TCS Daily


International Show Trials

By Dale Franks - April 7, 2004 12:00 AM

Those who wonder why the US would be reluctant to place itself under the jurisdiction of the UN's International Criminal Court (ICC) need look no further than the activities of the International Court of Justice (ICJ). The ICJ is currently considering the legality of Israel's new security fence. Ostensibly, this is a legal action, but to many observers, it looks more like a political witch-hunt. If the toothless ICJ can go this far astray, imagine how reckless an ICC armed with real powers of punishment would be.

One of the first clues that the current ICJ proceedings are a political rather than a legal proceeding is the very nature of the "investigation" the court is asked to undertake. The ICJ's brief from the UN General Assembly is essentially to examine the legal ramifications arising from Israel's illegal construction of the fence. The first paragraph of the General Assembly's ICJ resolution takes pains to "reaffirm" its resolution of a few weeks earlier that "construction of the wall...is in contradiction to relevant provisions of international law". In other words, since the General Assembly has declared the fence to be illegal, the outcome of any ICJ proceeding has been telegraphed.

Additionally, in a normal legal proceeding a judge who is party to the case must recuse himself. Yet, in this case, one of the judges is the former Egyptian Ambassador to the UN who was instrumental in getting the case referred to the ICJ. This makes him, without question, a central figure in the case. But, since he won't recuse himself, I guess we'll just have to trust in his sense of fair play.

The only kind of legal proceeding that begins with a predetermined outcome, and where judges can also serve as prosecutors, is that venerable institution known as the "show trial."

In general, ICJ proceedings only occur when both parties to the dispute agree to the ICJ's jurisdiction. In this case, Israel declined to participate. The Palestinian Authority, not being a UN member state, is theoretically ineligible to participate as well. But the lack of any recognized disputants was no barrier to the ICJ. It neither prevented the ICJ from taking the case, nor from allowing Palestinian representatives nearly three hours to address the court.

This highlights another danger of the ICC in that such expansions of jurisdiction have the potential to turn the ICC into what the Cato Institute's Gary Dempsey terms a "jurisdictional leviathan." A number of ICC supporters, such as Human Rights Watch and Amnesty International argue that, in addition to serious war crimes, the ICC should be allowed to prosecute "human rights violations," a category so broad this it effectively gives the ICC jurisdiction over a number of domestic law enforcement and security matters. Controversial criminal convictions like that of Mumia Abu-Jamal, would be prime candidates for ICC intervention.

Some would even like the court to have jurisdiction over "outrages upon personal dignity." Now, outrages upon personal dignity certainly sound unpleasant. I'm not sure if they are so important that they require ceding national sovereignty to the UN in order to see them properly punished.

Even if none of the above were true, the very nature of the court should make citizens of free countries pause before putting the lives of their sons and daughters into the hands of the ICC. ICC judges serve in rotation from all UN member states. At any given moment, the ICC's panel of judges could be from Syria, the People's Republic of China, Sudan, or any number of states whose judges will be appointed by a government without free elections.

The result is despotisms sitting in judgment on democracies, which is as good an example of irrationality as can be found. Such a result would, however, be entirely in keeping with the fundamental policy of the UN, which allows such bastions of human liberty like Libya and Syria to serve on -- or, in fact, chair -- the UN Commission on Human Rights.

For Americans, specifically, the ICC lacks important legal protections. For instance, while the 5th Amendment protects American defendants against self-incrimination, the ICC can compel a person to testify against himself, and, if he refuses, conclude that he has done so because he's guilty. Additionally, because the ICC would be able to "complement" national justice systems, a person who is tried an acquitted in the US could be tried for the same crime by the ICC because they felt the American justice system had "failed."

The UN may be a fine institution for bringing the governments of the world together. If nothing else, it gives us a place where their representatives can shout at each other in relative comfort. But, as the current controversy over Israel's security fence indicates, it might not be the best place to go if you're expecting impartial justice.


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