The American Interestrnby Srdja TrifkovicrnThe InternationalrnCriminal Court: Clinton’srnFrankenstein’s MonsterrnFor ears, the Clinton-Gore administrationrnhas been in the forefront of efforts torncreate international judicial bodies —rnsuch as the Yugoslav war-crimes “tribunal”rnat The Hague —that could bernused as auxiliarv’ tools of diplomatic decisionmakingrnin Washington. MadeleinernAlbright liked the fagade of legality- (hatrncould be invoked to jushf’ their policies.rnAll along, of course, they rejected anyrnthought of being subjected to the judgmentrnof similar instituhons themselves.rnBut b- svstematieallv undermining thernrule of law in intemahonal affairs, the administrationrnhas helped create a judicialrnP’rankenstein’s monster that it does notrncontrol. The administration is now atrnloggerheads with friends and foes alikernocr the establishment of a permanentrnInternational Criminal Court (ICC),rnwhich woidd replace the United Nations-rnbacked ad hoc “tribunals.” As soonrnas 60 countries ratif’ the ICC treat}-, therncourt will officiallv come into being.rnThe administration is wan,’ of having arncoirt that could prosecute American officials.rnThe ICC has made some concessionsrnto secure approval from the UnitedrnStates, such as adding a provision thatrnwould give national courts prioritv- to trvrndieir own citizens. The United States isrnnow imder pressure to come on board,rnespecialK from the European Union andrnCanada.rnThe Clinton administration’s objectionsrnso flir ha’e been technical and proceduralrnrather than fundamental. This isrnnot surprising. The real reason the ICCrnmust be rejected is that it claims universalrnjurisdiction to tr’ individuals chargedrnwith “genocide, war crimes and crimesrnagainst humanitv” anywhere in thernw orld, e’en if the accused are citizens ofrna state that has not ratified the treah’ andrnthe alleged crime has taken place insidernthat country’s boundaries. If passed, thernIC>C will remove the remnants of nationalrnso ereignh’ and e’iscerate the conceptrnof constitutional go ernment.rnTlie Clinton administration cannotrnacknowledge that the ICC is a caricaturernof legalit because the court closely followsrnthe model established by the Yugoslavrn”tribunal,” which was supportedrnby ample American money and politicalrnclout. So the administration sticks to proceduralrndetails. As a sop to Lf.S. concerns.rnArticle 17 of the ICC Statute draftedrnin Rome in July 1998 savs that a staternwill be deemed to have primary jurisdictionrnover a crime “unless the state is unwillingrnor unable genuinely to carry outrnthe investigation or prosecution.” Butrnthe ICC judges themselves will hae thernsole right to decide whether a .state is “unwilling”rnor “unable” to inestigate andrnprosecute, and to determine just howrn”genuine” its efforts are.rnThe assertion of jurisdiction by thernICC is clearh’ contrary to the U.S. Constitutionrnand American law: Only thernstates and the federal government havernthe authority to prosecute and tr)’ individualsrnfor crimes committed in the UnitedrnStates. Judicial power is “vested in onernSupreme Court, and in such inferiorrnCourts as Congress ma, from time torntime, ordain and establish.” No judicialrnbody or tribunal, unless it is establishedrnunder the authorit)’ of the Constitution,rnmay exercise jurisdiction over Americanrncitizens for a crime committed in thisrncountry, nor may U.S. officials tiirn theirrncitizens oer to a foreign governmentrnwithout a alid extradition treat}’.rnLike Carla Del Pontc at Ihe Hague,rnor Louise Arbour before her, the ICCrnprosecutor w ill have discretionar’ powersrnto investigate criminal cases on his ownrninitiative. The ICC ma order internationalrnpeacekeepers to patrol America’srnracial or ethnic trouble spots. Somalirnand Saudi ICC judges could demand extraditionrnof American citizens from thernUnited States to a third couutr’ to .standrntrial, accused of hate crimes against thernNation of Islam.rnThis is more than the Clinton-Gorernadministration had bargained for. Withrntheir ad hoc “tribunals,” thev did not seekrnto de-legitimize war crimes per se. but tornenhance their own power to decide whatrnis a war crime, on the basis of political expediency.rnFor instance. Amnesty Internationalrnhas published reports forrnyears accusing Serbs of all manner ofrncrimes. Those reports were duK’ amplifiedrnby the media propaganda machine.rnBut last June, Amnest}- released a blisteringrnattack on NATO, accusing it of committingrnwar crimes. Washington ignoredrnthe report, and War Crimes TribunalrnProsecutor Carla Del Ponte announcedrnthat she would not prosecute NATO.rnSuch double standards are enforceablernfor now, and the quasi-legal indignities ofrninternational justice remain reserved forrnSerbia or Rwanda —but only for as longrnas America remains the dominant worldrnpower. But when a countervailing forcernto its hegemony does emerge, the tablesrnmay be turned. The consequences of thernClinton administration’s actions mayrnprove fatal to America’s sovereignt}’ andrnto the foundations of its legal and constitutionalrnsystem.rnAs international lawyer William Jasperrnwarned in the Neu” American two earsrnago, “We currentK’ have this model inrnthe U.N. war crimes tribunals at ThernHague, where methods and standardsrnunacceptable to any ciilized country arernpracticed. All the traesties associatedrnwith the Yugoslavian war crimes trialsrnwill be replicated in the ICC.” Jasperrnwas in Rome when tlie ICC statute wasrndrafted, and he warns that the ICC architectsrnhave no intention of limiting theirrnjurisdiction to genocide or “humanrnrights” as conentionalh’ understood:rn”Knforced pregnanc,” i.e., any limits onrndie right to abortion, will soon be a crimernagain.st humanit’.rnPresident Clinton will never understandrnthat the legal system of a country isrnthe product of its distinct culture and religiousrnvalues. He may resist the drift, butrnfor all the wrong reasons. The proponentsrnof the ICC insist that we live in arnglobal village—we all celebrate politicalrncorrectness and beliee in human rightsrnand democracy —and Clinton has nornproblem with that. He also thinks that wernhae to hold the same “core values,” becausernwe are all essentially interchangeable.rnAmerica’s answer to such attitudes wasrngiven oer two centuries ago. “Thernfreemen of America did not wait tillrnusurped pow-er had strengthened itself byrnexercise, and entangled the question inrnprecedents,” James Madison observed.rn”The}- saw all the consequences in thernprinciple, and they avoided the consequencesrnby deu} ing the principle.” crnSEPTEMBER 2000/39rnrnrn