Crime or Act of War? – The Media, 9-11, and Iraq

Kenneth Mentor J.D., Ph.D.
University of North Carolina Wilmington

This presentation was prepared for the
Annual Meetings of the American Society of Criminology
Chicago, November 2002

ABSTRACT

The attacks on the World Trade Center and Pentagon can be defined as criminal acts. These events can also be defined as acts of war.  The media and the White House framed their preferred, and shared, definition of events very early in the process of understanding and responding to 9/11. As we know, state response differs depending on how events are defined. In fact, the process of definition is used to prepare the public for a particular response. This paper examines the media’s role in defining 9/11 and the reaction to the attacks. Rhetoric, symbolism, limiting of dissent and narrowing of issues are discussed. The media has repeated similar processes as they encourage support of, and preparation for, war against Iraq. Examples of the media role in regarding to 9/11 and Iraq are used to illustrate the limitations of mainstream media. This presentation concluded with a list of website that present alternate views.

By any measure, the events of September 11, 2001, were a terrible tragedy. This tragedy required an official response from the United States. This response could have taken many forms. One year after 9/11 we are again being asked to consider a response to the situation in Iraq. Again, the response of the United States can take many forms.

Although I am reluctant to follow the administration’s lead in blurring these two events, this presentation discusses each event and examines the media’s role in defining the situations and potential responses. As we know, the United States began a “war on terror” following 9/11. It appears that “war” will also be the response in Iraq. Mainstream media seldom questions whether war is an appropriate response. In fact, mainstream media often provides crucial assistance in the government’s effort to convince the American people that war is the best, and in fact the only, option.

This presentation includes three sections. First, we examine the media’s role regarding 9/11. Next the media’s role regarding the possible war with Iraq is discussed. Finally, links to alternative media sources are included. The extensive list of links is include in the hope that you will look through the websites as you seek alternative sources for information, news, and views.

The Media and 9/11

Was 9/11 a crime or act of war? Hijacking has always been treated as a crime. An obvious difference is that this time, the hijacking ended with the destruction of the World Trade Center and part of the Pentagon. Instead of a hijacking we saw commercial airlines used as missile that were used to attack buildings. Similarly, Timothy McVeigh used a van loaded with explosives to attack a building in Oklahoma City. This was treated as a crime.

Other commercial airlines have been used in terrorist acts directed against the United State. Pan Am 103 was blown up over Lockerbie Scotland. We now know that the act was carried out by men who were working with the blessing of the Libyan government. Pan Am 103 was not treated as an act of war. This event was defined as an international crime. The men responsible are now in prison and the Libyan government has admitted their role and has expressed a willingness to pay damages to the families of those killed in Flight 103.

We also know that the World Trade Center was attacked in 1993. This attack was treated as crime. Ten militant Islamists, though to have ties to Al-Qaeda, were found guilty of conspiracy.

H. Wayne Elliott, former Chief of the U.S. Army’s International Law Division of the Judge Advocate General School, sums up the crimes associated with the 9/11 attacks: “Of course, U.S. domestic law prohibits what happened. But, even under international law and the law of war, these acts would be prohibited. The initial seizure of the plane would be a violation of the hijacking laws and treaties; holding the people on those planes amounted to taking hostages; crashing the plane into civilian targets was a war crime. And, if this was simply the first (or merely the latest) act of war it amounted to an unprovoked attack on a sovereign nation.” Click this link for the full story: http://www.crimesofwar.org/expert/attack-elliott.html

International law provides many alternatives when the aggrieved party seeks to control rouge states, organizations, or individuals. The United States ignored international law by using its military to retaliate. Why, in this case, did the United States reject the option of working through the legal system to bring the surviving perpetrators to justice? Why did we abandon the precedent we had followed regarding various hijackings, Pan Am 103, McVeigh, and a previous attack on the World Trade Center? How was this done with virtually no criticism from mainstream media?

International humanitarian law reflects the lessons of the Holocaust and World War II. This law has been codified in the Geneva Conventions and other universally accepted treaties. The events of 9/11 were so far beyond the imagination of those who wrote these laws that it is safe to assume that these laws were not written to address the events of 9/11. In effect, it is very difficult to define 9/11 by reference to international humanitarian law. If we accept the media and government interpretation of events the attacks were not carried out by the state but by an organization that has never claimed responsibility for the acts. Click this link for more on this issue: http://www.crimesofwar.org/expert/attack-intro.html

Although inadequate to define these events, international law remains important in our efforts to resolve international disputes without violations of accepted humanitarian principles. It would be very difficult to make a case that since the events of 9/11 were hard to define that the Bush Administration suddenly had the right to ignore humanitarian laws that clearly apply to the behavior of the United States. The administration never needed to worry about making this argument since questions were never raised in a manner that was loud and clear enough that they could not be ignored.

