BY DONAVAN RINKER-MORRIS
Former Nuremberg prosecutor Benjamin Ferencz is likely to raise the highly controversial argument during his presentation Thursday that “law is preferable to war.” This argument is controversial because current members of Congress and the Administration recently accepted the American Servicemembers’ Protection Act (HR 1794 and S 857), which would ban U.S. financial support for the International Criminal Court (ICC) and would deny military assistance to countries that ratify the Rome Statute establishing the ICC.
In a feat of isolationism unmatched since Henry Cabot Lodge blocked the United States from participating in the League of Nations in 1920, Sen. Jesse Helms and Rep. Tom Delay have engineered U.S. opposition to the ICC. They join the legal consensus expressed by Iran, Iraq, Libya, North Korea and Yemen and reject the legal findings of the United Kingdom, Switzerland, South Africa, and the rest of the 120 signatories and 43 countries that have ratified the Rome Statute of the ICC since 1998.
It is ironic that American leaders feel no qualms about opposing the ICC, which has jurisdiction only over individuals accused of genocide, war crimes and crimes against humanity. Most likely, Helms and Delay do not support genocide, but rather, they oppose creating additional bureaucracy that can find individuals responsible for committing it. Unfortunately, no other judicial organ exists that is competent to try individuals worldwide who commit the most heinous acts.
Perhaps Helms and Delay wish to use American courts to prosecute individuals guilty of war crimes and genocide. They have expressed concern that the ICC will not ensure that the accused are tried by a jury and enjoy certain other due process rights enjoyed in an American court. Oddly, they have not rejected the tribunals created for Nuremberg, Tokyo, the former Yugoslavia or Rwanda — none of which featured jury trials.
Helms and Delay have also expressed fear that American servicemembers will be subjected to frivolous lawsuits by the ICC. The ICC rules of procedure make it highly unlikely that any American would ever be tried unless an American citizen clearly committed genocide, a war crime or other crime against humanity after 1998. Even if a citizen is accused, the ICC will defer to judgments of an American court provided certain minimal standards of justice are met.
Helms and Delay may prefer the creation of ad-hoc tribunals like those mentioned earlier rather than a permanent ICC. The fact that only four such tribunals have been created in over 50 years despite at least a dozen cases of genocide is not seen as a problem. However, ad-hoc tribunals are by nature created ex post facto — after the worst atrocities have already been committed. A permanent ICC is the clearest signal to those contemplating unspeakable acts that they will be held accountable.
The American Servicemembers’ Protection Act expresses other concerns. For example, in the event that British covert operations abduct American servicemembers or high government officials to try them for crimes against humanity, Section 8 of the Act authorizes the president to use force to rescue Americans from The Hague. Evidently, Helms and Delay are very concerned by this possibility, though most likely, the majority of Americans are not.
It is a sad testament that some American leaders, who have rushed to condemn terrorism and other atrocities, are opposed to creating judicial mechanisms for punishing the guilty. Unfortunately, Helms and Delay demonstrate that there are some who believe “war is preferable to law.” One hopes that Pres. Bush will not acquiesce to such problematic reasoning and will heed the counsel of visionaries like Ferencz.