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Howard's End: An Unaccountable Court

The New Zealand Government ratified the UN Treaty which establishes the International Criminal Court that comes into being on 1 July. But yesterday the U.S. renounced its obligation to support the Court because of flaws in its mandate that leaves the Court unaccountable to anyone. Maree Howard writes.

You may have heard of the International Criminal Court (ICC) which was first proposed in 1998 at a UN treaty conference in Rome. The treaty purports to establish a worldwide UN criminal court that will have jurisdiction over every person on earth.

The 1998 Rome treaty says that the court will come into existence when 60 UN member nations ratify it. To date, 66 nations have ratified but, even so, that number represents a tiny percentage of the world's population. Why 60 nations - who knows?

Three fundamental questions remain. What authority permits the ICC to exist? What authority permits the ICC to exert its jurisdiction over people who, for example, hold New Zealand citizenship? And in ratifying the treaty does the New Zealand Government tell New Zealander's that their citizenship means little?

ICC proponents claim the court was authorised by UN General-Assembly "legislation" However, the UN Charter explicitly states that the General Assembly has no legislative authority whatsoever.

In fact, when the UN was created this lack of law-making authority was emphasised to assure nervous heads of state and nations that the UN body would never be able to pass laws. The UN diplomats in Rome in 1998 flatly ignored their own Charter.

ICC proponents also claim that the court will only address "crimes against humanity" and "crimes of aggression."

But the UN has continually expanded its role in the decades since World War II. When the UN was created we were assured that it would never become a supra-national authority, never establish laws, never employ military forces and never undermine nationhood.

Yet it has done precisely all of those things. Why should we now believe that the ICC will not similarly seek to expand its jurisdiction.

Already there have been discussions about the court's ability to prosecute far more ordinary - and domestic - criminal activity. The inherently political nature of the court will ensure that the definition of "aggression" will expand to apply to the actions of those in politically disfavoured nations.

It must surely be of concern to all New Zealander's that without scrutiny by the people or the Parliament, we allow the Government to sign-up and ratify all number of international treaties, conventions and covenants which legally bind this country. That's not democracy!

I agree with the U.S. special envoy for war crimes, Pierre-Richard Prosper, when he said that the Clinton administration signed the treaty but also made it clear that it believed the accord was flawed and it did not intend to submit it to the U.S. Senate for ratification.

He went on to say that the ICC document has insufficient safeguards in it to prevent exploitation and politicisation of the process.

What also concerns me is that by ratifying the ICC treaty our Government has surrendered domestic judicial function to an international body.

Whether our rights to due process of law, jury trials, the right against self-incrimination and the prohibition against unreasonable search and seizure have also been surrendered by our politicians to the ICC remains to be seen.

It's a supreme irony that the Government wants to abandon appeals to the Privy Council on the basis that legal decisions should be made in New Zealand, but then surrenders judicial functions to a global judicial body. Hypocrisy? - you bet!

The U.S. administration has taken a bold step to release the United States from its commitment to the ICC and it is likely to be highly criticised for it. The New Zealand Parliament should do the same until the mess that is the ICC has been sorted out.

For all that, the U.S. decision won't mean much because the UN has the numbers to bring the ICC into being on 1 July. Democracy? - Nah!!!


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