from the Congress Action newsletter

ICC or Bill of Rights

by: Kim Weissman
July 21, 2002

On December 31, 2001, Bill Clinton directed the U.S. to sign the treaty establishing the International Criminal Court (ICC). The treaty was never submitted to the Senate for ratification. Earlier this year George Bush, honoring his oath of office, formally revoked Clinton's acceptance of the treaty, and announced this nation's intention to place the U.S. Constitution above foreign laws. This drew instant outrage from the United Nations, the European Union, human rights activists, and globalists everywhere. How dare America honor our own Constitution and Bill of Rights when a minority of international opinion (the ICC became effective when ratified by 60 nations, less than one-third of the 189 U.N. member nation) demanded that we obey their laws instead? On July 1 the ICC formally opened, and now this minority of nations presumes to exercise legal jurisdiction over the entire world and dictate what constitutes "international law", laid out in the Articles of the "Rome Statute of the International Criminal Court" and the "Rules of Procedure and Evidence" of the United Nations Preparatory Commission for the International Criminal Court.

One reason the U.S. opposes the ICC is the risk that court poses to American military troops engaged in U.N. and other peacekeeping missions abroad. Politically motivated prosecutions of our military personnel and political leaders are entirely likely. But, the argument goes, if U.S. forces commit war crimes, shouldn't they be prosecuted? Fair enough, but that misses the point. The question is — under what system of law should they be brought to justice?

When our Constitution was sent to be ratified by nine of the 13 newly independent States (note the requirement for a greater than two-thirds majority, in contrast to the less than one-third minority needed to ratify the ICC), a number of States demanded that the Constitution include a Bill of Rights, clearly defining those fundamental rights that were deemed essential for the preservation of individual Liberty. "A bill of rights is what the people are entitled to against every government on earth." (Thomas Jefferson) So what does our Bill of Rights protect, and how does the ICC deal with — trample — these rights? (In the following, the American Bill of Rights are referred to as Amendment, the Rome Statute of the ICC referred to as Article, and the ICC's rules of evidence and procedure referred to as Rule.)

Amendment IV: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation…".

Article 54(3): "The Prosecutor may: collect and examine evidence; request the presence of and question persons being investigated, victims and witnesses…". Article 57(3): The ICC may, "at the request of the Prosecutor, issue such orders and warrants as may be required for the purposes of an investigation…". Rule 63: "A Chamber shall have the authority…to assess freely all evidence submitted…". Nowhere do the words "probable cause" appear, nor must an arrest or seizure of evidence be "supported by oath or affirmation" before an independent magistrate prior to the issuance of a warrant. In Article 53(1) there is a statutory bias favoring prosecution unless "there is no reasonable basis to proceed". American justice reverses that bias, discouraging prosecution without probable cause (legitimately obtained evidence that would cause a reasonably prudent person to believe that the person charged is guilty).

Amendment V: "…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…".

Article 20(3): Persons acquitted by a national court can brought to trial again if the ICC concludes that the original trial was "conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice." One purpose of American rules of trial evidence is to protect individual liberty, giving power to the purpose of the Bill of Rights, which is designed to restrain governmental abuse. That sometimes results in the exclusion of evidence obtained illegally (without a warrant or probable cause, or confessions secured by coercion) which in some cases allows a clearly guilty person to go free. As disturbing as that is, it is the price we are willing to pay to defend our individual rights and to restrain our government. But the ICC has lower standards for warrants and the legitimacy of evidence (if a witness to an alleged U.S. atrocity is a member of Saddam's military, who knows what duress or inducements were exerted to obtain his testimony). Thus, a judgment of not guilty by an U.S. court because of illegally obtained or unreliable evidence might well be rejected by the ICC as being "inconsistent with an intent to bring the person concerned to justice", resulting in a second trial by the ICC using the very same evidence that had previously been rejected by the U.S. court because it was considered unreliable or illegal under our Bill of Rights.

Amendment VI: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…". American jurisprudence strongly favors public trials, so that the public may oversee the conduct of its judiciary. The requirement for trials near the locus of the crime is to facilitate the presence of witnesses. Our Declaration of Independence listed a "long train of abuses and usurpations" that justified our Founders taking up arms in Revolution. Among them: "[the King of Great Britain] has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; For depriving us in many cases, of the benefits of trial by jury; For transporting us beyond seas to be tried for pretended offenses." The ICC can legitimately be accused of precisely the same abuses and usurpations:

Article 64(7): "The trial shall be held in public. The Trial Chamber may, however, determine that special circumstances require that certain proceedings be in closed session…" (to "protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses."Article 68(1)).