Historically, wars have been waged by nation-states. The objective of war has been to control other nation-states or to seize control and/or protect a geographic area. In this case the United States directed the energies of the military to stop an organization. The initial stated objective was to hunt down and kill members of this organization without regard to international borders.  In effect, the administration rushed into a war with no clear enemy. Why? We may never know the true motivation. Vengeance, oil and political strategery (to us a Bushism) are the top candidates but without an open debate of the issues, moderated by a free and unfiltered press, it will be difficult to know the true motivations.

Media Coverage by the Numbers

A Lexis-Nexis Academic Universe search of CNN transcripts between 9/11/2001 and 10/10/2001, using “world trade” and “attack” together as search terms, yields 545 stories.

Note that there are some methodological issues regarding this search. As we know, on 9/11 and the days immediately following the attacks, CNN and all other news media were covering this story 24 hours a day. The number of stories is well below what we would expect so it is clear that either CNN doesn’t transcribe every story or that Lexis-Nexis does not provide full access to every transcript. In addition, several stories run at multiple times throughout the day yet are only counted once during a search of transcripts. Also, this search has been run on several occasions with different results. It is not clear why the same search would yield different results.

Of the 545 stories:

• 38 aired on September 11, 2001

• 375 included the word “war”

• of these 375 stories, 13 aired on 9/11

• 114 included the word “peace”

• 66 included the word “trial”

• of these 66 stories, None aired on 9/11

• 52 contained the phrase “act of war”

• 129 included the word “crime”

• of these 129 stories, 4 were aired on 9/11

• 9 contained the phrase “criminal act”

• 8 of these 9 also included “war”

• 13 contained the phrase “international law”

• 12 of these 13 also included “war”

• the first use of “international law” was on 9/16

• 48 included the term “pearl harbor”

Behind the Numbers

An attempt was made to find articles that debated whether to define the 9/11 events as “act of war” or “criminal act.” A seach of the initial 545 articles yielded 116 that used the terms “war” OR “act of war” AND “crime” OR “criminal act.” Each of these transcripts was reviewed.

The first story that used this combination of word aired at 2:30 on 9/11. By this time CNN had added the “America Under Attack” banner that many of us remember. The theme of their coverage was already established. The following excerpt indicates that CNN reporters had started to consider how the United States would respond.

QUESTION: Do you think there should be any retaliation on the part of the United States for what happened here in this country, both in New York, Washington and other places?

PATAKI: The first step right now is to make sure we do everything to help those people who need our support, whether they’re injured or still trapped in buildings. The second thing is to make sure, at the same time, we’re providing the maximum security against possible additional incidents.

But clearly, this is an attack upon America, it’s an attack upon our freedom and our way of life, and we must retaliate and go after those who perpetuated this heinous crime against the people of America.

QUESTION: This has been compared to Pearl Harbor, do you consider this to be an act of war?

GIULIANI: This is a vicious, unprovoked, horrible attack on innocent men, women and children. It’s one of the most heinous acts, certainly in world history. And as the governor said and I said to the president, we fully and completely support him in any action that he has to take in order to make an example of the people who are responsible for this.

QUESTION: Is it an act of war in your mind?

GIULIANI: I don’t know that I want to use those words. I think the president is the one that has to respond. And I think what he has to know is that all of us in New York support him and support him completely in the efforts that he’s going to have to make over the next couple of days, week, to make a point that people can’t do this. You can’t attack innocent men, women and children. And ultimately, I’m totally confident that American democracy and the American rule of law will prevail, and the people of New York are going to help demonstrate that over the next couple of days.

Governor Pataki initially referred to the events as a heinous crime. The reporter immediately made a Pearl Harbor reference and asked whether this was an act of war. Mayor Guiliani is reluctant to endorse those terms. He talks about a “vicious, unprovoked, horrible attack” on innocents. In response, the reporter again attempts to get someone to say this was an act of war. Guiliani again refuses to take the bait (but refuses to dispute this spin). Instead, he expressed his belief in “democracy and the American rule of law.”

The Pearl Harbor theme was repeated many times over the next few weeks. The only other reference to Pearl Harbor on 9/11 was made by James Kallstrom, former Assistant Director of the FBI. As with the previous example, the reporter initiated the discussion of an “act of war.” Kallstrom took the bait.

KALLSTROM: I think it’s clearly an act of war. I think it’s — in many ways, it’s a different time, but it’s everything that Pearl Harbor was and more. It just puts an exclamation point next to this dangerous world we live in. And the inability to appease people that are this demented with rhetoric, it’s — hasn’t worked, it’s not going to work.

