Universal Jurisdiction: was the Pinochet Case a Good Thing?

[Smokey D]

http://news.bbc.co.uk/2/hi/europe/8119920.stm

Spain's moving to limit the ability of its courts to prosecute for crimes conducted overseas by foreigners to foreigners. Is this a good or a bad thing? Are there some crimes which are so bad that the perpetrators may rightly be characterized as the enemies of all mankind, and thus prosecuted by any state whatsoever?

[McP3000]

idk i think spain should have the authority to apprehend Osama Bin Laden even though he committed no crimes against spain itself

or if like hitler reawoke from the dead and went to a Spaniard bar, Spain should prolly put him in jail or something

[Smokey D]

What about, say, a head of state who has committed genocide?

[Aaron]

I don't think that a country should be able to prosecute anyone who commits a crime outside of their domain. If a crime occurs, and a country feels they have an interest in its processing, they should make recommendations through diplomatic channels for it to occur.

[TheDarkHorse]

http://news.bbc.co.uk/2/hi/europe/8119920.stm

Spain's moving to limit the ability of its courts to prosecute for crimes conducted overseas by foreigners to foreigners. Is this a good or a bad thing?

I think its better. It makes more sense in explaining what interest Spain has in persecuting the alleged criminals.

Are there some crimes which are so bad that the perpetrators may rightly be characterized as the enemies of all mankind, and thus prosecuted by any state whatsoever?
Yes. The only problem here is determining what constitutes a crime.

For instance, what Saddam did to the Kurds may have been seen as justice, while those outside countries view it as a clear violation of human rights.

Sure there are the obvious human rights violators in history (Zedong, Stalin, Pinochet, Shah, etc) but it can be questionable when a nation uses their own cultural ideals to judge a completely different culture. In those questionable cases, it should be left an internal matter.

[Against Miik!]

Depends. Some crimes are crimes everywhere, and those ones are basically common sense. For other things, like drug laws, its a bit different. On the one hand, people should respect the laws of the country they are in. But on the other hand, its unfair to ask people to be familiar with every nook and cranny of the law when they are visiting somewhere. I mean, the laws are convoluted enough in our home countries, how can we be familiar with specific laws everywhere?

[Smokey D]

Yes. The only problem here is determining what constitutes a crime.

For instance, what Saddam did to the Kurds may have been seen as justice, while those outside countries view it as a clear violation of human rights.

Presumably, if we're going to say that there are those sort of crimes (international law calls them jus cogens crimes -- violations of peremptory norms) then the claim that Saddam was acting justly would be dismissed as wrong.


Sure there are the obvious human rights violators in history (Zedong, Stalin, Pinochet, Shah, etc) but it can be questionable when a nation uses their own cultural ideals to judge a completely different culture. In those questionable cases, it should be left an internal matter.

So in cases of egregious breach of jus cogens (say, Rwandan genocide or Pol Pot), should other countries with no obvious connection to the state wherein the crime occurred be allowed to prosecute?

Depends. Some crimes are crimes everywhere, and those ones are basically common sense. For other things, like drug laws, its a bit different. On the one hand, people should respect the laws of the country they are in. But on the other hand, its unfair to ask people to be familiar with every nook and cranny of the law when they are visiting somewhere. I mean, the laws are convoluted enough in our home countries, how can we be familiar with specific laws everywhere?

Well, Spain was only claiming universal jurisdiction in cases of clear and systematic breaches of human rights like war crimes, crimes against humanity or genocide.

Also, it should be noted that at international law, if national courts prosecute on the grounds of universal jurisdiction, they must use the international legal definitions – contained in customary law – of the universal crimes they adjudicate
To rehearse the argument briefly, the limitations of universality follow from the international nature of the crime and of the jurisdiction which attaches to it. Since only customary international law is binding on all states, and universal jurisdiction is grounded in customary law, national courts may only prosecute within the bounds prescribed by custom.

[Iskandar]

Isn't there already a name for this and it's crimes against humanity.
For instance, what Saddam did to the Kurds may have been seen as justice, while those outside countries view it as a clear violation of human rights.

Sure there are the obvious human rights violators in history (Zedong, Stalin, Pinochet, Shah, etc) but it can be questionable when a nation uses their own cultural ideals to judge a completely different culture. In those questionable cases, it should be left an internal matter.Wait how is what Saddam did different from what Mao did except in degree.

