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The Criminal Fraud of the ICC

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The Criminal Fraud of the ICC
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ICCMore than 50 years ago the United Nations began working towards the establishment of a permanent, International Criminal Court (ICC).

In the course of the 20th Century some 170 million civilians were victims of war crimes, crimes against humanity, and genocide (See Ref 1). The devastation and carnage of WW2 created a universal feeling that enough is enough and the common pledge of “Never again!”. The Nuremberg and Tokyo Tribunals were established and the Geneva Conventions and the International Treaty for the Renunciation of War were applied as a basis for prosecution of members of the German and Japanese governments and military for war crimes, crimes against humanity and the conduct of a war of aggression. Many of them were sentenced to death or to long prison terms.

Note: There is nothing wrong with the law; it has been applied with lethal effect!

In the closing decade of the 20th Century efforts for the establishment of a permanent international court intensified involving the United Nations, governments, Non-Government Organisations and individuals. For example, in 1995 a Coalition of 25 NGOs established the Coalition for the ICC (CICC), which grew to include 450 organizations in only 2 years and began cooperating with the organisation of Like Minded Governments (LMG) in contributing to efforts to establish the court. Today the CICC includes over 2,500 organisations (See Ref 2). Efforts focussed on the holding of a Conference for the establishment of the court.

In 1998 a six-week Diplomatic Conference for an International Criminal Court, held in Rome and attended by delegates of more than 160 governments, concluded on July 17 with the signing of the Rome Statute; the founding treaty of the ICC. The agreement provided that the treaty would come into force with the 60th ratification by a member nation, which occurred on July 1st 2002, and that a review conference would be held seven years after the date of coming into force to consider any amendments to the Statute. The ICC Review Conference was held in Kampala, Uganda between 31 May and 11 June 2010.

The Ideal International Criminal Court

Application of the principle of Universalism is fundamental to any notion of justice and is an essential principle that must apply to an International Criminal Court.

A system of justice that is not universal in its application is nothing more than a tool for the perpetration of injustice by those who exercise the power to determine the actions of the system and judgements of its courts.

The ancient concept of rule of law is to be distinguished from rule by law, according to political science professor Li Shuguang: "The that under the rule of law the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law can serve as a mere tool for a government that suppresses in a legalistic fashion." (See Wikipedia Ref 3).

The core elements of International Law have a long history of evolution and they address universally held concern over the capability that modern weaponry and other lethal technology delivers to state, and increasingly non-state, organisations to cause large scale death and suffering by Crimes Against Humanity, Genocide, War Crimes and the Crime of Aggression (the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole).

It is reasonable therefore to expect that the ideal International Criminal Court should have unfettered jurisdiction over these core elements of International Law and without geographic restriction such as to allow that its reach should extend to prosecute those who commit crimes against international law wherever they are, wherever their crimes are committed and regardless of their country of citizenship. The court should have the power to access the services of law enforcement agencies and receive the cooperation of governments as required in their investigation of crimes and in bringing individuals charged with crimes before the court. The court should not be restricted by any amnesty agreements, exemptions or treaties of extradition.

While there are obvious practical and political considerations involved in achieving the establishment of an ICC all understand both the critical necessity of the court and the essential, immutable principles that are necessary and fundamental to the court. Politicisation of the establishment of the court and its jurisdiction can only serve to impede rather than encourage a broad political will to support it

Defining and Applying International Law

At the Nuremberg and Tokyo tribunals numerous individuals were convicted on the basis of existing international law of war crimes, crimes against humanity and most notably, the planning, preparing, initiating or waging a war of aggression in violation of the General Treaty for the Renunciation of War.

The Geneva Conventions had been long-established and, following WW1, were consolidated in 1928 in the International Treaty for the Renunciation of War [a.k.a. the Kellogg-Briand Pact] which was ratified by sixty three nations including Britain, America, France, Germany and Japan. The treaty outlawed recourse to war and required member states to settle disputes peacefully. This treaty is still in force. In the course of Nuremberg a set of seven Nuremburg Principles – The Universal Laws of War – were set down and in 1950 were adopted as universal statute war law by the United Nations General Assembly. Article Six explicitly specifies Crimes against peace (waging of a war of aggression), War crimes and Crimes against humanity.

