The International Criminal Court (ICC) appears to be a United Nations' institution, but in fact, it is not. For example, the court can indict without the consent or advice of the UN. According to John Rosenthal, in his article, "A Lawless Global Court" (Policy Review, February/March 2004, p. 29), the Rome Statute, which created the court and which was strongly supported by Germany, "amounts in essence to nothing less than a challenge to the preeminence of the UN system in international relations. . . . The ICC constitutes a rival to the authority of the UN and thus has a destabilizing effect on existing collective security arrangements."
It is not surprising, then, that the court's support has come largely from European Union (EU) nations (or nations seeking accession to it), as Part One exposed. This time, we will discover three areas in which the ICC frontally assaults the old world order as established by Israelite nations in the last century.
Universal Jurisdiction: Everyone knows this basic rule from International Relations 101: "Treaties create no obligation per se for states that are not parties to them." Nations that do not sign a treaty are not bound by it. The Rome Statute seeks to turn that old rule on its head by placing all states (and individuals within them) within its jurisdiction. This is called the doctrine of "universal jurisdiction."
Predictably, Germany is the primary supporter of this doctrine. At the initial convening of the Rome Conference (which gave birth to the Rome Statute), the then-German Minister of Justice commented: "The basic German positions—the fundamental building blocks for the court—are well known and unchanged. We are committed to creating . . . a court with universal jurisdiction over the core crimes, including war crimes in internal conflicts." The German position essentially abrogates state sovereignty: The leader of some non-signatory nation, say, in Africa, could face prosecution by a European court—and confinement in a European prison—for his handling of an insurgency within his own nation.
That scenario is not farfetched. In January 2003, French President Jacques Chirac threatened African heads of state in comments at a French-African summit in Paris. He reminded them that they "will have from now on to fear the judgment of the International Criminal Court, which extends its protection to all the citizens of the world." Yes, even those citizens in nations not signatory to the Rome Statute!
In practical application, here is how it works. Imagine that a South American country plunges into civil war. The EU recognizes the insurgents as a nation, thereby internationalizing what is really an internal matter. Then, the new "nation" ratifies the Rome Statute, submitting itself to the ICC. Next, the ICC uses its power, as Rosenthal describes it, "as a sort of judicial or pseudo-judicial instrument of war directed against the state defending its territorial integrity." Lacking any sort of democratic accountability, the ICC can pick whichever side it wants to support and prosecute the leadership of the opposing side.
This scenario is not a pipedream. In the 1990s, the EU extended diplomatic recognition to Slovenia and Croatia during the Yugoslav civil war, turning a national dispute into an international one, followed by ICC prosecutions. Not surprisingly, Germany became the effective ruler of the former Yugoslav territories of Bosnia, Serbia, Montenegro, and even Albania. Imperialism by any other name. . . .
Due Process: The ICC shows total contempt for the principle of due process, as expressed in such Israelite institutions as the Magna Carta, English Common Law, and the American Constitution. For example, the court places defendants in double jeopardy, from which Americans are protected under the Fifth Amendment, which, Rosenthal notes, prohibits "the re-prosecution of an acquitted defendant on the same charge within the same jurisdiction."
In contrast, Article 80 of the Rome Statute "authorizes the [ICC's] prosecutor to appeal an acquittal. . . . Indeed, the court may even retain an acquitted defendant in detention pending appeal." He continues: "The purpose of a double jeopardy protection is to limit judicial authority in order to safeguard defendants from its potential—for instance, politically motivated—abuse. . . . The ICC prosecutor's power to appeal an acquittal suggests nothing so much as a court that is designed to 'get convictions.'"
Financial Support: For any court to be unprejudiced, its financing must be independent. In Israelite nations, general tax revenues support the courts. But how objective could a court supported by individuals, corporations, foundations, and non-governmental organizations be? Such support would amount to "sponsorship" that would surely bias its decisions. A court accepting support by individuals and business entities would in fact be "lobbied" by people or groups bent on influencing its decisions in a particular case. Litigants could never be confident that decisions by such a court were not prejudiced by special interest groups.
The ICC is supported by "assessed contributions" from member nations. Supplementing that revenue stream, however, are voluntary contributions permitted by Article 116 of the Rome Statute. This Article encourages contributions "from Governments, international organizations, individuals, corporations and other entities." Such a provision seems to defy logic—until one considers the greed motivating the founders of the Rome Statute.
Incidentally, and unsurprisingly, Germany assumes responsibility for 20 to 25 percent of the court's costs (about the same level of responsibility the U.S. takes for the UN budget.) Equally unsurprising is the fact that the German Foreign Office announced that Germans would staff "a more or less commensurate portion . . . of the courts' administrative positions." In other words, Germany would both pay for the court and run it. Given this arrangement, it would be surprising if any truly independent, unbiased decisions came from the court!
In essence, the EU-sponsored ICC stands outside the legal and international framework built by Israelite nations during the last century. Its operations pose a threat to national sovereignty; its structure denies established traditions of jurisprudence; and its financing renders impartial decisions virtually impossible. Far from "ending impunity" and extending justice around the world, the ICC threatens to destabilize the established international system. When that happens, war is never far away.
- Charles Whitaker
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