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Liberal_Jihad_Cover.jpg Forward USA

Sunday, January 02, 2005

The International Criminal Court: Another Look

A reader objects that we are indeed subject to the jurisdiction of this international body.

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It was argued in Can the International Criminal Court Prosecute American Military Personnel for Alleged War Crimes? that once again the forces of liberal-socialism were attempting to highjack our Constitution and our laws.? This was in response to Kofi Anan’s news conference condemning United States refusal to submit our military and diplomatic personnel to the International Criminal Court for trial as war criminals.

A reader recently emailed the following commentary, to which my replies are interspersed in brackets:

From Article VI of the US Constitution:
?This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and ***all Treaties made***, or which shall be made, under the Authority of the United States, ***shall be the supreme Law of the Land***; and the ***Judges in every State shall be bound thereby***, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Since we (the US) signed both the UN Charter and the UN Human Rights Charter, it does appear that these United States are subject to these laws you speak of as ?the supreme law of the land,? according to our constitution . In fact, we signed both with great fanfare and have often used their provisions to our own advantage. Why do we insist on applying them in some cases but not in others?

[My reply: The international Criminal Court (ICCt) was not part of the United Nations in which Congress authorized our participation in 1945.  The ICCt did not come into existence until the Rome Statute of the International Criminal Court in 1998.  The United States, under the Clinton administration, was one of seven nations that rejected the International Criminal Court. 

Article II, Section 2, of the Constitution states that treaties are to be made with the advice and consent of two-thirds of the Senate.  No such consent has ever been given to the Rome Statute of the International Criminal Court.

You may be confusing the ICCt with the International Court of Justice, which was part of the UN’s original charter, signed by the United States on June, 1945. The International Court of Justice, to which we did give assent, has no jurisdiction that would permit it unilaterally to file criminal charges against anyone or any nation.  It handles only ad hoc legal disputes between sovereign nations regarding such matters as trade agreements and consular disputes to which the involved nations are signatories.

Signing the UN Charter was ratified by the United Nations Participation Act, Public Law 264, 79th Congress, approved December 20, 1945.  Note however that Public Law 264 was a legislative act passed by both houses of Congress.  It was not a treaty, which would have required “advice and consent” by two-thirds the Senate alone.  Our participation in the UN, for this reason, can be described neither as as a treaty obligation, nor as the law of the land supervening the Constitution and statutes passed by Congress.

Public Law 264 does not commit the United States to do anything at all.  It simply grants the President the right, with the advice and consent of the Senate, to appoint various official envoys to the United Nations.  Only Sections 5 and 6 deal with U.S. actions in compliance with UN resolutions.

Section 5 (a) of the act states that in responding to requests by the Security Council under the provisions of Article 41 of the UN Charter, the President MAY take steps to comply, using any agencies under his control.  There is nothing mandatory about compliance with Security Council resolutions, as we know from decades of Russian, Chinese, and Iraqui obstruction.

Article 41 of the UN Charter says: The Security Council MAY decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it MAY call upon the Members of the United Nations to apply such measures. These MAY include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Section 6 of Public Law 264 authorizes the President to negotiate special agreements with the Security Council, which, however, are to be subject to the approval of Congress.  This is very far from a binding treaty obligation to take any specific action in response to resolutions that may issue from the UN.

Your argument is therefore baseless.]

Moreover, the US was founded by people who respected the rule of law?as opposed to the rule of individual power holders such as King George. Support for an international tribunal merely extends their respect for law to the international arena.

[My reply: There is no historical basis for linking the understandings of the founders in 1787 to international tribunals or collectivized world governments.  The polar opposite was the public watchword from 1787 until 1945: no entangling foreign alliances.]

If nations (especially ours) do not follow the rule of international law as formulated through due process by internationally recognized bodies such as the United Nations, the result will be chaos - more wars, killing, and destruction, quite possibly on a massive scale.

[My reply:  If there were any evidence at all that collective security agreements prevent war, one could agree with you.  Unfortunately,  yours is a fairy-tale assumption belied by actual experience.

Nothing in the UN’s history even faintly resembles “international law as formulated through due process.”  Apart from a few toothless resolutions and token “peace-keeping” forces, it has done little of note.  The League of Nations took no action to stop Fascist Italy’s aggression in Ethiopia or the Japanese rape of Mancuhuria.

Only on two occasions has the UN done anything to stop wars, and both were done unilaterally by the United States, with a “me too; let’s you and him fight” UN imprimatur: US envoy Ralph Bunche negotiated a cease-fire in 1949 between Israel and the Arab nations, and American forces in 1950 fought to stop invasion of South Korea by Communist North Korea. 