In a stark failure of the UN and the world community, no action was taken to deal with genocides and war crimes that occurred in Cambodia, Argentina, East Timor, Uganda, Iraq and el Salvador in the post-WW2 years. However, in 1992 and 1994 the United Nations established new tribunals to prosecute individuals responsible for war crimes and genocide committed respectively in Yugoslavia and Rwanda.

Note: There is nothing wrong with the law; but serious deficiencies in its application! 

The Rome Statute

The Rome Statute (See Ref 4) establishes the ICC. Its Article 5 defines the crimes within the jurisdiction of the Court, these being “limited to the most serious crimes of concern to the international community as a whole”, namely the following:

  1. The crime of genocide;
  2. Crimes against humanity;
  3. War crimes;
  4. The crime of aggression.

However, the Court’s exercise of jurisdiction over the crime of aggression was deferred until such time as the crime of aggression could be defined and conditions established under which the Court would exercise this jurisdiction.

It seems an odd provision considering that people have already been convicted and hanged for the crime of aggression, especially given that the Nuremberg War Crimes Tribunal concluded that “To initiate a war of aggression therefore, is not only an international crime, it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”. Also, as noted in the previous paragraph, the law concerning Crimes against peace has been established International Law since 1950.

The United States and the Rome Statute

When the Diplomatic Conference for an International Criminal Court concluded in Rome on July 17, 1998, 120 countries voted in favour of the treaty.  While 21 countries abstained the United States was one of only 7 countries that voted against it, along with China, Libya, Iraq, Israel, Qatar, and Yemen.

The United States sought a Security Council-controlled Court, at variance with most of the other countries of the world which felt that no country's citizens who are accused of war crimes or genocide should be exempt from the jurisdiction of a permanent international criminal court – the principle of Universality.

Justifying Exemption from the Law

The American Society of International Law provides a statement of the US justification for seeking exemption from the jurisdiction of the court:

“…the American position was that, as the world's greatest military and economic power, more than any other country the United States is expected to intervene to halt humanitarian catastrophes around the world. The United States' unique position renders U.S. personnel uniquely vulnerable to the potential jurisdiction of an international criminal court. In sum, the Administration feared that an independent ICC Prosecutor might single out U.S. military personnel and officials.” (See Ref 5).

Attempted Compromise

Concessions to the United States' concerns resulted in a two-layered system of jurisdiction; one accommodating the US preference for cases of offences relevant to Chapter VII of the UN Charter to be referred to the Court by the Security Council, the other embodying the more broadly supported scheme provided for cases to be referred to the Court by individual countries or by the ICC Prosecutor.

It was clear to all that the real power of the Court rested in the upper level since it provided for the imposition of binding obligations of compliance on all states, the other being much weaker because it provided no built in process for enforcement, relying instead on the cooperation of the parties to the statute.

Further Demands for Protections from the Court

While accepting these concessions the United States delegates demanded protection from the second level of the Court's jurisdiction also. Further concessions proposed by the United States were incorporated into the Court's Statute, as follows:

  1. The ICC was empowered to prosecute cases only as a last resort if domestic authorities failed to do so, the Court being required to give prior notice of its intention and a Pre-Trial Chamber having authority to assess the veracity of a state’s intention to prosecute.
  2. The court is empowered only to prosecute cases where state policy or planned actions involved serious war crimes rather than crimes involving acts by individual personnel (the actions of “a few bad apples”).
  3. The ICC prosecutor can launch an investigation only with the approval of a Pre-Trial Chamber consisting of a panel of three judges.
  4. The Security Council may vote to require postponement of an ICC investigation or case for up to twelve months, with option to seek further postponements.

Security Council authority is effectively extended, by these provisions, over the second level also. Yet while these concessions satisfied other major powers (Russia, France and the United Kingdom) the United States nevertheless voted against the Statute and remains, to the present date, a non-signatory to the Rome Statute of the ICC.

