Jasper’s Kangaroo Court of International Injustice: A Response

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Introduction

Nearly fifty years after the Nuremberg and Tokyo trials, members of the 1998 Rome Conference voted on a treaty to establish a permanent international criminal court in which to prosecute people who commit the most egregious violations of human rights. Prior to the Rome Conference, international criminal tribunals were ad hoc and the status of human rights was hotly contested. While the newly established International Criminal Court effectively resolves many of the legal problems associated with ad hoc international criminal tribunals, such as the lack of permanent, universally applicable procedures for conducting international criminal trials, it does not settle philosophical questions regarding human rights. In order to determine whether human rights are justifiable, for example, one must conduct a philosophical investigation of human rights. Nevertheless, while many of the philosophical questions regarding the status of human rights continue to be debated, the legal trend regarding the establishment and enforcement of international human rights laws seems to be moving towards universalism. This is evidenced by the plethora of international conventions on universal human rights, the growing number of states that are signing and ratifying treaties on universal human rights, and the increasing willingness of the international community to punish, or at least sanction, states that violate international prohibitions on genocide, war crimes, and crimes against humanity.

In what follows, I present a combination of philosophical, political, and legal perspectives on universal human rights and on the newly ratified Rome Treaty. I begin with a philosophical analysis of John Locke’s justifications for universal human rights. The point of this analysis is twofold: first, it serves as a philosophical history of Locke’s justifications for universal human rights, and secondly, it serves to illustrate the impact that John Locke’s conception of universal human rights has on both domestic and international politics. I then move into a brief discussion of the international politics surrounding the establishment of international human rights laws and the problems associated with ad hoc international criminal tribunals. On many of the political issues regarding the establishment and enforcement of international human rights laws I am in agreement with the United Nation’s Lawyer’s Committee for Human Rights. For example, like the United Nations Lawyer’s Committee, I argue that the International Criminal Court will effectively remedy many of the political problems associated with establishing and enforcing international human rights laws. Third, I present William

1. Jasper’s pragmatic objections to the International Criminal Court and to the United State’s involvement in international politics. Contrary to what Jasper argues, I argue in favor of the International Criminal Court and in favor of the United States’ involvement in international politics. Hence, contrary to what Jasper concludes, I conclude that the United States ought to ratify the Rome Treaty and continue its involvement in international politics. Lastly, while I do not offer a philosophical justification for universal human rights nor for the International Criminal Court here, I do suggest one principled reason why the United States ought to support the International Criminal Court and continue its involvement in international politics.

John Locke and the Philosophy of Human Rights

Modern legal theory conceives of human rights as civil, political, social, and/or economic claims which no state, government, or private citizen may infringe without due process of law. This general conception of human rights was formulated initially by modern philosophers.[1] John Locke is one of many modern philosophers who became famous for such a conception of human rights. In fact, John Locke became so famous for his conception of universal human rights that, according to Michael Morgan, the publication of the Second Treatise lifted him to the status of a celebrity.[2]

Locke opens the Second Treatise by describing a state of nature in which all humans are born with human rights to freedom and equality.[3] According to Locke, all humans are born with human rights to freedom because they have the ability to reason.[4] For Locke, this entails that each human is morally obligated to respect the natural freedom of all other humans. Although he alludes to this position as early as Chapter Two of the Second Treatise, it is not until Chapter Six that we find an argument for it. Locke argues that God gave humans the ability to reason so that they could ascertain the law of nature. In addition, God allowed humans to have their own wills so that they could act in accordance with the law of nature.[5] Since God did not give children the ability to reason they cannot ascertain the law of nature. Therefore, children should not be allowed to act according to their own wills, but rather, they should be subject to the constraints of their parents. Once children have reached the age of reason, however, they are able to ascertain the law of nature, and therefore they ought to be at liberty to act according to their own wills.[6] Hence, for Locke, humans are free in the state of nature because God gave them the ability to reason.