[Smokey D]

Crimes against humanity (and genocide and war crimes etc) are the crimes in respect of which universal jurisdiction is claimed. Jurisdiction is a separate issue. If crimes against humanity are the what question, then jurisdiction is the who question. Proponents of UJ say that all states have the right to prosecute for egregious breaches of peremptory norms.

[Iskandar]

Ie. what Spain's attempting to do.

[Smokey D]

Spain has already used UJ. The government is aiming to restrict not expand the scope of Spanish courts' jurisdiction over international crimes.

[TheDarkHorse]

Presumably, if we're going to say that there are those sort of crimes (international law calls them jus cogens crimes -- violations of peremptory norms) then the claim that Saddam was acting justly would be dismissed as wrong.
Dismissed as wrong-according to who?

Thats exactly my point.


So in cases of egregious breach of jus cogens (say, Rwandan genocide or Pol Pot), should other countries with no obvious connection to the state wherein the crime occurred be allowed to prosecute?
I believe in "moral intervention." However, I'm not so much into persecution in the legal sense, after the crime has been committed. What I am in favor of is a military intervention, done with the sole interest in human life.



Well, Spain was only claiming universal jurisdiction in cases of clear and systematic breaches of human rights like war crimes, crimes against humanity or genocide.
This is exactly what it should be. However, if I remember correctly, a few blowhards were accusing Saddam of genocide to build a case for war.

Also, it should be noted that at international law, if national courts prosecute on the grounds of universal jurisdiction, they must use the international legal definitions – contained in customary law – of the universal crimes they adjudicate
Obviously, but law is never black and white. There are interpretations.

[Iskandar]

Spain has already used UJ. The government is aiming to restrict not expand the scope of Spanish courts' jurisdiction over international crimes.My bad, what their courts attempt to do.

To answer your question I'm no expert in international law but I'm inclined to say it's a bad thing.

[Smokey D]

Dismissed as wrong-according to who?

Thats exactly my point.


Sensible people.

I mean, I really can't think of anyone who'd say the murder of at least 300 000 people could be justified. No one we should consider sane.

I believe in "moral intervention." However, I'm not so much into persecution in the legal sense, after the crime has been committed. What I am in favor of is a military intervention, done with the sole interest in human life.


Surely prosecution is a string to the bow of those seeking to protect innocent people from gross abuse. If military intervention is not feasible, should we refrain from using alternative methods of enforcing jus cogens?

PS what about widespread and systematic torture or other things amounting to crimes against humanity but not to murder?

This is exactly what it should be. However, if I remember correctly, a few blowhards were accusing Saddam of genocide to build a case for war.

Well, he probably did commit genocide in 1988 and 1991-2


Obviously, but law is never black and white. There are interpretations.

I'd say international law is pretty clear on what constitutes an actionable international crime


To answer your question I'm no expert in international law but I'm inclined to say it's a bad thing.

UJ is bad or restricting UJ is bad?

[Iskandar]

Well, he probably did commit genocide in 1988 and 1991-2It was pretty clear he at the very least had genocide intent towards the Kurds and his invasion of Iran was a war of aggression.
I'd say international law is pretty clear on what constitutes an actionable international crimeThat.
UJ is bad or restricting UJ is bad?Restricting it because of the implications for our ability to prosecute war criminals and stuff.

[TheDarkHorse]

Sensible people.

I mean, I really can't think of anyone who'd say the murder of at least 300 000 people could be justified. No one we should consider sane.
Sensible people with different cultural ideals.

I already addressed obvious violations.

If military intervention is not feasible, should we refrain from using alternative methods of enforcing jus cogens?
I've thought I've made it clear that I'm in favor of persecution of human rights violations.

I prefer a military intervention to stop the crime.

PS what about widespread and systematic torture or other things amounting to crimes against humanity but not to murder?
Torture is a human rights violation. But again, who decides what torture is?
Well, he probably did commit genocide in 1988 and 1991-2

Whether or not he did, this is not proven. In an adversarial court, he would get away free if no such claims are proven. This is why statements such as "probably" do not hold in court.

I'd say international law is pretty clear on what constitutes an actionable international crime
International law can prohibit torture, but every nation has their own definition of torture.

[Iskandar]

Sensible people with different cultural ideals.

I already addressed obvious violations.I don't get it. You say the notion of what constitutes human rights violations varies between cultures, then you say some human rights abuses are manifestly obvious. How does that work.

[Smokey D]

It was pretty clear he at the very least had genocide intent towards the Kurds and his invasion of Iran was a war of aggression.

Although a war of aggression is a breach of jus cogens, it's probably not one which would give rise to individual criminal liability. It's more of a state responsibility thing.

ensible people with different cultural ideals.

