- The Washington Times - Wednesday, May 8, 2002

In one of his last official acts as president, Bill Clinton signed the treaty establishing the International Criminal Court (ICC). President Bush wisely rejected it and never sent the treaty to the Senate for ratification. Last weekend, Undersecretary of State Marc Grossman announced the delivery of a letter to the United Nations formally "unsigning" the treaty. That was a bright day for our president, and for our military, helping to restore the trust between them so damaged in the days of the prior administration.

The number of countries that have ratified the ICC exceeded 60 last month, which allows the ICC to begin operations on July 1. But there are so many countries that have refused to sign it that the wisdom of establishing it is highly doubtful. Among those who have not signed are China, Russia and most Arab states.

The problems with the ICC are many and serious. The court claims jurisdiction over crimes committed in a signatory country, as well as crimes committed by citizens of a signatory country, regardless of where they are committed. It also has jurisdiction over any case referred to it by the U.N. Security Council, which, of course, functions according to the political judgments of its members. The treaty's supporters say that the court's authority can't be abused, because it will only take those cases that a nation can't or won't try in its own courts. But that's one of the biggest problems. Any case an American court dismisses could be revived by the Security Council on purely political grounds.

The international court would not apply the safeguards inherent in American law, particularly in the area of war crimes. Our Law of War applies the Geneva Conventions in the context of our Constitution. The ICC can go beyond the Geneva Conventions to apply other "laws," which are far too loose to subject Americans to them. For example, ICC "law" makes some damage to the environment a war crime. A soldier can be tried and presumably imprisoned by the ICC for intentionally damaging the environment beyond the degree required to complete the mission. Be careful where you dig your foxhole, soldier, and don't dare disturb that endangered species nesting nearby.

The potential for abuse of the ICC is enormous. The ICC is not accountable to anyone. The ICC will be in business as of July 1. Its troublesome mandate allows it to claim jurisdiction over American soldiers and government officials, even though America has rejected the treaty. Mr. Bush should ask for action on Sen. Jesse Helms' American Service Member's Protection Act of 2001, which solves part of the problem by requiring immunity from ICC prosecution for U.S. service members deployed on U.N. missions. Those who are sent into harm's way must be protected from political show trials at the ICC.


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