Lawyers look to succeed where bombs and bullets have failed.
The International Criminal Court’s prosecutor petitioned its judges Monday to issue warrants for the arrest of Libyan strongman Muammar Qaddafi, his son Seif al-Islam Qaddafi, and Libyan intelligence head Abdullah al-Sanoussi.
The ICC prosecutor, Argentine Luis Moreno-Ocampo, charges the trio with crimes against humanity. Specifically, Moreno-Ocampo cites shelling funeral processions, attacking civilian homes, and gunning down protestors during the recent unrest to buttress the general charge. The prosecutor says of the judges, “The case is now in their hands.”
But is it?
In the nine years since its inception, the International Criminal Court has convicted zero human beings of genocide, crimes against humanity, or aggression (the three offenses their mandate allows them to prosecute). Its six active cases involve weak African states with little standing in the international community. North Korea? Iran? China? Their “crimes against humanity” have escaped the court’s, but not humanity’s, notice.
Two years ago, the ICC indicted Qaddafi’s neighboring dictator to the southeast, Sudanese strongman Omar al Bashir, for mass killings in the Darfur region. But he still reigns. The ICC wields no enforcement mechanism. It may act as a deterrent for Bashir, or Qaddafi for that matter, to abdicate. But the ICC isn’t scaring the scary people into civilized behavior. Like so many ideas backed by good intentions, the ICC appears to have unintended consequences, such as the incentive for despots to more tightly grasp power in the face of internal uprisings backed by external litigation.
While Qaddafi appears guilty as charged, the expected indictments are themselves problematic. With Qaddafi’s sponsorship of terrorism over the skies of Scotland, in a German discotheque, and on Libyan streets not in question, there are a multitude of regular old national courts with greater standing than the ICC to bring the tyrant to justice should he be deposed. Libya isn’t a party to the treaty establishing the International Criminal Court. A long-held, heretofore uncontroversial tenet of international law is that nations not ratifying treaties aren’t governed by them. Qaddafi may test such a notion because there is currently no independent judiciary within Libya to call him into account. But the precedent set by the ICC exercising jurisdiction over a nation that hasn’t recognized its jurisdiction may prove a dangerous one.
That calls for the ICC to investigate the Israeli Defence Forces’ raid of the ship Mavi Marmara bound for Gaza and their combat against Hamas haven’t been dismissed out of hand—neither the Palestinian Authority nor Israel are parties to the treaty—suggests ICC aspirations beyond its stated mandate. Similar calls for the ICC to investigate the abuses at the Abu Ghraib prison, despite the U.S. prosecution of the offenders (and Iraq and the U.S. not being subject to the ICC), also call into question whether the ICC recognizes limitations. The ICC ultimately didn’t pursue the United States or Israel. But that doesn’t mean the desire to do so isn’t there.
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.