It was the United States which called for an unrecorded vote on July 17, 1998 that led to the passage of the Final Statute establishing the United Nations International Criminal Court. For the first time in history since the Roman Empire, whose legal jurisdiction was over most of the known world at that time, a world court is being established on a global basis to try individuals for the four "core" crimes which the court is empowered to rule on: genocide, crimes against humanity, war crimes, and aggression (undefined). Like all United Nations agendas, the international criminal court not only empowers the international system but fulfills a major void which the framers did not include when the basic United Nations Charter passed. The road to creating the ICC is most interesting. There are a number of actors who need to be discussed so that the complete picture of what the court is, how it will function, and what it means to Americans can be understood. These actors are: international law, Dr. Benjamin Ferencz, the Group of Seven/Group of Eight, and the role of non-governmental organizations.
International law is the glue for all of what the United Nations is doing and setting in place with regard to world government. Just as each country has their own set of laws--civil, criminal, penal, family commercial, etc., so too, does the United Nations by way of international law which is over 300 years old. Originally based on the law of nature coming from divine authority--the law of God, it was Dutch jurist, historian, theologian, and diplomat Hugo Grotius who guided modern international law to natural law based on universal reason. His writings are considered the foundation for modern international law. 1
The next major legal instrument in the evolution of international law was the League of Nations which the United States did not ratify. This was followed by the United Nations Charter which was ratified by our Senate in 1945. According to Edison W. Dick, a member of the UNA/USA-United Nations Association/USA, who spoke at a workshop at the United Nations 50th Anniversary Conference in September, 1995 in Washington, D. C., "More international law has been developed through the UN system during the past fifty years than in the entire previous history of mankind. The UN has been directly responsible for the conclusion of more than 465 multi-lateral agreements covering virtually every area of state interaction and human endeavor from the Law of the Sea to narcotic drug control, from the environment to international trade and copyright law, from arms control to the advancement in women's rights....The development of international law to the extent we know it today would not have been possible outside the framework of the UN." He furthermore cited the International Law Commission "which has played a more pronounced role in the General Assembly's efforts to foster the codification of international law."
In 1987, the United Nations began to consider, "A Comprehensive System of International Peace and Security" put on the agenda by the Soviet Union since Michael Gorbachev had written a widely- publicized article calling for "a system for a universal legal order which will ensure the primacy of international law in politics." In addressing the United Nations in 1988 Gorbachev said, "Our ideal is a world community of States which are based on the rule of law and which subordinates their foreign policy to activities to law." In 1990, French President Francois Mitterand said, "The time has come for international law to reign. We are faced with a choice between the law of the jungle and the rule of law. President Bush addressed the General Assembly several days after Mitterand and said, "It is in our hands...to cap a historic movement towards a new world order and a long era of peace. We have a vision of a new partnership of nations that transcends the Cold War." Four months later on January 16, 1991, Bush declared to the American people in his State of the Union address, "We now have before us the opportunity to forge for ourselves and for future generations a new world order, a world where the rule of law, not the law of the jungle governs the conduct of nations." International law was increasingly being recognized as a vital component for a peaceful world. 2
Dr. Benjamin Ferencz
A key figure at the International Criminal Court proceedings was Dr. Benjamin Ferencz, a man who has worked tirelessly for over fifty years to get an international criminal court established. As such, he was allowed to address the ICC Plenary during the first week of the proceedings. Dr. Ferencz has written over a half dozen books on the subjects of aggression, an international criminal court, international law, and planethood. A graduate of the Harvard Law School, he served in the Army where he liberated several German concentration camps and served as a war crimes investigator. At the age of 27 he was designated the Chief Prosecutor for the United States in the Nuremberg war crimes trial against SS extermination squads responsible for the genodical murder of over a million people. Dr. Ferencz has been active in many peace and international law organizations and is an accredited non-governmental observer at the United Nations.
