The ICC: Isn't a Constitutional Court

In comments below, Barking Dingo continues to claim joining the International Criminal Court (ICC) would neither harm Americans nor impair our foreign policy. This is, simply put, nonsense. The ICC's flaws are legion; the conflict between the Rome Treaty and U.S. law well known--except to Panglossian, geo-political virgins.

1. There is no world government and thus no "sovereign" to exercise police powers. See UN Charter, Art 2, Clause 1. Sovereigns are in a state of nature with respect to other nations, meaning (with some exceptions addressed below) there is no legal authority applicable to all actors in a criminal case. And, of course, little or no shared standard of justice.



2. It is true that some nations might be able to cede authority to a transnational institution. Even were that wise (and I think it not, see the European Constitution), it's impossible under US law--here the constitution trumps treaties, and constitutional procedure and rights (e.g., the first 10 Amendments) can not be delegated to another sovereign. Surely Dingo doesn't think it "just" to abolish, or restrict, say, the 6th Amendment right to a speedy trial? Compare Is A U.N. International Criminal Court In The U.S. National Interest?, S. HRG. 105–724 at 68 (July 23, 1998) (prepared statement of Lee A. Casey) ("the Yugoslav Tribunal Prosecutor actually has argued that up to five years would not be too long to wait in prison for a trial. See Prosecutor v. Aleksovski (Prosecution Response to the Defence Motion for Provisional Release ¶ 3.2.5.) (ICTY Case No. IT–95–1411–PT) (14 Jan. 1998).") with Barker v. Wingo, 407 U.S. 514, 533 (1972) ("It is clear that the length of delay between arrest and trial - well over five years - was extraordinary."). Heritage's Brett Schaefer lists other unjust inconsistencies:

   The ICC possesses characteristics that would not be deemed “fair” by most Americans, including the possibility of double jeopardy, absentee trials, inability to confront witnesses testifying against the defendant, permissibility of hearsay evidence, and other usages not permitted in American courts.

   Simply put, signing the ICC would be unconstitutional. Indeed, the Supreme Court seemed to agree in United States v. Balsys, Slip op. at 32 (June 25, 1998) (suggesting the 5th Amendment applies where "the prosecution was as much on behalf of the United States as of the prosecuting nation," as it would were the US an ICC signatory).



3. Similarly, the whole structure and process of the ICC clash with the Constitution. Writing for Heritage, Lee Casey and David Rivkin agreed:

   Once indicted, individual defendants would be tried by a bench of judges chosen by the ICC States Parties. As an institution, the ICC would act as police, prosecutor, judge, jury, and jailer. All of these functions would be performed by its staff, or under its supervision, with only bureaucratic divisions of authority.

   UN Ambassador designate John Bolton concurs:

   We are considering, in the Prosecutor, a powerful and necessary element of executive power, the power of law-enforcement. Never before has the United States been asked to place any of that power outside the complete control of our national government without our consent. Our concern goes beyond the possibility that the Prosecutor will target for indictment the isolated U.S. soldier who violates our own laws and values by allegedly committing a war crime. Our principal concern is for our country’s top civilian and military leaders, those responsible for our defense and foreign policy. They are the ones potentially at risk at the hands of the ICC’s politically unaccountable Prosecutor, as part of an agenda to restrain American discretion, even when our actions are legitimated by the operation of our own constitutional system.

   Moreover, as America's Ambassador to France, Howard Leach, observed in April: "There is no appellate procedure for the court’s decisions and the court can arbitrarily ignore the finding of the courts of sovereign states on the same case."



4. Even apart from law, the ICC offends U.S. public policy. As Rivkin and Casey point out, delegating prosecutorial powers over elected officials to some foreign authority would be un-democratic and utterly at odds with American ideals of self-government and popular sovereignty. It would transfer the authority to judge the acts of U.S. officials away from the American people to an unelected and unaccountable international bureaucracy.



5. Further, and contrary to Dingo's claim, the ICC's jurisdiction is substantially over-broad. Article 12 of the Rome Treaty states:

   [T]he Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:
   
   (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft.

   Thus, non-parties -- such as the US -- can be prosecuted for acts occurring in a signatory's country. This was one reason the Democrats declined to submit the treaty for ratification, according to a contemporaneous statement by Clinton's Ambassador-at-Large for War Crimes Issues:

   Under the treaty, the court may exercise jurisdiction over a crime if either the country of nationality of the accused or the country where the alleged crime took place is a party to the treaty or consents. Thus, with only the consent of a Saddam Hussein, even if Iraq does not join the treaty, the treaty text purports to provide the court with jurisdiction over American or other troops involved in international humanitarian action in northern Iraq, but the court could not on its own prosecute Saddam for massacring his own people.

   Dingo fails to consider the case where the U.S. doesn't press charges, but others claim an "unwillingness or inability of the State genuinely to prosecute." Such as, for example, accounting for terrorists "playing possum." Or likening detainment of unlawful combatants to a "gulag." No, that could never happen.



