Saturday, August 24, 2013

Differences Between the International Criminal Court and the International Court of Justice


The International Court of Justice, which began in 1946 after the formation of the collective hegemon of World War II victor-states in the form of the U.N. Security Council, is an official organ of the United Nations and the maintains 15 elected judges, elected by the United Nations and the United Nations Security Council, serving nine year terms.  Much younger than the International Court of Justice, the International Criminal Court is an independent international court based off the Rome Statute which began operations in 2002.  The International Court of Justice handles cases of member states in areas focusing on sovereignty, trade, natural resources, treaty violations, and treaty interpretations while the International Criminal Court was established to try cases concerning crimes of genocide, crimes against humanity, war crimes, and the crime of aggression.  Looking at these categories of crime, the following definitions apply:

Genocide – destroying, completely or in partial, a group under the category of national, ethnical, racial and religious group.

Crimes against Humanity – which would consist of murder, extermination, enslavement torture, rape, sexual pregnancy, mass sterilization, apartheid, and other inhumane acts

War Crimes – Breeching the Geneva Convention in areas of mutilation, attacking civilian populations, attacking religious, medical or educations structures, and recruiting children under the age of 15 into armed groups participating in hostilities.

Aggression – Invasion, occupation, annexation by force, or naval blockades.

Since the area of jurisdiction of Aggression is new jurisdiction for the International Criminal Court, it will not be an area of jurisdiction available under the International Criminal Court until 2017.

Member states of the United Nations are automatically members of the International Criminal Court while states must be individually admitted under the International Court of Justice.  While the International Criminal Court will issue criminal prosecutions, the International Court of Justice holds more weight due to the possibility of UN Security Council enforcement of those judgments.  One area that should be noted that the United States, China, India and Israel never ratified the Rome Statue and therefore never became members of the International Criminal Court.  After all, the bulk of these decisions will be economic in nature.  The historical development of today’s International Court of Justice has evolved out of The Hague Peace Conferences and the Permanent Court of Arbitration, and the Permanent Court of International Justice.

It should also be identified that the International Criminal Court is focused on prosecutions of individuals while the International Court of Justice is aimed toward cases involving actual states.  Considering individual International Criminal Court jurisdiction, the International Criminal Court is not authorized to try children under the age of 18.

International Court of Justice, History of the Court, http://www.icj-cij.org/court/index.php?p1=1&p2=1#origins
International Criminal Court, About the Court, http://www.icc-cpi.int/EN_Menus/ICC/Pages/default.aspx

Wednesday, August 14, 2013

Warsaw Uprising, Capital Democracy vs. Communism, Allied Support of Opposition, and Stalin

Prior to World War II, “there were three million Jews in Poland.  Three to four hundred thousand lived in Warsaw” [1].  After five years of Nazi military occupation in Warsaw, opposition forces in the form of the Polish Resistance Army planned an organized uprising against occupying forces and had received promises for assistance from the Allied forces: Stalin’s Red Army, Great Britain, and the United States. 

One of the friction points among the Allied Forces and Polish resistance forces could be found in the opposite forms of government represented between capital democracy and Soviet communism.  While Germany was the main enemy to the USSR and the Capitalist-democratic forces of the West, resulting in all Allied parties involved making promises of support to the Polish opposition forces, a sub-level concern for the Polish opposition (and also a concern for the U.S. and Britain) was the possibility that the Soviets would institute a communist government over areas of Poland if they were able to force Germany out of Warsaw.  After all, the democratic Polish government had, for the most part, taken exile in Britain and pro-democratic.

As the Red army approached Warsaw at the beginning of August of 1944, the Germans launched a fierce counter-attack with reinforcements, and several ground units within the Soviet military advance had their orders modified to move in a different direction or to halt advancement into Warsaw altogether.  This reluctance in pursuing an all-out assault on German forces occupying Warsaw is debated by historians, with one of the main arguing theories being that the Warsaw insurgents supported an anti-Soviet exiled government and Stalin may have wanted that faction destroyed.

In the historical documentations below, we can see the coordinating efforts of the allied forces, similar to Western support for opposition uprisings in Syria and Egypt today, in attempting to arm the Warsaw Uprising.

