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The notion that the minority of the world’s population who embrace the ICC would hold jurisdiction over the majority of the world’s population who reject it seems an inversion of the principles ostensibly behind the ICC. Totalitarianism should be its target, not its guide. In its zeal to uphold international law, does not the ICC transgress it?
It’s not just that governments representing most of the people on the planet don’t accept the ICC. Many of the governments accepting the ICC don’t represent their own people. Democratic governance presupposes the consent of the governed. International law isn’t law at all when the nations it attempts to govern haven’t given their consent.
Like Libya, neither Israel nor the United States recognize the ICC’s authority. Backing the ICC in its pursuit of Qaddafi and company may ironically backfire on the Libyan dictator’s most dedicated international opponents. The precedent set may be to transform an international agreement into a supranational one, making a treaty between nations an edict imposed on nations.
Though the world’s most populous states—China, India, the United States, and Indonesia—have rebuffed the court, most of the world’s states have embraced it. With all of South America, most of Europe, and roughly half of Africa signing on, the ICC member states roughly correspond to those nations competitive in soccer’s World Cup. If a soccer tournament essentially contested by South Americans and Europeans can be a “World” Cup, why can’t a court backed by the same peoples describe itself as “International”? Nomenclature aside, the ICC isn’t a global court. But it clearly would like to be.
The United States remains an obstacle. Though President Clinton signed the treaty in the 11th hour of his presidency, his immediate successor immediately “unsigned” it. Obama administration officials such as Secretary of State Hillary Clinton and UN ambassador Susan Rice have spoken favorably of it. But there isn’t a great likelihood that the U.S. Senate will endorse the ICC anytime soon.
Constitutional rights, such as a jury trial, the ability to confront accusers, and the prohibition against double jeopardy, are overridden by the International Criminal Court. And one of the particulars outlined in that other great American foundational document, the Declaration of Independence, charged George III with having “combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws.”
That charge, made 235 years ago against an English King, today describes the designs of a court in the Netherlands.
Daniel J. Flynn is the author of Why the Left Hates America (Prima Forum, 2002), Intellectual Morons: How Ideology Makes Smart People Fall for Stupid Ideas (Crown Forum, 2004), and A Conservative History of the American Left (Crown Forum, 2008). He writes a Monday column for Human Events and blogs at www.flynnfiles.com.
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