Ais no forbidding constitutional obstacle to U.S.
participation in the treaty." Wedgwood cites five reasons for this conclusion, three
of which will be addressed here. First, historically the United States has signed
treaties allowing U.S. participation in international tribunals that could affect the
lives and property of U.S. citizens. For example, the North American Free Trade
Agreement and the World Trade Organization subject U.S. businesses to judicial
processes that do not mirror those found in an American courtroom, i.e.,
fact-finding by a panel of judges rather than by a jury. Second, the ICC does not
offend U.S. constitutional notions of due process because the Rome Statute, as
carefully negotiated by Scheffer and his team at the Rome Conference, comports
with the procedural protections and safeguards provided to U.S. citizens under the
U.S. Constitution. Wedgwood and Monroe Leigh, a member of the American Bar
Association, have compiled lists citing articles of the Rome Statute that both
address and guarantee due process rights. Their lists include, inter alia, the right of
the suspect: to have timely notice of charges filed against him (Article 60(1)); to a
presumption of innocence (Articles 66(1), (2)); to the privilege against
self-incrimination (Articles 55(1)(a), (1)(b), 67(1)(g)); to the assistance of counsel
(Articles 55(2)(c), 67(1)(b), (1)(d)); to a speedy trial (Article 67(1)(c)); to
​

cross-examine adverse witnesses (Article 67(1)(e)); to innocence unless the

prosecutor has proved guilt “beyond reasonable doubt" (Article 66(3)); and to be
present at the trial (Article 63).

ICC DOES NOT OFFEND US CONSTITUTIONAL DUE PROCESS PROTECTIONS

Teresa Young Reeves, JD Candidate, Washington College of Law, Human Rights

Brief, Volume 8, Issue 1, 2001, http://www.wcl.american.edu/hrbrief/08/1icc.cfm
(HARVUN1988)

In arguing that the Rome Statute does not offend U.S. constitutional notions of due
process, Wedgwood cites three procedural provisions of the Rome Statute that
distinguish the ICC from U.S. common law procedures. First, the Rome Statute
provides for the use of a fact-finding panel of judges rather than a jury (Articles
34, 39(2)(b)(ii), 74). As discussed above, historic U.S. treaty participation already
subjects U.S. citizens to this procedure. Second, verdicts rendered by the ICC are
by a vote of at least two judges (Article 74(3)). Finally, the ICC prosecutor may
file an appeal based on errors of fact, law, and procedure (Article 81(1)(a)).
Because U.S. citizens who commit crimes abroad are generally subject to the rules
either of foreign courts or of the U.S. military courts-martial system, it is safe to
assume that a U.S. citizen could encounter these same rules of procedure in a
foreign country. In addition, U.S. courts-martial rules similarly stipulate that
verdicts, in cases of acts resulting in unintentional civilian casualties or other
unintentional harms, need not be rendered by a unanimous vote: “a finding of
guilty results only if at least two-thirds of the members present vote for a finding
of guilty" (R.C.M.921(c)(2)(B)).
​

Blocks for: ICC Prohibits Nuclear weapons

ICC doesn’t limit nuclear weapons use

Andreas Zimmerman, July 2014, Professor of International Law, University of

Potsdam; member of the Permanent Court of Arbitration; former member and
adviser of the German delegation to the Preparatory Committee and the UN
Diplomatic Conference on the Establishment of an International Criminal
Court. This article is dedicated to the late judge Hans-Peter Kaul, head of the
German delegation during the Rome Diplomatic Conference, Meltmen Sener,
Research assistant and doctoral candidate in international law, University of
Potsdam, American Journal of International Law, CURRENT
DEVELOPMENTS: CHEMICAL WEAPONS AND THE INTERNATIONAL
CRIMINAL COURT, p. 438-9
During the drafting of what was to become Article 8 of the Rome Statute, the
list of prohibited weapons proved to be among the most contentious questions. It
was agreed to include express prohibitions of the use, in international armed
conflicts, of "poison or poisoned weapons" and "asphyxiating, poisonous or other
gases, and all analogous liquids, materials or devices." nProposals were then also
made to include a specific reference to the war crime of using "chemical weapons
as defined in and prohibited by the 1993 Convention on the Prohibition of the
Development, Production, Stockpiling and Use of Chemical Weapons and on
Their Destruction"; such proposals were still included, for example, in the
so-called Zutphen draft statute of 1998. During the Rome diplomatic conference
(Rome Conference), the debate on the proposal to include a specific reference to
the 1993 Chemical Weapons Convention in the list of war crimes became
interwoven with the question of including a parallel specific reference to the use of
nuclear weapons. Certain states, including Syria, claimed that listing chemical
weapons, but not nuclear weapons, would be inherently "unfair," given that
chemical weapons were, in effect, considered the "poor man's" weapon of mass
destruction. By contrast, nuclear weapons states, as well as those that were
members of military alliances relying on nuclear weapons, rejected any inclusion
of nuclear weapons in the list of prohibited weapons. In the final compromise
neither nuclear nor chemical weapons were expressly listed as weapons whose use
was prohibited under the Rome Statute.
Given this drafting history of Article 8 of the Rome Statute, it has been argued
in relation to international armed conflicts that Article 8 might not cover all uses
of chemical weapons as such. This view is arguably buttressed by Article 22(2) of
the statute, which provides both that the "definition of a crime shall be strictly
construed" and that any such "definition shall be interpreted in favour of the
person being investigated, prosecuted or convicted."
​
​

Blocks for: ICC Prohibits Chemical Weapons

Chemical weapons jurisdiction limited to states that have ratified the ICC and those that support the amendment

Andreas Zimmerman, July 2014, Professor of International Law, University of

Potsdam; member of the Permanent Court of Arbitration; former member and
adviser of the German delegation to the Preparatory Committee and the UN
Diplomatic Conference on the Establishment of an International Criminal
Court. This article is dedicated to the late judge Hans-Peter Kaul, head of the
German delegation during the Rome Diplomatic Conference, Meltmen Sener,
Research assistant and doctoral candidate in international law, University of
Potsdam, American Journal of International Law, CURRENT
DEVELOPMENTS: CHEMICAL WEAPONS AND THE INTERNATIONAL
CRIMINAL COURT p. 439

Whether, and under what circumstances, the ICC may exercise its treaty-based
jurisdiction (that is, when the territorial state or the state of nationality is party to
the Rome Statute) over the use of chemical weapons in noninternational armed
conflicts is intrinsically linked to the Kampala process and the provisions of the
Rome Statute concerning treaty amendments. Of the two amendments adopted in
Kampala, the amendment on the use of prohibited weapons in noninternational
armed conflicts received little negotiating attention or outside scrutiny; the focus
was, instead, on the amendment concerning the crime of aggression. Whereas it
was intensely debated whether the aggression amendment was governed by Article
121(4), Article 121(5), or a combination of the two, the consensus at Kampala, as
expressed in Resolution RC/Res.5 ("Amendments to Article 8 of the Rome
Statute"), was that the war crimes amendment was governed by Article 121(5) of
the Rome Statute. Under Article 121(5), any amendment to Article 5, 6, 7, or 8 of
the Rome Statute shall enter into force only for those states parties that have
accepted the amendment. Accordingly, Resolution RC/Res.5 states that, "in
respect of a State Party which has not accepted the amendment, the Court shall not
exercise its jurisdiction regarding the crime covered by the amendment when
committed by that State Party's nationals or on its territory." That resolution also
confirmed that "the same principle that applies in respect of a State Party which
has not accepted the amendment applies also in respect of States that are not
parties to the Statute." That is, the ICC's treaty-based jurisdiction over the war
crime of using chemical weapons in noninternational armed conflicts extends only
to those acts committed either by nationals of states parties to the Rome Statute
that have also ratified the amendment, or on the territory of such states.
​

Syria use of chemical weapons was not referred to the ICC

Andreas Zimmerman, July 2014, Professor of International Law, University of

Potsdam; member of the Permanent Court of Arbitration; former member and
adviser of the German delegation to the Preparatory Committee and the UN
Diplomatic Conference on the Establishment of an International Criminal
Court. This article is dedicated to the late judge Hans-Peter Kaul, head of the
German delegation during the Rome Diplomatic Conference, Meltmen Sener,
Research assistant and doctoral candidate in international law, University of
Potsdam, American Journal of International Law, CURRENT
DEVELOPMENTS: CHEMICAL WEAPONS AND THE INTERNATIONAL
CRIMINAL COURT, p. 444-5
States that have not ratified the Rome Statute. The use of chemical weapons in
Syria in 2013 specifically raised the question whether the ICC may exercise its
Security Council--triggered, Chapter VII--based jurisdiction in relation to the use
of chemical weapons in noninternational armed conflicts by states not party to the
Rome Statute. Security Council Resolution 2118 (2013) "[c]ondemned] in the
strongest terms any use of chemical weapons in the Syrian Arab Republic, in
particular the attack on 21 August 2013, in violation of international law." While
"affirming that the use of chemical weapons constitutes a serious violation of
international law" and "[e]xpress[ing] its strong conviction that those individuals
responsible for the use of chemical weapons in the Syrian Arab Republic should
be held accountable," the Security Council stopped short of referring the situation
in Syria to the ICC under Article 13(b) of the Rome Statute. It refrained from
doing so, moreover, despite calls to the contrary by numerous states, the UN High
Commissioner for Human Rights, and the Human Rights Council Commission of
Inquiry on Syria.

ICC has very limited jurisdiction over chemical weapons

Andreas Zimmerman, July 2014, Professor of International Law, University of

Potsdam; member of the Permanent Court of Arbitration; former member and
adviser of the German delegation to the Preparatory Committee and the UN
Diplomatic Conference on the Establishment of an International Criminal
Court. This article is dedicated to the late judge Hans-Peter Kaul, head of the
German delegation during the Rome Diplomatic Conference, Meltmen Sener,
Research assistant and doctoral candidate in international law, University of
Potsdam, American Journal of International Law, CURRENT
DEVELOPMENTS: CHEMICAL WEAPONS AND THE INTERNATIONAL
CRIMINAL COURT, p. 447-8
​

It is thus doubtful, to say the least, whether the ICC has subject-matter jurisdiction
specifically with regard to the war crime of using chemical weapons in
noninternational armed conflicts, even in case of a Security Council referral, in
relation either to parties to the Rome Statute that have not ratified the Article 8
amendment on poison and poisonous gases or to states that are not party to the
Rome Statute at all. The ICC's treaty-based jurisdiction is limited except in
relation to the relatively few contracting parties to the Rome Statute that have
ratified the Kampala amendment on the use of chemical weapons in
noninternational armed conflicts.
When adopting Resolution 2118 (2013), the Security Council "determine[d]
that the use of chemical weapons anywhere constitutes a threat to international
peace and security,"thereby also opening up the possibility of a Chapter VII--based
referral under Rome Statue Article 13(b) in such scenarios. As we have seen,
however, it remains doubtful whether such a referral in the future would cover, in
noninternational armed conflicts, the war crimes newly added in Kampala.
Given the nature of chemical weapons, their use might nevertheless, depending
on the circumstances of such use, also constitute cruel treatment under Rome
Statute Article 8(2)(c)(i), intentional attacks against a civilian population under
Article 8(2)(e)(i), or, if the requirement of a widespread or systematic attack
against a civilian population is satisfied, a crime against humanity under Article
7(1)(a) or (k). Any punishment under these provisions, however--apart from being
more difficult to prove--would not cover the specific wrongfulness inherent in the
use of chemical weapons.
Under these circumstances, and given the abhorrent nature of chemical
weapons, it may be desirable for the contracting parties of the Rome Statute to
address the matter in due course. They might usefully clarify--for example, by
adopting a decision establishing their agreement, within the meaning of Article
31(3)(a) of the Vienna Convention on the Law of Treaties n69--that what was
agreed in Kampala regarding the court's jurisdiction pursuant to Security Council
referrals for the crime of aggression applies mutatis mutandis to the amendment
concerning Article 8 for chemical weapons. The appropriate timing might be when
the contracting parties come together, after January 1, 2017, to decide on
activating the court's jurisdiction as to the crime of aggression under Article 15
bis(3) of the Rome Statute.
​

Blocks for: ICC Treats Africa Unfairly

No support in Africa for withdrawing from the ICC

Dr Naldi, November 2014, is a Research Scholar in International Law, Great

Britain. Dr Magliveras is an Associate Professor at the University of the
Aegean, Greece,
African Union Establishes An International Criminal Court, International
Enforcement Law Reporter, p. 435
Should a significant number of African States withdraw
from the Rome Statute, this would have disturbing
implications for the ICC's role and standing. However,
certain African countries, e.g., Botswana, Uganda and
South Africa, are staunch ICC supporters. In fact, the
deep divisions caused by this issue were on display at
an extraordinary session of the Assembly that took place
in October 2013 on the AU's relationship with the ICC
where a call for mass withdrawal from the Rome Statute
failed to be carried. n36 For those African States
refusing to sign up to the Protocol, the Rome Statute
would continue to govern. But the ICL Section is
designed, inter alia, to attract those African regimes
that would never contemplate accepting the Rome Statute,
although whether some of the worst perpetrators of human
rights abuses would choose this course of action is open
to doubt.
​

Blocks for: New Africa Court Superior/Solves

New Africa court doesn’t have the resources to solve

Dr Naldi, November 2014, is a Research Scholar in International Law, Great

Britain. Dr Magliveras is an Associate Professor at the University of the
Aegean, Greece,
African Union Establishes An International Criminal Court, International
Enforcement Law Reporter,

The fact that the AU twelve years after the commencement

of its operations has still no functioning general
judicial organ is arguably an embarrassment. So far, the
African Court of Justice and Human Rights has attracted
few ratifications and whether adding the functions of an
international criminal tribunal to it will attract
greater support remains to be seen. There can be little
doubt about the AU's depth of feeling at what it
perceives as the ICC's persecution of African officials
in defiance of established principles of international
law. n38 In large measure, the 2014 Protocol must be
viewed in this light. The AU should receive praise for
making bold moves and introducing novel features (e.g.
corporate liability).
​

Blocks for: ICC Violates the Sixth Amendment

An international criminal court would not violate the Sixth Amendment.

Adrian T. Delmont, “The International Criminal Court: The United States Should Ratify the
Rome Statute Despite Its Objections”, Journal of Legislation, Volume 27, 2001.
All three bills introduced in Congress in direct opposition to the Rome Statute claim that the
ICC will not afford defendants the right to confront and cross-examine all witnesses for the
prosecution. This statement, claiming a violation of defendant's Sixth Amendment rights, is
true only in so far as it as stated as an absolute. While defendants may not have the
opportunity to cross-examine all witnesses against him or her, they will, pursuant to the
Rome Treaty, be entitled to "examine, or have examined, the witnesses against him or her and
to obtain the attendance and examination of witnesses on his or her behalf under the same
conditions as witnesses against him or her."
International courts would protect the right to a speedy trial.

Adrian T. Delmont, “The International Criminal Court: The United States Should Ratify the
Rome Statute Despite Its Objections”, Journal of Legislation, Volume 27, 2001.
The Rome Statute explicitly states: "The Trial Chamber shall ensure that a trial is fair and
expeditious and is conducted with full respect for the rights of the accused and due regard for
the protection of victims and witnesses." Furthermore, the Rome Statute states, "in the
determination of any charge, the accused shall be entitled ... to the following minimum
guarantees, in full equality: . . . to be tried without undue delay." Also, the Pre-Trial Chamber
has the power not only to dismiss a case, for various reasons, but may review the
justifications and length of a defendant's detention before trial. Thus, although the ICC may
lack the terminology of American courts, it will surely have at its disposal a procedure to
protect the right of a "speedy trial."
​

Blocks for: “Aggression” Cases Bad

“Aggression” cases will not be adjudicated by the ICC

Sigall Horovitz, Gilad Noam, Yuval Shany, 2014, Assessing the Effectiveness of International Courts,
2014, Print ISBN-13: 9780199643295. Horovitz -- University of Haifa, Faculty of Law, Post-Doc. Studies
International Law, Transitional Justice, and International Criminal Law. Noam -- a LLD candidate
(doctorate in law) at the Hebrew University of Jerusalem. Hersch Lauterpacht Chair in Public International
Law and Dean. Hebrew University, p. 232

The Court’s direct influence on matters of peace and security may be

enhanced once the amendment of the Statute defining the crime of
aggression will enter into force and the ICC will start exercising jurisdiction
over this crime.52 However, since unlike the other crimes under the Court’s
jurisdiction, the ICC’s jurisdiction over the crime of aggression would be
exercised only with respect to state parties to the Statute, and given that the
states parties were also granted the possibility of opting out from the Court’s
jurisdiction with regard to this crime by way of a unilateral declaration, we
expect that few (if any at all) aggression cases would be adjudicated by the
Court in the foreseeable future.53

ICC establishes a model for prosecutorial fairness and legitimacy

Sigall Horovitz, Gilad Noam, Yuval Shany, 2014, Assessing the Effectiveness of International Courts,
2014, Print ISBN-13: 9780199643295. Horovitz -- University of Haifa, Faculty of Law, Post-Doc. Studies
International Law, Transitional Justice, and International Criminal Law. Noam -- a LLD candidate
(doctorate in law) at the Hebrew University of Jerusalem. Hersch Lauterpacht Chair in Public International
Law and Dean. Hebrew University, p. 236-7

(ii) Projecting an image of procedural fairness and legitimacy

Various provisions in the ICC Statute are designed to ensure that the
proceedings are conducted in accordance with international standards of due
process: these (p.237) provisions include, inter alia, detailed rules on the
rights of suspects during an investigation and on the rights of the accused,80
an explicit assertion of the presumption of innocence,81 and a right of a
convicted person to appeal on any ground that “affects the fairness or
reliability of the of the proceedings or decision.”82 The Statute also includes
a general statement that the application and interpretation of the law by the
Court “must be consistent with internationally recognized human rights.”83
The drafters’ expectation that the Court would strictly adhere to high
standards of procedural fairness is consistent with the view expounded upon
​

in this book, according to which international courts are intended to

legitimate the operation of international norms and institutions and that only
legitimate courts can further confer legitimacy. It thus appears plausible to
maintain that the ICC is entrusted with the intermediate goal of promoting
the legitimacy of its operation—in particular, through adhering to due
process standards—and with the ultimate end of legitimating the application
of ICL in general.
​

Blocks for: No Judicial Independence

ICC has strong judicial independence

Sigall Horovitz, Gilad Noam, Yuval Shany, 2014, Assessing the Effectiveness of International Courts,
2014, Print ISBN-13: 9780199643295. Horovitz -- University of Haifa, Faculty of Law, Post-Doc. Studies
International Law, Transitional Justice, and International Criminal Law. Noam -- a LLD candidate
(doctorate in law) at the Hebrew University of Jerusalem. Hersch Lauterpacht Chair in Public International
Law and Dean. Hebrew University, p. 240

The ICC’s judicial independence and impartiality bear a direct impact on its
goal attainment potential, as an independent and impartial Court is more
legitimate in the eyes of certain governments and thus better situated to
attain its goals. Several provisions in the Statute aim to enhance the ICC’s
judicial independence and impartiality.100 Some of them require the ICC
judges, prosecutor and deputy prosecutors to serve on a full-time basis and
refrain from engaging in activities that can interfere with their work at the
ICC.101 Other provisions establish the procedures (eg, nomination by states,
followed by secret election by the ASP)102 and qualifications (eg, high moral
character, relevant competence and knowledge)103 for the appointment of the
judges and lead prosecutors.

The Statute further reduces the likelihood of political interference in the

work of the judges and lead prosecutors by guaranteeing them a
non-renewable nine-year (p.241) term of service,104 with privileges and
immunities,105 and no salary decreases during their terms in office.106 The
Statute also includes provisions strengthening the independence of the
prosecution specifically: it requires the prosecutor and his staff to be
independent from other Court organs, and refrain from following
instructions given by external actors.107
​

Blocks for: Court Not Legitimate

Many features of the Court boost its legitimacy

Sigall Horovitz, Gilad Noam, Yuval Shany, 2014, Assessing the Effectiveness of International Courts,
2014, Print ISBN-13: 9780199643295. Horovitz -- University of Haifa, Faculty of Law, Post-Doc. Studies
International Law, Transitional Justice, and International Criminal Law. Noam -- a LLD candidate
(doctorate in law) at the Hebrew University of Jerusalem. Hersch Lauterpacht Chair in Public International
Law and Dean. Hebrew University, p. 243-5

Other legitimacy-enhancing features of the ICC include its victim

participation and reparation schemes, the complementarity principle and
gravity requirement, the interests of justice considerations,
jurisdiction-triggering mechanisms, and its outreach activities. As explained
in Section 10.2, the Statute facilitates victim participation and reparation
rights; such participation and reparation may help restore the victims’
dignity and provide them with material resources, enabling them to rebuild
their lives. Furthermore, recognizing individuals harmed by atrocities as
“victims” can, in itself, increase victims’ sense of justice. The Court’s
victim-centered approach can render its proceedings and outcomes more
legitimate not only in the eyes of victims and their relatives, but also in the
eyes of many states, international organizations, and domestic civil society
groups that regard catering for the needs of victims as an important element
of restorative justice facilitated by the Court.