We can see what happened today. All peace-loving people of the world, all people that believe in democracy and freedom, need to stand against this. Any country that harbors or aids this type of activity anywhere in the world needs to declare which side they’re on and we need to seriously do something about this. And I believe we will.

In his emotional response Mr. Kallstrom also introduces several themes that will be repeated many times. First, he labels the attackers as “demented.” Words such as “cowardly” are “sick” were also used to define the attackers. Remember that George W. Bush called these people, and those who support them, “evil doers” and “enemies of peace.” Kallstrom also relies on this imagery as he discusses “peace-loving people” who need to take a stand. Introducing another key theme, Kallstrom suggests that all countries need to “decide which side they’re on.” The good vs. evil dichotomy is now fortified with the suggestion that everyone must choose sides. The “with us or against us” theme became very prevalent and served to quiet many dissenting voices.

Another theme is introduced as Kallstrom refers to what he sees as a failure of “rhetoric.” He suggests that this hasn’t worked and will never work. Kallstrom is clearly not interested in negotiation.  Remember that these comments were made within hours of the attacks. There is no evidence that the government had started to form a response. However, the media had clearly decided on a path of action.

Another major theme that was introduced within hours of the attacks was that Americans may need to give up some liberties in return for security. In an interview with CNN’s Judy Woodruff we heard from Alexander Haig, Ronald Reagan’s Chief of Staff. Although he claimed to be and advocate of individual liberties, Haig offered the following:

The simple facts are that national leadership has to establish that terrorism is an illegal act of such magnitude now that it overwhelms the issues of social justice which cause us to quibble, and restrain us at times when a crime of this nature has been executed.

As we know, the events of 9/11 have resulted in a loss of civil liberties that may be unparalleled in the history of this country. Rhetoric supporting this loss of liberty began within hours of the attacks.

Discussion of whether the attacks constituted a crime or act of war had not seriously started on the day of the attacks. If anything, it appeared that politicians had not yet been provided with “talking points” that are often provided to politicians in a position to alter the direction of debate. The following exchange includes Dick Armey, the House Majority leader.

REP. RICHARD ARMEY (R-TX), MAJORITY LEADER: We had the bipartisan leadership of both the House and Senate. We were of course — obviously, like everybody in America — seeking information, trying to understand exactly what’s happening. Where is it coming from? Who’s responsible, and how do we respond? Measuring the threat to the nation, and preparing ourselves to bring the members of Congress back to work at the appropriate time under the right circumstances and make the point that I made earlier.

You may scar democracy, but you don’t shut it down. We will be back to work tomorrow. We think this is a horrible criminal act. It is just inhumane. It’s insane. And the American House and Senate, the Congress of this nation, as the president of this nation will address that tonight. We will address the nation’s business this week, and we will continue the process of finding the people who are responsible and bringing them to justice.

KARL: Now, I understand that at least four times during the day the vice president briefed those leaders — those members of the leadership that were in that room at that classified location. What did you learn about that fourth plane? The plane that landed in Western Pennsylvania?

ARMEY: Well we learned some things about that. At this point the information is classified. It is clear that we to have had a good investigation going forward. We are gathering information, there is a (AUDIO GAP) confidentiality on what we know, but we do know that this is a serious premeditated crime, and I can say without any doubt or hesitation it’s an international crime. And we will be able to find the people responsible. And America, I believe — with the cooperation of all civilized nations — will bring these people to justice.

Not only is he talking about the attack as a criminal act, in fact an international crime, he suggests that we work with civilized nations to bring these people to justice. This was the first, and only, time Armey talked about the attacks as a crime. As we see in the following excerpt, by 9/16 Armey had changed his tune.

BLITZER: Congressman Armey, based on what you’re hearing, tell the American public right now and the people around the world watching this program what kind of strike, what kind of military action they should be prepared to observe from the United States?

ARMEY: Well, they might be prepared to not observe it at all in the sense that we all watched Desert Storm.

Basically, what you have is these snakes are in their holes scattered around the world, plotting and scheming. We’ve got to find where they are, and we’ve got to kill them before they get out of their holes. And that’s not necessarily going to be something that the American people are going to see as it happens or hear a great deal about it in any kind of detail before it happens. It is something that has to be carried out in the same way they carry out their activities — behind quiet doors and, in a sense, under the cloak of secrecy. We have to do the same. You’ve got to use their tactics to catch them.

BLITZER: But, Congressman Armey, should the American public be prepared for a U.S. military invasion of Afghanistan where the Taliban regime harbors, protects, Osama bin Laden’s al-Qaida organization, as we heard from Secretary of State Colin Powell?

