The American Non-Governmental Organizations Coalition for the International Criminal Court (AMICC), a UN-aligned pressure group which advocates for U.S. membership in the International Criminal Court (ICC), has released an “analysis” of our recent paper, “An Inconvenient Founding: America’s Principles Applied to the ICC”. The paper argues that the Rome Statute and ICC are incompatible not only with U.S. constitutional principles but also with the lessons learned from America’s historical experiences involving the British Vice-Admiralty Courts of the 1700s and the International Slave Trade Tribunals of the 1800s. Instead of responding to the central thesis, the AMICC “analysis” myopically quibbles over the extent to which U.S. membership in the Rome Statute violates core American constitutional principles.
That the Rome Statute denies the American “right of trial by jury” is an incontrovertible fact. AMICC rightly notes that “it is not feasible for individuals to be tried by a jury of peers in international tribunals.” We could not have said it better, and this is precisely the problem with international tribunals.
While AMICC acknowledges this detail, their ICC advocacy is undeterred. AMICC defends its position by referencing the rare and extraordinary circumstances when U.S. citizens, at the discretion of the U.S. government, may be tried on a case-by-case basis without a jury trial overseas. But the Rome Statute presents a very different scenario wherein the ICC would categorically deny jury trial to all American citizens who the ICC independent Chief Prosecutor investigates and indicts. In essence, the Rome Statute would make the exception the rule and remove the due process protections of America’s constitutional rule of law.
The AMICC author (name unknown) cannot avoid the fact that institutionally excluding “the right to trial by jury” contradicts the wisdom of the U.S. Constitution, the Bill of Rights, Chief Justice Joseph Story, and John Quincy Adams, each referenced in my paper. Other than these, there are numerous sources better trusted, fairer and more articulate than AMICC who believe that constitutional due processes are worth keeping even in matters regarding international law (e.g. William Blackstone‘s observation that trial jury is the “palladium of our civil rights”)
“Representative government and trial by jury are the heart and lungs of liberty.” - John Adams (1774)
“Illegitimate and unconstitutional practices get their footing … by silent approaches and slight deviations from legal modes of procedure … It is [our] duty … to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon …” - Justice Joseph Bradley (1886)
“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” - Thomas Jefferson (1801)
By so dismissively relegating the principle of trial by jury to the dustbin of history, AMICC and its parent organization, the United Nations Association of the United States of America (UNA-USA) have seriously undermined their legitimacy as a trusted source on U.S. involvement in international law. If AMICC hopes to have any relevance to U.S. policy makers and the broader American public, they must take America’s history and political principles seriously. Progressive advocates of supranational solutions to the world’s many problems may indeed wish to move away from core principles of the American Founding, but they should do so openly and not couch their arguments in equivocating legalese. AMICC would do well to recognize that for America, the Rome Statute is still primarily a political issue, not a legal one: they do not yet have the luxury of ignoring the larger questions.
Remember President Obama’s trip to Copenhagen last year? Not the failed Chicago Olympics bid, but the Climate Change Conference where he attempted to place America under a cooperative international climate treaty. Now, the President has turned his attention to other avenues of global entente, and the frustrated momentum of the climate treaty has been replaced with a move towards closer cooperation with the International Criminal Court. Committing the U.S. to international accords that threaten to undermine our nation’s sovereignty appears to be a temptation the current administration cannot resist. The ICC is just another example of this infatuation with global governance.
In November 2009, Stephen Rapp, the American Ambassador-at-large for War Crimes Issues announced that the “[U.S.] government has now made the decision that Americans will return to engagement at the ICC.” At first glance this may appear as a great opportunity for America to shed its big-bully persona and embrace an agreeable multi-lateral approach. However, as Marion Smith of the Heritage Foundation argues in a recent Backgrounder, An Inconvenient Founding: America’s Principles Applied to the ICC, American involvement in the ICC would represent nothing short of ceding America’s sovereignty to an unaccountable international legal body.
ICC membership would represent an important break from our First Principles. Citing historical examples dating back to the Founding, Smith argues that the U.S. has always been wary of international agreements that may supersede the power of the Constitution and consequently threaten the sovereignty of the U.S. The continued independence of the U.S. remains crucial to the maintenance of America’s democratic institutions. Despite mounting global pressure to the contrary, America must remain true to its constitutional obligations and continue to defend the sovereignty of our nation.
Founded in 2002, the ICC derives its authority from the Rome Statute. With some 110 countries party to it, the Rome Statute claims jurisdictional authority to prosecute alleged human rights crimes committed within any of the member countries. As Smith’s paper highlights, there are myriad issues in the Rome Statue that directly contradict American political and constitutional principles.
• With regard to the ICC’s jurisdictional power, the Rome Statute states that it “shall satisfy itself that it has jurisdiction in any case brought before it.” If the U.S. ratified the Rome Statute, the ICC could investigate, review and judge crimes committed by Americans against Americans in America that have already been adjudicated in American courts
• The ICC could claim jurisdiction over American citizens even without the ratification of the Rome Statute if American are accused of alleged crimes committed in member countries. An appalling example of this can be seen in an ongoing ICC investigation into conduct of American and NATO soldiers in Afghanistan. As the Heritage Foundation’s Brett Schaefer and Steven Groves discuss in The ICC Investigation in Afghanistan Vindicates U.S. Policy Toward the ICC, such proceedings set a dangerous precedent of ICC power over ongoing war efforts.
• The ICC’s system of due process is distinctly different from that guaranteed by the U.S. Constitution and Bill of Rights: the Rome Statute recognizes no right to trial by jury and contains no right to a speedy trial.
• Finally, the ICC places prosecutorial power in an independent and therefore unaccountable, Chief Prosecutor. The potential for politically motivated investigations without the consent of the governments involved are limitless.
Some proponents of global governance criticize America for not signing on to international agreements, such as the Rome Statute and claim that America has a disdain for the rule of law. But this is not the case. It is precisely America’s dedication to the rule of law that causes us to assess critically treaties such as the Rome Statute.
It is highly ironic that the Obama Administration is warming up to the ICC, a court that does not guarantee American due process rights to American citizens, while at the same time insisting that terrorist suspects should have access to American civil courts, Miranda rights, and the right to trial by jury.
David Ehrlich currently is a member of the Young Leaders Program at the Heritage Foundation. For more information on interning at Heritage, please visit: http://www.heritage.org/about/departments/ylp.cfm