International Conferences on the Role of the United Nations and World Peace [ICUNP]

The United Nations and Human Rights

University of Regina, Regina, Saskatchewan, Canada

22-25 October 1998

The Statute Treaty Route to World Rule of Law and Global Human Rights:

The Strategy to Establish the International Criminal Court

Roger Dittmann

Professor of Physics Emeritus

CaliforniaStateUniversity, Fullerton, CA92834-6866, USA

Email:

(714) 278-3421; fax -5810

President, U.S. Federation of Scholars and Scientists

UN representative of the World Federation of Scientific Workers

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“.to create a New World Order where the Rule of Law rather than the Law of the Jungle will govern conduct between nations....”

--Republican President George W. Bush “41”
“To hell with international law! You’ve got a choice to make. You’re either for us or against us, and I only hope for your sake you make the right choice”

Republican Senator Alfonse D’ Amato

(New York)

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Abstract: The major significance of the approval of the Rome Statute of the International Criminal Court [ICC] is not the Court per se, but the process by which it was adopted--a process which circumvented the gridlock in the Security Council, the impotency of the General Assembly, and the legitimation crisis of the United Nations--and which handed the U.S. administration one of its most embarrassing diplomatic defeats-a process which will essentially establish an international criminal law legislature [Assembly of States Parties]. While the establishment of the court is not expected to have a major impact on the conduct of warfare, a strategy and precedent which can be used to promote global human rights and world rule of law has been reestablished and strengthened--legislation through statute treaty. In the Rome Statute, Nuremberg principles will be extended to include aggression (once it is defined). The descriptions of war crimes, genocide, and crimes against humanity are more detailed than previously, and have been expanded to explicitly include violence against women and children. Internal conflict is also included within the ICC's jurisdiction. “Ethnic cleansing” and current practices of Zionism are defined as crimes against humanity. The ICC is contrasted to the ad hoc Security Council Criminal Courts on the basis of fundamental principles of jurisprudence. The ICC vs. Human Rights Court approaches to human rights are also compared. Prospects for future progress in global human rights and world rule of law are assessed.

Outline

  1. Introduction
  2. Significance
  3. Jurisdiction of the ICC
  4. Strategy to Achieve World Rule of Law and Human Rights
  5. Canons of Justice: International Principles of Jurisprudence
  6. The Role and Character of the UN
  7. The ICC vs. Human Rights Courts
  8. The ICC vs. Security Council ad hoc Criminal Courts
  9. The New World Order

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“The greatest force for peace on this earth is not an international court:

it is the U.S. military.”

---U.S. Senator Grams[i]

“…there is no need for the ICC since the U.S. already has ways to prosecute international criminals”[paraphrase]

--Former U.S. Secretary of “Defense”,Caspar Weinberger

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I. Introduction.

Friday 17 July 1998: After years of diligent preparation, the Rome Statute of the International Criminal Court [ICC] was adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court by the secret[1] affirmative vote of 120 countries [that was established following a resolution of the General Assembly, not the Security Council, as might have been expected since it established the two ad hoc criminal courts for ex-Yugoslavia and Rwanda]. [Seven, led by the U.S. administration, followed by Israel, were opposed. Twenty-one abstained. Ratification by 60 countries is required to being the Rome Statute into force.] Contrary to the usual decorum of UN proceedings, raucous cheers and applause rang out from the delegates, and was continued by enthusiastic NGO lobbyists, while the huge U.S. diplomatic delegation sat glum and grim, confronted with this successful effort designed to protect all peoples, including Americans, from war crimes, from crimes against humanity, from genocide, and eventually, at the behest of the non-aligned nations, from aggression [Articles 5-8] [CICC (15 July 98)]. The process was similar to that used to establish other treaties and covenants, including the Law of the Sea, various Human Rights conventions, and the recent ban on land mines. The U.S. government openly voiced support for the effort, sent by far the largest, most active and vociferous delegation to the conference, but worked strenuously and methodically to require U.S. government acquiescence [as well as that of all of the other non-elected ("Permanent") Members of the Security Council[2]] for prosecution to proceed[3], patterned after the voting rules for the UN Security Council. According to its official statements, the U.S. administration sought an international criminal court that could not prosecute anyone, especially not U.S. troops, without the acquiescence of the U.S. administration[4]. When that objective could not be achieved, it resorted to obstructive tactics to prevent the establishment of any court that might impair or restrict, or even embarrass the activities of the U.S. government and its military.

II. Significance.

Even were the U.S. government to support, sign, and ratify the Rome Statute, it is not its adoption [nor the eventual establishment of the ICC] per se which is the most significant element of this profound event. The ICC is not expected to have much more of an effect upon warfare than the Geneva Accords, despite the establishment of a permanent tribunal. People will still kill and be killed in warfare. In keeping with post World War II trends, non-combatants, including many children, will likely still constitute a large fraction of casualties. The “rules of engagement”, the rules for dispatching death and destruction, will be tightened a bit. War per se is not illegal according to the ICC Treaty Statute. Like the Geneva accords, the ICC Treaty Statute will regulate the conduct of warfare. Regulating an activity, instead of outlawing it, has the unfortunate effect of legitimizing it[5], "properly" conducted. Since all warfare is an intense violator of human rights, regulation is woefully inadequate. It is intended to eventually outlaw aggression, once defined[6] [which can't occur before the Rome Statute is amended, which can’t be done until at least seven years after the Statute comes into force (Articles 121, 123), but it must first be defined by the Assembly of States Parties].“Ethnic cleansing” and current practices of Zionism are defined as crimes against humanity [Articles 7(1d), 7(1h), 7(1j), 7(2d), 7 (2g), 7(2h), 8(2b(viii))[7]].

