US was right to nix the ICC

Robert Bartley on why the US was right not to reject the International Criminal Court.

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.

Although the ICC is supposed to advance the rule of law around the world, it is potentially--even inherently--inimical to the rule of law. And it is retrograde--premodern, actually--because it affronts the principle that every institution wielding power over others should be accountable to someone....

Because the ICC is a facet of the European elites' agenda of disparaging and diluting the sovereignty of nations, it is especially ill-suited to this moment, when the primacy of the nation-state needs to be reaffirmed. Terrorism is the leakage of violence out from the control of nations. And it cannot be controlled without enforcing the principle that a nation is accountable for terrorism that emanates from its territory.

In asserting these principles, and in other defenses of U.S. interests, the Bush administration is accused of "unilateralism." That term has become more than a mere antonym for "multilateralism." And more than (although it is this) a carrier of European resentment about U.S. refusal to pretend that Europe is a coherent and formidable political entity comparable to the United States.

Rather, the root of the European complaint of "unilateralism" concerns the U.S. refusal to move "up from" the defense of national sovereignty. The ICC--"up" there, untethered to the governance of any nation or settled legal system--presupposes, among much else, the universality of a common conscience. That presupposition is refuted by the very nature of the ICC's principal enthusiasts, the Europeans elites who are incorrigibly tolerant of Yasser Arafat's terrorism, but scandalized by U.S. "unilateralism."