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Scarsdale KH

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These are all of Ken Hershey and Marcus Moretti's TOC cases. The aff cases are named after characters from the HBO series "The Wire," which served as our primary inspiration for TOC case ideas and we recommend strongly. The first cases that appear in each category were our outrounds cases.



Ought is “used to express moral obligation”[[#_ftn1|[1]]] Prefer this interpretation of the resolution for four reasons. First, conceptions of desirability are circular insofar as our feelings of happiness cannot themselves serve as justifications for what makes us happy. Derek Parfit writes:

“According to desire-based theories, such reasons would have to be provided by facts about what would fulfill our present desires. If, after informed deliberation, we want future happiness as an end, this fact could give us instrumental reasons to have certain other desires, since it would give us reasons to want whatever would make us happy. But the fact that we had this desire could not be truly claimed to give us a reason to have it. Desires cannot be self-supporting. Our wanting happiness as an end could not give us a reason to want happiness as an end.”[[#_ftn2|[2]]]

Any desire-based theory fails to justify imposing an obligation on others since what makes us happy is merely descriptive and is not self-justifying. Second, desirability frameworks presuppose a consequential calculus that could not function given the resolution’s lack of context or provision of consequences of the resolutional action. This problem still exists even with a context because, as even the best international relations scholars will admit, it is impossible to predict how states will act, let alone within a 45-minute debate round. Justifying a moral obligation instead requires that we examine the institutional obligations of the government, and so avoids this calculability problem. Third, the resolution, with the phrase “designed to prosecute crimes against humanity,” centers the debate around the intent of the topical action instead of its consequences. The only characteristic the resolution provides about its action is that there exists this intent to try crimes against humanity through a court. Thus, the debate must focus on the intent behind the resolution, since it is the only verifiable component of the action itself. Fourth, ought as moral obligation preserves the weighability characteristic of desirability while avoiding the irreconcilability of ought as logical expectancy debates by basing the prescription of obligations on the importance of conflicting institutional obligations instead of on truth claims, which cannot be compared against one another.

Given our inability to assess the consequences of the resolution, the intent is the only relevant factor with regard to our obligation to punish, and so regardless of the efficacy of an international court, affirming can meet an obligation through its intent to meet the obligation. And, even if consequences can be debated, affirming still fulfills a moral obligation by taking the necessary precondition to solving crimes; the affirmative always outweighs in terms of capacity to prosecute since there exists a legal void in which actors can operate on the negative side that ceases to exist on the affirmative side. Expanding jurisdiction over these legal voids is the necessary prerequisite to prosecution, and there is never a net loss of jurisdiction when you affirm. Also, good intention is sufficient to fulfill a moral obligation since unintended consequences do not reflect anything about the subject’s morality. For instance, one could not say that a scrupulous citizen who paid his taxes acted wrongly merely because that tax money was later used to fund the Iran-Contra scandal. Thus, the end-results of the resolution are irrelevant.

The resolution places two forms of jurisdiction in conflict: national and international. Affirming shifts the jurisdiction of citizens to an international body, while negating continues to restrain that jurisdiction to a strictly national body. The national body endorsed by the negative has jurisdiction only over U.S. citizens, while the international body endorsed by the affirmative includes U.S. citizens among citizens of those countries whom it governs. Proving that there is no morally relevant distinction between U.S. citizens and non-citizens warrants an affirmative ballot for four reasons. First, absent a moral distinction between citizens and non-citizens, the state’s obligations would transcend national boundaries. This shift toward a cosmopolitan ethic, where all humans deserve protection from the state, is captured by an endorsement of the ICC, an international institution. Pauline Kleingeld writes:

“The ICC itself represents an extension of the long trend, in international law, to do away with the principle of the absolute subjection of individuals to the state and develop the status of individuals under international law. Individuals are now the bearers of certain rights under international law, and they can be held responsible for crimes under international law in ways that cut through the shield of state sovereignty.”[[#_ftn3|[3]]]