I already addressed obvious violations.

Okay.

Show me a culture which says the murder of 300 000 people (or 6 million Jews) is justified.


I've thought I've made it clear that I'm in favor of persecution of human rights violations.

I prefer a military intervention to stop the crime.

Well, you said you 'weren't so into persecution [prosecution?] in the legal sense'.


Torture is a human rights violation.

So it needs to be a human rights violation, not necessarily a denial of the right to life?


Whether or not he did, this is not proven. In an adversarial court, he would get away free if no such claims are proven. This is why statements such as "probably" do not hold in court.

Um, he didn't get away with it. that's why he was executed.


International law can prohibit torture, but every nation has their own definition of torture

And international law would permit UJ for breaches of the international definition of torture (or genocide or whatever). A country's internal laws cannot be raised as a defense for failing to meet its international obligations.

[Iskandar]

Although a war of aggression is a breach of jus cogens, it's probably not one which would give rise to individual criminal liability. It's more of a state responsibility thing.He was head of state though.
Okay.

Show me a culture which says the murder of 300 000 people (or 6 million Jews) is justified.Neo-Nazi subculture.

I'm just saying is all.

[Smokey D]

He was head of state though.

I don't think it would matter.

Although I think at Nuremberg they attributed criminal liability for crimes against the peace so maybe I'm wrong.

[Iskandar]

I don't think it would matter.If it's an issue of state responsibility as you say, and he was head of state, who exactly gets prosecuted in this case? You can't prosecute the Republic of Iraq.

[Smokey D]

Yeah you do.

Well, you take them to the world court or whatever but it's more or less the same thing.

[TheDarkHorse]

Okay.

Show me a culture which says the murder of 300 000 people (or 6 million Jews) is justified.
It seems to be perfectly excusable to a country in the name of national security.

There are plenty of cultures who find it perfectly justified to go to war for their interests, regardless of the loss of life of their enemy. Does it mean they are justified? Absolutely not.

Again I addressed obvious violations, and you should know by now that all cases are unique, which leads to interpretation.

I think its time for a repost:
http://www.chomsky.info/talks/1990----.htm


Well, you said you 'weren't so into persecution [prosecution?] in the legal sense'.
No, im not too big on it, and it shouldn't be the only option. Because I'd rather have a better solution is not to say I'm not in favor of it. Why would I be against it, while in favor of a military intervention?

So it needs to be a human rights violation, not necessarily a denial of the right to life?
International law deals with human rights issues, not exclusively cases of mass murder. That falls under human rights violations, as does torture.

Um, he didn't get away with it. that's why he was executed.
For one, it was an inquisitorial system of justice.

Secondly, for you to say "he probably did, therefore we should execute him" if not sufficient by any law.

And international law would permit UJ for breaches of the international definition of torture (or genocide or whatever). A country's internal laws cannot be raised as a defense for failing to meet its international obligations.
This is why the U.S. has got away with torture in Abu Ghraib and Guantanamo, and maybe countless others we're unaware of.

[Smokey D]

It seems to be perfectly excusable to a country in the name of national security.

300 000 civilians? I doubt it.

Also, self-defense must be immediate, proportionate and necessary. Even if we accept that the immediacy requirement was settled, I don't think can really argue proportionality or necessity are met.

No, im not too big on it, and it shouldn't be the only option. Because I'd rather have a better solution is not to say I'm not in favor of it. Why would I be against it, while in favor of a military intervention?

I dunno that's why I was confused.

International law deals with human rights issues, not exclusively cases of mass murder. That falls under human rights violations, as does torture.

I know. I was just clarifying because you said that military intervention could be taken if it was in the sole interest of preserving human life. I wanted to know whether you meant that literally or whether you meant that it would be justified for all gross violations of human rights.

For one, it was an inquisitorial system of justice.

Secondly, for you to say "he probably did, therefore we should execute him" if not sufficient by any law.

Um, that's not how universal jurisdiction works and is not related in anyway to what we're talking about.

This is why the U.S. has got away with torture in Abu Ghraib and Guantanamo, and maybe countless others we're unaware of.

I'm not sure that is the reason, although undoubtedly the US and others have got away with conduct which would have landed other people in the dock.


There are plenty of cultures who find it perfectly justified to go to war for their interests, regardless of the loss of life of their enemy. Does it mean they are justified? Absolutely not.

That's also illegal.


Again I addressed obvious violations, and you should know by now that all cases are unique, which leads to interpretation.

