Dr Milan Tepavac
[EMAIL PROTECTED]
10 th May
2002
The United States of America definitely decided not to ratify
the Statute of the International Criminal Court (ICC) and, thus, will not
neither recognize nor co-operate with it in any way. President Bush's
administration communicated this decision to the Secretary-General of the United
Nations at the same time when exerting brutal pressure on Yugoslavia to
"deliver" immediately all Serbs and state's documents demanded by the illegal
so-called International Criminal Tribunal for Yugoslavia (ICTY). The same US
envoy, Pierre-Richard Prosper, who is wandering through Yugoslavia, threatening
and blackmailing, is in charge of explaining to the world why the US is
categorically against the ICC.
And that is not all. President's Clinton
signature on the Statute was revoked (a move without precedence in international
treat-making). There is even a legislation proposal in the Congress to punish
those states, which co-operate with the ICC. The President will be authorized to
use even force if an American falls in the hands of the Court...
The Basics of the ICC
The Statute of the ICC was adopted at
the UN diplomatic conference of member-states in July 1998 in Rome. Since up to
now over 60 states ratified it, it will come into force on July 1 of this year.
Yugoslavia ratified it on June 22, 2001 and is published in the "Official
Gazette of the FRY" No. 5 of June 27, 2001. The seat of the Court will be at The
Hague.
Under the provisions of article 5 of the Statute, the Court will have
jurisdiction with respect to the following crimes: genocide, crimes against
humanity, war crimes and the crime of aggression, as these crimes are defined in
the Statute. One has to have in mind always the fact that the ICC is
complementary to national courts which have primary jurisdiction.
As a
matter of fact, the Court has no jurisdiction over aggression because the
question of aggression was at the conference postponed for seven years after
coming into force of the Statute. Namely, it was not possible to reach an
agreement on that question in Rome - neither on the definition of the term nor
on the jurisdiction of the Court over this gravest international crime from
which, as a matter of fact, all other crimes come from. So, it was repeated what
had been done before: the Statute of the ICTY excludes its jurisdiction with
respect to the crimes against peace, such as aggression, because - in all
probability - the aggression of Nato on Yugoslavia was already anticipated. So,
the Statute of the illegal ICTY was a model for the ICC: the great powers, first
of all the US, are free to do whatever they wish; they are above the law.
When we talk about the ICC we have to keep in mind a very important fact:
under article 11 of the Statute, the Court has jurisdiction only with respect to
the crimes committed after the Statute coming into force, that is after July 1,
2002. What happened before this date is not in the competence of the Court as if
it never happened! There was no Hiroshima, there was no Nagasaki, there was no
Dresden, there was no Korea, Vietnam, Cambodia, Indonesia, East Timor,
aggression on Yugoslavia, Afghanistan, Jenin...There were only Yugoslavia and -
Rwanda! Therefore, the authors of the Statute in a way disregarded the general
principle of criminal law that an act is a crime if at the time when it was
committed was a crime under the law. Those who committed or intend to commit
crimes before that date should not be afraid of the Court.
Let us repeat
that the Court has jurisdiction over genocide, crimes against humanity and war
crimes as those crimes are defined by the Statute (articles 6, 7 and 8). But,
under article 21 - and I find it important - the Court may apply other sources
of international law such as applicable treaties, general principles of law and
its previous decisions.
The Breaking up of Allies
With regard to this Court there
is an open disagreement, even conflict, between the US on the one side, and
Canada and European Union on the other side. Canada not only ratified the
Statute, but also was one of the most eager proponents of the creation of an
international criminal court. All other states members of EU also hastily
ratified the Statute, including even Great Britain and Germany.
All the time
Americans were reserved to the very idea of establishing one permanent
international criminal court. They participated at the Rome conference, but not
in order to contribute to realization of the idea, which is centuries old among
international lawyers, but to undermine it. They succeeded only partly, for
example excluding the aggression from the competence of the Court for
unspecified period of time. Under the heavy pressure of its allies president
Clinton even signed the Statute but at the same time letting to be known that he
will not send it to the Senate for the ratification.
The main US objection
to the ICC is to protect its military abroad and "doing business there". In a
press briefing, Defense Secretary Donald Rumsfeld explained that the
Administration had "a number of serious objections to the [International
Criminal Court] - among them, the lack of adequate checks and balances on powers
of the [Court's] prosecutor and judges; the dilution of the U.N. Security
Council's authority over international criminal prosecutions; and the lack of
any effective mechanism to prevent politicized prosecutions of American service
members and officials" But, there are other objections, thus summarized in the
Congress debate:
"We should not under any condition give the authority that
our courts have over us, over the U.S. citizens, over this geographical
location, over this Nation. We should not at any time give even a small sliver
of that authority to an international organization that is permanent in
structure, that in fact claims higher authority over our citizens than our own
court system is allowed by our own Constitution.
"Jurisdiction. Think of the
jurisdictional issues. This World Court wants jurisdiction, for example, over
World Heritage sites as designated by the United Nations. The reason there is so
much momentum right now for the World Court is we all want to get bin Laden. Bin
Laden is a terrible, terrible criminal, but the fact is that bin Laden will come
and go. He will over a period of time be eliminated, and this court will be
looking for new ventures, new venues under which to exercise its authority, and
I will tell my colleagues where they are moving next.
"The next place they
are going to move is on the environment. Now, we all want a clean environment.
That is not the issue we are talking about here. The issue is should we allow a
court in Rome, a World Court, the jurisdiction to charge somebody say in
Lynchburg, Virginia, with an environmental violation as a crime against
humanity?
"For example, let us say that a gasoline truck driver is driving
recklessly. He wrecks his tanker and the gasoline spills on the interstate near
Lynchburg, and it goes into the water and causes some harm in the water. Should
that person be subject to the courts of the United States of America? Well, of
course. That is our Constitution. That is our Criminal Code. That is what the
court system is designed for."
"When that truck driver, for driving
recklessly and causing an environmental spill, when that truck driver is
arrested, he or she has certain constitutional rights, and they have a right to
a jury. They have a right to their Miranda warnings, et cetera, et cetera, et
cetera. Well, under this proposal of a World Court, we cede that authority, and
over time we will give more and more or maybe not give it, they will claim they
can take more and more authority because we signed the treaty creating
it."
The next thing we know the World Court is going to be sending
investigative enforcement officers to Lynchburg, Virginia, to take a look at
this accident and decide whether or not the World Court should indict that truck
driver who had that environmental spill. This is not exaggeration. This is
exactly where this thing is headed." ...
"We may very well find a world
court that decides they are going to launch a criminal investigation into the
City of Denver because the City of Denver, Colorado has air pollution coming
from vehicle emissions that pollutes the air to an extent that they think it is
a violation against humanity."
Russia, China, India…
Russia, China and India are not
categorically against the ICC - they even reproach the US for its stand - but
are not for it either. They wait to see...Putin is afraid of it because of
Chechnya; China's record on human rights is not encouraging for joining the
Court. So is India because of Kashmir and its conflict with
Pakistan...Therefore, it remains to be seen whether the creation of that
institution was the idealists' undertaking or an effective tool in political
reality in an effort to better protect human rights in contemporary world.