Joining the ICC fulfills the higher moral obligation of being held accountable to not only citizens, but non-citizens as well, and so if this obligation exists, so too does the obligation to join the ICC. A higher obligation must render obligatory those actions that fulfill the obligation, else the higher obligation would functionally not exist. Second, national sovereignty is based on the idea that outsiders ought to be kept out; if status quo outsiders merit the same moral protection as insiders, national sovereignty is not justified and so nations ought not limit their obligations to borders. De-justifying limitations of sovereign obligations to citizens renders the resolution action obligatory and not merely permissible because there is a proactive harm of enforcing borders: violating the equality of persons that will be proved later. Negating inherently respects sovereignty. Absent a morally relevant distinction between citizens and non-citizens, the resolutional action must be taken since the United States would be disrespecting its obligations. Thus, the negative has the proactive burden to prove a distinction between citizens and non-citizens, else you would affirm. Presumption is therefore affirmative. Third, U.S. federal courts operate with the express purpose of protecting the Constitution, whereas the international court in question is designed to prosecute crimes against humanity. The difference in types of cases that arise in each court makes the U.S.’s submission to international jurisdiction a strong affirmation of the rights of humanity, as opposed to federal courts’ appreciation of Constitutional rights. Submitting to the jurisdiction of the ICC commits the U.S. to a fight beyond just the one for the Constitutional rights of American citizens: the fight for global human rights, which transcend any national boundary. The U.S.’s emphasis on humanity instead of citizenship would fulfill the universality of its obligations. Even if other options exist for the U.S. to recognize human rights, the ICC is unique in its efforts to seek out violators of these rights and prosecute them. Failure to join the ICC would tacitly reject the system of human rights that a universal obligation would require. So submitting to the ICC is a requisite action for the U.S. to fulfill an obligation to all human beings. Fourth, government is a legal contract between individuals endowed out of the state of nature to protect individuals from the arbitrary injustices of anarchy. Since the state exists to rectify arbitrary injustices, it would be contradictory for the state to arbitrarily exclude moral equals from the protections that it affords its citizens. Therefore, if there is no moral distinction between citizens and noncitizens, it would be morally obligatory for the United States to extend its protection to all peoples by joining a court designed towards that end.

So, I contend that there is no morally relevant distinction between citizens and non-citizens. First, the global institutional scheme is attributable to all humans and so humans should be accountable for its effects, such as domestic crimes against humanity. Thomas Pogge writes:

“One may think that a shared responsibility for the justice of the social institutions in which we participate cannot plausibly extend beyond our national institutional scheme, in which we participate as citizens, and which we can most immediately affect. But such a limitation is untenable because it treats as natural or God-given the existing global institutional framework, which is in fact imposed by human beings who are collectively quite capable of changing it. Therefore at least we – privileged citizens of powerful and approximately democratic countries – share a collective responsibility for the justice of the existing global order and hence also for any contribution it may make to the incidence of human rights violations.”[[#_ftn4|[4]]]

Humans created the global political arena, and so should be held accountable for its consequences; thus, to claim that a state’s obligation is only to its own citizens would be to ignore that borders are human constructions, and not natural phenomena. Also, the geopolitical divisions between persons are entirely arbitrary. There can be no moral basis for these lines drawn on a map because they are merely the result of convenience or historical disputes, and the product of a moral deliberative process. These lines do not communicate anything about the people they divide, and so cannot be the basis of a morally relevant distinction between different states and different sets of citizens. This means domestic legal documents like the Constitution also are not morally relevant since they are byproducts of this arbitrary system, and so themselves do not contain moral content. Additionally, morality’s authority can only stem from our rational capacity, which is what makes us human and is not contingent on borders. Robert Johnson writes:

“[A] person [i]s free when bound only by her own will and not by the will of another. Her actions then express her own will and not the will of someone or something else. The authority of the principles binding her will is then also not external to her will. It comes from the fact that she willed them. So autonomy, when applied to an individual, ensures that the source of the authority of the principles that bind her is in her own will. Kant's view can be seen as the view that the moral law is just such a principle. Hence, the ‘moral legitimacy’ of the CI is grounded in its being an expression of each person's own rational will. [i]t is because each person's own reason is the legislator and executor of the moral law that it is authoritative for her.”[[#_ftn5|[5]]]

There can be no other foundation for morality since autonomy enables morality’s regulations to be self-imposed rather than externally imposed, and so preserves the individuality of the actor and protects him from oppressive moral coercion. Thus, autonomy is the only morally-relevant factor because it alone provides the binding force and underlying justification of moral rules. Moreover, rationality is the initial quality that enables us to be entitled, as opposed to inanimate objects or animals who cannot operate on the higher level of thinking of humans. Since this feature alone justifies the moral worth of individuals, our moral obligations should extend to all individuals who possess this feature. Since rationality is a human capacity, the human is the basic unit of moral concern, and not, for instance, the American. Any distinction between citizens and noncitizens therefore must be affirmatively justified and proven morally relevant, else all humans are presumed to be morally equal. Finally, the only distinction between citizens and non-citizens is their legal affiliation. However, the law is always separate from morality, since morality is a constant, infinite obligation and law is a static, fixed set of rules. John Caputo writes:

“There is a history of legal systems, of rights, of laws, of positive laws, and this history is a history of the transformation of laws. That why they are there. You can improve law; you can replace one law by another one. There are constitutions and institutions. This is a history, and a history, as such, can be deconstructed. Each time you replace one legal system by another one, one law by another one, or you improve the law, that is a kind of deconstruction, a critique and deconstruction. So, the law as such can be deconstructed and has to be deconstructed. That is the condition of historicity, revolution, morals, ethics, and progress. But justice is not the law. Justice is what gives us the impulse, the drive, or the movement to improve the law, that is, to deconstruct the law. Without a call for justice we would not have any interest in deconstructing the law.”[[#_ftn6|[6]]]

This argument also applies to constitutionality-based conceptions of morality. The constitution, a legal document, cannot be the basis for a moral obligation since by the virtue of being law, it lacks moral qualities. Thus, because there is no moral distinction between citizens and non-citizens, I affirm.

