The UDHR Violations in North America are breaches of International law and are also, therefore, domestic criminal offences. The Specialized Agencies also use a more positive compliance strategy. Quite often, the reason for a member state's noncompliance with an agency norm is not willful disobedience; rather, it is a lack of technical capacity to comply. In such cases, agencies usually try to supply technical assistance or advice. Their ability to do so depends, of course, on the extent of their financial and technical resources and the severity of the technical shortfall in the member state. If the resources are available, this can be an effective compliance device. When the circumstances call for it, the technical assistance can be combined with some persuasion to generate the will to comply as well as the technical ability to do so. Of course if the agency has money or other valuable benefits to distribute to members, and has the discretion to withhold some or all of the benefits from uncooperative members, a potentially effective enforcement mechanism is available. The International Monetary Fund and the World Bank are the obvious cases in point, but other organizations upon which states depend for assistance can exert some leverage over members conduct as well. But because this remedy usually makes it more difficult for the uncooperative member to fulfill its obligations to the agency (especially obligations to repay money), the remedy is used sparingly. Frederic L. Kirgis, Jr., is Law School Alumni Association Professor at the Washington and Lee University School of Law, Lexington, Virginia. He chairs the ASIL Advisory Committee on Insight. Click here for more.
Legal institutions function best when vital interests are not at stake. Again, this is so whether the legal institutions are domestic or international. One thinks on the domestic scene of the myriad legal rules and processes that affect daily life-rules having to do with the creation and performance of contracts, the existence of property rights, the Uniform Commercial Code, and so forth. Most of the time they take care of themselves, without the need for intervention by courts, sheriffs or other governmental agencies. That is true as well when international rules and processes relate to ordinary relationships. One thinks on the international scene of the creation and performance of ordinary treaties-tax or commercial treaties, for example-or compliance with "rules of the road" set by the International Maritime Organization or International Civil Aviation Organization for safe navigation at sea or in the airspace above the high seas. Rules of this sort tend to be self-enforcing, simply because all the actors recognize that it is in their self-interest to comply if they want other actors to comply-the same reason why most of the relatively mundane domestic rules are self-enforcing.
Not all of the international enforcement mechanisms short of Chapter VII are unilateral. International organizations-not just the UN, but also its Specialized Agencies and regional organizations-have developed procedures that allow pressure to be brought against governments that do not comply with recognized standards of conduct. Noteworthy in this regard are the "mobilization of shame" and the application of pressure. Several important multilateral treaties, particularly in the human rights field, require states parties to report on their compliance and to send representatives to appear before treaty-monitoring bodies to explain how they have complied or why they have not. This procedure gives the monitoring bodies opportunities to apply pressure for compliance. Sometimes this is done informally, sometimes more formally in writing.
The enforcement mechanism most in the news in recent years is the United Nations Security Council, acting under Chapter VII of the UN Charter. Under the provisions of that Chapter, the Security Council may determine the existence of any threat to the peace, breach of the peace or act of aggression, and may impose mandatory sanctions to try to rectify the situation. The sanctions may be economic (such as a trade embargo against a country threatening the peace), diplomatic (such as severance of diplomatic relations) or military (the use of armed force to maintain or restore international peace and security).
Trade and diplomatic sanctions are slow to work. Moreover, their burden often falls most heavily on the segment of the sanctioned population-ordinary civilians-that is least able to influence the government's behavior. Nevertheless, as the economic sanctions against Serbia have recently demonstrated, they can influence political leaders toward moderation if the sanctions are given time to have some bite. Of course, the more such leaders are subject in their domestic politics to the wishes of a broad-based electorate, the more likely they are to respond to these sanctions. The more insulated they are from their own people, the more insulated they are from the sanctions.
Security Council sanctions involving armed force have never been used in quite the form contemplated by the UN Charter. As drafted in 1945, it set out a system by which member states would agree to hold armed forces and facilities ready to respond to the call of the Security Council. If the Council decided to use armed force, it would call on those forces in accordance with the agreements. No such agreements have ever been entered into. Thus, when the Security Council has authorized the use of armed force to counter an act of aggression-as in Korea and the Persian Gulf-it has simply authorized member states to "use all necessary means to restore international peace and security." In the case of Iraq's invasion of Kuwait, the authorized use of force by the United States and others was quite effective.