Locke also argues that all humans are born with human rights to equality. By this, Locke means that all humans have equal right-claims or, to use Locke’s terminology, “titles” to their natural freedom.[7] He argues that God did not appoint rulers among humans. This is illustrated by the fact that neither the law of nature nor the law of God grants the right to rule to any particular human or to any group of humans.[8] Hence, since God did not appoint rulers among humans, all humans are naturally equal. Or, as Locke puts it, nothing is more evident than that humans who are born into the same species, rank, use of the same faculties, and born to the same advantages of nature, are also equal, unless God, by a clear and manifest fiat, had declared otherwise.[9]

Locke’s conception of universal human rights has had a significant influence on the domestic politics of many nations, particularly the United States and France. Locke’s ideas influenced some of the greatest American and French human rights advocates of the eighteenth century, most notably Thomas Jefferson and Marquis de Lafayette. [10] In addition, Locke’s ideas influenced the development of modern international human rights laws. In fact, David Forsythe, after defining liberalism in a way that is consistent with John Locke,[11]argued that the “international law of human rights is based on liberalism.”[12] He meant, of course, that international human rights law is based on Lockean liberalism.

Gone Universal: The Politics and Practice of Human Rights

While philosophizing about universal human rights began as early as the eighteenth century, the work of establishing and enforcing international human rights laws did not begin until the mid-nineteenth century, and, even then, the laws that ultimately withstood scrutiny were uncontroversial. For example, David Forsythe, in Human Rights and International Relations, points out that under the Geneva Convention of 1864 warring states were obligated to allow humanitarian aid—primarily medical assistance—to wounded, sick, or captured soldiers; and in the 1920s an International Labor Organization was created in order to develop and supervise labor regulations designed to protect workers.[13] These two provisions represented the extent of international human rights law at the turn of the century.

The lag-time between philosophizing about universal human rights and enforcing international human rights laws resulted from an unyielding assumption about absolute state sovereignty over citizens.[14] While states were willing “to sign general statements of principle,”[15] they resisted efforts to “interfere with what they . . . regarded as sovereign jurisdiction.”[16] But the atrocities of World War II would change this way of approaching the issues of establishing and enforcing international human rights laws forever. Nazi Germany’s systematic extermination and relocation of millions of Jewish people forced theretofore unconcerned world leaders to articulate, codify, and create mechanisms for enforcing international prohibitions on genocide, war crimes, and crime against humanity, irrespective of citizenship, religion, race, sex, or ethnicity. The international tribunals at Nuremberg and Tokyo were particularly successful at facilitating this process for they helped to define genocide, war crimes, and crimes against humanity.[17] Moreover, the Nuremberg and Tokyo tribunals established precedents that forever shattered the assumption of absolute state sovereignty over citizens. Even more, they gave rise to subsequent international conventions that were dedicated to codifying international human rights laws and establishing a permanent international court in which to prosecute those who violated international human rights laws.

Unfortunately, however, the promise of establishing international human rights laws rarely coincided with the practice of enforcing them. Since the Nuremberg and Tokyo tribunals there have been numerous violations of universal human rights but only two international criminal tribunals designed to prosecute the perpetrators: The Yugoslavia Tribunal of 1991 and the Arusha Tribunal of 1994.[18] The problems of impunity, judicial inefficiency, and the lack of permanent, universally applicable procedures for prosecuting those who violate international human rights laws were among the foremost justifications for the International Criminal Court. The newly established International Criminal Court has the capacity effectively to remedy the problems of judicial inefficiency and the lack of permanent, universally applicable procedures for prosecuting those who violate international human rights laws because it is a permanent court that has its own judges, prosecutors, investigators, and it own procedures for conducting an international criminal trial. However, as I indicate below, many American intellectuals, particularly William Jasper, have serious reservations about the International Criminal Court. In particular, they question whether the International Criminal Court could avoid being used as an avenue for those who dislike the United States to indict, convict, and incarcerate innocent Americans.

The Rome Conference: Establishing the International Criminal Court

In 1998, the Lawyer’s Committee for Human Rights proposed eight fundamental principles that, ideally, would ensure that the International Criminal Court operates independently, fairly, efficiently, and effectively. The Lawyer’s Committee proposed the following principles:

1. The Principle of Universal Jurisdiction: The court should have universal jurisdiction over genocide, war crimes, and crimes against humanity, for such crimes are exceptionally egregious and of particular concern to the international community as a whole.
2. The Principle of Automatic Jurisdiction: The court should have automatic jurisdiction over genocide, war crimes, and crimes against humanity.
3. The Ex Officio Proceedings Principle: The prosecutor should be able to initiate proceedings ex officio.
4. The Principle of Non-Interference: The International Criminal Court should be able to proceed without the involvement of the Security Council.
5. The Due Process Principle: The International Criminal Court should ensure the highest standards of fairness and of due process.

