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January 2001

Three International Tribunals

By Edward W. Miller

Back in 1995, during the 50th anniversary of the Nuremberg Trials, President Clinton publicly endorsed the creation of an International Criminal Court (ICC). In 1998, in Rome, the foundation for such an International Criminal Court was finally laid, and on the 17th of July, 1998 the Boston Globe reported from Rome that after a month of intense debate and after "rebuffing US objections," United Nations delegates from 120 countries resoundingly approved a treaty establishing a permanent International Criminal Court, in what was hailed as an historical step toward ending impunity for the world's most heinous crimes.

Key provisions in the Rome declaration include the Court's power to prosecute individuals accused of genocide, war crimes, crimes against humanity plus the Court's right to issue both arrest warrants and summons to appear. The Court, which may accept referrals from the UN Security Council, the Court's own independent prosecutor, and from a country, may not exert a death penalty but may invoke life imprisonment. To be situated in The Hague in the Netherlands, the Court will have 18 judges overseen by representatives from countries accepting the treaty.

Ironically, after giving lip service to such a Court for almost half a century, when the cards were on the table, the US, fearing such a Court might diminish our so-called "sovereignty," the US insisted on watering down provisions acceptable to other nationals. Amongst such "safeguards," the United States can block the Court from investigating any American simply by agreeing to conduct its own national investigation. The authority of the Court's prosecutor is very narrowly prescribed. Prosecutors must first gain approval from a panel of internationally-selected judges with decisions to confined as to limit "politically-motivated" charges. Other exceptions insisted upon by he US and France undermine the Court's prestige: First, the Security Council may delay a case for a year, and second, parties to its signature may exempt themselves from jurisdiction for War Crimes for the first seven years of the Court's existence.

During the 1998 protracted discussions in Rome, the US representative, Bill Richardson (US ambassador to the UN) agreed the Court should target crimes against humanity, war crimes, and genocide, but voiced a desire to protect US soldiers serving abroad in peacekeeping operations: "They need to do their jobs without exposure to politicized proceedings." Responding to Richardson's apparent concern, Phyllis Bennis, fellow at the Institute for Policy Studies, responded: "The US is essentially trying to create an international court for everyone except itself... The Pentagon claims they are against this treaty because they have so many troops on humanitarian missions. In reality, US troops are disproportionately absent from peacekeeping missions." Richardson insisted the Court steer clear of prosecuting individuals accused of waging national aggression. However, as Professor of international law, Francis A. Boyle points out: "Contrary to Richardson's baloney, the United States Government has legally and officially recognized that waging a war of aggression has been an international crime since the Nuremberg Charter of 1945."

Prof. Boyle added: "This principal of international law was expressly incorporated in the United States Army Field Manual 27-10 (1956)... as follows: "Any person, whether a member of the armed forces or a civilian, who commits an act considered a crime under international law is responsible therefore and liable to punishment." Boyle also noted that the Customary Law of War is part of the law of the United States and is binding upon all citizens of the United States.

Despite this legal foot-dragging by the US, the Treaty was approved 120 to 7 with 21 abstentions, but had then to be ratified by 60 countries for the Court to become a reality. China and Israel voted no with the US, while Russia, Britain, Canada and Germany supported the Treaty.

In 1998, fallout from the Rome Conference were not long in surfacing. The Israeli radio and press immediately criticized the Treaty, foreseeing the Court's future position on their illegal settlements on Palestinian land, where, lacking the usual US veto they would stand naked before International Law. Our own Senator Jesse Helms, always in step with Israel and our isolationist Republicans, immediately announced he would pull out all stops to prevent US Senate approval of this Court: "We must slay this monster. Voting against the International Criminal Court is not enough. The US should try to bring it down." (London Times, 1998)

Now, in December 2000, Clinton in the last weeks of his presidency has another opportunity to lend US credentials to this International organization. The issue is much alive in Washington these days. As reported (NY Times, 11 Dec. 2000), David Scheffer, our State Department's first ambassador-at-large for war crimes issues who has labored for five years with this issue is leading our US team through the final sessions. Clinton has until Dec. 31 to sign without ratifying the Treaty. After that date, a country must ratify in order to sign. Republicans in Congress have vowed they will never ratify, and with an anticipated Republican majority in Washington , approval is unlikely. Our Pentagon actively lobbies against the Treaty. President elect Bush is an unknown quantity, and Senator Helms, chair of the Senate Foreign Relations Committee has introduced legislation (S-2726) prohibiting US cooperation with the Court. Clifton's decision may well determine the survival of this international institution.

