The American Spectator

At Large

Citizen-Defendants of the World

By Ben Lerner on 3.23.09 @ 6:07AM

(Page 2 of 2)

* Proponents of the treaty sometimes identify as a safeguard the ICC's "complementarity" rule. The Rome Statute states that a case is inadmissible to the ICC if a State having jurisdiction is already handling the matter, unless it is clear that the State is "unwilling or unable genuinely to carry out the investigation or prosecution." Some therefore will argue that the United States need not fear a referral to the ICC provided it is "genuinely" pursuing justice with respect to any of its citizens accused of war crimes. This language may be better understood, however, as giving the ICC the last word on the matter. Indeed, the ICC may very well have the last word, given that the U.S. legal system provides various protections, such as the right to a trial by jury, which may be deemed inconsistent with ICC rules and procedures.

The above concerns should give the Obama administration pause as it considers signing the Rome Statute. It is far from guaranteed that joining the ICC in order to have a "seat at the table" will in any way allow the United States to guard against the pitfalls associated with membership. With the exception of specific instances whereby a situation might be referred to the ICC via the Security Council, the United States will not have a veto. A seat at the table will not give us the opportunity to fix what is wrong with this treaty, but rather will trap us within the confines of a legal framework ripe with potential for abuse.

Moreover, there is much more at stake here for the United States than the legal risks that come with signing this treaty. The very act of signature and ratification will not only elevate the Court's legal authority over the United States, but also the Court's moral authority in its dealings with America and even its allies. As non-parties, we remain free to dismiss the ICC's investigation or prosecution of American citizens as illegitimate. Once we are a party to the ICC, however, it will become much more difficult to make a serious argument against the Court's authority should it initiate proceedings against American citizens or engage in other unacceptable behavior. Our assent to the Rome Statute would likely also have the effect of providing the ICC with that same moral cloaking as it goes after valued allies: Israel for its defensive actions in Gaza; Colombia for actions taken to protect its own citizens from FARC forces; perhaps every NATO country with troops in Afghanistan.

It may be that given the rhetoric thus far, President Obama is quite comfortable with the notion of using the ICC as one of several means to bring America out of the global wilderness he perceives, despite the legal and political risks involved in such a move. The Court's issuance of an arrest warrant for Sudan's al-Bashir -- a ruthless dictator deserving of punishment for his actions by all civilized standards -- may further provide such comfort to the Obama administration by reinforcing the flawed notion that the U.S. has nothing to fear from the ICC, that it will only go after world's "obvious" thugs. President Obama would be well-advised, however, truly to consult with his defense and national security advisors about the legal and political ramifications of American officials being made citizen-defendants of the world. He might find that they -- not to mention vast quarters of the American public -- are less than comfortable with that arrangement.

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