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
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
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
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
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
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.