By Attorney Roderick H. Seeman

SUMMARY:

The International Criminal Court is nothing more, but certainly nothing less, than the hoary head of Neo-European imperialism. The Europeans, having vigorously enforced their imperial will on the world at large during the long centuries that they held empires in their steely grasp, now demand, on mere claims of "potential" power, once again, their right through a new court to enforce their imperial diktats. The key is the emergence of the EU, the new political Viagra. Old fuddy duddies, once virile empires, seek once again, artificially, to regain their past vigor through the artifice of the EU.

Now, it is they, the Europeans, who shall decide international criminal law

Now, it is they, the Europeans, who shall decide international trade law.

Yea, thou shalt even obey their international accounting standards (a particular bone in the Japanese throat).

The International Criminal Court is but the clearest example of this Neo-European Imperialism. However, the foundation of this court is nothing more than the artificially puffed-up say so of the Europeans, self-serving bravado, hiding behind a bevy of meaningless, weak, and corrupt tin-pot dictatorships and mini-states.

When the US entered the United Nations it negotiated for years and achieved a General Assembly as a free forum of expression, but powerless, and a Security Council, where it held a veto. The US is specifically denied a veto in the International Criminal Court --- A back door round the American UN veto. Be afraid, oh Israel! Beware, United States! The new European hegemon stalks.

With a swath of jurisdiction claimed by this new court both awesome and unprecedented, superceding even national sovereignty, for any semblance of international credibility, it must perforce meet the highest standards of probity in fairness, justice, and balanced application of the law. In this it dismally fails from the outset.

In this regard, let none forget, that in the real world, not the pearly gates of European dictated heaven, on the 10th anniversary of the greatest genocide in the last quarter-century, the president of Rwanda placed the greatest responsibility for that heinous crime squarely at the feet of France, the leader of this European gang. France’s erstwhile pontification on the benefits of “international law” was shown in its full duplicitous audacity in the Duelfer report in late 2004 proving its cooperation with Saddam Hussein to break UN Security Council approved sanctions. Proving for all to see, that when it comes to “international law” France serves first its own interests, and working against the US is one of the highest such interests.

ARGUMENT

Part I. Court Legitimacy

The world has been replete with courts for millennia. Their legitimacy is seldom questioned. When they are questioned it is usually with respect to the characteristics of the courts themselves, or of the regime that the courts serve.

I. The Legitimacy of a Court in its Own Right.

Let us examine the case of the legitimacy of a court in its own right, separate from that of the regime that the court serves.

Factors giving legitimacy to a court it its own right include, among others, professionalism, fairness, and enforcement of the "Rule of Law.” One can also argue that the absence of such factors lending credibility to a court, lead just as inexorably to a court losing legitimacy, or indeed being illegitimate from the outset..

A. TRADITION

A long history of professionalism, fairness and balanced application of the law gives a court great credibility. Perhaps the classic example of such court credibility was the decision by the United States Supreme Court on the 2000 presidential election. The Court made a highly controversial decision, but the nation as a whole deferred to the decision of the Court, almost entirely due to the credibility of the Supreme Court itself. This tradition can likewise be found in some European nations and Japan.

B. PROFESSIONALISM

Factors proving professionalism include a well-educated and trained judiciary, free of graft and corruption.

Unfortunately, courts in many other nations, notably developing nations, are poisoned by their traditions of graft and corruption.

Graft and corruption erodes out the core of any institution. For example, here follows a recent column from the leading newspaper in one developing country, a country rated the 11th most corrupt in the world out of 146 surveyed (by Europeans):

Ex-Captain Rene Jacque says as much in poignant a letter he recently wrote to his fellow Filipino West Pointers.
“We have known the rottenness of the system all along and how the culture in the Armed Forces of the Philippines was not conducive to professional growth and honest conduct…Some of us gave it a chance, found it unwieldy and incorrigible, and left. Some stuck with the system and played it out only to be sucked into the vortex of corruption and unprofessional conduct. I was trying my best to be as professional and as patriotic but I could never be honest given the extent of the graft and corruption in the Armed Forces of the Philippines. And that was, I believed, unacceptable to my sense of honor and integrity. Hence, I left. (emphasis added).

Attorney Randy David
Philippine Daily Inquirer. October 31, 2004.


