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validation-international-ahbwsuambwb-con02a | At the very least it slows people down Navigating past the wall will be a problem that people trying to cross the border or bring drugs through the border will have to face. It will create apprehension from attempting to do so. It will make it harder for these crossings to occur. |
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validation-international-ahbwsuambwb-con03a | Prototypes have seen success A prototype in San Diego has been built and has seen a success. The number of illegal crossings dropped from 560,000 in 1992 to 68000 in 2010 after the prototype had been constructed. |
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validation-international-ahbwsuambwb-con01a | Would create US jobs A building project that large would likely create close to 25000 US jobs. There would also be a large increase in border patrol agents. This would make the wall an effective way to decrease unemployment and create economic opportunity that the Trump administration promised. |
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validation-international-ahbwsuambwb-con02b | According to the Department of Homeland Security, people attempting to cross the border is already on the decline, so this wall might already be a mute point. |
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validation-international-epgwhwlcr-pro02b | If this conflict really is zero sum then a lease over the whole of Crimea is a big loss to Ukraine; it is after all losing a whole province in return for some financial assistance. Moreover we have little evidence that it really would mean Russia getting what it wants; Russia continues to deny that it even has military forces in Crimea, “these were local self-defence forces”, let alone spell out to the world exactly what its objectives are. President Putin says “This is a humanitarian mission” that “corresponds with our interests of protecting people who are historically tied to us”. If protection is all that is necessary then a lease should not be necessary. [1] [1] Siddique, Haroon, ‘Putin: Yanukovych ousting was ‘unconstitutional overthrow’’, theguardian.com, 4 March 2014 |
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validation-international-epgwhwlcr-pro02a | Russia gets what it wants There have been many suggested motives for Russia’s sending military forces into Crimea. Providing a lease on Crimea to Russia would provide a solution to most of Russia’s main objectives; the Russians in Crimea are protected, and the Russian hold on its Black Sea base is secure. More importantly the crisis started after the defeat of President Yanukovych and the resulting blow to Russian prestige in what Russia sees as a zero sum game (if one side wins the other automatically loses to the same extent). An invasion or Crimea regained Russian leverage but left Russia with little room to manoeuvre as any climb-down would leave Putin with nothing. [1] A lease gets out of this zero sum problem as both can gain. A lease would enable Russia to make an agreement with the Ukrainian government and recognise that government without having to lose face as any other solution which maintains Ukrainian territorial integrity would. [1] Crowley, P.J., ‘Crimea: Putin’s mission accomplished’, BBC News, 3 March 2014, |
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validation-international-epgwhwlcr-pro03b | A lease is not all a financial gain for Ukraine. Any tax revenues from Crimea would be lost as they would instead go to Russia. As would any revenues from natural resources either now in the future; Crimea with its strategic location was intended to be the hub for gas pipelines across the Black sea so Ukraine would be losing transit fees. |
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validation-international-epgwhwlcr-pro01a | A peaceful solution Agreeing a lease would provide a much needed peaceful solution to the Crimean crisis which would not only solve the immediate crisis but would also prevent future flare ups. Shortly after Russian forces moved into Crimea Prime Minister Arseny Yatseniuk of Ukraine said “This is not a threat: this is actually the declaration of war to my country”. [1] It has not so far been a shooting war, and no one wants it to escalate. Russia’s UN Ambassador has said “Russia does not want war… We don’t want any further exacerbation of the situation.” [2] But when there are constant tensions the best way to prevent a potentially unpredictable situation is to provide a solution to the situation. A lease should be considered. [1] Zinets, Natalia, and De Carboonnel, Alissa, ‘Ukraine mobilises after Putin’s ‘declaration of war’’, Reuters, 2 March 2014, [2] ‘Ukraine crisis: Russia tells UN it does not want war’, BBC News, 14 March 2014, |
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validation-international-epgwhwlcr-pro01b | Everyone wants a peaceful solution but that does not mean that a lease is the best solution. Having some form of shared sovereignty – Ukraine owning the land and Russia having the right to use it and control it requires a great deal of trust. This is especially true if the Ukrainian Black Sea Fleet were to remain based on the peninsula. With potentially overlapping jurisdictions there is a lot of potential cause for trouble. |
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validation-international-epgwhwlcr-pro04b | Leases reflect inequality between those involved in the lease; Panama was much less powerful than the USA so had little choice – it also needed the money. China was a defeated state; it had just been defeated by Japan and had lost two previous wars to the UK. The treaties were considered to be ‘unequal treaties’ and those countries that were subjected to them threw them off at the first opportunity. |
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validation-international-epgwhwlcr-pro03a | Helps Ukraine financially Ukraine is in a dire financial situation; it has gone to the IMF seeking $15billion to help stabilise the economy with a bailout. [1] The interim finance minister Yuri Kolobov suggests that even this amount will not be enough for the full year with Ukraine needing $34.4billion. [2] Finance was one of the reasons why Ukraine turned to Russia in November 2013; Russia was offering money when the EU was not. The lease agreed for the Black Sea Fleet involves the payment of $90million per year and the renegotiations in 2010 involved giving Ukraine cut price gas as well. [3] A lease for the whole of the peninsular with almost 2 million inhabitants and is close to the size of Belgium would cost a lot more, potentially enough to fill much of that financial hole. [1] Talley, Ian, ‘IMF Making ‘Good Progress’ in Ukraine Bailout’, The Wall Street Journal, 13 March 2013, [2] Schmeller, Johanna, ‘Crimea crisis further imperils Ukraine’s economy’, Deutsche Welle, 4 March 2013, [3] Harding, Luke, ‘Ukraine extends lease for Russia’s Black Sea Fleet, The Guardian, 21 April 2010, |
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validation-international-epgwhwlcr-pro04a | Precedent While of the core points of sovereignty is that is indivisible this has not stopped the existence of other similar deals happening in the past. Locally the Black Sea Fleet is a good example There have however been more famous examples in the past; the Panama Canal Zone was leased to the United States from 1903 to 1977 for $250,000 per year (later increased). [1] There are other instances of territory being leased; the clearest example being Hong Kong’s new territories which were leased rent free for 99 years from 1898 after China was defeated by Japan [2] – at the time there was a general view that if one great power gained then all the others have to as well. That leasing territory is an established practice means that it should be easy to apply to this case. [1] Lowenfeld, Andreas, ‘Panama Canal Treaty’, Institute for International Law and Justice, [2] Welsh, Frank, A History of Hong Kong, 2010 |
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validation-international-epgwhwlcr-con03b | Ukraine would clearly find it difficult to trust Russia however it has several reasons for doing so. The first is that Russia and Ukraine "for decades had warm and friendly relations" to which they can return if they sign an agreement. Second Ukraine has little choice; it does not have the military strength to oppose Russia. Finally the United States and other countries could be a part of the agreement providing formal guarantees which would provide much more guarantee of action to help Crimea in the event of a repeat situation in the future. |
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validation-international-epgwhwlcr-con01b | While legitimising a reward for Russia’s actions may hurt it is far better that the dispute be resolved than it be left to fester. Under the status quo there are concerns that war will break out because the situation is unstable and Russia “reserves the right to take people [Russian speakers elsewhere in Ukraine] under its protection”. [1] This is in large part a result of the Russians and Ukrainians not speaking to one and other as the Russians won’t recognise the Ukrainian government. Peace will only come when both sides give some ground no matter who is in the right. Under this deal there will be peace, not further aggression. [1] MacAskill, Ewen, and Luhn, Alec, ‘Russia and west on collision course over Ukraine as talks fail in London’, theguardian.com, 14 March 2014, |
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validation-international-epgwhwlcr-con02a | Does not provide guarantees for the protection of other Russian minorities Although it is the region in which Russia has acted its interest in Ukraine is not just about Crimea. Foreign Minister Lavrov has made clear “Russia recognises its responsibility for the lives of countrymen and fellow citizens in Ukraine and reserves the right to take people under its protection”. [1] A lease over Crimea will resolve nothing if it does not also resolve other issues between the two countries such as the protection of minorities and Russia’s economic interests. [1] MacAskill & Luhn, 2014, |
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validation-international-epgwhwlcr-con04a | The crisis affects more than just Crimea There is a lot more at stake than just the Crimean peninsula. While suggestions that it may destroy the whole international system are hyperbole the territory becoming part of Russia would be the most major territorial change in Europe since the unification of Germany and breakup of the USSR both of which were peaceful and mutually agreed events. The G7 notes “the annexation of Crimea could have grave implications for the legal order that protects the unity and sovereignty of all states.” [1] A lease however would be a de facto change of territory, a hand over from Ukraine to Russia. Hong Kong was on a lease from China but during that time it was essentially considered as part of the UK. [1] G7, 12/3/2014, |
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validation-international-epgwhwlcr-con03a | Why would Ukraine trust a lease when the previous one was violated? It is hard to see why Ukraine would be willing to sign a lease with Russia when Russia has already proven it will not stick to the terms of its lease. Russia signed agreements in 1997 that recognised Crimea as a part of Ukraine in return for a lease on the base of the Russian Black Sea Fleet. [1] Under that lease Russia was allowed to keep up to 25,000 troops based in Sevastopol so long as they remain on the base unless. [2] Russia has violated both of these; its troops have clearly moved off the base without Ukrainian permission and it is estimated to have 30,000 soldiers in Crimea. [3] When Russia has violated what would be a similar agreement once why should Ukraine believe it will not happen again next time Russia wishes to extend the lease either physically by incorporating more territory or in terms of duration. [1] Felgenhauer, T., ‘Ukraine, Russia, and the Black Sea Fleet Accords’, dtic.mil, 1999, [2] ‘Ukraine crisis: Does Russia have a case?’, BBC News, 5 March 2014, [3] Boyle, Jon, ‘Ukraine says Russian troops in Crimea have doubles to 30,000’, Reuters, |
