- The Washington Times - Tuesday, August 1, 2000

There may be something good to be said about the 1998 Rome Statute of the International Criminal Court, but if there is, it does not readily come to mind.

The Rome Statute, which takes effect after ratification by 60 nations, would criminalize warfare and torch the U.S. Constitution. The United States should denounce the statute as an abomination and perversion of law, and boycott the international folly as would be mandated by the American Serviceman's Protection Act of 2000, a bill sponsored by a formidable array of House and Senate Republican leaders.

In a contest between the Constitution and treaties, the Constitution prevails. As the Supreme Court explained in Reid vs. Covert (1957), in an opinion joined by civil-libertarian icons Chief Justice Earl Warren and Associate Justices Hugo Black, William O. Douglas and William Brennan: "No agreement with a foreign nation can confer power on Congress, or on any other branch of government, which is free from the restraints of the Constitution… . It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights, let alone alien to our entire constitutional history and tradition to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions."

The Rome Statute, however, would violate cherished constitutional safeguards against persecution and threaten havoc in the presidency and Congress in cases of warfare. It would create a Permanent International Criminal Court composed of 18 judges elected by a two-thirds vote of ratifying countries to serve for nine years. Criminal verdicts would be by majority vote of the presiding judges. A prosecutor would be elected to investigate and prosecute cases by an absolute majority of countries subscribing to the Rome treaty and hold a nine-year tenure.

The criminal jurisdiction of the tribunal is frightening because it is vulnerable to political manipulation in enforcement and disturbingly vague. It reaches allegations of genocide, crimes against humanity, war crimes and the crime of aggression. But each of these concepts is notoriously inexact, like the definition of beauty as in the eye of the beholder.

The crime of aggressive warfare is emblematic. Where is the line between aggression and self-defense, or between a just and unjust war? Nations inevitably disagree in any particular case, and whimsical prosecutorial decisions are inevitable. The post-World War II Nuremberg tribunal, which included Soviet judges, charged Nazi leaders with aggression against Poland and other countries. But nothing was charged against Soviet leader Joseph Stalin guilty of comparable aggression against Finland, Poland, the Baltic states and Romania under the aegis of the 1939 Ribbentrop-Molotov pact. And the Tokyo tribunal, the Far East sister of the Nuremberg international court, declined to charge Japanese Emperor Hirohito with aggression despite his authorization of the 1931 invasion of Manchuria, the 1937 invasion of China and Pearl Harbor. Many nations accused the United States of aggression in the Vietnam War and aggression in the 1961 Bay of Pigs fiasco launched against Fidel Castro's Cuba. And some accuse us today of aggression against Slobodan Milosevic's Yugoslavia for our bombing in retaliation for internal ethnic cleansing and Saddam Hussein's Iraq by establishing de facto protectorates for Iraqi Kurds and Shi'ites.

Is Russia guilty of aggressive warfare in Chechnya, or India in Kashmir, or Armenia in Ngorno-Karabakh, or Ethiopia in Eritrea? Consensus answers will invariably be lacking because neither nations nor individuals typically concur on whether resort to war is morally or otherwise justified,or even what evidence is relevant, such as historical wrongs since the time of the Old Testament.

The due process clause of the Constitution, however, demands reasonable specificity in criminal prohibitions to enable a citizen to conform to the law. As the Supreme Court amplified in Connally vs. General Construction Co. (1926): "A statute which either forbids or requires the doing of an act in terms so vague that men and women of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law."

What has been said of aggression and fair warning is equally applicable to the war crime of incidental attacks on civilians or civilian property clearly excessive in relation to the military advantage anticipated. The United States fire-bombed Tokyo, killing tens of thousands of civilians(located amid defense plants and installations) and dropped atomic bombs on Hiroshima and Nagasaki with similar gruesome consequences. Many to this day claim the civilian carnage was clearly excessive in relation to the goal of Japanese surrender. Ditto for our civilian bombing mishaps in Yugoslavia to bring Mr. Milosevic to heel over ethnic cleansing in Kosovo.

Answers to such historical riddles are unknown and unknowable because our understanding of the human psyche is so problematic. When guessing wrong is made a crime, asunder the Rome Statute, the law is made an engine of oppression, not a beacon of justice. And the evil is aggravated by the absence of a statute of limitations in the Rome Statute. Successor generations frequently overturn the exculpatory verdicts of those who were present at the creation.

The Rome Statute also wars with the Constitution in denying to civilians a right to jury trial and unanimous verdicts, and refusing immunity to the incumbent president and members of Congress in exercising their respective official duties. Further, the International Criminal Court, peopled by national security novitiates with no loyalty to the United States, is empowered to overrule the withholding of evidence by our president based on national security considerations.

The prevailing custom of ad hoc establishment of international criminal tribunals (e.g., Yugoslavia, Rwanda, Cambodia and Sierra Leone) is far from perfect, by why go from bad to worse with the Rome Statute?

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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