In his book New Legal Foundations for Global Survival, Dr. Ferencz suggested that the way to add to the United Nations structure without having to amend the UN Charter, which he said would be very difficult thing, would be to establish independent agencies. When I asked him if the ICC was being established as a result of his suggestion, he gave an absolute yes. In 1971, Joseph Clark, a former president of the World Federalist Association wrote about the same idea, "Still another approach is to advance step by step toward global governance [JV: government], using the UN but without trying to amend the Charter [is to] [l]et the UN establish new agencies such as an International Criminal Court. By means of these voluntarily funded functional agencies, national sovereignty would be gradually eroded until it is no longer an issue. Eventually a world federation [JV: government] can be formally adopted with little resistance." 3
I asked Dr. Ferencz to describe the kind of position and importance that the international criminal court had in international law. Calling the court a "missing link" in international law, he said it was a "foundational cornerstone." Other stones leading up to the ICC he said were the Nuremberg Trials, the creation of the International Criminal Tribunal for the former Yugoslavia in 1992, and the International Criminal Tribunal for Rwanda in 1994.
While Dr. Ferencz can provide all of the rhetoric he wants about the need to try criminals who have committed heinous crimes, it should be noted that he is a "one worlder." On the back of a two page article which he handed out in Rome was an advertisement for the magazine The World Today, which is published by the Royal Institute for International Affairs-RIIA. The RIIA is the successor group to the seven trusts of Cecil John Rhodes which were endowed upon his death. The sole purpose of these trusts was and is to return the "lost colony" of America back to Britain. Rhodes, a mason, believed that there were too few Britons "as too little of the globe was British territory....If we had retained America there would....be millions more of English living. Wars would end too. 4" It is the RIIA which was responsible for the American counterpart, the Council for Foreign Relations, being set up by David Rockefeller. The fact that Dr. Ferencz is affiliated with the RIIA puts a new "spin" on his desire to have an international criminal court. Is he, out of the evil of WWII, trying to protect the world from genocide, crimes against humanity, and war crimes or does he, as a one worlder, have the same vision as Rhodes to return America back to Britain?
The Group of Seven/Group of Eight
Although I was curious about the actions which the Group of Seven-G7 made public in 1996, I did not realize that they were setting up the infrastructure to pave the way for the international criminal court through mutual cooperation between various levels of law enforcement worldwide, extradition procedures, etc.
For most people, the phrase Group of Seven has no meaning because of the lack of understanding as to who they are and the part they play in international affairs. However, since 1975 the leaders of the most industrialized world--United States, Canada, Germany, Japan, Italy, Great Britain and France--have met to discuss global problems and how the world should approach the 21st century. Russia was added in 1998, making it the G8. While the conventional thinking of most Americans is that each country is responsible for their own fate, the Group of Seven stated early on that the "interdependence of our destinies makes it necessary....to work toward mutually consistent economic strategies through better cooperation" (Group of Seven 1998 Joint Declaration, San Juan, Puerto Rico).
Over and over again, I have seen, as I have attended three G7/G8 meetings, a continuous process designed to integrate our countries in every way conceivable. The title of the final Communique or document summarizing the agreements of the Group of Seven leaders from Lyon in 1996 was entitled "Toward Greater Security and Stability in a More Cooperative World." Beginning with that summit and continuing on at the Denver Summit in 1997, the emphasis was for the G7/G8 countries to find a way to work together on mutual international problems. However in 1998 in Birmingham England, the emphasis was entirely different. There was a concerted effort to work together on "common" national problems. This forms a concerted progression to integrate policies and procedures from the international to the national and is another step to integrate the countries of the world into one cohesive unit. For further information, please see my book, Prince Charles the Sustainable Prince, offered through Hearthstone Publishing.
Although the G-7 only handled economic affairs in the beginning, in 1981 they issued their first statement on terrorism. While there have been other statements since then, it was not until the 1996 Lyon summit that the "Forty Points" was issued to fight terrorism. Agreeing to work together as one, the Forty Points include:
In their statement they said they "were concerned about the support given to international terrorism through money and arms, sanctuary and training and violent acts such as hijacking." They further resolved to strengthen and broaden action within the international community to prevent and punish such acts. To follow up the Forty Points" from Lyon, the House passed HR 3953 which enacted many of the G-7's "Forty Points to Combat International Terrorism" and set up a National Commission on Terrorism here in the United States. One wonders if this is the Commission which will be used to coordinate requests through the Central Authority.