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validation-international-epgwhwlcr-con01a | Rewards aggression The US Secretary of state condemned Russia’s action in Crimea as "You just don't in the 21st century behave in 19th century fashion by invading another country on completely trumped up pre-text". [1] Yet it is exactly 19th century thinking that expects that a great power will get away with launching aggressive acts against a weaker neighbour. If the result were to be effectively a hand over of Crimea, and a legal recognition of that status even if it is in the form of a lease Russia would be getting away with this act of aggression and might be tempted to try it again elsewhere. Russia has already got away with one aggressive act when it launched an assault on Georgia in support of separatist regions. Under such circumstances it is better for everyone if Russia is isolated and there is no deal that rewards and legitimises Russia’s acts. [1] Dunham, Will, ‘Kerry condemns Russia’s ‘incredible act of aggression’ in Ukraine’, Reuters, 2 March 2014, |
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validation-international-epgwhwlcr-con04b | The big advantage of a lease is that it maintains the territorial status quo while giving Russia what it wants. If the concern is about the legal order and sovereignty of states then a lease provides the answer because the actual sovereignty over the territory is not handed over, merely the control over the territory and functions of that territory are. |
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validation-international-epgwhwlcr-con02b | Any deal for a lease would clearly involve negotiation on other concerns that Russia and Ukraine have. Russia would clearly need to renew its guarantees of Ukraine’s territory perhaps with the acceptance that the lease would become null and void if Russia again takes aggressive acts. Ukraine for its part would need to guarantee the rights of minorities; this should not be a problem as both countries are signed up to the Council of Europe’s Framework Convention for the Protection of National Minorities. [1] [1] Council of Europe, ‘Geographical reach of the FCNM’, coe.int, 24 October 2008, |
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validation-philosophy-ehbidachsb-pro02b | The case given is quite different. The parents directly acted to cause harm to their child, inflicting a series of violent beatings over a sustained period. Such a course of action is already illegal and they were rightly convicted and punished. In this instance, a course of action is being avoided with the best interest of the child uppermost in the minds of the parents. |
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validation-philosophy-ehbidachsb-pro02a | Religious freedom does not allow for the right to harm others Nobody is questioning the rights of adults to take actions in accordance with their faith, even when these may cause them some personal harm. Their beliefs may well lead them to conclusions that others might consider reckless but that is their concern. However, when those actions impact others in society, it is a matter for social concern and, frequently, the intervention of the law. If that harm is caused to those who cannot resist or who are incapable of responding, intervention is required. The law explicitly includes children in this category. We do not, for example, allow religious practices such as sacrifice or torture in pursuit of a religious end, however religiously convicted the parents might be. The case of Kristy Bamu, murdered by his parents, practitioners of voodoo, in the belief he was a witch, is just one such example [i] . We expect the legal and medical professions to accord particular protection to children against the actions of others that could harm them including, in extremis, their parents. It is difficult to see what could be a more flagrant example of possible harm than allowing your child to die when an available remedy could save their life. [i] Sue Reid. "Britain's voodoo killers: This week a minister warned of a wave of child abuse and killings linked to witchcraft. Alarmist? This investigation suggests otherwise." Daily Mail , 17 August 2012. |
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validation-philosophy-ehbidachsb-pro03b | We fully accept that children are treated differently in the eyes of the law. However, the very fact that proposition allows for that exceptionalism must require them to acknowledge that the role of the parent is given a status different from any other in society. We acknowledge their right to make decisions in the stead of their child, fully accepting that those decisions have enormous implications. We accept that parents take life and death decisions for their children on a regular basis and we must trust them to do so. Society respects the rights of parents to keep their children safe in no end of perilous situations, and when their judgement is wrong, it is a matter for regret, not legislation. |
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validation-philosophy-ehbidachsb-pro01a | The right to live to regret The primary duty placed on doctors, by society and themselves, is the preservation of life. In pursuing this goal they use not only medicines and scalpels but, first and foremost, their judgement. In many countries practising medics swear an oath to this effect; although these vary greatly in detail, they are well encapsulated by the Declaration of Geneva [i] , the critical clause of which for the purpose of this debate is “The health of my patient will be my first consideration”. Asking doctors to take other considerations into account is not only a breach of their professional integrity, it also poses grave risks for society. They are being asked, in this situation, to allow the opinions of a third party take precedence over the wellbeing of their patient. If this were a younger relative with their eye on an inheritance or a distant sibling seeking to settle an old score, the dangers would be all too apparent. In this instance, the motivation may be well-intentioned but it is no more reasonable. Allowing relatives to say “well, what I think you should do is X” in defiance of medical opinion is fraught with dangers. If a relative decided on behalf of a patient to reject chemotherapy in favour of prayer or expressed their preference for Shamanic rituals rather than medication, why not let them. After all their intent is just as compassionate and their reasoning as solid. [i] There are several forms of the declaration some of them, including the modern one in most common usage, can be found here . |
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validation-philosophy-ehbidachsb-pro01b | Proposition have made a lovely argument, except for one small detail, nobody is suggesting prayer or ritual as a replacement for medical attention. The issue here, as defined by proposition, is whether JW parents should be able to reject blood transfusions on behalf of their child. No more than that; no witchcraft wards or miracle cures. This is just a consideration of whether, given the time for discussion and consideration, the religious views of parents and, usually, their child should be able to say that perspectives other than a strictly medical one should be considered in addressing a complex human situation. |
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validation-philosophy-ehbidachsb-pro03a | The status of the child The protection of children is treated differently from how we address the needs of adults. The very fact that their parents’ consent for procedures is required acknowledges that fact. We further accept that when that consent is questionable - when the parents may not be acting in the best interests of the child - that right may be revoked. In most instances of such revocation, if the parent is an addict or mentally incapable of a particular decision, such a decision can be determined well in advance. However, in this instance, the status of the parent has not previously been an issue. However, the same principles should surely apply. For example, if a parent has been denied access rights to their child by a court, they would have no standing in making any such decision. If their child is a ward of the court, the same would apply. Society has a general duty to at least keep children alive until they reach the age of majority and remove all possible obstacles to that happening. We do not allow parents to give their children the right to pursue other harmful activities or to take unnecessary risks with their safety; the principle of a presumption of protection would also apply here. |
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validation-philosophy-ehbidachsb-con03b | Society does intervene in the private sphere to prevent harm. Domestic abuse is simply the most obvious example but parents are also responsible in most societies for ensuring their children receive an education in accordance with the law. If a parent were to deny their children food when it was available, it would be neglect. If they were to deny them shelter and protection when available, it would be neglect or abuse. It is difficult to see how denying them healthcare, when available, would not fall into the same category. |
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validation-philosophy-ehbidachsb-con01b | We frequently set limits not on religious beliefs but on their practices. The two determinant used there are the possible harm to others and whether the person being harmed can be deemed ‘capable’ in a legal sense. There can be no doubt that the decision to refuse available medical treatment causes harm, that is beyond dispute. The issue then is whether the person harmed, the child, can be considered capable. Legally they cannot, they cannot enter into a contract, they cannot marry or vote, legally they are not allowed to make many decisions because they are not full members of society until they are adults. It is worth noting that if the child is not deemed competent to make a decision regarding their own healthcare, it is difficult to see how their determination of their own religious choices can be assumed as authoritative. So the child cannot make the decision and the parents actions would cause harm to the child. In the light of this, the only remaining opinion is that of the doctor. |
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validation-philosophy-ehbidachsb-con02a | The burden of parental responsibility Societies recognise the importance of parenting and the enormous responsibilities that go with it. In light of these, the parent is allowed broad discretion in determining how those responsibilities are best exercised. It seems likely that a parent in a situation such as this is likely to undertake a great deal more soul searching and thought than could be expected of an external party. This is a decision that is made in good conscience and, as things stand in most countries, within the law. Medical experts and others may well have opinions, frequently strongly held, but they are just that – opinions. The very fact that this issue has come to court, been heard and judges have reached differing decisions demonstrates that this is not an argument against fact. The opinions of parents are often supported by expert and legal authority. The parents can be expected to consider these opinions among many but must be left free to act in what they believe is the best interest of the child. |
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validation-philosophy-ehbidachsb-con03a | The division between the personal and social spheres The law is a cumbersome tool to use in matters that relate to family life; this can be seen in the reluctance to legislate too much in this area. In those areas that require massive social interaction and agreement, such as education, there is a need for legislation but even that frequently proves to be controversial and many parents take the opportunity to opt out. This is particularly true in the moral, ethical and religious education of children as it is recognised, both implicitly and explicitly that this is a matter for the family. How then is this different? That there are repercussions to the decisions individuals make regarding their religious beliefs is beyond question but we still leave them free to make them – the pacifist may go to prison but cannot be compelled to fight. The same principle applies here; decisions based on deep religious conviction are a matter for the individual or, in this case, their family. The views of the family are respected in the choice of whether to prolong the life of someone in a permanent vegetative state, regardless of medical opinion about the individual case. Many consider PVS to be “more dead than dead”. [i] Despite this religious views on the matter, which often compare ‘pulling the plug’ to assisting suicide, are given a level of respect that cannot be justified by the available medical evidence. Although inverted, approaching the issue of the relationship between faith and death from the opposite angle – keeping the dead ‘alive’ rather than allowing the living to die – the same level of respect for the beliefs involved would seem to apply. [i] Tune, Lee, “Vegetative State Seen as More Dead than the Dead, UMD Study Finds”, University of Maryland, 22 August 2011, |