I know of no interpretation which would justify what Saddam did.

[quote]

[Iskandar]

Yeah you do.

Well, you take them to the world court or whatever but it's more or less the same thing.Yeah but who actually gets the blame in this case.

[Smokey D]

Yeah but who actually gets the blame in this case.

The state.

Possibly also the people who authorised the war, I dunno. I think it would be quite extreme for a person to be criminally prosecuted for a crime of aggression, although as I say I think there is precedent as at Nuremberg.

[Iskandar]

The state.

Possibly also the people who authorised the war, I dunno. I think it would be quite extreme for a person to be criminally prosecuted for a crime of aggression, although as I say I think there is precedent as at Nuremberg.Yeah at Nuremberg the state leaders were prosecuted and I assume it'd be the same for Saddam and co. (and he was killed eventually).

You can't put an entire state on trial though. Can you?

[Smokey D]

You can't put an entire state on trial though. Can you?

It's not really right to think of it as 'on trial', but you can bring cases against states in the same way you can bring them against companies or other juridical entities.

[Iskandar]

K sweet.

[TheDarkHorse]

300 000 civilians? I doubt it.
According to a John Hopkins study, the number of dead civilians in Iraq is well over 1,000,000


Also, self-defense must be immediate, proportionate and necessary. Even if we accept that the immediacy requirement was settled, I don't think can really argue proportionality or necessity are met.
What about pre-emptive strikes?

Um, that's not how universal jurisdiction works and is not related in anyway to what we're talking about.
Its absolutely relevant. Allegations were made, but not proven.

With the implementation of the ICC, UJ laws are not as influential, unless we're dealing with violations before the creation of the ICC. The ICC is typically congruent with the justice system of the country. It only persecutes when a nation fails to do so on their own.

I know of no interpretation which would justify what Saddam did

The Kurds were a threat to Saddam, and attempted to assassinate him. His actions were seen as some would view a civil war. I suppose the actions were excused by the public because many didn't even see the Kurds as Iraqi's, and they didn't like them.
Regardless, thats not to say it wasn't a violation, but it wasn't according to their perspective. How many would call the U.S. war of Rebellion a human rights violation? If they did, we'd laugh them off like they were crazy.

[Smokey D]

According to a John Hopkins study, the number of dead civilians in Iraq is well over 1,000,000

Are we talking about now or in 1991?


What about pre-emptive strikes?

There is some room for pre-emptive strikes, providing it meets the immediate, proportionate and necessary criteria.


Its absolutely relevant. Allegations were made, but not proven.


Er, in which case you would bring him before a court and try him to determine whether the allegations could be sustained.


With the implementation of the ICC, UJ laws are not as influential, unless we're dealing with violations before the creation of the ICC. The ICC is typically congruent with the justice system of the country. It only persecutes when a nation fails to do so on their own.

True.


The Kurds were a threat to Saddam, and attempted to assassinate him. His actions were seen as some would view a civil war. I suppose the actions were excused by the public because many didn't even see the Kurds as Iraqi's, and they didn't like them.
Regardless, thats not to say it wasn't a violation, but it wasn't according to their perspective. How many would call the U.S. war of Rebellion a human rights violation? If they did, we'd laugh them off like they were crazy.

If the Union had murdered between 300 000 and a million civilians, I don't think we'd lightly pass it off.

[Iskandar]

The Kurds were a threat to SaddamWhat.

I doubt the average Kurd posed much of a threat to Saddam's regime and even if they did that would hardly justify gassing entire villages of civilians.

[TheDarkHorse]

Are we talking about now or in 1991?
Now, of course.

There is some room for pre-emptive strikes, providing it meets the immediate, proportionate and necessary criteria.
-It can't be 'proportionate' because its the first strike.
Even if it was "proportionate," it doesn't mean it can't be a violation. Truth is, there really is no way to determine proportionality in war. For instance, should one side kill as many civilians as the other in order to be proportionate? Both cases (targeting of civilians) would be war crimes, regardless of the number.
-"Necessary" is arbitrary

Er, in which case you would bring him before a court and try him to determine whether the allegations could be sustained.
Thats why I said he would get away free, but I do agree this is almost beyond the scope of this discussion.

If the Union had murdered between 300 000 and a million civilians, I don't think we'd lightly pass it off.
Are we strictly talking numbers here? I'm implying that international law should take in situational acts.

[Iskandar]

Oh, so you're ignoring my posts because you don't like me.

[Smokey D]

Now, of course.

