October 22, 2008 | Commentary on Department of Homeland Security

U.S. Shouldn't Be Supporting ICC

Earlier this month a federal judge reminded us all of the immense power of the judiciary. He ordered the administration to release 17 Chinese Muslims being held at Guantanamo Bay into the U.S. Never mind that these men admitted to receiving terrorist training in Afghanistan and Pakistan and were captured fleeing training camps.

This case underscores the enormous and often unchecked power of our judiciary. Which is why Americans should take note of the judicial preferences of their next president.

Barack Obama's opposition to Chief Justice John Roberts and Associate Justice Samuel Alito is well documented, as is John McCain's pronouncement he would appoint justices in their mold. Appointments to the Supreme Court are certainly important, but the case of the 17 Chinese Muslims demonstrates that appointments to the circuit courts of appeals and the federal district courts also matter greatly.

On May 25, 2005, the Senate confirmed Priscilla Owens (55-43) to fill a vacancy on the Fifth Circuit. Her nomination had been pending for more than four years, despite being a member of the Texas Supreme Court and receiving a "well-qualified" rating from the American Bar Association. McCain voted to confirm her; Obama voted against her. Other well-qualified, conservative jurists were opposed by Obama and supported by McCain; including, Janice Brown, William Pryor, Brett Kavanaugh, Jerome Holmes and Leslie Southwick.

As Alexis de Tocqueville noted, "There is hardly a political question in the United States which does not sooner or later turn into a judicial one." Who the president appoints to the courts will have a major impact on America for decades to come. We need judges who do not legislate from the bench and adhere to the strict language of our Constitution.

International Criminal Court

This past summer, the International Criminal Court (ICC) announced that it would seek an indictment against President Omar al-Bashir of Sudan for his involvement in crimes committed in Darfur.

The announcement placed the Bush administration in a tough spot. It has long been an ardent supporter of U.N. sanctions and other actions in an effort to try and stop the atrocities in Darfur. However, the administration has also rightly resisted efforts in the U.N. and the U.N. Security Council to legitimize the ICC. The U.S. has squared this circle in the past by abstaining on, for instance, the 2005 Security Council resolution referring the situation in Darfur to the ICC. This permitted the resolution to move forward, bringing pressure on Sudan, while avoiding explicit U.S. support of the ICC.

The U.S. and the Europeans now find themselves in a bizarre role reversal. Now that the ICC has followed through on the referral and signaled its intent to indict Bashir, the Europeans who originally supported the referral are seeking to defer the indictment for a year through a Security Council resolution. Bush administration officials, meanwhile, shocked conservatives by signaling that the U.S. would veto a Security Council resolution deferring the prosecution unless Sudan improves its humanitarian practices and moves toward peace in Darfur. This is a mistake.

The urge to see Bashir face justice is understandable. However, the Bush administration must consider the long-term implications of supporting the ICC in this or other cases. The ICC was established to prosecute genocide, crimes against humanity, war crimes and the as yet undefined crime of aggression. The Clinton administration signed the Rome Statute establishing the ICC but recommended against submitting it to the Senate for advice and consent prior to ratification. The Bush administration "unsigned" the treaty in 2002.

America's skepticism for the ICC revolves around several critical problems. The ICC violates key provisions in the U.S. Constitution's Bill of Rights, including the right to a trial by jury, speedy and public trial, the assistance of counsel, the right to confront your accusers, and the right not to testify against oneself. The U.S. cannot and should not sign onto a court that fails to provide the same rights to Americans that they enjoy in the U.S.

John Bolton, former U.S. ambassador to the U.N. was correct when he stated that he was "disturbed" and worried about this veto legitimizing the ICC. He concluded, "If you allow this to happen, you legitimize the ICC. My preferred policy is to isolate it and hope it will eventually wither." The Bush administration should avoid explicit actions that embolden or bolster the ICC. Conservatives want to ensure that the ICC is not used for politically motivated purposes against the U.S. or to prosecute Americans, especially U.S. military personnel or elected officials.

The sovereignty of the United States is paramount. Our Founding Fathers fight for our independence just to see our politicians cede authority over Americans to an unaccountable international tribunal.

Brian Darling is director of U.S. Senate Relations at The Heritage Foundation

About the Author

Brian Darling Senior Fellow for Government Studies
Government Studies

First appeared in HumanEvents.com