Message dated August 4, 1944 from Winston Churchill to Stalin:

“At urgent request of Polish Underground Army we are dropping, subject to weather, about sixty tons of equipment and ammunition into the southwest quarter of Warsaw, where it is said a Polish revolt against the Germans is in fierce struggle. They also say that they appeal for Russian aid, which seems to be very near. They are being attacked by one and a half German divisions. This may be of help to your operation.” [2]

Message dated August 15, 1944 from Soviet Foreign Affairs Commissar to U.S. Ambassador to the USSR, William Harrison Standley in Moscow:

“The Soviet Government cannot of course object to English or American aircraft dropping arms in the region of Warsaw, since this is an American and British affair. But they decidedly object to American or British aircraft, after dropping arms in the region of Warsaw, landing on Soviet territory, since the Soviet Government do not wish to associate themselves either directly or indirectly with the adventure in Warsaw.” [3]

The correspondence to the U.S. Ambassador shows Stalin’s refusal to allow U.S. or British supply planes to land (and refuel) in Soviet territory.

Message dated August 16, 1944 from Stalin to Winston Churchill:

“After the conversation with M. Mikolajczyk I gave orders that the command of the Red Army should drop arms intensively in the Warsaw sector. A parachutist liaison officer was also dropped, who, according to the report of the command, did not reach his objective as he was killed by the Germans.  Further, having familiarized myself more closely with the Warsaw affair, I am convinced that the Warsaw action represents a reckless and terrible adventure which is costing the population large sacrifices. This would not have been if the Soviet command had been informed before the beginning of the Warsaw action and if the Poles had maintained contact with it.” [4]

The message from Stalin basically shows his abandonment of support to the Warsaw uprising.

[1]  Dale, Jon.  The Warsaw Ghetto Uprising, 1943.  Socialism Today, Issue 75, June 2003.  Accessed from http://www.socialismtoday.org/75/warsaw43.html

[2]  Churchill, Winston.  Letter to Stalin Dated August 4, 1944, Public Domain.  Accessed from http://www.warsawuprising.com/doc/Roosevelt_Churchill_Stalin.htm

[3]  Vyshinsky, Andrey.  Letter to Ambassador Harrison Dated August 15, 1944.  Public Domain.  Accessed from http://www.warsawuprising.com/doc/Roosevelt_Churchill_Stalin.htm

[4]  Stalin, Josef.  Letter to Winston Churchill Dated August 16, 1944.  Public Domain.  Accessed from http://www.warsawuprising.com/doc/Roosevelt_Churchill_Stalin.htm

Saturday, August 10, 2013

International Law - Waterboarding and Torture

According to the website Waterboarding.org, waterboarding is defined as “The head is tilted back and water is poured into the upturned mouth or nose. Eventually the subject cannot exhale more air or cough out more water, the lungs are collapsed, and the sinuses and trachea are filled with water. The subject is drowned from the inside, filling with water from the head down. The chest and lungs are kept higher than the head so that coughing draws water up and into the lungs while avoiding total suffocation.” [1].

Before we even consider the UN Convention against Torture and U.S. obligations within, there are several other areas of international law concerning this issue that must be considered.

Geneva Convention IV:

In the Article 32 of the Fourth Geneva Convention, which the United States is a party of, prohibits “all forms of torture, whether they form part of penal procedure or are quasi- or extra-judicial acts, and whatever the means employed” [2]. The questionable terminology here seems to deal with ‘civilian persons’ and the ability to determine between a civilian and an enemy combatant, similar to the terminology of recognized statehood.

Rome Statute:

The United States is also a member of the international Criminal Court under the Rome Statute, which states in Article 7 that torture, defined in the statute as “the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions”, is considered a crime against humanity [3]. The United States (and Israel) signed the Rome Statute, but never ratified it. Among states not signing or ratifying are China, Indonesia, and India, which illustrates that invalidity of the International Criminal Court since the United States, Israel, nor China are bound to jurisdiction.

United Nations Convention against Torture:

Article 31 is the first article that grabs attention in the UN Convention against Torture because it allows a state party to denunciate the “Convention by written notification to the Secretary-General of the United Nations” and that “denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General” [4]. The Convention itself defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity” [5]. Article 31 allows a legal exit strategy for party states and only binds party states to “any act or omission which occurs prior to the date at which the denunciation becomes effective” [6]. It should be noted though that denunciation only becomes effective “one year after the date of receipt of the notification by the Secretary-General” [6].

