by Charles Whitaker
Last month, we noted the deep-seated differences between American and European governmental systems, focusing on the structure and operation of the European Union. Not all tents of Shem are created equal. Does this difference present a threat to American democratic institutions here at home? Is it a danger to American interests abroad?
The just-recently inaugurated International Criminal Court (ICC) is based on Europe's model of governmental structure. As such, it provides a case study showing the irreconcilable differences between American constitutionalism and European federalism. Should the ICC gain stature as a bona fide international judiciary body, it will become a clear and present danger to America's ability to conduct her foreign policy in her own interests. It will also seriously undermine the right of American citizens to determine their own national domestic policy. We need to investigate this further.
Although supported by the Clinton Administration as part of its efforts to support global integration, the Rome conference, where the ICC treaty was hammered out in the spring and summer of 1997, was captured by an international gang of anti-Americanists. Their antagonism toward America was so unabashed that they purposefully crafted the treaty to contravene her authority and prerogatives. For instance, they insisted that no reservations be added to the Treaty. That provision would force the Senate of the United States to ratify the treaty as it stood, without any changes.
The United States Senate has always claimed the right to ratify treaties by attaching to them clearly stated "understandings" and "reservations." These both have the effect of modifying the treaty. "Understandings" define the terms used in the treaty in a way acceptable to the American government. "Reservations" exclude certain activities or persons from the jurisdiction of the treaty.
The gang of Rome had the presumption to tell the most august legislative body in the world that it could not rewrite their "Statute of Rome," as the Treaty fittingly came to be called. That is precisely why Mr. Clinton never presented the treaty to the Senate. He knew its "no reservations" clause so attacked the Senate's prerogatives that it would stand no chance of ratification. He would be badly embarrassed in the international community he so seriously "courted."
The Birth of the ICC
Having been ratified by the required sixty nations, the ICC came to birth on April 11, 2002. The Court consists of 18 justices who will represent "the principal legal systems of the world."1 The treaty also establishes the Office of the Prosecutor, who is charged with the conduct of investigations and prosecutions. The ICC's jurisdiction applies to individuals accused of crimes under the Statute, often regardless of whether their governments have ratified it or not. Not only do those who actually commit the alleged crimes fall under the Statute's jurisdiction, but also their commanders; presidents, prime ministers, and members of legislative bodies can be arrested, detained, convicted, and imprisoned by the Court.2
As constituted, the ICC could ask any government, signatory or not to the Treaty of Rome, to hand over a citizen for trial—even an elected official or military personnel acting under orders. It could ask the United States to hand over a citizen accused of acts committed even within the boundaries of the United States, if the acts were thought to be in violation of international law. Never mind that the ICC has no respect for the guarantees provided by the United States Constitution's Bill of Rights! Such guarantees follow "an English common law tradition that means nothing to international authorities."3
It is easy to see that the Pinochet imbroglio would certainly be the first of many. While in Britain for medical reasons, Augusto Pinochet, a retired dictator of Chile, was detained at the behest of a "pip-squeak" Spanish bureaucrat.4 At the time of his visit, he was under the protection provided by international conventions (i.e., diplomatic passport). At issue, ostensibly, was Pinochet's alleged responsibility for crimes against Spanish citizens living in Chile during the dictator's tenure.
The real issue, however, was much different. The real issue was national sovereignty. U.S. Senator Jesse Helms (R-NC) explains it in the context of American law.
[T]he Rome treaty purports to hold American citizens under its jurisdiction—even though the United States has neither signed nor ratified the treaty. Put another way, it claims sovereign authority over American citizens without their consent. . . . There is only one source of legitimacy of the U.S. government's policies—and that is the consent of the American people.5
No international law permits one nation's courts to sit in judgment of the citizens or officials of another nation. Most international judiciaries operate with the consent of the concerned parties, as in the case of the World Court. Nuremberg is neither an exception nor an aberration of this principle. There, the victorious allied nations became the government of Germany, as a condition of the treaty. They later worked to establish two duly constituted sovereign states of Germany—East and West, which, still later, united.
In reality, Nation A, by establishing a court to try a citizen of Nation B, tells Nation B that it is subject to the laws of Nation A—that it is in fact no longer a sovereign nation. Nation A's establishment of such a court would be "in effect, an attempt at conquest by courts."6 In practice, Nation A's activities would certainly be interpreted by Nation B as an act of war, inviting open belligerence.
Chile, so far from Europe, so relatively weak, could of course not initiate hostilities over Pinochet's "kidnapping." The former dictator's detainment was not a step for justice so much as it was the bullying of a small sovereign power by a big power. For those with eyes to see, this matter was in fact the tentative stirrings of the still somnolent "dreary empire" of the Beast. All this in the name of law and justice.
