Sermon for 4 May 2002, 1st Unitarian Church of Alton,, Illinois

ICC, GIANT STEP FOR GLOBAL JUSTICE

Ronald J. Glossop

I.  Introduction.
A. One of the seven "Purposes and Purposes of the Unitarian-Universalist Association" is "the goal of world community with peace, liberty, and justice for all."
B. A giant step for the realization of this goal is the current creation of an International Criminal Court (ICC), the most important development in international law since the creation of the United Nations in 1945
C. Unfortunately, the media in this country are not paying much attention to this giant step forward, maybe because some influential people in our society don't like this potential check on their power, but more about that later.

 II.  What exactly is the International Criminal Court (ICC) and what is new about it?
A. The International Criminal Court is a new permanent institution being created by the national governments in order to prosecute individuals who commit genocide, crimes against humanity, and war crimes.  The crime of aggression will be included later after a definition of this crime as it pertains to individuals is worked out.
B. The ICC is different from the International Court of Justice (ICJ) or "World Court" which was established at the same time as the U.N. because the only parties that can appeal to such a court are national governments, and even then all national governments involved in any case must agree to accept the jursidiction of the ICJ before it can proceed.  Furthermore, even after a decision has been rendered, the ICJ has no way of enforcing its judgment.  The U.N. must do that.
C. The idea of holding individuals accountable for violating international law was put forward in 1937 when the League of Nations adopted a Convention for the Prevention and Punishment of Terrorism along with a separate treaty to create a standing international criminal court with jurisdiction over the offenses specified in that terrorism convention.  But only one ratification occurred before World War II sidetacked this effort to deal with individual criminals at the global level.
D. The practice of prosecuting individuals for war crimes was greatly advanced by the Nuremberg International Tribunal for Nazis established after World War II.  Among the most important principles established there was the idea that the claim that "I was just following orders" or "My position in the government required me to do that" could no longer be used as justifications for committing such heinous crimes as genocide.  A similar international tribunal in Tokyo addressed the war crimes and the crimes of inhumanity committed by Japanese leaders.
E.  In 1948 when the U.N General Assembly adopted the Genocide Convention, it also asked the International Law Commission to investigate the possibility of establishing an international court to try persons accused of creating genocide or other international crimes.  In 1951 a draft statute was provided by the Committee on International Criminal Jurisdiction, and it was revised in 1953, but no subsequent action was taken.
F. The need for an international court to deal with drug trafficking was raised in the U.N. General Assembly by Carribean countries, led by Trinidad and Tobago, in 1989, but there was not enough support to keep the proposal moving.
G. In 1993-94 the U.N. Security Council established two ad hoc tribunals to investigate and prosecute individuals for the war crimes, genocide, and crimes against humanity committed in the former Yugoslavia and in Rwanda.  It is the ad hoc tribunal for the former Yugoslavia which is presently trying Slobodan Milosevic.  The work done in these ad hoc tribunals has laid the groundwork for the ICC.
H. Realizing that the establishment of separate ad hoc tribunals by the U.N. Security Council after the crimes are committed is not a sure way of dealing with them and does very little to deter them, in 1996 the U.N. General Assembly adopted a resolution calling for an international conference to be held in 1998 to work out a treaty to create a permanent international criminal court.

