NICK EICHER, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 12th of August, 2019. Good morning to you, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard. First, news from the Supreme Court.
The justices will hear a dispute between a man who identifies as a woman and his employer who is a funeral home director. A lower court ordered the Christian-owned business to allow its male director to dress as a woman and present himself that way to grieving patrons.
The case involves the Civil Rights Act of 1964, which outlawed discrimination on the basis of race, religion, sex, or national origin. The question presented is a narrow one: must the act be read to include the modern concept of gender identity?
The court will hear the case in the new term that starts in October.
EICHER: OK, on to today’s Legal Docket.
Listener Jeff Palomino suggested this week’s topic.
He wrote in and said he’d been listening to a recent World Tour when he heard us refer to the International Criminal Court. That caught his attention. He is a military lawyer, after all, and he thought we ought to dive into it.
Well, before we get started, a time saver. We’re going to need to refer repeatedly to the International Criminal Court. So we’ll save time by just using the initialism ICC. When you hear ICC, just remember we’re talking about the International Criminal Court.
Also, by way of introduction, we should note the Trump administration has a firm position against the ICC. Let’s listen to the president’s National Security Advisor John Bolton. This comes from Bolton’s speech during last year’s remembrance of the September 11th attacks.
BOLTON: We will not cooperate with the ICC. We will provide no assistance to the ICC. And we certainly will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.
REICHARD: To learn why that is and what role if any the ICC ought to play, I called up two men well versed in the history and purposes of the court: John Bellinger and Richard Dicker.
Bellinger served in both terms of the George W. Bush administration as legal advisor. He’s a lawyer immersed in international law and public policy.
Dicker is director of the International Justice Program with Human Rights Watch. He was involved with the negotiations at the start of the ICC.
First, I asked Dicker about the general parameters of the court.
DICKER: The ICC is known as a court of last resort. That means that the ICC has no role to play unless the national courts, the domestic court systems where the crimes were committed fail to do their job in fairly and genuinely investigating these most egregious crimes like genocide, crimes against humanity, war crimes on a large scale.
So, a court of last resort. Sounds reasonable, except what drives National Security Advisor Bolton’s vigorous opposition to it? I asked Bellinger about that.
BELLINGER: So I know John very well. I worked with John for many years when he and I were both in the George W. Bush administration.And I understand John’s strong views about the ICC.But I think he goes too far. The ICC does play an important role in the world because sadly there are these terrible offenses that may be committed by military people, politicians, others in Africa and other places. If we don’t have any body that will investigate them, then they go unpunished. But we just need to make sure that when this court is set up that it doesn’t go off the rails or go too far.
And the ICC has gone off the rails in the past. The first chief prosecutor did sloppy investigations that resulted in cases thrown out. Witness tampering and witnesses who disappeared during the first ten years greatly harmed the court’s mission.
Bellinger chalks that up in part to the perils of a start up operation.
BELLINGER: Unfortunately, the treaty did have a lot of flaws in it. It has certainly had some problems getting going. It’s been expensive. It’s been inefficient. It’s had some bad judges and bad prosecutors. But all of that said, it has still done some useful work.
That “useful work” includes investigating genocide in Sudan, and bringing its president Omar al Bashir up for investigation. But only three convictions brought to fruition by the ICC have survived appellate review.
I asked Bellinger briefly to outline how American presidents viewed the ICC since the treaty was negotiated during the Clinton Administration.
BELLINGER: The Clinton administration had supported the concept of the International Criminal Court, but then ultimately voted against the treaty that created it and said that we would not join it. So the Clinton administration liked the concept but didn’t like it in reality.
The George W. Bush administration, which I served in, said at the very beginning of the term that the United States would not become party to the ICC. But then in the second term of the Bush administration, we did say that we would work with the court on certain cases. And the Bush administration agreed to refer the genocide in Sudan to the International Criminal Court. We still had some concerns about the court overall, but we felt that it was the only international court in the world that could bring the genocide to justice.
The Obama administration had a somewhat more supportive approach, but President Obama said that he didn’t want to become party either. So they said that they would work with the court on certain cases, but certainly did not give it a loving embrace.
That brings us to the Trump administration, whose thumbs down on the ICC didn’t come out of nowhere.
BELLINGER: But there’s a reason for that. That’s because in the last year, the prosecutor of the court for the first time in 17 years has begun an investigation or wanted to begin an investigation of the United States and the U.S. military. So there’s a reason.
As already mentioned, ICC rules say if the court system where the crimes were committed does its job, then the ICC has no role.
The United States has an extensive court system, including military courts of justice. And it’s not likely the United States would dismiss as ineffective its own system.
And what about another part of the Trump administration’s quarrel with the ICC? John Bolton laid that out, reiterating that the ICC claims automatic jurisdiction: that means it can prosecute individuals even if their own governments haven’t signed on to the ICC.
BOLTON: Thus, American soldiers, politicians, civil servants, private citizens, and even all of you sitting in the room today, are purportedly subject to the Court’s prosecution should a party to the Rome Statute or the Chief Prosecutor suspect you of committing a crime within a state or territory that has joined the treaty.
So, if you are a citizen of a country that’s signed on to the ICC, you are subject to it. And if you are not a citizen of a member ICC nation? The UN Security Council can still request an investigation in a country not part of the ICC, and a person in that country is also subject to it. Omar al Bashir is one example of that happening.
But Richard Dicker, again with Human Rights Watch, says the United States has a buffer:
DICKER: It’s worth adding that as a permanent member of the Security Council, the United States has the privilege of vetoing, that is killing, any resolution that the Security Council would adopt.
Still, another of Bolton’s concerns about the court is true.
DICKER: In practical terms, if US service members were charged with war crimes, killing of civilians in Afghanistan, and there had been no genuine investigation by the military justice system of the United States, then indeed in that exceptional case, the ICC prosecutor would have authority over that individual be she or he a U.S. national.
Both men noted that the ICC is sometimes the only game in town to bring international justice to atrocities.
It’s a nice wish that certain countries will police themselves, but it often doesn’t happen.
So what these two experts say the United States should do is make sure the ICC stays on the rails, and focuses on the right things, and not come after the United States for political reasons.
Bellinger sums it up this way:
BELLINGER: The ICC is a flawed and problematic institution generally and particularly when it threatens to investigate the United States. But that doesn’t mean that there is not a role for it in the world. I would say about the international criminal court what the famous Republican senator and later ambassador to the United Nations Henry Cabot Lodge said about the United Nations. He said, the United Nations is not intended to take us to heaven. It is intended to prevent us from going to hell.
And that’s this week’s Legal Docket.