The primary significance of the Rome Statute is the process by which it was adopted, and the Assembly of States Parties institutional legislative mechanism it will establish when ratified [Part 11].

The five major victorious World War II allies established the UN as the political structure of the tripartite post World War II "new world order", coupled with the 1948 Universal Declaration of Human Rights, and the Bretton Woods monetary system. Its Security Council dominance and voting rules are patterned after the Yalta conference. As the President of the International Court of Justice, Mohammed Bedjaoui, describes it, the Security Council has interpreted the UN charter in a self-serving manner, and has assumed powers above any law--beyond any system of legal constraints, without legal limits imposed by constitutional law or international law--no checks and balances, no separation of powers [Bedjaoui (1994)]. The U.S. Secretary of State, John Foster Dulles, put it bluntly, "The Security Council is not a body that merely enforces agreed law. It is a law unto itself…No principles of law are laid down to guide it; it can decide in accordance with what it thinks is expedient" [Dulles (1950)]. "Expedient" law is an oxymoron; It is not principled, legitimate law; It is merely power. As such, the Security Council is essentially a “World War II victor’s club”, and consequently suffers structural legitimacy problems. Since concurrence on substantive resolutions has been formally (if not actually) required by all five major World War II allies, the non-elected Members of the Security Council [Article 27.3][8], the Security Council has suffered gridlock. No legislative body per se was established. The General Assembly has been described as a “debating society”, passing non-binding resolutions. This condition has persisted for over a half century. The gridlock is compounded--gridlock within gridlock; UN Charter amendments also require the unanimous concurrence of the five non-elected Members of the Security Council [Article 108, 109][9]. The General Assembly has found a way to circumvent the gridlock of the Security Council, the essential limitation of the General Assembly to non-binding resolutions, and the structural legitimation[10] impasse of the UN by passing a (non-binding) resolution to proceed through Statute Treaty, a resolution which engaged the participation of some 120 states acting on the volition of national sovereignty, without any legal compulsion. An overwhelmingly shared sentiment among the governments of the world; bolstered by well-organized and thoughtful NGO lobbying, brought the ICC statute to fruition. Italy agreed to host the diplomatic conference of plenipotentiaries and the General Assembly assiduously undertook preparations. {A chronology is provided in the Appendix.}

III. Jurisdiction of the ICC.

Despite the possibility that the U.S. administration may launch a lobbying campaign against ratification in order to prevent the establishment of the ICC, not only does its establishment appear to be imminent; the Rome Statute will essentially establish a global legislature for criminal law consisting of the Assembly of States Parties [Part 11]. It is significant that the treaty is entitled “statute”, indicating the intention not only to engage in a contract, but to establish international criminal statute law. Similar to the World Trade Organization and other international conventions and treaties, criminal statute law will be passed not by the UN, rather by the Assembly of States Parties to the Rome Statute, not democratically elected, but representing governments, just as the UN consists of representatives of governments[11]. Criminal statute law passed by the Assembly of States Parties will not be universal: It will not apply on the territory of non-participating states, but significantly and over the vociferous objection and last ditch effort at amendment of the draft statute by the U.S. delegation {CICC (15 July 98)], it will apply to their troops and nationals on the territories of States Parties. It is also very significant that, at the urging of Sadako Ogata, UN High Commissioner for Refugees, jurisdiction of the ICC will extend to internal conflict[ii], eroding the hoary principle of national sovereignty[12]. Interestingly, India, having recently completed a series of tests of nuclear bombs, unsuccessfully proposed that use of nuclear weapons be declared a war crime [CICC (15 July 98)].

IV. Strategy to Achieve World Rule of Law and Global Human Rights.

The reversion to the traditional treaty process preceding the establishment of global institutions [now embellished with more serious legislative intent by referring to it as "statute treaty"] reflects the frustration experienced not only by the peoples of the world, but by the governments of the world in trying to overcome the obstacles posed by the UN Charter and the Security Council to the establishment of world rule of law. This approach provides a promising, somewhat unconventional precedent for the future. Many U.S.-based proponents of world rule of law as a preconditon for a higher level of global civilization envisioned something like the U.S. government writ large, with separation of powers, checks and balances, secularism, and constitutional limitations on the powers of government, constitutional guarantees of civil liberties--all fine principles to be emulated on a global level. Without enforceable world rule of law, the treaty system succumbs to national sovereignty when it is most needed--in times of conflict and crisis. Envisioned was a global democratically elected legislature and executive officers, and an independent judiciary, a goal which appears not likely to be achieved, at least not in the foreseeable future.

