August 20, 2001
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Of late, much to-do about the International War Crimes Tribunal (IWCT) and
its cover-up of NATO war crimes and kidnapping of Milosevic has inundated
many activist list-servers and internet magazines. Myself and others who
write for Swans have spent considerable time and effort researching,
writing and agonizing over and about the deteriorating situation in the Balkans
and the disgusting activities of the IWCT and certain members of NATO.
Let's consider a different approach.
Recently I received the following request from a well-intentioned group of people who have been busy chasing after the IWCT: "The people who bombed Yugoslavia are punishing President Slobodan Milosevic for defying them. Let's do some defying ourselves. Flood The Hague with telegrams and letters on Milosevic's 60th birthday, Aug. 20, supporting his resistance." As if siding with Milosevic will turn public opinion? More likely, those who use this approach will find themselves painted as extremists or worse, and with the flawed rules of the kangaroo court, there is a high probability that Milosevic will spend the rest of his days in a bleak prison cell somewhere. Rather than continue with the current rant, I suggest that we try a proactive approach. There is an international entity that has been ignored by NATO and most of the rest of the world for many years....an entity whose unbiased function goes unnoticed and largely unused because it is not the pawn of transnational capitalism and because most people are unaware of it and of its functions. At the end of the United Nations Decade of International Law and as we enter a new millennium, it is time for the world to realize that the use of military aggression over negotiation, and disregard of international law, is unacceptable. There exists an International Court of Justice, also know as the World Court, the legal arm of the United Nations, which adjudicates between states in dispute, and clarifies the status of established international law. The last decade has seen the use of the Court grow and its efficacy proven with the dignified settlement of many conflicts. Since 1986, when the Court found in favor of Nicaragua in a case against the United States, the suspicion that it was merely another part of the Western power system has been seen as unfounded. There is a sensible alternative to war and its time has come. Any judgment made by the IWCT should be appealed to the World Court for final decision and as citizens of the world we should insist upon it. As I began my research of the World Court the universe brought to me, through a friend who is a retired L.A. county judge with more that 20 years on the bench, a very interesting and informative booklet that sums up the origins, functions and history of the Court in a way that cannot be improved upon. The booklet, the fifth edition was published in January of 2000, is created by The Institute for Law and Peace in London (Lawpeace@i.am) and is entitled Going To Court Not War. What follows are excerpts from the pamphlet. "For centuries, political leaders have repeatedly led citizens into a process of waste, disruption and terrible suffering called 'war.' Once started the process is almost unstoppable for psychological reasons - pride, propaganda and many others. The price of modern warfare is increasingly hard to justify, as 95% of casualties are now ordinary civilians, innocent men, women and children, and the cost of military technology has sent nations' economies into rapid decline, and even caused their peoples to go hungry. The costs, on many levels, are incalculable, and the environmental legacy, disastrous." "Yet, for more than 50 years, there has existed an institution that could have helped to avoid many of these wars using international law. The countries of the world are already theoretically bound by the UN Charter to seek judicial settlement before going to war, yet the legal arm of the UN itself is largely unknown, unreported, under-financed and unappreciated by member States." "One must ask, Why is the Court so ignored? One suggested answer is that to seek judicial settlement involves politicians, national and international, in admitting that they are subject to law and that this risks undermining their power. They will not willingly do this and must be encouraged by ordinary citizens to accept that the processes of war are obsolete and unacceptable and that human survival depends on the practical application of law and justice." "Based on the highest principles and with an international line-up of judges, the Court is the most important limb of the United Nations in the quest for global stability. The International Court of Justice is currently the only body, in fact, which is high, just and impartial enough to help preserve global security and world peace. As the new millennium dawns, it is time for the peoples of the world to turn to the rule of law over violence, and go to court, not war." "The World Court has existed in its present form since 1946 and is situated at the Peace Palace at The Hague in the Netherlands. The Court consists of 15 judges drawn from the different legal systems in the world, elected by the UN. These judges are under oath to act totally independently. They are, therefore, independent experts on international law, not representatives of their home States. At the Court, there is no right of veto and no political patronage. The Court makes its decisions on the basis of law, following a most meticulous examination of each case. The main functions of the Court are to decide legal disputes between States, and to give Advisory Opinions to certain international organs and organizations in accordance with international law. All 15 judges are involved in the process of reaching each judgment, however this does not prevent the Court from acting swiftly when necessary; one judgment was given in three weeks." Is Use of the Court a Matter of Choice? "States have a duty under the UN charter to solve disputes by peaceful means. Submitting a dispute to the Court for judicial settlement is one of those 'peaceful' ways but the Court cannot make judgments unless the States concerned ask it to do so. States may choose not to go to Court, but in so doing they are rejecting a most important, just and peaceful way of solving their dispute. In this sense, they are failing in their duty under the UN Charter if they choose not to seek a judicial settlement. In 1985 the President of the Court, Nagendra Singh, reminded the UN General Assembly that the UN Charter requires legal disputes to be referred by the parties to the Court. 