The principle of complementarity and the requirement of gravity can also

enhance the Court’s legitimacy. According to the principle of
complementarity, enshrined in Article 17 of the Rome Statute, the ICC is a
court of last resort and is therefore complementary (or residual) to the
jurisdiction of national courts.116 The Court will not exercise jurisdiction over
a case if it is or has been addressed at the domestic level, unless the national
proceedings are not genuine.117 This norm has, in and of itself, the potential
to enhance states’ acceptance of the ICC’s authority, as they are likely to be
more inclined to accept an international body that prioritizes their acts and
policies over its own and adheres, to a large extent, to the sovereignty
principle.118 The cost-effectiveness implications of the complementarity
principle, directing the ICC to exercise jurisdiction only as a last resort, may
also increase state parties’ support of the Court.

Article 17 also enshrines the gravity requirement, by providing that a case is

inadmissible before the ICC when it is insufficiently grave. Additional
jurisdictional limitations of the ICC that reflect gravity considerations
​

include the confinement of jurisdiction only to the most serious international

crimes, and the Statute’s strong suggestion that the ICC only prosecute war
crimes committed (p.244) as part of a plan or policy or on a large scale.119
Even if their main rationale is instrumental (cost-effectiveness concerns),
these limitations can also enhance the legitimacy of the ICC, as they assure
states that the Court only intervenes in exceptional cases, where strong
justice considerations support an international response. Likewise, “interest
of justice” considerations ensure that the Court’s exercise of jurisdiction
would not otherwise conflict with strong notions of justice, such as the
disruption of alternative justice mechanisms operating at the domestic
level120 or harming the interests of victims.121

As already noted, the manner in which the Court acquires jurisdiction (ie,
the Court’s jurisdictional bases and “triggering mechanisms”) may also have
legitimacy-related implications: self-referrals enhance the Court’s legitimacy
in the eyes of the referring states who explicitly consent thereby to the
specific investigation; yet states that are not parties, whose nationals are
accused of committing crimes on the territory of ICC state parties, regard the
Court’s exercise of jurisdiction under circumstances in which their consent
to jurisdiction is lacking as illegitimate.122 This is because the exercise of
jurisdiction conflicts, prima facie, with the notion that international
adjudication cannot be imposed on sovereign states against their will
(notwithstanding the fact that, formally speaking, the cases are brought
against individuals, not states).

Where the prosecutor seeks to initiate an investigation proprio motu with

respect to crimes that had occurred in the territory or by nationals of state
parties, legitimacy challenges may still be raised. Although the ex ante
consent to jurisdiction attendant to ratification of the Statute is a
legitimacy-enhancing factor, the relevant state may still criticize the
procedure applied by the prosecutor or the legality of her decision.123 The
prosecutor’s need to get an authorization from the ICC Pre-Trial Chamber
before she opens a proprio motu investigation may somewhat mitigate,
however, the seriousness of the challenges to the Court’s legitimacy.124

(p.245) Although referrals by the UN Security Council may be regarded as

legitimate by broad constituencies, given the ability of the Council to speak
on behalf of the international community as a whole, some states, including
those whose nationals constitute the subject of ICC proceedings, may still
object to the Court’s jurisdiction and regard proceedings initiated in the
​

absence of state consent as illegitimate. For example, following the Security

Council’s referral of the situation in Sudan to the ICC, Sudan challenged the
legitimacy of ICC proceedings and convinced other African countries to join
it in its protest.125 Significantly, the Court may not be in a position to hold
trials without cooperation from the state in whose territory the crimes in
question took place, and where the suspects, witnesses, and physical
evidence are present.

For similar reasons, legitimacy in the eyes of populations directly affected

by the investigation can be important for the ICC, as popular support of the
ICC might pressurize governments to comply with ICL norms and ICC
decisions. In this sense, the ICC’s outreach activities can have a significant
legitimacy-enhancing potential, as they can increase support for the Court
among affected populations. Furthermore, outreach activities can be useful
in managing expectations of victims from the ICC and in offsetting
disappointments that might be caused by the Court’s lengthy and
cumbersome proceedings.
​

ICC Holds Peacekeepers Responsible for Sex Crimes

ICC OFFERS WAY TO HOLD PEACEKEEPERS ACCOUNTABLE FOR SEXUAL CRIMES

Veena Seesurrun, European Master’s Degree in Human Rights and

Democratization, University of Vienna, “The price of peace: the case of sexual
exploitation in UN peacekeeping”, July 2003,
http://www.univie.ac.at/bim/download/Thesis_Veena_Seesurrun.pdf.
(HARVUN1780)

However one could argue some of the more severe cases could be categorised
under the Rome Statute as crimes against humanity under Article 7 1(g)
encompassing ‘Rape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization, or any other form of sexual violence of comparable gravity’.
However this would probably be difficult to prove as the threshold to hear cases
before this court is very high. Despite this human rights activists have argued that
the ICC does offer a means of ensuring the accountability of peacekeepers.

UN PEACEKEEPERS VIOLATE HUMAN RIGHTS AND SELL ARMS

Worldwide Refugee Information, UN peace operations: past and future, November

2000, http://www.refugees.org/world/articles/un_rr00_11.htm (HARVUN1782)
In other cases, undisciplined UN peacekeepers have themselves been accused of
perpetrating human rights violations and other crimes, including credible
allegations that some peacekeepers sold weapons to the very factions in Sierra
Leone that the UN was committed to controlling and disarming.
UN PEACEKEEPERS HAVE BEEN ACCUSED OF COMMITTING
ATROCITIES
Frederick H. Fleitz, Jr., Special assistant to the under secretary of state for arms
control and international security, Peacekeeping Fiascoes of the 1990s: causes,
solutions and US interests, 2002, p. 121 (HARVUN1784)
A small number of UN contingents deployed to expanded peacekeeping missions
have been accused of committing “atrocities” against civilians. Upon examination,
most of these allegations proved to be propaganda spread by recalcitrant parties
hoping to discredit UN peacekeepers. However, some of these reported incidents
may be a consequence of sending international troops to participate in poorly
designed peacekeeping missions with impossible mandates, especially combining
pacific peacekeeping mandates with combat mandates. True or not, these
allegations hurt peacekeeping and damaged the reputations of key peacekeeping
states. Some of these allegations include: Belgium tried two soldiers in 1997 for
torturing two children, including allegedly trying to roast a child over a fire in
​

Somalia, probably in 1994. Both children survived. Italian newspapers published

photos in 1997 of an Italian peacekeeper applying electrodes to the hands and
genitals of a Somali, probably in 1994. Canada prosecuted Canadian peacekeepers
in 1996 for murdering a Somali teenager and photographing themselves next to the
corpse/ UN peacekeepers in Cambodia—especially the Bulgarian
contingent—were accused of engaging in numerous acts of criminal activity,
including black marketeering, rape, and running brothels.
​

Peacekeepers Commit Crimes

PEACEKEEPERS HAVE BEEN GUILTY OF TORTURE

Sandra Withworth, Center for International Security Studies, York University,

University of Bradford [London], A Future for Peacekeeping?, ed. E.
Moxon-Browne, 1998, p. 182 (HARVUN1785)

The release of the very graphic and horrifying photographs of Arone’s murder (the
soldiers themselves called them “trophies”), and the subsequent revelations by the
Canadian military doctor that he had been pressured to cover up details of the 4
March shooting led the Canadian Minister of National Defense to call for a public
inquiry into the Somalia mission. This was followed two months later by the
release of two sets of videos, the first a video from the Somalia mission, portions
of which portray Airborne soldiers describing the Somalia missions as “Operation
Snatch Niggers,” the second a number of videos depicted the Airborne’s hazing
rituals which included among other things, images of Airborne soldiers vomiting
or eating vomit, being smeared with feces, and with the single black soldier in the
regiment being forced to walk around on all fours with the phrase “I love the
KKK” written in feces on his back. The first reaction by mainstream observers of
peacekeeping to the Arone murder was to dismiss it as the act of a few “bad
apples”. The bad apple theory, moreover, was quickly linked by military apologists
to problems associated with economic downsizing. As Joseph Jockel argued, the
Somalia crisis was the result of a personnel shortage, itself the result of years of
underfunding. Under these circumstances, for Jockel, the army ‘felt compelled to
send to Somalia a unit of the Canadian Airborne Regiment whose fitness for
deployment was doubtful.” The release of the Somalia and hazing videos
undermined the “bad apple” theory and suggested, at least, that the type of
behavior which led to the shootings and Arone’s brutal murder was more
pervasive within the Airborne Regiment, if not the Canadian military as a whole.

UN PEACEKEEPERS HAVE BEEN GUILTY OF VIOLATING HUMAN RIGHTS

Michael V. Bhatia, Center for Strategic and Budgetary Assessments, War and
Intervention: Issues for contemporary peace operations, 2003, p. 111
(HARVUN1786)
In discussing the redress of past abuses, it is also necessary to examine the
problem of abuses against the civilian population by members of the peace
operation. National contingents in UN Peace operations have directly engaged in
violations of human rights from torture to the trafficking of women for the purpose
of prostitution.
​
​

Peacekeeper Crimes Justify ICC jurisdiction

ALLEGATIONS OF CRIMES COMMITTED BY PEACEKEEPERS MEANS ICC SHOULD HAVE JURISDICTION

Human Rights Watch, The ICC and the Security Council: Resolution 1422, 2003,
http://www.hrw.org/campaigns/icc/docs/1422legal.htm (HARVUN1896)

Defenders of the resolution argued that, as a matter of practice, 1422 would not
damage the "core" of the ICC's jurisdiction by exempting a class of individuals
from ICC jurisdiction because the risk of U.N. peacekeepers committing Rome
Statute crimes was said to be very low. Even if this is true most of the time, it is
still no justification for violating Article 27. And Human Rights Watch has
recently documented crimes of sexual violence, including rape, allegedly
perpetrated by ECOMOG and UNAMSIL peacekeepers in Sierra Leone (see
"We'll Kill You if You Cry" at http://www.hrw.org/reports/2003/sierraleone).
These disturbing allegations highlight the necessity to preserve Article 27 intact.
​

ICC Accession Bad

​

Politics Links
No Political support in the US to accede to the ICC

Vijay Padmanabhan, Visiting Assistant Professor of Law, Benjamin N. Cardozo

School of Law, Yeshiva University, 2010, From Rome to Kampala: The U.S.
Approach to the 2010 International Criminal Court Review Conference,
http://www.cfr.org/courts-and-tribunals/rome-kampala/p21934 DOA: 11-22-14

For the foreseeable future the United States is unlikely to become a member of the
International Criminal Court (ICC), the international tribunal in The Hague responsible for
prosecuting human rights atrocities and war crimes. From the time the Rome Statute of the
International Criminal Court (the “Rome Statute”)—the treaty that established the ICC—was
negotiated in 1998, the United States has voiced strong concerns about the ICC exercising
jurisdiction over nationals of nonparties and the ICC prosecutor’s authority to investigate and
prosecute suspects without the approval of the UN Security Council. Those concerns have
not been alleviated, and the Obama administration has said that it will not seek U.S. Senate
approval of the Rome Statute in the near future. Even if the treaty were submitted to the
Senate, the Senate would not approve it in its current form.
Joining the ICC would cost the President political capital

Butch Bracknell, May 26, 2011, Los Angeles Times, “The U.S. and the
International Criminal Court: An unfinished debate,”
http://articles.latimes.com/2011/may/26/opinion/la-oe-bracknell-icc-20110526

The answer for public consumption is that U.S. accession to the

Rome Statute, which established the International Criminal Court,
is not an imminent issue because U.S. processes for achieving
accountability function well: The military and civilian courts are
open, the government already is bringing cases to court where the
evidence warrants, and convictions are occurring on a sufficiently
regular basis. The subtext is that the Obama administration has to
prioritize where to spend political capital and carefully select its
fights. Nonetheless, as a nation, we need to revive the debate over
joining the ICC.

Senate opposes the ICC

Judge Keith Pesto, April 27, 2012 is a Federal Magistrate Judge for the United
States District Court for
the Western District of Pennsylvania, Johnstown
Division.http://www.juniata.edu/services/jcpress/voices/pdf/2012/jv_2012_139-144.pdf DOA: 11-23-14
​

Since 2009, President Obama’s Secretary of State, Hillary Clinton, has expressed “regret”
that the
United States has not joined the ICC; but despite that and other favorable comments
within President Obama’s administration, there has been no push for ratification. Since
the Constitution requires the consent of two-thirds of the Senate for ratification, it is safe
to say that the United States will not ratify the Rome Statute any time soon, regardless of
who is in the White House.
​

Undermines US Leadership – Definition of “Aggression”

Prosecuting aggression politicizes prosecution and threatens US hegemony

Vijay Padmanabhan, Visiting Assistant Professor of Law, Benjamin N. Cardozo

School of Law, Yeshiva University, 2010, From Rome to Kampala: The U.S.
Approach to the 2010 International Criminal Court Review Conference,
http://www.cfr.org/courts-and-tribunals/rome-kampala/p21934 DOA: 11-22-14

Prosecuting aggression risks miring the court in political disputes regarding the causes of
international controversies, thereby diminishing its effectiveness and perceived legitimacy in
dispensing justice for atrocity crimes. ICC jurisdiction over aggression also poses unique
risks to the United States as a global superpower. It places U.S. and allied leaders at risk of
prosecution for what they view as necessary and legitimate security actions. Adding
aggression to the ICC’s mandate would also erode the primacy of the UN Security Council in
managing threats to international peace. For these reasons, a decision among state parties in
Kampala to add aggression crimes to the ICC’s jurisdiction would jeopardize U.S.
cooperation with the court, including possible future financial and infrastructure assistance,
political and military support in capturing suspects, and classified information sharing
essential to prosecutions. The ICC will be more successful with such assistance.
Three reasons the ICC’s definition of “aggression” is problematic

Vijay Padmanabhan, Visiting Assistant Professor of Law, Benjamin N. Cardozo

School of Law, Yeshiva University, 2010, From Rome to Kampala: The U.S.
Approach to the 2010 International Criminal Court Review Conference,
http://www.cfr.org/courts-and-tribunals/rome-kampala/p21934 DOA: 11-22-14

A Special Working Group on the Crime of Aggression (“Working Group”) has proposed a
draft definition of aggression for consideration at the review conference. The proposed
amendment is notable in three respects. First, the same ambiguous definition of aggression
used in the 1974 UN General Assembly resolution is proposed for use by the ICC. Second,
only political and military leaders of states may perpetrate aggression; nonstate groups and
rank-and-file members of the armed forces cannot. Third, jurisdiction is limited to an act of
aggression, “which, by its character, gravity and scale, constitutes a manifest violation of the
Charter of the United Nations.” Although this term is designed to limit the ICC’s jurisdiction
to the most serious cases of aggression, “manifest” is not further defined.

Restraints on “aggression” threaten US global security

Vijay Padmanabhan, Visiting Assistant Professor of Law, Benjamin N. Cardozo

School of Law, Yeshiva University, 2010, From Rome to Kampala: The U.S.
Approach to the 2010 International Criminal Court Review Conference,
http://www.cfr.org/courts-and-tribunals/rome-kampala/p21934 DOA: 11-22-14
​

The top priority for the United States at the review conference should be to avoid amendment
of the Rome Statute to activate jurisdiction over aggression. The lack of clear legal standards
defining aggression poses dangers to the court’s ability to function effectively and to U.S.
security interests. Unlike atrocity crimes, for which the content of international law is
reasonably well established, the law on resort to force is more nebulous. The proposed
definition reflects this uncertain state of the law by merely listing acts that might constitute
aggression without defining when those acts are unlawful. The definition does not address
how claims of self-defense or humanitarian necessity affect the categorization of the use of
force as aggression. It is unclear, for example, whether NATO’s 1999 Kosovo intervention
would be criminal under the Working Group definition. It is similarly unclear whether a
preventive or preemptive strike against a proliferator of weapons of mass destruction
(WMD)—for example, a U.S. or Israeli strike against suspected Iranian nuclear weapon
program sites—would constitute criminal aggression. If the ICC claimed jurisdiction over
such an attack, the ICC prosecutor and the ICC would have authority, but no clear guidance
in the Rome Statute, to determine whether U.S. or Israeli action was an act of aggression or
justified as an action in self-defense.13
As a global power, US is especially at risk for prosecutions over “aggression”

Vijay Padmanabhan, Visiting Assistant Professor of Law, Benjamin N. Cardozo

School of Law, Yeshiva University, 2010, From Rome to Kampala: The U.S.
Approach to the 2010 International Criminal Court Review Conference,
http://www.cfr.org/courts-and-tribunals/rome-kampala/p21934 DOA: 11-22-14

Activating aggression jurisdiction is also likely to exacerbate concerns about the ICC among
U.S. interest groups and stakeholders, including on Capitol Hill and within the Pentagon.
U.S. concerns about the ICC stem in part from the court’s claim of the right to prosecute U.S.
nationals without U.S. consent. Since the United States regularly deploys force in its role as a
global superpower, it is substantially at risk of politicized second-guessing of the use of force
by other states. This risk would be especially acute with regard to aggression jurisdiction
because U.S. law does not criminalize acts of aggression. The United States cannot request an
ICC prosecutor to defer to a U.S. domestic investigation of aggression, and Congress is
highly unlikely to try to criminalize aggression by U.S. officials.
​

Undermines US Leadership – Warfighting/Military Readiness

Joining an international criminal court hinders U.S. war efforts.

Jack Goldsmith, “The Self-Defeating International Criminal Court”, The University of

Chicago Law Review, Vol. 70, No. 1, 2003.
First, U.S. troops do not hide behind U.S. borders. Hundreds of thousands of them are spread
across the globe and can much more readily be nabbed and whisked away to The Hague. The
possibility of capture is thus much more salient for U.S. troops or officials. Even a remote
chance that one of them may be prosecuted will understandably concern U.S. leaders.
Second, even if no U.S. official ends up in The Hague, the ICC can affect the United States
by merely investigating alleged crimes and engaging in official public criticism and judgment
of U.S. military actions.
ICC WILL CONSTRAIN OUR MILITARY

Casey et al., partner in Baker & Hostetler LLP, THE FEDERALIST SOCIETY,
February 8, 2002, p. http://www.fed-soc.org/Publications/Terrorism/ICC.pdf.
(DRG/C674)

Given the importance of the United States in promoting world security and
keeping in mind our national security interests, the United States has been and
should continue to be concerned with the adverse effects that the ICC, as currently
proposed, might have on our foreign policy decisions and the threat of ICC
prosecution facing everyone in our military chain of command, from the President
as Commander-in-Chief to our soldiers, sailors, airmen and marines who carry out
American military operations.
MILITARY WILL SELF-RESTRAIN

William L. Nash, Retired Army General and John W. Vessey Senior Fellow and
Director of the Center for Preventive Action, THE UNITED STATES AND THE
INTERNATIONAL CRIMINAL COURT, edited by Sarah Sewall and Carl
Kaysen, 2000, p. http://www.amacad.org/publications/icc9.htm. (DRG/C675)

First, U.S. concern about avoiding such charges could lead to unwise operational
constraints. For example, if the military were directed to adopt as operational
policy stricter interpretations of "proportionality," this could reduce the speed,
mass, and dominance that have characterized U.S. military operations in the past
decade (and lower casualties). Concerns about incidental loss of life could result in
even more conservative targeting. Some would call this a positive development,
but repeated piecemeal efforts increase the risks to both parties and are usually
more harmful in the long run.
​

ICC CHILLS US DEPLOYMENT AND RISKS POLITICAL PROSECUTIONS

Major Michael L. Smidt, Professor of International and Operational Law at the

U.S. Army Judge Advocate General's School, MILITARY LAW REVIEW, March
2001, p.157-158. (DRG/C694)

The military remains the most credible and effective form of deterrence in the
international arsenal of weapons to prevent war and massive human rights abuses.
Within the international military community, the U.S. armed forces are better
prepared than any other entity to deter aggressive regimes and their leaders.
Therefore, any move by the international community to sacrifice on the alter of
justice the deterrent capability of the armed forces of the United States and its
allies cannot be accepted. However well-intentioned advocates for the
International Criminal Court (ICC) may be, the proposed court represents a
significant threat to the national security of the United States and its allies as
currently formulated. There is certainly room, and arguably a need, for a
permanent international criminal court. However, the provisions of the ICC simply
place too many significant risks on nations and their armed forces that are equally
determined to rid the world of oppression. Political prosecutions before the ICC
are so probable that the forces of good may be deterred from taking on the forces
of evil. Since the forces of evil will recognize the deterrent influence of such
politically based prosecutions on potential responders, the leaders of these regimes
may make entirely rational decisions to commit acts of aggression, knowing they
can act without fear of military intervention from foreign forces.

