UN Crime Court Makes "denial of abortion" a "War Crime" The UN International Criminal Court's "New International Crimes:" -A Call for Caution A Position Paper of NGO Family Voice The David M. Kennedy Center for International Studies Brigham Young University May 29, 1998 By Professor of Law Richard G. Wilkins, Brigham Young University I. AN ENGINE FOR SOCIAL JUSTICE OR RADICAL SOCIAL CHANGE? The International Criminal Court ("ICC") is being marketed as a much-needed permanent tribunal that will try only the "worst" international crimes, such as the atrocities of Nazi Germany and the more recent mass murders in Rwanda. As proposed, however, the ICC has a much broader reach, encompassing a wide array of "crimes" under such general headings as genocide, war crimes, aggression, crimes against humanity, and crimes established by previous UN declarations and conventions. The language describing these "crimes," moreover, is so broad that in many instances the alleged "criminal wrongdoing" could well lie primarily in the minds (and ideologies) of the prosecutors and judges who will operate the ICC's machinery. Without doubt, several of the ICC's proposed "crimes" would be held impermissibly vague (and therefore non-indictable) if enacted by a legislature within the United States of America. As a result, and precisely because of its broadly worded and vague "crimes," the ICC could well become a platform for the prosecution of a lengthy list of unknown (and, at present, unknowable) "new international crimes." And, because the form and content of these "crimes"could be driven more by the ideology of ICC prosecutors and judges than long-established legal precedent, there is an urgent need for caution in delineating the criminal jurisdiction of the ICC. Many of the proposed ICC "crimes" raise serious concerns. Although often flowing from well-established roots (such as the long-recognized customary crime of "genocide"), the newly and broadly defined ICC "crimes" pose a chilling potential for misuse: rather than deterring horrendous atrocities and vindicating mankind's just vengeance on mass murderers, the ICC could well become an engine for eliminating all cultural, ethnic and religious values that dare to stray from the modern convictions of the ICC's judicial elite. A few examples, taken from Article 5 of the draft ICC statute, follow. 1. "Genocide:" Genocide is a well-established concept of customary international law. The ICC, however, dramatically expands the currently recognized parameters of this most serious crime. Under the ICC, for example, a person can be charged with "genocide" for "causing serious... mental harm to members of [a national, ethnic, racial or religious] group." This provision, if adopted, would permit punishment for merely advocating a position that causes mental distress to a group, if the words are uttered "with intent to destroy, in whole or in part," that group. This expansion of the crime of "genocide" beyond mass human extinction is surprising. For one thing, criminal law generally prohibits specified and well-defined conduct; criminal liability (as a rule) does not depend upon the emotional reaction of the victim. This (perhaps unbounded) expansion of criminal liability for "genocide" is unprecedented, and threatens to drain the very real crime of mass murder of all rational meaning. 2. "Enforced Pregnancy:" The ICC also creates several newly minted offenses. The crime of "enforced pregnancy," for example, appears under the heading of "war crimes." Although conjuring up images of sexual assault, this "crime" does not refer to the act of rape. It refers, instead, to the denial of the right to abortion on demand. In a meeting held April 21, 1998, at the 54th Session of the Commission on Human Rights in Geneva, speakers at the Women's Caucus openly admitted that the term "forced pregnancy" or "enforced pregnancy" is the new "code language" designed to create an international, unrestricted right to abortion. The strategy of the Caucus is apparent: first, introduce the concept of "forced pregnancy" as a war crime; then, broaden the concept to include any restriction on abortion. If the ICC adopts "enforced pregnancy" as a "war crime," the expansion envisioned by the Women's Caucus will be virtually inevitable. As early as 1991, abortion lawyers in the United States used the term "forced pregnancy" to describe any pregnancy that could not be terminated on demand. 3. "Persecution:" The ICC's crime of "persecution," denominated a "crime against humanity," poses a particular risk of expanding to condemn (and eventually eliminate) traditional cultural and religious values. Under the ICC, a person (or group) can be charged with "persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural or religious [or gender] [or other similar] grounds." "Persecution" is defined as "the wilful and severe deprivation of fundamental rights contrary to international law [carried out with the intent to persecute on specified grounds]." At one time or another, some organ within the UN system has declared almost every imaginable human desire to be a "right." And, although it will be left to the essentially unbounded discretion of ICC judges and prosecutors to decide which of these UN-announced "rights" are "fundamental," the right to marry and the right to privacy will almost certainly be on the list because they are contained in the Universal Declaration of Human Rights. The crime of "persecution," therefore, could be used to criminalize the denial of marriage to homosexuals. The crime of "persecution" could also be used as a vehicle for enforcing the radical, anti-religion agendas of some feminist groups: it is not hard to imagine the ICC's machinery being called into action to arrest, detain and punish various religious leaders who "backwardly persist" in treating women differently than men. II THE NEED FOR CAUTION The threat that the ICC's broadly defined "crimes" will become, not the bane of mass murderers but the boon of modern social engineers, is quite real. At a recent panel discussion in Geneva, held during the 54th Session of the Commission on Human Rights, the UN High Commissioner on Human Rights, Mary Robinson, along with group of "experts" who have been involved in the drafting of the ICC treaty, made it quite clear that the new court would become the "means" by which the "norms" adopted by the UN system during the past 30 years will be enforced. A member of the Committee on the Rights of the Child, for example, stated that "with the institution of an International Criminal Court it might be possible in the future to take direct penal action against countries and/or private actors who violate what the Committee believes to be 'the best interests of the child.'" The potential of the ICC to abuse its power cannot be dismissed. If put into place, the ICC will mark the first time that a permanent tribunal will have the authority not simply to resolve disputes between nations but to reach past sovereign governments and charge individual citizens with a wide array of "crimes." These "crimes," moreover, will be interpreted by judges who may have no background in or sympathies for fundamental constitutional and/or natural law freedoms. At best, the judges will be judging individuals with whom they have no common background or cultural understanding. At worst, if some political lobbies hold their sway, all positions of power within the ICC will be filled by quota systems, with appointees swearing allegiance to very ideologies that placed them in power. There is a need to bring mass murderers to justice. The clear dictates of well-established, and long-enduring international law must be enforced. But the current system of setting up carefully limited individual tribunals when the world agrees that a serious enough situation exists to justify such a tribunal appears to be working well. One might even question whether the establishment of a permanent, independent court is wise. Once established, such a court will behave as all bureaucracies behave: the ICC will constantly move to expand its own power. Nevertheless, if the world community decides to create a court to deal with exceptionally serious offenses, the vague, heavy artillery "crimes" established by the ICC aim well beyond these marks. The international community should be extremely cautious in forging and arming this new judicial cannon.