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Friday, August 7, 2009

U.S. Secretary of State Hillary Clinton speaks as if the United States is the only country refusing to relinquish sovereignty by joining the International Criminal Court (ICC). However, out of 192 UN-member countries, roughly half (109) have agreed to join the ICC. As Michael Struet states in "Why Do States Join the International Criminal Court?":

...in a number of states, transitional regimes charged with ending a cycle of recent internal conflict have found it prudent to join the ICC, precisely because it offers an international bulwark against a return to routine political violence.

The most important conclusion we draw from this analysis is that deep structural factors heavily determine whether or not states will ratify a constitutional treaty.
The United States did not refuse to join the ICC because of party politics or ideology. The LA Times notes, "President Clinton was never fully satisfied with the result, waiting until the closing days of his administration to sign the treaty and declining to send it to the Senate for ratification." As Struet concluded, the reasons are structural and deeply embedded in our cultural history.

The American Revolution may have not taken place or succeeded had Great Britain not passed a mandate requiring all criminals against the King (or his soldiers) to be transported to England to receive a "fair" trial. As depicted by David McCullough, this was the deciding factor for John Adams to join the revolution. It is listed as an inexcusable act in the Declaration of Independence.

U.S. proponents of the ICC typically place full blame on President Bush (43), while arguing that the ICC will only have jurisdiction when U.S. courts are either unable or unwilling to prosecute. However, they fail to grasp the magnitude of this statute. Gary T. Dempsey commented on the matter:
The ICC will also become an unavoidable participant in the national legal process. Indeed, because it will set precedents regarding what it considers "effective" and "ineffective" domestic criminal trials, the ICC will indirectly force states to adopt those precedents or risk having cases called up before the international court. That constitutes an unprecedented change in the sources of national lawmaking, one that diminishes the traditional notion of state sovereignty.
The very existence of the ICC signifies that those member countries that did not join out of their self-interest to prevent political violence within their borders actually believe the people of every country hold the same values regarding laws and liberties.

The previously cited LA Times articles concludes:
The issue is not whether other forms of trial are legitimate; Americans are and should be subject to the criminal justice systems of whatever nation in which they are accused of crimes. The issue is whether the United States as a matter of policy should adopt, for the first time, one of those systems as party to an extra-national authority with power over anyone in the world. Our role should be to guarantee jury rights for the accused, not to give up and say that this protection is no longer fundamental because it's inconvenient in this new context.

Posted by Eleutherian

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