C. FAIRNESS AND THE BALANCED APPLICATION OF LAW

A long tradition of fairness and the balanced application of the law is another factor adding to a court's legitimacy. This has long been regarded as the keystone of the strength of the Common Law, arguably giving Common Law courts such worldwide credibility. The long balanced application of clear legal principles developed over centuries aids a court’s credibility. To the contrary however, illogical inconsistencies tarnish court credibility. Politics such as nationalism, racism, and xenophobia, are poisons to the balanced application of the law and degrade credibility and legitimacy.

European treatment of Israel shows that even advanced nations can have their credibility shattered when blinded by a racism that overcomes a balanced application of the law. Europeans widely regard Israel as the "international criminal element" in the Middle East, ignoring history, reality and most relevantly, the balanced application of the law. The State of Israel was established by a United Nation’s resolution. Despite this, Israel’s Arab neighbors on three separate occasions launched wars of aggression against Israel. The Arabs launched three wars against Israel without once seeking the prior authorization or consultation with the United Nations, as so dearly loved by the Europeans. Moreover, the Arabs launched the wars with the loudly declared objective of destroying Israel and driving the Jews into the sea. These are declarations of genocide. After failing miserably at illegal wars, the Arabs turned to terrorism. While admittedly in self-defense, Israel has unfortunately killed civilians. These were accidents, however, not intentional. In what could hardly be a greater contrast, morally and legally, the Arab terrorists have, from the outset, deliberately targeted civilians, even children. This difference in intent in professional, logical legal analysis is regarded as critical in determining culpability. Yet the Europeans, despite the repeated examples of such intentional violations of international law by the Arabs, now regard Israel as the criminal element in the Middle East, showing how blinded they have become by racism, and not able to apply the law in a balanced manner. Now, in their latest “reasoning,” European intelligentsia has added anti-Americanism to anti-Semitism.


The court system is also the main key in determining whether a nation is one of "Rule of Law" or "Rule by Man." A recent scandal exemplifying this difference was the response of the wife of a Filipino general who arrived in the USA with $100,000 in cash but had it confiscated for failure to declare it in accord with US law. Her response, when caught red-handed in violation of US law (and Filipino law), was "Do you know who I am?" --- the classic response of those of governments characterized by the "rule by man," if not more sickeningly, by the inability to touch those "with the guns."

Unfortunately, the widespread inability to touch powerful politicians and military men, a form of corruption poisoning the balanced application of the law, in developing countries (and some powerful nations such as China) degrades the credibility of their court systems.

This is often recognized even in those nations themselves. In October, 2004, after Transparency International found the Philippines the 11th most corrupt of 146 surveyed nations, the lead editorial of the Philippine Star, the second ranking paper in the nation, declared "Graft is rampant at all levels of public service, making a mockery of the rule of law." They acknowledge it. It is a fact, but certainly not only in the Philippines. Yet and excellent example as the Philippines now sits on the UN Security Council

II. Legitimacy of the Regime the Court Serves

The second issue arises when a court's legitimacy is affected by problems with respect to the regime it serves.

Courts have existed in the world's societies for thousands of years. In early history their legitimacy was often based on such factors as enforcement of the will of God, as in the case of Islamic Courts enforcing the Koran. Similarly, other courts enforced the will of the king or emperor (dictators) who achieved power at some point by resort to arms, but often sought legitimacy by claims of Divine Right (e.g. the head of the Church of England). The modern trend is courts enforcing the will of democratic governments. The United States Supreme Court, as well as the Supreme Courts of the 50 states, are themselves based on the provisions of democratically established constitutions. A plethora of other courts exist in the United States based on legislation produced by democratically elected legislatures.

Yet history is replete with examples where the legitimacy of courts are rejected due to the regimes they serve. Recent examples include Palestinians held by Israeli courts, and Chechens held by Russian courts. Some Muslims in the southern Philippines reject Filipino courts as Spain, from which the Philippines claims to have inherited sovereignty, never had substantial control over the southern Philippines where the Muslims are mostly based.

These kinds of claims can be fatal flaws to the underlying courts. Extremist Islamic fundamentalists reject the legitimacy of democratic governments as the mere will of men, which could never supercede the will of Allah and the Koran. If the government's own claim to legitimacy is not respected, the legitimacy of its courts likewise fail. When the American people felt that a British Empire which taxed them, but gave them no representation, was no longer legitimate, the legitimacy of British courts in America were also called into question, despite the presence of professional judges and the benefits of the credibility of the Common Law.

