Will Obama revive the ICC threat to the military?

In one of his last official acts as President, Bill Clinton signed the so-called "Rome Statute" creating an International Criminal Court (ICC). A supposed instrument of "international justice" for perpetrators of war crimes and crimes against humanity, the ICC is instead a massive power grab by an unaccountable pseudo-judicial body lacking the most elementary protections found in the U.S. Constitution.

President George W. Bush’s wise decision to withdraw the Clinton signature from the ICC prompted howls of protest from the usual quarters, notably proponents of world government and, not surprisingly, many Democrats in Congress. Unfortunately, with a Democrat now in the White House – and Mr. Clinton’s wife in charge at the State Department – there is a danger that President Obama will sign the Rome Statute and railroad it through the Senate.

The ICC’s kangaroo-court claim of power and jurisdiction is almost beyond belief. Defenders of the ICC say that it would have jurisdiction only when a given country’s judicial process – the U.S. court system, for example – has failed. But who decides when such a failure has occurred? That’s right, the ICC itself, in violation of American sovereignty and overruling the U.S. Constitution.

An American soldier hauled before the ICC would be subject to a "judicial process" featuring no right to a jury trial; retrials allowed for errors of fact (i.e., double jeopardy); admission of hearsay evidence; no right to a public trial (effectively providing for inquisition-like proceedings); and no right to a speedy trial or reasonable bail, amounting to unlimited detention. These features already are standardized in United Nations Tribunals for Rwanda and Yugoslavia, which advocates for the ICC point to as precedents.

Also relevant is the record of some of the champions of the ICC who have already served notice of their intended operating procedure. For example, in 2001 Spanish Judge Baltasar Garzon agreed to become honorary head of a group promoting the ICC. For the ICC proponents it was a good choice. Judge Garzon is a virtual apostle of extraterritorial jurisdiction, the heart of the ICC’s threat to Americans.

Judge Garzon’s claim to universal jurisdiction includes: an attempt to prosecute former U.S. Secretary of State Henry Kissinger (for alleged atrocities by anticommunist forces in Central America); Italian Prime Minister Silvio Berlusconi (for supposedly evading taxes); and our U.S. military at Guantanamo Bay and in Iraq. He even has indicated possible criminal prosecution of businessmen for, if you can believe it, excessive carbon emissions.

Lest anyone think we exaggerate the danger to American military personnel being hauled before the ICC on legally specious grounds should take into account Judge Garzon’s penchant for upending the presumption of innocence – the very core of American jurisprudence. For instance, last October, he issued a summons to appear for questioning for Russian State Duma Deputy Vladislav Reznik. Judge Garzon contended that Mr. Reznik had received payments from businessman Gennady Petrov, who Judge Garzon had earlier arrested in a nighttime raid, during which he, his wife and 10-year-old daughter were forced at gunpoint to stand naked while police officers ransacked their house. Under Franco-era laws still in effect, Mr. Petrov, who has been accused of money laundering despite all transfers of funds being declared to the Bank of Spain and Agencia Estatal de Administracion Tributaria in utmost transparency, can be held without charges or bail for up to four years. Mr. Reznik, who, as a Duma deputy enjoys immunity from prosecution, had simply purchased property from Mr. Petrov in full accordance with both Spanish and Russian laws, nonetheless, prompting Judge Garzon’s judicial inquiry.

So, why should Americans care about a Spanish judge targeting a couple of Russians who may or may not be guilty of any wrongdoing? Just this: the same standard Judge Garzon has put into practice in Spain will become standard operating procedure by the ICC against American military personnel. Forget guilt or innocence, the Constitution or any relevant treaty obligations. Just make a wild accusation against an unpopular target, chuck him in the slammer, and worry about the proof later. After all, in view of the strident anti-Americanism that prevails in many parts of the world, the arrest of an American soldier, whether justified by credible evidence or not, would be greeted with general acclaim.

The fate of an American serviceman should not become the football of a global popularity contest or of megalomaniacal political agendas. It is imperative that any effort by the Obama administration to pull the stake out of the heart of the ICC be quickly killed.

James Lyons, U.S. Navy retired admiral, was commander in chief of the U.S. Pacific Fleet, senior U.S. military representative to the United Nations, and deputy chief of naval operations, where he was principal adviser on all Joint Chiefs of Staff matters. Adm. Lyons is chair of the Center for Security Policy’s Millitary Committe.