As an underview to the AC, the fact that citizens make sacrifices to the state and noncitizens do not does not morally differentiate citizens from noncitizens since:
A. Citizens sacrifice different amounts to the state. Some citizens pay higher taxes than others, some join the army or state department while others don’t, and children do not contribute to the state at all, but all citizens are granted the label of nationality and benefit from equal protection by the state, so sacrifice cannot differentiate citizens from noncitizens any more than it can differentiate citizens from each other.
B. The sacrifice citizens make to the state does not differentiate them from noncitizens because the sacrifice is offset by the benefits and protection that the state offers them. While citizens give more to the state than noncitizens, they also receive more from the state. Noncitizens neither give nor receive from the state, so there is still no moral difference between noncitizens and citizens.
C. Even if citizens have a unique reciprocal relationship with the state, this relationship is still arbitrary and hence cannot be the foundation of morality. Even though I may give more to the U.S. government than a person living in Darfur, a comparison of our sacrifices would not prove anything because the Darfurian never had the opportunity to sacrifice for the U.S. in the first place, reflecting the arbitrariness of the relationship between citizens and their states.

[[#_ftnref1|[1]]] Webster’s Dictionary (1913) Patrick J. Cassidy, Ed. - Original American Dictionary.
[[#_ftnref2|[2]]] Climbing the Mountain (Unpublished) Derek Parfit - Oxford University, Philosophy Professor.
[[#_ftnref3|[3]]] Cosmopolitanism (November 28, 2006) Pauline Kleingeld and Eric Brown - Stanford Encyclopedia of Philosophy, <http://plato.stanford.edu/entries/cosmopolitanism/>.
[[#_ftnref4|[4]]] Cosmopolitanism and Sovereignty (Fall, 1992) Thomas W. Pogge - Ethics, Vol. 103, No. 1, pp. 52-3.
[[#_ftnref5|[5]]] Kant’s Moral Philosophy (April 6, 2008) Robert Johnson - Stanford Encyclopedia of Philosophy, <http://plato.stanford.edu/entries/kant-moral/>.
[[#_ftnref6|[6]]] Deconstruction in a Nutshell (1997) John Caputo - Professor of Humanities




We ought to look to the International Criminal Court, because a.) it is the only possible relevant and currently existing court that could fit the resolutional burden and therefore the only way to empirically debate the topic, which is necessary to for any level of impact comparison and thus is key to minimizing judge intervention, and b.) there is sufficient ground on both sides that debaters can actually make arguments as opposed to defending a hypothetical court, which would allow the aff to shift ground.

I value governmental legitimacy because the resolution asks how the US government should act, and any government ought to act in a way that maintains its legitimacy, else it ceases to be a functional government. The criterion for the round is improving the quality of judicial checks, defined as choosing a system that best protects due process rights for four reasons:

1. The resolution questions the proper way to deal with the perpetrators of crimes against humanity. Because these crimes by nature violate the due of citizens somewhere it is the obligation of a government to effectively hold the perpetrators accountable. Moreover, governments should always prefer the best available mechanism to hold perpetrators accountable because governments are obligated to seek to maximize freedom for the innocent as they have sacrificed liberties in exchange for protection. Therefore, we ought to use the most fair judicial system in order to punish suspected criminals.

Absent effective judicial checks to ensure perpetrators of crimes against humanity are given their due it is impossible to fulfill the moral obligation to punish, as this obligation is fulfilled by performing fair retribution against perpetrators. Jeffrey Reiman explains:

I call the second approach "Kantian" since Kant held (roughly) that, since reason (like justice) is no respecter of the sheer difference between individuals, when a rational being decides to act in a certain way toward his fellows, he impliciy authorizes similar action by his fellows toward him.13 A version of the golden rule, then, is a requirement of reason: acting rationally, one always acts as he would have others act toward him. Consequently, to act toward a person as he has acted toward others is to treat him as a rational being, that is, as if his act were the product of a rational decision... It should be clear that the Kantian [This] argument also rests on the equality of persons, because a rational agent only implicitly authorizes having done to him action similar to what he has done to another, if he and the other are similar in the relevant ways.

