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September|October 2002
A Penny Saved By John Swansburg
Effective Command By Susan Benesch
The Disobedient Dozen By Josh Saunders
After the Rainbow By Megan Twohey
Go Dutch By Tom Geoghegan
The O.J. Effect By Wendy Davis

Go Dutch

The untapped promise of the International Criminal Court: It's the perfect forum for trying terrorists.

By Tom Geoghegan

If the United States is in a war on terror, isn't membership in the International Criminal Court our best strategy? The other day, a State Department spokesman tried to explain why it's so hard for the United States to pick off Al Qaeda: They operate in 60 countries; going after them requires not so much a war as a legal effort; and we're hamstrung by having to work with France, Egypt, and all kinds of other countries whose interests don't align neatly with ours. So if that's all true, why did we withdraw from the ICC?

It should have been obvious for months now that September 11 was a big, fat ICC-type crime, a world crime, too much for the criminal law of any single nation-state. The ICC was invented to prosecute perpetrators of genocide, war crimes, and crimes against humanity, including murder, enslavement, and torture.

Okay, it's true, terrorism per se isn't on the list; in fact, it was explicitly excluded as a separate category of crime under the statute because it was seen as too contentious. The human rights crowd themselves did not want the Rome Statute, which governs the ICC, to cover terrorism. Plane hijackings were already illegal under national laws. Who needed the ICC, too, to deal with them?

But no one was thinking a plane would smash into the World Trade Center, leaving more than 3,000 dead. So you could say now that the Rome Statute does cover September 11 because crimes like these are bigger than what any one country should have to deal with. Say, for example, a nuclear bomb goes off in Paris, and people die in Italy and Spain from radiation. How can that not be a crime for the ICC? Or if it's not, it should be.

Just look at the Rome Statute, Article 7. A "crime against humanity" is "an attack . . . directed against any civilian population . . . in furtherance of a[n]. . . organizational policy to commit such act . . . ." There's more to the statute than that, but it sounds like Al Qaeda to me. While the terrorists can't be loners, a prosecutor just needs to show a structure. Or under American racketeering law, an "enterprise." Lawyers in this country are expert at doing that.

Now suppose that months ago a prosecutor, someone of great stature, yes, let's say even Rudolph Giuliani, decided to go after Al Qaeda as if it were the Mafia, and assembled from around the world 100 hotshots as his assistants. Let's say, by now, he has already begun to pull out suspects from a Syria or wherever.

"But this is not the ICC's purpose," some will say. Nonsense. It's true that the ICC was and is intended first of all to go after heads of state, like Slobodan Milosevic. But the ICC is after all an infant court, its shape or power still partly undefined. It's a work in progress in just the way our own U.S. Supreme Court was in 1789. Who in 1789 would have predicted what, in a few years, under John Marshall, our own Supreme Court would do?

So the ICC could be a weapon against pirates like Al Qaeda, who operate outside the scope of any nation, on the high seas of cell phones and computer cafes. This would take work—it would take the United States leading the charge. Instead this sword, given to us at this Arthurian moment is, in a panic, to be left in the stone.

Just before September 11, that innocent time, the House of Representatives passed a bill to declare war on . . .the Dutch! I barely exaggerate. The American Servicemembers' Protection Act was, if anything, tantamount to a declaration of war. Because if at any time any American servicemember were to be tried by the ICC, then the President would be authorized, without further ado, to send in the U.S. Army, literally to attack . . . The Hague.

The bill passed in the Senate last month. The U.S. Embassy in The Hague said it couldn't "envisage circumstances" under which we would attack the Dutch. So for now, they're safe. But within the White House, a Moonie-like hysteria about the ICC keeps growing. We may now have to withdraw from all U.N. military missions (not that we dare risk many soldiers in them anyway) because of course America faces a huge risk : that one day, the ICC might prosecute a peacekeeper and, in effect, the U.N. itself.

