Farooq Hassan, D.Phil.; B. A. Juris., M.A., M.Litt.

As I address my topic of today’s discussion, the International Criminal Court (hereinafter as the ICC) and its impact on Family Related issues, I feel an uneasiness that is not easy to describe. You see I participated in the various Preparatory Committee Meetings in New York that laid the basis of the Statute of the ICC signed in Rome in July 1998. Indeed I was the head of Pakistan’s delegation to these meetings and was also included in the drafting Committees of this huge deliberative body that represented all Member states of the UN and some observers as well.

I regret to say that what the makers of this institution envisaged on many matters during these long and detailed discussions spread over years, has been totally misused to canvass ideas and ideals that are far removed from the purposes of this juridical body. This seems to me the result of determined efforts of many lobbying quarters. This has also occurred, prima facie, by subsequent yet calculated moves and deliberative misinterpretations of partisan elements of certain lifestyles that violate all accepted canons of decent living.

This international tribunal was created after many years of labor and determined interpretive constructions of existing international customary law by jurists to prevent terrible atrocities at the hands of would be mass murderers, tyrants and violators of human rights. The Statue therefore not surprisingly in its initial provisions assertively states that it will deal with only the “most serious crimes of international concern.”[1]

So the fundamental and real question that must now be faced is this that if the ICC has only to occupy itself with the most sanguine problems faced by the international community, how does it adversely affect a perfectly universally acceptable social human institution of the Family, regarded by even the Universal Declaration of Human Rights, 1948, as the” natural and fundamental group unit of the society and is entitled to protection by society and State?”[2]

The danger lies, as pointed out by a number of learned jurists that under the impact of diverse declarations emanating from the UN or its related agencies, a “soft” international law may be argued, even if by most belabored of constructions, to exist to negative some of the most cherished beliefs of our civilization pertaining to the Family.[3] Secondly recent juridical developments in the US and Europe have to be properly seen. Given the sociological changes and metamorphosis that such evolution seems to be ushering, the wording of the ICC Statute in important places that is of vague nature assumes crucial significance. It is “arguable” to incorporate as an internationally proscribed human conduct through its mechanisms under the Statute that is otherwise in complete accord with the traditions of established decency. These norms include primarily those associated with the components of a Family.[4] Conversely appropriate condemnation of perversity recognized as such by traditional religions may be ground for being responsible for transgressing the limits of criticism now argued by some under the Statute for such a critique; this may indeed arguably even render such advocates as vulnerable to a potential violation of the international crimes set out in the Statute.           

The key challenges to the traditional Family emanate from a number of issues intimately connected with the ICC and the potential ambit of its jurisdiction under the Statute. A good starting point is to see briefly the extent of jurisdiction of the court. Outlines in Articles 6,7 and 8 of the Statute are the major crimes the court can probe into.[5] Let us laconically, without too deep a legal analysis, give a bird’s eye view of what the perceived problem seems to be for the adherents of the traditional Family.

In Article 6 “genocide” is conceptualized as an international crime. While asserting the generally held view regarding the reprehensible nature of this wrong as a heinous act perpetrated by frequently brutal and tyrannical regimes by “ killing of members of a national, ethnical, racial, or religious groups”[6], but also “ causing serious bodily and mental harm to members of the group.”[7] It is clear that the added lexicographical dimension has the potential of possibly targeting other “offenders” who may have nothing to do with the crime of “genocide” strictii sensu, as we traditionally understand this legal term. However, because of their firm religious beliefs or simple rhetoric a community may undertake criticism of a group considered by it to be “deviant” and such critique may possibly render it culpable as explained above if the “alleged victim group” can show “mental harm”

In Article 7 “ crimes against humanity” are set out to include a number of established criminal actions. These include action such as “ murder, extermination, enslavement, forcible transfer of population, torture, and sexual slavery, and persecution, but it also refers to “ other inhumane acts.”[8] Could it mean and cover mere assertions that certain conduct of identified group is immoral or perverse?

However, the most alarming issue of concern to the pro Family protagonists is the species of crimes against humanity labeled by the ICC Statute as “persecution”. As now further articulated by the work on Article 9 of the Statute by a Report, it would be an element of a crime if it results in “severe deprivation of a group’s fundamental rights.”[9] Again the fear is that it is unclear what kind of conduct would be tantamount to criticizing the deviant conduct of a group from traditional moral or religious precepts?[10] If arguendo as submitted below, there can be said to exit norms of international law, howsoever “soft” they may be, proscribing some form of verbal criticism of deviants, could a case be made out against them for “persecution” for simply stating the expose of traditional religious beliefs on deviant misconduct of human beings?