3. Improving the judicial system which conducts prosecution is more important than the consequences of the prosecution itself for three reasons:
A. Punishment is inherently speculative, as the ends of any action are unknown until the action is taken, so the best way to evaluate the justness of punishment is the nature of the means or the institution which performs it, as the moral value of the means are more readily verifiable.
B. The rational foundation for punishment is culpability, as agents are only punished for actions they can be held accountable for. Focusing on the ends of a prosecution destroys this foundation of punishment as it would justify letting killers go free if their innocence would yield good results, defeating the entire purpose of a justice system.
C. Seeking only the end of successfully punishing offenders justifies doing away with a judicial system totally as we could just declare all suspects guilty, which would then lead to even more harms. Also, no benefits flow from falls convictions or letting the innocent go free, so securing a fair trial with adequate criminal protections is a prerequisite to ends-based impacts.

Because crimes against humanity are affronts to the judicial systems of every nation, the judicial system of any nation is obligated to prosecute, so improving a judicial system is necessary for the government to uphold its obligation. Wilke 1:

Finally, the principle of universal jurisdiction allows any state to exercise jurisdiction over an enumerated number of crimes regardless of the place of commission, or of the citizenship of victims and perpetrators. The universal jurisdiction principle originated in the states’ joint attempt to prosecute piracy, which occurs on the High Seas, where no state has jurisdiction. Later, slave trade was added to the list of crimes. The rationale for prosecuting [the] slave trade under universal jurisdiction was twofold: on the one hand, slave traders were, like pirates, usually caught on the High Seas, a place without jurisdiction for any state. On the other hand, [is that the] slave trade was considered an offense against all of humanity, so that anyone would be allowed to judge an offender. Universal jurisdiction can thus arise in virtue of the place where the crime was committed (the High Seas), or in virtue of the moral nature of the crime, which offends humanity at large instead of any particular nation. The universal jurisdiction for crimes against humanity is based not on the place where the crimes were committed, but on the character of the offenses, which by their heinous character “dictate that all states have an interest in exercising jurisdiction over them. The nexus between the crime and the prosecuting state is, consequently, “the simple fact that we are all human beings. The place of commission and the nationality of victims and offenders are legally insignificant when the offense is a crime against humanity. The relationship between crimes against humanity and universal jurisdiction is, accordingly, that universal jurisdiction can arise for a number of reasons, but crimes against humanity always trigger universal jurisdiction.

Thus the negative burden to win the round is to show that domestic courts have preferable judicial checks. The thesis of the AC is that the ICC has more checks and procedural equity in indicting offenders than the U.S. judicial system. The U.S. therefore ought to join the ICC to afford its own citizens better rights protections and to assist in ensuring that foreign rights violators do not receive unfair or sham trials. Briony MacPhee 1 explains the multi-layered checks of the ICC,

Once a case is admissible under Article 17, it still has to get through the stringent investigation requirements of Article 53. Under these provisions, even if a serious crime has been committed and there is sufficient legal and factual basis to seek a warrant, the Prosecutor may decide not to prosecute. The Pre-Trial Chamber may then review the decision upon the request of the Security Council or the nation which referred the case. Moreover, the Statute requires the chamber to reconfirm the Prosecutor’s decision if it is based solely on the rationale that the prosecution would not serve justice (Article 53(3b)). Accordingly, the ICC is not under a legal obligation to investigate and prosecute every crime listed in the Statute.

The requirements of initiating prosecution, such as the initial check of the Pre-Trial Chamber and Article 53, which necessitates violation of Article 17, sufficient gravity and review of the applicability of the complimentarity principle, and potential other interests of justice, means that the ICC has more procedural equality and is an improved judicial system from the U.S., where indictments can be earned by presenting one sheet of paper to a judge. Moreover, the ICC has increased checks on judicial selection and conduct, as well as democratic restraint on the ability of one judge to influence the court. MacPhee 2 continues,

Judges are elected by the Assembly of States Parties [and] in accordance with article 35. The judges are to be highly qualified professionals of untarnished moral character (Article 36). They must be competent and experienced in either criminal or in relevant areas of international law. Of the 18 judges, no two can be nationals of the same state. Only states party may nominate and elect judges and only candidates who are nationals of states parties may be elected. Article 40 restricts the involvement of judges in any activities, which may compromise their independence, such as professional engagements. Furthermore, judges may be disqualified and/or excused if their independence with respect to a particular case is questioned (Article 41). In the case of misconduct or inability to perform his assigned duties, a judge may be removed from office, upon recommendation of 2/3 of the other judges, by a 2/3 majority of States Parties (Article 46).