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validation-philosophy-ehbidachsb-con01a | Freedom of religious observance Most cultures respect the right of adults to practice the religious observances of their choosing and to raise their children within that tradition. The prohibition of blood transfusion is a part of the observances of JWs and is worthy of the respect that might be expected of other religiously motivated decisions. There are other religious observances that have medical implications, for example the rejection of certain vaccines, but society accepts that it is appropriate for parents to inculcate their children with the values in the practical outworking of their faith [i] . The refusal to accept blood products may seem reckless to outsiders but there is no suggestion that parents take their decision lightly; it would be difficult to conceive of how they would do so. What then is the alternative? Allowing the state to sanction which religions are acceptable or which practices of those religions? Such an act would strike not only at the freedom of religious practice but at the very principle of freedom of conscience more generally. If the state can challenge these views because it does not like the consequences, then why not social or political opinions? This is the first step on a road to tyranny. [i] Jennifer Steinhauer. New York Times. Public Health Risk Seen as Parents Reject Vaccines. 21 March 2008. |
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validation-philosophy-ehbidachsb-con02b | Parental responsibility is a duty, not a right. Society trusts parents to act in the interests of their child but does not do so unreservedly. Where those actions lead directly to a provable harm, we consider it either neglect or abuse of the child and the parental privileges are revoked. No matter how earnestly the parent may believe it is in the child’s best interest, they may not send them out to work in injurious conditions, they may not allow or encourage them to engage in sexual conduct, they may not allow them to use armaments or certain drugs before a certain age. Because these things cause harm to the child and that is a breach of the duty of care entrusted to the parent by wider society. The same is true of denying them medical treatment. |
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validation-law-lgdgtihbd-pro02b | For intelligence to be effective, the government will need to collect personal information, like bank transactions, emails, phone records, and more, without the citizen in question knowing this. However, democracy works on the assumption that each citizen has a private sphere, separate from the public sphere, of private information, thoughts and opinions, and that the citizen decides who to let into that sphere. Put differently, the citizen has control over when to release private information, and when not. Investigating them without their knowledge means taking away that control, and that is a violation of the right to privacy. Police investigations, on the other hand, are legitimate and not invasive of democracy - the police are generally obliged to inform a citizen when he or she is subject to a criminal investigation, and can generally only investigate a citizen without their knowledge after seeking specific permission from the judiciary, not just by a minister signing off a whole batch of requests as it’s done with domestic intelligence. |
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validation-law-lgdgtihbd-pro02a | Domestic intelligence operates just like the police do. Domestic intelligence does require the collection of information, but this is not fundamentally different from a standard police investigation. The differences are minor when we have national security at stake. Furthermore, the rights, duties and powers of a domestic intelligence service are carefully restricted by law. For example, under Dutch law, the General Intelligence and Security Service (AIVD) is only allowed to wiretap someone after permission granted by the Minister of Interior Affairs (the UK situation is very similar). [1] Generally speaking, for every surveillance action the domestic intelligence can take, it needs to weigh whether the action satisfies the principles of proportionality and subsidiarity, meaning that the invasiveness of a surveillance method should be proportional to the risk the person poses, and that the method chosen should be the least invasive of all possible methods. [1] van Voorhout, Jill E.B. Coster, ‘Intelligence as legal evidence’, Utrecht Law Review, Vol. 2 Issue 2, December 2006, , p.124 |
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validation-law-lgdgtihbd-pro03b | The AIVD example shows exactly that judicial and political control is not enough: the judicial control is control after the fact, so it didn’t prevent the AIVD from listening in to journalists conversations in the first place. Moreover, a regulatory committee judged that the Minister of Internal Affairs, who is supposed to be the a priori control, had given permission too easily, which is to be expected when a Minister faces a lot of requests like this, and has to decide in between the regular work of actually governing. [1] It is the lack of initial oversight which is anti-democratic, citizens expect their government and courts to prevent the intelligence agencies from infringing on privacy not simply demand an apology later when the intelligence agency is found out. How many more cases are there which are not caught? [1] NIS News Bulletin, ‘Press Sector Sues State for Eavesdropping Telegraaf Journalists’ 9/07/2009 |
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validation-law-lgdgtihbd-pro01a | Intelligence is necessary for the safety of the public. Domestic intelligence is very important to the national security and to the safety of the public. Domestic intelligence is imperative in preventing terrorist attacks on the country when terrorists are as likely to be natives as foreigners, for example the 7/7 bombers in Britain were all native. [1] In order for a domestic intelligence organization to be effective, its organizational discretion must be limited by establishing clear legislation that is not secret, on the focus, limits, and techniques of domestic intelligence. When this is in place domestic intelligence is not harmful, nor infringement on democracy – it is in the people’s best interest. As Professor Dahl notes “Intelligence is about the thousands and thousands of routine, everyday observations and activities… in many cases these observations, this intelligence, is about routine activities undertaken by ordinary Americans and others who do not intend to cause harm.” This intrusion is necessary in order to catch the few who do intend to do harm. [2] [1] BBC News, Special Report London Attacks ‘The bombers’, [2] Dahl, Eric Domestic Intelligence Today: More Security but Less Liberty? |
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validation-law-lgdgtihbd-pro01b | Even if it is protecting lives the scale of the intelligence gathering is undemocratic. By allowing interception, widespread tracking of public records, unfair legal treatment, we erase the trust between citizens and the government in return for very occasionally preventing a terrorist attack. As shown by 7/7 terrorists still get through despite intelligence even when the bombers have already been noticed. [1] When all your library patrons can be seized and all your browsing logs checked just on a claim that they are relevant to intelligence information, as initially happened under the patriot act, too much liberty is being given up in the name of very little extra security. [2] [1] BBC News, Special Report London Attacks ‘The bombers’, [2] Strossen, Nadine, ‘Safety and Freedom: Common Concerns for Conservatives, Libertarians, and Civil Libertarians’, Harvard Journal of Law & Public Policy, Vol. 29, No. 1, Fall 2005, p.78 |
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validation-law-lgdgtihbd-pro04b | The military or foreign intelligence or just as able to conduct counterintelligence, because the potential targets for foreign intelligence services are well known. But even if a domestic intelligence service is best placed for counter-intelligence, this is just an argument for limiting their functions to counter-intelligence, where they won’t harm citizen’s privacy as much. The arguments above deal with the other work a domestic intelligence does, and that work is illegitimate. |
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validation-law-lgdgtihbd-pro03a | There is sufficient political and judicial control over intelligence service Even if not every citizen can control exactly what the intelligence service does, there is sufficient political and judicial control. An example of this is a recent case involving the Dutch AIVD, which started wiretapping journalists after they had found a source within the AIVD to leak about the run-up to the Iraq War. The journalists were wiretapped but when the case came to court, the court judged that the AIVD was in error, should stop harassing the journalists, and must delete the files on the journalists immediately. Such cases show that the intelligence agencies, and those involved domestically in particular, have judicial and political oversight to make sure they remain within bounds. [1] Democracy is therefore not threatened as there is democratic oversight. [1] Webber, Liz, Netherlands: De Telegraaf journalists win suit over secret service phone-taps, World Editors Forum, 27/07/2009 |
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validation-law-lgdgtihbd-pro04a | Domestic intelligence services are the only organization that is capable of performing counterintelligence Domestic intelligence services are the only organization that is capable of performing counterintelligence. They have the capacity and the authority to detect foreign spies in the national jurisdiction, and experience with local surveillance and investigation. Part of the job of domestic intelligence is to maintain a network of informers and agents, and this can be used to find and track foreign intelligence services on a mission – these functions can’t be easily performed by the military or foreign intelligence so an independent domestic intelligence agency is necessary. |
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validation-law-lgdgtihbd-con03b | It is better to have some fear and suspicion in society than letting a terrorist attack which costs lives through. Without a domestic intelligence agency we probably would not even know about the 1600 potential terrorists. Now that many of these plots are known by the intelligence agency they can be prevented. |
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validation-law-lgdgtihbd-con01b | Some citizens don’t just have political differences with the current government, but are fundamentally opposed to the democratic state and are willing to use violence against state and society. Such is the case with Germany’s far-left party where the Federal Administrative Court ruled that the Federal Office for the Protection of the Constitution (BfV) could continue to observe Bodo Ramelow, leader of the Left Party in the eastern state of Thuringia. [1] Or where domestic intellegence agencies are necessary to monitor home grown terrorist organisations like the IRA. To protect itself, society and most importantly, the lives of other citizens, it’s necessary for a government to sometimes want to keep a close eye on some of their own citizens. A democratically elected government has both the authority and the legitimacy to order such surveillance, and can be held accountable for the way in which it uses its powers. [1] Der Spiegel, ‘Is Germany's Left Party a Threat to Democracy?’ 22/7/2010 |
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validation-law-lgdgtihbd-con02a | Domestic intelligence agencies cannot be controlled There are no effective ways of controlling the activities of a domestic intelligence agency. With an information request, an investigated citizen has no way of being sure what the intelligence service in question actually does with the information, once it has gathered it, and whether the service actually upheld the principles of subsidiarity and proportionality as they should, because the methods used are not given out. Also, the intelligence service might promise to delete a file after a court honoured a request, but no one can ever be sure that the intelligence service didn’t make an extra, secret copy. |
