Argument: Without a constitution, ICC cannot adequately protect rights

Issue Report: International Criminal Court


Gary T. Dempsey. “Reasonable Doubt: The Case Against the Proposed International Criminal Court”. CATO Institute. 16 July 1998 – it appears that many of the legal safeguards American citizens enjoy under the U.S. Constitution would be suspended if they were brought before the court. Endangered constitutional protections include the prohibition against double jeopardy, the right to trial by an impartial jury, and the right of the accused to confront the witnesses against him.

Gary T. Dempsey. “Reasonable Doubt: The Case Against the Proposed International Criminal Court”. CATO Institute. 16 July 1998 – Lost Rights?
Looking at the Yugoslavia tribunal as a model of what to expect from the ICC–and, where it is specific, the ICC draft statute itself–it appears that many of the legal safeguards Americans enjoy under the Bill of Rights, particularly Fifth and Sixth Amendment protections, would be unavailable if Americans were brought before the International Criminal Court. There are numerous examples of such potential deprivations. The Fifth Amendment to the U.S. Constitution states: “No person shall . . . be compelled in any criminal case to be a witness against himself.” The Yugoslavia tribunal recognizes no such right. The court can call on the accused to provide evidence against himself or herself, and if the accused refuses, the court can interpret that as evidence of guilt.

The Fifth Amendment also states: “No person shall … be deprived of life, liberty, or property, without due process of law.” One of the rights embodied in the concept of “due process” is that to clear notice beforehand that certain acts are unlawful.51 Laws that are unclear or otherwise ambiguous violate the due process clause and are therefore “void for vagueness.” In Jordan v. De George (1951), the Supreme Court explained its reasoning this way: The essential purpose of the “void for vagueness” doctrine is to warn individuals of the criminal consequences of their conduct. This Court has repeatedly stated that criminal statutes which fail to give due notice that an act has been made criminal before it is done are unconstitutional deprivations of due process of law.52

Under the ICC draft statute, there is no such right because many of the noncore crimes being proposed in it are not settled as matters of international law. Nevertheless, prosecutions of such crimes will be authorized.

The Fifth Amendment further states: “No person shall … be subject for the same offense to be twice put in jeopardy of life or limb.” The ICC draft statute recognizes no such right. As was explained earlier, if the ICC has the de facto authority to decide what constitutes an “effective” or “ineffective” national trial, then the accused conceivably stands to be tried twice for the same crime or crimes. The Sixth Amendment to the U.S. Constitution states: “In all criminal cases, the accused shall enjoy the right to a . . . trial by an impartial jury.” The ICC draft statute recognizes no such right. Instead, the accused will face a
panel of UN-appointed judges. The Sixth Amendment also states: “In all criminal cases, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The Yugoslavia tribunal recognizes no such right and has adopted a provision
known as Rule 75, which stipulates that the court can “order appropriate measures for the privacy and protection of victims and witnesses.”53 In practice, Rule 75 allows some witnesses to remain anonymous, not only to the public but to defendants and their lawyers. But as Diana Johnstone notes in the Nation, when “witnesses are granted anonymity . . . [and] cannot be cross-examined or charged with perjury,” the consequences of a lie will be “particularly grave in proceedings [like those of the Yugoslavia tribunal] where verbal testimony rather than material proof is the basis for conviction.”54 That is especially true, she says, given the fact that most of the Yugoslavia tribunal’s evidence is furnished by the same Bosnian authorities who convicted one
Sretko Damjanovic in 1993 of genocide in the murder of two Muslim brothers. Four years later, it was discovered that the two genocide victims, Kasim and Asim Blekic, were alive and well and living in a Sarajevo suburb. According to Johnstone, the Bosnian “court has not considered the fact that his ‘victims’ were never murdered as grounds for granting
Damjanovic a new trial.”55

The Sixth Amendment further states: “In all criminal cases, the accused shall enjoy the right . . . to have compulsory
process for obtaining witnesses in his favor.” Again, the Yugoslavia tribunal recognizes no such right. In fact, Mikhail Wladimiroff, lead defense attorney in the case against Dusko Tadic, remarked that even though the court “understood very well the issues we raised about the fairness of the trial if we were not able to produce the evidence as we wished . . . they could not take away a lot of limitations, such as the fact that there was no legal instrument to compel a witness to come to The Hague.” Wladimiroff added that that limitation caused an imbalance in the presentations of the prosecution and defense cases because “those people who were victims of Dusko Tadic were eager to have him tried and convicted and therefore they were quite
pleased to step forward and tell their story. . . . But no one who was involved with him would step forward and witness for the simple reason that they will point at [i.e., incriminate] themselves.” That imbalance was compounded by the fact that “there were so many things that we could not investigate. . . . Too little money was designated to be used for funding of the defense. Much more was designated to be used for the prosecution.”56

All of that led Nick Kostich, an American defense attorney for Tadic, to conclude that the Yugoslavia tribunal– the precursor of the ICC–did not accord his client the right to conduct a fair defense. Tadic “is not being given the right to confront his accusers,” and “the defense has not been presented with the names of witnesses,” he explained in 1995. “My most vicious, my most heinous client [in the United States] has more rights under the U.S. Constitution,” he added.57 The clear implication of Kostich’s assessment is that Americans brought before a Yugoslavia tribunal-type court–like the proposed ICC–will have fewer
rights than under the U.S. Constitution.

Steven Voigt. “An exposition on the International Criminal Court — its antagonism to constitutional due process and a just”. Renew America. 15 Aug. 2005 – I began this paper with a discussion of the founding fathers for an important reason. When we Americans debate international treaties such as the Rome Treaty International Criminal Court (the “ICC”), we must never forget the liberty that our founding fathers bequeathed to us and the founding documents that maintain this liberty. Today, 230 years after the Revolutionary War, standing steadfast as ever, we must utterly reject the wayward path of abandoning the bulwark of our liberty–the Constitution–as it was written, and God willing, as it will remain secured and preserved throughout the life of our great democratic Republic.

Nonetheless, the debate over the ICC goes far beyond safeguarding the Constitution. The Constitution is a mandate of limited authority designed to permit the spirits of citizens to triumph. Ultimately, it is America’s blessing of many good hearts–not a set of legal rights and prohibitions–that will chart our path.

Today, the peril to liberty is greater than ever before; we face opposition from all corners of the earth. Dictators and terrorists are eager to strike at our freedom with force. Communists and radical leftists seek to undermine our freedom with dangerous ideas cloaked beneath honeyed words.

We Americans reject both obvious and insidious efforts to undermine our liberty. It is the solemn responsibility of every nation to protect human rights and to justly govern by the highest moral standard. For the United States and for all Americans, it is an honor to hold high the torch of freedom, and we refuse to lower this beacon by even one mote into the surrounding sea of despair.

Instead, God willing, may this land always be a shining hill to the oppressed people of the world.

[…]The Rome Treaty ICC is without any doubt a treaty that would alter fundamental Constitutional rights. As such, the United States must remain steadfastly opposed to the treaty. In addition, while ratifying the treaty would make for abhorrent foreign and domestic policy, the federal government is not even authorized to do so without proceeding through the Constitutional Amendment process.

In whatever venue this treaty is considered and regardless how many times the radical left attempts to force it upon the United States, I am confident that the overwhelming majority of Americans will soundly reject it as an affront to their closely held liberty. An American taken before the ICC would find himself faced with a lack of fundamental Constitutional protections, unrecognizable court procedures, and potentially hostile judges. The substantive differences between the Rome Treaty ICC and our system of justice are manifold and disturbing. This treaty is unacceptable.