I may cite with advantage Article10 of the ICC Statute, which further states:

"Nothing in this part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for the purposes other than the Statue.”

As such it is certainly a well-founded apprehension that contemporary interpretations of some of the fundamental issues relating to the Family (but essentially against its integrity) may well be considered by some as part of developing international law. These issues, particularly those relating to women and children under the Convention on the Elimination of All Forms of Discrimination Against Women (hereinafter CEDAW)[11] and the Convention on the Rights of the Child (Hereinafter as CRC) [12]are most deserving of our concerns.

 A look at the proviso of Article 7 (h) of the ICC Statute would also be helpful in better understanding this matter. This Article apparently brings within the mischief of the wrong of persecution the following kind of conduct (which is most troubling) when it says:

"Persecution against any identified group or collective political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the court.”

Such is the potential of the misuse of this provision that one is persuaded to agree to the fear of pro-Family activists that may be even teaching or forceful dissemination of the moral and realistic evils about the actions of the sexual deviant community of a group may be sufficient for having infringed the law relating to “persecution”. Similarly Article 7 Sub Clause (k) of the ICC Statute is revealing when it sys:

"Other inhumane acts of a similar character intentionally causing great
Suffering, or serious injury to body or to mental or physical health.”

It signifies that were a deviant group to assert, howsoever frivolously, that another group has caused such “intentional suffering” on it, there may be alleged grounds for a case of having infringed the laws proscribing crimes against humanity; howsoever feeble the reality of the threat may be, the mere potential of this prospect is most disturbing.

The two international Conventions mentioned above may now be briefly seen. Under CEDAW there exists a Committee for interpreting the work under the said Treaty. One of the main pursuits of this institution has been to criticize governments for directly or indirectly prohibiting abortions even though the Treaty does not mention this as human right. It even recognizes lesbianism as a “right”. These assertions are not borne out by either the text of this Convention or the historical records of the Cairo or Beijing Conferences in 1994 and 1995.[13] Most surprisingly this Committee has pronounced even “prostitution” as a “right”.

Clearly therefore, the creation of such “newer” rights or norms relating thereto constitute grave danger to the very existence of just knowing what the “rights” are in this field. As submitted below, I totally discard the notion and the theory that such administrative type agencies have the international jurisdiction to create any such rights.

I think I do know something about the modality of creation of “new human rights”. I recall that in 1980 in this very City I came for the drafting of one of the new six human rights undertaken by UNESCO under a UN mandate.[14] These rights were collectively labeled as “solidarity rights”. This was technically the process initiated by the international community for a “third generation of human rights”. The rights that were to be created were identified as such and had the vision of genuinely advancing the International Bill of Rights, which hitherto fore contained the first two-generation of human rights.

I therefore deny any jurisdictional right in such purely administrative or agency committees to assume legislative international jurisdiction to start farming totally new human rights. Any arrogation by such bodies is equally null and void and of no legal consequential effect.

This CEDAW Committee has also attacked “motherhood” as being a “stereotype” sociological traditional conception.  It has thus asserted that through this mechanism women have been prevented from progressively taking their place in contemporary society. Under this theory this committee has admonished countries such as Georgia and Belarus.[15]  This philosophy has generated even greater dynamics of this peculiar attitude of this Committee as when addressing important European countries it has encouraged them to absorb greater number of women in their working populations. This message has been handed down to Germany, Spain and Luxembourg that despite their birth rates being below replacement figures, their Governments must make efforts to “eradicate stereotype attitudes.”[16]

Turning now to the CRC, it is manifest that the approach under its initial charter is quite similar to the one exposed above with regard to CEDAW. There is no question that the CRC is designed to help and assist the welfare of the Child. In this respect the Convention in its Preamble rightly affirms the objective of this international treaty is to protect the children of the world. But from this solid and worthwhile objective, the Convention goes on to promote the “autonomy” of the child in a way that is detrimental to the very integrity of the Family.