ICC WILL BECOME POLITICIZED WITH WILL CHILL US TROOP DEPLOYMENTS

Major Michael L. Smidt, Professor of International and Operational Law at the

U.S. Army Judge Advocate General's School, MILITARY LAW REVIEW, March
2001, p.198-199. (DRG/C695)

Under this jurisdictional scheme, a non-state party could launch an aggressive war
into a neighboring state. If other states then responded and attacked the aggressor
on the territory of the aggressor, the aggressor could consent to jurisdiction for the
crimes allegedly committed by the responders in the aggressor's territory and not
consent to jurisdiction for his own alleged crimes. This appears to be a possibility
because a non-state party can consent to a "crime in question" rather that an entire
incident or conflict. Not only will traditional uses of military force, such as
defense of self or others, be risky, less traditional operations such as peace
operations and humanitarian intervention will likely be so politically charged as to
be avoided at nearly all costs.
​
​

ICC Threatens Military Readiness – Allies

ICC undermines US-Allied military cooperation

Brett D. Schaefer and Steven Groves, 2009, The United States Should Not Join the International Criminal
Court,
http://www.heritage.org/research/reports/2009/08/the-us-should-not-join-the-international-criminal-court
Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs and Steven Groves is Bernard
and Barbara Lomas Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and
Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.DOA: 11-23-14

Complications to Military Cooperation Between the U.S. and Its Allies.

The treaty creates an obligation to hand over U.S. nationals to the court,
regardless of U.S. objections, absent a competing obligation such as that
created through an Article 98 agreement. The United States has a unique role
and responsibility in preserving international peace and security. At any
given time, U.S. forces are located in approximately 100 nations around the
world, standing ready to defend the interests of the U.S. and its allies,
engaging in peacekeeping and humanitarian operations, conducting military
exercises, or protecting U.S. interests through military intervention. The
worldwide extension of U.S. armed forces is internationally unique. The
U.S. must ensure that its soldiers and government officials are not exposed
to politically motivated investigations and prosecutions.
​

Undermines US Leadership -- General

Multilateral treaty restraints make the US appear to lack being a special power

WASHINGTON TIMES, August 27, 2002, p.

http://www.benadorassociates.com/article/77. (DRG/C647)

A series of "global" agreements — governing everything from climate change to

nuclear tests to war crimes — were consummated with active U.S. involvement
and with manifest disregard for American sovereignty and constitutional
processes. Over time, the nation inexorably became hamstrung like Gulliver, both
by myriad institutionalized constraints and obligations and by the logic that the
United States was just another country, one whose vote and influence in
multinational councils should count no more than any others'.
ICC will be used to attack the US

Cavalier Daily, “Ineffective International Criminal Court,” April 22, 2002,

http://www.cavalierdaily.com/CVarticle.asp?ID=12230&pid=864
(HARVUN1990)

THE DAYS of U.S. global leadership are coming to an end. Unless something is
done immediately, the planned International Criminal Court will provide a forum
for anti-American elements around the world to turn their grudges into an attack
upon U.S. citizens while doing little to punish actual war criminals - the ICC's
stated purpose. The Bush administration must derail the UN's efforts to form the
Court before U.S. sovereignty is compromised.
​

Undermines US Leadership – Diplomacy

ICC undermines US diplomacy

Brett D. Schaefer and Steven Groves, 2009, The United States Should Not Join the International Criminal
Court,
http://www.heritage.org/research/reports/2009/08/the-us-should-not-join-the-international-criminal-court
Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs and Steven Groves is Bernard
and Barbara Lomas Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and
Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.DOA: 11-23-14

Disruption of Diplomatic Efforts. ICC decisions to pursue investigations

and indictments can upset delicate diplomatic situations. Although the U.N.
Security Council has been largely deadlocked over placing strong sanctions
on the government of Sudan for its complicity in the terrible crimes in
Darfur, it did pass a resolution in 2005 referring the situation in Darfur to the
ICC. In summer 2008, the ICC announced that it would seek an indictment
against Sudanese President Omar al-Bashir for his involvement in crimes
committed in Darfur. On March 4, 2009, a warrant was issued for his arrest.

Issuing the arrest warrant for Bashir was certainly justified. His government
has indisputably supported the janjaweed militias that have perpetrated
massive human rights abuses that rise to the level of crimes against
humanity. His complicity in the crimes demands that he be held to account.
Regrettably, the decision to refer the case to the ICC and the subsequent
decision to issue an arrest warrant for the sitting Sudanese head of state have
aggravated the situation in Darfur and may put more innocent people at risk.

In response to his indictment, Bashir promptly expelled vital humanitarian

NGOs from Sudan. Bashir may ultimately decide he has nothing to lose and
increase his support of the janjaweed, encouraging them to escalate their
attacks, even against aid workers and U.N. and AU peacekeepers serving in
the African Union/UN Hybrid operation in Darfur (UNAMID). It could also
undermine the 2005 peace agreement meant to reconcile the 20-year
north-south civil war, which left more than 2 million dead.

Moreover, the decision to seek the arrest of Bashir, cheered by ICC

supporters, may actually hurt the court in the long run. African countries,
which would bear the most immediate consequences of a more chaotic
Sudan, have called on the Security Council to defer the Bashir prosecution.
Sudan's neighbors may be forced to choose between arresting Bashir, which
​

could spark conflict with Sudan, or ignoring the court's arrest warrant.
Indeed, all AU members except for Botswana announced in July 2009 that
they would not cooperate with the ICC in this instance. South Africa
subsequently announced that it would honor the ICC warrant in August
2009. Whether the AU decision will have broader ramifications for the
court's relationship with African governments remains to be seen. Some
African ICC parties have mentioned withdrawing from the Rome Statute.

The desire to see Bashir face justice for his role in the crimes committed in
Darfur is understandable and should not be abandoned. However, premature
efforts to bring Bashir to justice may be counterproductive. The priority in
Sudan is to reduce the violence, stop the atrocities, restore peace and
security, reconstitute refugees, and set the region on a path to avoid a return
to conflict. This requires strong action by the AU and the international
community, including economic and diplomatic sanctions designed to bring
maximum pressure to bear on Bashir and his allies. It may require military
intervention. Once this is achieved, justice can be pursued by the Sudanese
themselves through their courts, through an ad hoc tribunal, or even through
the ICC.

In another situation, the Ugandan government referred alleged crimes

committed by the Lord's Resistance Army in northern Uganda to the court in
2004 in hopes of "engaging the western powers who had ignored the
situation in northern Uganda" and pressuring the LRA to negotiate a peace.
Regrettably, the LRA has responded by announcing that it will not agree to
peace talks until the ICC arrest warrants are withdrawn. If Uganda could
resolve its long festering conflict with the LRA by agreeing not to prosecute
its leader, it would have no ability to call off the ICC prosecution. Thus, the
ICC's involvement could be a real impediment to peace in Uganda, assuming
the LRA would abide by an agreement.

The desire to address tragedies such as those in Darfur and Uganda is as

laudable as the international community's unwillingness or inability to act is
frustrating. The perpetrators of war crimes, genocide, and crimes against
humanity should be held to account, but ICC investigation and arrest
warrants cannot substitute for decisive action to stop the perpetrators and
resolve such situations. Because the vast majority of the court's discretion
lies within the Office of the Prosecutor, there is little opportunity to resolve
disputes, conflicts, or sensitive political issues diplomatically after a case is
brought to the ICC.
​

Furthermore, the ICC prosecutor and judges are unlikely ever to be held
accountable if their decisions lead to greater carnage in Darfur or prolong
the conflict in Uganda. They are free to act without considering the potential
consequences. Others are not so lucky.

The long-term implications of supporting the ICC, which has become a wild
card in a foreign and security policy, are significant, and they emphasize the
need for the ICC to keep its distance from political issues.
​

ICC Undermines the UN

ICC erodes the UN charter

Brett D. Schaefer and Steven Groves, 2009, The United States Should Not Join the International Criminal
Court,
http://www.heritage.org/research/reports/2009/08/the-us-should-not-join-the-international-criminal-court
Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs and Steven Groves is Bernard
and Barbara Lomas Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and
Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.DOA: 11-23-14

Erosion of Fundamental Elements of the U.N. Charter. The ICC's

jurisdiction over war crimes, crimes against humanity, genocide, and
aggression directly involves the court in fundamental issues traditionally
reserved to sovereign states, such as when a state can lawfully use armed
force to defend itself, its citizens, or its interests; how and to what extent
armed force may be applied; and the point at which particular actions
constitute serious crimes. Blurring the lines of authority and responsibility in
these decisions has serious consequences. As Grossman notes, "with the ICC
prosecutor and judges presuming to sit in judgment of the security decisions
of States without their assent, the ICC could have a chilling effect on the
willingness of States to project power in defense of their moral and security
interests." The ability to project power must be protected, not only for
America's own national security interests, but also for those individuals
threatened by genocide and despotism who can only be protected through
the use of force.
​

“Aggression” Prosecution Undermines the Security

Council

Allowing prosecution for “aggression” undermines the critical role of the Security Council in diplomacy

Vijay Padmanabhan, Visiting Assistant Professor of Law, Benjamin N. Cardozo

School of Law, Yeshiva University, 2010, From Rome to Kampala: The U.S.
Approach to the 2010 International Criminal Court Review Conference,
http://www.cfr.org/courts-and-tribunals/rome-kampala/p21934 DOA: 11-22-14

Defining aggression vaguely could also have far-reaching security consequences even if the
definition could not be applied to the United States without U.S. consent. For example, the
lack of certainty could dissuade some potential coalition partners from participating in
legitimate and important security or humanitarian operations because of the risk that their
political leaders would subsequently be investigated by the ICC. Even if the definition were
clear, allowing ICC aggression prosecutions to proceed without Security Council
authorization could undermine Security Council efforts—including ongoing diplomacy—to
restore peace and stability in conflicts, perhaps by sending conflicting signals to the parties
regarding the merits of the underlying dispute. In other cases, the prosecutor’s decision not to
investigate or prosecute aggression using his or her independent authority could be
interpreted by the international community as legal acceptance, despite Security Council
views to the contrary. These concerns suggest that the Security Council, which is entrusted by
the UN Charter with responsibility for maintaining international peace and security, should
oversee determinations regarding aggression.
ICC’s self-initiated prosecutor undermines the Security Council

Vijay Padmanabhan, Visiting Assistant Professor of Law, Benjamin N. Cardozo

School of Law, Yeshiva University, 2010, From Rome to Kampala: The U.S.
Approach to the 2010 International Criminal Court Review Conference,
http://www.cfr.org/courts-and-tribunals/rome-kampala/p21934 DOA: 11-22-14

Second, the Rome Statute created a self-initiating prosecutor empowered to proceed with
prosecutions without the consent of the Security Council.3 Although the Rome Statute grants
the Security Council authority to delay investigations or prosecutions for up to a year, it
rejected proposals by the five permanent Security Council members (P5) that conditioned
jurisdiction on Security Council referral. The United States argued that this structure was
inconsistent with the UN Charter, which grants the Security Council primary authority in
maintaining international peace and security.
ICC threatens the UN Security Council

Brett D. Schaefer and Steven Groves, 2009, The United States Should Not Join the International Criminal
Court,
http://www.heritage.org/research/reports/2009/08/the-us-should-not-join-the-international-criminal-court
Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs and Steven Groves is Bernard
​

and Barbara Lomas Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and
Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.DOA: 11-23-14

The Challenges to the Security Council's Authority. The Rome Statute

empowers the ICC to investigate, prosecute, and punish individuals for the
as yet undefined crime of "aggression." This directly challenges the
authority and prerogatives of the U.N. Security Council, which the U.N.
Charter gives "primary responsibility for the maintenance of international
peace and security" and which is the only U.N. institution empowered to
determine when a nation has committed an act of aggression. Yet, the Rome
Statute "empowers the court to decide on this matter and lets the prosecutor
investigate and prosecute this undefined crime" free of any oversight from
the Security Council.[60]

ICC UNDERMINES THE UN SECURITY COUNCIL

John R. Bolton, Under Secretary for Arms Control and International Security,
REMARKS TO THE FEDERALIST SOCIETY, November 14, 2002, p.
http://www.state.gov/t/us/rm/15158.htm. (DRG/C691)

Under the UN Charter, the Security Council has primary responsibility for the
maintenance of international peace and security. The ICC’s efforts could easily
conflict with the Council’s work. Indeed, the Statute of Rome substantially
minimized the Security Council’s role in ICC affairs. While the Security Council
may refer matters to the ICC, or order it to refrain from commencing or
proceeding with an investigation or prosecution , the Council is precluded from a
meaningful role in the ICC’s work. In requiring an affirmative Council vote to stop
a case, the Statute shifts the balance of authority from the Council to the ICC.
Moreover, a veto by a Permanent Member of such a restraining Council resolution
leaves the ICC completely unsupervised. This attempted marginalization of the
Security Council is a fundamental new problem created by the ICC that will have
a tangible and highly detrimental impact on the conduct of U.S. foreign policy.
​

Targets Africa

ICC prosecution targeted against Africa

Vijay Padmanabhan, Visiting Assistant Professor of Law, Benjamin N. Cardozo

School of Law, Yeshiva University, 2010, From Rome to Kampala: The U.S.
Approach to the 2010 International Criminal Court Review Conference,
http://www.cfr.org/courts-and-tribunals/rome-kampala/p21934 DOA: 11-22-14

The fact that all cases have been brought against African defendants has also fueled criticism
among African states that the ICC is biased. African states have criticized proceeding with
the case against President Bashir, citing concerns about undermining peace efforts in Sudan.
African critics have also complained about inadequate involvement of victims in the ICC’s
work, and insufficient expenditure of resources to improve the capacity of national courts to
prosecute atrocity crimes.
Dominant power influence in the ICC triggering a backlash against the institution in Africa

David Bosco, 2014, Rough Justice: The International Criminal Court in A World
of Power Politics, Kindle Edition, page at the end of the card

There are signs that the court has already begun to experience that damage. The
backlash in many African capitals aft er President Bashir’s indictment marked the
beginning of an ongoing challenge to the court’s legitimacy. An important
element of the African critique is a belief that the prosecutor has acted to shield
powerful non-African states from scrutiny.

For the moment, however, the disquiet of these states with the court’s constraints
has not coalesced into pressure that would force changes either to the ICC’s
formal structure or to the application of its discretion. It will not be surprising if
the world is willing to tolerate an international justice system constrained by
major-power interests. As chapters 2 and 3 attempted to document, other
significant international justice initiatives have been influenced and constrained
by political considerations. Instead of being denounced for their defects and
limitations, these instruments were mostly celebrated and, in fact, served as the
inspiration for the ICC. Double standards are deeply rooted in existing global
governance structures, and the new court appears more likely to reflect those than
to alter them. In this sense, the ICC’s experience may also be instructive for the
broader project of reforming existing institutions and designing new ones. The
post‒ Second World War international architecture faces increasing pressure for
reform, oft en in the direction of more equitable treatment of states and the
abandonment of major-power privilege.
​

The court’s first decade suggests that it may be possible to design international
institutions around power—but not to escape it. Bosco, David (2013-12-17).
Rough Justice: The International Criminal Court in a World of Power Politics
(Page 189). Oxford University Press. Kindle Edition.

In addition to being racist, targeting of Africa has undermined the credibility of the court

European Union News, October 29, 2014

How investigating Britain for crimes in Iraq can save the International
Criminal Court

The ICC has been often labelled as a tool for Western

powers to project their sovereignty over weaker
countries - and the Court has specifically been accused
of toppling governments in order to install more
pro-Western regimes. This issue arose in full force when
the Court investigated Libyan leader Muhammar Gaddafi
and Sudanese, Omar al-Bashir, de facto forcing them to
yield power.
In particular, many African leaders recently accused the
ICC of being racist for targeting only the African
continent. Undoubtedly the Court has an African problem,
since all the investigations that the ICC has opened to
date concern African countries.
A similar situation emerged recently during the
investigation into Kenyan president Uhuru Kenyatta, who
became the first ever sitting president to face an ICC
hearing. Unlike Bashir and Gaddafi, however, Kenyatta
was able to exploit this investigation to sustain and
consolidate his hold on power.

ICC targeting of African for prosecution has caused Africa revolt against the ICC

Roberta Arnold, 2014, “Terrorism, War Crimes, and the International

Criminal Court,” in Research Handbook on International Law &
Terrorism, DOI 10.4337/9780857938817.00025, p. Ed. Ben Saul
p. 91

The African Union (AU)2 has declared a ‘war’ on the International Criminal Court
(ICC), the permanent institution established to prosecute and punish persons for “the
most serious crimes of international concern”. Angered by what it perceives as the
​

increasing criminalisation of Africa, the AU is inducing its Member States to turn their
backs on the ICC, the institution they co-conceived and birthed.

Africa establishing its own court to prevent war crimes, it’s more fair to Africa than the ICC

Dr Naldi, November 2014, is a Research Scholar in International Law, Great

Britain. Dr Magliveras is an Associate Professor at the University of the
Aegean, Greece,
African Union Establishes An International Criminal Court, International
Enforcement Law Reporter, p. 430

1. Introduction
In June 2014, the Assembly of the African Union (AU),
the Continent's political and security organization,
adopted a Protocol on Amendments to the Protocol on the
Statute of the African Court of Justice and Human
Rights n2 (2014 Protocol and 2014 Statute). n3 Its
purpose is to add an International Criminal Law Section
(ICL Section) to the African Court of Justice and Human
Rights (Court). n4 Once operational, the ICL Section
will be competent to hear all cases relating to those
international crimes which are listed in the amended
Statute. n5 The adoption of the Protocol constitutes a
momentous development. Arguably, it is owed to African
concerns regarding international criminal justice and a
perceived abuse of the universal jurisdiction principle
by Western powers. In particular, these concerns touch
upon (a) the AU's disenchantment with the International
Criminal Court's (ICC) pursuit of only African leaders
(presently, the Sudanese President al-Bashir as well as
Kenyan President Uhuru Kenyatta and Deputy President
William Samoei Ruto and in the past the late Colonel
Gaddafi); (b) the surrounding controversy on the reach
of the Rome Statute n6 to non-States Parties and the
latter's obligation to give effect to ICC arrest
warrants, apprehend alleged perpetrators and surrender
them to it; and (c) the view that the ICC does not take
account of the immunity of incumbent heads of state,
contrary to established rules of international law.
​

How the new Africa court will work

Dr Naldi, November 2014, is a Research Scholar in International Law, Great

Britain. Dr Magliveras is an Associate Professor at the University of the
Aegean, Greece,
African Union Establishes An International Criminal Court, International
Enforcement Law Reporter, p. 431
It should be clarified that the Court will be the
judicial entity to emerge from the merger between the
African Court on Human and Peoples' Rights (the regional
judicial organ for the protection of fundamental
freedoms) n8 and the AU Court of Justice ('the main
judicial organ of the African Union') n9, which was
decided in 2008. n10 As a direct result of this merger,
the Court will have the distinguished feature of
consisting of two sections, each corresponding to the
role to be played by the corresponding judicial organ: a
Human Rights Section and a General Affairs Section. On
top of them stands the Full Court to which any case from
either section may be referred. n11 The 2014 Protocol
adds a discrete third (ICL) section to deal exclusively
with international criminal law matters.

Africa court has jurisdiction over transnational corporations

Dr Naldi, November 2014, Research Scholar in International Law, Great

Britain. Dr Magliveras is an Associate Professor at the University of the
Aegean, Greece,
African Union Establishes An International Criminal Court, International
Enforcement Law Reporter, p. 431
Another significant innovation is that jurisdiction is
extended over legal persons, including corporations. n32
The inclusion of corporate legal liability may be
understandable in the era of globalization and
especially in light of the sometimes callous and
irresponsible behavior shown by transnational
corporations (TNCs) especially in countries of the
South. Given that international criminal law imposes
obligations upon individuals, logic would dictate that,
particularly since the 2014 Statute includes corruption
and illicit trade in hazardous wastes as core crimes,
duties are extended to legal persons such as TNCs. That
​

treaties may impose duties on TNCs is no longer to be

considered exceptional and certainly an increasing trend
exists to impose human rights standards on TNCs but a
challenging difficulty remains: corporations are mere
objects of international law or at best have limited
international personality. n34 It is only right and
proper that legal persons are subjected to municipal
criminal, labor and environmental laws, but to seek to
render corporate behavior criminal before the judicial
organ of an international organization seems
questionable under the present state of international
law. The end result would likely be to deter TNCs from
conducting business in Africa at a time when the
Continent is in need of foreign investments and seeks to
improve its global image as an enterprise-friendly
place.