American lawyer and diplomat, David John Scheffer served as the first United States Ambassador-at-Large for War Crimes Issues, while addressing the Senate Committee on Foreign Relations gives the following insight to the official US attitude to its participation in the conference

While we successfully defeated initiatives to empower the court with universal jurisdiction, a form of jurisdiction over non-party states was adopted by the conference despite our strenuous objections.” (See Ref 5).

In subsequent years, US opposition to the ICC has been explained as follows:

The U.S. has refused to join the ICC because the ICC (allegedly):

  1. lacks prudent safeguards against political manipulation,
  2. possesses sweeping authority without accountability to the U.N. Security Council, and
  3. Violates national sovereignty by claiming jurisdiction over the nationals and military personnel of non-party states in some circumstances.

One could only agree the point about lacking “prudent safeguards against political manipulation” but these clearly arise from political manipulation of the process of establishment of the ICC and this manipulation has come principally from the US.

The expectation of “accountability to the U.N. Security Council” is roughly an International Law equivalent of demanding that a national judiciary be accountable to the executive of government. A similar argument applies to the point about “violation of national sovereignty” since it follows that a state that is signatory to the UN Charter but not the ICC exists under the banner of International Law but is exempt from its enforcement. 

Richard Dicker of Human Rights Watch has responded to Scheffer's argument that the statute is "overreaching" because it violates national sovereignty saying that “To begin with, it does not ‘bind’ non-States Parties or impose upon them any novel obligations under international law. What it does do, is permit the ICC to exercise jurisdiction over the nationals of non-States Parties where there is a reasonable basis to believe they have committed the most serious international crimes. There is nothing novel about such a result. The core crimes in the ICC treaty are crimes of universal jurisdiction-that is, they are so universally condemned, that any nation in the world has the authority to exercise jurisdiction over suspects and perpetrators, without the consent of that individual's state of nationality.”.

Participation in Bad Faith

The US government clearly participated in the Rome Conference in bad faith. Far from contributing constructively to the purposes of the conference (the establishment of a permanent court to enforce the core elements of international law, thereby affording protection of humanity at large from the most pernicious of international crimes - Crimes against humanity, genocide, war crimes and crimes against peace) the United states has sabotaged the efforts of all other parties with a single-minded purpose of serving the usual US government preoccupation – American interests.

The Review Conference

The original statute provided for a review conference to be held seven years after the date of coming into force to consider any amendments to the Statute. That conference took place in Kampala, Uganda in May/June 2010. A principal objective of the conference was to define the Crime of Aggression. A statement of the definition agreed to can be found on the CICC website and is as follows:

"For the purpose of the statute, ‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a state, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the character of the United Nations, [an act of aggression being defined as] the use of armed force by one State against another State without the justification of self-defence or authorization by the Security Council. The definition of the act of aggression, as well as the actions qualifying as acts of aggression contained in the amendments (for example invasion by armed forces, bombardment and blockade), are influenced by the UN General Assembly Resolution 3314 (XXIX) of 14 December 1974" (See Ref 6).

However, despite the establishment of a definition of aggression, it was agreed to defer a decision about activating the Court’s jurisdiction over the Crime of Aggression until sometime after 1 Jan 2017.

The conference was unsuccessful in deleting clause 124 of the statute, which provides for states to exempt themselves from the court’s jurisdiction for up to seven years after ratification. However, the Belgian delegates successfully advanced a motion to extend the list of outlawed weapons.

The United States and the Review Conference

In the course of efforts for the establishment of an ICC, aside from the Conferences of Rome and Kampala a series of Sessions of the ICC Assembly of States Parties were held. The US was first represented at the eighth of these, held in New York in Nov 2009; this being the result of the emerging Obama policy of “Principled Engagement”. Like most of the other Obama rhetoric this high-sounding title disguises an insidious intent, as revealed by Harold Koh, the US representative to the assembly and Legal Adviser to the U.S. Department of State (See Ref 8); “…we have attended these meetings as an observer. Our goal in November was to listen and learn, and by listening to gain a better understanding of the issues being considered by the ASP and of the workings of the International Criminal Court”. Again, high sounding rhetoric, but it’s clear from practical outcomes that the purpose in gaining that “understanding” was to more effectively thwart the ICC, not to promote it.

