The Court That Won't Go Away
Scripps-Howard News Service 7.09.02
One would have thought that the debate surrounding the International Criminal Court (ICC) ended on May 6. That day, the United States of America notified the Secretary-General of the United Nations of its decision not to participate in, and not to recognize the authority of, said court.
What the last days have demonstrated is the determination (obstinacy?) of the Court's supporters - around the world and in the United States - to keep the controversy alive, presumably in the hope of changing America's mind one of these days.
The current round was occasioned by the necessity to renew the mandate of the peacekeepers in Bosnia. Without guaranteeing immunity for members of our military, a back-door, de facto subjugation of Americans to the ICC was to be accomplished. The Bush administration saw through the scheme and declined further participation without such guarantees.
Since the discussions will continue for another week, it is essential to review one more time why the matter is indeed worthy of our undivided attention.
The trouble with the International Criminal Court is there for all to see in the very first word: International. That means - at least potentially - participation in the work of the Court by every country in the world. It is therefore strongly recommended, especially to ardent advocates of ICC, to sit down with a list of the countries currently comprising the United Nations, pick at random, say, a dozen consecutive names, and imagine yourself as the accused at a trial where the judges had come from those countries. Please speak the names of the countries aloud. The exercise is bound to bring about a rapid change of heart.
The foregoing probably comes across as wholesale insult to our fellow-members at the U.N. Not so. It merely takes account of reality. The wall separating the legal concepts, systems and practices in the English-speaking world from all other nations is higher and thicker than the Great Wall of China, the Berlin Wall, and all such divides.
Americans, save for the most uninformed, need no reminder about the inadvisability of finding themselves held prisoner by the authorities in pretty much all of Africa, Asia or Latin America. But some may be unaware that continental Europe offers no guarantees either - not in our sense of the word. While few would look forward to being arrested and tried in Serbia or Rumania, even in Italy art is considerably more appealing than Italian law.
Recently, a journalist in one of the outlying Russian republics criticized the leadership and was promptly sentenced to 2½ years in prison. CNN's European service aired a report showing her appearance before a high court in Moscow where she had hoped (in vain) her sentence would be quashed. I wish images of that high court in Moscow would be shown to the faculty and students of American universities at least once a week.
Incidentally, the same CNN argues every day in favor of America's participation in the ICC. The day of the most heated arguments at the U.N., CNN afforded significant time for the world body's top law expert to complain about America's "incomprehensible" refusal. "Over 70 nations have signed!" he exclaimed. "Does America realize that, just today, Honduras has joined!?"
That, of course, changes everything.
Seriously, though, it helps to focus on two reasons why we cannot blend our legal system with that of other nations.
The people of most countries have yet to even think about law as we understand it. In Islam, and many other faiths, the law simply is one of the functions of religion. Rulers praised for their sense of justice, like Harun al-Rashid, were not bound by a body of law, much less a constitution. They just happened to be outstanding individuals.
Of course, in much of Europe, Roman Law did provide proper foundations. But not only has English common law (based on precedents, as opposed to codified precepts) proven superior - there are also concerns with no continuity and insufficient perspective.
Germany is trying to figure out the case of a couple, convicted for spying on former West German officials for the former East Germany. Serious editorials draw attention to the contradiction between West German and East German law (which one is applicable if the crime was committed during their respective validity?), and between breaches of "human rights" versus breaches of the "law."
The point is that in most non-English-speaking countries the political regimes, and with them the laws, change way too frequently. France is now in her Fifth Republic - meaning that many constitutions - and counting. Spain is making its first, tentative acquaintance with law. For all of Europe, "my home is my castle," and "innocent until proven guilty" are a long way away.
And there is another, highly disturbing aspect of international organizations. No communist, in fact no one on the "Left," has ever been pursued for "crimes against humanity." Not one. Not ever. How can that be? Who killed the reportedly 100 million people?
I have really tried to understand this last point. A friend of mine suggested that Slobodan Milosevic was a communist. But surely, he is being pursued only for his transgressions as a Serbian nationalist. Why are communists invariably given a pass by the international community?
Until we sort this out, American service personnel must be protected. My wife and I just visited Colmar, a smallish city in Eastern France. Apparently, German troops entrenched there put up rather fierce resistance as World War II was approaching its final stages. After the Americans had overcome that resistance and done the dying, their commander offered the "Free French" forces to march into the city and "liberate" it. Colmar's main avenue is named for the French army unit in the story.
So long as Americans do the dying for the rest of the world, let not the rest of the world do the judging.