Coastal Post Online


January, 2004

My Court, My Justice
By Edward W. Miller


   "Though justice be they plea, consider this, That in the course of justice, none of us should see salvation;  we do pray for mercy,  and  that same prayer doth teach us all to render deeds of mercy."

                                  Shakespeare's  MERCHANT OF VENICE


    Since the capture of Saddam on the 13th of December, there has been a  maelstrom  of opinion whirling  in the media as to  when and how and where this "tyrant" should be tried for his  supposed "horrendous crimes."   

   Though Washington would like to  convene  a special tribunal under our control, world opinion points in the direction of a trial in Iraq by Saddam's  countrymen. There are choices.  On December 20th the GUARDIAN UNLIMITED  reported: "The statute  establishing the Iraqi Special Tribunal was approved by the Iraqi Governing Council  and signed  into law on Dec. 10  by L. Paul Bremer, the top US administrator in Iraq on behalf of the US-led Coalition Provisional Authority." (Assoc. Press) The danger Washington faces is that just as Milosevic, defending himself in the Hague, has managed to expose the  criminal behavior of the Reagan and Bonn governments,  so Saddam, when tried, may  open to public view the equally criminal activity of the twin Bush and Clinton administrations including their initial support of Saddam followed by their genocide of his people. 

   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 the17th of July, 1998, the Boston Globe reported 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,"  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 too 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 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, US representative, Bill Richardson (then 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 pointed 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 legal foot-dragging by the US, the Rome 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 was not long in surfacing. Israel was immediately critical, foreseeing the Court's future position on their illegal settlements, where, lacking the usual US veto ,they would stand naked before International Law.  Our then 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) 

   Clinton in the last weeks of his presidency seized the  opportunity to lend US credentials to this international organization though Republicans in Congress immediately  vowed they will never ratify, and with a Republican majority  still in Washington , approval in the near future is unlikely. As THE ECONOMIST  had noted: "America has often attached extensive reservations, to make (treaties) inapplicable at home. It has paid scant attention to the1947-established International Court of Justice in The Hague" ...a Court the US  conveniently ignored after Washington was convicted of mining the harbors in Nicaragua.


   The US had also argued against a foreign court trial of Chile's Pinochet, but found it easy in 1993 to set up,  in an empty room in the Hague (donated by the INTERNATIONAL RED CROSS),  its own pseudo-International Tribunal  to indict and try its own personally-designated "war criminal," Yugoslavia's Slobovan Milosevic.


   This US-organized  Hague Tribunal, though presented with substantial evidence by a group of  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  international lawyer  Christopher Black and writer 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  Court  was convened 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, when a 150 page report on Croatian president Trudjman's violent expulsion of 200,000 Serbs from Krajina in August 1995 was presented to the Tribunal, the US which supported this ethnic cleansing, refused to supply information and even defended the Croats.  Result:  no indictment from the Tribunal was  even considered.

   As distinguished Yugoslavian law scholar Doctor Kosta Cavoski pointed out, the UN Security Council never had the authority to convene such an International Tribunal. Thus, 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 observed: "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.

   Washington's concern over an International Tribunal is understandable. 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  first Gulf War, followed by  our genocidal, 12  year embargo during which almost 2 million Iraqis, the elderly and children died. Yet to be added: our savage 78-day 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, our 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,  pleaded with the Toronto police to arrest Kissinger. The  citizen protesters, however,  were charged with trespassing and "attempting citizens arrest."  In court, two were found not guilty, and two,  convicted and given one year's probation by a Justice of the Peace who insulted the defendants, questioned their competence, and even  stated that "evidence of war crimes was irrelevant." 

   As for the ICC,  by 26 February 2003  there were 139 signatories as well as 89 states who conceded to the Rome Statues, 18  judges had been approved and  on April 23rd, Luis Moreno Ocampo from Argentina was elected Chief Prosecutor.

   Washington has  long ignored tribunals it couldn't control,  has created am illegal tribunal for purely political purposes and  may try to destroy  any tribunal which threatens its hegemony. The conscience of the world spoke in Rome. Whether this still small voice will gain the requisite support from a war-weary world, time alone will tell.




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