In a lengthy setting out of the US position prior to the ICC Review Conference Koh talks of “our historic commitment to the cause of international justice”, the US role “as one of the vigorous supporters of the work of the ad hoc tribunals” and “… with other States to ensure accountability on behalf of victims of such crimes” and asserts that the US is motivated in looking for “ways that the U.S. can, consistent with U.S. law, assist the ICC in fulfilling its historic charge of providing justice to those who have endured crimes of epic savagery and scope.”.

Following all this high-sounding rhetoric he set out the US key argument as follows:

“But as for the second agenda item, the definition of the crime of aggression, the United States has a number of serious concerns and questions. The crime of aggression, which is a jus ad bellum crime based on acts committed by the state, fundamentally differs from the other three crimes under the Court’s jurisdiction—genocide, war crimes, and crimes against humanity—which are jus in bello crimes directed against particular individuals. In particular, we are concerned that adopting a definition of aggression at this point in the court’s history could divert the ICC from its core mission, and potentially politicize and weaken this young institution.

The crime of aggression, as he says, is a Jus ad bellum crime (Latin for "right to wage war”) and is founded on violation of criteria that should be consulted before engaging in war and fundamentally differs from the other three crimes under the Court’s jurisdiction—genocide, war crimes, and crimes against humanity—, which, as he says are Jus in bello crimes (Latin for "justice in war), concerned with whether a war is conducted justly (regardless of whether the initiation of hostilities was just).

What Koh alludes to but avoids explicitly stating is that the Jus ad bellum crime pertains to leadership who plan and initiate the war, not the “few bad apples” who fail to act morally and legally in the course of its conduct.

The essential threat being posed by the US here (via Koh) is that the superpower will remain hostile to the Court. His deliberately vague and abstract references to diversion from “its core mission” or to “politicize and weaken this young institution” serve simply as a veil to the obvious meaning that is driven home by a series of rhetorical questions put by Koh:

Would adding at this time a crime that would run against heads of state and senior leaders enhance or obstruct the prospects for state cooperation with the Court?

Certainly the latter in the case of the United States, the one state principally engaged in wars of aggression, or supporting those of its client states such as Israel and Sri Lanka.

Will moving to adopt this highly politicized crime at a time when there is genuine disagreement on such issues enhance the prospects for universal adherence to the Rome Statute?

We will be a long time waiting for the United States to sign and much longer to ratify, yet by far the majority of the rest of the world has both signed and ratified. Just who is Koh referring to as the exception to “universal”? The United States, of course!

When the United States is a state party the rest of the recalcitrants will follow.

What outcome in Kampala will truly strengthen the Court at this critical moment in its history? “.

Clearly, the best outcome would be serious, signed-up, in-good-faith participation by United States and immediate jurisdiction over the crime of aggression, but it’s clear this is not the conclusion Koh intended.

The vast majority of heads of state of countries represented at the Rome Conference were less concerned with being victims of ICC prosecutions for crimes of aggression than they were about being victims of crimes of aggression; that’s why there was a push for an ICC in the first place. The United States’ threat to sabotage the ICC in the event it did not emerge as a “lame duck” institution that serves “American interests” amounts to a betrayal of these aspirations, of all the hopes of humanity for ending the destruction, suffering and lethal violence of war, no less than it is a smirk on the face of all the United States’ empty rhetoric delivered by people like Koh and Obama.

The United States and International Law

Leading American intellectual Noam Chomsky has stated on numerous occasions that “If International Law and the Nuremberg Principles were applied every president of the United States since Eisenhower would be hanged for War Crimes”. 

The United States’ case for exemption from International Law – flawed at the outset, because there is no case for exemption – rests on its presumption to the role of “world policeman”, a presumption entirely founded on a monopoly over capacity for military violence and having no substance in morality or integrity. The world needs a united stand against this. If there is indeed a need for a “world policeman” the United States, as a world citizen is clearly unfit for the job.