At the 1997 Group of Eight meeting in Denver, Madeline Albright announced that the Forty Points had been put in place and that "terrorists would have no place to hide!" In 1998, the final Communique issued by the leaders of the G8 contained stern warnings about combating drugs and international crime, "Globalization has been accompanied by a dramatic increase in transnational crime which takes the form of trafficking in drugs and weapons; smuggling of human beings; the abuse of new technologies to steal, defraud and evade the law; and the laundering of the proceeds of crime." Furthermore, such crimes pose a threat to not only "our own citizens and their communities but also [pose] a global threat which can undermine the democratic and economic basis of societies." The G8 took further actions which include "close cooperation to reach an agreement on a legal framework for obtaining, presenting, and preserving electronic data as evidence while maintaining privacy protection and endorsement of joint law enforcement action against organized crime and welcomed cooperation between competent agencies in tackling criminal networks."
In addition to the above they: asked their ministers to report back by the June, 1999 meeting in Germany on the process of its action plan on high tech crime, money laundering, and trafficking in human beings; asked their Environment Ministers to report back on combatting environmental crime; and stated the need for States to partner with the international community to combat illicit drugs.
Most recently the White House released a statement saying they felt "Drug and firearms trafficking, terrorism, money laundering, counterfeiting, illegal alien smuggling, trafficking in women and children, advanced fee scams, credit card fraud, auto theft, economic espionage, intellectual property theft, computer hacking, and public corruption are all linked to international crime activity" and that they are a "serious and potent threat to the American people at home and abroad [notice the wording]." As a result, they outlined ten initiatives to further US efforts to fight international crime. These include: the International Crime Control Act of 1998 which will contain significant new law enforcement tools for the fight against international crime, (2) complete a Comprehensive Threat Assessment to be completed within the next six months, (3) to organize and hold an International Conference on "Upholding Integrity Among Justice and Security Officials" which will be held within the next six month and hosted by the Vice President, (4) build on the work of the G-8 justice and interior ministers to create the U.S. National Infrastructure Protection Center which will protect interconnected U.S. communications and information systems from attack by international criminals, (5) increase border law enforcement through the deployment of advanced detection technology and investment in new resources, (6) commit to deploy aggressively new tools so that criminals are denied access to U.S. financial institutions, and (7) act on a call by the US for new criminal asset forfeiture regimes worldwide and new asset and new asset forfeiture sharing agreements with international partners, as well as a treaty with the Organization of American States-OAS, this is part of the integration of the Americas through the Free Trade Areas of the Americas signed by Bill Clinton in April).
Non-Governmental Organizations and their Empowerment
The United Nations and the empowerment of its structure has always been facilitated by non- governmental organizations. These are the groups with a "peace can only be through a one world government" philosophy. In New York and in Rome, the International Criminal Court Coalition which represents over 800 non-governmental organizations lobbied for a very independent and strong court.
Some of the groups represented included the world Federalist Movement, Amnesty International, the European law Students Association, Human Rights Watch, Parliamentarians for Global Action, and the Women's Caucus for Gender Justice. As usual, they were funded by many of the one-world foundations such as the John D. & Catherine T. MacArthur Foundation, the Paul and Daisy Soros Foundation as well as the countries of Denmark, Norway, Sweden and the United Kingdom.
According to The Commission on Global Governance, in order for the UN system to expand in every way possible to meet their concept of global governance and to enhance the continued expansion of international law, they "look for the emergence of a group of 'good global citizens' states and representatives of civil society organizations [which] should be prepared to work together and provide leadership." They further state that without this group, "the full potential of the international rule of law as a means for peaceful resolution of disputes will remain unrealized." 5
Several empowerments of the United Nations yet to be fulfilled include a "People's Parliament." Currently through the powers given the NGO's through treaties the NGOs are gathering more and more power to enforce at the local level. Through a number of changes which are taking place, a "People's Parliament" is in place. While it may not have a physical chamber to operate from, it already is operational as a result of the empowerment of NGO's and key recognition being given to other groups which would be a part of the People's Parliament such as professional groups, foundations and multinational and transnational corporations. This is described in Prince Charles the Sustainable Prince.
The Court was given the following powers:
States can "opt-out" for seven years on war crimes (The U.S. is against the fact that there is no opt-out for crimes against humanity.)