By ensuring that the judges who decide cases and influence the Court have no possible method for negatively harming the court and diverting cases, and by crafting a democratic election procedure utilizing multiple nations that does not allow one nation to dominate the judicial pool, the ICC maximizes the judicial checks of the court and improves the international judiciary. Moreover, the United States can attach provisos that prevent the ICC from subjecting defendants to potentially unbeneficial procedural requirements. David Scheffer 1 writes:

[T]he United States would be entitled to attach declarations, understandings, and provisos to the document as part of the ratification process. This is a perfectly acceptable though highly limited form of exceptionalism under treaty law. Many ratifying nations of the Rome Statute have made ample use of this entitlement and thus protected key national interests. For example, Australia has imposed tough conditions on the surrender of a person to the ICC and it has required that ICC crimes “will be interpreted and applied in a way that accords with the way they are implemented in Australian domestic law.” France has interpreted the war crimes provision to relate solely to conventional weapons and not to prohibit the use of nuclear weapons or “impair the other rules of international law applicable to other weapons necessary to the exercise by France of its inherent right of self-defense.” The United States could invoke a proviso, used in some of its other treaties, stating “the US intention that nothing in the Rome Statute requires or authorizes legislation, or other action, by the United States that is prohibited by the US Constitution as interpreted by the United States.” During the Clinton administration, US negotiators, including career Justice Department lawyers, concluded that the Rome Statute was not inconsistent with US constitutional requirements, even though some critics continue to use misleading rhetoric and erroneously read into the Rome Statute unconstitutional procedures. Washington could attach a declaration confirming that the ICC’s jurisdictional reach over the United States and its nationals commences on the first day of the month after the 60th day following US ratification, which would accord with the strict terms of the Rome Statute.

Therefore, the U.S. joining the ICC improves the quality of the global judicial system and allows more procedural checks to be inherent to the court. This also means that any element that is preferable to domestic courts can be replicated in the ICC. This means no harms to the ICC’s process are inherent to a world in which the US submits and shapes future prosecutions. Additionally, the ICC is virtually identical to the bill of rights with regard to protection of citizen’s rights. Scheffer 2 explains.

If an individual does come before the Court, the Rome Statute includes all but one of the protections present in our own Bill of Rights. Upon apprehension the suspect has the right to remain silent or to “not testify against himself”. Article 54(1)(a) and Article 67.1 (g) prohibits self-incrimination in the same way as our own Constitution. The suspect has the right to confront his accusers under Article 67.1(e), which provides “the right to cross examine the witnesses against him”. The use of anonymous witnesses is not permitted under the Statute and will not be utilized by the Court precisely because of the due process violations it would entail. The suspect is entitled to be tried with undue delay (speedy and public trials art. 67). There is protection against double jeopardy in Article 20. The accused has the right to be present at the trial (art. 63, art. 67 (1), 67(1)(c)). The list of due process protections also includes provisions for the presumption of innocence (art.66), assistance of counsel (arts. 67(1)(b),(d)), right to a written statement of charges ( art. 61 (3)), right to have compulsory process to obtain witnesses ( Art. 67 (1) (e)), prohibition against ex post facto crimes ( art. 22), freedom from warrantless arrest and search (art. 57 (3), 58), [and] exclusion of illegally obtained evidence (art. 69(7)).

This means two things: A. that the ICC functions like a plan plus counterplan to domestic courts as it captures all the benefits inherent to the domestic system plus additional gains. B. the only right not guaranteed is the right to a trial by jury. However, the exclusion of this right in fact further improves the judiciary and ensures more due process checks. MacPhee 3:

The exception arose from a practical concern and not as an attempt to pre-determine the results of trials. A jury of peers for the likes of Hitler would be hard to find and its justice would be questionable. It would be difficult to find, after years of often widely publicized atrocities, a juror impartial and uninformed enough to enter the courtroom without previously formulated opinions of the defendant. Sequestering jurors as is often done to ensure a just verdict would be a futile attempt at the ICC level.

Therefore, attempting to use a jury trial at the ICC level would in fact harm the cause of judicial procedure, and justice is in fact best served by a trial led by judges who are made most impartial by their training and knowledge of international law, difficult to replicate in a jury. Finally, the complementarity principle of the ICC enables there to be further judicial checks and effectively doubles the efficiency and justness of an investigation conducted by the ICC. MacPhee 4:

The complementarity provisions in articles 17, 18 and19 of the Rome Statute point to the subsidiary nature of the ICC. Complementarity allows the state with primary jurisdiction to exhaust its own legal and judicial procedures before the ICC considers prosecution. That is, after the ICC’s mandatory notification of its investigation to the state involved, that state may invoke complementarity. If the state so requests, it then has the right to conduct its own investigation, conclude that the matter does not merit further action or decide to proceed to the trial stage. The ICC must allow that state to complete this process if it is able and willing to do so. However, the Statute does give ICC judges the right to determine whether a national investigation was or was not properly conducted. If they determine that the investigation shielded the accused from criminal responsibility or was in any way biased or impartial, they may authorize an ICC investigation and prosecution.

This means in a world where the ICC exists there is a two-step system providing oversight to guarantee protection of due process rights. That means any benefit that exists in the domestic system is only heightened when the ICC exists to provide oversight for when mistakes are made.



To prove that the U.S. ought to submit to a court designed to prosecute crimes against humanity, the affirmative must prove that there is a moral distinction between crimes against humanity and ordinary crimes for 2 reasons.