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validation-law-lgdgtihbd-con03a | Intelligence agencies inflate threats. Having domestic intelligence agencies creates suspicion and fear, and ultimately resentment. Domestic intelligence agencies are created in response to war and external threats, for example MI5 was created in the build up to world war one, and Australia’s intelligence service was created in response to the discovery of a soviet spy ring within the Australian government. [1] Having any such service involved in more than simply counter-intelligence against foreign services shows that the government does not trust its own people. The United States has until very recently not had a domestic intelligence exactly because it was considered that the FBI could do everything that was required without creating undue suspicion. Bureaucracies inflate threats so as to gain more resources, MI5 is a good example, it was given more resources than it needed to engage in counterintelligence against Germany so expanded its role to surveillance of elements such as pacifists and organised labour. [2] More recently the head of MI5 announced there were 1600 Britons plotting terror, which may simply be threat inflation, something which not only makes everyone fearful for no reason. [3] An agency which is equally focused on criminal investigation would have much less reason to inflate dangers in order to maintain or increase funding. [1] Jackson, Brian a. ed., ‘Considering the Creation of a Domestic Intelligence Agency in the United States’, Rand, 2009, p.15 [2] Wikipedia, ‘MI5’, [3] Kayyem, Juliette, and Posner, Richard A., ‘Does the United States Need a Domestic Intelligence Agency?’ CFR, 17 November 2006, |
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validation-law-lgdgtihbd-con01a | The government does not have the right to spy on its citizens The government should not want to spy on its own citizens – that is the mark of a totalitarian regime. If some citizens disagree with the current government or current form of government, it is their fundamental democratic right to do so, and the government has no right to judge their different political preferences as ‘dangerous’. Experience shows that elected governments are not always able to control their domestic intelligence services, which may develop their own views of what constitutes subversive behaviour. In the 1970s MI5 kept files upon Labour Party MPs, including ministers in the UK Government. Elsewhere, fragile democracies such as Pakistan and Turkey have seen military coups launched against elected governments with the involvement of the domestic intelligence services which were supposed to be guarding them. In Turkey despite a coup against army leaders in 2008 the domestic intelligence agencies remain very strong and are supported by the national police. [1] Whenever there is a domestic intelligence service it is potentially very powerful due to the information it controls which could be used in support of other groups like the military to undermine or overthrow the government. It is better to keep intelligence focused outward. [1] Cagaptay, Soner, What's Really Behind Turkey's Coup Arrests? Foreign policy, 25/02/2010 |
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validation-law-lgdgtihbd-con02b | It is quite possible to put checks on the power of a domestic intelligence agency in order to prevent abuse of authority. An important way, in which individual citizens can actually control the intelligence service, is through lodging an information request at the domestic intelligence service. In a democracy, the service is obliged to share if it has a dossier on that citizen, and if it’s unfounded, can request the deletion of it. Of course, the dossier will not include specific intelligence gathering methods used nor mention sources, but overall, it will provide a good picture of what the intelligence service has been investigating so far. |
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validation-law-hrilppwhb-pro02b | Atrocities have continued on both sides of the conflict throughout this war. Military threats of intervention have not caused any reduction in hostilities – they just ramped up tension. There is a very real prospect that an ICC intervention could just fan the flames of the existing warfare; UN weapons inspectors being in the country did not deter the use of chemical weapons, they were used only a few miles from where the inspectors were staying. Also, the ICC has not been a useful deterrent in other situations, such as Darfur, which while referred to the ICC by the UN Security Council is still an ongoing conflict. [1] One of the few academic studies done on the issue suggests ICC involvement simply damages the prospects of peace by ensuring that an actor who may have been willing at some point to negotiate has to fight on. [2] Combatants are already fearing death – would the prospect of spending 30 years in a European prison cell really add too much of a deterrent? [1] Kristof, Nicholas D., ‘Darfur in 2013 Sounds Awfully Familiar’, The New York Times, 20 July 2013, [2] Ku, Julian, and Nzelibe, Jide, ‘Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?;, Washington University Law Review, Vol.84, No.4, 2006, pp.777-833, pp.181, 832 |
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validation-law-hrilppwhb-pro02a | The threat of investigation could deter future war crimes, including the use of chemical weapons The ICC has a high level of soft power in this case. It has the resources to investigate and prosecute, backed up by widespread support from large swathes of the international community. The ICC is part of a growing international norm against war and crimes against humanity. The willingness to prosecute for these crimes – particularly if it is done consistently – will build norms where even ruthless leaders realise they can’t get away with such crimes. Pursuing war crimes from the Syrian conflict alone will not be enough but when combined with similar measures elsewhere and the arrests of other leaders such as Charles Taylor, Slobodan Milosevic and Laurent Gbagbo show that even leaders are no longer out of reach of international law. [1] The ICC could act as an effective deterrent to the use of chemical weapons and other war crimes by threatening to prosecute individuals who commit them. [1] Grono, Nick, ‘The deterrent effect of ICC on the commission of international crimes by government leaders’, International Crisis Group, 5 October 2012, |
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validation-law-hrilppwhb-pro03b | Even if the ICC brings proceedings, that does not guarantee that individuals, even if captured by forces that oppose them, will be transferred over to the ICC – the new Libyan government is still holding Saif Gaddafi. [1] The ICC can also only act when the state is unwilling or unable to provide a trial – this this is the principle of complementarity. However there is not ICC force that can act to arrest a suspect. This means in effect that it will be down to the forces on the ground which may mean summary justice by those who capture the suspect if they think it won’t get a sufficiently stiff sentence at the ICC – there is no death penalty. At any rate, many in Syria would want to see a fully military conclusion to the conflict, rather than any result through the international courts or a political settlement. [1] Aliriza, Fadil, ‘Is Libya too scared to put Said Gaddafi on trial?’, The Independent, 16 August 2013, |
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validation-law-hrilppwhb-pro01a | The ICC is there to prosecute war crimes – there has been evidence of a war crime The purpose of the ICC is to be the venue for the implementation of international criminal law, a principle that the international community has supported since the creation of the ICTY and ICTR and prior to that. [1] The crimes that the court is to prosecute include genocide – which is probably not occurring but has been alleged, [2] crimes against humanity and War Crimes [3] – which have certainly happened the chemical attacks being just one among many examples. The allegations against the Assad regime are serious – including the use of chemical weapons, which are specifically mentioned as a war crime under article 8/1/b/xviii the Rome Statute. It would set a terrible precedent for such crimes to not be punished under international criminal law. [1] ‘About the Court’, International Criminal Court, [2] Chulov, Martin, and Mahmood, Mona, ‘Syrian Sunnis fear Assad regime wants to ‘ethnically cleanse’ Alawite heartland’, The Guardian, 22 July 2013, [3] Rome Statute of the International Criminal Court’, International Criminal Court, 1998, |
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validation-law-hrilppwhb-pro01b | In any conflict, the apportionment of blame for individual crimes committed against civilians to a standard of proof that would be acceptable in a court is extremely difficult, even such a high profile crime as attacks using chemical weapons have been disputed. [1] That is why the ICC typically gets involved after conflicts, rather than during them because it provides the time for thorough investigations, availability of witnesses, and means the investigators will not be at risk. Whenever the indictment is issued, the conflict would be likely to have finished before the ICC would be able to actually have the defendants in the dock. This therefore would be no help in ending the conflict. [1] Radia, Krit, ‘Putin Rejects Syria Chemical Weapons Accusations as ‘Utter Nonsense’’, ABC News, |
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validation-law-hrilppwhb-pro04b | Just because a reference to the ICC is possible does not mean it would be effective. It would still require individuals to be captured, and enough evidence to be ascertained in order for a conviction. Also, Russia has a track record of opposing the reference of the Syria case to the ICC, or any other involvement in the Syria issue. Negotiating with Russia could amount to a fruitless exercise Also, such a reference could cause problems if a Western military intervention were to take place later, possibly exposing foreign peacekeepers to liability if any incident were to occur. |
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validation-law-hrilppwhb-pro03a | The ICC would prevent show trials The use of the ICC could work better than domestic show trials in the aftermath of a civil war. Instead of domestic courts, prone to all their biases, an international, unbiased, criminal system could replace the prospect of a Ceausescu-style non-trial followed by summary execution, or some other form of unfair trial which could sow the seeds for problems down the line. Even the trial of Iraqi dictator Saddam Hussein done while the United States had a lot of influence over the country as a result of its occupation was condemned as having “serious administrative, procedural and substantive legal defects”. [1] Instead, an ICC trial would allow the full details to be probed, investigated and independently prosecuted without being subject to domestic post-war recriminations. [1] ‘Judging Dujail The First Trial before the Iraqi High Tribunal’, Human Rights Watch, 20 November 2006, |
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validation-law-hrilppwhb-pro04a | An ICC referral may be the only UNSC option. The UN Security Council has so far been undecided over any future action in Syria. China has so far been unconvinced over any action. Russia has supported Assad, selling the Assad regime arms. Russia and China, being permanent members of the UNSC means that they can block any action on this issue that the other permanent members (USA, UK and France) may wish to bring for any form of sanction towards the Assad regime. While it may not be possible to get Russia to support a military intervention, which is something that they are opposed to [1] , it may be possible to swing Russia round to a position where they abstain on a reference to the ICC [2] . Russia has had a flexible (or, more cynically, hypocritical, view on the ICC before, opposing a Syria reference in February 2013 [3] but supporting one in to the actions of NATO in the Syrian conflict [4] ) position on the ICC, having voted in favour of references to it before. Because the involvement of the ICC would mean investigating both sides it would not be entirely impossible for a diplomatic solution to be reached for Russia to abstain on a reference. [1] Al Jazeera and agencies, ‘Russia and Iran warn against attack on Syria’, Al Jazeera, 27 August 2013, [2] Kaye, David, ‘Responsibility to Object’, Foreign Policy, 10 January 2013, [3] Baczynska, Gabriela, ‘Russia opposes referring Syrians to ICC now: official’, Reuters, 19 February 2013, [4] ‘Russia wants ICC to examine NATO bombings’, United Press International, 18 May 2012, |