PART II. Application to the International Criminal Court

It is the position of this paper that the International Criminal Court fails on both points. It lacks legitimacy in its own right as well as suffering from the lack of legitimacy of the regime which it serves.

I. First let us examine the legitimacy of the Court in its own right.

1. Does it have tradition to add to its credibility?

As noted above, the common law courts have had their legitimacy enhanced by the long tradition of the Common Law.

The International Criminal Court has no tradition. It is completely new. At best this would be a neutral factor. In this case, however, where a court is claiming such an enormous swath of jurisdiction, worldwide, trespassing on the sovereignty of nations, there should be an enormous burden for it to prove itself. This Court is completely lacking in a tradition which could back its claim to legitimacy.

2. Does it have the professionalism to add to its credibility?

On this point the International Criminal Court is once again woefully lacking. The majority of the members of the International Criminal Court come from corrupt developing nations, mostly in South America, Africa, Caribbean mini-states and a few small developing states in Asia. Again, as noted earlier, corruption degrades a court's claim to professionalism (as well as its ability to apply the law in a balanced and fair manner, the essence of the Rule of Law)

On this point the October, 2004 findings of Transparency International (Berlin based, take note!) are relevant. Its chairman announced that in its 2004 survey of 146 countries "This is an amazing evidence again that corruption is still rampant all over the world.” It found that 60 of the 146 countries suffered from "rampant corruption" while two-thirds of the 146 nations scored less than 5 on a scale of 10 (clean government).

But we are expected to surrender our sovereignty to the judgment of these people?

Since the majority of the nations making up the International Criminal Court are from such nations, in line with usual UN policies, the majority of judges can then be expected to come from such nations. While one can only imagine the sweet joy of judges from France or China in holding sway over a super-power like the US, even more imaginable is the money making opportunities believed by the judges from developing nations, as in the usual practice in their own countries. That members of international organizations from developing nations are often corrupt, has been shown repeatedly at the International Olympics Commission.

How graft and corruption can affect the Rule of Law is seen in one sample nation, the Republic of the Philippines, now a member of the UN Security Council. The Philippine government is a near mirror image of the US government, with a President, a Senate, a House of Representatives, a Supreme Court, a National Bureau of Investigation (NBI), a Bureau of Internal Revenue (BIR), Social Security System (SSS) and on and on.

The rampant corruption makes all the difference.

The country is currently being rocked by the discovery that a military general has what appears to be tens of millions of dollars (not pesos) in assets despite a salary which has never topped $600 a month. While corruption among politicians or bureaucrats in the Philippines has usually involved taking a percentage, a share, with the contractor jacking up the price or degrading the quality to cover the "cut," seldom would they have dared to not actually carry out the project. Not so in the case of the Philippine military, where the bulk of actually working military equipment was given, as a gift, from the USA, usually consisting of obsolete US equipment. But it was given. No contracts were involved with money changing hands.

Military leaders on many occasions simply pocketed the whole project budget with nothing to show for it. This is the most brazen corruption, but the profits are simply too rich to ignore. Recent press reports in the leading media there note that armed forces leaders usually received retirement payouts reaching into the millions of dollars, for a military hardly over 100,000 men and where most of the soldiers do not make even $100/month while living in grass huts out in mosquito infested barrios. A recent military leader even reportedly demanded $3 million before he took his position.

Hence, in the summer of 2002 there was the famous Oakwood mutiny. Its leaders claimed that the generals in Manila were not only failing to provide ammunition and supplies to their soldiers fighting the Muslim rebels in the south, those same generals were actually selling the materials to the rebels, a claim that the Muslim rebels themselves said was true.

President Gloria Arroyo, who took power in a People Power II coup, at the time backed by the military, against the popular President Estrada, who had been elected by an overwhelming majority but who had been charged with --- corruption --- has been rotating various generals to military chiefs and retiring them at rate of about two per year since she took office. This is clearly the world’s most expensive loyalty points reward system running into the millions and millions of dollars.

