‘Conspiracy, Confusion or Comment: International Criminal Court Jurisdiction over Our Citizens?’
by Marion Edwyn Harrison (5/8/08)
There are, of course, few successful conspiracies in history. Much of what superficially appears to be a conspiracy or often is cited as a conspiracy is more coincidence than conspiracy. Maybe the Gun Powder Plot was a conspiracy (amateurish though it was) but call anything a conspiracy and attract attention.
The latest troublesome or potentially troublesome manifestation - term it as you will - concerns the International Criminal Court, sometimes called the World Court, which officially sits in The Hague, Netherlands, but can hold court any place that will welcome, or at least tolerate, it. There is so much commentary on the subject that a brief summary should suffice for this Commentary. The Court was established in 2002, to be permanent, to prosecute and try men and women, of whatever nationality, for crimes against humanity, genocide, war crimes, however it may define those categories. The United States has not ratified the so-called Rome Statute, which set up the Court. As of this writing, 105 nations - including some which realistically if not legally are pseudo-nations - have ratified it. Madagascar is scheduled to ratify next month. Another 40 have signed but not ratified. The two countries with the world’s largest populations, China and India, have done neither. Nor has the United States, which, notwithstanding our shaky economy, is the richest country.
At the moment the Court has 16 Judges. Some hail from countries most analysts would rate economically significant, and arguably sophisticated: in alphabetical order, Canada, Germany, Italy, United Kingdom. Some come from countries of perhaps less stature: Brazil and [South] Korea. Others are from countries of varying measures of size, sophistication, economy: Bolivia, Bulgaria, Costa Rica, Cyprus, Finland, Ghana, Latvia, Mali, South Africa. One’s opinion of the jurisprudence of any of these countries may not be relevant.
The question is: Should American citizens be tried for an alleged “international” crime by a court of foreigners applying its version of international criminal law and its procedures and with no safeguard under the Constitution of the United States or our criminal precedents, protections and procedures? Neither the George W. Bush Administration nor Congress has signified the affirmative. My own view is also wholly negative but that’s not the point of this Commentary.
Rather, the point is a question: What is the top lawyer in the Department of State up to? And by what authority or acquiescence?
The top lawyer, whose title always has been Legal Advisor rather than General Counsel or Solicitor (as in other Cabinet Departments, except Justice), unquestionably is brilliant and well educated. He also is what a detractor might term indiscriminately internationalist. Of course, he’s entitled to his personal opinion. But a professional opinion?
The Legal Advisor, speaking publicly at a Chicago conference, offered the view that the United States accepts the reality of the Court, that we “. . . must acknowledge that the [Court] enjoys a large body of international support . . .” and so forth. Quite clearly any such rhetoric is contrary to, dismissive of, and potentially troublesome for, those of us who oppose any American submission of jurisdiction to the International Court of Justice and for the supposed position of the Administration.
The Department of State, last time I looked, was part of the Executive Branch of the Federal Government. There arises a question as to whether its top lawyer should be addressing the subject of World Court jurisdiction at all except in his official role. Immediately following is the question as to whether, by clear statement or by implication, he should be advocating American participation in the Court.
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation: http://www.freecongress.org/
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