The UN, however, has declared Israel guilty of humanitarian crimes for defending itself against Palestinian suicide bombers, and UN “peace keepers”  have terrorized those under their protection by demanding sexual favors in exchange for food, and other humanitarian aid.  The Iraqui oil-for-aid racket was the largest financial crime in world history.  See UN “Moral Authority”.

The UN stood idly by while millions of Africans were displaced and slaughtered in past years.  Most recently, they turned a blind eye to massacres in Sudan, until Secretary Powell visited refugee camps and made the situation newsworthy.  Even with that, the UN has taken no effective action to stop the slaughter.]

It is no coincidence that the period following World War II is the longest period in which the great powers have not engaged in major wars with one another.

[My reply: Your assertion is incorrect.  The longest modern period without major wars was the 19th century Pax Britannica, from Napoleon’s defeat in 1815 until the outbreak of World War I in 1914.  That was based entirely on continually shifting alliances among nations, based on their individual national interests.  The Pax Britannica was summarized by Prime Minister Palmerston, who said that England has no permanent allies, only permanent interests.  This led England to ally itself at different times with France, Austria, or Russia, depending upon which power was the weakest, in order to preserve the balance of power on the Continent. 

In contrast to your theory about international law and world peace via a collective world body, peace, as people then understood, was a product of the military power to inflict enough harm to aggressors to make aggression a poor bargain.]

If you wish to live in a world where might makes right, where wars are forever made on an individual?s whim, and where people both home and abroad suffer from large-scale destruction (abroad) and misappropriation of funds (at home),

[My reply: It is a regrettable fact that must be faced: international disputes, except where the disputants have some common interests, can only be settled by force of one kind or another.  No nation can remain independent if it simply backs away from protecting its citizens’ interests.  Appeasement invites further aggression, as Neville Chamberlain learned in 1938.  If mutual interests are not present as a basis for diplomatic agreement between the antagonists, they must fight alone or in alliances with others to protect themselves. 

Of course, if peace is to be our overriding objective, it is very easily obtained.  We have simply to lay down our arms and surrender to our enemies, and all military action against us will halt.

The United States, isolated from the rest of the world by two immense oceans until the advent of ICBMs and terrorists, was sheltered from the immediate threats that always bedeviled Europeans and, so, developed a completely unrealistic world view.  To quote Walter Lippmann’s U.S. Foreign Policy: Shield of the Republic, “The ideal of peace diverted our attention from the idea of national security.  The ideal of disarmament caused us to be inadequately armed.  The apparently opposed ideals of non-intervention on the one hand, and of collective security on the other, had at bottom the same practical result in that they inhibited us from forming our necessary alliances….The habits of mind of Americans of our generation (i.e., 1943) are quite alien to those of the Founders of the Republic.  Washington, Hamilton, Jefferson, Madison, Monroe, entertained none of the basic illusions which have dominated the later generations of Americans.  They did not regard peace as more important then the national security.”  Lippmann, as you may know, was a founding editor of The New Republic when it was the most influential liberal-socialist publication in the United States.

Previous attempts at world-peace via international law and collective security have been ineffective or counterproductive.  Throughout the 20th century, liberals plumped for the theory that mutual disarmament would prevent wars, because every nation would have less capacity to start wars. 

International agreements to reduce the numbers and sizes of naval vessels after World War I had only negative effects: they prevented free governments like the United States and Great Britain from combining in alliances that might have prevented German and Japanese aggressions that led to World War II, and they left both of us unprepared to wage war when it came.  It should not have required a genius to expect that aggressor nations like Germany and Japan would simply ignore the arms limitation agreements and conceal the full extent of their military preparations until it would be too late for us to respond.  As a consequence, our forces were very nearly defeated before war production reached full capacity in the mid-1940s.

We have seen the same thing recently.  The Clinton administration believed that it had contained North Korea’s nuclear weapons programs via appeasement, while the public was ignorant of the extent of Iran’s nuclear weapons development program.]

I am quite sorry to say that you are not in concurrence with the ideas and viewpoints of our founding fathers, nor can I understand how such a viewpoint can be deemed to support either the spirit or the letter of the Constitution that was written by these far-sighted people.