6. The Protection Principle: The International Criminal Court should ensure the protection of women, children, victims, and witnesses.
7. The Compliance Principle: All states should cooperate and comply with the International Criminal Court.
8. The Principle of Independent Finance: The international court should be financed out of the regular United Nation’s budget, that is, independently of States.[19]

More importantly, however, the Lawyer’s Committee offered four pragmatic justifications for the International Criminal Court. According to the Lawyer’s Committee, the International Criminal Court would: (1) efficiently address offenses of universal human rights and provide relief for the victims of such offenses; (2) counter judicial systems that are unable or unwilling to enforce international criminal laws; (3) provide a remedy for the limitations of ad hoc tribunals; and (4) provide a central enforcement mechanism for international criminal law.[20]

Since the United Nations Lawyer Committee’s work, members of the international community attended an international conference in Rome and voted to approve a treaty that established a permanent international criminal court, giving it automatic universal jurisdiction over war crimes, genocide, and crimes against humanity. According to the treaty, the International Criminal Court will be a complementary court, acting only when states are unwilling or unable to enforce international criminal laws—in particular, international prohibitions against war crimes, genocide, and crimes against humanity. The Court will consist of a Presidency, an Appeals Division, a Trial Division, a Pre-Trial Division, an Office of the Prosecutor, a Registry, and eighteen elected judges. Of the 160 states represented at the conference, 120 voted in favor of the treaty, twenty-six of which ratified it immediately. Among the 26 states that immediately ratified the Rome Treaty were Italy, Norway, Belgium, Canada, France, Greece, the Netherlands, Switzerland, Germany, and Spain.[21]Twenty-one of those who attended the conference abstained from the vote, and only seven states voted against the treaty, including the United States, China, Iraq, Libya, Yemen, Israel, and the Sudan.[22] The Rome Treaty went into effect on April 12, 2002 after the 60th state ratified it. Currently, more than 80 states have ratified the Rome Treaty; unfortunately, the United States is not among them.

Beyond Rome:

William Jasper Challenges the International Criminal Court and International Politics

Since Rome, there has been vehement opposition to the International Criminal Court, most notably from the United States and China. Many American intellectuals and politicians object to the International Criminal Court—for example, Ron Paul, Lee Casey, David Rivkin and many others.

In this paper, however, I will focus only on William Jasper’s objections to the International Criminal Court and, related to this, his objections to the involvement of the United States in international politics. In “Court of Injustice,” William Jasper articulates several reasons why the United States should not ratify the Rome Treaty. In addition, he argues that the United States ought to withdraw its membership from the United Nations and cease its involvement in international politics.

According to Jasper, the International Criminal Court is nothing more than an international kangaroo court of injustice, one that will soon become a tyrannical monster. He cites James Madison’s warning that “‘the accumulation of all powers, legislative, executive, and judicial, in the same hands, whether one, a few, or many . . . may justly be denounced as the very definition of tyranny.’”[23] He continues: “since the ICC . . . combines all of these powers,”[24] it is the tyrannical monster that Madison warned us about.

Jasper also objects to the International Criminal Court on the grounds that it will be unjustly “brought to bear against common American citizens.”[25]He argues that once Americans are indicted under the International Criminal Court they will face criminal proceedings that are foreign and contrary to the core principles of the Constitution of the United States and the Bill of Rights, in particular, Article III, section 2 of the Constitution, and the guarantees of a speedy and public trial found in the Bill of Rights.[26]This, he argues, illustrates that the International Criminal Court will have the power to repudiate American law. He writes:

In the Declaration of Independence, our Founding Fathers charged King George with combining with others ‘to subject us to Jurisdiction foreign to our Constitution, and unacknowledged by our Laws,’ as well as ‘depriving us, in many cases, of the benefits of trial by jury,’ and ‘transporting us beyond the seas to be tried for pretended offenses.’ The ICC confronts us with the prospect of returning to that tyranny.[27]