Although well known, this corruption came to public light when the son of a general tried to bring US$100,000 in cash into the USA (reportedly to buy a condo in Trump Tower in New York City) without declaring it as required by US (and Filipino) law. Later, the general wrote a letter demanding the money back, using Armed Forces of the Philippines letterhead. After the money was confiscated, the wife of the general, in an affidavit to US officials stated:

"I often travel with my husband on business and my travel expenses and shopping money in excess of $10,000-$20,000 is also provided to me. He also receives cash for travel and expenses from the businesses that are awarded contracts for military hardware. These businesses are in EUROPE and Asia. (emphasis added)

(The perpetrator reveals her partner in crime! Europeans more than willing to corrupt a governmental system, ignoring fairness, and balanced application of the law --- i.e. the Rule of Law in an international environment.)

The wife of that general's predecessor was also notorious for frequent international travel, with her primary travel partner being the wife of the general in charge of the military at the time that popularly elected President Estrada was overthrown Since she achieved the presidency when this general turned coat and backed her, President Gloria Macapagal Arroyo has continuously appointed him to one cabinet post after another.

There are now reportedly several military officials under investigation. Yet many generals complained that with the politicians investigating the generals it was like the pot calling the kettle black. Indeed, one of the lead congressional questioners was Congresswoman Imee Marcos, daughter of the late dictator. Since returning to the Philippines, after a few years in exile, the family now serves in such positions as congresswoman and provincial governor. Nothing really ever happened to them. They were never punished. They never apologized. Perhaps they think they did nothing wrong.

Nevertheless, President Estrada, who overwhelmingly won his presidential election with the largest margin in history, was removed from office in a totally unconstitutional manner, and now sits in jail under trial for the constitutionally mandated crime of plunder for stealing more than $1 million (50 million pesos) from the government, a crime which carries the death penalty.

A balanced and fair application of the law would require similar trials for these generals. Yet the reality was when the horrors of these generals hit the headlines, the primary general in question headed for the hospital to flee congressional investigations, under claims he was suffering from a fancy medical name for snoring. Despite repeated demands, he failed to appear before Congress. He stayed hospitalized until squirreled out, under military escort, at 1:30 a.m. Sunday morning, the most likely time any responsible person would not be working. He was taken into house arrest in the military camp of the central military command. When he later appeared before Congress he appeared with his lawyers and kept repeatedly invoking the Filipino equivalent of the Fifth Amendment right to not incriminate himself. The military had rounded the wagons in self-protection.

How these generals escape is a form of corruption that rots out the heart of a fair and balanced legal system. From the time President Marcos corrupted the military for their loyalty, all succeeding presidents have feared to touch them.

This is not to say that this is a Philippines specific problem, it is a template of corruption in most developing nations. Relevant here, however, the Philippines presently sits on the United Nations Security Council, but subject to the United States veto power. The International Criminal Court does not provide that protection.

3. Is it fair and does it follow the Rule of Law?

While it may be difficult to argue that European judges would be lacking in professionalism, it is certainly possible to argue that Europeans have problems with fairness and the Rule of Law in international cases. The strong indications of anti-Semitism among the European intelligentsia, now expanding into anti-Americanism, is more a beacon for alarm, than a basis for ceding the enormous power the International Criminal Court now demands.

As noted earlier, the total disregard among Europeans of the blatant criminality by the Arabs, launching wars of genocide without prior UN approval, and the deliberate targeting of Israeli civilians, while painting tiny Israel as the giant evil ogre of the Middle East clearly casts grave doubts on European fairness, impartiality and the ability to apply the law in the balanced manner that the "Rule of Law" requires. European glasses, tinted and distorted, see “Evil Israel” today, and “War Criminal America” tomorrow.

Indeed the manipulations by France in 2001 (before Sept. 11) to have the United States removed from the United Nations Commission for Human Rights while making Libya the chair country, puts the lie to any claim that the leading European nations will act on the basis of fairness and the Rule of Law, and more clearly demonstrates that the guiding principal for them will be geopolitics. Those unfair and unbalanced games will poison the International Criminal Court as assuredly as it did in the United Nations Commission for Human Rights.