Africa court supplants, not supplements, international law

Dr Naldi, November 2014, Research Scholar in International Law, Great

Britain. Dr Magliveras is an Associate Professor at the University of the
Aegean, Greece, African Union Establishes An International Criminal Court,
International Enforcement Law Reporter, p. 432
The 2014 Statute contains a complementarity clause.
Accordingly, the jurisdiction of the ICL Section is
complementary to national criminal jurisdictions whereby
national courts are, as a rule, given precedence where
the State is willing and able to investigate and
prosecute the case. Thus, the ICL Section could assume
jurisdiction where the proceedings conducted by domestic
courts are deemed a sham. n35 Even though the principle
of complementarity has been understood as applying
solely to national authorities, intriguingly the 2014
Statute additionally mentions the courts of the African
Regional Economic Communities (RECs), e.g. the Court of
Justice of the Economic Community of Eastern African
States (ECOWAS), which, however, do not seem to have
jurisdiction over international crimes as understood in
the 2004 Statute. The latter is exceptionally vague on
the relationship between the ICL Section and the courts
of the RECs but a grammatical interpretation of the
​

relevant provisions would suggest the ICL Section is

relinquishing jurisdiction to the courts of the RECs.
n35 Statute (as amended), Articles 46H(1)-(4), 46I(2).
​

Racism – Memmi & Barndt

RACISM MUST BE REFUSED – ITS REFUSAL IS A PRECONDITION FOR
MORALITY AND FOR THE CONTINUATION OF SOCIETY. SOMEDAY YOU MAY
TOO BE THE STRANGER WHO WILL BE IN NEED OF RESPECT
Memmi, Professor Emeritus of Sociology at the University of Paris, 1997
[Albert, RACISM, p. 165 (DRGCL/B1046)]
Of course, this is debatable. There are those who think that if one is strong
enough, the assault on and oppression of others is permissible. But no one is
ever sure of remaining the strongest. One day, perhaps, the roles will be
reversed. All unjust society contains within itself the seeds of its own death. It
is probably smarter to treat others with respect so that they treat you with
respect. "Recall," says the Bible, "that you were once a stranger in Egypt,"
which means both that you ought to respect the stranger because you were a
stranger yourself and that you risk becoming once again someday. It is an
ethical and a practical appeal -- indeed, it is a contract, however implicit it
might be. In short, the refusal of racism is the condition for all theoretical and
practical morality.
RACISM MUST BE REJECTED IN EACH INSTANCE
Barndt 1991 (Joseph, co-director of Crossroads, a ministry to dismantle racism, "Dismantling
Racism: The Continuing challenge to White A merica," p. 155-6.)
To study racism is to study walls. We have looked at barriers and fences, restraints and
limitations, ghettos and prisons. The prison of racism confines us all, people of color and white
people alike. It shackles the victimizer as well as the victim. The walls forcibly keep people of
color and white people separate from each other; in our separate prisons we are all prevented
from achieving the human potential God intends for us. The limitations imposed on people of
color by poverty, subservience, and powerlessness are cruel, inhuman, and unjust; the effects of
uncontrolled power, privilege, and greed, which are the marks of our white prison, will inevitably
destroy us as well. But we have also seen that the walls of racism can be dismantled. We are
not condemned to an inexorable fate, but are offered the vision and the possibility of freedom.
Brick by brick, stone by stone, the prison of individual, institutional, and cultural racism
can be destroyed. You The danger point of self-destruction seems to be drawing even more near.
The overconsumption and environmental destruction may be reaching a point of no return.
results of centuries of national and worldwide conquest and colonialism, of military buildups and
violent aggression, of and I are urgently called to join the efforts of those who know it is time to
tear down, once and for all, the walls of racism. A small and predominantly white minority of
the global population derives its power and privilege from the sufferings of vast majority of
peoples of all color. For the sake of the world and ourselves, we dare not allow it to continue.
​
​

Racism – Root Cause of Violence

AND RACISM IS THE ROOT CAUSE OF ALL VIOLENCE
Foucault in'76 [Michel, Society Must be Defended: Lectures at the College de France,
1975-1976, p. 254-257 Trans. David Macey]
What in fact is racism? It is primarily a way of introducing a break into the domain of life that is
under power's control: the break between what must live and what must die. The appearance within the
biological continuum of the human race of races, the distinction among races, the hierarchy of races, the fact that certain races are described as good and
that others, in contrast, are described as inferior: all this is a way of fragmenting the field of the biological that power controls. It is a way of separating
out the groups that exist within a population. It is, in short, a way of establishing a biological type caesura within a population that appears to be a
biological domain. This will allow power to treat that population as a mixture of races, or to be more accurate, to treat the species, to subdivide the
species it controls, into the subspecies known, precisely, as races. That is the first function of racism: to fragment, to create caesuras within the biological
continuum addressed by biopower. Racism also has a second function. Its role is, if you like, to allow the establishment of a positive relation of this type:
"The more you kill, the more deaths you will cause" or "The very fact that you let more die will allow you to live more." I would say that this relation ("If
you want to live, you must take lives, you must be able to kill") was not invented by either racism or the modern State. It is the relationship of war: "In
order to live, you must destroy your enemies." But racism does make the relationship of war-"If you want to live, the other must die" - function in a way
that is completely new and that is quite compatible with the exercise of
biopower. On the one hand, racism makes it possible to
establish a relationship between my life and the death of the other that is not a military or warlike
relationship of confrontation, but a biological-type relationship: "The more inferior species die out, the
more abnormal individuals are eliminated, the fewer degenerates there will be in the species as a
whole, and the more Ias species rather than individual-can live, the stronger I will be, the more vigorous I will be. I will be able to proliferate."
The fact that the other dies does not mean simply that I live in the sense that his death guarantees my safety; the death of the other, the death of the bad
race, of the inferior race (or the degenerate, or the abnormal) is something that will make life in general healthier: healthier and purer. This is not, then, a
military, warlike, or political relationship, but a biological relationship. And the reason this mechanism can come into play is that the enemies who have
to be done away with are not adversaries in the political sense of the term; they are threats, either external or internal, to the population and for the
population. In the biopower system, in other words, killing or the imperative to kill is acceptable only if it results not in a victory over political
adversaries, but in the elimination of the biological threat to and the improvement of the species or race. There is a direct connection between the two. In
a normalizing society,
race or racism is the precondition that makes killing acceptable. When you have a
normalizing society, you have a power which is, at least superficially, in the first instance, or in the first line
a biopower, and racism is the indispensable precondition that allows someone to be killed, that allows
others to be killed. Once the State functions in the biopower mode, racism alone can justify the murderous function of the State. So you
can understand the importance-I almost said the vital importance-of racism to the exercise of such a power: it is the precondition for exercising the right
to kill. If the power of normalization wished to exercise the old sovereign right to kill, it must become racist. And if, conversely, a power of sovereignty,
or in other words, a power that has the right of life and death, wishes to work with the instruments, mechanisms, and technology of normalization, it too
must become racist. When I say "killing," I obviously do not mean simply murder as such, but also every form of indirect murder: the fact of exposing
someone to death, increasing the risk of death for some people, or, quite simply, political death, expulsion, rejection, and so on. I think that we are now in
a position to understand a number of things. We can understand, first of all, the link that was quickly-I almost said immediately-established between
nineteenth-century biological theory and the discourse of power. Basically, evolutionism, understood in the broad sense-or in other words, not so much
Darwin's theory itself as a set, a bundle, of notions (such as: the hierarchy of species that grow from a common evolutionary tree, the struggle for
existence among species, the selection that eliminates the less fit) naturally became within a few years during the nineteenth century not simply a way of
transcribing a political discourse into biological terms, and not simply a way of dressing up a political discourse in scientific clothing, but a real way of
thinking about the relations between colonization, the necessity for wars, criminality, the phenomena of madness and mental illness, the history of
societies with their different classes, and so on. Whenever, in other words, there was a confrontation, a killing or the risk of death, the nineteenth century
was quite literally obliged to think about them in the form of evolutionism. And we can also understand why racism should have developed in modern
societies that function in the biopower mode; we can understand why racism broke out at a number of .privileged moments, and why they were precisely
the moments when the right to take life was imperative.
Racism first develops with colonization, or in other words, with
colonizing genocide. If you are functioning in the biopower mode, how can you justify the need to kill
people, to kill populations, and to kill civilizations? By using the themes of evolutionism, by appealing to a
racism. War. How can one not only wage war on one's adversaries but also expose one's own citizens
to war, and let them be killed by the million (and this is precisely what has been going on since the
nineteenth century, or since the second half of the nineteenth century), except by activating the theme of
racism? From this point onward, war is about two things: it is not simply a matter of destroying a political adversary, but of destroying the
enemy race, of destroying that [sort] of biological threat that those people over there represent to our race. In one sense, this is of course no more than a
biological extrapolation from the theme of the political enemy. But there is more to it than that. In the nineteenth century-and this is completely new-war
will be seen not only as a way of improving one's own race by eliminating the enemy race (in accordance with the themes of natural selection and the
struggle for existence), but also as a way of regenerating one's own race. As more and more of our number die, the race to which we belong will become
all the purer.
​

Politicization

Ratification risks politicized prosecutions

Vijay Padmanabhan, Visiting Assistant Professor of Law, Benjamin N. Cardozo

School of Law, Yeshiva University, 2010, From Rome to Kampala: The U.S.
Approach to the 2010 International Criminal Court Review Conference,
http://www.cfr.org/courts-and-tribunals/rome-kampala/p21934 DOA: 11-22-14

The United States should not seek to become a member of the ICC in the near term. When
President Clinton authorized U.S. signature of the Rome Statute in 2000, he stated that he
would not recommend that his successor transmit the treaty to the Senate until U.S. concerns
had been addressed. These concerns included then, and include now, the heightened risk to
the United States of politicized prosecutions and the lack of sufficient checks on the
prosecutor’s power. Although the ICC has not sought to prosecute any U.S. or allied official
during its seven years in operation, the increasing willingness of foreign national prosecutors
to investigate and prosecute U.S. officials and military personnel for actions in Iraq,
Afghanistan, and elsewhere intensifies concerns that the ICC may wade into similar debates
in the future. As a superpower with global responsibilities and legally exposed military forces
deployed throughout the world, and as a permanent UN Security Council member with an
interest in preserving that body’s primary responsibility for ensuring peace and security, the
United States therefore should not for the foreseeable future retreat from its past objections
and seek to become a party to the Rome Statute. Even if the Obama administration or a
successor administration were to submit the Rome Statute to the Senate for approval, the
Senate would not approve it unless the treaty is amended or U.S. concerns are addressed in
some other way.
Politicized prosecutions against the US

Brett D. Schaefer and Steven Groves, 2009, The United States Should Not Join the International Criminal
Court,
http://www.heritage.org/research/reports/2009/08/the-us-should-not-join-the-international-criminal-court
Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs and Steven Groves is Bernard
and Barbara Lomas Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and
Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.DOA: 11-23-14

Among other concerns, past U.S. Administrations concluded that the Rome
Statute created a seriously flawed institution that lacks prudent safeguards
against political manipulation, possesses sweeping authority without
accountability to the U.N. Security Council, and violates national
sovereignty by claiming jurisdiction over the nationals and military
personnel of non-party states in some circumstances. These concerns led
President Bill Clinton to urge President George W. Bush not to submit the
treaty to the Senate for advice and consent necessary for ratification.[1]
After extensive efforts to change the statute to address key U.S. concerns
​

failed, President Bush felt it necessary to "un-sign" the Rome Statute by

formally notifying the U.N. Secretary-General that the U.S. did not intend to
ratify the treaty and was no longer bound under international law to avoid
actions that would run counter to the intent and purpose of the treaty.
Subsequently, the U.S. took a number of steps to protect its military
personnel, officials, and nationals from ICC claims of jurisdiction.
Until these and other concerns are fully addressed, the Obama
Administration should resist pressure to "re-sign" the Rome Statute, eschew
cooperation with the ICC except when U.S. interests are affected, and
maintain the existing policy of protecting U.S. military personnel, officials,
and nationals from the court's illegitimate claims of jurisdiction. Nor should
the Obama Administration seek ratification of the Rome Statute prior to the
2010 review, and then only if the Rome Statute and the ICC and its
procedures are amended to address all of the serious concerns that led past
U.S. Administrations to oppose ratification of the Rome Statute.

US GLOBAL POSITION MAKES IT A SPECIAL TARGET OF POLITICIZED PROSECUTIONS

The United States Mission to the European Union, US Rejects ICC Jurisdiction
Over Its Peacekeepers, June 30, 2002,
http://www.useu.be/Categories/Justice%20and%20Home%20Affairs/June3002IC
CJurisdictionUSRejects.html (HARVUN1797)

Some contend that our concerns are unwarranted. With our global responsibilities,
we are and will remain a special target and cannot have our decisions
second-guessed by a court whose jurisdiction we do not recognize.
US FEARS ICC WILL BE USED FOR POLITICIZED PROSECUTION OF US POLITICAL LEADERS

Becker, Elizabeth, New York Times, Global Policy Forum, “US Focus Shifts to
Shielding Officials,” September 7, 2002,
http://www.globalpolicy.org/intljustice/icc/crisis/0907official.htm
(HARVUN1855)

"The soldiers are like the capillaries; the top public officials - President Bush,
Secretary Rumsfeld, Secretary Powell - they are at the heart of our concern," the
senior official said. "Henry Kissinger, that's what they really care about." "They
don't really care about the Lieutenant Calleys of the future," added the official,
referring to Lt. William Calley, who was given a life sentence for the My Lai
massacre in Vietnam, but was then paroled. Officially, the White House today
repeated what its spokesmen have said in public speeches and statements: that
​

their primary concern is that American soldiers, and not public officials, would be
brought before the court on politically motivated charges. But they also said
protecting top officials has always been part of their opposition to the court, which
was established this year to prosecute those charged with genocide and crimes
against humanity. "We do not make the distinction between ranks here," said Sean
McCormack, the spokesman for the National Security Council. "Our concern is
politicized prosecutions of everyone - our servicemen and women and government
officials." State Department officials also acknowledged the concern about
protecting top American officials and pointed to a speech in May by Mark
Grossman, under secretary of state for political affairs, who said the administration
"must insure that our soldiers and government officials are not exposed to the
prospect of politicized prosecution and investigations." Using this new argument
about the top leaders has been persuasive, the senior official said, and the
government has won initial agreement from two key European allies to sign an
exemption saying all American soldiers, officials and civilians are outside the
reach of the court.
POLITICAL LEADERS ARE POTENTIAL TARGETS OF ICC PROSECUTION

Becker, Elizabeth, New York Times, Global Policy Forum, “US Focus Shifts to
Shielding Officials,” September 7, 2002,
http://www.globalpolicy.org/intljustice/icc/crisis/0907official.htm
(HARVUN1856)

The new emphasis was previewed three years ago in an article by John R. Bolton,
who was then at the American Enterprise Institute and is now under secretary of
state for arms control and international security and the administration's point man
for the court. "The main concern should be for the president, the cabinet officers
who comprise the National Security Council, and other civilian and military
leaders responsible for our defense and foreign policy," he wrote in the magazine
National Interest. "They are the potential targets of the politically unaccountable
prosecutor created in Rome," he added, referring to the Rome treaty that created
the court.
​

Politicization – “Aggression”

Vague definition of “aggression” will entangle the ICC in political conflicts

Vijay Padmanabhan, Visiting Assistant Professor of Law, Benjamin N. Cardozo

School of Law, Yeshiva University, 2010, From Rome to Kampala: The U.S.
Approach to the 2010 International Criminal Court Review Conference,
http://www.cfr.org/courts-and-tribunals/rome-kampala/p21934 DOA: 11-22-14

A vague definition of aggression has practical consequences for the ICC. The court would be
immediately entangled in international controversies regarding which side used force
lawfully in an armed conflict. Had aggression jurisdiction been activated at Rome, the ICC
might have been asked to decide whether the use of force was unlawful in controversial
situations involving state parties, including French military intervention in Côte d’Ivoire in
2002 (France is a party), British and Polish invasion of Iraq in 2003 (United Kingdom and
Poland are parties), and Russia’s military incursion into Georgia in 2008 (Georgia is a party).
Even where the states involved in a use of force are not parties to the Rome Statute, an
alleged victim of aggression may consent to the ICC’s jurisdiction after the use of force. If
aggression existed as a crime in 2003, for example, Iraq could have consented to the
jurisdiction of the ICC after the U.S. invasion, potentially exposing U.S. leaders to
investigation and prosecution for the decision to use force. In such a scenario, the ICC
prosecutor could have investigated U.S. or coalition partners, asking them for detailed
explanations of their legal rationale as well as for classified intelligence information
regarding Iraq’s alleged weapons programs. The prosecutor might have then second-guessed
the conclusion by the United States and other governments that their use of force was
justified under existing UN Security Council resolutions.
​

Abuse of Power
No checks on ICC power

Brett D. Schaefer and Steven Groves, 2009, The United States Should Not Join the International Criminal
Court,
http://www.heritage.org/research/reports/2009/08/the-us-should-not-join-the-international-criminal-court
Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs and Steven Groves is Bernard
and Barbara Lomas Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and
Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.DOA: 11-23-14

The ICC's Unchecked Power. The U.S. system of government is based on

the principle that power must be checked by other power or it will be abused
and misused. With this in mind, the Founding Fathers divided the national
government into three branches, giving each the means to influence and
restrain excesses of the other branches. For instance, Congress confirms and
can impeach federal judges and has the sole authority to authorize spending,
the President nominates judges and can veto legislation, and the courts can
nullify laws passed by Congress and overturn presidential actions if it judges
them unconstitutional.
The ICC lacks robust checks on its authority, despite strong efforts by U.S.
delegates to insert them during the treaty negotiations. The court is an
independent treaty body. In theory, the states that have ratified the Rome
Statute and accepted the court's authority control the ICC. In practice, the
role of the Assembly of State Parties is limited. The judges themselves settle
any dispute over the court's "judicial functions." The prosecutor can initiate
an investigation on his own authority, and the ICC judges determine whether
the investigation may proceed. The U.N. Security Council can delay an
investigation for a year--a delay that can be renewed--but it cannot stop an
investigation. As Grossman noted:
Under the UN Charter, the UN Security Council has primary responsibility for
maintaining international peace and security. But the Rome Treaty removes this
existing system of checks and balances, and places enormous unchecked power in
the hands of the ICC prosecutor and judges. The treaty created a self-initiating
prosecutor, answerable to no state or institution other than the Court itself.[59]
No checks on ICC authority

Brett D. Schaefer and Steven Groves, 2009, The United States Should Not Join the International Criminal
Court,
http://www.heritage.org/research/reports/2009/08/the-us-should-not-join-the-international-criminal-court
Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs and Steven Groves is Bernard
and Barbara Lomas Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and
Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.DOA: 11-23-14
​

Moreover, although it is generally considered to be within the U.N. family,

the ICC is not explicitly a U.N. body. It is an independent treaty body
overseen by the states that have ratified the Rome Statute.
The ICC is divided into five main components: the Assembly of States
Parties, the presidency, the judges, the prosecutor's office, and the
registrar.[7] The assembly elects the court's judges and the prosecutor,
determines the court's budget, and broadly oversees ICC operations. The
presidency, composed of three judges elected by their peers, administers the
daily operations of the court, except the independent Office of the
Prosecutor. The 18 judges are divided into the Pre-Trial Division, the Trial
Division, and the Appeals Division and handle the various judicial
responsibilities of the ICC. The Office of the Prosecutor is charged with
receiving referrals and information on alleged crimes, considering them, and
conducting investigations and prosecutions. The registry handles the
non-judicial administration of court matters.
The court's structure establishes few, if any, practical external checks on the
ICC's authority. Among the judges' responsibilities are determining whether
the prosecutor may proceed with a case and whether a member state has
been "unwilling or unable genuinely to carry out the investigation or
prosecution,"[8] which would trigger the ICC's jurisdiction under the
principle of "complementarity," which is designed to limit the court's power
and avoid political abuse of its authority. Thus, the various arms of the ICC
are themselves the only real check on its authority. This absence of external
checks raises serious concerns:
The ability both to interpret the law and effectively to force member states to adopt
its view gives the ICC unprecedented power. For the first time, a permanent
international institution is entitled to determine the legal obligations of states and
their individual citizens and to criminally punish those individual citizens--even if
its understanding of the law radically differs from the relevant state's position.
Moreover, the ICC's judges are not otherwise subject to the supervision or control
of the states parties, except in matters of personal corruption. Thus, when the ICC
determines what international law requires in any of its areas of competence, this
is arguably the final word.[9]
​

Undermines Rehabilitation
Rehabilitation is impossible in international courts.