Article 62: "Unless otherwise decided, the place of the trial shall be the seat of the Court." (The seat of the Court is at The Hague in the Netherlands — Article 3). Thus, "transporting us beyond seas to be tried".

Article 74(3): The ICC verdict is rendered by Trial Chamber judges who "…shall attempt to achieve unanimity in their decision, failing which the decision shall be taken by a majority of the judges." There is no provision in the ICC for a trial by jury, which was considered by our Founders to be one of the primary safeguards against governmental abuse.

Amendment VIII: "Excessive bail shall not be required…nor cruel and unusual punishments inflicted."

Article 77: Provides for a maximum of 30 years imprisonment; or, "life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person." (Article 103: to be "served in State designated by the Court from a list of States which have indicated…their willingness to accept sentenced persons", limited to "State Parties", that is, countries that have ratified the ICC, which thus excludes the United States)

The Eighth Amendment in our Bill of Rights is unique because it is the only amendment providing by its own terms for a changing scale of constitutionally permissible punishment, a scale explicitly designed to change with what society considers "cruel and unusual". In early American society, stocks and punishment by public ridicule were common for transgressions such as adultery, and were not considered to be either "cruel" or "unusual". Today such punishment would be deemed both cruel and unusual. But when punishing international crimes such as those the ICC is designed to address, which culture's norms define "cruel and unusual"? The European Union that prohibits the death penalty, or some totalitarian ICC signatory where summary execution is common? In any event, even if someone is convicted of genocide by the ICC, the death penalty is forbidden no matter how many millions were massacred. The ICC has been likened to the post-World War II Nuremberg Tribunal, but that Tribunal sentenced to death many of those convicted. In his closing argument at Nuremberg the Chief Prosecutor of the United States, Justice Jackson, asked, "What matters it if some forfeited their lives only a thousand times whilst others deserved a million deaths?" Under the ICC, none of those Nazi defendants would have deserved death. Thus even within its own stated purpose of delivering justice for "the most serious crimes of concern to the international community", the ICC refuses to exact commensurate penalty.

Article 81, Article 82, Rules 150 through 156 — Appeals: Appeals of criminal convictions in the U.S. can span years and multiple levels of judicial review, State and federal. The ICC, however, is an authority unto itself, unaccountable to any national or international body. The only appeal of its decisions is solely to the Appeals Chamber of the ICC itself. There is no independent review, and certain appeals cannot be made at all without permission of the Trial Chamber that rendered the verdict being appealed. When proposals were made to limit criminal appeals in U.S. courts, so-called human rights activists were incensed. But the far more limited appeals process of the ICC raises not a hint of protest.

CONCLUSION: The ICC is an extraordinary attempt by global bureaucrats, elected by no one and accountable to no one, to ride roughshod over national laws and Constitutions. Judges and prosecutors are elected by the State Parties (countries ratifying the ICC or submitting to its jurisdiction), and laws are enacted or modified by the same assembly. There is no place for any input whatsoever from the ordinary citizens of any nation — not in its laws, not in its rules of procedure, not in selecting its judges or its prosecutors. Citizens, including American citizens, are treated as subjects, to be granted or denied individual rights based on the dictates of foreign (often despotic) governments, dictated to at the caprice of their governmental masters. The philosophy of the ICC (and the U.N.) is that governments are superior to the people, granting or withholding rights as they see fit. This is the European model, but it is not America's.

Our Declaration of Independence establishes a different hierarchy: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed." Under our framework, the people are supposed to be superior to their government. To accept the ICC is to reject our Declaration of Independence, our Constitution, and our Bill of Rights. Our Liberties today are under sustained and deadly attack from every side — from a Judiciary redefining our rights out of existence; from a Congress silencing our voices, taxing us into penury to pay for their unconstitutional schemes, forcing us into dependency, and treating our Constitution as an obstacle to be evaded; from a bureaucracy using any means to destroy any citizen who dares to assert his rights; from a meddling United Nations dictating social practices and individual rights around the world; from leftists and socialists in this country and abroad trying to enslave us to their totalitarian vision. It is for Americans to choose — shall we muster what is left of our freedom and take a resolute stand to restore and defend our Constitutional Liberties, or shall we abandon forever our unique American experiment in individual Liberty and a limited government deriving its just powers from the consent of the governed?

The above article is the property of Kim Weissman, and is reprinted with his permission.
Contact him prior to reproducing.

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21 jul 2002