- The Washington Times - Wednesday, April 5, 2000

Remember the International Criminal Court (ICC)? It was the topic du jour in the summer of 1998 when the United States was debating whether we should sign on to the idea of a permanent standing human rights tribunal. In the end, 99 countries signed the so-called Rome Statute in July 1998, the founding act of the ICC. However, the United States and Israel declined (along with a gallery of much less reputable countries like Iran, Iraq and China) and the topic slipped from sight. Well, it shouldn't have, for though the idea seems well-intentioned, there is here a serious challenge to national sovereignty looming on the horizon.

The ratification process for the ICC has moved but slowly (to date, seven countries have ratified), but the Europeans are gearing up to move on ratification and countries in Africa are likely to follow suit. Latin America and Asia are not expected to join the rush, nor the Arab world. However, once 60 countries have ratified, the court comes into existence, which means that one-third of the world's countries may make decisions affecting all. With or without the cooperation of the United States, the ICC will hamper the ability of the U.S. military, as well as politicians and diplomats, to act internationally.

This problem has caught the eye of congressional Republicans, for which they are much to be commended. Though the Clinton administration is fond of portraying the GOP as composed of isolationist Neanderthals, members of the executive branch, too, may be thankful in years to come. Legislation, "the American Servicemembers Protection Act of 2000," is soon to be introduced "to protect the United States' military personnel and other elected and appointed officials of the United States government against criminal prosecution by an international criminal court to which the United States is not a party."

As pointed out in the language of the legislation, Americans charged under the ICC would be deprived of their constitutional rights, to a trial by jury, to confront their accusers, to be protected against self-incrimination. The bill contains a number of provisions to prevent this from happening: There's one to prevent U.S. government agencies from cooperating with requests from the court (arrest, extradition, seizure of property, service of warrants etc.). There's a prohibition against U.S. military personnel's participation in peacekeeping operations unless the president certifies that they are specifically exempted from the operations of the ICC by the countries in which they serve. There's a clause preventing the dissemination of classified national security information to the ICC.

Most intriguing of all, however, is the section authorizing the president to free "United States military personnel and certain other persons held captive by or on behalf of the international criminal court" and "to use all means necessary and appropriate" to this end. Money, however, will not do it, "payment of bribes or the provision of other incentives" is specifically ruled out. One envisions a special forces commando trained for just this purpose, operating perhaps in the disguise of pinstriped diplomats shooting tear gas out of silver-tipped canes or folded umbrellas.

Seriously, there are real reasons to be concerned for the safety of Americans abroad. One is the precedent set by the case filed in a Spanish court against former Argentinean dictator Gen. Augusto Pinochet. Had British Interior Minister Jack Straw not decided that Mr. Pinochet's health was too frail, he would have faced charges of torture and political killings during his 17-year rule.

A recent article in the New York Times' Week in Review section by Jayson Blair suggested that U.S. officials, too, could suffer international persecution. Henry Kissinger might find himself a wanted man in Vietnam, Oliver North in Libya, for instance. The article further revealed that American officials have been privately warned by the FBI not to travel to certain countries, including some in Europe, because they might end up in the dock. Probably the official most at risk would be President Clinton himself, whose order to bomb a chemical factory in Sudan in the summer of 1998 proceeded on the flimsiest of pretexts as best anyone has been able to tell.

In addition, there's the highly problematic nature of the ICC itself. It will deal with four crimes: genocide, crimes against humanity, war crimes and aggression. As evil as these deeds sound, they are hard to quantify legally especially aggression. Therefore, the Rome Statute also created a Preparatory Commission for the ICC, which meets every three months to draft rules of procedure and evidence, definitions of crimes and the definition of aggression.

As it turns out, the "prep-com" has become a nightmare of political correctness. Countries can designate nongovernmental organizations (NGOs) to represent them, and some delegations have been taken over completely. According to an appalled American observer who attended the most recent "prep-com" meeting, Arab countries still want Israeli settlements in the occupied territories designated "war crimes" as well as "crimes against humanity."

Meanwhile, feminist groups insist that Arab men are guilty of "crimes against humanity" when they have sex with their own wives because under Islamic law there is no such thing as consensual sex within marriage. Furthermore, they consider laws against abortion, widespread among Islamic and Catholic nations, to be equal to "forced pregnancy," also a "crime against humanity."

By the sound of it, the ICC will soon be a forum for the airing of conflicting national and political agendas, and, not to forget, historical grievances. In which case, no country would be safe. For example, the United States may be accused of the crime of aggression in the Balkans, a point already made by the Serbs, even though we were trying to save the Kosovars from the crime of genocide.

By keeping Americans out of the hands of the ICC, Republicans will be doing their country a service. It is essential, though, that objections are spelled out to U.S. allies who have signed on. Before further damage is done, the ICC should be reconsidered.

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