Um, okay.

We were talking about Saddam's genocide.

-It can't be 'proportionate' because its the first strike

It means you can't use nuclear weapons to wipe out cities for a cross border raid.

-"Necessary" is arbitrary

I don't think so. It means you can use such force as is required to end or prevent the attack from occurring.

Not really sure what any of that has to do with universal jurisdiction though.

Thats why I said he would get away free, but I do agree this is almost beyond the scope of this discussion.

Why would he get away with it?

Are we strictly talking numbers here? I'm implying that international law should take in situational acts.

I don't know what you mean.

[TheDarkHorse]

Hey check out my edit.
Um, okay.

We were talking about Saddam's genocide.
But you do remember me asking where the death of millions of civilians is justified. I answered that apparently the U.S. You said the numbers weren't there, I showed you they were, now you say we're talking about something else.

It means you can't use nuclear weapons to wipe out cities for a cross border raid.
thats irrelevant in a pre-emptive strike


I don't think so. It means you can use such force as is required to end or prevent the attack from occurring.
Necessary is deciding whether or not force should be used at all.

it can be unnecessary at the end of the day, regardless of how strong you've shown your case to be to the international community.

I don't know what you mean.
You seem to think a violation is strictly about numbers killed.

[Smokey D]

But you do remember me asking where the death of millions of civilians is justified. I answered that apparently the U.S. You said the numbers weren't there, I showed you they were, now you say we're talking about something else.

I don't even know what you're talking about now.

This portion of the conversation started with a reference to what Saddam did to the Kurds. I was never talking about what the US has done. i don't know when you decided that's what we were discussing.

thats irrelevant in a pre-emptive strike

No it's not.

If I have good evidence that you're going to launch an armed attack of 50 soldiers on a remote border post of minimal strategic importance, proportionality means I can't use nuclear weapons (or other overwhelming force) to defend myself. I am only allowed to use such force as is necessary to repel the attack.

Even if it was "proportionate," it doesn't mean it can't be a violation. Truth is, there really is no way to determine proportionality in war. For instance, should one side kill as many civilians as the other in order to be proportionate? Both cases (targeting of civilians) would be war crimes, regardless of the number.

Well, there is scope for reasonable disagreement and it is a matter of degree. For example, in Oil Platforms, the ICJ said that the US was not entitled as a matter of law to use air strikes for the mine strike of a ship flying US colours. The response was disproportionate, given the situation at the time (the event took place during the Iraq-Iran war). The court said that proportionality had to be determined in light of the broader context of the event, in this case of the war.

Anyway, I'm not trying to say whether these criteria are good or bad. I'm just telling you what the law is.


Necessary is deciding whether or not force should be used at all.

Sort of. It's about whether your armed attack requires a response in order bring it to a halt.


it can be unnecessary at the end of the day, regardless of how strong you've shown your case to be to the international community.

In which case it won't be lawful.


You shouldn't bring things up that have nothing to do with the discussion.

You're the one who brought up "national security" as a defense for Saddam. My point was merely that even if self-defense/national security was a reasonable option for Saddam, he wildly exceeded any implied authority.

You seem to think a violation is strictly about numbers killed.

No of course not. But a high number is more obviously an egregious breach than a low number.

[griftadan]

i don't really see the benefit it limiting your own jurisdiction

i can see where it can lead to problematic situations though.

[Smokey D]

i don't really see the benefit it limiting your own jurisdiction

i can see where it can lead to problematic situations though.

I think the problem was that the Spanish courts are more or less autonomous and can launch proceedings by their own initiative. That meant there were activist judges going around indicting foreign leaders and messing up Spain's international relations.

[Light Flantastic]

300 000 civilians? I doubt it.


well the atomic bombings of japan were never punished

but then international law is just a way for the dominant countries to go on a moral crusade while ignoring their own war crimes

[Smokey D]

well the atomic bombings of japan were never punished


Hey, wanna prove that nuclear weapons are illegal at IL?

No, wait, I'll do it for you.

http://en.wikipedia.org/wiki/International_Court_of_Justice_advisory_opinion_on _the_Legality_of_the_Threat_or_Use_of_Nuclear_Weap ons

Protip: they're not illegal now and definitely weren't illegal in 1945.

[Light Flantastic]

the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.

so um ya they are

and they make exceptions in circumstance of self-defence, in which the very survival of a State would be at stake.

but that wasnt applicable in hiroshima and even less so in nagasaki

if the united states held itself to the standards of nuremberg i suspect numerous presidents would have been hanged

[Smokey D]

I don't really want to explain the way customary international law works, but

... There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such ..