There is much else that either is misrepresented by your argument or simply has little or nothing to do with the present world. I am not going to delve too deeply into such matters here, but note that many of the details a person of a 16th-century European upbringing, with the pecular views and understandings of the Europe at that time, wrote about international law may and probably do have very little relevance to today?s international world;

[My reply: What philosophers had to say about human nature and politics in the 16th century remains fully relevant today, because human nature has not changed in thousands of years.  The attitudes and interests of people and nations are just as they were in the most ancient of known civilizations.  Historical records of Egyptian, Hittite, Persian and Babylonian rulers’ commercial exchanges and military actions are entirely understandable in light of today’s concerns.  Reading Thuycidides’s 5th century BC “History of the Peloponnesian War” is like reading about the USSR and creation of its Comintern Eastern European trading bloc.

What in fact has no further relevance to today’s world is the UN.  The Cold War is over; we must deal with terrorists wherever they are to be found, and do so as stealthily and swiftly as possible.  Submitting such action to pre-approval of a Security Council comprised in the majority of nations whose interests are inimical to ours is ridiculous. We must be free to make ad hoc alliances with individual nations wherever those alliances will protect our national security.]

it is self-evident that most people in the world would reject an overt ?Christian rule? over their lives; and, contrary to your implication, there is no doubt among historians the founding fathers were, in fact, predominately influenced by the philosophies born of the Age of Enlightment, or the Age of Reason (see http://htomc.dns2go.com/atheism/library/separat.txt . See also Thomas Paine on religion at http://www.deism.com/paine.htm ).

[I challenge you to find a single case in which the writings of any French Enlightenment philosopher other than Montesquieu influenced the thinking of the Founders.  Montesquieu was no champion of Enlightenment radicalism, but thought that the British constitution, with its checks and balances of powers, was the most perfect on earth.  You certainly will find nothing at all to support your assertion in James Madison’s Notes on the Constitutional Debates.  Even Francophile Jefferson was repelled by the excesses of the French Revolution and swung to the view that America ought to remain a nation of individual farmers in order to avoid the socialist collectivism of France.

Thomas Paine was popular only briefly, when he wrote his stirring prose during the darkest days of the War of Independence.  After the war he was shunned by the American public, because of his radical views, and moved eventually to France.]

And, while Mahan?s ?Once More: Why are We in Iraq?? is interesting as a statement of fact for his time, we as a species are in danger of losing everything if we cannot vigorously pursue and find ways to live more peaceably with our fellow humans and if we do not greatly reduce the destruction of our shared environment. Perhaps we can learn from the baboons ( http://www.commondreams.org/views04/1230-05.htm ).

The reasons for the war are fairly plain to see with even a cursory review of the history and facts behind the invasion. To wit:
* The Project for the New American Century (PNAC - Rumsfeldt, Wolferitz, Cheney, etc.), had been pushing for an invasion of Iraq for many years. In a paper published in 2000 ( http://www.newamericancentury.org/RebuildingAmericasDefenses.pdf page ,51, top-left), the PNAC stated that in order to gain support from the American people to pursue policies such as the takeover of Iraq and the encirclement of China, a ?Pearl harbor? type event was needed; So, guess what, 9-11 happened.

* The Bush administration had produced a detailed plan (several hundred pages) for taking over ?post-war? Iraq?s economy well before any of us even knew that a war was in the works.
* Among other astounding proclaimations, Brenner and others have laid forth laws that provide 100% foreign ownership of pretty much the entire Iraqi economy - finances, oil, other resources, you name it, and the right to remove 100% of the profits (while also proclaiming that we?re fighting this war for the Iraqi people). To my knowledge, no other country allows such foreign ownership and pillaging of itself as a sovereign nation - we certainly don?t allow anything like it here.
* The weapons of mass destruction arguments made before the war were such pathetic lies that I still can?t understand why anybody could fall for them - mobile biological labs (filled with incredibly lethal cocktails that could kill the scientists working on them instantly while trigger-happy US and British fighters fly overhead), some Al Qaeda-affiliated group stuck between Kurdish-controlled territory and Iran well out of any possible control by Saddam, tubes and nuclear fuel that had already been discredited by every expert outside of the administration, etc.
* Rather than being an ?imminent threat? (which didn?t pass the laugh test), Saddam was a pathetic third-world dictator whose country?s institutions, military and people had been devastated by war and sanctions until they needed only a small push to topple.
* And the supposed attempt to bring ?democracy? to Iraq through the killing of tens of thousands of innocent civilians is the biggest crime of this young century.