1. Absent such a distinction, any crime would be morally equivalent to a crime against humanity, and the court that the aff defends would have jurisdiction over and the obligation to prosecute all crimes. Such a court is both a) impossible, as no single court could possibly prosecute the totality of all crimes committed in the world, and b) unjustified, as not all individual crimes merit an international response, as laws vary from place to place and offenses vary in severity.
2. A legal distinction between crimes must be based in a moral one, because a) the purpose of the law is to have a practical method of enforcing societal moral norms, which is why there are legal distinctions accounting for moral issues like decreased culpability or premeditation, and b) a crime against humanity only exists as a legal entity because of the perceived moral harm done to all people. Therefore, if no such moral harm exists to distinguish it from a normal crime, there is no reason for it to be considered a separate legal crime.
Thus the affirmative burden is to prove that there is a moral distinction between crimes against humanity and ordinary crimes. My argument is that this distinction does not exist. First, a crime against humanity is merely the sum of the individual crimes that constitute it, each of which are not morally distinct from traditional offenses against individual people. Larry May writes:

Most importantly, there must be some underlying rationale for the claim that a certain crime is an international crime. Here, one of the most difficult conceptual problems is how to link the crimes of an individual to the larger plan or scheme that is said to have harmed humanity. One single act of murder does not seem to be an act of ethnic cleansing, and yet it is the relatively minor perpetrators of single acts with which recent international criminal courts have concerned themselves. But the moral outrage against genocide, despite how much I would otherwise support it, does not easily translate into the specific elements of the crime that must be proven in a court of law. We cannot prosecute on the basis of our moral outrage alone. This is especially true of cases in which a minor player is accused of genocide, because his or her acts were part of a larger genocidal campaign, and yet the individual defendant did not personallyhave the intention to destroy, in whole or in part, an entire group of people.[[#_ftn1|[1]]]

Since a crime against humanity is just the sum of individual crimes such as murder, there is no moral distinction between the collective crime and the individual ones that constitute it. Second, there is no brightline as to how many criminal acts must occur in order for a crime to be classified as a crime against humanity. There is no threshold number of killings at which point a criminal gang becomes a genocidal regime, making it impossible to morally differentiate crimes against humanity from normal crimes. Lastly, even if a crime against humanity can be defined in terms of a systematic state-sponsored policy, it is still impossible to establish individual culpability for collective criminal acts. May 2 concludes:
“The thesis of this part of the chapter is that the three uncontroversial elements of crimes against humanity do not sufficiently link the acts of an accused minor player, such as Tadic, to the larger international crime. These three elements are that the crime be (1) directed against a civilian population, (2) part of a State or group policy, and (3) systematic or widespread. These elements all make reference to collective categories such as civilian populations, group plans, and systematic and mass action. Yet, none of these elements clearly links the acts of an individual to the collective crime in a way that will support prosecution of that individual. In analyzing these elements, international courts and legal theorists have continued to try to fit crimes against humanity into the mold of domestic criminal law categories that were designed to establish the elements of individual criminal acts.[[#_ftn2|[2]]]

[[#_ftnref1|[1]]] Larry May, Crimes Against Humanity: A Normative Account, Cambridge University Press, 2004
[[#_ftnref2|[2]]] Ibid.


I negate. Ought is “used to indicate a moral obligation.” Prefer this interpretation for two reasons. First, desirability conceptions of ought are circular. Derek Parfit writes:

“According to desire-based theories, such reasons would have to be provided by facts about what would fulfill our present desires. If, after informed deliberation, we want future happiness as an end, this fact could give us instrumental reasons to have certain other desires, since it would give us reasons to want whatever would make us happy. But the fact that we had this desire could not be truly claimed to give us a reason to have it. Desires cannot be self-supporting. Our wanting happiness as an end could not give us a reason to want happiness as an end.”[[#_ftn1|[1]]]

Second, desirability frameworks presuppose a consequential calculus that could not function given the resolution’s lack of context or provision of consequences of the resolutional action. This problem still exists with context since it is impossible to predict the future outcomes of any given action. Justifying a moral obligation instead requires that we examine the institutional obligations of the government, and so avoids this calculability problem. Thus, the affirmative has the burden to prove that submitting to the jurisdiction of an international court is morally obligatory. If the resolutional action is prohibited or merely permissible, you negate. So I contend that it is not obligatory for the state to submit to international law. First, it is impossible to have a positive duty towards others without accepting an infinite and unsustainable obligation. Jacques Derrida writes:

