I’ve refrained from comment for a while regarding the whole International Criminal Court thing.
On the one hand, I’ve long been a multilaterialist. I’ve felt the US should be extending to the world the concept of democracy, of working in cooperation. We might be a leader, but sauce for the goose and all that — if we demand certain behavior from others, we ought to expect it to be demanded from us.
And I still feel that way. But …
USS Clueless has a fine article on how the Blair government in Britain — one of our allies, one of the countries in the world with a jurisprudence system closest to ours — is proposing to revamp the criminal justice system, doing away with niceties like jury trials in many cases, and as well with the concept of double jeopardy.
Folks often scoff at double jeopardy. That’s because it’s usually used in the media in conjunction with some creep getting off on some “stupid technicality” and thus being immune to justice forever. Think of any of several dozen episode of Law & Order.
But DJ has a much more valuable purpose. Consider.
The government doesn’t like you, and decides to get you. If you think this is unreasonable and unlikely, consider FBI actions against civil rights leaders back in the 60s. Plenty of folks on the Left and Right claim government persecution, and while most of those claims may be bullshit, some of them may likely be true — even if it’s just Sheriff Redneck deciding he just don’t like that attitude of yours, boy, or DA Doofus in the pocket of Big Business deciding you’re harrassing his, er, sponsor.
The way it works now is that it’s possible to pursue a trumped up charge, but if you beat the rap, you’re free. DJ pertains. If a jury decides that the picture you drew isn’t obscene, or the protest you made is Constitutionally protected, or that you didn’t really murder your wife (it was that one-armed man, most likely), it’s over and done with. The state, with all its power, failed to make the case, and DJ keeps them from coming back to the well.
Now get rid of DJ. Sorry, boy, back in the clink with you. We have ‘new evidence.’ We’re refiling charges. And we’ll keep refiling until we find a jury — or maybe just a judge — who agrees with us.
So getting rid of DJ in Britain is of huge importance, especially in conjunction with eliminating a lot of jury trials.
Couldn’t happen here. Here we have a Constitution as the supreme law of the land. It can be changed, but it takes a helluva lot of effort to do so.
American law is based on the principle that the Constitution is the be-all and end-all.
The ICC changes that. It trumps the Constitution. Its trials are based on international law, on what the organizing body thinks is the “best” law out there covering these things.
I was listening to NPR the other day. Bob Edwards was interviewing some doctor of international law. I would expect NPR to be very sympathetic to the ICC, but as Bob kept asking, “Well, would defendents be protected from self-incrimination, as in the 5th Amendment?” the expert (who seemed to favor the ICC) would apologetically say, no, not really, American law is not the same as international law in this area.
Well, what about freedom of speech and the press?
Well, in some ways, but not based on the First Amendment as we understand it.
And so on, and so forth.
Regardless of whether you think Dubya and his folks are being paranoid about American soldiers and diplomats and statesfolk being targeted for politically-motivated prosecution in the ICC (and, frankly, I think it’s a case of even if you’re paranoid, maybe they are out to get you), I’m not 100% sanguine about simply handing over an American to a judicial system that is not our own. Sure, it happens now — commit a crime in Mexico, and you’re subject to Mexican justice — but that’s different from the ICC filing charges against someone here in the US for what they did in Bosnia, and the US being obliged to hand the person over, whether they think the charges are reasonable or not.
Foreign law is not our law. Protections under it are not those we enjoy here in the US.
It’s not just scumbags who are protected by the Constitution. Good guys are, too.
I still believe the US should be willing to live up to the standards it promotes. I believe we should be trying to improve international cooperation.
But that doesn’t mean we should just toss aside the Constitution (even if we could) and trust that everyone else will play fair.
But it wouldn’t be ‘simply handing over an American’ to another judicial system (something which happens all the time, but thats beside the point). For a case to be even considered under the mandate of the ICC, the suspect’s national government would have to have been unwilling or unable to do so itself (either complicit in war crimes/crimes against humanity/genocide itself *cough*serbia*cough* or undergoing civil war or the like as in the case of the tribunals established for Bosnia or Rwanda, two conditions not applicable to the US). And then before a prosecutor can go ahead and begin an *investigation*, the court has to notify the suspect’s national government, and national authorities will have six _more_ months to conduct their own investigation to ward off the international prosecutor. THEN the prosecutor may only continue after convincing a three-judge panel that the national investigation or trial was a sham or that local courts shielded an individual from responsibility. Then the acts itself have to be proven using very specific definitions (more restrictive than those in the Geneva Conventions). And all these safeguards and more were written into the Rome Statute specifically at the request of American negotiators during the negotiation process (before the US backed out at the end).
I can’t conceive of a conjunction of circumstances where an American serving as a peacekeeper would ever be hauled before the ICC (our military and civilian justice systems would never overlook actions as heinous as they would have to be to come under the purview of the ICC, and they would have to have been committed as part of a government plan or policy in order to come under the court’s mandate)… I think the Bush Administration position is pretty much a sop to a ’cause celebre’ of the isolationist anti-internationalist wing of its conservative base and not really a look at the facts and reality.
Now, some of those Israeli leaders on the other hand… ^_-
Check out here for some of the vague criteria that can be used to prosecute before the ICC.
The “unwilling or unable” clause regarding prosecution by accused governments is not terribly comforting; if we posit that cases may be filed as political harrassment of the US, the unwillingness of the US to prosecute said cases will certainly be used as ammo to demonstrate how this was all part of a large US conspiracy (and will likely draw further charges).
In the words of a man who certainly knew how to spin and evaluate legislation …
“You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered.”
— Lyndon Baines Johnson (1908-1973)
Entering into a super-Constitutional agreement based on the perpetual “reasonableness” of prosecutors or judges is inviting trouble. It’s a criterion we’d never accept here (witness the justifiable outrage and growing legislative protest over actions by the Administration pursuant to the War on Terrorism).