Some issues of international law and genocide

Craven, Jim jcraven at
Thu Feb 20 14:42:50 MST 2003


                        LIL'WAT V. FRANCE AND OTHERS

                          LETTER FROM BRUCE CLARK

   Bruce Clark Barrister and Solicitor
       Dec. 7, 1991

   The President of the Court
   c/o The Registrar
   The International Court of Justice
   Peace Palace 2517 KJ The Hague
   The Netherlands

   re: LiL'Wat v. France and others

   Dear Mr. President:

   At the suggestion of Mr. Justice Lachs, I am writing to you in your
   capacity as chief administrative officer of the Court. The Lil'Wat
   Application Instituting Proceedings dated September 10, 1991, has been
   filed with the Court, but not yet distributed to interested parties in
   accordance with the mandatory provisions of the Statute and the Rules
   of the Court. My purpose in writing is to persuade you to give the
   appropriate directions and instructions to expedite the distribution.

   The reticence of the Registrar's office to distribute the application
   apparently arose from a suggestion made by Lachs J to the Deputy
   Registrar to the effect that Lil'Wat was not a "State". When I drew to
   the attention of Lachs J two facts he guided me to write this letter.
   Since, under the Statute and the Rules of the Court, the decision on
   locus standi goes to jurisdiction it is a judicial rather than an
   administrative function. As such , the decision to decline
   jurisdiction must attend upon the fundamental principles of justice
   governing the exercise of juridical power. In short, the Application
   legally must be distributed so that interested parties can be
   identified and heard upon the merits of the issue, so the judges
   themselves can not only decide on a basis that is not per incuriam.

   The second fact is that I am in a position as counsel conclusively to
   establish that the administrative rejection of the Lil'Wat Application
   was not only ultra vires, but based upon an untenable assumption of
   law. The precendents, statutes and conventions that rebut the
   assumption have been identified by me on the basis of some twenty
   years preparation. For this reason, I suggest that I am qualified to
   offer you my own legal opinion on the jurisdiction issue, as an expert
   within the meaning of Statute article 38(2). My legal opinion is that
   Lil'Wat is juristically sovereign in respect of the Lil'Wat territory,
   and furthermore that juristic independence is sufficient to constitute
   a "State" within the meaning of the jurisdiction sections of the

   Enclosures elaborate. These may also assist you philosophically in
   appreciating the reason your reaction to this letter is crucial to the
   global integrity and growth in influence of the rule of law. The
   sections of the Statute and the Rules of the Court that establish the
   separation of the administrative and judicial functions are set out
   with particularity on the face of the LiL'Wat Application Istituting


   Bruce Clark



   13 January 1992 (received 28 Jan.1992 B.Clark)

   Dear Sir,

   The President of the Court has received your letter of 7 December
   1991, and has directed me to draw your attention to Article 26,
   paragraph 1 (a), of the Rules of the Court, and to reply further as

   It appears to be your contention that if an individual asserts that a
   particular entity or group, for whom he claims to be acting, is a
   "State" within the meaning of the Statute of the Court, ansd submits a
   document which he characterizes as a "written application" purporting
   to institute proceedings, this is sufficient to raise a question of
   legal status requiring a judicial decision of the Court. This is not
   the case.

   In view of the terms of Articles 34 and 40 of the statute, of which
   you are aware, any unilateral attempt to seise the Court of a dispute
   can not be deemed to be a "written application" unless it emanates
   from an existing State. Only a valid seisin of the Court by a State
   gives rise to the obligations of the Registrar under the Statute, and
   the point is thus one to be examined initially by him. In the present
   case, the Deputy -Registrar was undoubtedly right to take the view
   that your clients do not constitute a State and that the successive
   "applications" presented by you on behalf of "Lil'Wat" are therefore
   wholly ineffective in terms of the law and procedure of the Court. No
   further correspondence on the matter can be entertained.

   Yours faithfully,

   Eduardo Valencia-Ospina

                           REPLY FROM BRUCE CLARK

   Bruce Clark, Barrister and Solicitor
       February 3, 1992

   Sir Robert Yewdall Jennings
   President of the International Court of Justice
   c/o The Registrar, Peace Palace
   2517 KJ The Hague, The Netherlands

   Re: Lil'Wat v. Canada and Europe

   Dear Mr. President:

   The holocaust against the indigenous peoples of the rainforests is
   ongoing. Existing international law requires that it cease. The
   International Court has jurisdiction to implement that law. The
   preliminary legal issue is whether my client has legal status to
   invoke that jurisdiction. The resolution of that preliminary legal
   issue depends upon whether my client can satisfy the legal
   precondition to gaining access to the Court. To do this, it must
   establish as a matter of existing law that it is a "State" within the
   meaning of the Statute of the International Court of Justice.