The ICC could have been one way, maybe the only way, to execute the strategy that since September 11 we have proclaimed to the world—to be everywhere, in every country, where terrorists might go. Recently the Civil War historian James McPherson was trying to explain why the South's strategy was so inept. In an essay called "Failed Southern Strategies," he argues that a country's military strategy ought to have a one-to-one match with its national strategy. McPherson then looks at the Confederacy, under Jefferson Davis. The national strategy was: Leave the South alone. But the military strategy, under Robert E. Lee, was to take the war to the North.

McPherson's point is that to line up with the national strategy, the military strategy should have been to avoid battle, backpedal, trade space, survive. Instead Lee waged a war of aggression and ran up appalling casualties, and his military strategy ran counter to Davis's political one. McPherson's real point is: Make sure your strategy in the field is not going to undercut your national strategy.

But undercutting ourselves is exactly what we've done by pulling out of the ICC. To fight terror, we have a national strategy of being everywhere, in every country. Ultimately, though, with Black Hawk up or Black Hawk down, we aren't going into Syria, perhaps not even Iraq, much less the countries where the terrorists really are: Saudi Arabia, Egypt, Spain, Indonesia.

By not thinking about using the ICC, we have recklessly given up:

Universal Jurisdiction
The ICC is "everywhere," or inside the border of every signatory country. (There are now 139 signatories and 76 countries that have ratified the Rome Statute.) The United States is nowhere. Sure, it has committed, before the world, to wipe out terrorist cells all over the place. But our mixed-up legal strategy is to insist, paralytically, on a kind of (selective) hyper-sovereignty of the nation-state. So who is to coordinate the global war on terror? Hardly the United States. With the death penalty in place here, not even our allies will extradite to us.

Personal Jurisdiction
The ICC is the first worldwide court that has jurisdiction over people. That's why it's ideal for going after terrorists. To fight terrorists in dozens of countries, even with our army, all we can do is drop bombs on "failed states." That's like fighting the Mafia by nuking New York.

Coordinating Cases in a Single Court
This is like a better way to get the Mafia. Giuliani, as U.S. Attorney, put all his mob cases involving the Teamsters into a single case, before a single judge. It worked. All the mob cases went to the Southern District of New York, which, at least as far as Teamster corruption was concerned, became a world court.

Prosecutors use the RICO Act to pull cases in federal courts all over the country—into a single court, before a single judge. It works. It is, on the national level, a "universal" court. And why does it work? Evidence accumulates, instead of scattering. Wrongdoers can be hauled in from Seattle or Atlanta. The judge hearing the case doesn't come in cold, unaware of what's happened already and forced to learn slowly and piecemeal.

"Complementarity"
There is a better way: Thanks to the ICC, we could be inside the border of every country. The ICC gives each ratifying nation the option of using its own court to do what the ICC is set up to do. The national court in each country has to put limits on arbitrary governance. That could commit the courts of these countries to cooperate in a strategy against global terror. If not, the ICC's authority kicks in and it should go after the terrorists.

And who is to judge when a country isn't cooperating? An ICC that, if we were in it, with the Brits, Canadians, Dutch, and others of that ilk, we would have some influence over, maybe even big influence. In effect, the United States and its allies would have a limited but real ability to have a say about the court systems of Syria, of Egypt, in a way that we cannot even dream of now.

Why have we given up this treaty? Like Peter Pan, we're afraid to grow up and look around and realize our stature among the nations of the world. We pretend that we, by ourselves, will be the global court. Ultimately, we say, we will go into a country, pull out the terrorists, and bring them back here. Do we intend delicate behind-the-scenes coordination of a kind that we cannot manage here between our own CIA and FBI? Of course, we're not serious: not about blundering into dozens of countries. The ICC is serious.

Bush famously exhorted us to bring our enemies to justice, or bring justice to our enemies. Exactly. We have renounced the best way to bring terrorists to justice, because we think that, with our military, we can bring justice to the terrorists. We can't. In the end, the only real strategy to get into every place that harbors terrorists, by design or accident, is through the ICC.

We can try to shape it, just as we have shaped the U.N. Maybe we won't succeed. But the failure even to try puts all of us, not just a Lieutenant William Calley, at risk.


Tom Geoghegan is a Chicago labor lawyer and author of the new book In America's Court: How a Civil Lawyer Who Likes to Settle Stumbled into a Criminal Trial.

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