ARMEY: I believe that will depend a great deal on the Taliban and how they react. If they react with defiance and arrogance; if they say not only will we harbor these people, we will foster these activities, they could be calling that wrath very clearly and very specifically upon themselves.

On September 12 CNN was reporting that “people see this as far more than a crime or an isolated terrorist incident. That came through loud and clear in four different polls.” CNN reported that in their own poll “86 percent of Americans described yesterday’s attack as an act of war against the United States.” By this time George Bush, John Ashcroft, Colin Powell, Dick Gephardt and others had spoken to the American people and referred to the attacks as an act of war. Other than a brief discussion between two reporters, who quickly discounted the idea of anything but a military response, we had reached the end of the second day with no discussion of any response other than war.

Many commentators stated that it was clear that we were at war although they acknowledged that we did not know who would be the target of this war. The answer to this question first appeared on September 13. Two of the 545 stories included in the initial dataset refered to a “war against terrorism.” The media also began to focus on Osama bin Laden and Afghanistan.

On September 14 CNN was presenting a variety of “talking heads” who discussed war strategy. The pentagon had asked for the mobilization of 50,000 troops. CNN began to present the idea of reinstating the draft. As in other cases where a new topic was introduced, the question first appeared on a CNN poll. The media was following a pattern in which they identified the potential issues, included these issues in a poll, and then used the results of the poll to introduce the issue to the viewers. In addition to introducing the idea of a draft, Wolf Blitzer introduced another theme that was prevalent in subsequent coverage of 9/11 as he talked about the united Congress.

Senator Levin, another question we asked in our CNN/”Time” Magazine poll was this. Should the U.S. reinstate the military draft if a ground war is necessary to fight this war against terror? 66 percent favor it, 28 percent oppose it. Do you think it will be necessary to go back to a draft?

LEVIN: If it is, we should do it. We should not be reluctant to use all of the forces at our command, including our citizen armies and including the draft. So the Reserves today are going to be called up, up to 50,000 of them. Those are our citizen soldiers. And the draft if it’s necessary to prevail, I vote for it absolutely.

This is December 8, 1941. But this time, it’s a war against terrorism. But the people here are so determined. We have that absolutely unified determination. So yes, if we need the draft in order to carry out a successful war, I would vote for it. Again I emphasize, we need a strong coalition. And I believe we’re going to be able to put it together, because that’s important in terms of success.

We need the time to prepare for this effort. We need the time to prevail because we must prevail. And part of that success is going to be achieved because I believe so many nations, some of whom have never participated with us, this time will join against the common scourge of terrorism.

BLITZER: And we only have a few seconds left. Senator Warner, in the many years you’ve been in Congress in Washington, you’re a Republican. Senator Levin is Democrat. Have you ever seen the U.S. Congress as united as it is right now?

WARNER: No, very clearly this is evidence of it. 10 years ago, I helped draft the resolution that George Bush, then president, won the Gulf War with our coalition allies. It was three days and three nights of ferocious debate on the Senate floor and it prevailed by only five votes.

This one is 100 votes. What clear evidence. Senator Levin and I worked on the drafting with our leadership of this. What clear evidence of a unity in the Congress and the Congress speak for the people of the United States.

Late in the day of September 14 CNN changed the banner that appeared on the screen throughout the day. “America Under Attack” became “America’s New War.” The theme of their coverage was changing.

On September 15 Congress passed a resolution authorizing the President to use all necessary and appropriate force to retaliate.

The Media and Iraq

Many Americans are troubled by the suggestion that the United States will engage in a unilateral first-strike to prevent an event that the administration believes may occur in the future. Why would we allow such an extreme departure from decades of foreign policy? Why does this significant and far-reaching policy change without public debate? For more information see: http://www.crimesofwar.org/expert/bush-intro.html

As mentioned above, the United States had a history of treating terror incidents are criminal acts rather than acts of war. This changed with 9/11 as the Bush Administration abandoned the precedent established through our reaction to previous terror attacks. How was this done with virtually no criticism. Similarly, the Bush Administration now believes we are authorized to use pre-emptive strikes against any country that we believe could pose a risk in the future. How is this major policy shift accomplished with no criticism?

As with 9/11, mainstream media has played a major role in the Bush administration’s efforts to “sell” the war with Iraq. Here are a few points that illustrate the problem. These points apply to the events of 9/11 nearly as well as they apply to an effort to critically evaluate the media’s role regarding the possibility of war with Iraq.

War is Imminent: The prevailing view found in mainstream media is that a war with Iraq is imminent.  For example, MSNBC aired a nightly program called “Countdown to Iraq” (the title has now been changed to “Countdown: Iraq”). Why is the title a statement rather than a question? Many Americans continue to believe there is still a chance to stop this war.

