Jewish World Review July 10, 2002 / 1 Menachem-Av, 5762
Although the ICC is supposed to advance the rule of law around the world, it is potentially - even inherently - inimical to the rule of law. And it is retrograde - premodern, actually - because it affronts the principle that every institution wielding power over others should be accountable to someone.
On Dec. 31, 2000, the last possible day, Bill Clinton authorized signing the 1998 Statute of Rome establishing the ICC. But in a farewell equivocation, he said the statute was flawed. And he surely knew the Senate would never ratify it.
The Bush administration, explaining nullification of that signing, says this unconstrained court, free to pour whatever content it chooses into such concepts as "war crimes" and "aggression," could pose a danger to American military peacekeepers and fighters in the especially foggy war against terrorism.
These dangers are real, given two related aspects of the context into which the ICC has been born: America in its unchallenged pre-eminence has responsibilities unlike any other nation now, or ever. And anti-Americanism permeates many foreign elites, who will shape the court's docket.
However, a deeper and incurable problem with the ICC is implicit in a former Clinton official's celebration of the ICC's launch as "an international Marbury vs. Madison moment." He refers to the 1803 case, the most important in U.S. history, in which the Supreme Court established its power of judicial review of the actions of the political branches of government.
However, America's constitutional democracy includes checks and balances - including elections - that circumscribe the court's freedom. But the ICC floats above accountability to representative institutions.
The post-war Nuremberg and To- kyo war-crimes tribunals were problematic enough, enforcing what looked uncomfortably like ex post facto laws - laws made up to serve a predetermined policy.
But at least the national powers conducting those tribunals were exercising sovereignty in Germany and Japan. And unlike those tribunals, which served the unique imperative of civilizing postwar vengeance, and unlike the current tribunals concerned with crimes in Rwanda and the former Yugoslavia, the ICC is not responsible for or to any state governance, and is permanent.
The problem is not just that the ICC is "above the law," but that there is not much clear and pertinent law to be above. The rule of law must involve a body of controlling precedents that give due notice of what behavior is required or proscribed.
However, the ICC is both a roving prosecutor and a court. It will prosecute cases of torture, defined as "any act by which severe pain and suffering, whether physical or mental, is intentionally inflicted." It will prosecute the crimes of "excessive" force and environmental harm, as in this from the Statute of Rome:
"Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated."
Because the ICC is a facet of the European elites' agenda of disparaging and diluting the sovereignty of nations, it is especially ill-suited to this moment, when the primacy of the nation-state needs to be reaffirmed. Terrorism is the leakage of violence out from the control of nations. And it cannot be controlled without enforcing the principle that a nation is accountable for terrorism that emanates from its territory.
In asserting these principles, and in other defenses of U.S. interests, the Bush administration is accused of "unilateralism." That term has become more than a mere antonym for "multilateralism." And more than (although it is this) a carrier of European resentment about U.S. refusal to pretend that Europe is a coherent and formidable political entity comparable to the United States.
Rather, the root of the European complaint of "unilateralism" concerns the U.S. refusal to move "up from" the defense of national sovereignty. The ICC - "up" there, untethered to the governance of any nation or settled legal system - presupposes, among much else, the universality of a common conscience. That presupposition is refuted by the very nature of the ICC's principal enthusiasts, the Europeans elites who are incorrigibly tolerant of Yasser Arafat's terrorism, but scandalized by U.S. "unilateralism."
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