The U.S. Congress is rightly moving to diminish the power of the International Criminal Court (I.C.C.) by threatening to withhold economic aid from countries that refuse to sign accords exempting U.S. citizens from the jurisdiction of the court.
This is a wise use of leverage over those who refuse to recognize the legitimate concerns of the United States. The court was purportedly established to try only the most heinous of war criminals, persons on the scale of Pol Pot, Hitler, or Idi Amin; but Congress is justifiably suspicious of malicious prosecutions which unfairly target U.S. soldiers, commanders, and civilian personnel. In fact, there have already been a slew of international voices calling for U.S. soldiers, in both Afghanistan and Iraq, to be tried before the court, and several have called for Henry Kissinger to be brought before the I.C.C.’s jurisdiction. (Some of the kooky ‘Bush=Hitler’ set have even demanded the President Bush be brought forward as a war criminal).
While it’s unlikely that an American president or military commander would ever be brought before the court, it seems increasingly likely that U.S. soldiers would be. (In fact, it’s not too much a stretch to imagine a state Governor being charged for presiding over an execution.) The court’s proceedings – based on vague readings of international law (itself an already suspect concept) and multiple treaties - are as mysterious as the inner workings of the U.N., and likely as corrupt. In fact, pledges to the contrary notwithstanding, the I.C.C. seems the perfect vehicle through which to check and harass agents of American power; and while the actual number of malicious prosecutions may be small, the inevitable compromises arising from the efforts to lessen, or dismiss, charges would, undoubtedly, sacrifice some U.S. personnel to the altar of world opinion and hostility. Imagine: charges of war crimes against 100 soldiers are dropped in exchange for an admission by top commanders that they knowingly and willingly ordered the execution of ‘crimes against humanity’, and a hounded state department all too eager to settle the matter as quickly as possible.
Unfortunately, the world has interpreted the U.S.’ refusal to sign on as one more example of American exceptionalism gone amok, as evidence that America prefers a blatant double standard over equality and justice; but that conviction omits the fact that American law already provides for the prosecution of its own criminal elements (especially within the armed forces) and, in fact, consistently holds its own abusers and criminals responsible for their actions. Witness our prosecution of the commanders in Abu Ghraib, or the conviction of the Green Beret for using excessive force on Taliban captives in Afghanistan. As for the worst of the worst - those for whom the court was purportedly established - it seems far better to leave their fate to the nations they ruin, or to chance ‘victor’s justice’ on a case-by-case basis, than to prop up an illegitimate court whose potential for abuse far outweighs the odds that a true war criminal will go free in its absence.
Besides, and perhaps most importantly, surrendering American citizens to an unelected international court would plainly be unconstitutional. The court holds no legitimacy, at least not in the sense of having the ability to enforce its rulings, nor does the court possess the consent of the governed. Nor is the court working from a widely understood and consented body of law. For U.S citizens, there is no body of international law which supersedes their own constitution and the laws of their land. (No, this does not mean that Americans may run slipshod over the laws of another country. American citizens are already subject to the laws of other nations when traveling abroad. The I.C.C. specifically addresses those acting as agents of their state or own government.)
The Lilliputians, which comprise the General Assembly of the U.N., will assuredly continue in their efforts to bind us, but they should not be surprised, and cry foul, when we refuse to help.
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