Court Dismissed: The ICC is a snare and a monstrosity-with no standing - international criminal court

National Review, Nov 11, 2002 by Lee A. Casey, David B. Rivkin, Jr.

'They have learned nothing," remarked a disgusted Talleyrand when the Bourbons returned to France, "and they have forgotten nothing." His words might be applied with equal justice to Europe's current governing class. Indeed, today's Euro-bureaucrats have pretensions that dwarf those of the Bourbons: European Commission president Romano Prodi declares that the new Europe's goal is the creation of a new "superstate" to rival the United States.

Of course, vast conscript armies and fleets of dreadnoughts are no longer the tools of European imperialism. Today's Europeans are actually quite unwilling to use military power and are often hostile when-as in Iraq-the U.S. chooses to project force around the world. Europe's mantra is adherence to the letter of international law and to the prerogatives of international institutions-most notably, the new international criminal court (ICC) established under the 1998 Rome Statute. The ICC claims jurisdiction over a dizzying array of ill- defined offenses, from genocide to "severe damage to the natural environment." It also asserts authority over every man and woman on earth, regardless of whether their own countries have chosen to ratify the Rome Statute. The 15 member states of the European Union have accurately been described as the "backbone" of this court, and they are the largest single voting bloc in the ICC's governing body. Indeed, there is little doubt that, from the outset, Europe has assumed that its nationals, as prosecutors and judges, will control the court.

The U.S. itself has rejected the Rome Statute, making clear that it considers the treaty to be hopelessly flawed, an open invitation to abuse by ambitious and/or biased prosecutors and judges. It also has made clear that it will defend its citizens from the ICC's power-by force, if necessary. In response, Europe has undertaken a concerted campaign to ensure that the ICC will exercise its power over Americans. That, it now appears, was the project's purpose from the start: to discipline the American "hyperpower" (the phrase former French foreign minister Hubert Vedrine used to describe the nation-state that drove Hitler's legions from Paris).

The depth of Europe's commitment to imposing this court on the U.S. is most evident in the EU's efforts to prevent its members, and especially vulnerable potential members, from entering agreements with the U.S. that would forbid the extradition of Americans to the ICC. Romania, which entered such an agreement, has "compromised" its chances of EU membership, and the European Commission's legal staff flatly considers such agreements unacceptable, even though they are specifically contemplated in Article 98 of the Rome Statute itself. The EU position is made especially hypocritical by the fact that the French exempted themselves for seven years from most of the ICC's jurisdiction. Moreover, after extolling for years the notion that the U.N. Security Council has plenary powers that can override virtually any legal arrangement, Europe cried foul when the U.S. tried to get the Security Council to immunize U.N. peacekeepers from ICC jurisdiction. One of the Europeans' key concerns was that the Security Council not be allowed to revise the provisions of the Rome Statute.

This is part and parcel of a determined effort to subject the American people to the ICC with or without their consent. In the process, Europe's leaders are trampling the core norms of the very same international law they profess to venerate: Any effort to subject a sovereign state to a treaty regime that it has emphatically rejected is without precedent in modern international law, and amounts to gunboat diplomacy by judicial fiat.

Back in 1998, when there was still a chance of coaxing the U.S. into the ICC regime, European diplomats took every opportunity to reassure Americans that the ICC was designed not to trouble the U.S., but purely to prosecute and punish such international rogues as Saddam Hussein. Five years later, with the U.S. firmly outside of the ICC club, the same crowd is feigning outrage at the Bush administration's modest efforts to protect Americans from the court's reach, and even claiming that the U.S. is seeking "immunity" from international law.

That last claim, not to put too fine a point on it, is a lie-and they know it. The U.S. remains bound by every aspect of international law to which it was bound before rejecting the Rome Statute. It has not sought "immunity" for its troops from international law. The U.S. respects and enforces all of the requirements of international law, and has merely chosen not to subject itself to a novel international enforcement mechanism, an institution with no track record and no effective checks upon the use, or abuse, of its power.

In fact, it is the U.S. itself that is seeking to uphold the settled international-law rights of all states that have chosen not to join the ICC system-states that still represent the vast majority of the world's population. The most fundamental aspect of the international system- dating to the 1648 Treaty of Westphalia (which ended Europe's religious wars), and explicitly reflected in the U.N. Charter-is the absolute legal equality of states. No state, or group of states, can adopt a treaty and then impose that document on other states that do not consent.