However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.

So no. Nuclear weapons are legal provided they are used within the normal rules use of force at IL namely the use must be immediate, proportionate, and necessary to the threat faced.


but that wasnt applicable in hiroshima and even less so in nagasaki

if the united states held itself to the standards of nuremberg i suspect numerous presidents would have been hanged

No.

[Light Flantastic]

So no. Nuclear weapons are legal provided they are used within the normal rules use of force at IL namely the use must be immediate, proportionate, and necessary to the threat faced.
its a theoretical distinction, its implied that any use would be outside the normal rules of proportionality

apart from the extreme circumstance noted

No.
pretty sure japan wasnt a threat to the survival of the us before hiroshima

and definitely not before nagasaki

[Light Flantastic]

anyway are you saying that if the germans had dropped two atomic bombs on allied cities that nobody would have been hanged for it at nuremberg

because that sounds pretty crazy to me

[TheDarkHorse]

I don't even know what you're talking about now.

This portion of the conversation started with a reference to what Saddam did to the Kurds. I was never talking about what the US has done. i don't know when you decided that's what we were discussing.
This is typical Smokey: Choosing not to understand what you don't want to.

My point: Again, I said human rights violations are in part determined by culture. You asked for a culture that excuses the death of 300,000 civilians. I pointed out our militaristic culture in the name of national security.

This isn't difficult at all. The U.S. is one example of a country that will use its Western ideals to judge an entirely different culture, yet excuse itself when it is guilty of the exact same thing.


If I have good evidence that you're going to launch an armed attack of 50 soldiers on a remote border post of minimal strategic importance, proportionality means I can't use nuclear weapons (or other overwhelming force) to defend myself. I am only allowed to use such force as is necessary to repel the attack.
Weapons don't violate human rights-people do. If you use a 10 pound bomb on a school, you have successfully committed a crime against humanity. No nuke required.

Anyway, I'm not trying to say whether these criteria are good or bad. I'm just telling you what the law is.
I'm already aware of the law. What I've been trying to tell you (in this thread and the last one regarding law) is that its the interpretation of the law which brings issues.


You're the one who brought up "national security" as a defense for Saddam.

Thats the reason that has been given since. Apparently you didn't know.

My point was merely that even if self-defense/national security was a reasonable option for Saddam, he wildly exceeded any implied authority.
Um, no. Moral authority, maybe. But excessive authority was not an issue
Hey, wanna prove that nuclear weapons are illegal at IL?

No, wait, I'll do it for you.

http://en.wikipedia.org/wiki/International_Court_of_Justice_advisory_opinion_on _the_Legality_of_the_Threat_or_Use_of_Nuclear_Weap ons

Protip: they're not illegal now and definitely weren't illegal in 1945.

to reiterate, its not the weapon thats of importance, but rather the damage caused to innocent civilians.

[freedom police got me]

Wow, you guys would be great in an international court of law. What is this little mock debate? Some futile attempt to feel important?

[TheDarkHorse]

Wow, you guys would be great in an international court of law. What is this little mock debate? Some futile attempt to feel important?
Wait, what's this? An attempt to feel superior by pointing out my desire to feel important?

[McP3000]

What about, say, a head of state who has committed genocide?
yeah i mean i think the country should apprehend anyone that kills over 9000 people

[Iskandar]

A head of state who kills anyone without just cause should be removed from office.

[freedom police got me]

And what would you consider to be a just cause?

[Iskandar]

First of all it has to be legal.

[freedom police got me]

In that case a fascist govt can decree what is legal or illegal, and you'd have no say over it. Enemies of the state could be legally eliminated and capital punishment could legally be operated on criminals.

[Iskandar]

Okay that's not at all what I'm talking about. Legal according to international law. There is no wiggle room for fascist death camps there.

[freedom police got me]

Okay that's not at all what I'm talking about. Legal according to international law. There is no wiggle room for fascist death camps there.

And just who is to say international leftist law has any true jurisdiction over any state? A powerful country could operate under its own guidelines however it sees fit.

[Iskandar]

And just who is to say international leftist law has any true jurisdiction over any state? A powerful country could operate under its own guidelines however it sees fit.Uh leftist law. What.

International law is binding upon those who consent to it. The fact that some states choose to break it doesn't change this.

[Light Flantastic]

so its not binding for those who dont accept it

so its pointless

[freedom police got me]

pretty much

[Iskandar]

pretty muchExcept every state claims to. Nice try.