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validation-law-hrilppwhb-con03b | The Syrian Civil war is far larger than any of the conflicts where the truth and reconciliation model has been implemented. The divisions in society will not be healable through a system of truth and reconciliation – like other atrocities, such as those in Sierra Leone and the Balkans there will need to be a system of criminal trials. In addition, a South African style truth and reconciliation commission with an amnesty for perpetrators of human rights violations [1] would grant impunity to perpetrators on other sides who have committed some of the gravest atrocities in the 21st century, from cannibalism [2] to the use of chemical weapons. Letting these people remain free would not promote reconciliation it would simply mean Syrians would believe that justice has not been done. [1] Simpson, G., ‘A Brief Evaluation of South Africa's Truth and Reconciliation Commission: Some lessons for societies in transition.’, The Centre for the Study of Violence and Reconciliation’, October 1998, [2] Muir, Jim, ‘Outrage as Syrian rebel shown ‘eating soldier’s heart’’, BBC News, 14 May 2013, |
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validation-law-hrilppwhb-con01b | The problem with fears of fuelling the conflict further is that the conflict is already almost as large as it can be within the borders of Syria, and has already spilled over in to neighbouring Lebanon, with bombings in Tripoli and Beirut) – it is a full scale conflict which will be difficult to resolve peacefully as it is, with existing threats of military intervention on the table there is no more possible escalation to fear. |
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validation-law-hrilppwhb-con02a | Waste of time – won’t capture Assad or rebel war criminals. Even if the situation were to be referred (which would require abstention or support from both Russia and China on the UN Security Council, which itself is unlikely), it would be necessary to capture Assad and other suspects before trying them. This has proven very difficult, for example none of the suspects in the investigation in to the Lords Resistance Army activity in Uganda have been captured [1] – it is equally likely that they would be killed during any capture attempt as occurred in Libya when Gaddafi was captured and then shot on the spot by the insurgents [2] ; one cannot put a corpse on trial. [1] Dicker, Richard, and Ebenson, Elizabeth, ‘ICC Suspects Can Hide – and That Is the Problem’, Jurist, 24 January 2013, [2] Kofman, Jeffrey, and Dolak, Keven ‘Moammar Gadhafi Dead: How Rebels Killed the Dictator’, ABC News, 21 October 2011, n.b. the video in this article is rather graphic |
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validation-law-hrilppwhb-con03a | Bar to truth and reconciliation After the conclusion of the war in Syria, there will have to be a period of nation building – either Assad will have destroyed his enemies and have an alienated nation to deal with, or the Syrian National Congress will have to take effective control over the country. Syria will need a process of truth and reconciliation [1] - a collective understanding of events that happened on the past, such as that which occurred after the end of Apartheid in South Africa - in order to move forward: this may be hampered by reopening old wounds by prosecuting large numbers of people for offences in the civil war. [1] For more information see the Debatabase debate ‘ This House supports the use of truth and reconciliation commissions ’ |
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validation-law-hrilppwhb-con01a | ICC referal would fuel the conflict further The Syrian Civil War has already claimed over 100,000 lives, but it could get worse. The Assad regime is infamous for its stockpiling of chemical weapons – it is one of few states to not sign the Chemical Weapons convention, and is known to have stocks of mustard gas, VX and other weapons of mass destruction. Assad still has chemical weapons to use. An ICC referral could cause the regime to regard itself as in a position with nothing to lose so making it more willing to make use of these weapons against its own people. If there is no hope of a swift decisive victory by either side then by far the best solution to the conflict would be to have a negotiated settlement – the ICC seeking to prosecute senior figures on either side would make this much harder to arrive at. In South Africa – in a less volatile situation – former President Thabo Mbeki has stated “Had there been a threat of a Nuremberg-style trial over members of the apartheid security establishment we would have never undergone peaceful change.” [1] [1] Ku, Julian, and Nzelibe, Jide, ‘Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?;, Washington University Law Review, Vol.84, No.4, 2006, pp.777-833, p.819 |
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validation-law-hrilppwhb-con02b | While it is not possible to guarantee the capture of any suspect that has not stopped the ICC attempting to build a case. If any defendants are captured alive, it will not be a waste of time: bearing in mind that the ICC does capture many of the individuals it seeks to put on trial, it is not beyond the bounds of possibility that some or all people indicted after a Syria investigation would be captured. |
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validation-law-hrilphwcgbd-pro02b | Guantanamo Bay didn't create anti-Americanism in the Islamic world. Al-Qaeda existed and carried out 9/11 before Guantanamo bay was established, so it is unlikely that closing the detention centre would make any of those who hate the US now reconsider. Furthermore, closing the facility could be seen as a propaganda victory for the US' enemies, and further embolden terrorist organisations. |
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validation-law-hrilphwcgbd-pro02a | Guantanamo harms the War on Terror: The existence of Guantanamo Bay is cited by terrorists as a tool of "the great Satan" and is seen by Muslims in general as a demonstration of US disregard for their dignity. It is, in turn, an effective tool used by terrorists and Jihadists to bring recruits on-board. The highly unpopular existence of Guantanamo Bay also makes it more risky for intelligence sources to come out and provide useful information that they might otherwise be willing to provide. This is because, for many Muslims, Guantánamo stands as a confirmation of the low regard in which they believe the United States holds them. [1] Some of this stems from the association of detention at Guantanamo with the specifically anti-Islamic abuses which have reportedly occurred there, such as allegations of having a guard dog carry the Koran in its mouth, guards scrawling obscenities inside Korans, kicking Korans across the floor, urinating on the Koran, ridiculing the Koran, walking on the Koran, and tearing off the cover and throwing the Koran into trash or dirty water. [2] These associations not only make it easier for terrorists to recruit by inciting anti-American sentiments, but also harm the US' ability to argue that the War on Terror is not directed against all Muslims. President Obama announced in 2009 that closing the Guantanamo Bay detention centre would allow the US to reclaim the moral high ground and thus better prosecute the War on Terror. [3] '' The existence of the detention facility creates a false sense of security and compromises principles of liberty. The US is in a worse position to combat terror abroad when the government makes unprincipled, piecemeal determinations about the cases in which to use preventive detention. [4] [1] Sengupta, Somini and Masoods, Salman. "Guantanamo Comes to Define U.S. to Muslims". New York Times. May 21, 2005. [2] Cohn, Marjorie. "Close Guantánamo Prison". TruthOut. May 23, 2005. www.archive.truthout.org [3] Rhee, Foon. "Obama orders Guantanamo Bay closed, bans torture." The Boston Globe. 22 January 2009. [4] Roth, Kenneth. "After Guantanamo." Foreign Affairs. May/June 2008. (Full article requires subscription.) |
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validation-law-hrilphwcgbd-pro03b | It is possible to reform treatment at Guantanamo Bay without closing the facility. The conditions in the facility have in fact greatly improved since its establishment and in many ways differ from the public's negative perception of it. [1] But even if in fact these negative reports of the conditions at Guantanamo are true, it is likely that many of those detained at Guantanamo may not be even more anti-American than when they arrived, so releasing them could mean they pose an even greater threat to the US. [1] Davis, Morris D. “The Guantánamo I Know”. New York Times. 26 June 2007. |
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validation-law-hrilphwcgbd-pro01a | Detainees have the right to trial in US courts: Prisoners have been detained at Guantanamo for long periods without clear charges being filed and without trial. This is a violation of the international legal principle of habeas corpus. One of the primary problems is that, without clear charges and a presentation of evidence against a suspect, the suspect cannot contest the charges and prove their own innocence. And, as a matter of fact, numerous detainees have been found innocent, but only after excessively long periods without being charged or brought before a court. [1] Many Guantanamo detainees may have never committed terrorist acts or fought against US forces in Afghanistan at all; they were simply turned over by Northern Alliance and Pakistani warlords for bounties of up to $25,000. For almost seven years they have been held without a fair hearing or opportunity to demonstrate those facts. Courts who reviewed the cases of 23 detainees to see if there was reasonable evidence for their continued detention found no credible basis for detaining 22 of them. [2] Other detainees were captured in places where, at the time of their arrest, there was no armed conflict involving US forces. The case of the six men of Algerian origin detained in Bosnia and Herzegovina in October 2001 is a well-known and well-documented example. [3] Therefore the only way to resolve these issues is to try all the detainees at Guantanamo Bay in US courts, and release any against whom charges cannot be brought. Former US Secretary of Defense Colin Powell has endorsed this reasoning, arguing that "I would get rid of Guantanamo and the military commission system and use established procedures in federal law[...]It's a more equitable way, and more understandable in constitutional terms," [4] US courts are fully capable of dealing with terrorist trials, as shown by the fact that they have rendered 145 convictions in terror-related cases in the past. [5] Convictions in US courts would probably be seen internationally as having more legitimacy than those obtained through the current system of military tribunals, which is often viewed as rigged against the defendants. [6] Only by allowing full due process in American courts can the rights of the detainees be uaranteed and their guilt or innocence truly established. [1] New York Times Opinion. "The President's Prison". New York Times. March 25, 2007. [2] Wilner, Thomas J. "We Don't Need Guantanamo Bay". Wall Street Journal. 22 December 2008. [3] United Nations Economic and Social Council. "Economic, Social, and Cultural Rights. Civil and Political Rights. Situation of detainees at Guantánamo Bay". United Nations Economic and Social Council. February 15, 2006. [4] Reuters. "Colin Powell says Guantanamo should be closed". Reuters. 10 June 2007. [5] Wilner, Thomas J. "We Don't Need Guantanamo Bay". Wall Street Journal. 22 December 2008. [6] Wilner, Thomas J. "We Don't Need Guantanamo Bay". Wall Street Journal. 22 December 2008. |
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validation-law-hrilphwcgbd-pro01b | Reforms can always be made to the legal process at Guantanamo, and so this is not a reason to close the facility or to try the detainees in US courts. Moreover, much of the credible and reliable evidence that justifies the continued detention cannot be admitted in US courts for legal reasons, such as the fact that those captured in Afghanistan and elsewhere were not read their Miranda rights on their arrest. Other cases involve evidence that is insufficient for trial but still sufficient to determine that release is an unacceptable security risk. [1] Furthermore, If transferred to U.S. courts, some of the detainees might be freed because of the aggressive interrogation techniques used against them. Mohammed al-Qahtani, the alleged "20th hijacker" in the Sept. 11 plot, was interrogated so severely at Guantanamo Bay that Bush administration officials said he was tortured and did not refer his case for prosecution. [2] [1] Wall Street Journal. "Obama and Guantanamo". Wall Street Journal. 22 January 2009. [2] Fox News. "Families Outraged by Obama Call to Suspend Guantanamo War Crimes Trials". Fox News. January 21, 2009. |