   In my letter to you dated December 7, 1991, I stated that the
   precedents , statutes and conventions identified by the Schedule of
   Law accompanying my client's Application Instituting Proceedings
   achieve this. But in your reply to me dated January 13, 1992, you have
   blatantly misrepresented my position - for I have never contended that
   a bald assertion of state status is sufficient to invoke the
   jurisdicition of the Court. Rather, my contention all along
   unambiguously has been that my client is constituted a "State" for
   purposes of assessing the jurisdiction of the Court precisely in
   virtue of the precedents, statutes and conventions identified in the
   Schedule. By inventing a patently ridiculous position, by falsely
   attributing that position to me, and then by discrediting that
   position, you are abusing the administrative power entrusted to the
   office of the President.

   Having misrepresented my position, on this fraudulent basis you
   preceeded in your letter to usurp the Court's statutory duty to
   resolve the preliminary jurisdictional issue itself. When the Court
   does address it, as in due course it must and will, the issue then can
   be resolved upon the basis of law - which is all my client's
   Application seeks; not upon the basis of an a priori assumption - that
   is, upon the basis of anti-law - which is what your letter
   constitutes. The big lie techninque employed by you in your letter
   will fool some people: those who are prepared passively to make
   themselves your accomplices by engaing in willing suspension of
   disbelief or appeasement. Others, I hope and pray, will be persuaded
   positively to respond to my call for your impeachment and removal from
   office. Even so, I have no doubt but that you are confident that your
   are politically immune from being held accountable, due to the fact
   that the criminals perpetrating the holocaust wield power and
   influence, while the victims do not. All they have with which to
   defend themselves is the rule of law.

   Since in the circumstances of the 1492-1992 holocaust in the Americas
   your abuse of due process is genocidal, I believe that each judge on
   the Court shold have the opportunity to disassociate himself from your
   contempt of the honourable rule they are legally obliged to promote.
   For this reason, I request that you circulate a copy of this letter,
   and of the enclosed resolution calling for your impeachment and
   removal from office. For posterity a record must be maintained of
   those judges, if any, who would prefer to address the law allowing
   them presently to prevent horrifying crimes against humanity and


   Bruce Clark

                           FURTHER REPLY FROM ICJ


   9 March 1992

   Dear Sir,

   I refer to the document dated 14 February 1992 which you have
   addressed to the Court and styled as an application instituting

   You will understand from earlier correspondence that in the
   circumstances I do not consider your characterization of the document,
   or of the entity whose agent you claim to be in sending it, as
   sufficient to raise a question of status requiring a judicial decision
   by the Court or a fortiori, to constitute a valid seisin. I am
   therefore obliged to refrain from taking any action in this matter.

   No further correspondence on the matter will be entertained.

   Yours faithfully

   Eduardo Valencia-Ospina

                       FURTHER REPLY FROM BRUCE CLARK

   Bruce Clark - Barrister and Solicitor

   Mr. Eduardo Valencia-Ospina

   re: Amazonia v. Holland and others and re: Lil'Wat v. France and

   Dear Mr. Registrar:

   For the reasons that follow, your letter to me dated March 9, 1992
   perfects your complicity in genocide contrary to Article III (e) of
   the Covenant on the Prevention and Punishment of the Crime of
   Genocide, 1948. By Resolution 9 (1946), the Security Council of the
   United Nations reposed in the Judges of the International Court of
   Justice a legal duty thenceforth to hear cases brought before the
   Court by States not being parties to the Statute of the International
   Court of Justice. The legislative intent is unambiguous: to foster the
   rule of law as the peaceful alternative, worldwide, to violent
   confrontation, by treating the Court as an open house rather than an
   exclusive club.

   The wording of Resolution 9 (1946) is straightforward: all that is
   required to give rise to the duty is the filing of a declaration in
   which a given non-member State undertakes to abide by the Court's
   decision. Accordingly, as stipulated by Articles 1, 2 and 3 of
   Resolution 9 (1946) Amazonia, not being a party to the Statute of the
   International Court of Justice, but purporting to act in the capacity
   of "State", deposited a general declaration accepting as compulsory
   the jurisdiction of the Court. Since Resolution 9 (1946) itself has
   never been rescinded or amended as allowed by its 4th Article, the
   filing of that declaration by Amazonia by operation of law
   automatically brought into operation Article 5. That particular
   article enacts that "All questions as to the validity or effect fo a
   declaration made under the terms of this resolution shall be decided
   by the Court".