[freedom police got me]

I doubt that. I am already thinking of one example.

[Iskandar]

I doubt that. I am already thinking of one example.Who, North Korea.

[freedom police got me]

No, your holy land with g-d given rights.

[Light Flantastic]

im not sure how every state agrees to human rights

unless its one of these magical unspoken and invisible contracts that iskandar loves so much

[Iskandar]

No, your holy land with g-d given rights.What.

[Raayl]

im not sure how every state agrees to human rights

unless its one of these magical unspoken and invisible contracts that iskandar loves so much

^i agree with you, wow

Universal jurisdiction not only would never work, but it would create a massive global bureaucracy of petty conflict and real global threats would be able to slip through the cracks just as they do now

plus you have to take into account all the different correctional facilities and programs that differ from place to place its simply not financially logical

not only that but its unethical because in order to create and enforce universal prosecution you need to enforce universal absolutes regarding human behavior

which isnt exactly the most ethically justifiable thing a state can do

[Iskandar]

not only that but its unethical because in order to create and enforce universal prosecution you need to enforce universal absolutes regarding human behavior

which isnt exactly the most ethically justifiable thing a state can doThis isn't about states though it's about international law and trying to enforce global standards of behaviour (by both human and state actors) is the entire point of IL.

[Raayl]

This isn't about states though it's about international law and trying to enforce global standards of behaviour (by both human and state actors) is the entire point of IL.

but i mean, isn't that a tad bit arbitrary we had a difficult enough time adhering to standards in our own sovereign nations how do we expect to enforce some kind of global standard

it just isnt rational or logical or even feasible realistically in my opinion

[Iskandar]

We actually adhere to these admittedly unrealistic standards far better than anyone else does. They're an ideal for us as well as everyone else.

I mean unrealistic in the sense of not describing the current reality, not unattainable (they most certainly aren't).

[Raayl]

We actually adhere to these admittedly unrealistic standards far better than anyone else does. They're an ideal for us as well as everyone else.

I mean unrealistic in the sense of not describing the current reality, not unattainable (they most certainly aren't).

I'm with you on the fact that there are absolutes in the universe. (IE right and wrong, by whatever context you discuss) However, I simply do not think that human beings could ever function by them. We're simply too eratic. Plus the point about it being economically unrealistic and thus unattainable still stands. The differentiation in correctional facilities is simply too massive. Murder in spain is prosecuted much different than in the US, for example. So the concept of "justice" also is in question. It's not a matter of just catching the "bad guy" but a matter of offering the victims the appropriate justice. That definition also differs among nations immensely.

[Iskandar]

Nobody whether individuals or states can uphold the law in all circumstances.

That doesn't mean it's useless to set norms to follow.

[Raayl]

Nobody whether individuals or states can uphold the law in all circumstances.

That doesn't mean it's useless to set norms to follow.

That isn't what I'm saying. What I'm saying is that I agree with universal jurisdiction ideally. However, I find it to be highly unrealistic and ultimately too arbitrary to ever effectively unite a majority of nations to prosecute and administer justice universally. As someone studying law, I just cannot see that happening in the world we live in.

Now individual, sovereign nations setting norms to follow? Absolutely - thats the basis of any civilization. But our justice systems are far too different from country to country in the west. I'm just trying to voice the pragmatic perspective here, forgive me if I'm being too argumentative as I do fully embrace the ideal of universal laws of right and wrong.

So here is a thought: how do feel about the notion that instead of immediately seeking universal jurisdiction we simply start collaborating with other nations to start a converge of our legal systems? Do you think american law would ever go for that? what about europe, or other countries? If it isn't possible to discuss the philosophy and enforcement/prosecution of law, it isn't possible to execute it in reality after all.

[freedom police got me]

What.

I thought you were smarter than that chosen one.

[Iskandar]

I thought you were smarter than that chosen one.I know perfectly well what you're referring to. I don't know why you are, however unless it's for anti-Semitic reasons.

[freedom police got me]

Because it is one of the most obvious examples of breaking international law on so many levels.

[Iskandar]

Then why are you attacking me personally instead of the country when I have nothing to do with it. I've never even been there.

[Smokey D]

its a theoretical distinction, its implied that any use would be outside the normal rules of proportionality

Perhaps. I don't know if, say, the court would say that nuclear weapons used against large scale tank formations is illegal. Maybe bombing cities would be, but that seems to represent a shift in international legal thinking.

