THE DAYS of U.S. global leadership are coming to an end. Unless something is done immediately, the planned International Criminal Court will provide a forum for anti-American elements around the world to turn their grudges into an attack upon U.S. citizens while doing little to punish actual war criminals - the ICC's stated purpose. The Bush administration must derail the UN's efforts to form the Court before U.S. sovereignty is compromised.
The ICC will be a permanent court with global jurisdiction over genocide, crimes against humanity, war crimes and aggression. Rather than charging states, individuals will be the ones facing trial. Ariel Sharon rather than Israel would face prosecution for the current Middle East crisis. A prosecutor will exist to research and bring to trial crimes under the Court's jurisdiction. No body oversees the cases the prosecutor will choose. The statute declares that only judges and prosecutors who possess a high degree of morality will be chosen - good luck finding one of those.
Proponents of the ICC cite several benefits, but they are illusory. ICC supporters hold that perpetrators of these "most serious crimes" will meet punishment rather than the simple condemnations from the global community. They say a culture of accountability will exist. Also, future violators will be deterred from committing crimes for fear of punishment, on their view. A military commander will think twice before executing a prisoner of war if the possibility of a lengthy prison stay looms before him. Finally, ICC supporters stress that the Court will have jurisdiction over intrastate issues - something that the International Court of Justice does not have control over. The ICC, in contrast, will prosecute someone like Saddam Hussein, who chose to use chemical weapons upon their own populations.
While these arguments do have some merit, they do not account for the problems the existence of the ICC will bring about. Although one of its stated purposes is to eliminate selectivity in the administering of justice, a serious problem with the ICC is its potential for use as a political tool. ICJ judges often have voted along nationalist lines. There is no reason to believe that it would be any different for the ICC. It is impossible to ensure that all judges and prosecutors will be of high moral character and not make biased judgements. Political motivations may get in the way of fair trials.
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Especially troubling is the idea of the self-initiating prosecutor. The prosecutor searches for cases with no referral from a higher body. A politically-minded prosecutor possibly could take it upon himself to target individuals from one state. Americans have experienced the damage done by roving prosecutors (i.e. Kenneth Starr), and should know the idea is dangerous.
It's unlikely that the ICC would deter anyone from committing human rights violations - one of its defining goals. There is no military backing under the ICC. It's based upon legal principles. Military strength, not law, is what influences men like Pol Pot and Saddam Hussein. Human rights abusers are the type of people that cannot be deposed without force. Legal threats will do little to stop their behavior.
The vague definition of what constitutes aggression is most problematic. Are pre-emptive attacks acts of aggression? If the Allies had attacked Germany before it had overrun much of Europe, it might have been attacked as an aggressor. Not having a set definition of aggression allows these events to be open to interpretation.
The peacekeeping and humanitarian missions that are necessary in the modern world might be considered aggressive. Any nation that engages in a peacekeeping effort without being invited opens itself to charges of aggression and of violating human rights when people are hurt or killed in the process of protecting innocents. Because the United States goes out of its way to prevent genocide, it is unfair for the ICC to have jurisdiction over U.S. military personnel. Even though ICC proponents stress that the Court's jurisdiction is aimed at dictators, evidence already suggests that it will be misused. Russia attempted to bring NATO forces up on war crimes charges during the bombing campaign of Serbia in 1999 in the ad hoc tribunal on the former Yugoslavia.
The United States has an obligation to prevent the implementation of the ICC. While the ICC's charter is full of good ideas, there are some serious problems. Judges and prosecutors who hold grudges against America will do their best to charge U.S. peacekeepers with human rights violations. The United States will be obliged to hand over its military personnel to the ICC, thus giving up its sovereignty. The real violators will scoff at the ICC when it demands that they be handed over to the Court. National interest demands that the United States swiftly kill the Court.
(Joe McMurray's column appears Mondays in The Cavalier Daily. He can be reached at jmcmurray@cavalierdaily.com.)
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