In this context the CRC has proceeded on two highly baneful premises. First through Article 16 the child is granted extra-ordinary rights of “privacy”.[17] While the principle from which this premise emanates is attractive, it is essentially unrealistic. “Privacy” can only be exercised in the manner contemplated against the Family since there is no other practical institution vis-à-vis which it would otherwise operate. Furthermore, the language of this convention is so all encompassing that it lays the foundation of utter sexual independence, which is utterly destructive of the innocence of the child and traditional Family values. Shockingly enough this provision is capable of giving the same discretion in respect of matters such as abortion or procreation as otherwise ostensibly possessed by adults.[18]

In Article 13 CRC grants almost unbelievable freedom of speech and information to the Child.[19] In the contemporary social and technological milieu, with TV and Cable capable of playing havoc with anyone’s morality and sense of ordinary decency, this “right” seems to be an open invitation to indulge in pornography and obscenity. Does not the child’s development psychology deserve any protection for the continued innocence of the child?

In sum, the CRC and the enormity of academic work already produced on it to eulogize its status is most troublesome. It gives one shudders to realize that to give the child the pedestal of adulthood in infancy is to thwart the longevity of his innocence and a healthy Family environment. Indeed it is clear that the future of our children’s children has been jeopardized by unnecessarily upgrading the rights of the child when the focus should have been the Family. Without question Family is the prime universal human institution in which the pristine goodness of the totality of the ingredients of a child, his education and welfare reside.

Since these “norms” or new  “rules of conduct” may have the status of international law, their violations may well be hit by one of the several highlighted provisions of the ICC analyzed earlier. As such the treat to the Family by the new international Criminal Court is obvious.

One aspect of the problem of the ICC with the Family arises from the fact that the understanding that the ultimate repository of all decisions, including the width and ambit of this court’s jurisdiction vest in the tribunal’s judges. The court was pre-eminently created, as there was a longstanding fear that national courts were not about to really do much against the perpetrators of the worst atrocities. Also as the jurisdiction of the court was certainly novel and extra-ordinary in extent and substance, the judges were given the power to decide the power to decide their jurisdiction and the extent of what its jurisdiction would be effective against. So the position of the judges assumes high significance.

In a way this is not very strange. All judges are ultimate repository of their own jurisdiction. But given the fact that judges are influenced by legal thinking and precedents, it is more than obvious that that they will be more prone to be guided by legal rather ethical or historical norms when dealing with the contentious matters relating to the Family. As such it is not very surprising that even a conservative US Supreme Court decided the way it did when dealing with Lawrence V Texas. As such erudite judges, despite their best intentions, may well be inclined to move towards goals, even unwillingly, which really are destructive of true and genuine Family values.[20]    

Further to be noticed with serious concern is the role to be ascribed to the Prosecutor under the ICC Statute. The Proposal of countries such as the United States was rejected in the framing of the Statute that such a Prosecutor be only allowed to proceed if the matter was referred to it by a State or a UN Agency.[21] Instead the prosecution is given wide and extensive powers of investigation to do what it considers best to evaluate a case against the “accused”. As such only time will reveal how this evaluator process unfolds. But it is quite conceivable that “liberal” thinking in devising deterrent techniques against traditionalists of Family values becomes regrettably visible.

For judges, the ICC draft Statute actually did contain a specific mention regarding their eligibility to be based on “expertise” on “issues relating to sexual and gender violence”.[22] But his formulation was eventually dropped. Instead the present Statute provides that while appointing judges “ account shall be taken to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children.”[23] 

There is thus little doubt that there is a direct emphasis to intellectually equip this institution with experts of known and established credentials in studies that often, though not necessarily, tend to support the anti traditional Family articulations.

With decline in Western social mores, if I respectfully can put it that way, the   creation of the ICC as it presently seen by many experts would tend to fundamentally work in a manner that denudes the necessary or at least incidental fundamentals of established values of Family. I can quote with advantage the following comments of a widely respected scholar in this area:

“The last three or four decades have seen a noticeable decline in American morality and culture, and the resulting disintegration of many American families. Some of this decline has been driven by changes in the laws, but many of these changes have not come about through the democratic process. Rather, these changes have been forced on the majority by committed activists who use the courts.”[24]

With such changes in the cultural atmosphere being present, it is axiomatic that the legal approach to interpretation would prejudice towards certain delineated course. Accordingly if the judges of the ICC are more prone to be influenced by such local and regional juridical developments, as they may well be, it is manifestly probable that the overall dynamics of this phenomenon will be progressively moving towards a goal that is the antithesis of the aims of pro Family protagonists. It would be very helpful accordingly if large and impressive gatherings of the nature as provided by this World Congress reverberate the intellectual formulations of its deliberations for a dissemination drive throughout the regions where such publicity is presently directly needed.

