|
By Marion Edwyn Harrison, Esq.
There are, of course, few successful conspiracies in history. Much of what superficially
appears to be a conspiracy or often is cited as a conspiracy is more coincidence than
conspiracy. Maybe the Gun Powder Plot was a conspiracy (amateurish though it was) but call
anything a conspiracy and attract attention.
The latest troublesome or
potentially troublesome manifestation - term it as you will - concerns the International
Criminal Court, sometimes called the World Court, which officially sits in The Hague,
Netherlands, but can hold court any place that will welcome, or at least tolerate, it.
There is so much commentary on the subject that a brief summary should suffice for this
Commentary. The Court was established in 2002, to be permanent, to prosecute and try men
and women, of whatever nationality, for crimes against humanity, genocide, war crimes,
however it may define those categories. The United States has not ratified the so-called
Rome Statute, which set up the Court. As of this writing, 105 nations - including some
which realistically if not legally are pseudo-nations - have ratified it. Madagascar is
scheduled to ratify next month. Another 40 have signed but not ratified. The two countries
with the world’s largest populations, China and India, have done neither. Nor has the
United States, which, notwithstanding our shaky economy, is the richest country.
At the moment the Court has 16
Judges. Some hail from countries most analysts would rate economically significant, and
arguably sophisticated: in alphabetical order, Canada, Germany, Italy, United Kingdom.
Some come from countries of perhaps less stature: Brazil and [South] Korea. Others are
from countries of varying measures of size, sophistication, economy: Bolivia, Bulgaria,
Costa Rica, Cyprus, Finland, Ghana, Latvia, Mali, South Africa. One’s opinion of the
jurisprudence of any of these countries may not be relevant.
The question is: Should American
citizens be tried for an alleged “international” crime by a court of foreigners
applying its version of international criminal law and its procedures and with no
safeguard under the Constitution of the United States or our criminal precedents,
protections and procedures? Neither the George W. Bush Administration nor Congress has
signified the affirmative. My own view is also wholly negative but that’s not the
point of this Commentary.
Rather, the point is a question:
What is the top lawyer in the Department of State up to? And by what authority or
acquiescence?
The top lawyer, whose title always
has been Legal Advisor rather than General Counsel or Solicitor (as in other Cabinet
Departments, except Justice), unquestionably is brilliant and well educated. He also is
what a detractor might term indiscriminately internationalist. Of course, he’s
entitled to his personal opinion. But a professional opinion?
The Legal Advisor, speaking
publicly at a Chicago conference, offered the view that the United States accepts the
reality of the Court, that we “. . . must acknowledge that the [Court] enjoys a large
body of international support . . .” and so forth. Quite clearly any such rhetoric is
contrary to, dismissive of, and potentially troublesome for, those of us who oppose any
American submission of jurisdiction to the International Court of Justice and for the
supposed position of the Administration.
The Department of State, last time
I looked, was part of the Executive Branch of the Federal Government. There arises a
question as to whether its top lawyer should be addressing the subject of World Court
jurisdiction at all except in his official role. Immediately following is the question as
to whether, by clear statement or by implication, he should be advocating American
participation in the Court.
Marion Edwyn Harrison is President of, and Counsel
to, the Free Congress Foundation
|