The second world war itself is enough evidence that virtually no country had any qualms about bombing citizen populations.



pretty sure japan wasnt a threat to the survival of the us before hiroshima

and definitely not before nagasaki

Doesn't matter. Even if there is a rule, it didn't exist in 1945. As evidenced by the widespread bombing of civilian populations throughout the war.

PS a rule only exists at customary international law if there is state practice evincing opinio juris (legal opinion).

anyway are you saying that if the germans had dropped two atomic bombs on allied cities that nobody would have been hanged for it at nuremberg

because that sounds pretty crazy to me

Someone probably would have been hanged but there would have been no legal basis for it.

The legality of the genocide charges themselves were dubious.


This is typical Smokey: Choosing not to understand what you don't want to.

No, I honestly thought we were talking about Saddam in 1991. I have no idea when this became a discussion about today.

My point: Again, I said human rights violations are in part determined by culture. You asked for a culture that excuses the death of 300,000 civilians. I pointed out our militaristic culture in the name of national security.

Oh okay. Yes I suppose you could say that in war there is much greater leniency towards killing civilians, and I suppose in some ways you could call that a cultural attitude.

But the comparison is problematic because a) the majority of deaths in the current war have not, to my knowledge, been attributed to the US and b) even if they have been, there is no evidence that the US has engaged in a systematic campaign of extermination.


This isn't difficult at all. The U.S. is one example of a country that will use its Western ideals to judge an entirely different culture, yet excuse itself when it is guilty of the exact same thing.


Okay, but that's not to say we shouldn't criticise them both.

The murderer who lambastes the other murderer isn't wrong, he's just a hypocrite.


Weapons don't violate human rights-people do. If you use a 10 pound bomb on a school, you have successfully committed a crime against humanity. No nuke required.

Yes, I know. The point was to show you that proportionality does have a role to play in pre-emptive self defense, just like it does in all use of force cases.


I'm already aware of the law. What I've been trying to tell you (in this thread and the last one regarding law) is that its the interpretation of the law which brings issues.

Of course. But I'm not defending any particular interpretation. I'm just saying what the Court has said.


Um, no. Moral authority, maybe. But excessive authority was not an issue

Authority to act in self defense. You are only authorised to act in self defense to the extent it is proportionate and necessary etc etc. If your acts are disproportionate, you have exceeded your authority.

to reiterate, its not the weapon thats of importance, but rather the damage caused to innocent civilians.

Yes I know. That was my point. The ICJ basically said that there was no basis to treat nukes different in kind to other weapons, although as a matter of fact nukes were more likely to violate the proportionality limit.


yeah i mean i think the country should apprehend anyone that kills over 9000 people

Problem is even if there is jurisdiction, there's still immunity for sitting heads of state.


International law is binding upon those who consent to it. The fact that some states choose to break it doesn't change this.

International law is binding on everyone.

Some states can choose to ignore it, though. Most don't.

im not sure how every state agrees to human rights

unless its one of these magical unspoken and invisible contracts that iskandar loves so much

International law doesn't require explicit consent from every party to every rule.



Universal jurisdiction not only would never work, but it would create a massive global bureaucracy of petty conflict and real global threats would be able to slip through the cracks just as they do now

Universal jurisdiction is already in place.

There are potential problems with it, but I don't see those problems are worse than letting perpetrators of genocide go free or anything.

Also, should point out that universal jurisdiction isn't grounds for invading or otherwise violating the territorial sovereignty of another state. Universal jurisdiction can only be legally used if the accused lawfully comes within the jurisdiction of the prosecuting state. Pinochet, for example, decided to go to Britain, which had an extradition treaty in force with Spain. Thus, Spain could demand his extradition, and then exercise its universal jurisdiction. But it could not have invaded Chile in order to gain control of him.


Now individual, sovereign nations setting norms to follow? Absolutely - thats the basis of any civilization. But our justice systems are far too different from country to country in the west. I'm just trying to voice the pragmatic perspective here, forgive me if I'm being too argumentative as I do fully embrace the ideal of universal laws of right and wrong.

Again, I struggle with the idea that there is any culture that permits genocide, or, if there is, that we should allow them that cultural liberty.

So here is a thought: how do feel about the notion that instead of immediately seeking universal jurisdiction we simply start collaborating with other nations to start a converge of our legal systems? Do you think american law would ever go for that? what about europe, or other countries? If it isn't possible to discuss the philosophy and enforcement/prosecution of law, it isn't possible to execute it in reality after all.

I don't think you need similar domestic legal systems to ban the most heinous of crimes.