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A Global Court of Injustice - Jan. 5, 2001

By James L. Hirsen, J.D., Ph.D.
contributor to

In July of 1998, 120 nations met in Rome and voted to endorse an international criminal court. According to its own terms, when the treaty is ratified by 60 nations, it will be capable of exerting universal jurisdiction over every human being on the planet.

This type of criminal court has been on the wish list of the United Nations since 1947. When fully engaged, the court will be able to bring individuals from nations throughout the globe, who are accused of genocide, war crimes, crimes against humanity, aggression, and additional crimes that may be added in the future, in front of a panel of select judges.

Supporters of the court have made it clear in their speeches and preparatory writings that they intend to utilize the vast power of such an entity to enforce a host of treaty obligations, including human rights, economic and environmental provisions. If a nation does not care to participate, this does not mean that its citizens are exempt from the court's reach. The unusual language contained in this international initiative extends its jurisdiction to individuals in nations that did not opt to be a party to its terms.

On December 31, in the waning minutes of the year 2000, the Clinton administration signed this treaty and sent a message to the entire world - the American system of criminal justice is simply inadequate. It does not accommodate a "progressive" view toward 21st century international crime.

Although the stated purpose of the new brand of international tribunal is to deal with war criminals, these issues have customarily been addressed through ad hoc tribunals, usually set up for specific crimes and given prescribed authority. In this way the scope of the tribunal is limited, which provides a degree of protection and respect for the individual sovereignty of nations.

The very nature of the ICC is wholly inconsistent with American jurisprudence. It creates a one-stop judicial center, with the authority to apply its doctrine of justice to an amorphous list of criminal activity.

But we have a proud history in our nation. Unlike the ICC, in America we separate the functions of investigation, prosecution, trial and appeal to ensure fairness and avoid corruption. Many of the safeguards, for which countless courageous Americans have given their lives, are simply not present in the ICC structure.

The U.S. justice system places the burden of proof on the prosecutor. In our nation, we abide by the maxim of innocent until proven guilty. Not so under an international criminal court.

Place yourself in this situation. You are unexpectedly detained by the newly instituted International Criminal Court. You find yourself in front of a jury, but not an impartial jury of your peers. Rather, you are staring into the eyes of a panel of appointed bureaucrats.

The judicial officials hail from remote parts of the world, countries such as Iraq, China, Cuba and North Korea. They share neither your country's system of governance nor its notion of civil liberties. Instead, you stand before a group that epitomizes the lowest common denominator of criminal justice.

You are given no idea as to the length of time the process will take. The right to a speedy trial is not a consideration. After all, temporary tribunals, which were a preview of the ICC, arrested and imprisoned suspects for months and even years before any judicial proceedings began.

If convicted, your only right to appeal will be to the very same court that has rendered the conviction. And double jeopardy? Being tried for the same offense twice? Protection against such violation is nonexistent. If for some reason the prosecution loses its case against you, it is free to try again.

Will the court explain the nature of the charges? Will it conceal the identity of witnesses? It is within its province to do so. The fear inside you intensifies. It is warranted.

Hopefully, no citizen of the United States, or any other country for that matter, will have to endure this kind of monumental legal nightmare. Secretary of Defense William Cohen is on record as opposing the treaty. Incoming Secretary of Defense Donald Rumsfeld shares the sentiment. And now Senator Jesse Helms strives to rescue us from the misguided action of the Clinton administration when it signed the treaty. Senator Helms promises legislation to protect our citizens against global prosecution. He deserves our unqualified support and gratitude.

The judicial system in America, imperfect as it sometimes may be, is the envy of the world. As a people who profess to cherish freedom, we dare not rest until the signature on this mockery of justice is rescinded. The ICC must be boldly repudiated, and the United States should lead an effort among the nations of the world to reject this defective attempt to define down global justice.

Reproduced with the permission of . All rights reserved

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James L. Hirsen, J.D., Ph.D.

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