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validation-law-hrilphwcgbd-pro03a | Conditions at Guantanamo are unjust and unacceptable: UN Reports indicate that the treatment of detainees since their arrests, and the conditions of their confinement, have had profound effects on the mental health of many of them. The treatment and conditions include the capture and transfer of detainees to an undisclosed overseas location, sensory deprivation and other abusive treatment during transfer; detention in cages without proper sanitation and exposure to extreme temperatures; minimal exercise and hygiene; systematic use of coercive interrogation techniques; long periods of solitary confinement; cultural and religious harassment; denial of or severely delayed communication with family; and the uncertainty generated by the indeterminate nature of confinement and denial of access to independent tribunals. These conditions have led in some instances to serious mental illness, over 350 acts of self-harm in 2003 alone, individual and mass suicide attempts and widespread, prolonged hunger strikes. The severe mental health consequences are likely to be long term in many cases, creating health burdens on detainees and their families for years to come. [1] Such conditions are clearly not acceptable to a nation such as the US which prides itself on its justice system and respect for human rights. The detention centre must be closed to the US can end its association with such practices. [1] United Nations Economic and Social Council. "Economic, Social, and Cultural Rights. Civil and Political Rights. Situation of detainees at Guantánamo Bay". United Nations Economic and Social Council. February 15, 2006. |
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validation-law-hrilphwcgbd-con03b | The fact that the majority of detainees may be guilty of terror-related crimes or attacks doesn't justify the continued detention of those who were clearly detained under mistaken information, and who will only be cleared through trial in a civilian court. Otherwise justice will never be truly served at Guantanamo Bay. |
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validation-law-hrilphwcgbd-con01b | After years of detention and separation from the battle field and terrorist networks, many Guantanamo detainees have no more value to US intelligence gathering efforts and national security, and so this is not a reason to continue their detention. Moreover, there are tens of thousands of anti-American terrorists around the world. Releasing a handful of the 250 detainees that are actually terrorists but that can't be tried in the US would be a drop in the bucket for terrorism and the war on terror. |
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validation-law-hrilphwcgbd-con02a | Guantanamo deters terrorists: Guantanamo Bay and the threat of detention helps deter terrorists. This coupled with the lack of a trial adds to the fear of the place and thus denounces terrorism. What is a deterrent and why is it necessary? A deterrent is something which persuades someone not to act in a certain way. Similar to the accumulation of nuclear missiles actually deterring a war between large nations, a deterrent can be created around something deemed morally wrong (a prison which may/may not breech human rights) and yet help the greatest number of people and is, thus, justifiable. The whole basis of terrorism is formed upon an ideology and stems from indoctrination. If there is a seed of doubt then it is likely that the person in question will not commit acts of terror. |
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validation-law-hrilphwcgbd-con03a | Sufficient justice and due process exists at Guantanamo: The US Constitution does not extend to alien unlawful enemy combatants. They are entitled to protections under Common Article 3 of the Geneva Conventions, which ensures they are afforded 'all the judicial guarantees which are recognized as indispensable by civilized peoples.' US Supreme Court Justice John Paul Stevens, in the Hamdan decision that rejected an earlier plan for military commissions, observed that Article 75 of the Additional Protocol to the Geneva Conventions defines the judicial guarantees recognized as indispensable. A comparison of Article 75 and the Military Commissions Act of 2006 shows military commissions provide the fundamental guarantees. [1] Moreover, enemy combatants at Guantanamo Bay are afforded a form of habeas corpus (ie. charging the imprisoned with a specific crime), as each detainee accused receives a copy of the charges in his native language. [2] Claims that most of the prisoners are unconnected with terror organisations are not supported by the intelligence evidence that exists. US Defense officials have stated that 95% of detainees are connected to al Qaeda, the Taliban or their associates, and more than 70% have had a role in attacks on U.S. or coalition forces. [3] Military boards perform yearly reviews for continued detention, and prisoners are assigned court advocates. [4] In 2008, the Supreme Court ruled that Guantanamo Bay inmates have the right to appeal their cases to US federal courts. [5] Therefore complaints that sufficient justice and due process does not exist at Guantanamo bay are unfounded. Trying the most dangerous terrorists at Guantanamo in civilian courts will just give them a forum in which to grandstand. [1] Davis, Morris D. “The Guantánamo I Know”. New York Times. 26 June 2007. [2] Davis, Morris D. “The Guantánamo I Know”. New York Times. 26 June 2007. [3] Reuters. “Pentagon urges Congress to keep Guantanamo open”. Reuters. 9 May 2007. [4] Washington Post. "Close Guantanamo?" Washington Post. 22 June 2006. [5] Greenhouse, Linda. "Justices, 5-4, Back Detainee Appeals for Guantanamo." New York Times. 13 June 2008. |
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validation-law-hrilphwcgbd-con01a | Closing Guantanamo would harm US national security: The current operations of Guantanamo Bay are aiding the War on Terror, and closing the facility would harm the US' security situation. Putting an important section of a terrorist group such as Al-Qaeda in prison obviously stops the coordination and the indoctrination of younger members. This makes it harder for terrorist groups to operate effectively. The presumption is that during that time the USA will have gathered adequate intelligence and information upon which to destroy the group and the war on terror is that little bit nearer to ending. Former US Vice President Dick Cheney has stated that, intelligence-wise, "Guantanamo has been very, very valuable [in the war on terror." [1] Moreover, if released many Guantanamo detainees will likely return to terrorism. [5] Many of those that have been already released from Guantanamo done just that. The Washington Post reported in 2005 that at least 10 of the 202 detainees released from Guantanamo were later captured or killed while fighting U.S. and coalition forces in Afghanistan and Pakistan. This is a relatively high number, given the fact that only a small percentage of those that returned to terrorism would later be caught or killed. One former detainee went on to become the deputy leader of Al Qaeda’s Yemeni branch, for example. [2] The Bush administration detained these enemy combatants because of their high likelihood to commit future crimes or their past history. The most dangerous detainees include the perpetrators of 9/11, the American embassy bombings of 1998, the USS Cole bombing of 2000, and the Bali bombings of 2002. [6] Finally, trying detainees in US courts presents a catch-22: in some cases, the evidence required to build a case for trial would compromise the same intelligence sources that make information-gathering possible [4] . During the trial of Sheik Omar Abdel Rahman (the “blind sheik”) and members of his terror cell for the 1993 bombing of the World Trade Center, prosecutors turned over a list of 200 unindicted conspirators to the defense - as the civilian criminal justice system required them to do. Within 10 days, the list made its way to downtown Khartoum, and Osama bin Laden knew that the U.S. government was on his trail. By giving this information to the defense in that terrorism case, the U.S. courts gave al Qaeda valuable information about which of its agents had been uncovered. [3] Therefore the Guantanamo Bay detention centre should not be closed as this would harm the War on Terror and US national security. [1] Reuters. “Don't close Guantanamo until terror war ends: Cheney”. Reuters. 15 December 2008. [2] Worth, Robert F. “Freed by the U.S., Saudi Becomes a Qaeda Chief”. New York Times. 22 January 2009. [3] The Washington Times Editorial. “Obama and Gitmo”. The Washington Times. 12 November 2008. [4] The Chicago Tribune. "Beyond Guantanamo." The Chicago Tribune. 22 January 2009. [5] Cornyn, John. "Sen. Cornyn: Closing Guantanamo Could Make America Less Safe." Texas Insider. 23 January 2009. [6] Joscelyn, Thomas. "Clear and Present Danger." The Weekly Standard. 1 December 2008. |
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validation-law-hrilphwcgbd-con02b | The "deterrent effect" of Guantanamo on terrorists cannot be confirmed. This is mainly due to the fact that terrorists' feelings or fears in regards to the Guantanamo Bay prison cannot be statistically gathered. Similarly, the terrorists posing a threat to the safety of Western Nations are typically so ideologically fanatical and assured that their path is the righteous one, that there is nothing that would persuade them otherwise, including the risk of imprisonment at Guantanamo. These are often people who are willing to die for their cause. |
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validation-law-cpphwmpfcp-pro02b | The reasons for different categories is for escape risk – escape being the antithesis of a utilitarian purpose of prison, that of incapacitation. Those who are unlikely to seek to escape – prisoners serving short sentences or near the end of their sentence so have little reason to risk having their sentence extended – are those kept in more comfortable conditions. The measure in Connecticut meanwhile is a last minute political fudge, and one brought in solely to appease those who demand irrational justice policies such as retributivism. |
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validation-law-cpphwmpfcp-pro02a | Differences in treatment are already accepted Differences between different categories of prisoner are already accepted in the criminal justice system – prisoners are generally kept in different conditions due to factors such as escape risk and other factors. For example the UK has open prisons which offer the freedom to move around within the prison and the system is aimed at reintegration so freedoms like alcohol are allowed, as are home visits. [1] Once it is accepted that not all prisons and not all prisoners are treated the same then a difference in treatment based on the crime committed makes sense. If that is the case, it could be calibrated that those serving certain sentences for certain offences should be held in certain conditions – for example, in Connecticut (a state that has abolished the Death Penalty so LWOP is the greatest penalty imposed) those serving life without parole are now denied contact visits and are given no more than two hours of recreation per day [2] . [1] James, Erwin, ‘Why life in an open prison is no holiday camp’, The Guardian, 13 January 2011, [2] Blecker, p.230 |
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validation-law-cpphwmpfcp-pro03b | Prison itself is already a deterrent. Harsher prison conditions do not prevent recidivism, and could actually make convicts more likely to reoffend when released. Chen and Shapiro estimate that if all inmates were housed in above minimum security facilities there would be “an increase in the crimes committed by former convicts of approximately 82 per 100,000 Americans” – this would be higher than the reduction of 58 crimes per 100,000 found by Katz et al. as a result of deterring those outside prison [1] . [1] Chen, M. Keith, and Shapiro, Jesse M., ‘Do Harsher Prision Conditions Reduce Recidivism? A Discontinuity-based Approach’, American Law and Economics Review, Vol.9, No.1, 2007 |