Third, Jasper objects to the International Criminal Court on the grounds that it has no standards of judicial accountability. He argues that there are no real provisions for impeaching judges or prosecutors who engage in politically motivated misconduct.[28] This means, in effect, that International Criminal Court prosecutors, acting for politically motivated reasons, could indict and try innocent Americans while International Criminal Court judges, also acting for politically motivated reasons, could rule against them with impunity.[29] This problem is exacerbated by the fact that the crimes over which the International Criminal Court has jurisdiction are defined in vague terminology. Again, anti-American prosecutors and judges could use this vague language against United States peacekeepers and United States military personnel whose work sometimes requires them to act forcefully. This represents another way in which Americans could be subjected to unwarranted and unfair criminal indictments and prosecutions.[30]

to its power and jurisdiction.[31] He writes: “once the treaty comes into force, it would extend the court’s jurisdiction over the nationals of countries that are not party to the treaty.” ^[32]This means, in effect, that the International Criminal Court will have the authority to judge the acts of United States officials even though the United States has not ratified the Rome Treaty. Jasper writes: “Never before has a treaty put itself over those who have not been included in it.” ^[33]When considered collectively, according to Jasper, these problems illustrate that international politics are subversive to American sovereignty. Moreover, they illustrate why the United States should reject the Rome Treaty, withdraw from the United Nations, and cease its involvement in subversive international politics altogether. Or, to put it in a slightly different manner, “The only genuine constitutionalist position for genuine Americans to take is to support efforts like Congressman Ron Paul’s American Sovereignty Restoration Act, H.R. 1146, to withdraw United States membership in the United Nations and cut all United States funding to the entire subversive U.N. apparatus.”[34]

William Jasper’s Kangaroo Court of Injustice: A Response

It is important to point out that many of Jasper’s arguments in “Court of Injustice” are logically fallacious. His references to the International Criminal Court as a “kangaroo court” and a “tyrannical monster” along with his references to the “genuine constitutionalist position” for “genuine Americans” illuminate just a few of his ad hominem fallacies. Although many of Jasper’s arguments are fallacious, he does however articulate several arguments against the International Criminal Court that merit substantial consideration. The arguments to which I will now turn my attention are: (1) that the International Criminal Court fits the very definition of tyranny insofar as it accumulates legislative, executive, and judicial powers in the hands of one body; (2) that the International Criminal Court will subject citizens of the United States to foreign criminal proceedings that are contrary to the principles of the U.S. Constitution and the U.S. Bill of Rights; (3) that the International Criminal Court has no provisions to prevent or remove those who engage in judicial misconduct or politically motivated indictments and prosecutions; (4) that the International Criminal Court’s jurisdiction over non-signatories represents a break with commonly practiced international law; and finally, (5) that international politics, in particular the politics of the United Nations, are subversive to the sovereignty of the United States and that the United States should withdraw from the United Nations and cease its participation in subversive international politics.

First, Jasper objects to the International Criminal Court on the grounds that it fits the very definition of tyranny insofar as it accumulates legislative, executive, and judicial powers in the hands of one body. This objection seems to follow from Jasper’s confused understanding of the Court’s role in international law. First, there is no international legislature. Contrary to what Jasper seems to think, bilateral and multilateral treaties concluded among sovereign nations create most international law. Peremptory norms and international comity are other sources of international law. The International Criminal Court does not create international treaties, international comity, or preemptory norms of international law. The sole function of the International Criminal Court is to adjudicate violations of international criminal law, particularly violations of genocide, war crimes, and crimes against humanity. Secondly, there is no international executive. The only international body that even resembles an international executive is the Security Council. Although the International Criminal Court and the Security Council are both bodies of the United Nations, they operate independently of each other. Contrary to what Jasper implies, the Security Council does not act on the determination of the International Criminal Court, but rather, it acts on the determination of the Security Council members, primarily the five permanent members.