“As soon as I enter into a relation with the absolute other my absolute singularity enters into relation with his on the level of obligation and duty. I am responsible to the other as other, [and] I answer to him and I answer for what I do before him. But of course, what binds me thus in my singularity to the absolute singularity of the other, immediately propels me into the space or risk of absolute sacrifice. There are also others, an infinite number of them, the innumerable generality of others to whom I should be bound by the same responsibility, a general and universal responsibility. I cannot respond to the call, the request, [or] the obligation, or even the love of another without sacrificing the other other, the other others. As a result, the concepts of responsibility, of decision, or of duty are condemned a priori to a paradox, scandal, and aporia.”[[#_ftn2|[2]]]

This is especially true in the case of nations as states exist due to the reciprocal give and take relationship between the government and citizens. Once the state acquires an obligation towards outsiders the reciprocal relationship through which the state exists ceases to exist, destroying the state as a practical entity. Thus, the state does not have the obligation to promote global justice. Second, even if the United States has a positive obligation toward other nations, this obligation would not necessarily justify obliging the United States to take the particular action advanced by the affirmative. This action would merely be permissible since the action itself is not obligatory as per the availability of alternative courses of action to fulfill this higher obligation. To say that no alternatives to affirming exist would entail a negative existential claim, the veracity of which it is impossible to demonstrate. Thus it is not obligatory to submit to an international court, and so I negate.

[[#_ftnref1|[1]]] Climbing the Mountain (DATE) Derek Parfit - Oxford University, Philosophy Professor.
[[#_ftnref2|[2]]] Jacques Derrida. The Gift of Death. Trans. David Willis. (Chicago: The University of Chicago Press, 1995) p. 68


A. Uniqueness – The ICC has a strong anti-Israeli bias and would prosecute Israel for alleged war crimes committed in the Gaza strip if given the opportunity. Philp in ’09:
For Israel, the clearest example of distorting existing principles of international law, as part of a political agenda, is the inclusion as a war crime of: "the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies". This particular offense represents neither a grave breach of the Fourth Geneva Convention, nor does it reflect customary international law. The inclusion of this offense, under the pressure of Arab states, and the addition of the phrase "directly or indirectly," is clearly intended to try to use the court to force the issue of Israeli settlements without the need for negotiation as agreed between the sides. Selective lists of crimes: The list of crimes included in the court's statute is highly selective. [does not include o]ffenses such as terrorism and drug-trafficking are not included, because of political disputes over their definition and scope. The paradoxical result is that a state acting against acts of terrorism may find itself under the scrutiny of the court for the way it exercises its right of self-defense, while the terrorists themselves are outside the court's jurisdiction. Appointment of judges: One [further] area in which Israel fears that political discrimination is likely is the appointment of judges to the court. Such appointments are, according to the statute, to be made having consideration to "equitable geographical representation." This formula reflects the standard mode for elections in UN organs based on the UN regional groups system. As Israel is the only UN member state which is not accepted as a full member of any of the regional groups in the system, it seems that no Israeli candidate - however competent - could be elected as judge.[[#_ftn1|[1]]]

B. The Link – If the ICC recognizes Palestine as a de facto authority it can try cases against Israel without Israeli consent. Philp 2:
When Palestinian groups petitioned the ICC this month, its prosecutor said that it was unable to take the case because it had no jurisdiction over Israel, a nonsignatory to the court. Now, however, Luis Moreno-Ocampo, the ICC prosecutor, has told The Times that he is examining the case for Palestinian jurisdiction over alleged crimes committed in Gaza. Palestinian groups have submitted arguments asserting that the Palestinian Authority is the de facto state in the territory where the crimes were allegedly committed. “It is the territorial state that has to make a reference to the court. They are making an argument that the Palestinian Authority is, in reality, that state,” Mr Moreno-Ocampo told The Times at the World Economic Forum in Davos. States that are party to the treaty can refer cases of crimes committed by their citizens or on their territory. Cases involving the citizens or territory of a country that has not signed up to the court can be referred by the United Nations Security Council – as in the case of Darfur. Ivory Coast set a precedent as the first nonstate party to accept the ICC’s jurisdiction over alleged war crimes on its territory. It signed the Rome treaty but never ratified it. In 2005 it lodged a declaration with the court accepting the ICC’s jurisdiction over crimes committed there since September 2002. Palestinian lawyers argue that the Palestinian Authority should be allowed to refer the cases in Gaza on this same ad hoc basis – despite its lack of internationally recognized statehood.[[#_ftn2|[2]]]