Looking at the doings of the great powers through history and the current world situation, it is clear that the Neo-cons in the Bush Administration went to war in order to gain control over the most essential resource on the planet - oil, and to be able to deploy large milatary bases in the Mid-East. This provides them leverage over not only Europe and Japan, but also over China, which threatens to be the next superpower. And, by the way, there is no doubt that the takeover of Iraq was also thought by the Neo-cons to be a great investment boon for American businesses.

[My reply: American liberals have thought it a virtue to be unprepared and to resist defending our national interests.  Karl Marx’s call for collective solidarity of the socialist workers of the world and opposition to “capitalists’ wars” is instead the sort of ideal that fires American liberals’ blood.  This makes it easy to denounce any American military action as simply a conservative plot to enrich Big Corporations.]

So, instead of spending money on education (I have three school-aged children whose school suffers from lack of funding); health (our nation?s health ?system? is the laughing stock of the developed world - regardless of how many times the politicians say it is the ?envy? of the world. When I mention this ?envy? to Western Europeans or Japanese, they are utterly speechless with disbelief that people here fall for such lies. Moreover, our health contraption of a system is poorly configured to simply combat the spread of a virulent disease, much less an actual biological attack); alternate energy, and other needed programs, we are spending what will end up being hundreds of billions of dollars to destroy a country and to place our hard-earned dollars into the coffers of large, already wealthy American corporations and their directors. Remember, our government is supposed to be for the people, not for the corporations and war-mongers.

[My reply:  With regard to education, students do not suffer from a lack of spending.  The worst-performing school districts like DC and Newark, NJ, have the highest per-student expenditures.  Increases in school spending mandated by Federal judges have failed entirely to improve educational performance.  The problem has existed only since the 1960s.  Before the 1960s and 1970s ascendance of liberal-socialist student activists and the rise of teachers unions, we had one of the very best educational systems in the world.  For full documentation, see The Corruption of Public Education: How It Happened.

There is plenty to criticize in our healthcare system, but far more to criticize in the healthcare systems of other nations.  If you don’t mind waiting months or years for surgical operations or critical cancer treatment, feel free to move to Canada and apply for citizenship.  Even the New York Times has noted that things are so bad in Canada that patients diagnosed with cancer are required to sign legal waivers of prosecution for failure to receive timely treatment. 

The basic and insoluble problem with nationalized health care in the UK and Canada is that the demand always outstrips available tax revenues.  Socialism works on the unrealistic assumption that people will ask only for what they need.  Every socialist government has learned quickly that it is peoples’ desires, not needs, that are in play, and desires have no limit when the goods cost them nothing directly.  Both in the UK and in Canada, the national governments were compelled to cap expenditures, which is simply a way to ration medical care. 

In Canada, putting a federal lid on medical expenditures forces the burden back onto provincial governments.  Because of this higher tax burden and its depressing effect on the business and personal tax revenue base, Ontario, Canada’s richest province, must pay interest rates double those paid by American states with comparable standing if they are to induce buyers to accept the extra credit risk.  Ontario bonds, backed by full faith and credit of the province, have to pay interest rates higher than even run-of-the-mill A or Baa rated U.S. corporations with no governmental backing.]

It is my understanding (please correct me if I?m wrong) that the writers and most of the readers who visit this site claim to be Christian. I do not make such a claim, but I do know that it is morally wrong and, yes, evil to use ones power to indiscriminately kill innocent men, women, and children as our army is doing in Iraq (min. 100,000 and counting, according to a detailed scholarly study).

Incredibly, just before Bush declared the onset of hostilities on Iraq, he was captured on video pumping his fist and gleefully saying ?feels good? (I know this because I saw it). Regardless of whether or not you feel the war is justified, anybody who could have such a feeling before commencing a series of events that would no doubt lead directly to the killing and destruction of tens of thousands of lives and livelihoods can only be seen as monsterous, in my heart and mind at least.

Please think seriously about what is going on here and what it would mean if you were on the receiving end in Iraq - your husband or wife killed by foreign forces, your child dying of cancer from depleted uranium. If you think of yourself as Christian - nay, if you think of yourself as human, I implore you and your readers to oppose this war and take away your support for our own ?King George? before too many more Iraqi people are killed or left with nothing, and before we lose the very freedoms that our founding fathers fought so hard to secure.

[My reply:  I ask you to think seriously about the tens of thousands of Iraquis murdered, tortured, and imprisoned by Saddam’s brutal regime.  I ask you to meditate about the $17+ billion in oil-for-aid money diverted from the Iraqui people and into Saddam’s pockets.

Every poll by Arab sources tells us that Iraquis (other than the Baathist minority) believe that their lives are better, and will be better still in the future, now that Saddam has been deposed.]