I included the draft so you could see more or less my answer relate it to their answers.
1. Josephine Kehm
Treaties are documents meant to enforce certain norms and hold states accountable. I think it is important to remember treaties are not necessarily legally binding because of the lack of an international policing force. When a country violates a treaty it sets a dangerous and negative precedent, and portrays them in a very negative light internationally. In regards to non-compliance and liability I think the question of holding a state leader accountable only becomes relevant when the states having committed the treaty violation loses. If for example Germany had won World War II they never would have been held accountable for the violations of the Kellog-Briand act because there wouldn’t be anyone to hold them accountable.
It is also important to note treaties are documents frozen in time. In other words treaties are signed in the moment without taking into account how a situation may evolve. Treaties for the most part are temporary agreements, but when the interest of a country shifts treaty agreements easily become irrelevant. An example of this would be when Germany and the Soviet Union signed a non-aggression pact for the next 10 years in 1939 shortly before WW II. The pact was only meant as a distraction so Hitler could invade Poland without opposition, and prevent a war on two fronts, and Stalin could rebuild his army. The pact was shortly dismantled in 1941 when German forces invaded the Soviet Union. This example clearly shows how Germany had proposed a treaty with the Soviet Union, as a military ploy, they knew they would eventually violate.
Overall the consequences of the violations of a treaty is left up the winner’s discretion.
2. Brianna Rivers
State vs Individual Responsibility
I think that a violation by a state of treaties it has signed should be able to translate into a crime for which the leader of that state (s) can be held responsible. I think that not only will this help ensure compliance and hold leaders accountable, but I think if the leader is the one ultimately making the decisions and the one that decided to violate the treaty, then they should be the ones ultimately held responsible. I think that the cases discussed in the book, such as the Nuremberg trials, show that individuals such as state leaders can and should be held responsible and criminality prosecuted if their actions violate a treaty that they had signed, even if it was not yet a recognized international law. I think that it is obvious that crimes against humanity such as the ones discussed in this chapter are respected laws among most states, and that most would agree that leaders should be held criminally accountable for such an act.
However, if the actions of a leader did not violate laws as serious or recognized as crimes against humanity and war crimes, and the defendant or leader argues that the crime or act was committed before a law was made against it, I think that the leader can and should still be prosecuted or held responsible. First of all, the “ex post facto” rule, meaning that an act cannot be criminal before a law is passed against it, cannot be applied in international law, according to the book (Dunoff et al., 2015). Second, if the act violates a treaty that the state had signed, then the leader cannot pretend they did not know about the rule or “law” they were violating. Overall, I think that holding leaders or individuals accountable regardless of international law is necessary to ensure compliance, responsibility, and avoid violations.
Dunoff, J.L., Ratner, S.R., & Wippman, D. (2015). International Law: Norms, Actors, Process; A Problem-Oriented Approach (4th ed.) Wolters Kluwer: New York.
3. Beom Soo Kim
Criminal Law agasint Wartime Abuse
I applied the article we read for last week on today’s discussion. According to Kim & Sikkink article, there are three models for human right prosecution in the world history. They are the immunity model, the state accountability model, and the individual criminal accountability model. Among them, the best model for prosecution is individual criminal accountability model because it is focusing on prosecuting individual who committed international crime rather than state or government itself (Kim & Sikkink, 2013, p.271). The reason is that this model is more comfortable, less resistible, and can be formed in fair trial (Kim & Sikkink, 2013,, p.271). In the war crime case, I agree to their assertion, because whether right or wrong, this is the reality that there is no way, or so much difficulty, when we tried to prosecute a whole state or government. We cannot prosecute the state, both government and every citizens, and cannot prosecute the government if they tried to resist with everything they could including military, alliance, resources etc. In that case, we might could ‘punish’ the state with sanction and government with promoting demonstration, but could not ‘prosecute’ the state or government.
However, there is also some problems when we tried to punish individual, the state leader, for war crime. As we learn and discussed from yesterday lecture, there is a good example of non-compliance. George Bush, who commanded Iraq Invasion, did not charged as a war criminal although his action was against the international law and mass people were dead. According to Jo and Simmon (2016), ICC can impact on war crime through prosecutorial deterrence, and social deterrence based onmaterial capacity (p.8), it would not affected on the U.S., its alliance, and WWII winners who actually created today’s international regulations and charters.
Nevertheless, about 11 soldiers who convicted for commanding and executing the Abu Ghraib scandal in Iraq were charged and sentenced (although very small sentence and 3 of them were not charged) (CNN, 2020). It is because the superior who ‘orders’ a subordinate to commit an atrocity is guilty under both domestic and international criminal law (Dunoff, Ratner & Wippman, 2015, p. 490)
Is this mean we can charge the military commander or officer who ordered such atrocity, but not the state leader, supreme-chief commander of military who ordered the whole invasion? U.S. court said “it is absurd… to consider a commander a murderer or rapist because one of his soldiers commits a murder or rape.” I know it to mention for commander who did not order atrocity but his subordinated did all, but in such circumstances as above two, do such crimes can be applied to commander of front line, but not to the state leader who committed the war through violating the international law?
CNN (March 22nd, 2020). Iraq Prison Abuse Scandal Fast Facts. Retrieved from https://www.cnn.com/2013/10/30/world/meast/iraq-prison-abuse-scandal-fast-facts/index.html
Dunoff, J. L., Ratner, S. R., & Wippman, D. (2015). Wartime Abuses: U.S. Treatment of Prisoners at Abu Ghraib. In International Law: Norms , Actors, Process; A Problem-Oriented Approach (4th edition, chpt 9, p.475-539), New York: Aspen Publishers.
Jo, H., & Simmons, B. (2016). Can the International Criminal Court Deter Atrocity? International Organization, 70(3), 443–475. https://doi.org/10.1017/S0020818316000114
Kim, H.J & Sikkink, K. (2013). The Justice Cascade: The Origins and Effectiveness of Prosecutions of Human Rights Violations. Annual Review of Law and Social Science, 9(1), 269–285. https://doi.org/10.1146/annurev-lawsocsci-102612-133956
Example of a comment –
Great discussion! I also thought about the reading from last week when writing this discussion because I think it relates to the idea of individual criminal responsibility and using this to ensure compliance. I think holding political leaders accountable instead of entire states makes much more sense, and can be done through domestic techniques as well if the state holds its leader accountable. I think this will do a better job of ensuring compliance and putting the blame on one or a few people, instead of an entire state, which has many difficulties.
However, made a good point when you talked about the challenges of doing this. For example, if a soldier commits an act that violates treaty or international law, should the leader of the country the soldier is from be held criminally responsible? Most would say no because that seems wrong to do. I think it’s easier in cases like Hitler and Germany because it was obvious that Hitler was to blame and that he should be the one held accountable overall. I think this is something to think about when answering this question. Good points!
Another example – Hi Brianna,
Great response. One of your points made me think of a question for you. What would you say if a state leader violated a treaty that is no longer relevant, or outdated? In other words laws must evolve alongside society, so if there were a situation in which a country violated an international treaty because it was outdated would you still hold the state leader accountable?
Let me know,
Question for that discussion board – We talked a lot this week about state vs individual responsibility – one of the ways the court determines that Nuremberg does not violate NLCS is by noting that Germany had signed the Kellog-Briand act which prohibited war. Should the violation by a state of treaties it has signed (i.e. the problem of non-compliance) translate into a crime for which a state’s leaders may be personally responsible? What would be the consequences of such an action for treaties other than those dealing with war and peace?