With respect to that issue of Rule of Law I would like to take a quote from a Filipino lawyer, and leading columnist in the Philippines top daily newspaper, a gentleman, usually very left wing, and not a friend of America, when he talked to his lawyer classmate who was defending a general charged with corruption:

The law is about basic fairness, Tito reminded me. Under the rule of law, there is a presumption of innocence until guilt is proven. It is what separates rule of law from mob rule, he said. He lamented media's tendency to highlight the negative aspects of a person's (nation’s?) appearance and situation and to take these indications of his guilt. I could only nod in agreement. By coincidence, I've been reading the book "Supreme Court (US) Decisions as Philosophy" and marked a line in the landmark case of Conde v. City Judge Superable Jr. "When a litigant is therefore an individual for whom he (the judge) does not cherish kindly thoughts, he is called upon to show greater care lest inadvertently he finds himself unable to resist the prompting of his emotions."
Attorney Randy David. Philippine Inquirer. October 24, 2004.

Thus “greater care” is required, not the roguish self-interest exemplified by the French. Less, is not the standard required of a court demanding such unprecedented jurisdiction. Its position must, at a minimum, be unquestionable.

The actions of the French in the United Nations Human Rights Commission, manipulating to have the US completely removed and Libya made head, makes an enormous mockery of any French or European pretense of fairness and balance. In the sphere of Human Rights the United States is dismissed while Libya is lauded. The U.N.'s Commission on Human Rights in 2004, includes such role models as China, Cuba, Saudi Arabia, Sudan, and Zimbabwe. The facts are that of 86 separate votes held at the 2004 Commission, the U.S. was in the minority 85 percent of the time. Such perversity and geopolitical games should poison the International Criminal Court and its claim for legitimacy. Why should an established defender of human rights worldwide be dismissed while paeans paid to Libya (how many Libyans have died defending freedom?)

Why should a superpower bow down before such a mockery calling itself international law? Why should any free peoples agree to such unfairness and lack of balance ---the perversion of the Rule of Law. America long ago had a revolution against a European imperialist trying to impose laws which the American people felt unfair. Indeed, in American tradition, you shoot poker players who try to play with a stacked deck.

II. Legitimacy of the Regime the Court Serves

Although more than enough has already been presented to dismiss the legitimacy of the International Criminal Court in its own right, the stronger argument is with the regime the court serves.

What exactly is the regime the Court serves (other than the EU, which is our thesis).

Is there a world government with a president or prime minister?

NO THERE IS NOT.


Perhaps we should go back to an older belief system in giving legitimacy to the court.

Is it the will of God, or the Gods, if you will?

What a hoot!

At least in the argument of the extremist Islamic fundamentalists, there would be a world government ruled by the will Allah as shown primarily through the Koran.

But no, here the biggest backers of the International Criminal Court, the Europeans, are the leading secularists of the day. France, a traditionally Roman Catholic nation, according to the BBC, now has about 2000 priests in training to serve a nation of near 60 million. In the UK, there are more minority Muslims attending mosque every Friday than the rest of the country attending the Church of England on Sundays. While European intelligentsia takes great glee in mocking the religious fervor of the American bumpkins, the moral superiority the Europeans very loudly claim today is merely their own say so, certainly not any claim to the will of God. At least a Moslem fundamentalists claims to act in the name of God. An American born again believer also believes they act in the name of God. European secularists act only in the name of their own moral superiority. Nothing could be more arrogant nor more insufficient as a standard for others.

So are even the backers of the International Criminal Court claiming it is based on the will of God?

OF COURSE NOT.

So what exactly is the basis of the court?

There is an international treaty called the Statute of Rome.

As a treaty, being no more than an international contract, it is not binding on countries not party.

Quite clearly it is binding on those nations which have approved the treaty, just as with any other contract.

But it is clearly not binding on others. Likewise, in litigation, the core principal of the Due Process of Law adds legitimacy to decisions to make them binding. There have been divorce agreements where two parties agree, among themselves, that a third party, not a party to the litigation, owed them money. However, no professional court would enforce such a judgment against that third party, not a party to the case, nor given the opportunity to defend. It would not be fair. It would not be professional. It would be arrogant, arguably imperialist.

So is there a statutory or contractual basis for its claim for jurisdiction over non-signatories?

NO THERE IS NOT.

Was it due to worldwide demand? One sort of democratic legitimacy perhaps?

