National Center for Constitutional Studies
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Our last month's message included a post script from Dr. Richard Wilkins which read in part:
The conference is over. The results are frightening. Our U.S. Senate, which must ratify the resulting treaty is our only hope to defeat it. But, first, a little background.
The Scheme to Create an International Criminal Court
On January 28, 1993, a nonbinding Senate resolution was introduced by Senator Christopher Todd which reads, in part:
Six years of planning and scheming since the Senate Resolution was introduced has brought about a little-publicized conference of the United Nations in Rome, Italy, to try and put such a proposal into place. Dr. Richard Wilkins, who has written extensively on the subject of how UN Conference Declarations eventually find themselves into International Law and into U.S. policy decisions, whether or not officially adopted by Congress, was alarmed. Attending the Rome conference with Dr. Wilkins was Andrew Biggs, an attorney from Mesa, Arizona who has given some of the following details.
Nearly the Whole World Falls In Line With One World Leaders
An international conference to draft a treaty creating an international criminal court was held in Rome from the middle of June through the middle of July. More than 150 nations participated in the conference. After five weeks of wrangling and posturing the text was formally approved by an overwhelming majority with only seven nations dissenting. Opposing the text were the United States and China.
Popular Rhetoric Used to Mask Social Intent
Supporters of such a court have argued that an international tribunal is necessary to bring the most notorious international criminals to justice. Frequently mentioned were Hitler and Pol Pot. It is laudable that nations recognize the need to end the genocidal acts of such evil men, yet the text of the statute goes far beyond legal matters and is rife with attempts to constrain certain social agendum. For instance, the statute used the term "enforced pregnancy" as a crime against humanity. In the first draft of the proposed law this term was not defined and was left wide open to interpretation by international judges. Also, the "new" understanding is that gender is a socially constructed identity which can be changed, not a biological differentiation of male and female.
Circumventing National Sovereignty to Reach Individual Citizens
The first glaring problem is that of the jurisdiction of the ICC and how it will conflict with the sovereignty of nations. According to its supporters, the court is to be complementary to domestic legal systems. However, the text gave the court authority to take jurisdiction over a case whenever a nation did not have an "effective" legal system. Even if a country has a judicial mechanism that has acquitted an individual, the International Criminal Court may deem that the nation's system was "ineffective" and retry the person.
Lest anyone claim this is merely an assumed, unrealistic scenario, listen to what Professor Cherif Bassiouni, one of the leading architects of the ICC, said in the Senate Resolution hearings in 1993:
U. S. Bill of Rights Protections Thrown Out
Many nations did not want the definitional elements of the various international crimes to be included in the text of the statute. This presents the legal enigma of preventing a person from knowing what behavior constitutes a crime. The statute allows for a person who has been acquitted by the international tribunal to be retried if new evidence is found within five years, thus negating the well established legal concept of double jeopardy.
Enforcement of Court Decrees Left to Interpretation and Power Struggles
The practicality of the court is also an issue. The attempt to coalesce the legal traditions of more than 150 countries into one ambiguously worded document is rife with problems. The text is vaguely worded leaving the newly established tribunal to interpret what the document means rather than being bound to a tightly written statute.
In tandem with a court which has the function of judging the liability of the accused, there is usually some police body that exists to execute the orders of the court. There is no such body created (thank goodness) in conjunction with the establishment of the court. The international court will have to rely on the individual nations or perhaps on the international peacekeepers of the United Nations to arrest and carry out its orders.
Fundamental Cultural and Religious Traditions Ignored
The gamesmanship employed to create this court was amply in evidence in the recent Rome conference. Strange alliances were made to fight the social engineering of the proposed court. Arabic and Islamic nations which came to understand that much of the language would have extreme internal ramifications were joined by several countries which are dominated by their Catholic heritage.
On the other side were the western European nations. The strange machinations saw that virtually all working groups and committees were headed by western Europeans, none by Arabs or Islamic peoples. Late night meetings were held to try to weaken the resolve of delegations consisting of only two or three people. Meeting times and places were altered at the last minute which confused some delegates who were already facing a language barrier (many meetings are conducted only in English without translation).
Possible Targets of Supporters of the ICC
Judging from those who are pushing the ratification of this treaty by the world community, possible eventual "criminals" may well be:
Ratification with Reservations Not Enough Protection
Senator Jesse Helms, Chairman of the Senate Foreign Relations Committee has said the treaty is "dead on arrival" unless our government is given veto power. However, many of our country's biggest headaches have come after we have accepted programs with limits when we should have defeated them in the first place. For example:
Clearly, the best action for the Senate to take is to reject it in total.
Even If Senate Rejects It, U. S. May "Adopt" Its Provisions
In the end, the text for the creation of the Court was approved by all but seven nations. The potential ramifications loom large as we will wait to see which nations ultimately ratify the treaty and those who reject it. In the meantime, the United States is receiving negative publicity for its vote in opposition to the Court. It is possible that the Court, if the treaty is ratified by the requisite number of nations, will attempt to include the United States within its jurisdiction on the basis of "international normalization of conduct." (An example is the International Treaty of the Seas. Although the United States has never signed or ratified the treaty, for the most part, the U.S. complies with its terms.)
Thank you for your continuing support of NCCS. In a coming newsletter, we will detail some fascinating presentations at our summer conference in Flagstaff. It was an intense learning experience which we hope to duplicate several times next year.
Earl Taylor, Jr.