From the WSJ Opinion Archives
THINKING THINGS OVER
World Law or
Institutionalized
Hypocrisy?
The International Criminal Court won't give us justice.
After the carnage at Srebrenica and in Rwanda, the goal of putting the world's butchers on trial surely strikes sympathetic chords. But in rejecting the new International Criminal Court last week, the Bush administration struck an important blow for the cause of justice in the world.
The court's charter establishes a prosecutor who is literally irresponsible, not accountable to any democratic authority or even the United Nations Security Council. The prosecutor will be "elected by secret ballot by an absolute majority" of the ratifying nations. He would serve a nine-year term, and have the authority on his own initiative to launch investigations into "a. The crime of genocide; b. Crimes against humanity; c. War crimes; d. The crime of aggression."
This brainstorm is popular in all of the usual high-minded quarters. The treaty negotiated in Rome in 1998 has been ratified by 66 nations, including France, the United Kingdom, Sweden, etc. It will open its doors in the Hague next year, with jurisdiction over crimes committed after next July 1.
The American representative to the Rome conference testified to Congress that the U.S. continued to object not only to the "self-initiating prosecutor" and the sweeping inclusion of the crime of aggression, but to the court's jurisdiction over American peacekeepers on the territory of a state that had ratified the treaty. President Clinton signed the treaty on his last New Year's eve in office, in the same last-minute rush that three weeks later produced the Marc Rich pardon.
Last week the Bush administration dialed up the United Nations and told them to forget it. Or rather, John Bolton, Under Secretary of State for Arms Control and International Security, sent a letter to U.N. Secretary General Kofi Annan stating that the U.S. "does not intend to become a party" and has no obligations arising from President Clinton's signature. The administration is preparing a diplomatic offensive against the court.
Henry Kissinger's recent experiences show that the problems with the brand of jurisprudence the court represents are anything but theoretical. A year ago the Paris police stopped by the concierge desk at the Ritz Hotel and dropped off a summons for the visiting former Secretary of State. A French judge had decided he wanted to question him about U.S. policy in Chile some 30 years ago.
The judge was entertaining a case professing to be about the disappearance of five French citizens during Augusto Pinochet's military regime in Chile. Baltasar Garzon, the Spanish magistrate who succeeded in having Gen. Pinochet detained in London, also requested that British authorities allow him to question the former secretary during a recent visit. In what rapidly became an international movement, judges in Chile and Argentina have issued similar writs.
The cases charge or suggest that the U.S. was complicit in "Operation Condor," torturing and killing South American leftists. In the original French case, the State Department told the court that the questions should be directed to the U.S. government, and it's expected to issue detailed answers denying any American involvement.
Even if that closes the matter, the episode demonstrates that prosecutorial investigations have an in terrorem effect, especially considering that Secretary Kissinger is 78 and General Pinochet was 82 when he was seized and held for 16 months. Similarly, a Belgian court has entertained a case charging Israeli Prime Minister Ariel Sharon with crimes against humanity in the 1982 massacres at Sabra and Chatilla in Lebanon.
The "independence" of many European magistrates already sanctions freewheeling grandstanding, perhaps for the better in Italian Mafia prosecutions but for the worse in anti-American campaigns dressed up as judicial grievances. With this already coming from magistrates in European democracies under an established rule of law, American officials have every reason to worry about a new prosecutor reflecting the "world opinion" enshrined in multinational bureaucracies.
The U.N., for example, recently proposed a war crimes investigation of the Israeli seizure of Jenin, where tales of massacres turned out to be Arab propaganda lies. It proposed no investigation of sending suicide bombers to attack civilians in markets or banquet halls, or of desecrating Christian shrines.
In recent years the U.S. was railroaded off the U.N. Human Rights Commission, with the help of the Swedes and European Union. The U.S. felt it had no alternative but to withdraw from the U.N. Durban conference on racism, as earlier it withdrew from a politicized UNESCO.
Curiously but predictably, American support for an unrooted world prosecutor comes from many of the same voices who recently changed their minds on the U.S. independent counsel law, first championing it and later complaining that Kenneth Starr and company were too independent. Some, including this newspaper and Mr. Starr himself, warned early on that prosecutors need to be anchored in the executive branch accountable at elections.
The Bolton letter to the U.N. resolves the status of a signed but unratified treaty. The 1969 Vienna Convention on the Law of Treaties provides that a state that has signed a treaty subject to ratification is obliged not to undercut it "until it shall have made its intention clear not to become a party to the treaty." The Kyoto environmental accord and the Comprehensive Test Ban Treaty are also signed but unratified; indeed the Senate has already rejected the CTBT. If the Senate's Constitutional power to ratify means anything, unratifiable treaties should be dispatched by the procedure just established with the ICC rejection.
This would of course produce further howls about the U.S. refusing to follow enlightened opinion. But the world also looks to America for such things as bailing out failed peacekeeping efforts in the Balkans. If world opinion wants the U.S. to go along with the likes of the new court, it's time for world opinion to grow up and get serious.
Mr. Bartley is editor of The Wall Street Journal. His column appears Mondays in the Journal and on OpinionJournal.com.
