I.C.C. Be gone

Crhonciles Magazine Online ^ | May 15, 2002 | Srdja Trifkovic

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Wednesday, May 15, 2002

U.S. DUMPS I.C.C. GLOBAL BIEN-PENSANTS INDIGNANT by Srdja Trifkovic

The Bush Administration’s decision to withdraw the U.S. signature from the treaty establishing the International Criminal Court (ICC) is right and proper. That signature was a poisoned chalice deliberately and mischievously left behind by Bill Clinton in the final weeks of his presidency, in the full knowledge that it would never be ratified.

Clinton’s support for the ICC project was unsurprising, since the ICC is a caricature of legality and a travesty of justice. Its prosecutor will have discretionary powers to investigate “criminal cases”—including “hate crimes” and various loosely defined “human rights violations”—on his own initiation, or at the request of a U.N. member-state, the Security Council, or even NGOs. The ICC would have made it possible not only for American soldiers to be indicted for obeying the orders of their political masters, but also for “international peace-keepers” to come and patrol the streets of America’s racially or ethnically troubled cities. It would have made it possible for ICC judges from Muslim countries to demand extradition of American citizens from the United States to a third country (say, Iran or Saudi Arabia) to stand trial accused of denigrating Islam. American writers, journalists and editors could be put on trial for undermining the multicultural fabric of our planetary community.

As international lawyer William Jasper warned us in The New American four years ago, “We currently have this model in the UN war crimes tribunals at The Hague, where methods and standards unacceptable to any civilized country are practiced. All the travesties associated with the Yugoslavian war crimes trials will be replicated in the ICC.” Its architects want to go way beyond genocide or human rights as conventionally understood. Violation of human rights would include “enforced pregnancy”—which does not mean making a woman pregnant against her will but denying her the “right” to obtain an abortion. It also includes the crime of “persecution”: “the intentional and severe deprivation of fundamental rights by reason of the identity of the group or collectivity.” ICC judges will claim the authority to strike down any laws, or even the policies of private religious bodies, that “deprive” homosexuals of their “fundamental rights” to teach at a primary school, belong to a church, or lead a troop of boy scouts.

The United States is not the only key power in the world to reject the ICC. China, Russia, and India have also done so, which means that three of the five permanent members of the UN Security Council and almost one half of the world’s population will not be subject to its jurisdiction. Furthermore the U.S. acted within its rights under international law in rejecting the ICC. The international standard is the 1969 Vienna Convention on the Law of Treaties, which holds that nations that sign treaties but do not ratify them should not do anything to undermine the treaty's purpose. The U.S. signed the 1969 Treaties convention, but never ratified it.

Nevertheless the American decision to get out of this nightmare unsurprisingly provoked global editorial indignation. Assorted bien-pensants lambasted Bush’s “unsigning as “unprecedented” in the history of international law, and as taking “unilateral arrogance” one step further. While U.S. unilateralism was the leading editorial mantra, some critics further accused the U.S. of expressing contempt for international law and dealing a "body blow" to international justice.

The few dissenters, supporting the U.S. decision, are also the papers otherwise most worth reading. An editorial in the Daily Telegraph (May 8) stated:

The Bush administration's unilateral repudiation of the treaty to establish the world's first permanent war crimes tribunal put Jack Straw in a difficult position yesterday... When it repudiated the treaty, America may well have had in mind Straw's own decision, as Home Secretary, to allow the arrest of the former Chilean leader General Pinochet, on a warrant issued by the Spanish judge Baltasar Garzon. That precedent can only have fueled Washington's fears that the proposed [ICC] might be used to promote politically motivated prosecutions against American serviceman, and even politicians... But there are plenty of persistent lawyers out there with a political axe to grind who would relish the prospect of dragging the mighty U.S. through the courts. The Americans can hardly be blamed for seeking to deny them the opportunity. Rather than trying to change Washington's mind over the ICC, as Straw indicated he would yesterday, the government should take these worries seriously... There is a tendency to try to use international systems to turn America into a pariah nation. Britain should have no part in this. There is no proven need for a permanent [ICC].

In France Jean-Jacques Mevel wondered in Le Figaro (May 7) if this was a 'repudiation,' a 'renouncing' or simply an 'un-signing’ of the ICC treaty:

Washington's decision is not surprising. Clinton had furtively signed the treaty and left his successor the sour responsibility of dealing with it... Since then, the domestic policy debate has turned into a test of foreign policy, culminating with yesterday's decision and adding one more subject of contention between Washington and its European allies... On one hand, there is the U.S. with its desire not to relinquish an inch of its sovereignty, and on the other, the majority of the world's democracies, including its EU and NATO partners. They are beginning to feel that the Bush team only wants to honor those treaties that coincide with its interests. By closing the door to the ICC, the American superpower wants to reaffirm its status of 'exception,' as it had previously done with the Kyoto Protocol. In this case, President Bush is going one step further.

