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June 3, 2010

Of Red-Coats and Black-Robes: The ICC Threatens American Justice

By

Many people, even among the current administration, think the International Criminal Court should be the world's highest arbiter in criminal matters. Despite good intentions, however, there's a sinister dimension to giving the ICC more power.

This month's 10-year review conference of the ICC is being held in Uganda. It's unlikely to fix this deeply-flawed institution and may do much to undermine American self-government.

The backdrop of the conference will be colored by several looming scenarios: The ICC is currently investigating alleged war crimes of NATO and U.S. troops in Afghanistan, which presents a risk to American security and the conduct of American foreign policy. Environmental activists are campaigning to include so-called crimes against the environment - or "ecocide" - among the crimes prosecutable by the ICC. Atheism activists want to use the ICC to prosecute Pope Benedict based on allegations of sexual abuse by priests. One almost forgets that the ICC was founded to prosecute the perpetrators of genocide.

The most significant objection to the ICC, however, is one of principle. The spirit and the text of the Rome Statute, the ICC's founding treaty, foster an ever-reaching, ever-presumptuous global court. There's little respect for the local rule of law - even though that's historically where justice is usually realized, when self-governing people constitute a legitimate, accountable government and judicial system. Although Americans support justice, the United States shouldn't support the ICC because of the grave risk to American self-government.

Secretary of State Hillary Clinton disagrees. She says the U.S. must become more involved with the ICC in order to positively affect the court and address "some of the challenges that are raised concerning (U.S.) membership." This reasoning guides the U.S. approach to the Kampala conference and is remarkable only in its naivete.

American negotiators were astonishingly unsuccessful during talks over the shape of the Rome Statute in 1998, when the U.S. actually had a vote during the treaty negotiations. This time the U.S. won't have a vote, but will instead depend solely on diplomacy.

Without a compelling U.S. presence in Kampala, there's little hope the conference will achieve an outcome that respects our Constitution and rule of law. This is especially true since the administration has yet to articulate America's grievances with the Rome Statute, most notably the exclusion of any right to trial by jury for American citizens. This flawed international court strikes at the very heart of America's founding, and threatens the Rule of Law and would actually undermine justice.

Early American patriots realized the importance of legal procedures and their role in preserving liberty. In 1775, the Second Continental Congress enumerated the reasons for taking up arms against the British. They explicitly objected to the British policy that American colonists "charged with committing certain offences, shall be transported to England to be tried." Indeed, other than taxation without representation, the jurisdictional and legal problems of the British vice-admiralty courts were declared by patriots to be their "greatest grievance." The core issue of their complaint was the injustice of being tried for crimes far from their homes and by judges answerable to foreign authorities.

After gaining independence from Great Britain, the Founding Fathers sought to secure forever the liberties they fought for and cherished. It is little surprise, therefore, that the U.S. Constitution explicitly mandates that trials for all Crimes, "shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed." Justice Joseph Story explained the importance of jury trials close to home: it prevents a citizen from being "subjected to the verdict of mere strangers, who may feel no common sympathy, or who may even cherish animosities, or prejudices against him."

Be it 1776 or 2010, the Founders' principle is still relevant today: Americans should not be tried by illegitimate courts outside of or unaccountable to their government. The Obama administration's uncritical engagement with the ICC, however, represents a significant shift in U.S. policy and reflects a shallow understanding of the rule of law. Hillary Clinton considers it "a great regret that we are not a signatory" to the Rome Statute, even though the Rome Statute disallows trial by jury among other due process rights sacred to American justice.

Justice demands that those entrusted with protecting our liberties defend the rule of law. How the Obama administration behaves at the Kampala conference will reveal much about its commitment to American constitutionalism and due process, let alone our national security.

Watch to see if our president and his officials "protect and defend" the United States Constitution.

Marion Smith is completing a research fellowship in the B. Kenneth Simon Center for American Studies at The Heritage Foundation.

First appeared in the Kentucky Lexington Herald-Leader

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