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Week of: January 28, 2001

The International (Kangaroo) Court

by F.R. Duplantier

Do we really want to participate in an international court that routinely violates our standards of justice?

"The International Criminal Court (ICC) is a horrific institution from the standpoint of civil liberties," charges Ted Galen Carpenter of the Cato Institute. "It would make a mockery of even the most basic due process guarantees," he warns. "Rights that Americans take for granted would be greatly diluted or absent entirely in ICC trials." Carpenter points out that the ICC recognizes "no right to a trial by jury. A verdict," he notes, "is rendered by majority vote of a panel of appointed judges."

Carpenter emphasizes that "some -- perhaps all -- of the judges on a panel might come from countries where there is no concept of an independent judiciary or a tradition of fair trials. A defendant," he adds, "could even face jurists who were officials in regimes that were openly biased against his government or political movement. It gets worse," Carpenter continues. "There is no protection against double jeopardy," he remarks. "If a defendant is acquitted of charges, the prosecutor's office can appeal the verdict to an appellate body within the ICC. A hapless defendant could be subjected to prosecution for the same offense again, and again, and again. Nor is there any guarantee of either a speedy or a public trial."

Carpenter considers nonpublic trials "perhaps the worst feature of the ICC. The right of defendants to confront their accusers is highly conditional" in ICC proceedings, he observes. "The court would have the authority to conceal the identity of witnesses whenever it deemed that step to be appropriate. That is an especially pernicious dilution of due process standards," Carpenter complains. "Frequently, the ability to rebut testimony depends on knowledge of the witness' identity and background," he explains. "Such knowledge may yield important clues about possible personal malice, a history of prevarication, or a hidden financial or ideological agenda. Without that knowledge, cross-examination must be conducted in an informational vacuum, and a defense attorney operates at an impossible disadvantage."

Like most opponents of the International Criminal Court, Carpenter objects to the prospect of Americans being "tried before such a tribunal," but his opposition is even broader. He doesn't want anyone of any nationality to be subjected to such a travesty of justice.

Forget about liberals and conservatives, Democrats and Republicans. The struggle that has been going on in Washington for more than a century now is between centralizers and decentralizers, between those who want to cede all power to a global government and those who want to devolve power back to the states and the people from which it was usurped, between those who want to forsake national sovereignty and those who want to reclaim the prerogatives of the states. Both sides appreciate the possibilities of concentrated power: that's what excites the one and frightens the other. Both sides know that the best check on power is proximity to the people: that's why the one wants to distance it and the other wants to draw it near again.


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