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validation-law-cpphwmpfcp-pro01a | Punishment is good Retributive theories of justice accept that the reason why a criminal justice exists is to punish offenders – society declaring its rejection of crime by inflicting deliberately unpleasant punishments. Prisons do not reflect this – a prisoner is a prisoner, and prison officers generally do not care about what offence they are convicted of. Their motivation for doing this being to make the prison easier to administrate. [1] “The past counts”. If we are making prisoners stay in prison we should make them feel as if they are being punished. This means deprivation of more than just the liberty to move from the prison but also of other luxuries. [1] Blecker, p.103 |
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validation-law-cpphwmpfcp-pro01b | This is all based on the vengeance-fuelled concept of “retributive justice”. This is not a model of thinking that has much merit. Imprisonment in the criminal justice works by deterring individuals from crime (prison always will be a deterrent), and incapacitating criminals, making them unable to commit crimes due to the fact they are in prison. The intent of prison is to prevent crime, not to impose harsh conditions of punishment. Imprisonment with legitimate utilitarian goals is acceptable. Simply inflicting conditions on people for no practical reason is mere sadism. |
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validation-law-cpphwmpfcp-pro03a | Harsher conditions are a deterrent Worse prison conditions for particular offences would act as a deterrent. If people, in prisons generally and in society as a whole, see that those who are convicted of particularly bad crimes will be deterred from committing those worse crimes. If prison is simply a holding place that prevents people inside from committing crime then it is failing in creating deterrence; criminals sometimes feel it is better to commit a crime when released in order to get back into prison. [1] Katz, Levitt, and Shustorovich using death rates show how harsh prison conditions are likely to mean lower crime rates overall – though a doubling of the death rate only reduces the crime rate by a few percentage points. [2] [1] Blecker, p.68 [2] Katz, Lawrence et al., ‘Prison Conditions, Capital Punishment, and Deterrence’, American Law and Economics Review, Vol.5, No.2, 2003 , p.340 |
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validation-law-cpphwmpfcp-con03b | Punishment is irrational, but it is a legitimate desire for a justice system to meter out retribution to those convicted of serious crimes. Punishment does not have to have a beneficial impact on public safety to make it the right thing to do. The desire for victims for retribution is legitimate; they should not have to see a criminal who abused them live a cushy life in prison – at their expense. |
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validation-law-cpphwmpfcp-con01b | The fact that the prison system is not designed to be punitive doesn’t mean it shouldn’t be. Retributive justice demands that criminals are punished. Prison should do that, and it should fit the crime, by having more than one category of punishment based on the offence. It is understandable that prison services themselves do not consider their task to be to punish; they claim that is done by the judge or jury that hands out the sentence. This however in effect means that no one takes responsibility for punishing those who have done wrong. Instead each stage of the criminal justice system becomes solely an attempt to prevent future crime without consideration to past victims. |
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validation-law-cpphwmpfcp-con02a | A tiered system already exists To some extent, prisoners will be categorized according to the offences they have committed. For example, those convicted of offences like armed robbery and many murders will start of at a higher level on the security system, which will mean restrictions in terms of activities, prison work and association with other prisoners. A person convicted of a sex offence against children, or anything else particularly notorious, would be likely to be placed in some sort of protective custody. In the UK, this is done under Rule 45 of the Prison Rules [1] . [1] England and Wales prison rules, available from , rule 45 |
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validation-law-cpphwmpfcp-con03a | Harsh punishment is counterproductive Punishment for its own sake achieves nothing practical. When putting people in prison we need to look to the future, not to the past. However, harsher prison conditions can act in a way that makes individuals more likely to reoffend [1] . This is because those who have suffered harsh conditions do not become prepared for life outside; they do not learn the necessary skills that would bring them a job when released. Harsher prison conditions also breed mental health problems; isolation in supermax prisons has been observed to cause anxiety, paranoia, hallucinations, and self mutilation – one study has found isolation in a secure housing unit caused 88% of prisoners to suffer from irrational anger and 91% anxiety. [2] It is notable that the opposite is also the case the Bastøy prison in Norway, derided by some for its supposedly “soft” conditions, has a reoffending rate less than a quarter of that of the European average [3] . [1] Chen, 2007 [2] Haney, Craig, ‘Mental Health Issues in Long-Term Solitary and “Supermax” Confinement’, Crime & Delinquency, Vol.49, No.1, January 2003, , pp.133-4 [3] James, Erwin, ‘Bastoy: The Norwegian prision that works’, The Guardian, 4 September 2013, |
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validation-law-cpphwmpfcp-con01a | Punishment is not purpose of prison Prison itself already has punishment value: the loss of liberty and exclusion from society. However, punishment is not the purpose of prison. This is accepted in the US, where state prison systems do not claim punishment is a goal: see California [1] , New York [2] and Nevada (“Protect the public by confining convicted felons according to the law, while keeping staff and inmates safe.“) [3] . Similarly, the UK’s Ministry of Justice does not list “punishment” as a priority of HM Prison Service [4] . Instead the aim is to prevent crime by holding prisoners, and to rehabilitate criminals so that when they are released they are able to reintegrate into society without reoffending. [1] California Department of Corrections & Rehabilitation, ‘Vision, Mission, Values, and Goals’, CA.gov, accessed 6/2/2014 [2] Department of Corrections and Community Supervision, ‘The Departmental Mission’, NY.gov, accessed 6/2/2014, [3] Nevada Department of Corrections, ‘Mission Statement’, NV.gov, accessed 6/2/2014 [4] HM Prison Service, ‘About HM Prison Service’, justice.gov.uk, accessed 6/2/2014, |
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validation-law-cpphwmpfcp-con02b | That system is based on security risk, not the actual offence per se. There is no extra punitive value attached to the offence in terms of prison conditions for the pure reason of the offence. The reason why those inmates are kept separate is for their own safety (capital punishment should not be meted out by other prisoners!), not based on any ideal of punishment. |
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validation-law-hrilhbiccfg-pro02b | Deterrence only works if the court actually prosecutes people; however, its crippling inefficiency renders its deterrent effect nonexistent. To date, the ICC has yet to actually punish anyone. The lack of hard power and enforcement mechanisms makes it impossible for the ICC to be effective. Tribunals like the ICTY were effective because of US support, military backing, and financial power; the ICC lacks this type of sway and is destined to fail. (See more in the opposition point #2). If the court does not actually punish people, there is little to no deterrent effect, since it poses no credible threat to criminals.1 1 Goldsmith, Jack. "The Self-Defeating International Criminal Court." The University of Chicago Law Review, Vol. 70 No. 1, Winter 2003, 89-104. |
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validation-law-hrilhbiccfg-pro02a | If supported, the ICC will set a precedent and deter leaders from committing crimes against humanity. The ICC demonstrates that there is an existing legal court that will hold individuals accountable should they decide to commit grave crimes. The mere existence of the court and the possibility of prosecution (even if not 100%) is beneficial in terms of deterring future atrocities. No leader wants to lose power, and an ICC warrant limits the movement and liberties of leaders. This is empirically true – in Uganda, high-ranking officials of the Lord’s Resistance Army specifically cited potential prosecution by the ICC as a reason they put down their arms. LRA officials like Joseph Kony have to spend valuable time on evading the ICC that would otherwise be used to perpetuate crimes, showing that there are still marginal benefits even if leaders themselves are not always apprehended. [i] [i] Scheffer, David and John Hutson. “Strategy for U.S. Engagement with the International Criminal Court.” Century Foundation, 2008. . Accessed 14 August 2011. |
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validation-law-hrilhbiccfg-pro03b | Pursuance by the ICC doesn't actually result in punishment of the leader; empirically, it has actually strengthened criminals' power after criticizing them. Nations, such as African nations like Chad, have painted the actions of the ICC as signs of Western imperialism and domination. Sudan's Bashir, accused of genocide and other crimes against humanity, used the ICC's arrest warrant against him as a sign of heroism and created a rally-around-the-flag effect, further strengthening his regime. Moreover, the ICC's work encourages leaders to cling to their power rather than give it and face prosecution, making punishment even more difficult. At worst, the ICC is actually counterproductive when it comes to punishing leaders and giving them retribution; at best, it is simply an ineffective court.1 1 "The International Criminal Court: Why Africa Still Needs it." The Economist, 3 June 2010. |
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validation-law-hrilhbiccfg-pro05a | Efforts to strengthen the ICC will promote global cooperation, norms against crimes, and international stability. There is a growing global consensus that crimes against humanity need to be punished, as demonstrated by the tribunals to address the crimes of Yugoslavia and Rwanda. The question is no longer whether we should set up an international court but rather how to best do it, and the ICC gives the international community a framework within which to work to establish a strong courts.1 Rejection of the ICC has become a symbol of rejection of international norms, and countries that have refused to ratify the Rome Statute in the name of national interest, such as the United States, have been seen as imperialist, isolationist, and against global efforts to tackle important issues. 1 Prakash, K. P. "International Criminal Court: A Review." Economic and Political Weekly, Vol. 37, No. 40, October 5-11, 2002, pp. 4113-4115. 2Carter, Ralph G. "Leadership at Risk: The Perils of Unilateralism." Political Science and Politics, Vol. 36 No. 1, January 2003, 17-22 |
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validation-law-hrilhbiccfg-pro01a | The ICC is the best way to prosecute serious crimes because of its permanence; individual tribunals are not enough. The ICC is uniquely beneficial because of its intention to be a permanent force that will always hold people accountable, instead of slowly reacting to crimes after-the-fact. It is intended to be universal and apply to every situation without mandating the creation of a new tribunal every time something happens, and may be even more effective than tribunals at responding to crimes. Even though tribunals such as the ones for the Former Yugoslavia and Rwanda may have worked, they were "necessarily limited in scope" and cannot be applied on a large scale, which is what is needed.1 Additionally, those tribunals were relatively ineffective, as they took two years to set up, and relying on establishing new tribunals every single time wastes precious time. Doing so would also let smaller but still serious crimes slip under the radar, as they would not warrant the creation of a new tribunal, but may still count as a crime against humanity.2 1 Kirsch, Philippe. "The International Criminal Court: Current Issues and Perspectives." Law and Contemporary Problems, Vol. 64 No. 1, Winter 2001, 3-11. 2 Marler, Melissa K. "The International Criminal Court: Assessing the Jurisdictional Loopholes in the Rome Statute." Duke Law Journal, Vol. 49 No. 3, December 1999, 825-853. |
