By Henry Lamb
While America slept through the night of July 17, 1998, the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court created the final essential mechanism to establish global governance. By a vote of 120 to 7 (with 21 nations abstaining), the Conference adopted a new, international Statute which creates, for the first time in history, an international criminal court that has the power to enforce international law.
The new international Statute creates an Assembly of States Parties (ASP) consisting of one representative from each nation that ratifies the Statute. The Statute goes into effect 60 days after it is ratified by the 60th nation. The ASP will elect 18 judges who will serve 9-year terms. The judges will be divided into three Chambers: (1) a Pre-trial Chamber, consisting of "not less than six judges;" (2) a Trial Chamber, of not less than six judges; and (3) an Appeals Chamber, consisting of four judges and the Presidency. The Presidency consists of a President and two vice presidents elected by the judges. The function of the Pre-trial Chamber may be carried out by a panel of three judges assigned to a particular case, or by any one of the three. Pre-trial functions include ruling on jurisdictional matters, issuing warrants or subpoenas, determining issues of jurisdiction and admissibility, and the like. The Trial judges hear, and decide the cases brought before them -- without assistance from a jury.
The new Statute also creates an Office of the Prosecutor who is elected by the ASP for a 9-year term. The Prosecutor, a Deputy and their staff, are responsible for investigating and bringing to "justice" any person accused of an international crime: "the crime of genocide; crimes against humanity; war crimes; and the crime of aggression."
Crimes against humanity are defined to include: murder; extermination; enslavement; deportation or forcible transfer of populations "without grounds permitted under international law;" torture; rape; enforced prostitution; sexual slavery; forced pregnancy; enforced sterilization; persecution against any identifiable group; apartheid; and "other inhumane acts of a similar character."
Interestingly, genocide, crimes against humanity, and war crimes are each defined in a separate article of the Statute. Aggression, however, is not mentioned again, nor is it defined in the final document. In an addendum entitled "The Final Act," however, the Commission to Establish an International Criminal Court is directed to "prepare proposals for a provision on aggression, including the definition and elements of crimes of aggression and the conditions under which the International Criminal Court shall exercise its jurisdiction." The United States objected to this provision declaring that only the UN Security Council can act on matters of aggression under Article VII of the UN Charter.
State Parties that ratify the Statute "shall" cooperate with the Prosecutor; conform national laws to meet the requirements of the International Criminal Court; use national police powers and facilities to capture individuals; and confiscate property when directed to do so by the Prosecutor. Non-participating nations may enter into an ad hoc agreement to participate on a case-by-case basis. Non-cooperative states will be referred to the ASP and/or to the UN Security Council. There is no indication of what the ASP or the Security Council is expected to do in the event of non-cooperation by a State, whether a Party to the Statute or not.
Enforcement authority provides for sentences of up to 30 years for most crimes, and life in prison
for the most severe crimes. The Court has the authority to confiscate assets of every kind. States
Parties agree to use their law enforcement facilities to enforce the court's judgements, and to
house, at the state's expense, the international criminals if so requested.
The United States insisted that the Prosecutor be limited by requiring the specific approval of any state in which an investigation would occur. The rest of the world scoffed at the suggestion. Then the U.S. proposed that the UN Security Council approve all investigations, a procedure that would allow the U.S. to use its veto power to block prosecution of American citizens. Again, the world scoffed. A compromise allows the UN Security Council to request a 12-month delay of any investigation. Accordingly, the U.S. cannot block an investigation of an American citizen. Its veto power could only block a request for a delay. An American on foreign soil, whether military or civilian, cannot be protected by the American government from investigation, arrest, detention, asset-confiscation, or conviction and imprisonment for any crime within the jurisdiction of the court.
The new court is to be financed through assessment of participating nations on the same basis of their assessment to the United Nations. The court has the power to confiscate property and assets of the accused, and to convert those assets to its own resources upon conviction. The court expressly accepts gifts and contributions from any nation, organization, corporation, or individual - a practice that is strictly forbidden by the UN Charter. The Court is directed to establish a "Trust Fund" from which to compensate "victims." The Court has ultimate power to set amounts for such compensation.
As a practical matter, the court will be operated by an 18-member "Bureau" chosen from among the ASP. The court will develop its own rules which must be approved by the ASP. The Statute may be amended only after seven years, by a two-thirds majority of the ASP. Although no record of the final vote was made, ABC News reported that the United States, joined China and Lybia among the seven nations that voted against the Statute.
It is much too early to speculate about what impact this court will have in the world or on America. From the reports received from observers in Rome, it is clear that many of the nations that voted for the court expect to use the court's power to prosecute America, and Americans for a wide range of "crimes against humanity." The official newspaper for the Conference, TerraViva, accused former President Bush of committing "the single worst blood bath of the war [against Iraq]." The NGO Coalition that formed to lobby for the court held a demonstration on the 4th of July in Rome that accused President Clinton of "genocide" because of the economic embargo against Iraq. The International Criminal Court now gives the world the legal instrument it needs to attack the United States for the crimes of success and prosperity.