- The Washington Times - Friday, February 2, 2001

In the twilight hour of his administration, Bill Clinton signed a treaty throwing his support behind the creation of an International Criminal Court an institution which his administration supports in principle but which it finds ominously imposing on U.S. self-rule. However, the ICC can only be as imposing as the United States allows and can actually be used to support our interests and values on the international stage.

Americans balk at the idea of an ICC for a number of reasons namely that it appears unconstitutional and has the unprecedented ability to prosecute individual political and military leaders at the international level. As the sole superpower in the post-Cold War era, the United States does not wish to kowtow to anyone and intends to enjoy its position of dominance.

Supporters of the court face an uphill battle in their bid for Senate ratification of the ICC treaty, which would seek to prosecute individuals for genocide, war crimes and crimes against humanity. Already, there is proposed legislation in the Senate to deny funding for the fledgling court, with an aide to Sen. Jesse Helms indicating that factions within Congress would seek to "isolate and kill the ICC."

Many in the Senate are rightfully concerned that under the United Nations-mandated ICC system, the United States military would not be ensured adequate protections. With hundreds of thousands of military personnel operating in dozens of countries globally, it would appear that it is only a matter of time before Americans are found to violate international law and summoned to appear before the ICC.

Another concern for the U.S. military is that it will likely be called to task to allow United Nations personnel to investigate matters pertaining to human rights violations. The ICC, its dissenters argue, could undermine the legitimacy of military operations by raising questions about the American use of force, particularly with regard to such issues as the proportional use of force, legitimacy of its targets and civilian casualties.

More worrying, perhaps, is that decisions at the level of the ICC cannot be appealed and that the court itself is extra-Constitutional and would remain the supreme law of the land over a country which has not elected its prosecutors or judges.

Under the ICC system, Americans would not be guaranteed protection of the rights they enjoy under the Constitution, including, for example, the right to a speedy trial, the right to know and confront one's accusers and the right to be tried in the district or state where the crime has been committed.

Moreover, the ICC potentially stands to be used as a political tool against the United States by judges and prosecutors who are bent on causing mischief for the United States for ideological or political reasons. It is fair to raise the question on how the court could ever be objective in its decisions in a world where one man's freedom-fighter is another man's terrorist. Saddam Hussein would agree that war crimes were committed in the 1991 Persian Gulf War. However, in his view, the perpetrators of the crimes would be the United States and its allies rather than himself.

The United States needs to remain engaged in the creation of the court to ensure that it is objective, fair and just in its decisions and that it is as free as possible from political prejudice. We also need to be at the negotiating table during the selection of judges and prosecutors. Whether or not the Senate ratifies the treaty for the ICC, the United States will still be bound by its decisions.

A chief argument for not participating in the ICC is that the court will not allow the United States to veto decisions. However, the United States does hold veto power in the Security Council which authorizes the enforcement of ICC rulings. The intention of the ICC is to complement national courts and act only when national courts either can't or refuse to do so.

The real strength of the court derives from its moral foundation and its ability to render objective, fair decisions and to help bring the most egregious violators of human rights to justice. If the United States does not ratify the treaty, it will be hard-pressed to seek prosecution in such ad-hoc tribunals as those created for Rwanda and the former Yugoslavia as it will lack the credibility and moral authority to do so.

The court can work to help ensure a moral undertone and justification for foreign policy and to ensure that the human element is included in the agenda and that the next millennium is one that values human rights. However, the United States needs to be at the negotiating table to ensure that it can take the lead in creating a court that best reflects American values and interests. The Senate can do its part by ratifying the treaty and enabling the United States to be engaged at every stage of the process in creating this court.

Susan Bradford serves on the International Law Committee of the Federalist Society.

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