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Rome’s New Empire

By David Hazony




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I
n July 1998, at the end of the most blood-soaked century in human history, the nations of the world gathered in Rome under the auspices of the United Nations and voted to establish an International Criminal Court (ICC). This new tribunal, to be located permanently at the Hague, would be empowered to investigate, charge, and convict any person in the world who had carried out “genocide, crimes against humanity, war crimes, [and] the crime of aggression.” With the announcement of the agreement, UN Secretary General Kofi Annan proclaimed that the court would be “a gift of hope to future generations and a giant step forward in the march towards universal human rights and the rule of law.”
On the face of it, the ICC sounds like a good idea. But there is a problem with it: The idea of an international court empowered to try the citizens of various countries without their governments’ consent is a systematic challenge to state sovereignty, the central principle on which the present international order rests. Not surprisingly, this is an idea that fits well with the agenda of the European Union, which is increasingly committed to undercutting the sovereign powers of independent states and transferring these powers to international institutions—and preferably to those located in Europe. This idea has proven more difficult to swallow for another group of states, which have a clear need to maintain their national independence and sovereignty in the face of European wishes to the contrary—including the United States, Great Britain, Russia, India, and Israel, to name a few.
It was not until the terror attacks on New York and Washington a year ago that it began to become clear that the United States, which now has a war to fight, would not go along with the court, and in recent months President Bush has made disabling the ICC a foreign policy priority. In May 2002, the Bush administration announced it was withdrawing America’s signature from the Rome statute, and in July the U.S. threatened to veto all future UN peacekeeping missions unless American soldiers were guaranteed immunity from prosecution. Over the summer, the administration launched a campaign to sign bilateral treaties with as many countries as possible committing the parties not to extradite one another’s nationals to the ICC. To give this position the force of law, Congress passed the American Service-Members’ Protection Act, which bans all government cooperation with the ICC, makes illegal any efforts to conduct or offer material support for its investigations, gives the president authority to deny military aid to any country refusing to sign a non-extradition treaty with the U.S., and even authorizes him to use “all means necessary” to free Americans held for trial by the court.
The Europeans, however, have not backed down. Having reached its statutory threshold of 60 ratifying states, the ICC officially opened for business on July 1, 2002, and its jurisdiction now extends to over 80 countries. Comprising 18 judges and an independent prosecutor, the new court will have the power to issue warrants, subpoena witnesses, and obligate member states to turn over evidence. The ICC, which is likely to begin hearing cases as early as next year, is now a fixture of the international landscape.
Instead of uniting humanity, however, the International Criminal Court has succeeded in doing the opposite. It has, in effect, created a new dividing line in the global arena between two competing conceptions of world order. On one side are those countries willing to cede significant aspects of their sovereignty by placing themselves under a world legal framework dominated by Germany, France, Belgium, and the Scandinavian states; on the other are those nations, led by the United States, that continue to see sovereignty as the principal bulwark for national freedom and international stability.
Where should Israelis and Jews see themselves in this nascent clash of civilizations? A sober assessment of the court’s powers and composition reveals that it is the Americans, not the Europeans, who have it right. The ICC is almost certain to become just as politicized as the many other international bodies created in a similar spirit over the past half century. Unlike those institutions, however, the ICC will enjoy wide powers of legal coercion that will make it a menace to democratic states seeking to defend themselves, and its presumptive superiority over elected national institutions will make it a threat to some of the fundamental principles on which free government is based. For democracies everywhere, accession to the Rome treaty represents a step backwards for accountable self-government and the rule of law. For small, embattled democracies like Israel, the results might be far worse.

 





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