6. The ICC exceeds established international law precedent. According to Rivkin and Casey, the ICC isn't merely a Nuremberg follow-on:

   Claims made by ICC supporters that the court may legally exercise a "universal jurisdiction" are incorrect. The principle of "universal jurisdiction" is one of the most misunderstood and abused concepts in international law. It is, in fact, a narrow doctrine that allows states to extend their domestic law to punish individuals guilty of certain criminal activity taking place otherwise beyond the jurisdiction of any state. Traditionally, it has been limited to piracy and the slave trade, crimes occurring on the high seas, which may be otherwise unreachable under the ordinary principles of territorial jurisdiction.

   I note that boarding ships in international waters to halt the slave trade was piracy (and thus theoretically illegal) before Britain unilaterally deployed the Royal Navy, in spite of international law, applying "gun boat diplomacy" to benefit all humanity.



7. Finally, Dingo ignores global reality. Just as other nations don't guarantee the full Constitutional protections afforded to criminal defendants in America, some countries view identical actions differently depending on the actor--or the judge:

   Sitting on UN Commission on Human Rights are some of the world's worst mass murderers and violators of the very human rights they are supposed to protect, including Cameroon, China, Congo (DRC), Cuba, Pakistan, Saudi Arabia, Sudan, Syria, Uganda, Vietnam, and Zimbabwe. The Chairman of the Commission is one of the worst human rights offenders, Libya. These are the very same human rights violators that the Commission is supposed to investigate and expose.

   And prejudice in the UN system is well known. For example, Israel is routinely condemned, while genuine human rights violations are ignored:

   The U.N. has passed more resolutions condemning Israel than it has all other nations combined, including Iraq. The U.N. Security Council passed a total of 175 resolutions. Seventy-four were neutral. Four were against the perceived interests of an Arab body. Ninety-seven were against Israel. In the U.N. General Assembly, the cumulative votes cast during this same period with or for Israel totaled 7,938. Those against Israel totaled 55,642.

   Israel would hardly get a fair hearing from an international organization.
   
   It's no secret that some nations oppose America's use of military force abroad. Signing on to the ICC would transform disagreements into crimes. When crimes can be defined by member nations (see Article 9.1), the ICC becomes a political, not judicial, body, open to populist will, log-rolling, or influence like Saddam's "bribes-for-veto" to France, Russia and China. Indeed, it's already begun, most recently in the Netherlands, where "left-wing organisations and activists, accused Mr Bush of 'numerous grave violations of the Geneva Conventions,'" including, "Washington's refusal to recognise the International Criminal Court (ICC), the world's first permanent war crimes court." Talk about bootstrapping! As Casey and Rifkin conclude, "After Rome, it is impossible not to conclude that these groups see the ICC primarily as a check upon a United States that has grown, in their view, too dominant in world affairs."
   
   Should the U.S. join, the ICC would become an anti-American soapbox, says Brett Schaefer:

   [T]he ICC could be used as a tool by those opposed to its foreign policy to make political statements through ICC prosecutions. Supporters of the ICC disparage America's policy as unnecessary. They claim that there are protections in the ICC treaty to prevent abuse of the court — after all, the court can only intervene in cases committed on the territory or involving a person of an ICC party, and then only if a nation proves unwilling or unable, in the judgment of the court, to investigate and prosecute alleged crimes.
   
   This is cold comfort. . . America's determination to punish perpetrators of these crimes offers no protection from politically motivated charges, . . . as demonstrated by those alleging that the incident constituted war crimes and insinuating that the U.S. is covering up particulars of the incidents. These and similar experiences — like the ridiculous charges under Belgium's "Universal Competence" law against President George H. W. Bush, Secretary Powell, Vice President Cheney, and General Tommy Franks, among others, for their roles in Operations Desert Storm and Iraqi Freedom — reinforce America's determination to protect itself from politically motivated criminal allegations. . .
   
   Unscrupulous individuals and groups will seek to similarly misuse the ICC for politically motivated attacks. America is uniquely vulnerable to these kinds of charges, because of its extensive network of military bases and deployments in defense of its myriad interests around the world. In many cases, its interests require a presence or deployment to an ICC party, or military action against the nationals of an ICC party. Each instance opens a Pandora's box of legal vulnerabilities ripe for exploitation.
   
   That the ICC can be used for such abuse is demonstrated by over 100 charges against U.S. persons submitted to the ICC in only two years of its existence.

Conclusion: Our Founders fought England because the King: 1) subjected Americans "to a jurisdiction foreign to our constitution and unacknowledged by our laws"; and 2) "transport[ed] us beyond [the] Seas to be tried for pretended offences." The ICC potentially could be as repressive as George III. It was tyrannical in 1776; it's still despotic today.