For years, the Clinton-Gore administration has been in the forefront of efforts to create international judicial bodies—such as the Yugoslav war-crimes “tribunal” at The Hague—that could be used as auxiliary tools of diplomatic decisionmaking in Washington. Madeleine Albright liked the façade of legality that could be invoked to justify their policies. All along, of course, they rejected any thought of being subjected to the judgment of similar institutions themselves.
But by systematically undermining the rule of law in international affairs, the administration has helped create a judicial Frankenstein’s monster that it does not control. The administration is now at loggerheads with friends and foes alike over the establishment of a permanent International Criminal Court (ICC), which would replace the United Nations-backed ad hoc “tribunals.” As soon as 60 countries ratify the ICC treaty, the court will officially come into being.
The administration is wary of having a court that could prosecute American officials. The ICC has made some concessions to secure approval from the United States, such as adding a provision that would give national courts priority to try their own citizens. The United States is now under pressure to come on board, especially from the European Union and Canada.
The Clinton administration’s objections so far have been technical and procedural rather than fundamental. This is not surprising. The real reason the ICC must be rejected is that it claims universal jurisdiction to try individuals charged with “genocide, war crimes and crimes against humanity” anywhere in the world, even if the accused are citizens of a state that has not ratified the treaty and the alleged crime has taken place inside that country’s boundaries. If passed, the ICC will remove the remnants of national sovereignty and eviscerate the concept of constitutional government.
The Clinton administration cannot acknowledge that the ICC is a caricature of legality because the court closely follows the model established by the Yugoslav “tribunal,” which was supported by ample American money and political clout. So the administration sticks to procedural details. As a sop to U.S. concerns. Article 17 of the ICC Statute drafted in Rome in July 1998 says that a state will be deemed to have primary jurisdiction over a crime “unless the state is unwilling or unable genuinely to carry out the investigation or prosecution.” But the ICC judges themselves will have the sole right to decide whether a state is “unwilling” or “unable” to investigate and prosecute, and to determine just how “genuine” its efforts are.
The assertion of jurisdiction by the ICC is clearly contrary to the U.S. Constitution and American law: Only the states and the federal government have the authority to prosecute and try individuals for crimes committed in the United States. Judicial power 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, unless it is established under the authority of the Constitution, may exercise jurisdiction over American citizens for a crime committed in this country, nor may U.S. officials turn their citizens over to a foreign government without a valid extradition treaty.
Like Carla Del Ponte at The Hague, or Louise Arbour before her, the ICC prosecutor will have discretionary powers to investigate criminal cases on his own initiative. The ICC may order international peacekeepers to patrol America’s racial or ethnic trouble spots. Somali and Saudi ICC judges could demand extradition of American citizens from the United States to a third country to stand trial, accused of hate crimes against the Nation of Islam.
This is more than the Clinton-Gore administration had bargained for. With their ad hoc “tribunals,” they did not seek to de-legitimize war crimes per se, but to enhance their own power to decide what is a war crime, on the basis of political expediency. For instance. Amnesty International has published reports for years accusing Serbs of all manner of crimes. Those reports were duly amplified by the media propaganda machine. But last June, Amnesty released a blistering attack on NATO, accusing it of committing war crimes. Washington ignored the report, and War Crimes Tribunal Prosecutor Carla Del Ponte announced that she would not prosecute NATO. Such double standards are enforceable for now, and the quasi-legal indignities of international justice remain reserved for Serbia or Rwanda—but only for as long as America remains the dominant world power. But when a countervailing force to its hegemony does emerge, the tables may be turned. The consequences of the Clinton administration’s actions may prove fatal to America’s sovereignty and to the foundations of its legal and constitutional system.
As international lawyer William Jasper warned in the New American two years ago, “We currently have this model in the U.N. 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.” Jasper was in Rome when the ICC statute was drafted, and he warns that the ICC architects have no intention of limiting their jurisdiction to genocide or “human rights” as conventionally understood: “Enforced pregnancy,” i.e., any limits on the right to abortion, will soon be a crime against humanity.
President Clinton will never understand that the legal system of a country is the product of its distinct culture and religious values. He may resist the drift, but for all the wrong reasons. The proponents of the ICC insist that we live in a global village—we all celebrate political correctness and believe in human rights and democracy—and Clinton has no problem with that. He also thinks that we have to hold the same “core values,” because we are all essentially interchangeable.
America’s answer to such attitudes 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.”