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Courting a Global Judiciary

By James L. Hirsen, J.D., Ph.D.

Several recent trials have received an excessive and rather questionable amount of publicity. Television networks have scrambled to attract the nation's foremost legal pundits and zealously tried to devise ways in which to feature the experts prominently within their news formats. Activist judges are continually thwarting the express wishes of the electorate with no apparent consequences. Is it any wonder why so many Americans are disenchanted with our present judicial system? Well, it may be even more disturbing when the public discovers that new and conceivably more powerful courts are emerging outside our borders with the potential to affect our own domestic law.

Since the end of the Cold War, the proliferation of worldwide judicial institutions has impacted all areas of international law: criminal, trade, human rights, law of the sea, commercial and environmental law. The growth of these disparate judicial tribunals is a harbinger of a coming international legal order.

Of particular concern is the United Nation's plan to create a permanent international court to adjudicate criminal human rights offenses. Criminal law has traditionally been a matter for sovereign nations to address internally. The conclusion of criminal proceedings often involves administering punishment. Nations have jealously guarded this aspect of jurisdiction as an important element of sovereignty. Yet for the past three years, government representatives have engaged in planned conferences at the United Nations to structure the world's first permanent international criminal court.

These international law specialists expect to present a completed plan at a diplomatic conference that will take place this July in Rome. It is at this venue that the nations of the world will be expected to endorse the global criminal court through ratification of a treaty.

The inspiration for a permanent criminal court came from ad hoc tribunals that were created in 1993 and 1994 by the U.N. Security Council. The purpose of the tribunals was to prosecute violations of international humanitarian law committed in the former Yugoslavia and Rwanda. In May of 1997, the Yugoslavia Tribunal handed down the first conviction by an international criminal tribunal since the Nuremberg trials following World War II. The current plan anticipates a court with jurisdiction over three criminal areas: genocide, war crimes and crimes against humanity. However, there are already proposals to expand the purview of the court to include terrorism, drug trafficking and aggression.

Unfortunately, it is the nature and character of the leadership of the U.N. not only to seek further expansion of the powers of a permanent international criminal court but to administer its proceedings in an inequitable and biased manner.

The U.N. promoters of this judicial body have no interest in prosecuting officials from Communist countries like China, North Korea or Cuba. The U.N. has a long tradition of looking the other way when Communist nations engage in war crimes. In the 1950s, the U.N. ignored the situation when Soviet tanks invaded Hungary. Mainland China murdered Tibetans in the 1960s while the U.N. stayed silent and inactive. Most recently, when numerous human rights violations occurred in Chechnya, the U.N. neglected to take note.

The creation of an international criminal court, with foreign judges presiding, vested with the power to conduct trials of American citizens for potentially ill-defined crimes, is a formula for legal disaster. Predictably, the Clinton administration is on record in full support of a global criminal tribunal.

The traditional American virtues as expressed by the Founding Fathers are not necessarily shared by other countries and cultures. Should those who do not share the ideas of individual rights and due process, these fundamental elements that are supposed to be at the core of U.S. law, make decisions concerning the rights of Americans?

The United States should insist that other nations enforce their own criminal laws against war crimes as they are required to do under the existing international law - the Hague Convention of 1907 and the Geneva Convention of 1949. It is simply irrational to attempt to rectify the failure to comply with present rules of law by creating an international criminal judiciary.

We have witnessed the judicial activism of the federal judiciary and the Supreme Court's usurpation of the legislative function, violations of constitutional provisions separating the responsibilities of the branches of government. A permanent international criminal court with the power to impose a new and ominous form of judicial activism is one court that should never be in session.

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James L. Hirsen, J.D., Ph.D.

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