An especially curious feature of the ongoing debate about establishing the United Nation’s permanent international criminal court (PICC) is the enthusiasm of American liberals for the project. Card‐carrying members of the American Civil Liberties Union — and in some cases former high‐level officials of the organization — lobby in favor of the PICC and denounce critics as alarmists and isolationists, if not apologists for war criminals. Yet the PICC and the special tribunals already established to prosecute war crimes in Rwanda and the former Yugoslavia make a mockery of the due process standards that ACLU types supposedly hold sacred.
Such luminaries as Morton Halperin, former head of the ACLU’s Washington office, and Amnesty International’s Stephen Rickard seem unperturbed about the definition of crimes over which the PICC will have jurisdiction or the rules of evidence and procedure under which the court will operate. For example, the usual vigilance of American liberals about “overly broad” statutes is strangely absent. Yet consider some of the crimes the court will be empowered to prosecute. The definition of genocide includes such offenses as causing serious “mental harm” to members of any national, racial, ethnic or religious group. War crimes include “committing outrages upon personal dignity, in particular humiliating or degrading treatment.” Compared to such vacuous definitions, even the vaguely worded domestic criminal statutes that habitually provoke the wrath of the civil liberties community are models of precision.
…[P]rotections that are considered core requirements for a fair trial in the United States are greatly diluted or absent entirely in the special war crimes tribunals and the proposed PICC.
Even worse, protections that are considered core requirements for a fair trial in the United States are greatly diluted or absent entirely in the special war crimes tribunals and the proposed PICC. Instead of a right to trial by an impartial jury, a defendant faces the prospect of trial by a panel of judges appointed by majority vote of member‐states. Most, sometimes all, of the judges on a panel could come from countries where there is no concept of an independent judiciary. A defendant might even face jurists who are representatives of regimes that are openly biased against his government or political movement. More generally, a defendant’s fate could hang on the willingness of jurists from such bastions of civil liberties as Angola, Saudi Arabia and Indonesia to render a fair verdict.
There is also no right to either a speedy or a public trial. The PICC would have the authority to hold defendants for months or even years before judicial proceedings commence. In the case of the tribunal for the former Yugoslavia, trial sessions have been held behind closed doors — ostensibly to protect the privacy of alleged victims of war crimes.
Perhaps most worrisome of all, the right of defendants to confront their accusers is highly conditional. The PICC would have the authority to conceal the identity of witnesses whenever it deemed that step to be appropriate. Such restrictions have already marked some of the trials conducted by the special tribunals.
That is an especially pernicious dilution of due process standards. Frequently, the ability to rebut testimony depends on knowledge of the witness’s identity and background. Such information 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 is likely to yield less than impressive results.
Liberals would never tolerate such perversions of due process standards in an American court. Why then do so many prominent liberals embrace the PICC, even though it will contain these and other appalling defects? One might justifiably ask Mort Halperin and his colleagues, “what are good civil liberties activists like you doing in an ethical sewer like the PICC?”
The answer appears to be that most liberals are also ardent disciples of Woodrow Wilson and his dream of international cooperation. To them a multilateral institution — especially if it operates under the auspices of the United Nations — is presumed to be desirable. That multilateralism uber alles mentality has caused them to endorse the PICC, despite its abundance of warts.
It is a huge mistake as well as a betrayal of principle. Conservative and libertarian critics of the PICC should miss no opportunity to compel their liberal adversaries to confront the hypocrisy of their support for the court. Unfortunately, many conservatives often fail to emphasize the core problem with the PICC. They typically stress that we should not want to risk having Americans tried before such a tribunal. That is a valid but secondary point. People who believe in civil liberties should not want anyone tried before such a tribunal.