No Civil Liberties At The International Criminal Court

December 27, 2000 • Commentary

Opponents of the new International Criminal Court are again pressuring the United States to join that institution as it is about to become operational. The latest salvo is an editorial in the Washington Post urging the lame‐​duck Clinton administration to sign the treaty establishing the Court before the signature‐​deadline passes on Dec. 31. The New York Times editorial page has said the same and urged the administration to forward the document to the Senate for ratification.

The Post pressed the idea that America must take steps to support the Court — shymbolically or practically — or risk offending other nations. Typically, the Times focused on rebutting Pentagon fears that, if the United States becomes a member, American military personnel might someday be hauled before the Court and accused of war crimes. Dismissing such concerns as misplaced, the Times (along with most ICC supporters) pretends as though that is the only objection to the Court. In reality, the Pentagon’s fears are the least of the problems with the ICC.

The Criminal Court is a horrific institution from the standpoint of civil liberties. It would make a mockery of even the most basic due process guarantees. We have already had a glimpse of the probable abuses from the operation of the ICC’s predecessors, the special war crimes tribunals in the Balkans and Rwanda.

Rights that Americans take for granted would be greatly diluted or absent entirely in ICC trials. For example, there is no right to a trial by an impartial jury. A verdict is rendered by majority vote of a panel of appointed judges. Thus, a 3–2 vote could doom a defendant to a lengthy prison term — in some cases even a life term.

If that were not bad enough, some — perhaps all — of the judges on a panel might come from countries where there is no concept of an independent judiciary or a tradition of fair trials. A defendant could even face jurists who were officials in regimes that were openly biased against his government or political movement.

It gets worse. There is no protection against double jeopardy. If a defendant is acquitted of charges, the prosecutor’s office can appeal the verdict to an appellate body within the ICC. A hapless defendant could be subjected to prosecution for the same offense again, and again, and again.

Nor is there any guarantee of either a speedy or a public trial. The Court could hold indicted individuals for months or even years before judicial proceedings get underway. The Yugoslavia war crimes tribunal has held sessions behind closed doors—supposedly to protect the privacy of alleged victims of war crimes.

Such nonpublic sessions underscore perhaps the worst feature of the ICC.

The right of defendants to confront their accusers is highly conditional. The Court would have the authority to conceal the identity of witnesses whenever it deemed that step to be appropriate.

That is an especially pernicious dilution of due process standards. Frequently, the ability to rebut testimony depends on knowledge of the witness’ identity and background. Such knowledge may yield important clues about possible personal malice, a history of prevarication, or a hidden financial or ideological agenda. Without that knowledge, cross‐​examination must be conducted in an informational vacuum, and a defense attorney operates at an impossible disadvantage.

Most opponents of the Criminal Court in this country stress that we should not want to risk having Americans tried before such a tribunal. That is a valid but secondary point. People who value civil liberties and due process of law should not want anyone tried before such a tribunal.

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