MORAL FOUNDATIONS OF HUMAN RIGHTS

I have thus far avoided while analyzing this subject any reliance on the moral foundations of the philosophy of human rights. In simplicter, this approach is predicated on the premise that even with this legal a priori basis, the strength of the Family as a human institution is so fundamental and natural, as not to be intrinsically adversely doctrinally affected. 

But I am about to suggest today an approach towards this smatter that should be seriously considered by us. It is assumed, as indeed I have admittedly done so myself, that this subject is based on entirely secular and the resultant legal norms emanating from such a foundation. However, it is perfectly possible but now necessary and desirable that in the context of visionary conceptions, this matter be viewed differently.

I feel that instead of granting that human rights philosophy is totally controlled and devised on secular learning and consequential legal texts, it be contended with force that this matter really belongs to the realm of moral and religious heritage of Mankind. As such, the Family institution’s pivotal position for us is to be seen in such an historical context. For example, when the American Bill of Rights or the French Declaration of the Rights of Man speak of “inalienable rights” of Mankind at the close of the 18^th Century, from what system did this “inalienability” emanate from?

Admittedly such a “system” did not exist in the domain of practiced legal norms or known history of secular jurisprudence of the time. So when the great constitutional thinkers referred to “inalienable rights’ in the 18^th century it was in the background of writings of great intellectuals such as Locke and Rousseau. The genesis of this topic thus being that certain “rights” including I submit the right to and of the Family, predate modern secular state controlled human rights regime, and exits independently and in addition to it. Conversely it cannot be derogated upon in its central thematic conceptions by belabored constructions of misguided liberalism or secular onslaughts.

I have not dealt at all in this presentation on the contributions of tremendous religious thought that exists in this area. But let state this at this juncture quite plainly but with all the emphasis at my command. The monotheistic Faiths have laid stress on this matter. Family is an integral part of the human race and is the foundation of all decency that arises in any society. I am particularly placing before you the emphasis of the Muslim thought about such issues as it has been laid in the Quran that the Family as an institution is both sacred and of eternal nature. Its goodness is described variously, to which reference in detail will be made by me at another place.[25] God’s Devine commandments’ include directions about the unique status of the Mother, the Father and the position of brothers and sisters. We must realize that this is the simple truth on which the lives of generations of good and decent societies have depended since times immemorial.

For sake of time I have resorted to brevity. But do I hope that in semantics and surrounding analysis I have submitted the issues clearly on which a proper understanding of matters germane to my discussion have been appropriately propounded. I thank you all. I specially want to thank my colleagues on this panel for giving me their august company in these important deliberations.[26]

VIGILANCE COMMITTEE

Before concluding let me leave you and the organizers with this thought. I think today’s analysis reveals the high priority to be given to UN and legal developments in both domestic and the international domains. As such we should be clear in our minds that no amount of simple goodwill would be sufficient to win this ongoing tussle against such deviant or liberal endeavors to shatter the traditional values of the Family.

We have to be watchful of all legal maneuvers and evolutionary trends. As once they become or are given the status of a fiat accompli, other related efforts based on simple ethics lose relevancy. 

For instance I just returned after addressing several key ambassadors and delegates to the 60^th Session of the UN Human Rights Commission in Geneva. They were about to consider a Resolution L 92 moved in 2003 by Brazil and co-sponsored by Canada and 18 other countries for having “sexual orientation” approved as a human right. The latest news is that that this Resolution has been at least withdrawn for the time being by Brazil, conceivably on account of the public dissemination campaign launched on behalf of the Family.

My visit to the UN Human Rights Commission was made possible by two important Family international institutions, namely Care of UK and the Focus on the Family. I am grateful to them for their hospitality. But the point I wish to make is that it is possible that on account of efforts such as this one, we might have timely responses to the activities of the anti Family lobbyists in the legal fields. The pro family NGOs would thus work together to create a kind of Vigilance Committee of a global kind with a view to constantly monitor such developments. It is only then that we might have timely responses formulated to meet the challenges that lie ahead.

In concluding let me thank both the Mexican Organizations that helped to celebrate appropriately this World Congress of Families III and the Howard Center in a most imposing manner. [27] Also to be specially noted are the comforting and encouraging words of the President of Mexico and those of President Bush.[28] It establishes that important governments and their heads of state are now in the avowed ranks of the Family. Despite changes that are clearly in the offing against this institution,[29] we have the impetus to move ahead with hope.