The Specialized Agencies also use a more positive compliance strategy. Quite often, the reason for a member state's noncompliance with an agency norm is not willful disobedience; rather, it is a lack of technical capacity to comply. In such cases, agencies usually try to supply technical assistance or advice. Their ability to do so depends, of course, on the extent of their financial and technical resources and the severity of the technical shortfall in the member state. If the resources are available, this can be an effective compliance device. When the circumstances call for it, the technical assistance can be combined with some persuasion to generate the will to comply as well as the technical ability to do so.
Of course if the agency has money or other valuable benefits to distribute to members, and has the discretion to withhold some or all of the benefits from uncooperative members, a potentially effective enforcement mechanism is available. The International Monetary Fund and the World Bank are the obvious cases in point, but other organizations upon which states depend for assistance can exert some leverage over members conduct as well. But because this remedy usually makes it more difficult for the uncooperative member to fulfill its obligations to the agency (especially obligations to repay money), the remedy is used sparingly.
Frederic L. Kirgis, Jr., is Law School Alumni Association Professor at the Washington and Lee University School of Law, Lexington, Virginia. He chairs the ASIL Advisory Committee on Insight.
https://www.asil.org/insights/volume/1/issue/1/enforcing-international-law
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Canada
The Crimes Against Humanity and War Crimes Act, 2000 S.C. ch. 24, http://laws
Crimes Against Humanity Provisions – April 2010 The Law Library of Congress -5
lois.justice.gc.ca/eng/C-45.9/index.html (last visited Apr. 27, 2010), applies to all crimes against humanity committed within Canada. (Id. § 4.) For wrongs committed outside the country, the Act provides that:
A person who is alleged to have committed [a crime against humanity outside the country] may be prosecuted for that offense if
(a) at the time the offense is alleged to have been committed,
(i) the person was a Canadian citizen or was employed by Canada in a civilian or military capacity,
(ii) the person was a citizen of a state that was engaged in an armed conflict against Canada, or was employed in a civilian or military capacity by such a state,
(iii) the victim of the alleged offence was a Canadian citizen, or
(iv) the victim of the alleged offense was a citizen of a state that was allied with Canada in an armed conflict; or
(b) after the time the offense is alleged to have been committed, the person is present in Canada. [Id. § 8.]
S.318 of the Criminal Code of Canada prevents Genocide.
- Definition of genocide(2) In this section, genocide means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,
- Consent(3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General.
- Definition of identifiable group(4) In this section, identifiable group means any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.
- R.S., 1985, c. C-46, s. 318;
- 2004, c. 14, s. 1;
- 2014, c. 31, s. 12;
- 2017, c. 13, s. 3.
United Kingdom
The relevant provisions on crimes against humanity under United Kingdom law are contained in the International Criminal Court Act 2001, c. 17, http://www.opsi.gov.uk/acts/acts2001/pdf/uk pga_20010017_en.pdfhttp://www.opsi.gov.uk/acts/acts2001/pdf/uk pga_20010017_en.pdf. This is the original, as published version and does not take into account any amendments that may have occurred. Explanatory notes to this Act are also available at http://www.opsi.gov.uk/acts/ acts2001/en/ukpgaen_20010017_en_1 (last visited Apr. 29, 2010). This section provides that the jurisdiction contained in that Act for the offenses of genocide, crimes against humanity, and war crimes applies to acts committed in England or Wales and to those outside the UK by a UK national, resident, or person subject to UK service jurisdiction (which is defined later in section 67).
Northern Ireland is also included in the scope of the Act’s jurisdiction by virtue of section 58.
Scotland has separate legislation—the International Criminal Court (Scotland) Act 2001, ASP [Act of Scottish Parliament] 13, available at http://www.opsi.gov.uk/legislation/ scotland/acts2001/ asp_20010013_en_2#pt1-pb1-l1g1. The jurisdiction applies to acts committed in Scotland or outside the UK by a UK national or resident.