I. The conference was held in Rome in July 1998, but there was considerable doubt that anything significant would come of it.  There was some hope, however, since U.S. Secretary of State Madeline Albright was a strong supporter of the idea and the U.S. State Department was actively involved in developing a court which would embody American ideals of justice.
J.  The details of how the court would function, how the crimes would be defined, how it would be related to national courts, and how judgments would be enforced were worked out in Preparatory conferences and finally in Rome itself.  The final vote was 120 countries in support of the treaty and only 7 against--China, Iraq, Israel, Libya, Qatar, the United States, and Yemen.  Twenty-one countries abstained.
K. The success was due in great part to the work of NGOs supporting peace, justice, and the protection of human rights.  The big countries leading the effort for the court were Canada, Australia, the United Kingdom, Germany, Norway, and Italy.
L. At the signing ceremony on July 18, 1998, U.N. Secretary General said:
     "No doubt, many of us would have liked a Court vested with even more far-reaching powers, but that should not lead us to minimize the breakthrough you have achieved.  The establishment of the Court is still a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law.  It is an achievement which, only a few years ago, nobody would have thought possible."
M. The treaty indicates that it goes into effect on the first of the month 60 days after it has been ratified by 60 countries.  It was generally predicted that it would take ten to twenty years for that to happen, but the NGOs used their energized members to make it happen in less than four years.  On April 11, 2002 ten countries deposited their ratifications in New York to bring the total up to 66.  That means that the ICC comes into effect on July 1, 2002.
N. The ICC is controlled by the Assembly of States Parties, representatives of those countries which have ratified the treaty.  Each state gets one vote.  The Assembly will elect eighteen judges, no more than one from any one country.  They serve for nine years (one-third being elected every three years) and are not eligible for re-election.  They are divided into three chambers:  (1) a Pre-trial Chamber, (2) a Trial Chamber, and (3) an Appeals Chamber.  One of the judges will  be elected President, and two others will be elected First Vice-President and Second Vice-President.  Judges from the Pre-Trial Chamber act as a kind of grand jury to determine whether evidence is sufficient to proceed to an actual trial.
O. The Assembly also elects the independent Prosecutor and one or more Deputy Prosecutors, but these persons may be excluded from cases where there are reasons to doubt their impartiality.  The Prosecutor has a staff of investigators and assistants and has a great deal of freedom to pursue any cases where it is claimed that crimes under the jurisdiction of the Court have been committed.
P. A third organ of the Court is the Registry headed by the Registrar, the primary administrative officer of the Court.  The Registrar and any Deputy Registrars are under the authority of the President.  The Registrar is required to establish a Victims and Witnesses Unit to provide security.
Q. A system of complementarity is stipulated whereby the ICC proceeds only in cases where the appropriate national governments are not taking action.  In fact, one important result of the creation of the ICC is that national governments have revised their own national legal systems to deal with genocide, crimes against humanity, and war crimes.  The U.S. argued strongly for this system and it has become part of the statute.  Nevertheless this very system of first jurisdiction by national courts is ignored by many of those arguing against the ICC 
R. The Assembly of States Parties elects a President, two Vice-Presidents, and 18 representatives which constitute the Bureau, which decides matters between meetings of the whole Assembly, which are held at least once a year.

S.  Miscellaneous additional points
     1. Crimes against humanity include cases of mass rape, enforced prostitution, enforced pregnancy, and other sexual exploitation of women or children.
     2. Crimes against humanity include extermination, enslavement, forcible transfer of a population, enforced disappearance, torture, persecution and apartheid when carried out as part of a widespread or systematic attack against a civilians.
     3.  There can be no death penalty, but life imprisonment is possible
     4.  The site of the ICC will be The Hague in the Netherlands close to the present location of the ICJ.

III.  Why is the creation of the ICC so important?
A. The great advance with the ICC is that individuals can be prosecuted for genocide, crimes against humanity, and war crimes even when their own national governments won't or can't take action against them.
B. For the first time there will be a deterrent to national leaders contemplating actions which violate international law.  Even if they can silence their own national courts and opposing national leaders, they will not be able to silence the ICC.
C. The ICC can take action against government leaders who commit murder and such crimes against people in their own country even during peace-time
    1.  During the 20th century, governments killed more of their own people (170 million) than died from warfare (100 million).
    2.  National governments are the culprits in such cases, and the ICC will be able to take action against them.
D. The ICC will be able to take action against individuals who commit the relevant crimes also in countries where there is no effective national government.
E. The ICC can help to prevent wars because it can separate the responsible individuals from the larger groups to which they belong, so it will not be necessary to take retaliatory action against the whole group, as occurs in warfare.  Instead of going to war against Japan or Germany or North Korea or Iraq, the international community could focus on action against individual violators of international law. An important way of preventing violent acts against a whole group of people is to make sure that the individuals in that group who commit violence are punished as individuals for their acts.  That is how we deal with the problem of violence within our national community, and that is how we should deal with it in the international community, including nations which don't do it themselves.
F. With regard to our present problem of dealing with terrorism, we need to view the terrorists as individuals who have committed a crime against humanity rather than as enemies in a war.  Conducting war should be replaced by police action and judicial procedures.  There is a vast difference between engaging in war against "the enemy" (who is to be conquered or destroyed) and supporting law-enforcement officials going after individual suspected criminals (who are to be arrested, tried in a court, and then punished on the basis of the verdict).
G. The international protection of human rights trumps national sovereignty.