The ICC and American Constitutionalism
From an American point of view, the dominant difficulty with the Statute of Rome lies in the fact that it is
. . . a stealth approach to eroding constitutionalism. . . . This difficulty stems from the authority purportedly vested in the ICC to create authority outside of (and superior to) the U.S. Constitution, and to inhibit the full constitutional autonomy of all three branches of the U.S. government. . . .7
It inhibits the working of the American Constitution in three ways. First, it replaces specific national laws, reflecting the values of a particular people, with "vague and all-encompassing" generalities. By their nature, these generalities are easily susceptible to interpretations that happen to fit some current political agenda, such as the international initiative against capital punishment. The jurisdiction of the ICC is extremely vague, lying in four areas: "genocide," "crimes against humanity," "war crimes," and "crimes of aggression." Of these, the first, genocide, is fairly well defined by the 1948 Genocide Convention. "Crimes against humanity" and "war crimes" are vaguely and broadly defined, and "crimes of aggression" are completely undefined.8
Held up against the standards of American constitutionalism, the Statute is unacceptable by virtue of its imprecision. Invoking the "void for vagueness" doctrine, the United States Supreme Court has frequently invalidated laws that fail to define exactly what they prohibit. These are just the kind of laws the ICC wishes to enforce. Under the vaguely stated definitions of the Statute of Rome, an American President could not conduct a war without fear of future prosecution for inexactly defined "war crimes." Indeed, so vague are its statements that an ICC captured by totalitarian interests in 1945 may have found the United States guilty of war crimes for its bombing campaigns of Germany or the Japanese Islands in World War II.9
Second, the treaty is contrary to American constitutionalism in that it simply puts the ICC "out there," not attached to any popularly elected legislature or executive. In America, laws are created by a popularly elected legislative body, enforced by a popularly elected executive, and adjudicated by courts that are themselves subject to the "rule of law." The Framers of the United States' Constitution created this process to ensure that laws were "subject to popular accountability and structured to protect liberty."10 The ICC, lacking accountably to any popularly elected executive or to any legislative body, becomes a "law unto itself." The result of its absolute power would certainly be its absolute corruption.
Third, and as a corollary to the second point, the treaty represents an attack on American constitutionalism by creating a prosecutorial office distinguished by its lack of accountability to any popularly elected executive or legislative body. Since the treaty empowers the Office of the Prosecutor to "act independently as a separate organ of the court" (Article 42), the Prosecutor is virtually plenipotentiary, yet without accountability to any sovereign state. He is even independent of the United Nations Security Council.
Overall, the ICC's structure looks suspiciously like that of the European Union. It is no surprise that it would share the Union's "democracy deficit," for the Court's architects modeled its structure after the bureaucrat-centric, elitist European Union. In the ICC's schema, there simply is not a legislative body, no checks, no balances—only an organization with vaguely stated "mandates," substantial power, and the proclivity to be captured by non-governmental organizations, themselves notorious for their lack of accountability to an electorate. As such, interest groups with purely political agenda would certainly dominate the Court in time. Justice would be the last interest the Court would serve.
God directs Ezekiel 20 to modern Israel. God will send upon a rebellious people "statutes that were not good, and judgments by which they could not live" (verse 25). In context, God allows "the children" (verse 21) of an idolatrous and Sabbath-breaking people to develop wrong-headed laws in their scattered condition. Today, Israel at large, America in particular, is blindly accepting "bad law" in the interests of leading a "global village."
At heart, the danger of the ICC lies in the fact that it is a judicial body. It has about it an air (rarefied at best) of law. Having a deep-seated respect for law, Americans may allow the ICC to gain a foothold as the principal judiciary of international law. If they ever do so, they will be handing over a good piece of their national sovereignty, allowing power to fall into the hands of a gang of European-led kidnappers.
Next month, we will conclude this series by looking at the nature of a growing body of misguided international law that threatens American freedoms.
I John R. Bolton, "Courting Danger: What's Wrong with the International Criminal Court?" The National Interest,Winter 1998/1999, p. 60. Mr. Bolton, an attorney, is currently Under Secretary of State for Arms Control and International Security. He has also served as Senior Vice President of the American Enterprise Institute, as Assistant Secretary of State for International Organization Affairs in the George H. W. Bush administration, and as Assistant Attorney General in the Reagan administration.
2 Ibid., p. 61.
3 Jeremy Rabkin, "International Law vs. the American Constitution: Something's Got to Give," The National Interest, Spring 1999, p. 30(emphasis added). Mr. Rabkin teaches international law and United States constitutional law at Cornell University. His most recent book is Why Sovereignty Matters.
4 Mark Steyn, Sunday Telegraph,November 29, 1998.
5 Jesse Helms, "American sovereignty and the UN," The National Interest,Winter 2000/2001, p. 31. Senator Jesse Helms (R-NC) is a member and former chairman of the United States Senate Committee on Foreign Relations.
6 Rabkin, ibid., p. 33.
7 Bolton, ibid., p. 62.
8 Rabkin, ibid., p. 30.
9 Bolton, ibid., p. 63.
10 Ibid., p. 62.