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International Criminal Court could jeopardize Americans' rights

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© St. Petersburg Times, published January 14, 2001

I'm not typically one to see black helicopters everywhere, but the treaty President Clinton just signed to create an International Criminal Court has got my militia antenna up.

Designed to be a permanent body to investigate and prosecute war crimes, genocide and crimes against humanity, the court is being touted as the modern equivalent of the Nuremberg Trials -- a place to bring the world's most loathsome to justice.

The endeavor sounds so noble, and supporters, including Human Rights Watch and Amnesty International, are all the good guys of the international humanitarian community. Who could be against it?

I am.

As designed, the court would fail to respect basic civil liberties and America's national sovereignty, and it likely would see "justice" through a political lens.

U.S. officials recognize these problems. The Senate has made clear that it won't ratify the court without substantial changes. But Senate approval might be irrelevant. According to Jeremy Radkin, professor of government at Cornell University, the court claims to have jurisdiction even over countries that have not consented, a reach he calls "novel and disturbing." Under the rules, the ICC would accept cases if either a victim or a perpetrator comes from a ratifying country.

The most likely way this could affect Americans is in our international peacekeeping role -- if our soldiers engage in military action in a country in which we're trying to maintain order. Of course, we're big and influential enough to thwart the ICC, but what about smaller countries such as Israel or Taiwan, which are despised by their neighbors and highly susceptible to unfair charges?

For all its intended good, the ICC, which would have police powers and its own prison, could easily become a geopolitical tool for harassment.

Just as troubling is its lack of due process. In large measure the ICC is modeled after the European inquisitorial system where judges, not a jury of one's peers, decide guilt or innocence. Defendants subject to the ICC would not be guaranteed a public or speedy trial, protection against double jeopardy or the absolute right to confront their accusers. (It is often impossible to defend against accusations without knowing the source.)

The danger here is not only for the people who are tried, but in letting this world body establish the norms for what constitutes a fair hearing. Over time, American due process rights may come to be seen as dispensable and overzealous.

Actually, many of the problems with this notion of dispensing international criminal justice revolve around what will happen over time. Right now the ICC may be intended to address only the worst of the worst, but institutions have a way of expanding their mission into grayer areas.

Gary Dempsey, a foreign policy analyst at the Cato Institute, warns in a position paper that the court could become a "jurisdictional leviathan." He describes how various interest groups already have tried to include drug trafficking and environmental harms into the court's jurisdiction. But, Dempsey says, even under current definitions the court would have a very long arm, with the power to investigate allegations of causing serious psychological harm to a particular group and "outrages upon personal dignity."

Concepts of justice and rights are not as universal as we may think. The American perspective of human rights differs from that in many democracies in fundamental respects. Stemming from a deep-seated suspicion of government power, America vests rights in the individual, thereby limiting government's reach. Alternatively, most of Europe and the international human rights community invite government action as a force for good, embracing a communitarian definition of rights.

Most European nations, for example, recognize socialist obligations of government known as positive rights -- things such as the "right" to adequate living conditions, food, shelter and medical care -- that every citizen can demand from government. Our Constitution only protects negative rights or ways in which government may not infringe on individual liberty. In the laissez-faire American view, positive rights are their own form of tyranny since the government must take from one to give to another.

Also, American free speech includes the right to engage in hate speech. In places like Germany and Switzerland, hate speech is illegal as a form of discrimination and a violation of human dignity.

Will the ICC, with an eye toward developing international human rights norms, start to challenge the validity of America's view?

Radkin thinks so. He believes the court will be handling a relatively small number of cases and, rather than responding to the greatest injustice, will begin looking for cases that send a message or clarify the law in the way our Supreme Court does in choosing cases to review.

"It's not that interesting to nail down Radovan Karadzic, who organized mass rape and killing and is really a criminal. You don't need to crank up an international court to clarify that," Radkin said. But cases involving positive rights such as denying a group of native peoples a share of the land so they can feed themselves, "now that actually would be a contribution, someone might think, to clarifying that "yes,' this would be a crime (against humanity)."

As much as the good guys of the world see the ICC as a valuable addition to its arsenal against the world's brutes, I believe the court will inevitably epitomize good intentions gone awry.

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