   Furthermore, under Article 39 (6) of the Statute of the International
   Court of Justice "In the event of a dispute as to whether the Court
   has jurisdiction, the matter shall be settled by the decision of the
   Court." The legislative intent behind Articles 5 and 39 (6) is also
   unmistakable. The question upon which the jurisdiction of the Court
   turns, namely the legal status of the Applicant as a "State", is by
   these articles statutorily principles of fundamental justice is the
   requirement that the Applicant contending for "State" status have the
   opportunity to apprise the Court of the determinative facts and law
   bearing upon that legal status.

   Your letter to me dated March 9, 1992, blatantly breaches this
   principle. In the first place you have usurped the Court's statutorily
   imposed exclusive jurisdiction to address the question of "State"
   status. Secondly, even if you were "the Court" (which manifestly you
   are not), your decision would be insupportable since you denied my
   client's fundamental right to apprise the Court of permitted, and
   indeed as required, by the applicable legislation. I believe I
   understand your criminal motive. Upon the basis of a demonstrably
   erroneous a priori assumption, for the last half century the
   International Court of Justice has made it a practice arbitrarily and
   peremptorily to turn aside Applications from native Americans. In the
   result the process of genocide, and correspondingly the ecological
   havoc that has complemented the genocide, continue unabated. You and
   your accomplices intend administratively to prevent the facts and the
   law that rebut the a priori assumption from being referred to in open
   court. Accordingly, you seek to forestall the public event by
   preempting the normal judicial process. By doing so, you not only
   cover up past transgressions that otherwise will be exposed. But you
   also ensure that the genocide will continue.

   You achieve this specifically by thwarting the rule of law. That is,
   you breach the sacred trust imposed upon you to act as the guardians
   of the rule of law. I have previously alerted you, the Deputy
   Registrar, the President and Judge Lachs to the essential basis in law
   for my clients' "State" status and hence for the Courts' jurisdiction.
   I reapeat it. Since Amazonia, (like Lil'Wat) is situate in the
   Americas beyond the treaty frontier, as a matter of strict and
   existing law those particular members of the indigenous race of
   people, as distinguished from natives occupying territory in the
   Americas within the treaty frontier, can be shown still to be
   juristically sovereign. No case has ever before been presented to the
   Court upon the basis of being from beyond the treaty frontier, and yet
   you perversely are regarding the issue as being settled law - a legal

   Juristic sovereignty arguably constitutes the crucial legal feature of
   a "State" for the purposes of ascertaining the jurisdiction of the
   International Court of Justice. Indeed, it can cogently be contended
   that the Court has no greater or more crucial role to play than that
   of third party arbiter when two juristically sovereign and competing
   bodies politic have conflicting claims to "State" status in relation
   to the same or overlapping territory. By its enactment of Article 5 of
   Resolution 9 (1946) the Security Council relinquished or at least
   suspended its discretionary power of veto over access to the Court.
   Just two months later, on December 11, 1946, the General Assembly of
   the United Nations in its Resolution 96 (I) declared genocide a crime
   under international law. Two years after that, the Covenant on the
   Prevention and Punishment of the Crime of Genocide, 1948 was

   In virtue of these several progressive steps the vow NEVER AGAIN
   passed from political aspiration to legal requirement, remarking a
   point of passage of profound significance in human history: the rule
   of law at last superseded political expediency in relation to the
   scourge of genocide. Your improper denial of access to the Court
   effectively throws my clients back upon appeal to world charity,
   rather than law, to stop the genocide threatening them.

   While I plead with you to let the Court do its job, the citizens of
   Amazonia and Lil'Wat continue to be victimized. Most recently, on
   March 9, 1992, military forces of Suriname, financially and tactically
   supported by Holland, illegally and genocidally invaded Table
   Mountain, the place identified in paragraph 3 of Amazonia's
   Application. That invasion constitutes an act of war, one directly in
   violation of the Suriname Treaty, 1687, identified in paragraph 4 of
   the schedule of law appended to Amazonia's Application.

   You have the habit of ending your letters "No further correspondence
   on the matter will be entertained." In response, I have to suggest
   that no person is above the law. Since in the present circumstances
   genocide is the direct consequence of your dereliction of duty, you
   are guilty of complicity contrary to Article III (e) of the Genocide
   Convention. You and your accomplices must answer to the law,
   regardless of your high station.


   Bruce Clark

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