*With regard to the ICC being able to exercise jurisdiction over non-state parties, U.S. Delegate David Scheffer said would be a fundamental violation of the principle that states cannot be obligated to a treaty they have not joined. Furthermore the only way a U.S. citizen could be tried at the ICC is if one of its nationals is prosecuted in the state on whose territory the crime is committed does not object. Other inclusions to the ICC include the ability to prosecute both sides of an internal armed conflict and the enlistment of soldiers younger than 15.
The ICC Patterned after English Law
Unlike the jury system in the United States, when individuals are tried at the ICC they will be tried by judges. This system of law is patterned after the British and has grave implications for if the whole world is to be tried by a system incompatible to ours, then it appears that our system will be modified. Furthermore, the judges will come from all over the world. What could it possibly mean--that all the countries of the world have the same type of court system? Any person being tried at the ICC could possibly stand before a panel of judges from Russia, Vietnam, Iran, South Africa, Columbia, Thailand, Burma, North Korea, etc.
Cost of the Court
As mentioned the ICC is being set up as an independent agency of the United Nations. It is expected that the court will receive funding from the United Nations. The final Statute makes it very clear that the court will need to accept voluntary contributions from non-governmental organizations. Can also assume that it will gladly accept corporate donations and monies from private individuals? We can be assured, however, that if human nature is what it is, that those who donate will enjoy "immunity from prosecution."
How the ICC will work
In order for the ICC to work, it will require that all countries lend a helping hand in the form of cooperation. Let us say a foreigner living in Britain is identified as an alleged international criminal. It will be up to the independent prosecutor to issue a warrant for his/her arrest. That warrant will be processed through diplomatic channels and eventually it will be up to the local or state law enforcement system to process the request, assist with any investigation, serve the warrant, arrest the suspect, and house them in a local or state prison facility until they are to be sent to The Hague for trial.
The United Nations has a prison facility inside the Dutch penal compound at Scheveningen. The size of the compound is about to double in order to "accommodate the next wave of anticipated arrests. The facility, which reporters are not permitted to visit" 6 was described recently by inmate Bosanski Samac, currently on medical leave, who was being interviewed. He said he and his fellow suspects "enjoy a common room [which] is equipped with pay TV channels, a dartboard and ping-pong table and supplied with newspapers and the Croatian edition of Playboy." 7
In October 1997, Bill Clinton, in a speech before the United Nations General Assembly called for an International Criminal Court. At the G8 meeting this past May Clinton, along with the other G-8 leaders, called for an International Criminal Court. In Rome, interestingly enough, the Clinton Administration was opposed to the Court, a stance which was at odds with one of its favorite allies, Britain. The chief reason is that the Department of Defense is concerned about the possibility of American soldiers being tried at the international level.
Voting against the ICC along with the United States were some unlikely bedfellows: China, Libya, India, Qatar, Yemen, Iraq, and Israel. The countries of China with its 1.2B people, India with her 800 million people and America with our 500 million people comprise the majority of the people of the world. Only time will tell if this will reduce the power of the Court.
Why would these countries opt out? According to the Final Statute, any country which opts out will not come under the courts jurisdiction. Also it is thought that any country which voted no will not be subject to its Statutes. However, Jesse Helms says this is not enough. In order for America to be fully protected, we will have to withdraw "from all foreign peacekeeping activities and reopen troop-basing agreements with its allies to protect U.S. forces from prosecution by a new global court." 8 These agreements would include guarantees from foreign countries that they would not extradite any U.S. soldier for trial. In addition, "from the American point of view, the prosecutor will be able to charge citizens of countries that do not sign the treaty." 9 This raises an interesting point since the Final Statute is written in such a way as to lead one to believe that a country voting no would not be tried to begin with since the ICC is supposedly only for countries which do not have a developed court system of its own.
Are there other reasons for the U.S. voting no to the ICC? There are some in other countries who feel Bill Clinton should be tried for genocide in the war with Iraq and that Madeline Albright should be tried for not allowing the U.N. to intervene in the Rwandian war. It again appears that the prosecution process will be very "selective."
