I wanted to follow up on Trunk’s post regarding what is wrong with the ICC. As I have suggested in the past, to me it comes down to the fact that the ICC turns control of issues regarding crime and punishment to a body made up of entities that don’t share our interests or values. To some extent, something similar is true of anything other than a tribal justice system, including our own. We turn over control of criminal matters to state governments, many of which don’t impose capital punishment even though most of us favor the death penalty in certain instances. In addition, juries sometimes render decisions based on the race of the defendant, the victim, or both. Fortunately, though, the outcomes in our criminal cases are, for the most part, roughly consistent with our core values and beliefs.
When we consider criminal law on the international scale, we see a very different picture. I have tried to point out fundamental differences between European values and beliefs regarding criminal law and our own. Not only does the European community ban the death penalty, it opposes life sentences. or even lengthy ones. Factors that we regard as extraneous in an ideal criminal justice system, such as the economic status of the criminal or the political views of the victim, are often regarded as relevant in Europe (for example, see my post a few weeks ago about the light sentence imposed on the murderer of the Dutch anti-immigration candidate for prime minister). More generally, the lack of a community of interests and values between the U.S. and the Europeans should be apparent to anyone who followed the run-up to the war in Iraq or who has paid attention to European views about Israel. The disparities are just too profound to make the Europeans viable partners in a criminal justice system, especially one that, like the ICC, deals with matters of international politics.
And that’s just the Europeans. Communist countries and third world dictatorships get to participate in outfits like the International Criminal Court too. In my very limited experience in this area of the law, I encountered cases where judges were from China and Morocco. And nations like these don’t just participate by supplying judges. It is my understanding (and here I admit that I’m pushing my knowledge of international criminal law to its limits) that in the 1970s, third-world liberation philosophy began seeping into international criminal law. Third world dictatorships began insisting, with some success, essentially two sets of rules of war, one for the powerful western “imperialist” powers and another for the disadvantaged “freedom fighters” who oppose them. During the war with Iraq, I heard international law experts attempt to “justify” some of the treacherous Iraqi practices by reference to the “liberationist” strands that have crept into international law. And these days, Europe is even more receptive to these tendencies than in the 1970s.
Many people yearn to be part of “one world.” Others are embarrassed not to at least be part of noble sounding organizations formed by nations that we are accustomed to respecting. But yearning and unwarranted embarrassment are not substitutes for the sober thinking that must determine our decisions about fundamental issues of national sovereignty.
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