School of the Americas (SOA)

The SOA is probably the single most prominent black spot on the character of the United States as a world state citizen. Initially established in Panama in 1946 and expelled from Panama in 1984 it was described by former Panamanian President, Jorge Illueca, as the “biggest base for destabilization in Latin America.” The SOA has been historically dubbed the “School of Assassins” and is reputed to have left a trail of blood and suffering in every country where its graduates have returned. (See Ref 18).

President Salvador Allende of Chile was murdered – with his family – by American planes in 1973 for no other reason than he was a Socialist and therefore posed a threat to American interests. The Pinochet regime that succeeded him did so by the violence of a military trained and indoctrinated by the US School of the Americas; a brutal dictatorship that tortured to death over 30,000 Chileans in the most obscene ways.

In 2009 Honduran President Zelaya was ousted by a military coup. While the coup against Zelaya was precipitated by his refusal to comply with court injunctions this must be seen in the context that the Honduran judiciary is deeply politicized. The coup was immediately condemned by the Organisation of American states, which suspended Honduran membership invoking article 21 of the Inter-American Democratic Charter. It was also condemned by the United Nations and the European Union and the governments of over 30 countries issued statements condemning the coup. However, Israel immediately recognised the new government and the United States equivocated and fell short of identifying the military action as a coup, much less condemning it.

The Honduran military's chief lawyer and participant in the coup, Colonel Herberth Bayardo Inestroza Membreño, made public statements regarding the removal of Zelaya. According to Wikipedia, Colonel Inestroza commented that Zelaya's allegiance to Hugo Chávez was “hard to stomach” and that "It would be difficult for us, with our training, to have a relationship with a leftist government. That's impossible. I personally would have retired, because my thinking, my principles, would not have allowed me to participate in that."

When Colonel Inestroza refers to “with our training” it is clear he means – at the School of the Americas, of which he was a graduate (See Ref 17).

Global Violent Crime

William Blum (See Ref 11) is the author of two excellent books, Rogue State and Killing Hope which catalogue how the United States, since WW2 has attempted to overthrow more than 50 foreign governments (most of them democratically elected), interfered in democratic elections in at least 30 countries, waged war in some 30 countries, attempted to assassinate more than 50 foreign leaders, dropped bombs on the people of some 30 countries and suppressed dozens of populist and nationalist movements in every corner of the world. In an April 2010 article (See Ref 12) he had this to say about the US government attitude to the ICC:

"From the very beginning, the United States was opposed to joining the ICC, and has never ratified it, because of the alleged danger of the Court using its powers to 'frivolously' indict Americans. So concerned about indictments were the American powers-that-be that the US went around the world using threats and bribes against countries to induce them to sign agreements pledging not to transfer to the Court US nationals accused of committing war crimes abroad. Just over 100 governments so far have succumbed to the pressure and signed an agreement. In 2002, Congress, under the Bush administration, passed the 'American Service Members Protection Act', which called for 'all means necessary and appropriate to bring about the release of any US or allied personnel being detained or imprisoned by ... the International Criminal Court.' In the Netherlands it's widely and derisively known as the 'Invasion of The Hague Act'. The law is still on the books. Though American officials have often spoken of 'frivolous' indictments — politically motivated prosecutions against US soldiers, civilian military contractors, and former officials — it's safe to say that what really worries them are 'serious' indictments based on actual events".

It doesn’t take long, when examining the record of the United States, to conclude that the United States is not a fit state citizen for the role of “world policeman”. If there were any integrity to the United States’ notion of the concept then the United States’ concern about ‘frivolous' indictments could easily have been dealt with in an honourable and honest way by declaring exempt from ICC prosecution for the crime of aggression all parties involved in any interventions called for by the UN Security Council and having endorsement of a General Assembly Resolution. The effective neuter of the ICC on these ostensible grounds, absent protection for the “world policeman”, is merely a Machiavellian approach to the service of “American interests”, setting the United States and its imperial empire above the law.