As the Economist noted: "America has often attached extensive reservations, to make (treaties) inapplicable at home. It has paid scant attention to the International Court of Justice in The Hague" ...a Court the US has conveniently ignored after being convicted of mining the harbors in Nicaragua. The US argued against a foreign court trial of Chile's Pinochet, but found it easy in 1993 to set up its own pseudo-International Tribunal in an empty room in the Hague in order to indict and try its own personally-designated "war criminal," Yugoslavia's Slobovan Milosevic. This US-organized Tribunal, though presented with substantial evidence by international lawyers, refused to indict NATO for its criminal destruction of Yugoslavia or even put on trial those Balkan murderers who had been under US hire.

As writers Christopher Black and Edward S. Herman pointed out (Z-Magazine, Feb. 2000), on May 27, 1993 in the midst of the 78-day bombing of Yugoslavia, the US "International Criminal Tribunal's chief prosecutor, Louise Arbour, announced the indictment of Serb president Slobovan Milosevic and four associates for war crimes, as a "public relations coup to justify the NATO policies and help permit the bombing to continue." This pseudo International Tribunal was set up by the UN Security Council in the early 1990s "to serve the Balkan policy ends of its dominant members, especially the United States." NATO immediately assumed authority over the Tribunal, claiming "we will make a decision on whether Yugoslav actions against ethnic Albanians constitute genocide." As an example of the Tribunal's bias, a 150 page report on Croatian president Trudjman's violent expulsion of 200,000 Serbs from Krajina in August 1995 with many summary executions (leaked to the NY Times) was presented to the Tribunal. The US which had supported this ethnic cleansing refused to supply information and even defended the Croats. As a result, no indictment from the Tribunal was forthcoming.

As distinguished Yugoslavian law scholar Doctor Kosta Cavoski pointed out, the UN Security Council never had the authority to convene an International Tribunal. Therefore, their Resolution 827 of May 1993 was illegal. Indeed, UN secretary-general Kofi Annan, unable to find any legal basis for this US invention, settled on the statement that: "This approach would have the advantage of being expeditious and immediately effective." Doctor Cavoski noted: "...Political expedience took precedence over legality." Unlike any other court, this pseudo-Tribunal by-passes legislative control to write its own laws. Pittsburgh's law professor Robert M. Hayden noted: In order to pursue the West's political goals in the Balkans, "this Tribunal's rules - some of which resemble those of the Spanish Inquisition... make it difficult for defendants to receive a fair trial."

Writer Christine Stone notes: "The system is weighted in favor of the prosecution... witnesses are attacked on ideological grounds... and anyone who calls into question the policies of the leading NATO states is denounced and hectored as "extremist." Anonymous witnesses and secret testimony are permitted. The court depends on support from the US government and even private sources such as financier George Soros who has made no bones about his attitude toward many of the indicted."

Washington's concern over an International Tribunal is understandable. The US genocide's in Laos and Cambodia, our invasions of Grenada and Panama, plus our bombings of Libya's Tripoli and Benghazi were all war crimes, as was the Allies' massive massacre of thousands fleeing north from Basra in the Gulf War, our genocidal embargo against Iraq, and the recent savage NATO bombing of Yugoslavia.

Washington's worries are not unreal. On March of 1999 in Toronto, 40 Canadian citizens attempted a citizens arrest of Henry Kissinger at an elite Diner's Club luncheon honoring our own native arch-criminal. Holding aloft a blood-stained banner reading: "Remember Kissinger's Crimes: Cambodia, Laos, Iran, Kurds, Vietnam, Chile, Greece, Argentina, East Timor, Brazil, Apartheid," the group, after some rough shoving, pleaded with the Toronto police to arrest Kissinger.

Four of the leaders were dragged by the authorities up an escalator to a waiting police van, strip-searched and charged with trespassing and "attempting citizens arrest." In court, two were found not guilty, and two, Matthew Behrens and William Taylor, were convicted and given one year's probation by a Justice of the Peace who insulted the defendants, questioned their competence, and stated that "evidence of war crimes was irrelevant."

Washington has thus ignored a tribunal it couldn't control, tried to manipulate and may destroy a tribunal which threatens its hegemony, and then created an illegal tribunal for purely political purposes.

By January 1, 2001, more than 100 nations have signed and 25 ratified the Treaty establishing an International Criminal Court. The conscience of the World spoke in Rome. Whether that still small voice will gain the requisite sixty-nation vote, time alone will tell.

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