James Meernik, “Victor's Justice or the Law?: Judging and Punishing at the International
Criminal Tribunal for the Former Yugoslavia”, The Journal of Conflict Resolution, Vol. 47,
No. 2, 2003
Second, rehabilitation is a central goal of incarceration in many national jurisdictions, but it
too does not apply well in the context of this international tribunal. The ICTY has no control
over rehabilitation because detention and treatment of convicted war criminals are managed
by national governments that have entered into incarceration agreements. As well, the judges
are instructed to consider the sentencing practices used in the former Yugoslavia. Yet they
have also downplayed the utility of these guidelines.
​

ICC Accession Unconstitutional

ICC VIOLATES THE BILL OF RIGHTS

Gary T. Dempsey, foreign policy analyst at the Cato Institute, CATO INSTITUTE,
July 16, 1998, p. http://www.cato.org/pubs/pas/pa-311.html. (DRG/C684)

Looking at the Yugoslavia tribunal as a model of what to expect from the

ICC--and, where it is specific, the ICC draft statute itself--it appears that many of
the legal safeguards Americans enjoy under the Bill of Rights, particularly Fifth
and Sixth Amendment protections, would be unavailable if Americans were
brought before the International Criminal Court. There are numerous examples of
such potential deprivations.
ICC lacks appropriate separation of powers

Judge Keith Pesto, April 27, 2012 is a Federal Magistrate Judge for the United
States District Court for
the Western District of Pennsylvania, Johnstown
Division.http://www.juniata.edu/services/jcpress/voices/pdf/2012/jv_2012_139-144.pdf DOA: 11-23-14

The International Criminal Court is quite lacking in the sort of internal separation of
powers that
we have in the United States where appeals courts and trial courts frequently check the
worst of each other’s mistakes. The eighteen judges of the ICC (no more than one per
country—so North Korea has the same influence as New Zealand) organize themselves
into Pre-trial, Trial, and Appeals Divisions. Under Article 39, the appeals court is
separate, but the other judges can switch back and forth from investigative roles to
presiding over trials. Will there be an appropriate hard look at evidence developed by
one’s colleagues? Or will the Trial Division give the Pre-Trial judges too much benefit of
the doubt in the expectation that they, too, will receive similar review in the next case?
Lack of internal checks is significant, because the member states will not be able to
question the International Criminal Court’s actions. Under Article 59, a nation that signs
onto the Rome Statute cannot even question whether ICC arrest warrants are issued
properly. Again, for a historical parallel, think about a prosecutor with a fugitive warrant
coming into a Pennsylvania court in the 1850s and demanding that escaped “property” be
returned to slave states. Yes, the International Criminal Court will be doing right and
good, but no doubt
slave catchers thought they were protecting right and good, too.

ICC has no statute of limitations

Judge Keith Pesto, April 27, 2012 is a Federal Magistrate Judge for the United
​

States District Court for

the Western District of Pennsylvania, Johnstown
Division.http://www.juniata.edu/services/jcpress/voices/pdf/2012/jv_2012_139-144.pdf DOA: 11-23-14

These are fuzzy terms; when you read the definition of war crimes, did you think of the
CIA
using drones in Afghanistan? The U.S. refusal to sign a treaty banning the use of land
mines? The
Pilgrims settling Massachusetts? Or the Sooners occupying Oklahoma? Did the United
States practice torture when it water boarded al Qaeda members? Or when Texas executes
murderers by lethal injection? Under Article 9, a two-thirds majority of member states
can adopt certain “Elements of Crimes” to assist the judges of the ICC in deciding the
answers to these questions. Under Article 29, there is no statute of limitations, so a
changing consensus on (for instance) capital punishment, such as has taken place in
Europe in the last fifty years, may mean that actions thought to be lawful even to the
international community when they were undertaken may subject a person to eventual
prosecution. Under Article 28 that includes prosecution for actions by one’s military or
civilian subordinates, so long as one’s superior knew or consciously disregarded
information that the subordinates were committing crimes and failed to
take “all necessary and reasonable measures within his or her power to prevent” the
crimes.
YUGOSLAVIA PROVES INTERNATIONAL COURTS DON’T RESPECT US RIGHTS

Gary T. Dempsey, foreign policy analyst at the Cato Institute, CATO INSTITUTE,
July 16, 1998, p. http://www.cato.org/pubs/pas/pa-311.html. (DRG/C685)

All of that led Nick Kostich, an American defense attorney for Tadic, to conclude
that the Yugoslavia tribunal--the precursor of the ICC--did not accord his client the
right to conduct a fair defense. Tadic "is not being given the right to confront his
accusers," and "the defense has not been presented with the names of witnesses,"
he explained in 1995. "My most vicious, my most heinous client [in the United
States] has more rights under the U.S. Constitution," he added. The clear
implication of Kostich's assessment is that Americans brought before a Yugoslavia
tribunal-type court--like the proposed ICC--will have fewer rights than under the
U.S. Constitution.

BALKANS’ TRIALS EMPIRICALLY PROVE ICC WILL HURT RIGHTS

Ted Galen Carpenter, vice president for defense and foreign policy studies at the
Cato Institute, CATO INSTITUTE, December 27, 2000, p.
http://www.cato.org/dailys/12-27-00.html. (DRG/C686)
​

The Criminal Court is a horrific institution from the standpoint of civil liberties. It
would make a mockery of even the most basic due process guarantees. We have
already had a glimpse of the probable abuses from the operation of the ICC's
predecessors, the special war crimes tribunals in the Balkans and Rwanda. Rights
that Americans take for granted would be greatly diluted or absent entirely in ICC
trials. For example, there is no right to a trial by an impartial jury. A verdict is
rendered by majority vote of a panel of appointed judges. Thus, a 3-2 vote could
doom a defendant to a lengthy prison term—in some cases even a life term.

ICC WILL VIOLATE RIGHTS IN THE CONSTITUTION

Ron Paul, U.S. Representative, House International Relations Committee,

STATEMENT ON THE INTERNATIONAL CRIMINAL COURT, February 28,
2002, p. http://www.house.gov/paul/congrec/congrec2002/cr022802B.htm.
(DRG/C687)

The International Criminal Court is to be modeled after the tribunals dealing with
Rwanda and Yugoslavia, that is a fact. Knowing how these tribunals operate
should therefore terrify any American who loves our Constitution and our system
of justice. In the Yugoslav and Rwandan tribunals, anonymous witnesses and
secret testimony are permitted; the defendant cannot identify his accusers. There is
no independent appeals procedure. As one observer of the Hague in action noted,
"the prosecutor's use of conspiracy as a charge recalls the great Soviet show trials
of 1936-1938. In one case, the Orwellian proportions of the Prosecution mindset
was revealed as the accused was charged with conspiring, despite the admitted
lack of evidence. It is not the destruction of evidence but its very absence which
can be used to convict!"

ICC DOES NOT GUARANTEE DUE PROCESS PROTECTIONS FOR US CITIZENS

Representative Bob Barr, Harvard Journal on Legislation, Summer, 2002, 39 Harv.

J. on Legis. 299, p. 316 (HARVUN1774)

The resulting lack of due process and equal protection are compounded when
coupled with the fact that the court can also investigate potential crimes at will,
without even a formal complaint being filed. The conference rejected American
insistence that all cases be referred to the court by the Security Council. This
decision eliminated at least one potential safeguard--the veto. The procedural
deficiencies and opportunity for malicious prosecutions and general corruption,
however, are not even the most significant concerns.
​

ICC JURISDICTION OVER AMERICANS VIOLATES CONSTITUTION

Representative Bob Barr, Harvard Journal on Legislation, Summer, 2002, 39 Harv.

J. on Legis. 299, p. 316-7 (HARVUN1775)

The assertion of universal jurisdiction over Americans, even if the United States is
not a party to the statute, raises monumental constitutional concerns. Cases could
be brought ex parte against an individual United States combatant or even a United
States President, by a U.N. bureaucrat, foreign leader, or NGO, who disagrees with
the legitimate actions of our armed forces protecting United States interests
overseas. Article III, section 2 of the U.S. Constitution definitively states that the
"judicial Power shall extend to all Cases, in Law and Equity, arising under . . .
Treaties." Any attempt to subrogate that authority, by treaty or otherwise, to a
third-party nation is in direct violation of the God-given rights guaranteed
Americans by the Bill of Rights. It is in direct violation of this vital right when an
American is tried by a foreign court, even if our government approves. To cede
such authority is without constitutional authorization. Furthermore, a trial by a
foreign court raises, inter alia, Fourth, Fifth, Sixth, and Tenth Amendment
concerns. The ICC would have no need to ensure that these constitutionally
protected safeguards are effected. Regardless of what measure of due process is
accorded by the ICC, there would be no guarantee that such standards would
mirror, or be applied in accordance with, our Constitution. The possibility of
American service-members being brought before an international court for
political reasons would be virtually guaranteed given the feelings of resentment
and hatred directed towards the United States by despots and many religious
extremists in countries now a part of this international "court."

US GOVERNMENT FIRMLY OPPOSED TO SETTING ASIDE CONSTITUTIONAL PROTECTIONS FOR ITS CITIZENS

Ambassador John Negroponte, US Ambassador to the UN, “ICC Exemption for

UN Peacekeepers A First Step, Negroponte Says, July 12, 2002,
http://usinfo.state.gov/dhr/Archive_Index/first_step.html (HARVUN1883)

We will never permit Americans to be jailed because judges of the ICC, chosen
without the participation of those over whom they claim jurisdiction, so decide.
We cannot allow that Americans who have been acquitted of accusations against
them in the United States shall be subject to prosecution for the same acts if an
ICC prosecutor or judge concludes that the American legal proceedings were
somehow inadequate.
​

ICC DOES NOT OPERATE UNDER CONSTITUTIONAL CONTEXT NECESSARY TO DEPRIVE US CITIZENS OF THEIR
FREEDOM

Ambassador John Negroponte, US Ambassador to the UN, “ICC Exemption for

UN Peacekeepers A First Step, Negroponte Says, July 12, 2002,
http://usinfo.state.gov/dhr/Archive_Index/first_step.html (HARVUN1886)

The power to deprive a citizen of his or her freedom is an awesome thing, which
the American people have entrusted to their government under the rules of our
democracy. Thus does an American judge have the legal and moral right, founded
in our Constitution and in democratic procedures, to jail an American. But the
International Criminal Court does not operate in the same democratic and
constitutional context, and therefore does not have the right to deprive Americans
of their freedom.

ICC JURISDICTION UNDEFINED – NO CONSTITUTIONAL PROTECTIONS FOR THE ACCUSED

Phyllis Schlafly, Eagle Forum, “The Quiet War Against America’s Independence,”
April 10, 2002, http://www.eagleforum.org/column/2002/apr02/02-04-10.shtml
(HARVUN1983)

Our erstwhile allies want to lock America into a European political, judicial and
military structure in which the United States would have only one vote. They
already have conned us into joining the World Trade Organization where we have
only one vote while the European Union has 15 votes and thus can easily
manipulate the WTO's judicial system, which operates in secret. The ICC plans to
prosecute charges of war crimes, genocide and other crimes that have not yet been
defined, in procedures that violate every U.S. constitutional safeguard. The ICC is
accountable to no one, not even to the United Nations, whose charter recognizes
the sovereignty of nation-states and where we have our Security Council veto.
US GOVERNMENT HAS SERIOUS COMMITMENT TO PROTECT CONSTITUTIONAL RIGHTS OF ITS CITIZENS

Ambassador John Negroponte, US Ambassador to the UN, “ICC Exemption for

UN Peacekeepers A First Step, Negroponte Says, July 12, 2002,
http://usinfo.state.gov/dhr/Archive_Index/first_step.html (HARVUN1882)

Should the ICC eventually seek to detain any American, the United States would
regard this as illegitimate - and it would have serious consequences. No nation
should underestimate our commitment to protect our citizens. Our government
was founded by Americans to protect their freedom. Our Declaration of
Independence states that, and I quote "governments are instituted among men,
deriving their just powers from the consent of the governed," in order to secure
​

their rights. We have built up in our two centuries of constitutional history a dense
web of restraints on government, and of guarantees and protections for our
citizens. The power of the government is very great, but those restraints are
equally powerful. The history of American law is very largely the history of that
balance between the power of the government and the rights of the people. We will
not permit that balance to be overturned by the imposition on our citizens of a
novel legal system they have never accepted or approved, and which their
government has explicitly rejected.
​

ICC Violates International Law

ICC STATUTE VIOLATES INTERNATIONAL LAW BY CLAIMING RIGHT TO PROSECUTE CITIZENS OF STATES THAT
HAVEN’T RATIFIED IT

Hulsman, John C., & Brett D. Schaefer, Research fellow for European Affairs
Heritage Foundation & Fellow in International Regulatory Affairs, Center for
International Trade and Economics, Executive Memorandum #822, July 8, 2002,
http://www.heritage.org/Research/InternationalOrganizations/EM822.cfm
(HARVUN1910)

Under accepted norms of international law, the ICC should not even be a U.S.
concern, since the United States has not ratified the treaty establishing it. Indeed,
President Bush has "unsigned" the Rome Statute, notifying the Secretary General
of the United Nations that the United States will not ratify it. A bedrock principle
of the international system is that treaties and treaty organizations cannot be
imposed on states without their consent. The statute violates international law by
claiming that the ICC has authority to prosecute and punish the nationals of
countries that are not party to it.
​

ICC Threatens Sovereignty

ICC threatens sovereignty

Brett D. Schaefer and Steven Groves, 2009, The United States Should Not Join the International Criminal
Court,
http://www.heritage.org/research/reports/2009/08/the-us-should-not-join-the-international-criminal-court
Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs and Steven Groves is Bernard
and Barbara Lomas Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and
Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.DOA: 11-23-14

A Threat to National Sovereignty. A bedrock principle of the international

system is that treaties and the judgments and decisions of treaty
organizations cannot be imposed on states without their consent. In certain
circumstances, the ICC claims the authority to detain and try U.S. military
personnel, U.S. officials, and other U.S. nationals even though the U.S. has
not ratified the Rome Statute and has declared that it does not consider itself
bound by its signature on the treaty. As Grossman noted, "While sovereign
nations have the authority to try non-citizens who have committed crimes
against their citizens or in their territory, the United States has never
recognized the right of an international organization to do so absent consent
or a U.N. Security Council mandate."
As such, the Rome Statute violates international law as it has been
traditionally understood by empowering the ICC to prosecute and punish the
nationals of countries that are not party to it. In fact, Article 34 of the Vienna
Convention on the Law of Treaties unequivocally states: "A treaty does not
create either obligations or rights for a third State without its consent."
Protestations by ICC proponents that the court would seek such prosecutions
only if a country is unwilling or unable to prosecute those accused of crimes
within the court's jurisdiction--the principle of complementarity--are
insufficient to alleviate sovereignty concerns. As Casey and Rivkin note:
[C]omplementarity applies only if the state in question handles the particular case
at issue in a manner consistent with the ICC's understanding of the applicable
legal norms. If the court concludes that a state has been unwilling or unable to
prosecute one of its citizens or government officials because it does not consider
the questioned conduct unlawful, based on its own interpretation of the relevant
international legal requirements, the court can proceed with an investigation.
For example, the Obama Administration recently declared that no employee
of the Central Intelligence Agency (CIA) who engaged in the use of
"enhanced interrogation techniques" on detainees would be criminally
prosecuted. That decision was presumably the result of an analysis of U.S.
law, legal advice provided to the CIA by Justice Department lawyers, and
​

the particular actions of the interrogators. Yet if the U.S. were a party to the
Rome Statute, the Administration's announced decision not to prosecute
would fulfill a prerequisite for possible prosecution by the ICC under the
principle of complementarity. That is, because the U.S. has no plans to
prosecute its operatives for acts that many in the international community
consider torture, the ICC prosecutor would be empowered (and possibly
compelled) to pursue charges against the interrogators.

Universal jurisdiction undermines the power and responsibility of national governments

Henry A. Kissinger, 2001,Chairman of Kissinger Associates, Inc., is a former Secretary

of State and National Security Adviser. This essay is adapted from his latest book, Does
America Need a Foreign Policy? Toward a Diplomacy for the 21st Century, Foreign
Affairs “The Pitfalls fo University Jurisdiction,”
https://www.globalpolicy.org/component/content/article/163/28174.html DOA 11-23-14

THE IDEOLOGICAL supporters of universal jurisdiction also provide much of the

intellectual compass for the emerging International Criminal Court. Their goal is to
criminalize certain types of military and political actions and thereby bring about a more
humane conduct of international relations. To the extent that the ICC replaces the claim
of national judges to universal jurisdiction, it greatly improves the state of international
law. And, in time, it may be possible to negotiate modifications of the present statute to
make the ICC more compatible with U.S. constitutional practice. But in its present form
of assigning the ultimate dilemmas of international politics to unelected jurists -- and to
an international judiciary at that -- it represents such a fundamental change in U.S.
constitutional practice that a full national debate and the full participation of Congress are
imperative. Such a momentous revolution should not come about by tacit acquiescence in
the decision of the House of Lords or by dealing with the ICC issue through a strategy of
improving specific clauses rather than as a fundamental issue of principle.

The doctrine of universal jurisdiction is based on the proposition that the individuals or
cases subject to it have been clearly identified. In some instances, especially those based
on Nuremberg precedents, the definition of who can be prosecuted in an international
court and in what circumstances is self-evident. But many issues are much more vague
and depend on an understanding of the historical and political context. It is this fuzziness
that risks arbitrariness on the part of prosecutors and judges years after the event and that
became apparent with respect to existing tribunals.

For example, can any leader of the United States or of another country be hauled before
international tribunals established for other purposes? This is precisely what Amnesty
International implied when, in the summer of 1999, it supported a "complaint" by a group
of European and Canadian law professors to Louise Arbour, then the prosecutor of the
International Criminal Tribunal for the Former Yugoslavia (ICTY). The complaint
alleged that crimes against humanity had been committed during the NATO air campaign
in Kosovo. Arbour ordered an internal staff review, thereby implying that she did have
​

jurisdiction if such violations could, in fact, be demonstrated. Her successor, Carla Del
Ponte, in the end declined to indict any NATO official because of a general inability "to
pinpoint individual responsibilities," thereby implying anew that the court had
jurisdiction over NATO and American leaders in the Balkans and would have issued an
indictment had it been able to identify the particular leaders allegedly involved.

Most Americans would be amazed to learn that the ICTY, created at U.S. behest in 1993
to deal with Balkan war criminals, had asserted a right to investigate U.S. political and
military leaders for allegedly criminal conduct -- and for the indefinite future, since no
statute of limitations applies. Though the ICTY prosecutor chose not to pursue the charge
-- on the ambiguous ground of an inability to collect evidence -- some national prosecutor
may wish later to take up the matter as a valid subject for universal jurisdiction.

The pressures to achieve the widest scope for the doctrine of universal jurisdiction were
demonstrated as well by a suit before the European Court of Human Rights in June 2000
by families of Argentine sailors who died in the sinking of the Argentine cruiser General
Belgano during the Falklands War. The concept of universal jurisdiction has moved from
judging alleged political crimes against humanity to second-guessing, 18 years after the
event, military operations in which neither civilians nor civilian targets were involved.

Distrusting national governments, many of the advocates of universal jurisdiction seek to

place politicians under the supervision of magistrates and the judicial system. But
prosecutorial discretion without accountability is precisely one of the flaws of the
International Criminal Court. Definitions of the relevant crimes are vague and highly
susceptible to politicized application. Defendants will not enjoy due process as
understood in the United States. Any signatory state has the right to trigger an
investigation. As the U.S. experience with the special prosecutors investigating the
executive branch shows, such a procedure is likely to develop its own momentum without
time limits and can turn into an instrument of political warfare. And the extraordinary
attempt of the ICC to assert jurisdiction over Americans even in the absence of U.S.
accession to the treaty has already triggered legislation in Congress to resist it.

The independent prosecutor of the ICC has the power to issue indictments, subject to
review only by a panel of three judges. According to the Rome statute, the Security
Council has the right to quash any indictment. But since revoking an indictment is subject
to the veto of any permanent Security Council member, and since the prosecutor is
unlikely to issue an indictment without the backing of at least one permanent member of
the Security Council, he or she has virtually unlimited discretion in practice. Another
provision permits the country whose citizen is accused to take over the investigation and
trial. But the ICC retains the ultimate authority on whether that function has been
adequately exercised and, if it finds it has not, the ICC can reassert jurisdiction. While
these procedures are taking place, which may take years, the accused will be under some
restraint and certainly under grave public shadow.

The advocates of universal jurisdiction argue that the state is the basic cause of war and
cannot be trusted to deliver justice. If law replaced politics, peace and justice would
prevail. But even a cursory examination of history shows that there is no evidence to
​

support such a theory. The role of the statesman is to choose the best option when seeking
to advance peace and justice, realizing that there is frequently a tension between the two
and that any reconciliation is likely to be partial. The choice, however, is not simply
between universal and national jurisdictions.
Protecting sovereignty from an international court is necessary.

Bob Barr, “Protecting National Sovereignty in an Era of International Meddling: An

Increasingly Difficult Task”, Harvard Journal on Legislation, Volume 39, 2002.
American notions of the importance of sovereignty are clearly embodied in the writings of
our founding fathers. For example, Thomas Jefferson eloquently outlined the notion of
sovereignty, stating that "independence can be trusted nowhere but with the people in mass.
They are inherently independent of all but moral law." It is this "independence" that is the
essence of "sovereignty." In the international context, sovereignty presumes independent
nations. Jefferson elaborated further in crafting the Declaration of Independence, writing that,
"Governments are instituted among Men, deriving their just Powers from the Consent of the
Governed." This phrase reflects the essential nature of--and reason for--the American
Revolution. As a colony, America lacked sovereignty and therefore independence. With
independence, America gained sovereignty; without sovereignty, a nation-state cannot, by
definition, be independent.
International court decisions could hurt U.S. interests

Madeline Morris, “High Crimes and Misconceptions: The ICC and Non-Party States” Law
and Contemporary Problems, Vol. 64, No. 1, 2001
An even-remotely successful international court will have significant prestige and authority.
The political repercussions of such a court's determining that a state's acts or policies were
unlawful would be substantial indeed, and categorically different from the repercussion of
the same verdict rendered by a national court. If a guilty verdict were passed by a national
court in an official-acts case, the matter would remain a disagreement among equals, one
state maintaining that an unlawful act had been committed, the other disputing its occurrence
or defending its lawfulness. By contrast, were the ICC to pronounce an official act to
constitute a crime, the decision would bear an authoritative weight and resulting political
impact of a categorically different nature. The special political impact of ICC decisions will
itself create heightened risks for states. It may also create situations in which states will be
put to a choice of either revealing sensitive data as defense evidence or withholding that
evidence and thereby risking severe political costs in case of a guilty verdict.
An international criminal court would violate U.S. sovereignty.

Bob Barr, “Protecting National Sovereignty in an Era of International Meddling: An

Increasingly Difficult Task”, Harvard Journal on Legislation, Volume 39, 2002.
The conference produced the Statute for the International Criminal Court. The United States
had enunciated several objections and was one of only seven nations voting against the
treaty. Among the objections was the statutory claim of jurisdiction over states that are not a
party to the treaty. This would formalize the long-held United Nations desire to establish
itself as the ultimate international ruling body, superseding the sovereignty of all nations,
whether they ceded such power or not. The statute is overly broad in defining potential
crimes, deferring to the court to identify crimes that fall under its jurisdiction. There are
absolutely no guarantees that laws will be applied equally under the parameters of the United
States Constitution, even presuming that such laws are not in violation of our Constitution to
​

begin with. Though marginally limited by exhaustion requirements and ostensible

cooperation agreements with domestic judiciaries, the ICC's ability and capacity to decry any
court's actions as a sham. It is important for the state to maintain its connection with its own
political community.
ICC removes the decision of sovereign states to decide when to prosecute crimes

David Bosco, 2014, Rough Justice: The International Criminal Court in A World
of Power Politics, Kindle Edition, page at the end of the card

“The development of the ICC represents a stunning change of course,” conclude

scholars Beth Simmons and Alison Danner. “Not only does the ICC promise more
stringent enforcement of international crimes, it also takes away from sovereign
states the discretion to decide when Bosco, David (2013-12-17). Rough Justice:
The International Criminal Court in a World of Power Politics (Page 2). Oxford
University Press. Kindle Edition.
ICC WOULD BE THE DEATH KNELL OF US SOVEREIGNTY

William F. Jasper, senior editor of the New American, THE NEW AMERICAN,
Vol. 16, No. 14, July 3, 2000, p.
http://www.thenewamerican.com/tna/2000/07-03-2000/vo16no14_icc.htm.
(DRG/C688)

This unprecedented claim of authority, and the extension of treaty obligation to

nonparty states, is a truly audacious usurpation — even for the United Nations,
which has grown increasingly brazen with each succeeding global summit. If
allowed to stand — and to thrive and grow, as its champions intend — this Court
would sound the death knell for national sovereignty, and for the freedoms
associated with limited, constitutional government.

ICC IS THE LAST STEP TOWARD A WORLD GOVERNMENT

William F. Jasper, senior editor of the New American, THE NEW AMERICAN,
Vol. 14, No. 18, August 31, 1998, p.
http://www.thenewamerican.com/tna/1998/vo14no18/vo14no18_global.htm.
(DRG/C689)

As Terra Viva plainly stated, "The issue now at stake is global governance."
Precisely. "Global governance" is a hallowed term which poured forth in
superabundance in the speeches, conversations and scribblings of the Rome
conferees. Like "the rule of law," it is globospeak code for "world government," a
term that the one-world cognoscenti have learned to avoid "because it frightens
people." We have this directly on the authority of former Senator Alan Cranston
​

(D-CA), a former national president of the United World Federalists and a member
of both the Council on Foreign Relations (CFR) and the Trilateral Commission
(TC).

ICC IS UNACCOUNTABLE AND WILL DESTROY SOVEREIGNTY

on Paul, U.S. Representative, House International Relations Committee,

STATEMENT ON THE INTERNATIONAL CRIMINAL COURT, February 28,
2002, p. http://www.house.gov/paul/congrec/congrec2002/cr022802B.htm.
(DRG/C690)
The concept of a permanent criminal court, run by unelected bureaucrats, third rate
judges, and political hacks, and answerable to no one, undermines everything that
free peoples should hold dear. It is about American sovereignty, the sovereignty of
our American legal system, but that is not all. It should also be important for
Americans that the sovereignty of the rest of the world be maintained as well, as
when sovereignty is undermined anywhere by an un-elected international body, it
is under threat everywhere.

ICC VIOLATES SOVEREIGNTY – INCONSISTENT WITH US CONSTITUTIONAL PRINCIPLES

US Policy.be, “Peacekeeping and the ICC Dossier,” April 5, 2004,

http://www.uspolicy.be/issues/peacekeeping/peacekeeping.asp (HARVUN1878)

"For numerous reasons, the United States decided that the ICC had unacceptable
consequences for our national sovereignty. Specifically, the ICC is an organization
that runs contrary to fundamental American precepts and basic Constitutional
principles of popular sovereignty, checks and balances, and national independence.

US POSITION ON ICC VITAL TO UPHOLDING THE PRINCIPLES OF NATIONAL SOVEREIGNTY

Hulsman, John C., & Brett D. Schaefer, Research fellow for European Affairs
Heritage Foundation & Fellow in International Regulatory Affairs, Center for
International Trade and Economics, Executive Memorandum #822, July 8, 2002,
http://www.heritage.org/Research/InternationalOrganizations/EM822.cfm
(HARVUN1912)

In May 2002, U.S. Ambassador to the United Nations John D. Negroponte

explained America's concerns when the U.S. voted to continue the U.N. Mission
of Support for East Timor. On June 20, White House Press Secretary Ari Fleischer
echoed those sentiments, stating that "the United States is very concerned about
U.S. forces on U.N. peacekeeping missions, and that they may be subject to
​

politically motivated prosecutions by the ICC." Proponents of the ICC who chose
to ignore these warnings professed outrage when the United States followed
through on its concerns and acted to protect its citizens on June 30. The debate is
about nothing less than the fundamental question of where ultimate authority
lies--with national sovereignty, which holds the only possibility of democratic
accountability, or with unaccountable and opaque international bureaucracies that
have no direct democratic link to the people over which they claim jurisdiction.
Given this question of first principles, President Bush was right to state that the
United States would not reauthorize the Bosnia mission. The furor that arose
obscures the main imperative: U.S. military personnel must be protected from the
possibility of politically manipulated prosecution if the United States is to
participate in U.N. peacekeeping missions.

ICC IS AN ATTACK ON SOVEREIGNTY

Phyllis Schlafly, Eagle Forum, “The Quiet War Against America’s Independence,”
April 10, 2002, http://www.eagleforum.org/column/2002/apr02/02-04-10.shtml
(HARVUN1982)

The ICC is not an isolated project or aberrant endeavor of do- gooders in small
European countries who have delusions of playing a big role on the world stage.
The ICC is part and parcel of persistent plans to erase the borders of national
sovereignty by globalizing governments, economies, judicial systems,
peacekeeping, and so-called humanitarian escapades. NATO Secretary-General
Javier Solana boasted that the Yugoslav war moved us into "a system of
international relations in which human rights . . . are much more important than
sovereignty." Czech leader Vaclav Havel called the Yugoslav war "an important
precedent for the future" in which "state sovereignty must inevitably dissolve." It's
a pity that Margaret Thatcher won't be speaking out any more. She was forthright
in excoriating the globalists' attacks on national sovereignty, such as the plan to
create a separate army for the European Union or the United Nations.
​

Blocks for: ICC Will Prevent Genocide

ICC has been a failure

Maria C. Lomeli, 2014, American Journal of International & Comparative Law

J.D. Candidate, Spring, NOTE: "NEVER AGAIN" AGAIN AND AGAIN: THE
INTERNATIONAL CRIMINAL COURT'S INABILITY TO DETER MASS
ATROCITIES AND THE SECURITY COUNCIL'S FAILURE TO ACT, p. 81-3
In the last century, an incomprehensible number of people have died as a result
of crimes against humanity, war crimes, and genocide. After World War II, the
gesture to remove criminal accountability from the domain of geopolitics was
coined "the Nuremberg Promise." The Nuremberg Promise was the hope that
someday there would be standards and effective mechanisms to hold all
individuals accountable for the most serious crimes under international law. The
Nuremberg principles established that humanity would be protected by an
international legal shield and those responsible for crimes against humanity would
be held criminally responsible and punished. However, forty years after
Nuremberg, there has been little progress in developing international criminal law.
Additionally, despite the Promise, international crimes have increased and acts of
violence continue to take place in several countries. Nearly 170 million civilians
have been subjected to genocide, war crimes, and crimes against humanity during
the past century. The pledge that "never again" would similar events occur has
gone unfulfilled. Sadly, genocide, war crimes, and crimes against humanity are not
things of the past, but remain a reality. In fact, we continue to stand idle and
inactive as we witness massacres, such as the one in Syria today. As a result, the
leaders responsible for carrying out these atrocities usually go unpunished and
escape justice. Not until after the shock of ethnic cleansing in the former
Yugoslavia and the genocide in Rwanda did the international community finally
take action. After these horrific events, the international community was finally
prepared to address international criminal law, ultimately resulting in the statute
for a permanent international criminal court.
There is no doubt that the establishment of the International Criminal Court
(ICC or Court) was a major steppingstone for the international community.
However, the statute establishing the Court is not nearly as perfect or as effective
as some may have hoped. Perhaps the international community's biggest mistake
was creating the ICC through a treaty. Because the Rome Statute (or the Statute) is
a treaty, it only binds parties if they sign and ratify it. In order to give the Court the
authority required to pursue cases like the ones in Darfur and Syria, a United
Nations (U.N.) Security Council resolution based on Chapter VII of the U.N.
Charter should have been created, ultimately binding all members of the United
Nations. Instead, the Rome Statute establishes how the Court is able to obtain
jurisdiction, while relying entirely on states' cooperation to carry out its arrest
​

warrants. Moreover, the ICC lacks a permanent and effective enforcement

mechanism to ensure that states comply with its orders.
As a result, the President of Sudan, Omar al-Bashir, remains at large even after
arrest warrants were issued for him in 2009 and 2010. The arrest warrants for
al-Bashir were a big step for the ICC, as it was the first time the Security Council
made a referral to the ICC, and it was the first time ever that a warrant had been
issued for a sitting Head of State. However, due to states' refusal to cooperate,
especially Sudan, the ICC has been unable to carry out its warrants. In its August
2012 report to the General Assembly, the U.N. Secretary General explicitly stated
that the Court needs strong political support in order to fulfill its mandate. There
are currently twelve outstanding requests for arrests and surrenders issued by the
Court. Clearly, the ICC cannot fulfill its obligations without the cooperation of
other states. Therefore, an enforcement mechanism is required to mandate the
cooperation of the international community. However, this leads to the ICC's
second hurdle and downfall.
The second hurdle to achieving international peace, security, and action by the
ICC is political interference and partisan interests; this is demonstrated by the five
permanent members of the Security Council and their respective veto powers.
Today, the ICC is unable to address the crisis in Syria because Syria's political
allies continue to veto the Security Council's resolutions regarding action on Syria.
Meanwhile, one of the worst humanitarian crises is ravaging Syria. Syria's citizens
are being victimized, killed, and displaced every day as the rest of the world stands
by and watches. According to current data, more than 115,000 people have been
killed, with more than 6.5 million civilians displaced from their homes.
Additionally, reports show that children are suffering disproportionately. There
have been government attacks on schools, and children are being denied access to
hospitals and dying in attacks on their neighborhoods, in addition to being subject
to torture, including sexual violence. Despite the horrifying situation in Syria,
countries such as Russia, China, Brazil, India, and South Africa are using their
leverage at the Security Council to forestall any action on Syria. Three resolutions
imposing sanctions have come before the Security Council; however, China and
Russia, as two of the five permanent members who can veto resolutions, have
vetoed all three. As allies of the Assad regime, both Russia and China refuse to
support any Security Council resolutions that pressure Assad, even with the
exclusion of military action. The most recent resolution regarding chemical
weapons allows Assad to remain in power, continue killing innocent civilians and
says nothing about holding anyone accountable for the mass atrocities. Further,
Russia and China will not entertain the idea of an international criminal court
investigation into the war crimes in Syria. Unfortunately, unless the U.N. takes
action, governments will continue to operate selectively and subordinate human
rights to their own perceived partisan interests.
​

COUNTRIES WILL FAKE TRIALS

Gary T. Dempsey, foreign policy analyst at the Cato Institute, CATO INSTITUTE,
July 16, 1998, p. http://www.cato.org/pubs/pas/pa-311.html. (DRG/C624)

The determination of a domestic system's "ineffectiveness," however, is one of the

areas where the rationale for the ICC breaks down. If the ICC cannot readily
supersede national courts, a state that wants to avoid having its soldiers prosecuted
for war crimes by the ICC need only organize a national trial or pass a law that
makes it virtually certain that they will be acquitted. If states can get away with
that, however, the whole point of the ICC is defeated; that is, war crimes will
continue to go unpunished.
INDICTMENTS WILL STOP NEGOTIATIONS

Gary T. Dempsey, foreign policy analyst at the Cato Institute, CATO INSTITUTE,
July 16, 1998, p. http://www.cato.org/pubs/pas/pa-311.html (DRG/C625)

Finally, there is the added concern that charging a nation's political and military
leaders with war crimes will undermine efforts to resolve international conflicts.
Indeed, if a wartime leader were sufficiently angered by an ICC indictment, he
might well decide to stay away from the negotiating table altogether. That result
would lead to more death and destruction, not less.
CHARGED CRIMINAS WILL CLING TO POWER

John R. Bolton, Under Secretary for Arms Control and International Security,
REMARKS TO THE FEDERALIST SOCIETY, November 14, 2002, p.
http://www.state.gov/t/us/rm/15158.htm. (DRG/C626)

One need not agree with these decisions to respect the complexity of the moral and
political problems they address. Only those completely certain of their own moral
standing, and utterly confident in their ability to judge the conduct of others in
excruciating circumstances can reject the amnesia alternative out of hand.
Invariably insisting on international adjudication is not necessarily preferable to a
course that the parties to a dispute might themselves agree upon. Indeed, with a
permanent ICC, one can predict that one or more disputants might well invoke its
jurisdiction at a selfishly opportune moment, and thus, ironically, make an ultimate
settlement of their dispute more complicated or less likely.
ICC WON’T DETER DETERMINED CRIMINALS
​

John R. Bolton, Under Secretary for Arms Control and International Security,
REMARKS TO THE FEDERALIST SOCIETY, November 14, 2002, p.
http://www.state.gov/t/us/rm/15158.htm. (DRG/C627)

Paradoxically, the danger of the ICC may lie in its potential weakness rather than
its potential strength. The most basic error is the belief that the ICC will have a
substantial deterrent effect against the perpetration of crimes against humanity.
Behind their optimistic rhetoric, ICC proponents have not a shred of evidence
supporting their deterrence theories. In fact, they fundamentally confuse the
appropriate roles of political and economic power, diplomatic efforts, military
force, and legal procedures. Recent history is filled with cases where even strong
military force or the threat of force failed to deter aggression or gross abuses of
human rights. ICC proponents concede as much when they cite cases where the
"world community" has failed to pay adequate attention, or failed to intervene in
time to prevent genocide or other crimes against humanity. The new Court and
Prosecutor, it is said, will now guarantee against similar failures.
ICC CANNOT DETER

John R. Bolton, Under Secretary for Arms Control and International Security,
REMARKS TO THE FEDERALIST SOCIETY, November 14, 2002, p.
http://www.state.gov/t/us/rm/15158.htm. (DRG/C628)

But deterrence ultimately depends on perceived effectiveness, and the ICC fails
badly on that point. The ICC’s authority is far too attenuated to make the slightest
bit of difference either to the war criminals or to the outside world. In cases where
the West in particular has been unwilling to intervene militarily to prevent crimes
against humanity as they were happening, why will a potential perpetrator feel
deterred by the mere possibility of future legal action? A weak and distant Court
will have no deterrent effect on the hard men like Pol Pot most likely to commit
crimes against humanity. Why should anyone imagine that bewigged judges in
The Hague will succeed where cold steel has failed? Holding out the prospect of
ICC deterrence to the weak and vulnerable amounts to a cruel joke.

ICC DOESN’T DETER AND ISN’T NEEDED TO SOLVE

John R. Bolton, Under Secretary for Arms Control and International Security,
WASHINGTON POST, January 4, 2001, p.
http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&contentId=A175
36-2001Jan4&notFound=true. (DRG/C629)

Not a shred of evidence – not one – indicates that the ICC will deter the truly hard
men of history from committing war crimes or crimes against humanity. To the
​

contrary, there is every reason to believe that the ICC will shortly join the
International Court of Justice as an object of international ridicule and politicized
futility. Moreover, international miscreants can be dealt with in numerous other
ways, as Serbia may now be proving with Slobodan Milosevic.
ICC WON’T PREVENT GENOCIDE

Brett D. Schaefer, Jay Kingham Fellow in International Regulatory Affairs at the

Heritage Foundation, THE WASHINGTON TIMES, January 16, 2001, p. p.
http://www.thelibertycommittee.org/iccschaefer1.16.01.htm. (DRG/C630)

ICC supporters argue that an international court is needed to deter genocide and
war crimes. Nonsense: Despots don't pause to weigh the possible legal
ramifications before committing atrocities. Consider that the treaty's signatories
include Sudan, whose government has regularly bombed civilian targets in its
ongoing civil war, and Zimbabwe, which signed the treaty after its president had
stolen the country's latest election and encouraged his supporters to murder
political opponents.
MILITARY IS NECESSARY TO STOP GENOCIDE

Ruth Wedgwood, professor of international law at Yale and Johns Hopkins

universities, NEW PERSPECTIVES QUARTERLY, Fall 2002, p.
http://www.digitalnpq.org/archive/2002_fall/wedgewood.html (DRG/C631)

The age-old lesson, learned in the 1930s and again in the 1990s, is that law and
international assemblies are not enough to stop aggression. The tragedies in
Bosnia and Rwanda confirm that rhetoric and resolutions do not prevent genocide.
Democratic states must be willing to invest in the necessary military capacity and
take the unwelcome risks of confronting miscreant actors. Europe and others have
contributed to peacekeeping and policing, but America has often been left with the
heavyweight task of peace enforcement.

