by 
www.artel.co.yu
Date:23 May 2002
AMERICA DOES NOT RECOGNIZE THE INTERNATIONAL
CRIMINAL COURTDr 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signature on the Statute was revoked (a move without precedence in international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.