No Dissent: The mainstream media hides dissent. Over 100,000 anti-war protesters marched in Washington on October 26, 2002. Some organizations report the number as high as 200,000. Similar protests took place all over the world. The mainstream media seemed reluctant to reports these protests. When they did, they greatly underestimate the number of protesters and focused on the organizer’s disappointment about the lack of protest. Most importantly, mainstream media reports fail to provide information that would be helpful in understanding the positions of the protesters. The media seems to believe that it is sufficient to say that some people disagree with the administration – the subtext is that such disagreement is unpatriotic.

War Sells: Ratings for CNN, MSNBC, and network news programs are never higher than for war and similar events. Never forget that the mainstream media is in the business of selling. Unfortunately, advertisers that do not flinch at being associated with war footage do not want to be associated with something as unpatriotic as protest.

Tunnel Vision: News events take on a life of their own. We saw this as the media became obsessed with a sniper who was randomly shooting people in the Washington D.C. area. Now that the sniper has been caught we can now go back to “normal.” The media does not question the fact that “normal” is a situation in which dozens of people are killed by guns every day. A theme was established for this story and the media will stick with the theme – whether it is logical or not.

War is Clean: Many of us remember the Vietnam conflict and earlier wars. War is not clean. However, the media amazes and entertains us with “smart bombs” that surgically remove the enemy with a minimum of “collateral damage.” The media has failed to inform us that current war plans involve a massive invasion of Iraq. Up to 500,000 soldiers are expected to invade Baghdad, seize control, and chase the enemy to the borders and beyond. How many body bags will result? Why isn’t this question being asked?

Some Humans are Worth More than Others: We know that many deaths will occur. We might even blow up a wedding, as we did in Afghanistan. The tone of media coverage would lead one to believe that since these are not Americans, it really doesn’t matter. How will we react when the body bags contain American soldiers?

American Soldiers are Safe: The government and mainstream media would have us believe that the biggest risk to our soldiers is “friendly fire.” In contrast, international news sources reported Afghanistan incidents that resulted in the death of 30 or more American soldiers. Did these events not occur, or did the mainstream media hide the facts?

Saddam = Iraq: The government and mainstream media has focused on one man, Saddam Hussein. The mainstream media largely ignores the other 22 million Iraqis, many of whom are starving to death as a result of our efforts to stop one man. Hundreds of thousands of Iraqis have died as a result of our embargo. Amazingly, the Bush administration actually believes that the people of Iraq will rise in support of our efforts once we topple Saddam.

What Do We Do about this Bias?

One solution, on an individual level at least, is to seek out alternative media. And you will need to look for it. Alternative media will not be delivered to your house in the morning paper and will not be displayed on your television. Mainstream media is “pushed” to the public every minute. Alternative views are heard and read only when someone takes the initiative to find alternate news and views.

I encourage each of you to take a few minutes every day, how about taking as much time as it takes to read the newspaper, and seek alternative views. The balance is out there. You just have to take the time to find it.

Speak out against mainstream media bias. Several organizations will help you do this and it works. For example, the Washington Post recently suggested that Bush would have won the election if a recount had been allowed. As we know, this is not true. A letter and phone campaign forced the Post to retract their statement and issue a correction. Efforts to keep the media honest have the potential to change the media. The conservatives clearly agree and are engaged in similar campaigns to stop what they view as “liberal media.”

I teach several policy related courses. I ask my students to think through policy choices and try to imagine the eventual consequences of a particular policy choice. I believe we are smart enough to think through a problem and make some predictions about the end result of our choices.

I even give the government credit for being able to think through a problem in such a manner. Unfortunately, there is no indication that this administration is willing to act in ways that benefit all people. They fully realize the negative impacts of their policies, and examine who will gain and lose, before acting in ways that benefit certain interests. The people pulling Bush’s strings are frighteningly good at what they do.

When given all the information, you are smart enough to know the truth. But do not expect to be given this information. You will have to find it. After reviewing alternative sources for information you will find that you are becoming a more critical, and intelligent, consumer of mainstream media. Seek the truth and act on your convictions.

Alternative Media on the Internet

The following links include alternative media, world media and political sites. The sites include news, opinion, parody and humor. Many of the sites are critical of George W. Bush and his administration. Other sites specifically address 9/11 or Iraq. I encourage you to look through these websites and to seek alternative sources for information, news, and views.

Alternative Media Watch – http://www.zmag.org/altmediawatch.htm

AlterNet – http://www.alternet.org/

American Friends Service Committee – http://www.afsc.org/

American Prospect – http://www.prospect.org/

AntiWar.com – http://www.antiwar.com/

BBC Americas – http://news.bbc.co.uk/1/hi/world/americas/

BuzzFlash – http://www.buzzflash.com/

Bookmarks for a Better World – http://www.betterworldlinks.org/irak.htm

Center for Investigative Reporting – http://www.muckraker.org/

Noam Chomsky archive – http://monkeyfist.com/ChomskyArchive

Citizens for Legitimate Government – http://www.legitgov.org/peaceprotests.html

Common Dreams – http://www.commondreams.org/

CounterPunch – http://www.counterpunch.org/

Crimes of War Project – http://www.crimesofwar.org/

Cursor – http://www.cursor.org/

Democracy Now – http://www.democracynow.org/

FAIR: Fairness and Accuracy in Reporting – http://www.fair.org/

FAIR: Media Views – http://www.fair.org/views.html

Foreign Policy in Focus – http://www.fpif.org/

Free Speech Radio News – http://www.fsrn.org/

Free Speech TV – http://www.freespeech.org/

Global Exchange – http://www.globalexchange.org/

Guardian Unlimited – http://www.guardian.co.uk/worldlatest/

Guerrilla News Network – http://gnn.tv/

Edward Herman – http://www.thirdworldtraveler.com/Herman%20/Edward_Herman.html

IMC: Independent Media Center – http://indymedia.org/

IMC New Mexico – http://newmexico.indymedia.org/

Institute for Policy Studies – http://www.ips-dc.org/

Institute for Public Accuracy – http://www.accuracy.org/

International Answer – http://www.internationalanswer.org/

In These Times – http://www.inthesetimes.com/

Iraq Journal – http://iraqjournal.org/

Iraq Peace Team – http://www.iraqpeaceteam.org/

JournalismNet – http://www.journalismnet.com/

Konscious.com – http://www.konscious.com/main.html

Robert McChesney – http://www.robertmcchesney.com/articles.html

Media and Peace Institute – http://www.mediapeace.org/

MediaLens – http://www.medialens.org

Media Transparency – http://www.mediatransparency.org/

Media Workers Against War – http://www.mwaw.org/

Michael Moore – http://michaelmoore.com/

MoveOn – http://moveon.org/

The Nation – http://www.thenation.com/

Nonviolence.org – http://www.nonviolence.org/iraq/

Not in Our Name – http://www.notinourname.net/

One World – http://www.oneworld.net/

The Onion – http://www.theonion.com/

Pacifica Radio – http://www.pacifica.org/

Peace News – http://www.peacenews.info/

John Pilger – http://pilger.carlton.com/

PRWatch ­ http://www.prwatch.org

Poison Kitchen – http://www.poisonkitchen.com/

Progressive Magazine – http://www.progressive.org/

Progressive Media Project – http://www.progressive.org/mediaproj.htm

Progressive Review – http://www.prorev.com/

Project Censored – http://www.projectcensored.org/

Ted Rall – http://www.tedrall.com/

Reporters Without Borders – http://www.rsf.org/

Sept. 11 Web Community – http://webselforganization.com/example.html

Smirking Chimp – http://www.smirkingchimp.com/

Stop The War Coalition – http://www.stopwar.org.uk/

This Modern World – http://www.thismodernworld.com/

TomPaine.com – http://Tompaine.com

True Majority – http://truemajority.com/

Truthout – http://www.truthout.org/

United for Peace – http://www.unitedforpeace.org/

Utne Reader – http://www.utne.com/

Voices in the Wilderness – http://www.nonviolence.org/vitw/

VoteNoWar – http://www.votenowar.org/

WhiteHouse.org – http://whitehouse.org/

World Newspapers – http://www.world-newspapers.com/

Working for Change – http://workingforchange.com/

Howard Zinn – http://www.howardzinn.org/

ZNet – http://www.zmag.org/weluser.htm

ZMag: Chomsky archive – http://www.zmag.org/chomsky/index.cfm

The International Criminal Court

Dawn Rothe
Western Michigan University
2003

This Web page contains excerpts from earlier works. For a complete account, my thesis is available at Western Michigan University, Waldo Library.

Introduction

The Rome Statute of the International Criminal Court is hailed as the most significant development in international law to date. The development of the Rome Statute was a decade long process, eventually leading to official adoption in Rome on July 17, 1998. On July 1, 2002 the International Criminal Court became a reality with more than 120 nation/states attending the convention of the Rome Statute. Currently, 139 nation/states have endorsed the Rome Statute and 90 states have become ratified members of the ICC. A century long struggle to establish an international system of justice has been achieved.

Structure and Function of the ICC

The ICC consists of 4 Chambers: (1) the Presidency; (2) Judicial Court (An Appeals Chamber, Trial Chamber, and a Pre-Trial Chamber); (3) Office of the Prosecutor; and (4) the Registry. The Presidency is an elected office serving terms of three years and holds responsibility for the administrative duties of the court, excluding the office of the Prosecutor. [1] The functions of the Judicial Court are divided into Chambers, which allows the judges to be on more than one chamber if it serves the functioning of the court in a more efficient manner. The Appellate Chamber is exempt from this however, as an Appellate Judge is prohibited from serving on other chambers (Article 39, Rome Statute).

The office of the Prosecutor is a separate division of the Court that has the responsibility for the investigation of referrals on crimes covered by the ICC. The Prosecutor has full authority over the administration of the Prosecutorial Division (Article 42, Rome Statute). Cases brought to the ICC will be handled independently by this office, unlike the system used by the United NationsÕ Security Council where there must be joint agreement to charges brought forth against individuals for crimes covered under international laws and treatises. A state may refer cases to the Prosecution, or the Prosecutor can initiate the investigation based on information of a crime being committed within the jurisdiction of the Court (Article 14 and15 Rome Statute). The Assembly of State Parties (ASP) will further define the relationship agreement between the United Nations and the Court over disputes regarding how referrals will proceed and if the wording of the Rome Statute will allow an advisory opinion from the International Court of Justice, especially regarding the Acts of Aggression (Coalition for International Criminal Court- CICC 6,2002).

The Registry is solely responsible for the administrative and non-judicial aspects of the Court and for creating a Victims and Witness Unit providing protective and security measures for witnesses, victims or others at risk due to testimony given to the court (Article 43 Rome Statute).

The intention of the ICC is to provide an international system of justice that would address heinous crimes against humanity when a state is unable or unwilling to investigate or prosecute any individual accused of the crimes specified in the Rome Statute (Mullins, Kauzlarich, and Rothe 2002). Crimes that are subject for prosecution under the Rome Statute are defined in Articles 5, 6, 7, and 8.

Article 5 of the Rome Statute lists the crimes within the jurisdiction of the ICC: crimes of genocide, crimes against humanity, war crimes, and crimes of aggression still to be defined by the ASP (Article 5, paragraph 2, Rome Statute). Crimes of genocide refer to “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group” (Article 6, Rome Statute). Article 7 defines crimes against humanity as acts that are widespread or a systematic attack against a civilian population. This includes acts of torture, intentional causing of great suffering to body or mental health, murder, and attacks directed against a civilian population. Crimes against humanity are not as inclusive as previously recognized Human Rights Law (HRL). The HRL applies in times of peace or war but is primarily conscious of protecting people against governmental violence against their recognized civil, political, economic, social, and cultural rights (Universal Declaration of Human Rights, GA. Res.217A (III0, UN Doc A/810 at 71 (1948)). War crimes are defined by breaches of the Geneva Conventions of 8/1949 (Article 8, Rome Statute). These include torture or inhumane treatment, biological experiments, extensive destruction and appropriation of property, and willfully denying a prisoner of war or other protected person the right to a fair and regular trial.

The ICC is limited in its investigative reach, being unable to subpoena any state or their records. While the Court may request a warrant or subpoena, the Prosecutor and the Court lack an empowered policing agency to ensure the fulfillment of either request (Article 54-58 Rome Statute). The Prosecutor is limited to requesting the presence of persons being investigated, victims, and witnesses. The Court must seek the cooperation of a state in fulfilling the ProsecutorÕs requests. It must rely on the compliance of a state or state party to relinquish any evidence, suspects, or witnesses that are relevant to the ongoing investigations carried out by the Prosecutorial Branch. The Court is unable to enforce its decisions without voluntary state compliance.

The Court has limited jurisdiction, inclusive only of a state party to the treaty or by agreement of a state not a party to the Statute. The criteria listed in Article 12 for the exercise of jurisdiction requires a state to become a party to the statute or accept the jurisdiction of the Court if the crime occurred on the State territory, its vessel, or aircraft, or if the State of which a person accused is a national (Article 12,a-b). No person can be held liable by the court unless the crime occurred within the jurisdiction of the court. Compliance by a non-party state is highly unlikely and non-compliance can act as a detriment to the ability of the ICC to be an effective measure of international justice (Mullins, Kauzlarich, and Rothe, 2002).

The Rome Statute of the ICC: Descriptive Information

The Rome Statute required sixty states to become signatories by December 31^st 2000 (Article 126) for the Statute to enter force. That goal was far exceeded with 139 state signatories at the closing date.

The ICC consists of 81 states forming the Assembly of States Parties (ASP) to the Rome Statue. The endorsement of the Rome Statute requires states to be signatories and ratified members. The ratification of a stateÕs signature varies with each stateÕs domestic legal system (e.g. the US would need the approval of the Senate for the international signature to be ratified). Support of the ICC stands to become stronger as the 139 states that have endorsed the Rome Statue with their signature become ratified members (90 states have become ratified members as of 5/2003) in accordance with their domestic legal systems. This number excludes the two states that were signatories but withdrew all support for the ICC: the US and Israel. A few states have failed to become signatories due to domestic strife, but are willing to participate in the ICC, such as Kazakhstan, Indonesia, and Malaysia. Other states are adamantly opposed to the ICC such as the Libyan Arab Jamchiriya, India, Pakistan, Saudi Arabia, Turkey, Iraq, and Myanmar.

The Assembly of States Parties (ASP) met from September 3-10, 2002 to establish the ongoing agenda, Rules of Procedures, and to elect members of the Bureau Tasks. In February 2003, the Assembly of States Parties began their first session to elect the eighteen judges of the Court. The newly elected judges then appointed the first President of the ICC, the Vice-President, and the second Vice-President. The Prosecutor was sworn in on 16 June 2003 followed by the Registrar on 3 July 2003 (CICC, 2003). On the first year anniversary of the establishment of an ICC all Senior Officials had been elected. The court is currently near completion of staff and able to proceed as an international system of justice. The culmination of a century of aborted attempts and contentious efforts had finally been achieved. Albeit, the end result of an ICC is less than many states had once fought for (universal jurisdiction and empowerment) it nonetheless represents a significant change for international relations and international law. The Preamble to the Rome Statute states that it is:

Mindful that during this century millions of children, women, and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity, affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and enhancing international cooperation, determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimesÉdetermined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court with jurisdiction over the most serious crimes of concern to the international community as a whole (Rome Statute, July 1999).

Conclusion

The mission statement of the Rome Statute personifies the new ideology of an international society (with common goals, values, and interests) and the ideological principle of universal jurisdiction (the Rome statute describes an ability to have jurisdiction over the most serious crimes but realistically has limited jurisdiction). Indeed, the ICC does represent a change in international relations and international law. The potential of the ICC to fulfill its mission to end impunity or to be seen as a legitimate body of justice is hitherto unbeknownst. The hope lies in the potential for the ICC to be malleable (Article 123) and to eventually fulfill the role of a universal system of justice, free from the inherent political nature of international law and international society. The ICC has the potential to change interstate power relations. The “weaker” states have for the first time a direct connection to the Court as a member for legal settlements or charges against more powerful states. The potential to balance the power differentials of the international society is a promising possibility for the Court. The pessimism lies in understanding the fundamental contradictions of an international society with independent states, divergent political, economic, cultural, and religious diversity coupled with an ideology of one society standing united under the rule of law based on universality.

Links To Other Sources Online for the ICC:

Amnesty International (2002). Available on-line at: http://web.amnesty.org/

Coalition for the International Criminal Court. International Criminal Court Homepage (2002) Online http://www.ICCNOW.org/html/country.html

International Criminal Court Monitor. (2002) Online at http://www.iccnow.org

International Criminal Court Documents. (2002) Online http://www.ICCNOW.org/html/new.html

United Nations Library, ONLINE. http://www.un.org/Depts/dhl (2001). Open Documents-May 1996, 1998 archives, 1999 Annual Report, council-meeting.

Online:http://web.amnesty.org/ai.nsf/COUNTRIES%2FUSA?OpenView&Start=1.151&Count=30&

Other Recommended Sources:

Bassiouni, M. (1998). The Statute of the International Criminal Court. Transnational Publishers, Inc. Ardsley, NY.

Cassesse, A. (2002). The Rome Statute of the International Criminal Court: A Commentary. Vol. I. Oxford Press.

Cassesse, A. (2002). The Rome Statute of the International Criminal Court: A Commentary. Vol. II. Oxford Press.

Cassesse, A. (2002). The Rome Statute of the International Criminal Court: A Commentary. Vol. III. Materials. Oxford Press.

Mullins, C , David Kauzlarich and Dawn Rothe (2002). “>The International Criminal Court and the Control of State Crime: Problems and Prospects”. Presented at American Society of Criminology, Chicago, IL November, 2002.

Sadat, L. (2002). The International criminal Court and the Transformation of International Law: Justice For the New Millennium. Transnational Publishers, Ardsley, NY.

Shelton, D. (2000). International Crimes, Peace, and Human Rights: The Role of the International Criminal Court. Transnational Publishers, Inc. US.

[1] For a complete and descriptive account of the structure of the ICC see Sadat, 2002; Cassesse, 2003.