In the Chilean case, “The government headed by General Pinochet came to power in 1973 through a military coup d’├ętat that removed the elected government headed by Dr. Salvado Allende”[7]. After the Chilean government transferred back to “civilian rule in 1990, Pinochet negotiated an amnesty with the new government”[8]. In 1998, while in Great Britain for medical treatment, Pinochet was detained by the British government under an extradition request from Spain. This extradition was dismissed due to “(1) the original request failed because the offenses did not meet the test of double criminality; and (2) as head of state, Pinochet enjoyed immunity from prosecution of the acts he may have committed” [9].

What are the differences between the Pinochet case and the Bush authorizations? 1) Chili was a lesser developed post-colonial state instead of an economically and militarily powerful state with a UN veto 2) The United Nations Convention against Torture had not occurred 3) Bush was never charged by the domestic courts (due to the consolidated domestic capital and economic power) the U.S. courts or a foreign state while Pinochet had already received amnesty from the transition government he relinquished power to, 4) The U.S. never ratified the Rome Statute, so how can it fall under the International Criminal Court jurisdiction?, and 5) International law is hypocritical, based on capital, and is only tangible to post-colonial or lower economic states who are forced to abide by it.

[1] “What Waterboarding Is,”Waterboarding.org, accessed August 8, 2013, http://waterboarding.org/info

[2] Geneva Convention IV, Article 32, August 12, 1949, 75 UNTS 287, http://www.icrc.org/applic/ihl/ihl.nsf/1a13044f3bbb5b8ec12563fb0066f226/6deaa63f03bf9d75c12563cd0042bc22

[3] UN General Assembly, Rome Statute of the International Criminal Court, Article 7, 17 July 1998, http://untreaty.un.org/cod/icc/statute/romefra.htm

[4] UN Convention Against Torture, Article 31, December 10, 1984, http://www.un.org/documents/ga/res/39/a39r046.htm

[5] UN Convention Against Torture, Article 1, December 10, 1984, http://www.un.org/documents/ga/res/39/a39r046.htm

[6] UN Convention Against Torture, Article 31, December 10, 1984, http://www.un.org/documents/ga/res/39/a39r046.htm

[7] Gerhard von Glahn & James Larry Taubee, Law Among Nations: An Introduction to Public International Law p. 463 (9th ed. 2010)

[8] Gerhard von Glahn & James Larry Taubee, Law Among Nations: An Introduction to Public International Law p. 464 (9th ed. 2010)

[9] Gerhard von Glahn & James Larry Taubee, Law Among Nations: An Introduction to Public International Law p. 464 (9th ed. 2010)

Thursday, August 1, 2013

Jurisdiction (Laws) of the Sea, UNCLOS, Private Sector Capital, and Oil


According to the Central Intelligence Agency website, the definitions concerning maritime claims are as follows:

“territorial sea - the sovereignty of a coastal state extends beyond its land territory and internal waters to an adjacent belt of sea, described as the territorial sea in the UNCLOS (Part II); this sovereignty extends to the air space over the territorial sea as well as its underlying seabed and subsoil; every state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles” [1]

“contiguous zone - according to the UNCLOS (Article 33), this is a zone contiguous to a coastal state's territorial sea, over which it may exercise the control necessary to: prevent infringement of its customs, fiscal, immigration, or sanitary laws and regulations within its territory or territorial sea; punish infringement of the above laws and regulations committed within its territory or territorial sea; the contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured (e.g., the US has claimed a 12-nautical mile contiguous zone in addition to its 12-nautical mile territorial sea” [2]

“exclusive economic zone (EEZ) - the UNCLOS (Part V) defines the EEZ as a zone beyond and adjacent to the territorial sea in which a coastal state has: sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents, and winds” [3]

When it comes to the validity of the United States and the various international claims, it is hard to justify or deny either side of an international law argument because international law, even if it does exist on paper, is completely controlled and distorted by private capital and the UN Security Council.  When it boils down to territorial claims, “Oil and fish are at the root of any number of disputes that involve the continental shelf and the exclusive economic zone” [4].  I would assume (with great confidence) that 99.9% of all disputes are economic in nature.   Remember, these international waters once were waterways for the transatlantic slave trade.