There is no doubt that there will be many additional types of crime that will be added in the future. The Final Statute was passed giving the ICC jurisdiction over war crimes, genocide and crimes against humanity. The crime of aggression was named but not defined which means the Conference of the Parties will have to meet to provide a definition at a future date. The draft document which the proceedings began with included a clause on terrorism. As a result of its vague and contentious verbiage, it was deleted from the Final Statute. It read
Terrorism means Undertaking, organizing, sponsoring, ordering, facilitating, financing, encouraging or tolerating acts of violence against another State directed at persons or property and of such a nature as to create terror, fear or insecurity in the minds of public figures, groups of persons, the general public or populations, for whatever considerations and purposes of a political, philosophical, ideological, racial, ethnic, religious or such other nature that may be invoked to justify them.
In an interview with Dr. Ferencz, when I asked him if the court would add other crimes in the future, he replied:
In the future we will add many crimes. As I indicated before, everything is global--economic, finance, crimes, terrorism, narcotics, or environment---these are all the problems which can only be dealt with in a global way. Here we are limiting our focus to those which have already been universally condemned --aggression, war crimes against humanity, and genocide. From here we will move on to things like narcotics, terrorism, and environmental deprivations and economic privation--it is really something unjust about having a billion people in the world living in poverty while a football player makes millions of dollars a year. So this irrationality has got to be dealt with in some way and I have no doubt that it will come.
We see the possibilities of this already. Let us not forget that the G7/G8 have been discussing and setting in place the infrastructure to combat international financial crime. Another future crime, which could be construed as obstructing the peace of the world, might be the crime of "aggressive nationalism." French President Jacques Chriac, in 1996, affirmed the Group of Seven's commitment to the United Nations Charter as the cornerstone of an international system. In his Chairman's statement he said, "all forms of discrimination and intolerance, including aggressive nationalism" would not be tolerated. Interestingly President Clinton in his State of the Union address on January 28, 1998 said, "America must stand against the poisoned appeals of extreme nationalism. We must combat an unholy axis of new threats from terrorists, international criminals, and drug traffickers."
For the first time in history, a world body has the right to come into a country and try their citizens if they believe they are guilty of an international crime, whether or not that country has its own legal system to do it in. The fact that an international body has the right to extend their reach into a country and prosecute individuals opens the door to additional "needed" rights in the future in order to carry out its duties to mankind. In addition, the national laws of every country will have to be altered or amended in order to accommodate the request of the ICC to assist with investigation, the serving of warrants, and the imprisonment of criminals. This represents another breach of national sovereignty. Lastly, the treaty "violates a fundamental principle of international law by claiming to bind states that are not signatories. It also undermines the UN Charter by circumscribing the powers of the Security Council in relation to the Court. In essence, the membership of the UN General Assembly, which has never before had binding authority, has assumed the power to indict, prosecute, convict and jail American or any other nation's citizens. Even proponents of the treaty concede the danger of the very independent prosecutor mounting some kind of politically motivated vendetta against, say, the president of the United States." 10
Armageddon set in Utopia
Putting the political aspects of the ICC into perspective, The Wall Street Journal-European wrote,
In principle the court should only proceed when national legal systems are unable or unwilling to do the job. But having watched apparently clear documents like the U.S. Constitution perverted for political ends, the intentions of the treaty drafters are of only secondary concern. Ultimately, the law will be what the judges decide it is, and the paramount question therefore becomes the manner of their selection. Disturbingly, both the judges and prosecutor are to be elected by the state parties to the treaty with every country's vote counting equally, and taking into account such politically correct considerations as 'the representation of the principal legal systems of the world,' 'equitable geographical representation,' and 'a fair representative of female and male judges.'
In summary, the head of the Indian delegation, Mr. Dilip Lahiri said this about why his country voted no to the ICC. Perhaps it really sums up the Frankenstein monster that has been birthed.
We have always had in mind a Court that would deal with truly exceptional situations, where the State machinery had collapsed or where the Judicial system was either so flawed, inadequate or non-existent that justice had to be meted out through an International Court, because redress was not available within the country. If this is our common understanding, and we have always been told that it is, it must follow that the Statute should have been drafted so that it was clear that the ICC was being established to deal with truly exceptional situations. That, however, has not happened. Instead of legislating for the exception, the scope of the Statute has been broadened so much that it could be misused for political purposes or through misplaced zeal, to address situations and cases for which the ICC was not intended, and where, as a matter of principles, it should not intrude. What the zealots have achieved, therefore, is a contradiction in terms: a Court framed with Armageddon in mind is set in Utopia. (emphasis added)Footnotes: