United States sovereignty: UN intrusion a growing concern

by Daya Gamage

Who decides the rules of war? The chief prosecutor’s office of the International Criminal Court (ICC) is currently collecting information on alleged war crimes committed by the US soldiers in Afghanistan. UN General Assembly at Session

The ICC claims jurisdiction over American troops even though the United States has refused to join the ICC treaty, because the alleged violations in Afghanistan, which is a party to the treaty. The alleged violations of the laws of war are acts (e.g. mistaken killing of civilians) that the United States has never considered as war crimes.

The ICC prosecutor said his investigators were getting information from human rights NGOs. Will American human rights lawyers continue to work with the ICC against US soldiers and maintain that their own sectarian definition of international humanitarian law trumps US constitutional law?

Above is a strong sentiment running in the halls of the United States Congress, among noted constitutional experts and influential opinion-shapers. A sentiment that was never presented forcefully by a South Asian nation - Sri Lanka - when it faced the issue of ‘war crimes’, ‘killing of unarmed civilians’, and even engaged in ‘genocide'.

What is building on the American soil - in connection with its domestic and foreign policies in its ‘Global War on Terrorism’ - is to combat the narratives that allow an overtly and covertly building atmosphere aimed at depicting the United States as engaged in ‘war crimes’ and bring that nation toward UN scrutiny.

The Americans hate outside interference in their policy decisions and actions construing as ‘assault on its sovereignty'.

Tamil diaspora

One could see a parallel here; Sri Lanka, which concluded a battle in May 2009 which threatened its territorial integrity and an imminent bifurcation unleashed through nation-wide terror of 26 years, endeavours to find the ‘correct’ narrative as much as the US, to combat the separatist elements who are operating within the Tamil diaspora domiciled in Western nations whose final objective is to subject the South Asian nation to (UN) laws of war.

Sri Lanka's Defence Secretary Gotabaya Rajapaksa has already challenged the UN to provide a cogent explanation as to how it arrived at the figure of 40,000 civilian deaths during the final months of the war against separatist Tamil Tigers or the LTTE.

But there is a difference; no political activist either in the Congress or in state governments ‘appeal’ to the United Nations to use its ‘global’ powers to bring their nation to international scrutiny - the crust of the issue of sovereignty.

The main political Opposition in Sri Lanka, in contrast, wants the UN to scrutinise the nation, an infringement of a nation's sovereignty.

The crucial question raised in the United States is: Who determines the laws of war? The globalists believe that they (the ICC, NGOs, UN Human Rights Council, postmodern States), not the Israelis themselves, should determine the rules by which Israel is permitted to defend itself. For example, Israel (like the United States and India) is not a party to Additional Protocol I of the Geneva Conventions (adopted in 1977). Yet, the Israel Defence Forces (IDF) is constantly charged by the globalists with violations of “international law,” who often cite Protocol I (e.g. failure to warn civilians before an air attack).

The globalists (and Islamists) do this even though they know that the principle of “state consent” is at the heart of customary international law and that Israel has not ratified Protocol I.

The above (American) sentiments penetrate right into the sovereignty of the US, and of course nations such as Sri Lanka which is facing scrutiny of the UN needs to take note of the ‘transnationalist’ efforts that steer laws of sovereign nations.

The leading voice in the US with regard to ‘UN infringement on US sovereignty’ is former Republican Senator (who served three terms 95-13 and in the House 87-94) Jon Kyl who recently declared in well received lecture series to policy developers and policymakers that “When your society is regulated to that extent by someone who has no accountability to voters, something is very, very wrong,” he says. “The transnationalists should be the last ones lecturing anybody about what ought to be because what is the US Constitution, which recognises sovereignty in the American people. That is embedded in everything about our country. It's not outmoded—it's who we are. And if you're not willing to accept that, then you haven't signed on to the most basic notion of what it is to believe about our country.”

Transnationalism

What Senator Kyl meant by transnationalism means “across” or “beyond” nations. Transnationalism signifies legal action and authority beyond national laws. It represents an intrusion into the domestic affairs of nation-states. What concerns the US is that the UN legal system and its actions through that system interferes in the sovereignty.

Talking about interfering in representative governments Jon Kyl says “But they (the internationalists in the UN) are in too much of a hurry to mess with the difficulties of representative government to get their agenda adopted into law—or they know they can't win democratically. So they look for a way around representative government.”

The commentator and columnist Sohrab Ahmari put it this way: Kyl knows something about representative government. After a four-term stint in the House, he entered the Senate in 1995 and quickly emerged as a serious thinker on defence matters. In 1999, armed with his substantive knowledge, he led Senate Republican opposition to the Comprehensive Test Ban Treaty. The treaty's ultimate goal, he charged at the time, was “total nuclear disarmament,” an effort by US adversaries and global arms-controllers to defang America's nuclear deterrent.

Now he has taken it as his mission to defeat the transnationalist efforts to steer American law. And he finds himself once again contemplating treaties that don't bode well for the US. A favourite transnationalist tactic is pushing the U.S. to ratify treaties like the three-decades-old UN Convention on the Elimination of all Forms of Discrimination Against Women and the more recent Convention on the Rights of Persons with Disabilities.

Such treaties, Mr. Kyl says, “have a lot of loose language that in the hands of the wrong people can demand far more than was ever intended by the American people.”

Says Mr. Kyl: “Once you have ceded authority to an external body to make decisions, our theory of government—accountability in officials, consent of the governed—is very difficult to uphold.

So you want to give up sovereignty sparingly and only when there is a clear benefit to doing so. I'm not saying the Senate should never ratify a treaty on behalf of the people, but I'm saying it should take the responsibility very seriously.”

Has Sri Lanka ever given some thoughts to the sentiments expressed by Senator Jon Kyl? Especially to “Once you have ceded authority to an external body to make decisions, our theory of government—accountability in officials, consent of the governed—is very difficult to uphold.”

John Fonte, Ph.D. a senior fellow at the Hudson Institute presenting his book in September 2011 Sovereignty or Submission: Will Americans Rule Themselves or be Ruled by Others? declared the following:

The concept of “global governance” is in the air. For many of the world’s elites—who gather at places like Geneva, Davos, The Hague, UN headquarters in Manhattan, and wherever the G20 meets—global governance is the “big idea”. Leading thinkers argue that today’s global issues are too complex for the “obsolete” nation-state system. Major political leaders say that “global problems require global solutions”. We are told that “sovereignty” must be redefined as something that is “shared” or “pooled”.

There is no doubt that as the twenty-first century progresses, globalisation will increase. But, the central question is: What form will globalisation take? Will it be international—based on sovereign states—or will it be transnational or supranational?

Transnationalism means “across” or “beyond” nations. Transnationalism signifies legal action and authority beyond national laws. It represents an intrusion into the domestic affairs of nation-states. What concerns the US, and its opponents such as John Fonte, is that the UN legal system and its actions through that system interferes in the sovereignty.

Small nation-states such as Sri Lanka are worst off if such states accept the status quo.

Here is the greater concern in the United States, and it is growing:

The UN Human Rights Treaty system is the single greatest threat to the international legal order since the end of the cold war.

It undermines the sovereignty of nation states, by removing norm making power from democratic processes, and giving it to intellectual elites, accountable to no one, and who are content with increasing benefits and taxes until nations collapse.

Reservations

The only human rights treaties that the United States is a party to merely establish rights that US citizens already possess under the US Constitution. Even so, when the US ratified those treaties it recorded reservations stating that the United States would not give any international arbiter, like the International Court of Justice, jurisdiction over disputes that might arise under treaty provisions without US consent, and that any conflict between the Treaty and the US Constitution would be resolved in favour of the Constitution.

The effect of those reservations is to eliminate even the remotest possibility that the US was giving up its norm creating power to an international body, process or mechanism. That norm creating power is an essential attribute of sovereignty, that is increasingly under attack by international elites that inhabit the United Nations and other supra-national mechanisms.

A columnist very aptly stated often applying to developing nations: There are also many legal problems associated with international processes, like the nascent UN Human Rights Treaty System, chief of which is the confusion of multiple legal systems into a single binding text of international law.

The Common Law system, which allows for some translation, has a remarkable variety of incarnations across the globe.

But the Civil Law system is entirely different from Common Law system (some would even say incompatible), and it too varies enormously from country to country. This means that one provision written into a treaty can mean a multiplicity of things to each individual country and the peculiarities of their own legal system.

Finally, there are the abuses of treaty bodies and UN agencies, which have become a major concern for UN member states, and because of which a process of reform is currently under way.

Both treaty bodies and powerful UN agencies routinely expand the meaning of international instrument, disregarding the sovereignty of the nations that constituted them. Moreover, treaty bodies routinely act ultra vires by purporting to issue rulings in a quasi-judicial capacity.

In sum, it would be imprudent for the United States to ratify another UN human rights treaty until the UN system is reformed. Ratifying the convention would be seen as United States approval for this way of conducting business.

We repeat here the opening paragraph of this note:

Who decides the Rules of War? The chief prosecutor’s office of the International Criminal Court (ICC) is currently involved in collecting information on alleged war crimes committed by U.S. soldiers in Afghanistan. The ICC claims jurisdiction over American troops even though the United States has refused to join the ICC treaty, because the alleged violations in Afghanistan, which is a party to the treaty.

The alleged violations of the laws of war are acts (e.g. mistaken killing of civilians) that the United States has never considered as war crimes. The ICC prosecutor said his investigators were getting information from human rights NGOs. Will American human rights lawyers continue to work with the ICC against US soldiers and maintain that their own sectarian definition of international humanitarian law trumps the US constitutional law?

Courtesy: Asian Tribune