NO EVIDENCE TO SUGGEST ICC WILL DETER

Casey et al., partner in Baker & Hostetler LLP, THE FEDERALIST SOCIETY,
February 8, 2002, p. http://www.fed-soc.org/Publications/Terrorism/ICC.pdf.
(DRG/C632)

There does not seem to be any significant empirical evidence, and no compelling
logical argument has been advanced by the ICC’s defenders to support their belief,
that the Court will substantially deter those individuals who come from States with
little or no respect for the rule of law. (The notion that the ICC’s existence would
​

have somehow deterred, for example, members of Afghanistan’s Taliban and

Al-Qaeda from their deeds certainly seems to fly in the face of all available
evidence.) In any event, this line of argument misses the point.
BOSNIAN WAR TRIBUNAL GAVE LEADERS POLITICAL EXCUSE TO ALLOW GENOCIDE TO CONTINUE

Angela Edman, Associate Editor, The Bard Journal of Global Affairs, Fall 2002,
http://www.bard.edu/bgia/journal/vol2/27-31.pdf. (HARVUN1986)

In her article, Power also refers to the Bosnian genocide. George Bush Sr. ignored
the atrocities in Bosnia because no U.S. interests were allegedly at stake. But once
the media publicized the Balkan atrocities, there was a public outcry for action. It
was no longer acceptable for the United States to do nothing, because our citizens
demanded action. World leaders sat around and watched as hundreds of thousands
were slaughtered, because the existence of an international criminal tribunal that
was supposed to deter war crimes did nothing but give the world an excuse not to
act. It is not a far stretch to claim that this could very easily happen under the
shadow of the ICC as well.
​

ICC Ratification Threatens Israel

US RATIFICATION OF THE ICC WILL ISOLATE ISRAEL

Anne-Marie Slaughter, J. Sinclair Armstrong Professor of International, Foreign,

and Comparative Law and Director of Graduate and International Legal Studies at
Harvard Law School, COUNCIL ON FOREIGN RELATIONS, July 1999,
p.http://www.cfr.org/pub3202/ruth_wedgwood_kenneth_roth_anne_marie_slaught
er_john_r_bolton/toward_an_international_criminal_court.php. (DRG/C696)

Among allies, a decision to sign and even to seek ratification will have strong
support; such a decision may also strengthen support for the United States in the
international community generally. The prominent exception will be Israel, which
will remain opposed and feel isolated without the United States.

ICC WOULD PROSECUTE ISRAELI SETTLERS

LOYOLA OF LOS ANGELES INTERNATIONAL & COMPARATIVE LAW

REVIEW, December 1999, p.209. (DRG/C698)

Israel's main objection to the ICC Statute is that Israel's settlement activity in the
occupied territories has clearly been targeted as a prosecutable war crime. The
assertion that Israeli settlement activity constitutes a war crime fails to consider
the context in which these settlements have been established. The Israeli
Government also objects to the scope of the ICC's jurisdiction.

ICC WILL FORCE WITHDRAWAL FROM THE OCCUPIED TERRITORIES

LOYOLA OF LOS ANGELES INTERNATIONAL & COMPARATIVE LAW

REVIEW,
December 1999, p.209-210. (DRG/C699)

The Statute redefines "transfer of population" and includes the indirect transfer of
a state's "own civilian population into the territory it occupies" within its definition
of war crimes. Under this provision, individuals living in Israeli settlements in the
occupied territories could be charged with a war crime offense. The Israeli
territories, however, do not constitute "the most serious crimes of international
concern," for which the Court was established.
​

ICC WILL BE POLITICALLY MOTIVATED AGAINST ISRAEL

LOYOLA OF LOS ANGELES INTERNATIONAL & COMPARATIVE LAW

REVIEW, December 1999, p.247. (DRG/C700)

In this author's view, Israel has been targeted politically, and in light of transfer of
population precedent, its alleged international law violations have been
exaggerated. Additionally, ICC judges will be selected using the U.N. standard of
"equitable geographic representation." Previous international judicial elections
illustrate that this system leaves little hope for the successful election of an Israeli
candidate.

ICC WILL BE POLITICIZED AGAINST ISRAEL – ISOLATING THEM

St. Petersburg Times, September 02, 2001, p.6D. (DRG/C702)

Those who think the much-touted International Criminal Court could only serve as
a source for goodness and light should take a look at the way the current U.N.
Conference against Racism has been hijacked by parochial political interests
looking to further isolate Israel. While few could quibble with the good intentions
behind an effort to bring the world together to discuss the universal problem of
racism and intolerance, the U.N. conference currently under way in Durban, South
Africa has been more newsworthy because of its divisions. Arab states have been
pushing for the conference agenda to include provisions equating Zionism with
racism and comparing Israeli treatment of Palestinians with ethnic cleansing.

US CANNOT PROTECT ISRAEL FROM THE ICC

St. Petersburg Times, September 02, 2001, p.6D. (DRG/C703)

It is easy to see how the court could become a tool for international mischief. At
least the U.S. vote on the U.N. Security Council is a means of blocking hostile
actions toward Israel, but the United States will have no such power on the ICC
and probably will not even be a ratifying nation.

HUMAN RIGHTS GROUPS WILL SEEK TO PROSECUTE ISRAEL FOR WAR CRIMES

ARAB NEWS, August 11, 2002,

p.http://www.aljazeerah.info/Opinion%20editorials/2002%20Opinion%20editorial
s/August%202002/Israeli%20war%20crimes.htm. (DRG/C704)
​

The reaction from the Sharon government to the human rights campaigners has
been entirely predictable. The accusations, it says, are politically motivated. Such
a view is absurd in a conflict in which virtually everything has a political content.
Greater Israel and the Palestinians are seeking simply justice with the final
creation of an independent Palestinian state. In truth, the idea that Israeli soldiers,
officials and politicians could be called to the bar of international justice in The
Hague to defend themselves against a wide range of accusations is, of course,
filling the Sharon regime with alarm.

ISRAELI OFFICIALS WILL BE PROSECUTED BY THE ICC

JERUSALEM POST, June 20, 2000, p.8. (DRG/C705)

Unfortunately, the treaty that established the court, signed in July 1998, makes it
clear that this is not the case. In its list of indictable war crimes, the treaty includes
"The transfer... by the Occupying Power of parts of its own civilian population into
the territory it occupies" (Article 8.2(b)(viii)) - a clause that most experts agree
was aimed specifically at Israeli settlements in Judea, Samaria, and Gaza. In short,
the treaty as it stands would make every member of every Israeli government, past
or present, a war criminal.

ICC WILL BE USED TO FORCE ISRAEL TO GIVE UP LAND

Jeremy Rabkin, professor of government at Cornell University and an adjunct

scholar of AEI, January 1, 2003, AMERICAN ENTERPRISE INSTITUTE,
p.http://www.aei.org/publications/pubID.12313/pub_detail.asp. (DRG/C706)

Moreover, the treaty establishes a special provision by which a country can ask the
court to take jurisdiction over some crime against its nationals without that country
actually committing itself to turn over its own nationals to the court. This is an
invitation to special raids on Americans. Or perhaps on American allies, such as
Israel, which pleaded in vain at the Rome conference against successful Arab
initiatives that effectively classify the building of Jewish settlements on the West
Bank as a "war crime.” Suppose Israel and the Palestinians are making progress in
a serious peace negotiation. Will it be helpful for the court’s prosecutor to barge in
with his own indictments? No national government is permitted to offer an
amnesty that binds the court, nor is the United Nations authorized to do so.
​

General Solvency Problems

Politics prevent cases from coming to trial

European Union News, October 29, 2014

How investigating Britain for crimes in Iraq can save the International
Criminal Court

But the ICC's decision to reopen the investigation can

only mean that the UK is either unable or unwilling to
prosecute such crimes. Indeed, the shielding of senior
political and military figures has been a constant issue
for the UK, and it seems nobody actually knows if the
prime minister legally holds command responsibility for
the armed forces.
Despite much theoretical back-and-forth over who should
prosecute and who should be held accountable, the truth
is that there is no sign of any domestic British
investigation of the charges. This is precisely where
the ICC is supposed to come in.
According to the Rome Statute, the funding treaty that
underpins the ICC, the Court was created to help end
impunity for perpetrators of the most serious crimes for
the international community. The same treaty underlines
that the Court is independent, implicitly rejecting
accusations that is controlled by powerful states and
organisations.
The problem is, the ICC is too dependent on its members
for that to be technically true.
Witness the procedural issues that emerged when the ICC
tried to open an investigation against the Assad
government in Syria for its suspected use of chemical
weapons in August 2014. In cases such these, where an
investigation is expected to occur on the grounds of a
non-member of the Rome Statute, the Court needs a
referral from the Security Council of the United
Nations. That leaves it dependent on the politics of the
permanent, veto-wielding powers, such as Bashar
al-Assad's Russian and Chinese allies, to bring cases to
trial.
​

Jurisdictional limits constrain the ICC’s legitimacy

Sigall Horovitz, G\ilad Noam, Yuval Shany, 2014, Assessing the Effectiveness of International Courts,
2014, Print ISBN-13: 9780199643295. Horovitz -- University of Haifa, Faculty of Law, Post-Doc. Studies
International Law, Transitional Justice, and International Criminal Law. Noam -- a LLD candidate
(doctorate in law) at the Hebrew University of Jerusalem. Hersch Lauterpacht Chair in Public International
Law and Dean. Hebrew University, p. 241-2

Still, some of the ICC’s structural features may restrict its judicial
independence. For example, the Court’s lack of power to coerce states to
cooperate with it may push the prosecutor to select cases on the basis of the
prospects of state cooperation. This attribute may allow states to threaten the
Court with lack of cooperation in order to influence its decisions. In fact,
some commentators have argued that the OTP was motivated by such
considerations in connection with the Uganda situation, where it initiated
proceedings only against members of the Lord’s Resistance Army (LRA)
rebel group and not against government forces.

Furthermore, the absence of compulsory jurisdiction over states not parties

to the Statute may limit the Court’s independence vis-à-vis members of the
Security Council (in particular, the permanent members), on whom it
depends for obtaining cases otherwise not covered by the Court’s
jurisdiction. More significant, perhaps, is the UN Security Council’s power
to suspend ICC proceedings for a (renewable) period of twelve months, in an
effort to maintain world peace and security (see Section 10.2). The ability of
a political organ, such as the Security Council, to interfere in the work of the
ICC appears to be, prima facie, incompatible with the notion of judicial
independence. It is also noteworthy that the state parties to the Statute (the
Court’s mandate providers), through the ASP, can influence the ICC by
amending its constitutive instruments or restricting its budget (as discussed
below).

Sigall Horovitz, Gilad Noam, Yuval Shany, 2014, Assessing the Effectiveness of International Courts,
2014, Print ISBN-13: 9780199643295. Horovitz -- University of Haifa, Faculty of Law, Post-Doc. Studies
International Law, Transitional Justice, and International Criminal Law. Noam -- a LLD candidate
(doctorate in law) at the Hebrew University of Jerusalem. Hersch Lauterpacht Chair in Public International
Law and Dean. Hebrew University, p. 238-40

Jurisdictional powers
The subject-matter jurisdiction of the Court covers the most serious
international crimes that constitute gross violations of human rights or
​

international humanitarian law, namely, genocide, crimes against humanity,

and war crimes, as defined in the Statute.84 As noted above, the Court will
also exercise, in due course, jurisdiction over the crime of aggression.85 As a
rule, international crimes that are not covered by the Court’s jurisdiction are
either crimes that were perceived by the drafters as less severe in nature or
crimes that do not raise serious impunity concerns, such as crimes that are
typically committed by non-state actors and that states have an interest in
their suppression (eg, piracy, illicit traffic in drugs, and possibly also
terrorism).86 Thus, generally speaking, it seems that the Court’s
subject-matter jurisdiction suits one of the main goals of the Court, which is
to end impunity.

However, certain attributes of the subject-matter jurisdiction of the ICC

seem to constrain its ability to produce outcomes that would fully realize the
Court’s goals. The Court’s present inability to exercise jurisdiction over the
crime of aggression hampers its ability to address situations in which
international peace and security was actually breached. Other subject-matter
jurisdictional deficiencies—such as the exclusion of the crime of terrorism
from the list of war crimes and crimes against humanity and the fact that the
list of war crimes in non-international (p.238) armed conflicts lacks crimes
that are undoubtedly part of customary international law—are also expected
to limit the Court’s ability to always respond adequately to atrocities.87

The Court’s temporal jurisdiction (jurisdiction ratione temporis) is limited to

crimes committed after the entry into force of the Statute, ie, since July 1,
2002.88 The ICC’s inability to address past atrocities may be viewed as a
deficiency that would limit the success of the Court’s mission of ending
impunity. Still, practical considerations supported this limitation on the
Court’s jurisdiction. It is doubtful that an agreement could ever have been
reached on the establishment of a permanent court if it had the power to
delve into the history of state parties.89 Nor is it likely that all of the current
state parties would have joined the Statute under such terms. Additionally, a
broad temporal jurisdiction would have overburdened the Court with
complicated investigations into historical events. Thus, the aforementioned
temporal limitation seems to shore up support for the Court and to promote
its cost-effectiveness.

As for personal jurisdiction, in view of the lack of consensus on this issue

during the Rome Conference, the Court’s jurisdiction does not extend to
legal entities, but only to natural persons.90 Persons under the age of eighteen
​

at the time of the alleged commission of the crime are also excluded from
the Court’s jurisdiction, due to difficulties in reaching consensus on a
minimum age of criminal responsibility for minors under the age of eighteen
(and perhaps also because of the complexity of trying juveniles before an
international court).91 Here too, the need to ensure broad acceptance of the
Court’s authority and cost-effectiveness militated in favor of a minimalist
approach to jurisdiction.

The Court’s territorial and personal jurisdiction emanate from the fact that
the ICC is a treaty-based institution, and states joining the Statute delegate to
the Court jurisdiction over their nationals and over the crimes committed
within their territory.92 Basing the ICC’s jurisdiction on states’ consent,
rather than on a more controversial theory of universal jurisdiction,
legitimizes the exercise of ICC jurisdiction and facilitates the consenting
states’ cooperation with legal proceedings before the Court. (The alignment
of ICC jurisdiction with traditional bases of national criminal
jurisdiction—territoriality and nationality of the perpetrator—also allows the
ICC to rely on domestic proceedings against ICL violators as the (p.239)
principal mode for enforcing ICL norms.) By contrast, in situations in which
the jurisdiction of the Court is based on a referral by the Security Council in
accordance to Chapter VII of the UN Charter, relevant national
constituencies may more readily raise legitimacy challenges93 and serious
problems of state cooperation may occur (see, for instance, the Court’s
inability to apprehend the Sudanese officials it had indicted).

The Court may exercise its jurisdiction under the various Statute provisions
only if the jurisdiction is “triggered.” The three “triggering” mechanisms are
a referral by a state party;94 a referral by the UN Security Council acting
under Chapter VII of the Charter of the UN;95 or initiation of an investigation
by the prosecutor of the ICC proprio motu on the basis of information that
she receives.96 The triggering mechanism may also affect the fulfillment of
the Court’s goals. Arguably, self-referrals (ie, referrals by the territorial state
or state of nationality of the accused) are more likely to result in cooperation
by the referring state than are referrals triggered otherwise; furthermore,
referrals by the Security Council, representing broad community interests,
may enjoy greater source legitimacy97 than referrals brought by one state
party with respect to another state party.

As explained above, the exercise of the Court’s jurisdiction is subject to the

principle of complementarity, the requirement of gravity, and a general
​

consideration of the “interests of justice.”98 The policy that the prosecutor

and Chambers have adopted and will adopt in the future regarding the
interpretation and application of these jurisdiction and admissibility
conditions may significantly influence the Court’s ability to fulfill its goals.
For example, the extent to which the Court would adopt a policy of “positive
complementarity” that helps states to conduct domestic proceedings would
have direct implications on the attainment of goals such as encouraging
domestic proceedings and internalizing ICL norms.

As of July 2013, among the eight situations that are subject to investigations
by the Court, five were “self-referred” to the Court by the territorial states in
which the crimes were allegedly committed.99 Unsurprisingly perhaps, due to
cooperation by the self-referring states, successful arrests have been made in
three of the self-referred situations. The two trials that have been completed
to date also concern a self-referred situation, where the OTP was able to
collect evidence from the crime scene (the situation in the DRC). At the
same time, the non-self-referred situations pose complicated challenges to
the Court, and the successful completion of proceedings is not in sight. Thus,
the experience of the ICC suggests that state cooperation might be vital for
the successful conclusion of proceedings before the Court, and that the
cooperation of states is closely linked to the basis of jurisdiction and to the
“triggering mechanism” that are invoked.

Another implication of the ICC’s basis of jurisdiction and the “triggering

mechanism” is the lack of geographic diversity in the Court’s docket. All
five “self-referrals” emanate from African countries, and the two Security
Council referrals also pertain to situations hailing from the same continent.
The combined effect of the limited number of ratifications of the Statute by
non-African countries involved in volatile armed conflicts and the
geopolitical limits actually placed on the referral process through the
Security Council leave African countries as the Court’s main group of
“client states”—a state of affairs having significant legitimacy
consequences.

ICC can’t force compliance with its rulings

Sigall Horovitz, Gilad Noam, Yuval Shany, 2014, Assessing the Effectiveness of International Courts,
2014, Print ISBN-13: 9780199643295. Horovitz -- University of Haifa, Faculty of Law, Post-Doc. Studies
International Law, Transitional Justice, and International Criminal Law. Noam -- a LLD candidate
(doctorate in law) at the Hebrew University of Jerusalem. Hersch Lauterpacht Chair in Public International
Law and Dean. Hebrew University, p. 245-6
​

As explained above, one of the goals of the ICC is supporting ICL norms
through deterrence, punishment (ending impunity), and encouraging
internalization of ICL norms. Attainment of these intermediate goals is inter
alia facilitated through the Statute’s ban on state official immunities; the
elaboration of crime definitions in the Statute and the “Elements of Crime, ”
which provides states significant normative guidance; the complementarity
principle, which incentivizes states (state parties and non-parties) to apply
ICL norms in ways that meet international standards of fairness and due
process;126 and compliance with specific ICC decisions (ie, judgment
compliance).

Although the ICC’s ability to generate deterrence, curb impunity, and

encourage ICL internalization would be undermined if its arrest warrants
and other orders and decisions necessary for conducting criminal trials are
not followed, the Statute does not provide the ICC with powers to coerce
compliance with its orders and decisions. At most, the ICC can publish its
findings that certain states failed to comply with its decisions, or report
instances of state non-compliance to the Security Council. Non-compliance
decisions were issued, for instance, with respect to Malawi and Chad after
their failure to arrest ICC suspect President Bashir of Sudan when he visited
their territories. Although such decisions may publically shame the
non-complying state and could deter other states from acting in a similar
fashion, their impact on state conduct appears to be limited.
ICC can’t enforce its rulings

Brett D. Schaefer and Steven Groves, 2009, The United States Should Not Join the International Criminal
Court,
http://www.heritage.org/research/reports/2009/08/the-us-should-not-join-the-international-criminal-court
Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs and Steven Groves is Bernard
and Barbara Lomas Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and
Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.DOA: 11-23-14

Another problem is that the ICC lacks a mechanism to enforce its rulings
and is, therefore, entirely dependent on governments to arrest and transfer
perpetrators to the court. However, such arrests can have significant
diplomatic consequences, which can greatly inhibit the efficacy of the court
in pursuing its warrants and prosecuting outstanding cases. The most
prominent example is Sudanese President Bashir's willingness to travel to
other countries on official visits--thus far only to non-ICC states-- despite
the ICC arrest warrant. This flaw was also present with the ICTY and the
​

ICTR, although they could at least rely on a Security Council resolution

mandating international cooperation in enforcing their arrest warrants. In
contrast, the Nuremburg and Tokyo tribunals were established where the
authority of the judicial proceedings could rely on Allied occupation forces
to search out, arrest, and detain the accused.
ICC dysfunctional

Brett D. Schaefer and Steven Groves, 2009, The United States Should Not Join the International Criminal
Court,
http://www.heritage.org/research/reports/2009/08/the-us-should-not-join-the-international-criminal-court
Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs and Steven Groves is Bernard
and Barbara Lomas Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and
Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.DOA: 11-23-14

Politicization of the Court. Unscrupulous individuals and groups and

nations seeking to influence foreign policy and security decisions of other
nations have and will continue to seek to misuse the ICC for politically
motivated purposes. Without appropriate checks and balances to prevent its
misuse, the ICC represents a dangerous temptation for those with political
axes to grind. The prosecutor's proprio motu authority to initiate an
investigation based solely on his own authority or on information provided
by a government, a nongovernmental organization (NGO), or individuals is
an open invitation for political manipulation. One example is the multitude
of complaints submitted to the ICC urging the court to indict Bush
Administration officials for alleged crimes in Iraq and Afghanistan. The
Office of the Prosecutor received more than 240 communications alleging
crimes related to the situation in Iraq. Thus far, the prosecutor has
demonstrated considerable restraint, declining to pursue these cases for
various reasons, including that the ICC does not have "jurisdiction with
respect to actions of non-State Party nationals on the territory of Iraq," which
is also not a party to the Rome Statute.
All current ICC cases were referred to the ICC by the governments of the
territories in which the alleged crimes occurred or by the Security Council.
Comparatively speaking, these cases are low-hanging fruit--situations
clearly envisioned to be within the authority of the court by all states. Even
so, they have not been without controversy, as demonstrated by the AU
reaction to the arrest warrant for President Bashir and attempts to have the
Security Council defer the case.
However, the ICC's brief track record is no assurance that future cases will
be similarly resolved, especially given the increasing appetite for lodging
charges with the ICC. A far more significant test will arise if the prosecutor
​

decides to investigate (and the court's pre-trial chamber authorizes) a case

involving a non-ICC party without a Security Council referral or against the
objections of the government of the involved territory.
This could arise from the prosecutor's monitoring of the situation in
Palestine. Even though Israel is not a party to the Rome Statute, the ICC
prosecutor is exploring a request by the Palestinian National Authority to
prosecute Israeli commanders for alleged war crimes committed during the
recent actions in Gaza. The request is supported by 200 complaints from
individuals and NGOs alleging war crimes by the Israeli military and
civilian leaders related to military actions in Gaza.
Palestinian lawyers maintain that the Palestinian National Authority can
request ICC jurisdiction as the de facto sovereign even though it is not an
internationally recognized state. By countenancing Palestine's claims, the
ICC prosecutor has enabled pressure to be applied to Israel over alleged war
crimes, while ignoring Hamas's incitement of the military action and its
commission of war crimes against Israeli civilians. Furthermore, by
seemingly recognizing Palestine as a sovereign entity, the prosecutor's action
has arguably created a pathway for Palestinian statehood without first
reaching a comprehensive peace deal with Israel. This determination is an
inherently political issue beyond the ICC's authority, yet the prosecutor has
yet to reject the possibility that the ICC may open a case on the situation.
Alternatively, the prosecutor could raise ire by making a legal judgment call
on a crime under the court's jurisdiction that lacks a firm, universal
interpretation, such as:
▪​ "Committing outrages upon personal dignity, in particular humiliating
and degrading treatment";
▪​ "Intentionally launching an attack in the knowledge that such attack
will cause incidental loss of life or injury to civilians or damage to
civilian objects or widespread, long-term and severe damage to the
natural environment which would be clearly excessive in relation to
the concrete and direct overall military advantage anticipated"; or
▪​ Using weapons "which are of a nature to cause superfluous injury or
unnecessary suffering or which are inherently indiscriminate in
violation of the international law of armed conflict."
In each of these cases, a reasonable conclusion could be made to determine
whether a crime was committed. For instance, many human rights groups
allege outrages on personal dignity and "humiliating and degrading
treatment" were committed at the detention facility at Guantanamo Bay,
Cuba. The U.S. disputes these claims. Excessive use of force has been
alleged in Israel's attacks in Gaza, while others insist Israel demonstrated
​

forbearance and consideration in trying to prevent civilian casualties. There

is also an ongoing international effort to ban landmines and cluster
munitions. If the ICC member states agree to add them to the annex of
banned weapons, it could lead to a confrontation over their use by non-party
states, such as the U.S., which opposes banning these weapons. These are
merely some scenarios in which politicization could become an issue for the
ICC.

