Cops that Ain’t Our People

Faced with intense pressure from the United Nations Security Council and some of America’s closest allies, the Bush administration last week backed away from a showdown over whether American citizens will be subject to the jurisdiction of “cops that ain’t our people” in the form of the International Criminal Court.

In return for this capitulation, the administration squeezed from the Security Council a single compromise: a one-year deferral before any ICC investigation of US troops may begin.

Prior to the compromise the administration reached with the Security Council on Friday, I had written this essay explaining what was wrong with the arguments for the ICC. No Surrender on the ICC There have been plenty of phony arguments for global governance over the years, but few as unpersuasive as the ones marshaled in favor of the International Criminal Court.

Earlier this month, the Bush administration took a tough stance against the ICC, threatening to veto the extension of the UN mission in Bosnia unless US troops were granted immunity from prosecution by the court. The UN Security Council, with Britain and France taking the lead, bristled that any grant of immunity would seem to place the US above the law. For a brief moment, it looked as if this dance of mutual recalcitrance would end with the ICC collapsing while the US vetoed, one by one, UN peacekeeping missions as they came up for renewal.

Just before time ran out on the UN Bosnia mission, both sides agreed to a twelve-day extension. With this reprieve ending Monday, some commentators have indicated that the Bush administration may yet capitulate to UN demands. No such retreat is warranted.

It’s not hard to understand why Europeans are taken aback at American hostility toward the court. On a continent where nations have ceded large parts of their sovereignty to international government, this American “unilateralism” looks bizarre. But it hardly seems unreasonable that Americans, who by and large have not assimilated the idea that international organizations should wield unmediated authority of them, should require very good reasons before consenting to an innovation such as the ICC.

And the truth of the matter is that the argument for the ICC is preposterously slight and more than a bit deceptive. Take the basic rationale for creating the court. According to Chris Patton, Europe’s commissioner for external relations, the ICC’s purpose is to “ensure that genocide and other such crimes against humanity should no longer go unpunished.” The problem with this is that genocide has not gone unpunished. In the one generally agreed upon case of genocide in recent times, the massacre of Tutsis by Hutus in Rwanda, at least eight Rwandans were convicted of genocide. Slobodan Milosevic is on trial in the Hague. Saddam Hussein’s position grows more precarious with each passing week. In short, the phrase “no longer go unpunished” in Patton’s sentence functions as a lie.

Court supporters also grossly misrepresent the scope of the ICC’s powers. “For an American to be tried, a panel of eminent international judges would have to charge that he or she had carried out genocide, ‘systematic and widespread’ crimes against humanity or war crimes,” Samantha Power (author of A Problem from Hell: America and the Age of Genocide) claimed on Wednesday’s Wall Street Journal editorial page. While it is true that rules of the court state that investigations may only be initiated if a panel finds that there is a “reasonable basis” for action, this test so open-ended as to be virtually worthless as a safeguard against abuse. What’s worse, all the key terms—genocide, crimes against humanity, war crimes—are vague enough to allow activist judges to invoke innovative interpretations that would greatly expand the ICC’s jurisdiction.

Much is made of the supposed deference the ICC would show to American courts. “Only if the U.S. justice system itself then refused to investigate these alleged attacks would the ICC be able to proceed,” writes Powers. Unfortunately, this deference is largely illusory. The ICC would not be bound by the decisions of the US justice system. If US prosecutors decide not to bring charges, the ICC can second-guess the prosecutors and bring charges on its own. If US courts acquit and the ICC is not satisfied with this outcome, the ICC can begin its own trial. The ICC would be superior to any US court, including our Supreme Court.

Court supporters argue that all these concerns are unfounded. “The purpose of the ICC is to provide a permanent forum to put on trial the likes of Pol Pot and Mr. Hussein, not Americans or, for that matter, Europeans,” an article in the Economist explained. (Put aside the impression that this makes the court look like a tool for cracking down on third-world dictators, trashing the notion that the court would even-handedly apply international law.) One thing we know about legal innovations is that they can rarely be confined to their original purpose. Liberal legal scholars consider adherence to “original intent” a troglodyte jurisprudence fit only for the likes of Robert Bork. The very existence of the new law or legal institution creates a foundation for further innovation, reducing the costs of taking things in unintended or unforeseen directions. America’s RICO laws, originally aimed at Mafia-type gangsters, are now regularly applied to business crimes and have even been used against pro-lifers. And since it is more than likely that the ICC will a reach beyond its original purpose, prudence demands we employ a precautionary principle against submitting to a new, supreme legal sovereign.

But for the most outlandish argument for the ICC we must return to Power’s Wall Street Journal piece. Power begins and ends her essay with an argument whose logic amounts to nothing more than the assertion that since the ICC is untested, it is unfair to condemn it in advance. “Until the court becomes functional and proves itself, neither side will be able to prove its point,” she writes. “With the permanent International Criminal Court no more than a week old, it is far too early to assume it will become a virulently anti-American institution that [Bush] administration officials fear.”

This breathtaking polemical jujitsu—Power attempts to make the fact that the ICC has never been attempted count in its favor—is not a serious argument. Power would split the difference between the supporters of the ICC and its opponents by giving the supporters exactly what they want. Once in place, there would be no getting rid of the ICC regardless of whether its critics are proved right. Their victory would be purely academic. Rejecting the ICC should not be a very hard call for the Bush administration. When Chris Patton calls US concerns about the ICC “perverse” this only highlights the contemptuousness the US has come to expect from eminent international figures. Why should we expect better from the ICC judges? What we can say with certainty is that the ICC’s supporters lack any understanding of a basic American urge (as summed up by John Steinbeck’s Tom Joad): “Throw out the cops that ain’t our people. All work together for our own thing.”
Posted by at July 15, 2002 01:41 PM | Send