Rome
Similarly, broad authority by an International Criminal Court may create disincentives for States to handle problems that are their responsibility. Political and financial heads will be as willing to pass the penalty as they are willing to pass the buck. No one wants, on their watch, the negative exposure that tough decisions bring.
Once responsibility is separated from action, many may find they are free to meddle in others' affairs without paying any pound of flesh. Because this global court will be about individuals, not just nation states, the scene is set for mischief.
Will "crimes against humanity" be clearly defined and
understandable to all? Or will they, like the infamous Commerce
Clause in the United States' Constitution, be stretched like spandex
to whimsical and arbitrary jurisdictions? Will they, as that clause
has done in American courts, haul the deepest pockets and the
richest assets into a world redistribution system thinly veiled as
"justice?" Will the Court become yet another tool of global social
engineering, an expanded forum for global legalized plunder?
Inquisition-like, will witch hunts root-out "undesirables" such as those whose "patterns of consumption" are not the mandated behavior of the obedient global citizen?
These are not the rhetorical questions of an alarmist. These are the reasonable questions of a lawyer who knows all too well that the devil is in the details and that the other nations who would be party to this statute do NOT have the cultural backdrop of a rule by law wherein the individual is the fountainhead of his own inalienable rights.
By one perspective, the United Nations is 53,744 bureaucrats in search of causes. By ANY
perspective, the fresh opportunity to haul individuals before a global court is an opportunity ripe
with moral hazards.
Is this author paranoid and 'touchy about sovereignty' to feel discomfort with that blandishment? Is it paranoid of France and the U.S. to work to limit the reach and independence of such a tribunal?
Let me see. The core of human nature has never been a pretty sight. Basically, if a person CAN, he will attempt to prosper at the expense of others. The LAW may be the common force to protect persons, liberties, and properties, but human nature will attempt to pervert the law by stupid greed and false philanthropy.
Could this happen? Slavery and tariffs are concrete historic examples of law being perverted into an instrument of injustice and an instrument of plunder. Legislators and lawyers viewed both these issues as ones in which it was NECESSARY to supersede the sovereignty, the rights, of the individual. So, they did.
Thus, human nature and its own heart of
darkness is at the heart of the big-power
dispute on jurisdiction. Of the five
permanent members of the U.N. Security
Council, only Britain 
supports a
completely independent court. So far, the
United States wants cases referred to the
court's prosecutor by the Security Council
alone, where the U.S. wields (currently)
one of five vetoes.
"Global Court
Is No Done
Deal" was an
article in The
Washington
Times, p.A15,
15 June 1998,
that addressed
squarely this
difficult issue of sovereignty. Author Betsy Pisik wrote, "The
question of sovereignty -- of, say, an American soldier being brought
before an international court -- is a major issue. ...Sen. Jesse Helms,
North Carolina Republican and chairman of the Foreign Relations
Committee, has said that if any chance exists for an American to be
tried before the court, the treaty will be "dead on arrival" when it
comes before his committee for ratification. Sen. John Ashcroft,
Missouri Republican and a possible presidential candidate in 2000, announced Friday that he was
forming a coalition of more than 50 conservative groups to oppose the court's creation. "In its
current form, the proposed [International Criminal Court] neither reflects, nor guarantees, the
protections of the Bill of Rights. ...James Madison would be appalled," said Mr. Ashcroft. "When
Americans learn more about the ICC, they will be. too."
Sen. Jesse Helms is no ordinary U.N. watcher, so it is best to heed where his lines in the sand are drawn. Helms does not want the U.N. dismantled, he wants it saved by successful reform. As Helms wrote, "Successful reform would achieve the twin goals of arresting U.N. encroachment on the sovereignty of nation-states while harnessing a dramatically downsized United Nations to help sovereign nations cope with some cross-border problems." He added, "U.N. reform is about much more than saving money. It is about preventing unelected bureaucrats from acquiring ever-greater powers at the expense of elected national leaders. It is about restoring the legitimacy of the nation-state." [Foreign Affairs, p. 4-5, September/October 1996]
So, we are back to human nature and its insatiable appetite for MORE legalized plunder through
any newly unleashed, never accountable, bureaucracy. Of course, each violation of sovereignty
will be NECESSARY. Certainly, the 174 pages of the draft statute reveal the potential for
bureausclerosis at an advanced stage early on in the disease. When you remember that this
bureaucracy will all be staffed with lawyers, heart seizures may strike first.
In April, the world saw how the U. N. focused its energies when it came to murder and the pursuit of punishment.
The United Nations "reported that Iraqi dictator Saddam Hussein had executed at least 1,500 last year, including political foes whose families had to pay for the bullets used before they could collect the body." [Murder and the UN, Wall Street Journal, 21 April 1998] The U.N.? They are not pursuing punishment.
But the U.N.'s highest judicial body did attempt to intervene in a single execution scheduled in the state of Virginia. This accused man had claimed Satan made him rape a woman before stabbing her in the neck five times. THIS was the "international cause" that the U.N. pursued. One death penalty drew fire. 1,500 deaths drew a yawn.
Such focus does nothing to encourage confidence in U.N. handling of greater judicial scope. Now that the United Nations Charter has been reinvented to promote the security not of states but of citizens, will the name change to United Citizens? Is EVERYMAN now a potential criminal before the global court?
With no jury trial and no due process, will the real global terrorism become that of judicial activism? Like mafias interested in fatted economies, judicial activists have no interest in the man with the shallow pocket or the independently impoverished.
The pursuit of punishment might look very much like the old, familiar pursuit of power.
"One thing is absolutely clear; any establishment of the court will require cession of some aspect of sovereignty. We can't have a court without states giving up part of their sovereignty."