Look closely at the list of nations which have NOT joined the court:

The United States of America (The hyper-power, in the word of Europeans)
Japan (The world's 2nd ranking economic and technological power)
China (The world's most populous nation)
India (The world's 2nd most populous nation)
Russia (Europe’s largest nation with military & technological power)
Indonesia (The world's largest Islamic nation)
Pakistan (The world's second largest primarily Islamic nation)

And on, and on…

Clearly these nations make up the OVERWHELMING majority of the world's population and power. This becomes even more clear if the Europeans are taken out of the Court’s picture.

Indeed, Brazil, the largest of the non-European backers, has an economy, the entirety of which is smaller than the net increase (not the entire economy, just the net increase) of the US economy in 2004, in addition to being a geopolitical competitor to the US in South America, again emphasizing the geopolitical nature of the court.

Not that it would be an adequate basis in and of itself, but is there then, some kind of democratic majority in the world, adding legitimacy to the International Criminal Court?

NO THERE IS NOT.

Legitimacy through Force of Arms.

The hard cold reality of the world is that most governments achieved power, or legitimacy, at some point in time, through force of arms.

Is force of arms basis for the international jurisdiction of the International Criminal Court?

Again, what a hoot.

The Europeans, the primary backers of the court, have done nothing but cut their defense budgets since 1990. The combined military budgets of the major European nations in 2004 hardly reaches a third of US military spending. The average age of soldiers in the largest European army, the German army, is 38, emphasizing another weakness of Europe - declining, enfeebled (physically and morally) populations suffering the galloping ossification of their populations.

Indeed, in both the wars in Bosnia and Kosovo, right in the midst of Europe, itself, the Europeans were not able to handle the situation alone without calling in the cavalry---the Americans. Despite their mighty pretensions, the Europeans, under the aegis of the United Nations, promised protection to the Muslim Bosnians in a safe zone in Sebrenica. But the Serbian irregulars, not even a part of the professional Serb army, just Bosnian Serb irregulars, looked right in the eye at those offering the protection, European military professionals, and thought “these ladies won’t fight.” And they were right. Thousands of Muslims acting on promises of the United Nations and European military professionals sought refuge and were slaughtered, while the Europeans stood aside and watched. Another European induced war crime, following Rwanda.

Even Europeans admit that the war in Kosovo illustrated the technological superiority of American forces over their European allies, even as the first land forces entering Kosovo, were Gurkhas, remnants of British Empire, to this day denied citizenship after centuries of defending the Empire (you can get international fairness from these imperialists?). Crucially it indicates the extreme reluctance of the Europeans to put any of their soldiers on the line.

So was the basis of the International Criminal Court to serve a regime which held sway at the point of a gun?

Give me a break.

Absolutely NOT.

CONCLUSION

The International Criminal Court is nothing more than an attempt at geopolitical imperialism by the Europeans, unable otherwise to achieve legitimacy, hidden behind a bevy of two bit (that is their value in the real world) corrupt regimes.

That the Europeans, the EU, backs this Court gives it to no more worldwide jurisdiction than a tennis court. The political viagra of the European Union may put something up, an institution, a Court, whatever, but that does not disguise the old hoary European lust for power. Political viagra does not transform one into a font of economic dynamism, give one the youthful creativity for new revolutionary technologies, nor the thrust of hard military power. It most certainly does not give their secular civilization the moral mandate.

Finally, this European legal sophistry suffers from the intellectual dishonesty that it will provide a balanced Rule of Law. The French, the leader of the European gang, have made that patently clear. Held complicit in Rwandan genocide, shown avaricious in enforcing UN sanctions against Saddam Hussein, France is hardly the moral beacon it pretends. The International Criminal Court is naked geopolitical imperialism and adds not one iota to world legal advancement.

It has no credibility. It deserves no legitimacy.

POSTSCRIPT
One of the European foreign policy leaders, either Chris Patten or Juan Solana (this “united” Europe is so confusing) recently stated Europe was not Greece to America’s Rome. In this, whichever one it was, he was correct.

Correct as well was Saddam Hussein. On the eve of the US invasion, he said America was the modern Genghis Khan. I add only that is to Europe’s China. China as well was an ancient, enfeebled civilization resplendent in its confidence of its superiority over the barbarian Mongols upon which it also depended for its very defense. In the end however, as with ancient China, no matter how much viagra the EU takes, real men will not be defeated by the manipulative strategies of eunuchs.

Copyright 2005. All rights reserved Attorney Roderick H. Seeman

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