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No to the International Criminal Court

By W. James Antle III
web posted July 15, 2002

We are supposed to be pleased that the United Nations Security Council magnanimously voted to exempt American servicemen participating in the international body's peacekeeping missions from prosecution by its International Criminal Court. Instead, international opposition to a permanent exemption should remind us why there should be no ICC claiming jurisdiction over free people.

This is not because peacekeepers or military personnel should be above the law, as some have suggested. But we have to wonder how the same UN that tossed the United States off its Human Rights Commission and replaced it with Sudan would be a protector of human rights and an unbiased arbiter in decisions involving Americans. The likelihood is that this court would instead compromise American self-government and national sovereignty.

A founding principle of the United States is that just governments derive their powers from the consent of the governed. But who consented to the world government that the ICC is surely a step toward? Unelected international bureaucrats and foreign policy wonks. The U.S. Senate, in accordance with the Constitution, has rejected the treaty that created the ICC. Both houses of Congress have passed legislation seeking to protect American servicemen from it. Neither U.S. public opinion nor the actions of its elected officials bind America to this global court. Freedom Alliance senior policy analyst Fred Gedrich argues that two-thirds of the world's governments, representing five-sixths of the planet's six billion people, are not a party to the ICC treaty.

In addition to the recent UN Human Rights Commission debacle and the "anti-racism" conference that took place in Durban, South Africa, there is reason to be concerned about anti-American and anti-Western bias. Israel may also end up a victim, as its enemies continually brand its leaders and soldiers as war criminals. Policy disagreements will be turned into alleged violations of international law by the same people who worry more about captured al-Qaida fighters than the victims of tyranny in Iraq, Zimbabwe, Cuba or any number of other dictatorships.

Supranational bodies - including the European Union - are not exactly known as shining examples of democratic process and the rule of law. Under the ICC, look for a denial of jury trials, habeas corpus and swift administration of justice. Instead, say hello to prosecutors with wide latitude to investigate ambiguously defined crimes, often at the instigation of frequently left-wing activist organizations that bring "charges" alleging human rights abuses. In typical Orwellian fashion, it will be unsurprising if free societies are accused of having the most human rights abuses.

Clearly, U.S. cooperation with the sovereignty-shredding ICC violates the Constitution. The powers of Congress and the judiciary would have to be unconstitutionally transferred to this international body that operates without the restraints of the Bill of Rights. In both process and substance, this global court is offensive to constitutional law.

It is also evident how it could be used to jeopardize the interests of the United States. Consider that if the court were composed in such a fashion as to label the military interventions necessitated by the war on terrorism as acts of aggression and "human rights violations," it would subject Americans to prosecution for not conducting its foreign and military policies in accordance with the opinions of Noam Chomsky.

But even if it could be counted on to be even-handed toward the United States and other Western countries, the ICC would still be problematic for the same reason viewing these types of supranational organizations as necessarily freedom-enhancing is inherently flawed. World government and UN-like facsimiles require a level of global consensus in matters social, political, economic and cultural that simply does not exist. To try to pretend that it does and to build highly centralized political structures with little room for dissent or escape around such a fiction raises rather than reduces the potential for human conflict.

This inconvenient reality, along with the simple patriotism of ordinary people in nations across the globe, explains the character of these international organizations. They tend to be chosen by means other than elections, they embrace procedures far more restrictive than would be permissible under constitutional due process, they do not operate transparently and they enumerate endless and often contradictory rights that do not seem to recognize that rights belong to individuals rather than groups. In other words, they too often constitute a reversal of the progress that has been made in the pursuit of individual freedom since the 18th century. The people whose utopian schemes encourage the growth of such bodies do not always intend this to be the case, but the denial of reality is incompatible with the allowance of freedom.

If our leaders, including President Bush, are serious about protecting Americans and insuring that the constitutional republic they live in continues to exist, they should challenge the validity not only of the ICC but the mindset that views its creation as an advancement of justice.

W. James Antle III is a senior writer for Enter Stage Right.

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