IV. What has been the position of our U.S. government on the ICC, & why has it changed?
A. After World War II, the U.S. was a leader in the effort to get the international community to recognize and defend human rights.  We championed the Nuremberg and Tokyo tribunals and international measures such as the convention against genocide.
B. In 1993-94 the U.S. supported the creation by the U.N. Security Council of the ad hoc tribunals to investigate the ethnic cleansing in the former Yugoslavia and the genocide in Rwanda.
C.  Senator Jesse Helms noted that these international tribunals, including the ICC, are fine as long as they don't try to take action against Americans.
D.  Early support for the ICC by the United States may have been due to the expectation that cases would go to the ICC only when referred there by the Security Council, where the U.S. (as well as Britain, China, France, and Russia) has a veto.
E. When it became evident that the ICC would have an independent prosecutor who could initiate investigations without prior approval of the Security Council, opposition began to mount against the ICC, especially from the Department of Defense.

F.  In Rome in 1998 Clinton decided to follow the recommendations of the Department of Defense rather than those of the Department of State, and thus the U. S voted against the treaty.
G. Because of a campaign by NGOs such as Amnesty International, UNA-USA, the World Federalist Association, and many other human rights groups, Clinton signed the Rome Statute on December 31, 2000, the last possible day when a country could sign the treaty without ratifying it at the same time.
H.  Now measures are being advanced in Congress for and against support for the ICC.  The far-right conservative Republicans like Helms, Craig, Armey, and DeLay are leading the charge against the ICC while liberal Democrats like Dodd and Delahunt are leading the effort to support the ICC.
I. The Bush administration has indicated its opposition to the ICC and has been investigating the unprecedented act of "unsigning" the treaty to show that the U.S. has no intention of giving it any support, even in terms of providing evidence we might have against those who have committed such crimes.  Our European allies, as enthusiastic supporters of the ICC, have been trying to head off such action, but the U.S. seems to be ready to go ahead anyway.
J. This stance seems to be part of a unilateralist view on foreign policy advanced by the Bush administration despite the resistence of Secretary of State Powell and many of our allies.
K. Theoretically, our leaders are supposed to be restrained in their exercise of power by the public, but due to the general silence of the media most of the people of this country do not realize that the U.S. is opposing the ICC as well refusing to support the treaty to outlaw the production and use of landmines, the Comprehensive Nuclear Test Ban Treaty, the Law of the Sea Treaty, the Convention on the Rights of the Child, and the Convention to Eliminate All Forms of Discrimination against Women.
L.  The general support for a universal approach to protecting human rights advanced by the U.S. during the first three decades after World War II has been totally reversed.  The U.S. no longer needs to worry about the influence of the Soviet Union/Russia in the world community.  This country is in a position militarily and economically to call the shots, and we seem to be ready to use our position of dominance to run the world in accord with the interests and ideologies of those who control our own government.  We will not only make the rules which others must follow, but we will also be the judge of who is or is not following the rules and also the enforcer of the rules.

V. Conclusion
A. The International Criminal Court is a great advance in the building of institutions that promote the rule of law in the world.
B.  A central principle the idea of law is that the powerful must obey the law as well as the powerless.
C.  We in this country must be vigilant.  Power corrupts, and absolute power corrupts absolutely--even Americans.