Constitutional Opinions: Courting Disaster

...If the U. S. can do the same sort of thing by treaty, then we have a different constitution than we thought we did—one whose basic allocation of powers and responsibilities can be rearranged whenever the president (and Senate) agrees with one or more foreign governments to do so...

...The threat of international trials of individual culprits (few of whom have been apprehended, and even fewer put on trial) was at best a minor factor...

...diplomats and encourage an idea of international authority that we must not accept...

...In a classic Clinton maneuver, we would assume a pleasing posture, hoping to escape its implications by deception...

...Even if international law permitted us to use force simply to stop abuses in other countries—which it does not—we would not necessarily achieve a net saving of lives by deploying U.S...

...We did it as the outgrowth of a war against a monstrous, evil regime, which we had won by allying ourselves to another monstrous, evil regime...

...Even in domestic law, though, criminal enforcement is rarely separated from policy considerations or politics...

...E ven if tied to the Security Council, the criminal court would be a bad idea...

...Charter...

...In fact, the countries of the European Union have done something much like this, allowing appeals from their own courts to the European Court of Justice in Luxembourg...

...The Nuremberg trials of Nazi war criminals, so often invoked to prove the possibility of international cooperation in criminal justice, were hardly a model of justice...

...Years ago, the U.S...

...At best it would leave basic constitutional issues to the calculations of U.S...

...The idea was welcomed at that time as a way of registering Western repugnance at atrocities—when the West was not willing to do much else apart from registering disapproval...

...in the eye...

...International Criminal Court: No...

...These were international trials because there could not be any other kind at that moment...

...troops against every wicked regime...

...If the International Criminal Court is constitutional, then it would seem entirely constitutional to make wholesale transfers of the constitutional authority of U.S...

...54 October 19 9 8 • The American Spectator often make deals with quite repellent governments in order to secure their assistance against others we view as even more reprehensible or more menacing...

...Perhaps...

...Cleaning up after Clinton is not an easy task...

...conferences for decades, always raising basic problems, some relating to the U.S...

...were to participate fully in an international criminal court, it would have to share the jurisdiction of its own courts with the tribunal...

...CONSTITUTIONAL OPINIONS by Jeremy Rabkin Courting Disaster B ack in January, Secretary of State Madeleine Albright was the first member of Clinton's Cabinet to endorse the president's implausible denials...

...If the court could only be invoked by the Security Council, then the United States could block any action against American citizens or any action that would create a ticklish problem for American diplomacy...

...Does it make no difference whether our law is enforced by judges appointed by our own president (and confirmed by our own Senate) or by international officials selected through international horse-trading who operate by some shifting international "consensus...

...And they cannot act as obedient subjects of some higher authority and still claim to be sovereign...

...bunal, just as we have long extradited foreign prisoners to their home countries...

...There was not another such trial until Madeleine Albright, as U.N...

...conference in Rome this past July...

...And we already know that governments supporting the ICC have a taste for poking the U.S...

...Those same governments have already signaled that they would welcome the kinds of politicized gestures that have already disgraced the U.N...

...A foreign diplomat who worked with her at the United Nations assures me that Albright would not have vouched for the president had she known he was lying...

...But for just that reason it raises a second set of disturbing issues...

...If we can offer up Americans to international tribunals for some matters (such as "war crimes"), why not for others (such as narcotics trafficking...

...But the Rome conference insisted on a court that would have its own independent prosecutorial arm, acting on its own initiative...

...Judicial Conference warned that any international tribunal must observe all the guarantees of U.S...

...The State Department sought to get by these fundamental problems by tying the court to the Security Council—where the United States has an absolute veto under the terms of the U.N...

...For the same reason, say defenders of the scheme, the new court will avoid highly politicized positions...

...It ended up instead with a very big mess...

...The international equivalent is that we International law: Yes...

...Would anyone want to fly this with China, even if it reverted to the murderous patterns of the Mao era...

...Yet no such tribunal would follow the exact procedures specified in the Bill of Rights...

...They have also delegated legislative and regulatory powers from their own parliaments and governments to European institutions...

...Nazi crimes were brought to an end by bombers and tanks...

...We have even extradited American citizens to foreign countries where they have committed crimes...

...But if the U.S...

...A credulous top diplomat, together with an incredible president, can only mean trouble...

...So it was after World War II...

...The best we can hope is that, having had their fun, most nations will think twice about ratifying this treaty...

...Would we want to share that power with an international force strong enough to overcome medium-size countries or even bigger ones...

...Over the strenuous objections of the state of Israel, the conference stipulated that moving people in occupied territories would also be a war crime subject to prosecution by the court— a definition demanded and celebrated by Arab delegations as certification of Israeli war crimes...