The European Union delegate continues with the admission that
"After 50 years, we are ready to give up sovereignty in Europe."
Delegates assembled in Rome need to know that Americans are
not ready to give up their sovereignty.
Because in America, government is empowered by the consent of the governed, expressions by appointed bureaucrats must be seen as nothing more than the wishes of the administration; consent must come from the people through their elected representatives. The people of the United States will never allow their elected Senators to ratify any version of an International Criminal Court that supersedes or compromises the U.S. Constitution.
Americans are as eager as anyone else to bring to justice perpetrators of genocide, and international terrorism. Americans are not, however, ready to surrender national sovereignty to an international body of appointed bureaucrats who may define those terms to serve political objectives. The UN Security Council now has the power to create ad hoc tribunals to prosecute such crimes. There is no need for a permanent body to do what may be done already.
It is clear that the proponents of the ICC envision a broader purpose for the permanent body than simply the prosecution of war crimes. At the Preparatory Committee meeting in Geneva, Ms. Mona Rishmawi, UN Independent Expert on Human Rights, revealed her vision for the ICC when she said:
"The whole reason we need an international court is that national courts have not done enough, particularly to protect the rights of the woman and girl child."
Professor Abasaad, from the former Yugoslavia, added his view:
"Here lies the great potential of the ICC: international law has created a huge body of norms, but no means of enforcing them. The ICC will finally present a mechanism for enforcement of those norms. The ICC would determine what the elements of various new crimes are, and then set about enforcing these newly defined crimes."
Every nation should be outraged by the idea of an international body of appointed bureaucrats
assuming the power to define international norms and crimes for which citizens of sovereign
nations may be prosecuted. America's system of justice is set forth in the U.S. Constitution,
which does not provide any authority for an International Criminal Court. People who have not
yet realized the freedom that arises from a system of government empowered by the consent of
the governed, may be willing to trade enslavement to a national dictator for enslavement to a
global dictator. America will accept neither.
The World Trade Organization is already empowered to impose trade sanctions upon sovereign nations. The Kyoto Protocol to the Framework Convention on Climate Change will empower another collection of UN bureaucrats to regulate energy usage in developed nations, and to dole out dollars from developed nations to the developing nations that behave themselves according to the dictates of the international bureaucrats. The Convention on Biological Diversity, the Commission on Sustainable Development, and the Convention on Desertification establish policy, or "international norms" that can potentially govern the most intimate detail of the lives of every citizen in every sovereign nation.
The International Criminal Court is the instrument needed to give the force of law to all these policies and international norms.
Government is defined by its ability to create laws, impose taxes and enforce laws. The UN has created a massive body of international law. It is working diligently to expand its power to impose taxes. The ICC will provide the power to enforce its laws. The UN's vision of global governance is, in fact, world government.
Moreover, it is a government that is not empowered by the consent of the people, but instead, it is
empowered by its own "enlightened" vision of how the world ought to be. Every human being is
born free, and almost immediately, enslaved by some form of government. The UN should be
working to help people realize individual freedom, not working to enslave them..
Speaker after speaker has risen to affirm
the need for a permanent International
Criminal Court, and then proceeded to
describe a methodology in direct conflict
with the previous speaker. Igvar Raig,
of Estonia says "There is no doubt that
we need a permanent court...," and then
says the prosecutor should have
authority to proceed "on his own
initiative" against "complaints from the
widest possible number of sources."
Bill Richardson, from the United States says that the creation of an International Criminal Court is "the real aspiration of the past fifty years," and then says that "granting a prosecutor the right to initiate investigations...is unrealistic and unwise." These sharp differences of opinion exist on virtually every one of the thousand brackets that remain in the draft proposal. Perhaps the delegates should revisit the first and most fundamental question: does the world really need an International Criminal Court?
Many, if not most, of the speakers so far, have referred to the ad hoc tribunals created under the authority of Article VII of the UN Charter such as the Nuremberg and Tokyo Tribunals, and pointed to their success at prosecuting "war crimes." If such crimes, described as "core crimes" of genocide, crimes against humanity, and war crimes, are the object of prosecution by the new court, why should there be a permanent court when ad hoc tribunals have served the purpose in the past?
If the objective is limited to the prosecution of "core crimes," there is no need for a new, cumbersome, expensive, permanent UN bureaucracy; "core crimes" can be prosecuted under existing authorities with proven procedures. Such ad hoc tribunals avoid all the dangers that are inherent in the creation of any new bureaucracy, especially one endowed with the expansive authorities proposed in many of the bracketed draft proposals.
Who will define "crimes against humanity," for example? Will some future ICC Commission consider carbon dioxide emissions from automobiles in America to be a crime against the citizens of Small Island States? Will some future gathering of international delegates decide that Mexico's drug exports are a crime against inner-city humanity? Is it a crime against humanity to force pregnancy termination in overpopulated China? Or will it become a crime at the discretion of future, nameless, unaccountable bureaucrats? Environmental organizations already claim that harvesting timber from the rainforests of Brazil is a crime against humanity. Is it now -- or will it become -- a crime to employ teen-agers in a soccer-ball factory in Asia? Who will make these decisions in the future? To whom will those decision-makers be accountable?
The most casual reading of the bracketed proposals clearly reveals that many delegates want, indeed, expect the ICC to become -- if not initially, in the near future -- the enforcer of all international norms. All nations should think twice before surrendering their national sovereignty to a group of UN bureaucrats who have the authority to dictate the behavior of national citizens.
War crimes can be prosecuted without risking a runaway bureaucracy, already eager to impose its views on the world without regard for the consent of those who must comply.