Israel Matzav

Obama to subject US troops to 'International Criminal Court' jurisdiction?

What to my mind was one of the most important pieces of news on Saturday has been under-commented in the blogosphere. It's this article from Saturday's London Telegraph.

The signs are that the grandstanding Barack Obama is preparing to subject the United States to the jurisdiction of the ICC. In May, 2002 President Bush withdrew the United States from the Rome Statute which established the ICC. With America heading into global conflict, he had no wish to see US troops arraigned for alleged war crimes before a kangaroo court.

That was a wise decision and probably required in terms of the US Constitution. Already, however, the Obama administration is sending out very different messages. America helped defeat a proposal that the warrant for Bashir should be suspended for 12 months - which would have been a welcome respite for the soup kitchens of Darfur. This is a policy change of considerable significance.

Nor is it the only straw in the wind. Last month US Ambassador Susan Rice, in a closed meeting of the Security Council, supported the ICC, saying it "looks to become an important and credible instrument for trying to hold accountable the senior leadership responsible for atrocities committed in the Congo, Uganda and Darfur". A week later Ben Chang, spokesman for National Security Advisor General James Jones, took a similar line, telling the Washington Times: "We support the ICC in its pursuit of those who've perpetrated war crimes."

The next logical step is for the United States to sign up to the ICC. That would flatter Obama's ego as the conscience of the world. It would also put US servicemen at the mercy of any American-hating opportunists who might choose to arraign them on trumped-up charges before an alien court whose judges are likely to be ill-disposed towards America too.

Captain Ed picked up on this story, and while he acknowledges it's possible, he doesn't believe it's going to happen.

However, Warner doesn’t provide a lot of support for his argument.

The Bush administration didn’t oppose the ICC outright, only any jurisdiction over American actions. The expressions of support from Rice and Chang don’t lend themselves to an interpretation that the Obama administration plans on surrendering American sovereignty to the ICC, either sooner or later.

Of course, it doesn’t mean he won’t, either. Obama would face two hurdles if he attempted it: the US Constitution and the political firestorm it would provoke, especially in the military. The Constitution gives no provision for any foreign court or potentate to have jurisdiction over American military personnel or national leaders for their actions in service to their country. The courts would likely laugh any suggestion that they should approve the extradition of soldiers or former administration figures to a foreign court, no matter what Obama signs. The Senate would likely take a dim view of it once their military constituents started phoning Capitol Hill offices to discuss the risk this would place on them and their families.

The odds of this happening seem low. With a financial crisis taking most of the attention, I doubt the ICC will get much more than lip service for the next four years.

I believe Captain Ed is far too complacent. The Clinton administration had actually signed the Rome Treaty, and the Bush administration 'unsigned' it shortly before it went into effect. Clinton had actually convinced Ehud Barak, then the Prime Minister of Israel, to sign it as well, but Barak was thrown out of office before he could and Ariel Sharon - who was accused of 'war crimes' during his career several times - was smart enough not to sign it. In fact, even the Bush administration considered signing the Rome Treaty that created the ICC towards the end of his term.

While Gerald Warner, the blogger at the Telegraph who posted the story, looks at it as a backdoor way for the Obama administration to bring about 'war crimes' trials for several Bush administration officials - a level of vindictiveness that even Captain Ed doesn't believe Obama has in him - there are many other reasons why joining the ICC may be appealing to an Obama administration that is eager to make the US a 'citizen of the world' and not a country that first looks after its own interests.

Captain Ed is also incorrect about US courts rejecting ICC subpoenas or arrest warrants in the event that the ICC treaty is ratified. Under the US constitution, the President has the power to make treaties with the advice and consent of two thirds of the Senate. And once ratified, treaties have the same effect as a United States Federal law.

Treaty commitments of the United States are of two kinds. In the language of Chief Justice Marshall in 1829: “A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished; especially, so far as its operation is intraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument.”

“In the United States, a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract—when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the Court.” To the same effect, but more accurate, is Justice Miller’s language for the Court a half century later, in the Head Money Cases: “A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties of it.... But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country.”

While it may require further legislation for the US to actually be required to extradite US troops accused of war crimes from the US to foreign countries (unless the treaty is self-executing), I am not convinced that US ratification of the treaty would not enable the arrest of US troops abroad under ICC subpoenas.

I am also not convinced that it is impossible that the current Senate (especially if Al Franken gets in making 60 Democrats, plus adding the two Senators from Maine and Pennsylvania's Arlen Spector) would not ratify this treaty if Obama asked for it.

As to Ed's argument that foreign courts cannot gain jurisdiction over US soldiers who commit 'war crimes' abroad recall the Supremacy Clause (Article VI paragraph 2) of the United States constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.

And consider this argument - admittedly from proponents of the US joining the court:

Article II, Section 2 of the US Constitution states that the President, with the advice and consent of the Senate, may “make treaties, provided two thirds of the Senators present concur” including the power to surrender, resulting in extradition treaties. The principle allows for the extradition of US citizens for crimes committed abroad or crimes whose effects have been felt abroad but have been committed within the United States. The US has established precedent providing the process to allow for the surrender of its own national to a foreign court whose crimes were committed abroad and for crimes committed within the US whose effects were felt abroad.

Though critics argue that the extradition process does not allow the protection of certain rights guaranteed under the US Constitution, generally, courts of the US abide by a rule of non-inquiry, not examining the procedural or substantive rights guaranteed in a foreign jurisdiction, as long as the extradition is authorized under law (Garcia-Guillern v United States (5th Cir. 1971)). Only when procedures or punishment are so contrary to a federal court’s sense of decency, may the principle be reexamined (Gallina v. Fraser (2d Cir. 1960)). It is highly unlikely that proceedings at the ICC would fall under such an exception, as the ICC Statute contains many protections guaranteed under the U.S. Bill of Rights, including the right to a fair and speedy trial; the right to counsel; a prohibition on ex post
facto laws; the presumption of innocence; the right to remain silent; the right to cross-examination; protection against double jeopardy; the right to appellate review, among others.

Additionally, there is already a precedent for a US extradition to the ICC:

In the International Criminal Tribunal for Rwanda case of Ntakirutimana v. Reno [184 F. 3d 419 (1999)], the court authorized the extradition of Ntakirutimana to face charges of genocide and other crimes committed in Rwanda. The decision implied that extradition to foreign entities did not differ from extradition to states. By establishing a process functionally equivalent to extradition, the ICC could operate independently of US jurisdiction.

And what does all this have to do with Israel? Very simple. If the US were to join the ICC, there would be enormous pressure on Israel to do so as well. IDF soldiers are already a target for 'lawfare' without Israel being a member of the ICC. Joining the ICC would only make matters worse.

There is much cause for concern here.

posted by Carl in Jerusalem @ 10:53 AM