...ambassador, pressed for an international tribunal to deal with war criminals in Yugoslavia...

...Defenders of the court claim that it will exercise its authority cautiously, in order to build its own credibility and legitimacy...

...So let's be charitable and assume the secretary of state is merely gullible...

...For this reason, international law has always been understood as a special kind of law, since it lacks the force of a central authority to enforce it...

...Having endorsed the premises of the court—that a world without a free-standing police force or a free-standing executive can still have a meaningful criminal court—we shouldn't have been surprised when the rest of the world decided not to play the game on Clintonian terms...

...casualties—by negoti44 Sovereign states do not share their internal governing authority with international bodies...

...Oki The American Spectator • October 1998 55...

...officials responsible for the cruise missile attack on a pharmaceutical factory in Khartoum...

...When is it more important to do justice than to avert conflict...

...The Nuremberg trials did little to deter murderous regimes in the ensuing decades...

...The Pentagon, not relying on Madeleine Albright, has reportedly begun lobbying U.S...

...Had we insisted, for example, that Baby Doc Duvalier or the subsequent military rulers of Haiti be put on trial for their crimes, we might not have been able to secure their peaceful departure from Haiti (in return for safe havens in France...

...Did she really believe he had never had sexual relations with Monica Lewinsky...

...As things stand now, the U.S...

...decides for itself...

...Even if the procedures of the international court did meet American standards, the most serious objection would remain...

...But until the other countries came up with an unacceptable scheme, the Clinton administration had backed the concept...

...We allowed judges appointed by Josef Stalin to share a tribunal with American, British, and French judges, as if they were all equally devoted to law—and equally opposed to mass atrocities...

...and so it has proved with the International Criminal Court...

...More often, prosecutors will bargain with some suspects, trading immunity or lesser charges to secure their cooperation in gathering evidence against other suspects...

...Trial by jury, for example, is unusual outside the English-speaking world...

...The Framers of the U.S...

...The court's jurisdiction is limited to cases involving signatory states —but its jurisdiction may be invoked even when the signatory state does not want it to be, to protect nationals of a signatory state even when the perpetrators are not from a signatory state...

...institutions to international bodies...

...Could we transfer broad swaths of responsibility from our own courts to international bodies...

...But the understanding of the Framers (and of all subsequent statesmen until recently) was that international law governed the relations of sovereign states...

...The European Court of Justice has built up its prestige by nurturing constituencies for activism, even against the preferences of the governments involved...

...What finally put a stop to ethnic cleansing and human slaughter in Bosnia (to the extent that they have been stopped) was the subsequent resort to air strikes and displays of military force...

...Sovereign states do not share their internal governing authority with international bodies...

...Proposals for an international criminal court have been wending their way through U.N...

...Constitution were not contemptuous of international law...

...However, we are not always willing or able to use such force against murderous regimes...

...Among other things, they specified that Congress should have power to "punish offenses against the law of nations"—on the understanding that an independent United States should take seriously its obligation to enforce the "law of nations" (as international law was called in that era...

...The State Department has finally disavowed the plan for such a court produced by a U.N...

...allies not to ratify...

...due process...

...Constitution, others to the legal ordering of international affairs—the de facto "constitution" of the world...

...T he International Criminal Court, of course, is supposed to involve more than two or three other countries...

...The problems concerning our own Constitution center on the rights of American defendants...

...Good luck to them...

...With all their moral deficiencies, however, the Nuremberg trials had one powerful justification: at the time of the trials, the Allied Powers were the only government operating in Germany...

...Smaller countries very much like the notion that power should be shared on a one-country one-vote basis (which is the scheme for electing the judges of the new court) rather than deferring to the powers with the power to act...

...The State Department is now urging other countries not to do so, but the final vote at the Rome conference — 43-7— suggests that our diplomats are not terribly persuasive...

...It is supposed to be an institution for the world, a new pillar of international law...

...We often have sought to limit violence—and the risk of U.S...

...The State Department hoped to skate past all of these with artful compromises...

...ating with murderous or criminal regimes, even ones weak enough that we could easily crush them...

...If the court were up and running and Sudan were a party, the court could prosecute U.S...

...How did we ever get started on such a project...

...Even when the criminal's home state initiates prosecution in its own courts, the international court may launch a subsequent prosecution if it deems the original trial (or sanction) inadequate...

...But based on precedent, it is hard to see how anyone can be confident...

...When a foreign criminal falls into the hands of American authorities, we might deliver him to an international triJEREMY RABKIN is a professor of government at Cornell University...

...A prosecutor may decide to show clemency...