The United States of America
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18 U.S. Code § 1091.Genocide
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(a)Basic Offense.—Whoever, whether in time of peace or in time of war and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such—
kills members of that group;
causes serious bodily injury to members of that group;
causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;
subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part;
transfers by force children of the group to another group;
shall be punished as provided in subsection (b).
in the case of an offense under subsection (a)(1), where death results, by death or imprisonment for life and a fine of not more than $1,000,000, or both; and
Whoever directly and publicly incites another to violate subsection (a) shall be fined not more than $500,000 or imprisoned not more than five years, or both.
(e)Jurisdiction.—There is jurisdiction over the offenses described in subsections (a), (c), and (d) if—
the offense is committed in whole or in part within the United States; or
a national of the United States (as that term is defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101));
an alien lawfully admitted for permanent residence in the United States (as that term is defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101));
a stateless person whose habitual residence is in the United States; or
present in the United States.
Notwithstanding section 3282, in the case of an offense under this section, an indictment may be found, or information instituted, at any time without limitation.
(Added Pub. L. 100–606, § 2(a), Nov. 4, 1988, 102 Stat. 3045; amended Pub. L. 103–322, title VI, § 60003(a)(13), Sept. 13, 1994, 108 Stat. 1970; Pub. L. 107–273, div. B, title IV, § 4002(a)(4), (b)(7), Nov. 2, 2002, 116 Stat. 1806, 1808; Pub. L. 110–151, § 2, Dec. 21, 2007, 121 Stat. 1821; Pub. L. 111–122, § 3(a), Dec. 22, 2009, 123 Stat. 3481.)
18 U.S. Code § 1093.Definitions
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As used in this chapter—
the term “children” means the plural and means individuals who have not attained the age of eighteen years;
the term “ethnic group” means a set of individuals whose identity as such is distinctive in terms of common cultural traditions or heritage;
the term “incites” means urges another to engage imminently in conduct in circumstances under which there is a substantial likelihood of imminently causing such conduct;
the term “members” means the plural;
the term “national group” means a set of individuals whose identity as such is distinctive in terms of nationality or national origins;
the term “racial group” means a set of individuals whose identity as such is distinctive in terms of physical characteristics or biological descent;
the term “religious group” means a set of individuals whose identity as such is distinctive in terms of common religious creed, beliefs, doctrines, practices, or rituals; and
the term “substantial part” means a part of a group of such numerical significance that the destruction or loss of that part would cause the destruction of the group as a viable entity within the nation of which such group is a part.
Effect of international treaties[edit] The UN Charters are Self-executing and do not require further domestic legislation to be enforced in the United States. The absence of Basic income is a crime against US citizens and is enforceable under US domestic law.
Foster v. Neilson, 27 U.S. 253, 314-15 (1829) U.S. Supreme Court, Chief Justice Marshall writing: "Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department, and the legislature must execute the contract before it can become a rule for the Court." at 314, cited in Martin International Human Rights and Humanitarian Law et al.
In the context of human rights and treaties that recognize or create individual rights, U.S. constitutional law makes a distinction between self-executing and non-self-executing treaties. Non-self-executing treaties, which ascribe rights that under the constitution may be assigned by law, require legislative action to execute the contract (treaty) before it becomes a part of domestic law.[50] There are also cases that explicitly require legislative approval according to the Constitution, such as cases that could commit the U.S. to declare war or appropriate funds.
Treaties regarding human rights, which create a duty to refrain from acting in a particular manner or confer specific rights, are generally held to be self-executing, requiring no further legislative action. In cases where legislative bodies refuse to recognize otherwise self-executing treaties by declaring them to be non-self-executing in an act of legislative non-recognition, constitutional scholars argue that such acts violate the separation of powers—in cases of controversy, the judiciary, not Congress, has the authority under Article III to apply treaty law to cases before the court. This is a key provision in cases where the Congress declares a human rights treaty to be non-self-executing, for example, by contending it does not add anything to human rights under U.S. domestic law. The International Covenant on Civil and Political Rights is one such case, which, while ratified after more than two decades of inaction, was done so with reservations, understandings, and declarations.[51]
Under the principle of pacta sunt servanda a country may not invoke provisions of its domestic laws or constitution as justification for failure to comply with its international law obligations. Therefore, if a human rights treaty has been ratified by the U.S. but is not considered self-executing, or has not yet been implemented by legislation, it is nonetheless binding on the U.S. government as a matter of international law.