The use of torture, measures such as water-boarding, by the CIA under the Bush administration is a criminal act in International Law as defined in the Geneva Conventions. While the US Department of Justice under the Bush Administration sought to provide legal cover the hoped-for prosecutions under the Obama Administration of "Change" have been disappointed by open commitments not to prosecute. Amnesty International has the following to say on the matter:

The release of the memorandums, written in the US Department of Justice in 2002 and 2005 to provide legal cover to the Central Intelligence Agency (CIA) to use “enhanced” interrogation techniques in its secret detention program, is welcome. Amnesty International has long called for all such documents to be published.

However, accompanying statements issued by President Barack Obama and Attorney General Eric Holder, effectively conferring impunity for acts of torture – crimes under international law, are incompatible with the USA’s international legal obligation to bring perpetrators to justice” (See Ref 13).

After the United States' deliberate destruction of Iraq's civilian infrastructure during the first Gulf War the United States government called for, maintained and cynically manipulated sanctions which prevented the restoration of treatment of water supplies and sewage resulting in 12 years of outbreaks of diseases mainly affecting children while the denial of medical supplies, under the sanctions, accentuated the problem and an estimated 500,000 children died unnecessarily. Then Secretary of State Madeline Albright publicly stated she considered the price to be “worth it”. The behaviour of the United States in this sequence of events reflects not only a disregard for International Law but a willingness to cynically, callously and ruthlessly manipulate the institutions established to maintain it in the service of the only thing that some Americans hold sacred – American interests (See Ref 19).

The people who dictate US foreign policy clearly have no interest in International Law and Order or its institutions. Their interest in these institutions is no different to their interest in the UN Charter in general and the United States’ principal domestic institution - its constitution; both are cynically manipulated or disregarded at will. An International legal system devised by the US foreign policy dictators would inevitably provide the final keystone of the American Empire - a global system of rule by law.

The Years Between

In the twelve intervening years between the Rome Conference of 1998 and the Kampala Review Conference in 2010 the United States, aside from cynically manipulating international sanctions that brought ongoing suffering and death to the Iraqi people, initiated two aggressive, illegal, immoral and extremely violent wars, neither of which were sanctioned by the United Nations and both of which were excused politically on the basis of deception. To this day the 2003 invasion of Iraq is often used, fraudulently as an example to argue that there is “sometimes justification for using force” (See Ref 26) despite the absence of WMD, the outrageous lies emanating from the US and its allies prior to the war and the callous, barbaric plunder of Iraq by the victors.

The thoroughly nefarious abuse of the processes of the United Nations, an international institution for the protection of peace, law and order, to cynically disarm another state prior to an aggressive, violent attack evidences a level of moral corruption in the extreme in the depths of depravity on the part of those responsible.

There is clear connection between these foreground criminal activities and the manipulations of the establishment of the ICC in the background; Criminals party to serious Crimes of Aggression are desperate to evade prosecution and have been both tenacious and insidious in their determination to undermine the establishment of an effective permanent International Criminal Court.

The use of Depleted Uranium (DU) will one day be assessed by historians as one of the most heinous Crimes against Humanity ever committed by human beings. The use of a radioactive material having a half-life of 4.5 billion years and a capacity to cause birth defects, cancers and a respectable resume of diseases of internal organs as a ballistic in weaponry is an act so criminally irresponsible that it suggests insanity. In Iraq, in both the first and second Gulf Wars, in Yugoslavia, in Afghanistan and now in Libya these weapons, with literally tons of DU, have been deployed against tanks and bunkers with already catastrophic on-going effects on the civilian population. In an article on the subject of DU Stephen Lendman had this to say:

“America is one of the few non-signatories to the UN Human Rights Sub-Commission's DU ban. For over two decades, it's contaminated vast areas in Iraq, Afghanistan, Pakistan, Serbia/Kosovo, Libya and other nations struck. Moreover, the Pentagon regularly uses other illegal terror weapons, including experimental ones tested in real time.” (See Ref 15).

The fitness of the United States as a state citizen for the role of “World Policeman” is obviously in serious doubt, even if such a role were desirable.

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