'And do not all States in contention claim to have the law on their side? Why then should they not test that claim before the Court?'" Why Are Governments Not Using It More? "Knowledge of the Court's composition, its record, integrity and potential are all necessary before states will make the decision of entrusting these matters to the Court, but this is essential if the affairs of nations are to be based on law. About one third of the member states of the UN have made declarations (variable in extent) under Article 36.2 of the Court's Statute accepting compulsory jurisdiction. The UK is the first permanent member of the UN Security Council that has done so. As of July 1, 1999, those with declarations in force numbered 61 out of 185. Five years ago there were just 53. Use of the Court is clearly growing. The 1995 case involving the legality of nuclear weapons attracted keen interest with a record number of 43 States filing written submissions and 22 making oral presentations. In May 1999 the ten principle NATO states found themselves making presentations to the Court over their actions in the Balkan war. Most of these had not formally accepted the Court's jurisdiction, but by participating in the formal proceedings, there is an inherent acknowledgment of its powers and status, and perhaps the step to formal ratification merely requires proof of support from their citizens?" Are Court Judgments Effective? "According to Sir Robert Jennings, who was a World Court Judge for 12 years and was President of the Court from 1991 to 1994, the judgments of the Court have 'enormous political clout' and are invariably effective sooner or later. British Judge Rosalyn Higgins, the first female Judge of the Court, comments: 'People seem surprised that States are prepared to carry out the judgments of the Court. But their cynicism is generally misplaced, for it fails to take into account both the momentum of the principle of jurisdictional consent and of desire of States 'to play it along'. Let me give an example. Libya had since the early 1960s contested the Aouzou Strip, generally regarded as lying within Chad. The question of title to this territory came to the Court. For fourteen years Libya had actually had a military presence in this territory. The Court found the territory to be Chad's, and within four months Libya withdrew its army. The consent-based nature of the Court's jurisdiction has its own implications for compliance. There is provision for recourse to the Security Council for the enforcement of judgments. The Court's judgments are invariably complied with, whether they are judgments on jurisdiction or judgments on the merit.' Another successful example occurred in 1992 when the war that had started between Honduras and El Salvador ceased when they decided to refer the dispute to the Court and abide by the judgment." How Can There Be Agreement? "Sir Robert Jennings, as President of the Court, said 'The Judges of the Court are from many different parts of the world, from different forms of civilization, from different cultures, and, not least, from very different legal systems. The layman's question is always the same: how do you manage to have a coherent and sensible and useful deliberation in those circumstances? Indeed, how do you manage to decide anything? This is because juridically we all speak one common language called international law. It is indeed a common legal language and a universal system. Our experience in the World Court, and that of generations of our predecessors, proves that point. Apart from the quality of humanity itself, which we all share, international law is the language which in our experience transcends different tongues, cultures, races and religions.'" Obscure as the International Court of Justice is, I believe it's the best hope and greatest tool for international justice and peace. We should all be encouraged by its existence and promote its use to the best of our ability. It represents the best in proactivism. Michael W. Stowell is chairperson of both the City of Arcata, Humboldt County, CA, Nuclear Weapons Free Zone Commission and the Board of Directors of the Friends of the Arcata Library. He is the producer/editor/videographer of numerous public access television programs; he is a naturalist, a gardener, a bicyclist and a Swans columnist. [Ed. Note: The City of Arcata, incorporated in 1858, is located in Humboldt County, on California's Redwood Coast, at the juncture of California Highway 101 and 299 West. The city is approximately 289 miles north of San Francisco, 150 miles west of Redding and 760 miles north of Los Angeles. The 1990 census reported Arcata's population as 15,197 and the county population as 119,118.] Please, DO NOT steal, scavenge or repost this work on the Web without the expressed written authorization of Swans, which will seek permission from the author. This material is copyrighted, © Michael W. Stowell 2001. All rights reserved. No part of this material may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. |
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For More Information
International Court of Justice (Cour Internationale de Justice)
General Information: The Court at a glance
The Institute for Law and Peace
This Week's Internal Links
a song of innocence - A poem by John Bart Gerald (with etching by Julie Maas)
Two Epiphanies, From the Aegean Sea to the Bering Straits - by Milo Clark
Bibliography for Two Epiphanies - by Milo Clark
Irrelevant Precision - by Milo Clark
Religion and War in Yugoslavia - by David Jovanovic
The Confusion of Language, Ethnicity and Religion - by Alma A. Hromic
Michael Stowell's Commentaries on Swans
A Hot Rain's A Gonna Fall (July 2001)
This Round's On You, Again (June 2001)
The Remarkable Mother of Invention (May 2001)
Beneath the Cloaking Device (April 2001)
Palestine and Israel (March 2001)
Biocracy (February 2001)
Barbarians of Our Own Dark Ages? Debunking the Myth Behind the Nuclear Bombing of Hiroshima and Nagasaki (December 2000)