The Obama administration supports a sovereign Palestinian state and hence the U.S.’s submission to the ICC will push the court towards recognizing Palestine as such. Recognizing Palestine as a legitimate authority will thus allow the ICC to fulfill its desire to prosecute Israel. Pakistan News on April 17th ’09:
President Barack Obama’s Mideast envoy said Friday that a “two-state solution is the only solution” to the Israeli-Palestinian conflict, highlighting stark policy differences between the U.S. and Israel over the idea of Palestinian statehood. The envoy, George Mitchell, spoke after meeting with Palestinian President Mahmoud Abbas at his West Bank headquarters. Mitchell is here on his third trip since being named by Obama, and on Thursday met for the first time with Israeli Prime Minister Benjamin Netanyahu, who has misgivings about establishing a Palestinian state. An official in Netanyahu’s office said that in a meeting with Mitchell on Thursday, the Israeli leader expressed concern that if such a state is set up, the Islamic militant Hamas group could take over the West Bank, as it overran Gaza in 2007. The experience of Israel withdrawing from territory, only to have it controlled by Palestinian extremists “is not going to be repeated,” said the official who spoke on condition of anonymity because the talks were not public. However, Mitchell struck a firm tone on Friday, after his meeting with Abbas. He said establishing a Palestinian state alongside Israel is a national interest of the U.S., not only of the people in the Middle East. He said the Arab peace initiative, which offers Israel full recognition by the Arab world in exchange for full withdrawal from occupied territories, should be part of future peace efforts. “This conflict has gone on for far too long, and the people of this region should no longer have to wait for the just peace that guarantees security for all,” Mitchell said. “The U.S. is committed to the establishment of a sovereign, independent Palestinian state, where the aspirations of the Palestinian people to control their own destiny are realized[[#_ftn3|[3]]],” he said.

C. Impacts
1. Conflict escalation. Far from reducing the number of war crimes committed, prosecuting Israel will give its far right political ammunition and intensify the Arab-Israeli conflict, resulting in more deaths. Socol in ’09:
The 2006 Lebanon War solidified for Israelis a feeling of impotence and helplessness that very much contributed to its Gaza operation. War crimes trials for Israeli soldiers would seal the fate of "Cast Lead" for the public as one more failure. Trials would give credence and support to the paranoia of the far-right in Israel, and their incoming governing coalition would be immensely strengthened. At a time when moderates have so much hope that Obama will part ways with Bush, Netanyahu may part ways with Olmert, leaving us with the same situation, the roles merely reversed. While those soldiers may be criminals, a prosecution by the ICC (or, again for some reason, by the Spanish) represents a potentially catastrophic failure to see the big picture. Israelis will not make concessions to Palestinians if they feel that their ability to defend themselves has been jeopardized, period. ICC prosecutions, no matter how justified, must be postponed indefinitely.[[#_ftn4|[4]]]

And, prosecuting Israel will kill U.S.-Israel relations which is key to preventing total war between Israel and Iran. Hearld on April 17th ’09:
On Iran, US and Israeli differences as they currently stand are irreconcilable. While Obama seeks mutually respectful dialogue with the Iranians and is prepared to offer a basket of carrots, both Netanyahu and President Shimon Perez are [Israel is] threatening preemptive strikes on Iranian nuclear facilities. Perez admits, though, that Israel can’t proceed without a green light from Washington, saying, “We certainly cannot go it alone, without the US. And we definitely can’t go against the US.”[[#_ftn5|[5]]]

2. Turns case. The DA turns the AC because prosecuting Israel would effectively delegitimize the ICC, link-turning all of their arguments. Dershowitz in ’09:
Were it to open an investigation of Israel, the ICC would be violating the cardinal principle that must govern all international prosecutions: namely, that the worst must be prosecuted first. It would also be violating its own rules which mandate that the International Criminal Court will not become a substitute for domestic courts…The prosecutor of the ICC must resist pressures -- from the United Nations, from radical ideologues and from other biased sources -- to apply a double standard to Israel by singling the Jewish state out from among law-abiding democracies for a war crimes investigation. No international court can retain its credibility if it inverts the principle of "the worst first" and instead goes after one of the best as one its first.[[#_ftn6|[6]]]
This turns the AC because once the ICC loses its credibility its existence will actually reduce the likelihood that the aff will solve its own impacts.

[[#_ftnref1|[1]]] Catherine Philp, Prosecutor looks at ways to put Israeli officers on trial for Gaza 'war crimes', The Times, Feb 2 2009, http://www.timesonline.co.uk/tol/news/world/middle_east/article5636069.ece
[[#_ftnref2|[2]]] Ibid.
[[#_ftnref3|[3]]] A Pakistani News, Palestinians ask Barack Obama’s envoy to pressure Israel, April 17 2009, http://www.apakistannews.com/palestinians-ask-barack-obamas-envoy-to-pressure-israel-115890
[[#_ftnref4|[4]]] Max Socol, Should IDF Soldiers Be Prosecuted for War Crimes?, JewCy, Feb 2 09, http://www.jewcy.com/post/should_idf_soldiers_be_prosecuted_war_crimes
[[#_ftnref5|[5]]] US-Israeli relations on shaky ground, Linda S. Heard,Online Journal Contributing Writer, Apr 17, 2009, 00:11
[[#_ftnref6|[6]]] Dershowitz, Alan For the International Court to Work, the Worst must come First Huffington Post, 2/10/09