- The Washington Times - Tuesday, January 9, 2001

President Clinton's New Year's Eve decision to sign the 1998 Rome Treaty, which would create a permanent international criminal court ("ICC"), was a major blow to U.S. national interests. If that treaty ever enters into force (when 60 nations both sign and ratify it), American soldiers and officials will be subject to trial and punishment by an international independent prosecutor, backed by judges from countries with legal traditions fundamentally different from our own, and that may actually be hostile to the United States.

The Rome Treaty is deeply flawed. By creating a permanent international court with direct authority over individuals, it represents a break with traditional international law, which primarily affects states, and which is enforceable against individuals only through their own country's legislative and judicial apparatus. Moreover, although this court will exercise one of the most awesome powers of government criminal prosecution and punishment it will be entirely unaccountable through any normal democratic processes for the exercise of that power. In this, the ICC is antithetical to the most fundamental precepts of American republicanism.

In the United States, the courts both state and federal are part of a system designed to limit the government's authority vis-a-vis the individual, and to ensure that power is ultimately exercised in accordance with the consent of the governed. On the state level, American judges are often elected and/or subject to recall if their decisions displease the electorate.

On the federal level, judges are nominated and confirmed by the president and members of the Senate, directly elected officials who can be held responsible for the judicial appointments they make; and, who know it. Moreover, under our system, judicial decisions are subject to an elaborate appellate process, among courts with different institutional interests, and jurisprudence unacceptable to the people at-large can be overturned by the state legislatures, by Congress, or, if necessary, through constitutional amendment.

By contrast, the ICC would lack the checks and balances contained in national constitutions such as ours, and would be entirely unaccountable for its actions. The ICC would be the final arbiter of its own power, and its judgments would be unreviewable by any other authority. Far from a step forward for international justice, the ICC would represent a dramatic step back, towards an unmourned past of absolutist regimes exercising arbitrary power over subjects, rather than citizens.

Although ICC supporters often claim that, in practice, the court will represent "American values," nothing could be further from the truth.

Current ICC signatories include states such as Algeria, Cambodia, Haiti, Iran, Nigeria, Sudan, Syria and Yemen. According to the U.S. State Department's 1999 Country Reports on Human Rights Practices, these states have been implicated in the use of torture or extra-judicial killings, or both. Yet, each of them will have an equal voice in selecting the ICC's prosecutor and judges. Moreover, even those of our allies who have signed the Rome Treaty do not necessarily share our legal traditions and notions of due process of law particularly in the area of criminal law and procedure.

Most European nations follow the Civil Law, "inquisitorial" system. Unlike our own Common Law system, which serves as an effective check on the state's power vis-a-vis the individual, the Civil Law a system spread through Europe in Napoleon Bonaparte's baggage was designed as means of vindicating the state's power as against the individual. Europeans who complain of "extreme" U.S. individualism are not engaged in meaningless invective even the French. The Old World and the New World simply understand the individual's proper relationship to the state differently.

It is, however, emphatically the Old World's view that will dominate in the ICC. Americans hauled before that court will find themselves stripped of the most basic rights guaranteed by the U.S. Constitution, and will enjoy only "due process" rights meeting international standards. Under these standards, as applied in the International Criminal Tribunal for the Former Yugoslavia (the model for the ICC), there are no juries, defendants often wait years in prison for a trial, hearsay evidence and the testimony of secret witnesses is allowed, and the prosecutor is permitted to appeal any verdict of acquittal mocking prohibitions against "double jeopardy." The lack of procedural rights Americans take for granted highlights one of the basic misconceptions underlying the entire ICC scheme that there are internationally accepted standards of process and fairness, and what it means to follow the "rule of law."

In light of this, Mr. Clinton's policy supporting the creation of this court was flawed from the beginning. Upon taking office, President-elect George W. Bush should treat the ICC as his first foreign policy challenge. He should make clear that the United States will not ratify the Rome Treaty, and that it will oppose such ratification by other countries because it fundamentally disagrees with the assumptions and purpose of the ICC enterprise. To underscore that U.S. opposition is broad based and bi-partisan, the Congress should immediately pass the American Servicemembers' Protection Act, a bill that would forbid U.S. cooperation with the ICC.

As it was conceived and designed, the ICC is a profoundly undemocratic institution destined to be an instrument of political manipulation, rather than of neutral justice. Although a time may come when the world's nations do agree on the meaning of concepts like "due process" and "the rule of law," that day has not yet dawned.

Lee Casey and David Rivkin are partners in the law firm of Baker & Hostetler LLP. Both have practiced before the International Criminal Tribunal for the Former Yugoslavia in the Hague.

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