Prosecutors don’t challenge major powers or work to expand the court’s jurisdiction

David Bosco, 2014, Rough Justice: The International Criminal Court in A World
of Power Politics, Kindle Edition, page at the end of the card

In the court’s initiation function, however, the prosecutor has been remarkably
quiet. Faced with information deficits regarding potential investigations, most
notably Afghanistan, the prosecutor has chosen not to challenge major powers. Th
e prosecutor and other court officials have also not sought to expand the court’s
jurisdiction. Faced with evidence of large-scale crimes in nonmember states,
notably Iraq, Syria, and Sri Lanka, the prosecutor has said little about whether
states or the Security Council should give the court jurisdiction. Prosecution
officials insist that doing so would be impermissibly “political.” Th at
interpretation is understandable but not at all inevitable. In selecting this strategy,
court officials have limited their ability to deploy the court’s moral authority.
Major states do not face a prosecutor actively (and, in some cases,
embarrassingly) calling attention to situations where the court lacks jurisdiction.

A quiet approach has also prevailed in other respects. Neither the prosecutor nor
other court officials have challenged the way in which the Security Council has
referred situations to the court. As discussed in chapter 4, the court has ample
cause for complaint about the restrictions the Council has included in its referrals.
Particularly in its initiation function, the court has not used its voice to challenge
major powers. Bosco, David (2013-12-17). Rough Justice: The International
Criminal Court in a World of Power Politics (Page 185). Oxford University Press.
Kindle Edition.

ICC prosecutions very limited

Vijay Padmanabhan, Visiting Assistant Professor of Law, Benjamin N. Cardozo

School of Law, Yeshiva University, 2010, From Rome to Kampala: The U.S.
Approach to the 2010 International Criminal Court Review Conference,
http://www.cfr.org/courts-and-tribunals/rome-kampala/p21934 DOA: 11-22-14
​

ICC prosecution efforts to date have been criticized for taking too much time to accomplish
very little. Prosecutorial investigations, especially of those in senior leadership positions,
have been impaired by insufficient expert capability. Where cases have been built, they have
sometimes been quite small and of limited scope, with the high-profile charges against
Sudanese president Omar al-Bashir the major exception. In numerous cases the ICC has also
failed to secure the cooperation of states to arrest suspects. Internal management issues and
difficulties in gathering evidence in war-torn and conflict-prone regions have also slowed the
processing of cases and undercut the court’s ability to begin more trials.
UN solves for dictators

Judge Keith Pesto, April 27, 2012 is a Federal Magistrate Judge for the United
States District Court for
the Western District of Pennsylvania, Johnstown
Division.http://www.juniata.edu/services/jcpress/voices/pdf/2012/jv_2012_139-144.pdf DOA: 11-23-14

Today, we have not had our Shays’s Rebellion. We have adequate tools in the United
States and even in the UN Security Council to deal with future Slobodan Milosevics. We
cannot bring to justice all the Idi Amins of the world, but that is a failing of the
world—and one that the International Criminal Court will not remedy. We are being
asked to ratify the Rome Statute and join the International Criminal Court because it
looks like a symbol of a good idea and because everyone else is doing it. I quoted George
Washington, now let me quote another great historical figure: everyone’s mother. “If
everyone else were jumping off the roof, would you do it, too?” For all of America’s
optimism, we have not discarded, and should not discard, the idea that government is a
necessary evil and therefore that government is best that governs least. We should
continue to stand apart from the International Criminal Court because it is not a necessary
evil.
International courts have had no empirical deterrent effect.

Michael A. Newton, Senior Advisor to the Ambassador at Large for War Crimes for the State
Department, “Milosevic, Killing Fields, and ‘Kangaroo’ Courts: Symposium on an Emerging
International Criminal Justice System: Should the United States Join the International
Criminal Court?”, U.C. Davis Journal of International Law and Policy, Volume 9, 2002
In addition, some people point out the deterrent value of the ICC. They argue that the mere
existence of the ICC will deter crimes. I don't believe that this is true based on empirical
evidence from the Kosovo conflict. The ITCY had full jurisdiction over Kosovo at the time
the Milosevic regime purged Kosovo of its Albanian population. As far as I saw, the ICTY
existence and its jurisdiction had no deterrent effect whatsoever on Milosovic. The empirical
evidence doesn't support the fact that a court based in the Hague will have any deterrent
effect on some small country, one or two continents away.
​

Blocks for: Court Protects Human Rights

An international court harms human rights protecting nations more than human rights abusers.

Jack Goldsmith, “The Self-Defeating International Criminal Court”, The University of

Chicago Law Review, Vol. 70, No. 1, 2003.
The fatal compromise appears to expose the only nation practically able to intervene to
protect human rights to the greatest potential liability for human rights violations. So in the
end the ICC will likely have two ironic consequences. It will affect the generally
human-rights-protecting, but globally active, United States more than rogue human rights
abusers who hide behind national walls and care little about world opinion or international
legitimacy. And it will have the greatest chill on U.S. military action not when important U.S.
strategic interests are at stake (as they are now in Afghanistan), but rather in
quasi-humanitarian situations (such as in Kosovo) where the strategic benefits of military
action are lower and thus a remote possibility of prosecution weighs more heavily.
​

Blocks for: Court Protects Rule of Law

Crimes against humanity laws are still in formation, rulings are inconsistent and arbitrary.

Madeline Morris, “High Crimes and Misconceptions: The ICC and Non-Party States” Law
and Contemporary Problems, Vol. 64, No. 1, 2001
Because the law of genocide, war crimes, and crimes against humanity is still very much in
formation, the issue of law-making power is particularly important in this context.
Controversial and politically significant issues remain open, and major new questions
continue to emerge. Reflecting the developing state of the law in this field, the appellate
chamber of the International Criminal Tribunals for the former Yugoslavia and Rwanda
("ICTY/R") has on more than one occasion reversed a trial chamber decision on a basic point
of law.
The prosecution will tend to be more experienced than the defense in international trials.

James Meernik, “Victor's Justice or the Law?: Judging and Punishing at the International
Criminal Tribunal for the Former Yugoslavia”, The Journal of Conflict Resolution, Vol. 47,
No. 2, 2003
If inequities in expertise do exist, one might expect that lawyers on the prosecution's team
will have more experience arguing before the tribunal, will be able to write better briefs, and
will enjoy a greater rapport with the judges. Relatively inexperienced defense counsel are
less likely to be familiar with ICTY procedures, know which arguments judges find most
compelling, and understand the laws their clients are charged with violating. Among both
opponents and supporters of the tribunal, this problem is considered a systemic feature of the
administration of justice that potentially hurts all defendants, although there is disagreement
over the extent of this harm. That such inequities in experienced counsel are allowed to
persist would suggest that the "political" interests in convicting defendants weighs more
heavily than procedural justice. For if the international community were truly concerned
about protecting the rights of the accused, the ICTY would be encouraged or forced to
provide more and better counsel to the defense.
International courts lack a sufficient legislative check.

Madeline Morris, “High Crimes and Misconceptions: The ICC and Non-Party States” Law
and Contemporary Problems, Vol. 64, No. 1, 2001
The law developed by the ICC will not be susceptible to revision or modification through any
legislative process. In municipal justice systems, if the court gets it wrong, the legislature
provides a safety valve. There is no such recourse relative to the ICC. States may have
legitimate concerns about the compulsory jurisdiction of such a court; they may not see fit to
have an international tribunal in effect legislate international law in areas where the law is
relatively undeveloped. States might have sound reasons for preferring to retain more direct
control, diffused among many states, over the shaping of international law in this critical
field rather than to relegate a substantial proportion of that control to a single international
entity.
International courts have a retributive undertone which skews objectivity.

James Meernik, “Victor's Justice or the Law?: Judging and Punishing at the International
Criminal Tribunal for the Former Yugoslavia”, The Journal of Conflict Resolution, Vol. 47,
No. 2, 2003
Although one might expect the judges to provide fair and impartial justice that is considerate
of the rights of the accused, the tribunal's justice is also a form of retribution. The peoples of
​

the former Yugoslavia wish to see those responsible for the horrific crimes of the 1990s
punished. The United Nations and major supporters of the ICTY, such as the United States,
the United Kingdom, and France demand that the ICTY fulfill the mandate to deliver justice.
Thus, there may be a bias toward taking actions that make it more likely that an individual
will be found guilty and punished. Of particular importance in this regard is the right of
judges to call their own witnesses to provide further testimony. In theory, these witnesses
could aid either the prosecution's or the defense's case, but if the judges believe that their
mandate to "do justice" means expeditiously apportioning blame and punishment, there may
be a subtle bias toward calling witnesses who facilitate guilty verdicts.
International courts are sided against the accused.

James Meernik, “Victor's Justice or the Law?: Judging and Punishing at the International
Criminal Tribunal for the Former Yugoslavia”, The Journal of Conflict Resolution, Vol. 47,
No. 2, 2003
If international criminal tribunals are created only when the interests of major powers have
been affected, their institutional structure and their decisions are compromised. There will be
institutional biases and inequities between the parties that will affect the personnel and
procedures of the tribunal. These biases, so it is argued, will tend to promote the international
community's interests in deterrence and retribution and tend to work against the interests of
the accused
An international criminal court would be biased to make itself look legitimate.

Todd Prichard, “The Rome Statute of the International Criminal Court: Should the United
States Sign on the Dotted Line?”, Transnational Law and Contemporary Problems, Volume
13, 2003.
One serious problem that arises when using a three-member judge panel, rather than a jury, is
that a panel of judges from the ICC may not be independent and impartial decision-makers.
While judges may be impartial with regard to the alleged crime, the judges are not impartial
regarding the survival of the Court. Unlike national court systems, whose existence and
power is mandated by law, the ICC faces the problem of legitimacy. In an effort to secure
legitimacy for an investigation or for the Court itself, judges may view a verdict of not guilty
as a loss of credibility for the Court.
International courts have significantly design flaws in terms of accountability.

John Bolton, “The Risks and Weaknesses of the ICC from America’s Perspective”, Law and
Contemporary Problems, Volume 64, 2001.
They are effectively accountable to no one. The prosecutor will answer to no superior
executive power, elected or unelected. Nor is there any legislature anywhere in sight, elected
or unelected, in the Statute of Rome. The prosecutor and his or her not-yet-created
investigatory, arresting, and detaining apparatus are answerable only to the court, and then
only partially. The Europeans may be comfortable with such a system, but that is one reason
why they are European and we are not. The ICC does not fit into a coherent ‘constitutional
design’ that delineates clearly how laws are made, adjudicated or enforced, subject to popular
accountability and structured to protect liberty. There is no such design. Instead, the Court
and the Prosecutor are simply ‘out there.’
​

Due to their diverse backgrounds, international court judges have highly inconsistent conceptions of justice.

James Meernik, “Victor's Justice or the Law?: Judging and Punishing at the International
Criminal Tribunal for the Former Yugoslavia”, The Journal of Conflict Resolution, Vol. 47,
No. 2, 2003
Given the diverse common law, civil law, and other backgrounds of the judges, the several
trial chambers that hear cases, and the relatively inchoate state of international criminal law
(Schabas 1997), there are a variety of potential conceptions of justice that the judges might
borrow from in their deliberations. First, the United Nations Security Council Resolution
creating the ICTY accords prominence to deterrence in the tribunal's work. By virtue of its
existence and through its judgments, the tribunal is supposed to deter the commission of war
crimes both by those who have been indicted and by other political and military leaders
throughout the world. But although deterrence is a worthy aim, ICTY judges have argued
that individual sentences must be based on individual crimes, not overarching goals.
International court judges are allowed to develop their own rules and procedures.

James Meernik, “Victor's Justice or the Law?: Judging and Punishing at the International
Criminal Tribunal for the Former Yugoslavia”, The Journal of Conflict Resolution, Vol. 47,
No. 2, 2003
The judges of the ICTY are charged with doing justice for the world and the peoples of the
former Yugoslavia and are given tremendous discretion in the manner in which justice is
dispensed. They develop their own Rules of Procedure and Evidence. They determine when a
sufficient prima facie case has been established to indict an individual suspected of war
crimes. Once the judges have determined that an individual is guilty beyond a reasonable
doubt, they are provided with only the most skeletal framework for assessing fair
punishment.
The accused has too great of a power disparity with the international court.

James Meernik, “Victor's Justice or the Law?: Judging and Punishing at the International
Criminal Tribunal for the Former Yugoslavia”, The Journal of Conflict Resolution, Vol. 47,
No. 2, 2003
For an individual who stands accused of criminal behavior in an ordinary court of law facing
the full power and prestige of government, the difference in status between the opposing
parties is often considerable. For an individual who stands accused before an international
criminal tribunal backed by the authority and judgment of the entire international
community, the disparity between the parties is epic. International criminal law has assumed
increased prominence with the creation of the International Criminal Tribunal for the Former
Yugoslavia (ICTY) and, later, the International Criminal Tribunal for Rwanda (ICTR). These
were the first international criminal tribunals established since the Nuremberg and Tokyo
tribunals of World War II, and they have faced a great number of political and legal
challenges in establishing their legitimacy. Of critical importance to the ICTY and
international criminal law in general is the development of impartial criteria for judging
those accused of international crimes. We must wonder if, in this great contest, the resources,
experience, and moral force are so heavily weighted in favor of the international community
that the individual cannot.
International courts superfluous and misguided by injecting morality into diplomacy.

James Meernik, “Victor's Justice or the Law?: Judging and Punishing at the International
Criminal Tribunal for the Former Yugoslavia”, The Journal of Conflict Resolution, Vol. 47,
No. 2, 2003
​

Realists maintain that international institutions are superfluous at best, because they are
simply a reflection of the underlying balance of power (Mearsheimer 1994/1995; Waltz
1979), and misguided at worst, because they inject moral issues with their accompanying
fervor and stickiness into diplomacy (Kennan 1985/1986; Kissinger 1994). Indeed, these
legalistic exercises risk exacerbating the very conflicts tribunals are supposed to ameliorate.
Furthermore, international criminal tribunals can never escape the political interests that led
to their creation. If international laws are enforced only when states are subjugated to those
laws by more powerful states, the power to enforce and interpret the law resides with a war's
winning coalition or a winning coalition on the UN Security Council. In this view,
international justice is the product and subject of international politics.
​

Blocks for: Security Council Checks Any Abuses by the

Court
An international court would not be checked by the Security Council.

Bob Barr, “Protecting National Sovereignty in an Era of International Meddling: An

Increasingly Difficult Task”, Harvard Journal on Legislation, Volume 39, 2002.
The resulting lack of due process and equal protection are compounded when coupled with
the fact that the court can also investigate potential crimes at will, without even a formal
complaint being filed. The conference rejected American insistence that all cases be referred
to the court by the Security Council. This decision eliminated at least one potential
safeguard--the veto. The procedural deficiencies and opportunity for malicious prosecutions
and general corruption, however, are not even the most significant concerns.
​

Blocks for: Article 98 Agreements Violate International

Law
Article 98 agreements do not violate international law

Brett D. Schaefer and Steven Groves, 2009, The United States Should Not Join the International Criminal
Court,
http://www.heritage.org/research/reports/2009/08/the-us-should-not-join-the-international-criminal-court
Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs and Steven Groves is Bernard
and Barbara Lomas Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and
Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.DOA: 11-23-14

Article 98 Agreements. Because the ICC could claim jurisdiction over

non-parties to the Rome Statute--an assertion unprecedented in international
legal jurisdiction--the Bush Administration sought legal protections to
preclude nations from surrendering, extraditing, or transferring U.S. persons
to the ICC or third countries for that purpose without U.S. consent. Under an
Article 98 agreement, a country agrees not to turn U.S. persons over to the
ICC without U.S. consent.
Contrary to the claims of the more strident critics, who label the Article 98
agreements as "bilateral immunity agreements" or "impunity agreements,”
the agreements neither absolve the U.S. of its obligation to investigate and
prosecute alleged crimes, constrain the other nation's ability to investigate
and prosecute crimes committed by an American person within its
jurisdiction, nor constrain an international tribunal established by the
Security Council from investigating or prosecuting crimes committed by
U.S. persons. The agreements simply prevent other countries from turning
U.S. persons over to an international court that does not have jurisdiction
recognized by the United States.

The limited nature of the agreements is entirely consistent with international

law, which supports the principle that a state cannot be bound by a treaty to
which it is not a party. The agreements are also consistent with customary
international law because the issue of ICC jurisdiction is very much in
dispute. Moreover, they are consistent with the Rome Statute itself, which
contemplates such agreements in Article 98:
The Court may not proceed with a request for surrender which would require the
requested State to act inconsistently with its obligations under international
agreements pursuant to which the consent of a sending State is required to
surrender a person of that State to the Court, unless the Court can first obtain the
cooperation of the sending State for the giving of consent for the surrender.
​

Although the U.S. is not currently seeking to negotiate additional Article 98

agreements, there are no known plans to terminate existing agreements.
Reportedly, 104 countries have signed Article 98 agreements with the U.S.,
of which 97 agreements remain in effect.
​

Blocks for: ICC Key to Strengthening U.S.-European

Relations

EUROPEAN ALLIES INCREASINGLY ACCEPT NEED FOR SPECIAL PROTECTIONS

FOR US PERSONNEL

Robert Nolan, Foreign Policy Association, “Protecting Peacekeepers: The US and

the ICC”, July 11, 2002,
http://www.fpa.org/newsletter_info2583/newsletter_info_sub_list.htm?section=Pro
tecting%20Peacekeepers%3A%20The%20United%20States%20and%20the%20I
CC (HARVUN1915)

The administration's stance has less to do with peacekeeping than it does with
protecting America's highly vulnerable forces around the world – an argument that
is gaining credibility as Europeans and others contemplate the United States
unique role in the post-post Cold War era. As charges of double standards flew
from all directions last week, the New York Times James Dao, along with many
others, identified the purpose behind the posturing. “As last week's events point
up, a double standard is precisely what the Bush administration is pursuing,”
writes Dao, summarizing the views of many American officials.