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dence as we wished . . . they could not take away a lot of

limitations, such as the fact that there was no legal in-

strument to compel a witness to come to The Hague."  Wladi-

miroff added that that limitation caused an imbalance in the

presentations of the prosecution and defense cases because

"those people who were victims of Dusko Tadic were eager to

have him tried and convicted and therefore they were quite

pleased to step forward and tell their story. . . . But no

one who was involved with him would step forward and witness

for the simple reason that they will point at [i.e., incrim-

inate] themselves."  That imbalance was compounded by the

fact that "there were so many things that we could not

investigate. . . . Too little money was designated to be

used for funding of the defense.  Much more was designated

to be used for the prosecution."56

All of that led Nick Kostich, an American defense

attorney for Tadic, to conclude that the Yugoslavia tribu-

nal--the precursor of the ICC--did not accord his client the

right to conduct a fair defense.  Tadic "is not being given

the right to confront his accusers," and "the defense has

not been presented with the names of witnesses," he ex-

plained in 1995.  "My most vicious, my most heinous client

[in the United States] has more rights under the U.S. Con-

stitution," he added.57  The clear implication of Kostich's

assessment is that Americans brought before a Yugoslavia

tribunal-type court--like the proposed ICC--will have fewer

rights than under the U.S. Constitution.

Constitutional Barriers

In 1803 Thomas Jefferson defended the supremacy of the

U.S. Constitution over treaties when he wrote, "Our particu-

lar security is in possession of a written Constitution.

Let us not make it a blank paper by construction.  I say the

same as to the opinion of those who consider the grant of

the treaty making power as boundless.  If it is, then we

have no Constitution."58  Jefferson's analysis tends to be

supported by the case law, which says that the U.S. federal

government cannot enter into treaties that are incompatible

with the U.S. Constitution.59  Doe v. Braden (1853), for

example, asserts that U.S. courts have a legal "right to

annul or disregard" the provisions of a treaty if "they

violate the Constitution of the United States,"60 and the

Cherokee Tobacco (1871) decision declares that "a treaty

cannot change the Constitution or be held valid if it be in