In the process of declaring human rights, including, most significantly and controversially, economic rights, in addition to civil rights, the world’s governments have made great strides in achieving consensus in the face of ideological dichotomy. The distinction between bourgeois and proletarian concepts of human rights has been parodied many ways: as the right to seek an employer who can make a profit from one’s labor vs. the right to make a contribution to one’s society at a decent wage and under dignified working conditions; or as the right to purchase and control the media networks of one’s choice vs. an open forum where ideas compete on their own merit; or the right to rent only to whomever will return the greatest profit vs. the right to shelter, etc. The 1948 Universal Declaration of Human Rights, and the 1993 Vienna Declaration and Program of Action, are expansive, if largely unimplemented and even somewhat contradictory non-binding documents proclaiming broad consensus human rights that state ambitious normative goals for the world of the future.

Rule of law is established by tradition, habit, and practice (“common” law) and by deliberate intent (“statute” law). Statute law generally is founded upon an agreed statement of authority and limitations thereto (“constitution” or “charter”), that ideally include proclamations of human rights--civil, social, and economic. Since the approval of the UN Charter, the New World order has not been further established through a constitutional/charter reform process establishing a comprehensive institutional structure. Given the impasse imbedded within the UN Charter, including obstacles to charter reform, world rule of law is being slowly established piecemeal through custom, conventions and covenants, through the undramatic activities of UN agencies that are quietly increasing their management and administrative functions[13], and through international statute treaty, often initiated by, and under the auspices of the UN General Assembly, instead of in a comprehensive legislative body.

The Security Council has launched multiple military peacekeeping actions [“peacemaking”[14] is generally considered to be beyond UN capability] which depend upon "national assets", the UN having no police or military forces of its own, although the Secretary-General has proposed the establishment of standing UN military forces. In selective concern[15] about atrocities committed in the former Yugoslavia, then in Rwanda, the Security Council has arrogated the authority[16] to establish two ad hoc "Nuremberg-type" criminal courts and is establishing precedents in a common law mode, but it is not building institutions or statute law[17]. In the past decade, after the conclusion of the USSR phase of the Anti-Communist Crusade ["Cold War"], international judicial institutions based upon statute treaty have been established and activated at a brisk pace. The scope and diversity of these disparate tribunals reflects distinguishing and remarkable characteristics of the New World Order on the world stage in many areas, including [Stoelting (4 August 98)]:

  1. Criminal law [ad hoc Security Council courts, and now the ICC],
  2. Human rights, [regional courts for the Council of Europe at Strasbourg (the standard setter), the Organization of American States in San Jose, Costa Rica, and now the Organization of African Unity in Banjul, Gambia. A UN Human Rights Court of Appeals from the Regional Courts remains a distant aspiration.],
  3. Trade law [the Dispute Settlement Body (DSB) for the World Trade Organization,
  4. The law of the sea [International Tribunal for the Law of the Sea],
  5. Commercial law [European Court of Justice; The International Court of Arbitration; American Arbitration Association; the United Nations Commission on International Trade Law; Iran-US Claims Tribunal; United Nations Compensation Commission; International Centre for the Settlement of Investment Disputes],
  6. Public law [the International Court of Justice (ICJ)], and
  7. Environmental law [the seven-member Chamber for Environmental Matters of the ICJ has yet to hear a case].

A welcome innovation would be for the ICJ to establish a Human Rights Chamber.

A critical analysis of these institutions would not conclude that they all represented progressive developments toward democratic and just world rule of law.

The only permanent tribunal directly related to the UN, the International Court of Justice (ICJ), has been hobbled by voluntary jurisdiction, the lack of an authentic, democratic legislature[18], and by no enforcement power. It has averaged fewer than two cases per year, and these were mostly minor matters. Only 59 states recognize the obligatory competence (automatic jurisdiction) of the ICJ, most notably not including the U.S., France, China, or Russia. The UK is the only non-elected Member of the UN Security Council that recognizes the jurisdiction of the ICJ, which, in any case, is restricted in jurisdiction to disputes between states. Its fifteen judges include representatives from all of the non-elected Members of the UN Security Council overlapping with six from Europe plus six from developing countries[19]. The judges from the non-elected Members of the UN Security Council have been assessed as tending to act as arbiters on behalf of their governments, and the court as a whole has been adjudged to be more interested in seeking political compromise rather than objective, even-handed implementation and interpretation of international law, such as it is [Chemillier-Gendreau (1996) 10-11].

The ICJ, also known as the "World Court"[20], has experienced a marked increase in its docket in the past decade, including controversial and weighty issues such as the legality of nuclear weapons. The U.S. government ignored its conviction for terrorist acts against Nicaragua, but other states take its judgments more seriously. For example, Libya was an opponent of the ICC and is labeled a "rogue state" by the U.S. administration, but when the ICJ issued a judgment in 1994 awarding all of the territory occupied by Libya to Chad in a heated border dispute involving 25 percent of Chad's territory. Libya withdrew from the disputed territory in timely fashion and in full compliance, establishing a noted precedent for world rule of law and for the ICJ [Chemillier-Gendreau (Nov 96) 10-11].