The Weakness of an International Criminal Court

It is politically convenient for Democrats to characterize President George Bush as a single-minded right-wing ideologue. The truth is that Bush is an ideological conservative, but also a temperamentally moderate practical politician, very disposed to tact with the prevailing political winds. While he is focused on the pursuit of terrorists, on just about every other issue, Bush has shown a readiness to compromise with political adversaries in Congress when necessary. Bush signed an Education Bill that was far shorter on reform than he would have wanted. Bush signed a Campaign Finance Reform Bill he believes may violate the First Amendment. More recently, Bush has promised to sign a budget-busting agriculture bill aimed by Democrats and Republicans at purchasing contested Senate seats in the Midwest.

It is, therefore, pleasing that the Bush Administration has decided to eschew the easy path and renounce United States support for the International Criminal Court. The Administration accurately argued that, “…the International Criminal Court is built on a flawed foundation. These flaws leave it open for exploitation and politically motivated prosecutions.”

Even President Clinton recognized the shortcomings of the agreement, but characteristically tried to have it both ways. He signed the agreement on December 31, 2000, but did not submit the treaty for ratification in the Senate knowing it faced defeat. Clinton played to European opinion, while avoiding any political price at home.

The International Criminal Court (ICC) is a standing court ostensibly designed to prosecute those guilty of genocide and crimes against humanity. It is likely to be yet another European bureaucracy, headed by a prosecutor accountable only to himself, designed more for political posturing than to address serious prosecutions. At best, the ICC is unnecessary and at worst, it could make more difficult the transition from authoritarian or totalitarian regimes to more democratic ones.

There are many despots and mass murders, who in a perfect world, could and should be subject to prosecution, but so long as they remain in their own countries they are unlikely to ever be punished. The organizer of the mass murder at the New York World Trade Centers, Osma bin Ladin, or North Korean leader Kim Jong Il are not particularly worried about prosecution by any standing international court. In other cases, when an overwhelming military victory makes it possible to seize persons involved in war crimes or genocide, the formation of ad hoc courts of jurisdiction has not been a problem. The International Military Tribunal held in Nuremberg, Germany following World War II was sufficient to try captured Nazi leaders.

In some cases, the presence of a standing court could prolong the tenure of despotic regimes. For example. it is certainly the case that Augusto Pinochet, who ruled Chile from 1973 to 1990, could be convicted of leading a cruel and murderous regime. However, the settlement that ushered in a democratic government promised amnesty to both the military government and anti-government rebels. Without the amnesty or with threat of prosecution by a third party international court, the Chilean military government may have found it in their interests to hold out longer to avoid prosecution and punishment. In such a case, the price of a standing international court might be unnecessarily prolonged suffering.

In the United States, it took the prosecution of Democrats and Republicans by various independent prosecutors to convince both parties that an unregulated prosecutorial office is open to political abuse. There can be no doubt that the European-dominated ICC will BE subject to the same political imperatives. Given the European culture and the broad language of ICC protocols which allows prosecutions for such vague crimes as imposing “mental harm,” one can envision that such a court would prosecute US officials for genocide in allowing for capital punishment, for collateral damage in Afghanistan, or for the suffering caused by the embargo against Iraq. Israelis will face prosecution for anti-terrorist activities.

At the same time, Europeans are too busy sunning themselves on vacations to Cuban beaches to ever bother prosecuting Fidel Castro for four decades of oppression and murder. Europeans are too dependent on drinking at the spigot of Iraqi oil to prosecute Saddam Hussein for his use of biological weapons against Iraqis. Even if the court could bring itself to prosecute the leaders of such regimes, without the ability to enforce their decisions the prosecutions become fruitless.

Yes, it is heartening, that Bush sees through the posturing and moral chest beating of European and American supporters of the ICC and refused to follow the fantasy. Without the US, the ICC will just become another small and irrelevant bureaucracy providing lifetime employment for another generation of European intellectuals.

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