In Germany the commentary was uniformly negative. Die Zeit weekly of Hamburg bombastically declared (on May 8) that “May 6, 2002, will enter the history books as a black day for international law”:

On that day the U.S. nullified its signature under the ICC statutes. President Bush is suspicious of any treaty that binds the superpower, irrespective of whether it is Kyoto, ABM or the Children's Rights Convention... He wants to fight the universality of the law and undermine the global court. That is why he resorts to a means that is unprecedented in post-war times: nullifying a signature. All major and minor dictators in this world will consider this move to be an encouragement. That is why the day can't be too far away when the U.S. finds out that others, too, no longer consider treaties to be binding.

Die Tageszeitung of Berlin went even further on May 8, by comparing Bush’s Administration to the Hitler regime, which is the highest notch on the scale of liberal abuse:

The U.S. move is unprecedented in the history of international law since the foundation of the UN in 1945. And even during the times of the League of Nations, only the Hitler regime chose this means. Now the Bush administration is encouraging others not to abide by the law. Saddam Hussein and the governments of 51 of 190 UN members, which have thus far refused to sign the statutes for the ICC, will now be strengthened in their views. Before the summer recess begins, Congress in Washington is now likely to approve a bill that is also unprecedented in its arrogance. The draft allows the U.S. administration to impose sanctions on nations that cooperate with the ICC. But even under these conditions, the 66 ICC member states have no alternative but to continue with the establishment of the court. We can even find some positive aspect with regard to the decision of the Bush administration. Prosecutors and judges for the ICC can be chosen and selected without any U.S. influence and disruptive U.S. maneuvers.

Klaus-Dieter Frankenberger noted in the Frankfurter Allgemeine (May 7) that there was never any indication that the Bush administration would change its mind and ask the Senate to approve the statute to set up the ICC:

It is obvious that a U.S. that is militarily active all over the world is a nuisance to many who would like rid themselves of it by legal means. It is unimaginable that the U.S. would permit this, would hand over soldiers or politicians to a criminal court where they would be accused of 'genocide.' But there is a deeper factor underlying Washington's relationship with international organizations that is also playing a role in this case--the desire for maximum freedom of action and unrestricted sovereignty. What is self-evident to Bush and Congress is perceived elsewhere as a new example of unilateral arrogance. The real question is whether Washington has done itself any favors.

Even that part of the German press usually considered “conservative” wrote in the same vein. Nikolaus Blome observed in Die Welt of Berlin (May 7) that the U.S. decision will have a negative impact on all parties:

It is a blow to the ICC, a court set up to defend nothing but very American values... It is also a setback for the friends of the U.S. who will find a bit harder to defend the country's role as the only competent 'world policeman.' The U.S. may be partially justified in its fear that the court could become a stage for anti-American political maneuvers. However, the ICC is not some obscure UN subcommittee in which strange coalitions sometimes support complete and utter nonsense.

Der Tagesspiegel of Berlin falsely stated (5/7) that “never before had a country nullified a signature on an international treaty,” and went on to wonder: “Of what value are international treaties if subsequent administrations feel no longer bound by their predecessors' signatures? Anyone who had still been in doubt about the U.S. administration's unilateralist tendencies knows now what the real story is. If possible alone, if necessary with others—that is the current political motto in U.S. foreign policy.” As for the rest of Europe, in Italy Bruno Marolo filed from Washington in the “post-Communist” L'Unita' (5/7) that “The U.S. wants to fight its wars answering to no one, while the rest of the world should answer to it. Woe to the vanquished!” In Austria the Salzburger Nachrichten (5/8) joined the fray: “Washington's flat refusal to ratify the treaty reveals the Bush administration's true motives. The U.S. does not want to give up its all-powerful position.” In Denmark the Information called the U.S. decision (May 7) “a catastrophe for justice.” The Irish Times (May 7) bewailed “the fact that U.S. diplomats successfully watered down the text during talks leading to its adoption, and then walked away from it.” In Holland NRC Handelsblad declared (May 10) that “the rescinding of the American signature to the Statute of Rome is destructive of America’s reputation as champion of international justice…The most important victim, in the near future, of this, will be the international rule of law itself.”

Well, thank goodness for that! The “international rule of law” is incompatible with the constitutional principle that only the 50 states and federal government have the authority to prosecute and try individuals for crimes committed in the United States. The judicial power of the U.S. is “vested in one Supreme Court, and in such inferior Courts as Congress may, from time to time, ordain and establish.” No judicial body or tribunal not established under the authority of the Constitution should ever be allowed to exercise jurisdiction over citizens of the United States for real or pretended crimes committed in the United States. Nor should U.S. officials ever turn over U.S. citizens to a foreign government to be tried for alleged crimes in that country without a valid extradition treaty with that country.

All ICC proponents insist that we all live in a global village, we are all celebrants in the universal “democratic” ritual. America’s answer was given over two centuries ago. “The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents,” James Madison observed. “They saw all the consequences in the principle, and they avoided the consequences by denying the principle.” Thomas Jefferson provided an important corollary: “In questions of power let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.” By contrast, the ICC embodies the imperial arrogance of those post-Christian, post-civilized Western powers whose leaders mistake might for right. They want the model of the legal order under which all laws are administered by an "impartial" agent of organized humanity.

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