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validation-law-hrilhbiccfg-pro01b | Individual tribunals are actually better at addressing the specific situation. The idea of "universal jurisdiction" becomes dangerous when it is regarded as a blanket solution. For example, after the Spanish Civil War, post-Franco Spain decided to avoid trials for the sake of national reconciliation that enabled it to become a peaceful democracy. Setting a precedent of universal jurisdiction for punishment unnecessarily precludes better reactions more tailored to the specific scenario.1 (See opposition argument #3 for elaboration). 1 Kissinger, Henry. "The Pitfalls of Universal Jurisdiction." Foreign Affairs, July/August 2001, Accessed 14 August 2011. |
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validation-law-hrilhbiccfg-pro05b | Promoting the ICC will only further split the global community by allowing the court to become a political tool. The US Department of State published a report explaining that one of the reasons it opposes ratification of the Rome Statute is because it would complicate military cooperation with allies, who would be obligated to hand over US nationals even without US permission if a warrant were issued for their arrest. This would strain international relations. Additionally, this would decrease global stability by discouraging the US from conducting missions abroad that are key to political stability in numerous areas; US peacekeepers are currently in about 100 nations.1 (See the last opposition argument for more information) 1 Grossman, Mark (Under Secretary for Political Affairs). Remarks to the Center for Strategic and International Studies. Washington, DC, 6 May 2002, US Department of State. |
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validation-law-hrilhbiccfg-pro04b | The ICC actually fails to account for the individual nature of crimes and is not the best solution for a "globalizing world" because it promotes retribution at the expense of peace. Sometimes, amnesty and reconciliation are better than pursuing retribution and punishment. Even if the ICC does punish people, it may be doing so at the expense of the overall protection of human rights – emphasizing prosecution potentially detracts from goals like democratic reconstruction and conflict resolution. For example, the South African Truth and Reconciliation Committee was widely considered successful because it promoted peace even while giving amnesty to many criminals. Ultimately, it accounted for victims, allowed for open dialogue, and laid the foundation for South Africa to transition to a stable situation. The ICC’s focus on arrest and punishment precludes these types of solutions. [i] [i] Mayerfeld, Jamie. “Who Shall be Judge? The United States, the International Criminal Court, and the Global Enforcement of Human Rights.” Human Rights Quarterly, Vol. 25 No. 1, February 2003, 93-129. |
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validation-law-hrilhbiccfg-pro03a | The ICC will prosecute leaders who commit the most severe crimes and give them their due. The only way to ensure that leaders get what they deserve is to establish a free-standing, independent court that holds people accountable. The ICC acts as a permanent international court (as opposed to tribunals set up by a specific group of nations).1 By issuing arrest warrants for leaders who would otherwise continue their actions without any blame, the ICC attempts to punish them. The goal is to ensure that no individual gets away with committing terrible crimes. Additionally, the court gives victims a role in the process, has the power to give them reparations, and ensures they see criminals brought to justice.2The court has not punished anyone yet because it is still considerably young, but has proceedings going on currently. 1 Carroll, James. "The International Criminal Court." Bulletin of the American Academy of Arts and Sciences, Vol. 54 No. 1, Autumn 2000, 21-23. 2Duffy, Helen. "Toward Eradicating Impunity: The Establishment of an International Criminal Court." Social Justice, Vol. 26 No. 4, Winter 1999, 115-124. |
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validation-law-hrilhbiccfg-pro04a | The ICC is the most suited towards the rising nature of crimes in a globalizing world. In today's world, crimes are no longer confined to single nations and affect the world due to the effects of globalization. An international court is necessary as a global solution to problems that often involve multiple actors; a permanent international court accounts for all parties involved.1 For example the Lord's Resistance Army has been mostly active in Uganda but has often hidden from the Ugandan military by crossing into Southern Sudan or the Democratic Republic of Congo. Because it is not limited to a specific territory, the ICC has truly global jurisdiction and therefore is most appropriate given the recent rise of international crimes. Joining the ICC would also encourage nations to recognize that crimes are no longer confined to specific borders and that the notion of territoriality provides a dangerously limited view of the scope of crimes today; ratifying the Rome Statute would force nations to recognize that domestic and international law inevitably interact.2 The domestic-foreign distinction has allowed states to ignore or commit certain atrocities in the name of national interest. 1 Ferencz, Benjamin B. "A Nuremberg Prosecutor's Response to Henry Kissinger's Essay 'The Pitfalls of Universal Jurisdiction.'" Published by Derechos Human Rights, 27 September 2002. Accessed 14 August 2011. 2 Ralph, Jason. "International Society, the International Criminal Court and American Foreign Policy." Review of International Studies, Vol. 31 No. 1, January 2005, 27-44. |
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validation-law-hrilhbiccfg-con03b | The ICC has jurisdiction to defy unwilling governments and is still a step towards global enforcement of rights, even if it does not completely solve the problem. The ICC can have jurisdiction over criminals whose states refuse to prosecute them (provided certain conditions are met), meaning that they can issue warrants for those who come from or lead countries that will not comply with the ICC. Moreover, the ICC centralizes prosecution efforts under one court, making possible prosecution much more efficient and likely and increasing whatever original chance there was of prosecuting the leader. Even if the ICC does have trouble fully enforcing its decisions, it is still a step towards the idea of "collective enforcement," which entails states agreeing upon and following international norms by incorporating them into domestic law and promoting their enforcement. Ratification of the Rome Statute represents a commitment by national governments to assist the ICC with prosecution efforts.1 1 Mayerfeld, Jamie. "Who Shall be Judge? The United States, the International Criminal Court, and the Global Enforcement of Human Rights." Human Rights Quarterly, Vol. 25 No. 1, February 2003, 93-129. |
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validation-law-hrilhbiccfg-con01b | To date, the ICC has empirically only issued warrants against leaders that nations have almost universally agreed upon committed heinous crimes. The existence of the ICC would only deter actions that are so atrocious, they would be comparable to the ones committed by those the ICC is currently pursuing. Countries that refuse to prosecute its own individuals should submit to the court to ensure that there is a baseline standard for rights protection, even in times of war. Otherwise, these crimes go unexposed and unpunished – for example, there has been very little discussion about certain US actions because certain presidential administrations have been adamant about prioritizing national interest over global standards of rights. US attacks on a pharmaceutical plant in Sudan, US invasion of Panama in 1989, US choice of targets in Afghanistan in 2001, and other actions have been left unexamined because of the lack of a third party with the consent to regulate international action; the ICC could solve this. [i] [i] Forsythe, David P. “U.S. Action Empirically Goes Domestically Unchecked.” The United States and International Criminal Justice, Vol. 24 No. 4, November 2002, 985. |
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validation-law-hrilhbiccfg-con02a | The ICC does not have enough checks on prosecutorial powers, inviting prosecutorial abuse. The issues the ICC deals with are inherently subjective, as there is clear disagreement about what counts as a war crime or what the exact definition of genocide is. This leaves dangerous room for the prosecutor to simply decide what he thinks counts as a crime under the statute. Under the Rome Statute, the prosecutor has the power to both initiate an investigation based on reasonable evidence (of which there are no clear standards for outlined in the Rome Statute) and refuse to follow up on an investigation in the name of "justice." There are no clear higher checks on the prosecutor, putting too much power in the hands of one single individual. Additionally, there is very limited judicial review, as the pre-trial chamber is composed of 1 or 3 judges, and the prosecutor is able to find a judge who is sympathetic to his views.1 1 Rubin, Alfred P. "The International Criminal Court: Possibilities for Prosecutorial Abuse." Law and Contemporary Problems, Vol. 64 No. 1, Winter 2001, 153-165. |
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validation-law-hrilhbiccfg-con05a | The ICC infringes upon national sovereignty by inherently implying that there is a higher court nations must answer to. The ICC forces nations to accept that there is a binding power that overrides national law, undermining the government. John Bolton, former US ambassador to the United Nations, explains: "The ICC's failing stems from its purported authority to operate outside (and on a plane superior to) the U.S. Constitution, and thereby to inhibit the full constitutional autonomy of all three branches of the U.S. government, and indeed, of all states party to the statute. ICC advocates rarely assert publicly that this result is central to their stated goals, but it must be for the court and prosecutor to be completely effective."1 More specifically, Article 12 of the Rome Statute entails that the ICC's jurisdiction applies to all individuals, even of states that have not ratified the treaty. Governments cannot unconditionally bind its citizens to laws that are inflexible and contrary to the idea of sovereignty.2 1 Bolton, John. "The Risks and Weaknesses of the International Criminal Court from America's Perspective." Law and Contemporary Problems, Vol. 64 No. 1, Winter 2001, 167-180. |
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validation-law-hrilhbiccfg-con04a | The ICC is not democratic in nature and is likely to be used as a political tool by powerful nations. Parts of the Rome Statue, such as the clauses relating to the Security Council, make it seem like a tool that will be used by the politically powerful. The Security Council has the power to refer cases to the prosecutor. Article 16 of the Rome Statute declares that the Security Council may postpone investigation and prosecution for 12 months if it decides, and may infinitely renew this delay, giving it final say on what gets tried and what doesn't. The ICC is not a truly independent judiciary and gives certain nations more power than others, making it an unfair and unjust court that does not treat its members equally.1 1 Teitelbaum, Alejandro. "Statute of the International Criminal Court: A Critique." Social Justice, Vol. 26 No. 4, Winter 1999, 107-114. |
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validation-law-hrilhbiccfg-con03a | The ICC has no real enforcement mechanism and cannot be a force for good if it has no way of ensuring prosecution. The court has no obvious enforcement mechanism, as it ultimately relies on states to take action in finding and turning over criminals. Although it can issue search warrants and declare that governments are not doing enough to prosecute criminals, that does not translate into real-world change that gets closer to punishing criminals. There is no reason for nations to submit to a court with no enforcement mechanism while simultaneously exposing themselves to a variety of risks as outlined in other arguments.1 For example, Chad is a party of the ICC but welcomed Sudanese President Omar al-Bashir in July 2010. Although Chad was technically obligated to arrest him, there was no arrest made and Chad's president Idriss Deby welcomed Bashir with open arms, clearly demonstrating the ICC's lack of enforcement powers.2 1 Nanda, Ved P. "The Establishment of a Permanent International Criminal Court: Challenges Ahead." Human Rights Quarterly, Vol. 20 No. 2, May 1998, 413-428. 2 Reuters. "Bashir Returns to Sudan After Defying ICC in Chad." 24 July 2010. Accessed 14 August 2011. |