The original United Nations Convention on Laws of the Sea occurred in 1956, and created four treaties: Convention on the Territorial Sea and Contiguous Zone, Convention on the Continental Shelf, Convention on the High Seas, Convention on Fishing and Conservation of Living Resources of the High Seas.

We know that the U.S. “proclaimed a 200-nautical-mile EEZ in 1983”, but this included “Hawaii and Puerto Rico as well as the continental United States” [5].  The U.S. was already under the Geneva Convention on the Law of the Sea from 1958, and due to opposition in the U.S. Senate against ratifying the treaty; the U.S. simply recognized the convention as customary law.  It is also noteworthy to point out that Israel has also not signed the treaty.

I pulled up the UN page with the full text of the original United Nations Convention on the Law and Sea, and the articles of the convention that I browsed over were exactly what I would expect from the United Nations.  Interesting enough, the third UNCLOS was conducted “shortly after the October 1973 Arab-Israeli war. The subsequent oil embargo and skyrocketing of prices only helped to heighten concern over control of offshore oil reserves. Already, significant amounts of oil were coming from offshore facilities: 376 million of the 483 million tons produced in the Middle East in 1973; 431 million barrels a day in Nigeria, 141 million barrels in Malaysia, 246 million barrels in Indonesia. And all of this with barely 2 per cent of the continental shelf explored” [6].

I think that it is evident what these so-called laws of the sea and UNCLOS are all about, especially the 1982 adoption of Part 5, Article 55 which expanded the exclusive economic zone during the oil boom of the 1980s.  It was, and still is, about oil and economics.  I still do not see an international law system; I see an international hegemon controlled by private sector capital (aka globalization).

In closing, I found a full text from a Senate Committee on Foreign Affairs 2012 hearing discussing UNCLOS.  If any of you have some free time, I would suggest browsing over it or watching the video I am going to post the link for.  During this hearing, former Secretary of Defense Donald Rumsfeld even mentions the potential for future outer space resources possibly being considered under UNCLOS (approximately the 38 minute mark of the video).  After all, if you read the definitions contained in the UNCLOS treaty…it does mention ‘air space’.  And we know how those legal loop holes are in international law, don’t we?  

 Here are two interesting quotes I found form the 2012 Senate hearing that clearly show the truth of the matter from a U.S. perspective:

“These businesses have made the business decision to buy multimillion dollar leases from the U.S. Government to go out on an Extended Continental Shelf, regardless that we are not a party to this treaty and whatever international  certainty that comes along with it” – Mr. Steven Groves (Heritage Foundation)

“Joining UNCLOS would affect our sovereignty and national interests in several ways.  It would expose the United States to adverse judgments from international tribunals from which there are no appeals.  It would obligate the United States to make an open-ended commitment to transfer an incalculable amount of royalty revenue to an international organization for redistribution to the developing world.  And it would require the United States to seek permission to mine the deep seabed from a council of foreign countries that includes Sudan” – Mr. Steven Groves

Below are the links to the full text of the Senate hearings and a video link I also found:

Full text link:


Link with video of hearings (Guess what I will be watching going to bed tonight):


Notes:

[1]  Maritime Claims.  Central Intelligence Agency (August 1, 2013 16:23), https://www.cia.gov/library/publications/the-world-factbook/fields/2106.html

[2] Maritime Claims.  Central Intelligence Agency (August 1, 2013 16:23), https://www.cia.gov/library/publications/the-world-factbook/fields/2106.html

[3] Maritime Claims.  Central Intelligence Agency (August 1, 2013 16:23), https://www.cia.gov/library/publications/the-world-factbook/fields/2106.html

[4] Gerhard von Glahn & James Larry Taubee, Law Among Nations: An Introduction to Public International Law p. 319 (9th ed. 2010)

[5] Gerhard von Glahn & James Larry Taubee, Law Among Nations: An Introduction to Public International Law p. 319 (9th ed. 2010)

[6] United Nations Convention on the Law of the Sea: A Historical Perspective.  United Nations: Dividion for Ocean Affairs and the Law of the Sea.  (August 1, 2013 17:56), http://www.un.org/depts/los/convention_agreements/convention_historical_perspective.htm#HistoricalPerspective