War on Terror[edit]
In the aftermath of the September 11, 2001 attacks, the U.S. Government adopted several new measures in the classification and treatment of prisoners captured in the War on Terror, including applying the status of unlawful combatant to some prisoners, conducting extraordinary renditions, and using torture ("enhanced interrogation techniques"). Human Rights Watch and others described the measures as being illegal under the Geneva Conventions.[84]
Command responsibility[edit]
A presidential memorandum of February 7, 2002, authorized U.S. interrogators of prisoners captured during the War in Afghanistan to deny the prisoners basic protections required by the Geneva Conventions, and thus according to Jordan J. Paust, professor of law and formerly a member of the faculty of the Judge Advocate General's School, "necessarily authorized and ordered violations of the Geneva Conventions, which are war crimes."[85] Based on the president's memorandum, U.S. personnel carried out cruel and inhumane treatment on captured enemy fighters,[86] which necessarily means that the president's memorandum was a plan to violate the Geneva Convention, and such a plan constitutes a war crime under the Geneva Conventions, according to Professor Paust.[87]
U.S. Attorney General Alberto Gonzales and others have argued that detainees should be considered "unlawful combatants" and as such not be protected by the Geneva Conventions in multiple memoranda regarding these perceived legal gray areas.[88]
Gonzales' statement that denying coverage under the Geneva Conventions "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act" suggests, to some authors, an awareness by those involved in crafting policies in this area that U.S. officials are involved in acts that could be seen to be war crimes.[89] The U.S. Supreme Court challenged the premise on which this argument is based in Hamdan v. Rumsfeld, in which it ruled that Common Article Three of the Geneva Conventions applies to detainees in Guantanamo Bay and that the military tribunals used to try these suspects were in violation of U.S. and international law.[90]
Human Rights Watch claimed in 2005 that the principle of "command responsibility" could make high-ranking officials within the Bush administration guilty of the numerous war crimes committed during the War on Terror, either with their knowledge or by persons under their control.[91] On April 14, 2006, Human Rights Watch said that Secretary Donald Rumsfeld could be criminally liable for his alleged involvement in the abuse of Mohammed al-Qahtani.[92] On November 14, 2006, invoking universal jurisdiction, legal proceedings were started in Germany – for their alleged involvement of prisoner abuse – against Donald Rumsfeld, Alberto Gonzales, John Yoo, George Tenet and others.[93]
The Military Commissions Act of 2006 is seen by some as an amnesty law for crimes committed in the War on Terror by retroactively rewriting the War Crimes Act[94] and by abolishing habeas corpus, effectively making it impossible for detainees to challenge crimes committed against them.[95]
Luis Moreno-Ocampo told The Sunday Telegraph in 2007 that he was willing to start an inquiry by the International Criminal Court (ICC), and possibly a trial, for war crimes committed in Iraq involving British Prime Minister Tony Blair and American President George W. Bush.[96] Though under the Rome Statute, the ICC has no jurisdiction over Bush, since the U.S. is not a State Party to the relevant treaty—unless Bush were accused of crimes inside a State Party, or the UN Security Council (where the U.S. has a veto) requested an investigation. However, Blair does fall under ICC jurisdiction as Britain is a State Party.[97]
Shortly before the end of President Bush's second term in 2009, newsmedia in countries other than the U.S. began publishing the views of those who believe that under the United Nations Convention Against Torture, the U.S. is obligated to hold those responsible for prisoner abuse to account under criminal law.[98] One proponent of this view was the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (Professor Manfred Nowak) who, on January 20, 2009, remarked on German television that former president George W. Bush had lost his head of state immunity and under international law the U.S. would now be mandated to start criminal proceedings against all those involved in these violations of the UN Convention Against Torture.[99] Law professor Dietmar Herz explained Nowak's comments by opining that under U.S. and international law former President Bush is criminally responsible for adopting torture as an interrogation tool.[99]
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