Further, Jasper objects to the International Criminal Court on the grounds that it would subject United States’ citizens to criminal proceedings that are contrary to their Constitution and Bill of Rights. However, there is nothing novel about citizens of the United States facing foreign criminal proceedings that are contrary to the principles of the Constitution of the United States and the Bill of Rights. The well-known case of Fay v. Public Prosecutor (1994) in which a citizen of the United States living in Singapore was found to be guilty of vandalism and sentenced to caning illustrates that United States’ citizens sometimes face foreign criminal proceedings that are contrary to the principles of the Constitution of the United States.[35]Just as foreigners who commit crimes on American soil are subject to the jurisdiction of American courts, Americans who commit crimes on foreign soil are subject to the jurisdiction of foreign courts. More importantly, however, the State Department is perfectly aware of the fact that citizens of the United States will sometimes face criminal proceedings that are contrary to the principles of the Constitution of the United States and the Bill of Rights. In fact, the official policy of the United States for cases in which their citizens feel that they have been subjected to unfair judicial proceedings in foreign countries is simply to have the citizen exhaust the remedies for redress in the country that has jurisdiction over the case.[36] The government of the United States will step in only if there has been a gross denial of justice according to international standards, not according to United States standards.[37]This is commonly practiced international law.

Jasper’s third objection concerns what he perceives to be procedural problems with the International Criminal Court. Jasper objects to the International Criminal Court on the grounds that it does not have provisions for preventing judicial misconduct or for removing officials who engage in judicial misconduct or politically motivated criminal indictments and prosecutions. While this is a legitimate concern, it is certainly not one that should prevent the United States from ratifying the Rome Treaty. First, the possibility of judicial misconduct is a potential problem for all judicial systems, even our own. However, just as the American justice system has safeguards that are designed to prevent judicial misconduct and politically motivated indictments and prosecutions the International Criminal Court also has safeguards that are designed to prevent judicial misconduct and politically motivated indictments and prosecutions. Some of the International Criminal Court’s safeguards are as follows: First, the International Criminal Court’s universal jurisdiction is limited to crimes against humanity, war crimes, and genocide. Accusations regarding such crimes must be authorized by states in order to proceed. This represents the highest standard of pre-trial scrutiny, one that the United States was instrumental in defining. Secondly, the International Criminal Court is a complementary court. That is, it acts only when national judiciaries are unwilling or unable to enforce international criminal law. This provision gives the United States the opportunity to investigate accusations against its citizens before the International Criminal Court can intercede. If the United States conducts an honest investigation and finds that prosecution is unwarranted according to United Nations’ standards then, ideally, the Court cannot intercede. Third, the International Criminal Court has a Pre-trial Division that is responsible for scrutinizing accusations brought before the court. In part, the point of having a Pre-trial Division is to filter out politically motivated indictments, false accusations, and indictments that are based on judicial misconduct. Even if a politically motivated indictment or an indictment that is based on judicial misconduct passes pre-trial scrutiny, the Security Council can delay a trial up to one year, giving the country of the accused time to investigate the accusation. Again, if the country of the accused conducts an honest investigation and finds that prosecution is unwarranted according to United Nations’ standards then, ideally, the International Criminal Court cannot intercede. Fourth, the judges elected to the Court are to be highly respectable and of impeccable credentials. Therefore, ideally, they will have no problems adjudicating cases according to United Nations’ standards. And, finally, there are procedures for removing Court officials who engage in judicial misconduct or politically motivated indictments and prosecutions. Ideally, these safeguards would protect peacekeepers, military personnel, and other citizens of the United States from judicial misconduct and from politically motivated indictments and prosecutions.

Now, let’s consider the worst case scenario: Imagine that the United States military is engaged in a conflict on foreign soil and that some of its members are accused of and indicted for committing war crimes. Further, imagine that the United States conducts an honest investigation and finds that the allegations against its military personnel are false but that the International Criminal Court’s Pre-Trial Division, acting for politically motivated reasons, nevertheless submits the case for prosecution and that the Court’s prosecutors and judges, also acting for politically motivated reasons, convicts the American military personnel of committing war crimes. Moreover, imagine that the United States submits the case to the International Criminal Court’s Appeals Division but that the Court’s Appeals Division, also acting for politically motivated reasons, refuses to accept that Court officials have engaged in judicial misconduct. Under these circumstances, it seems that the American military personnel would have no avenues for redress. Even worse, it seems that the United States would be obligated to accept the International Criminal Court’s ruling against its innocent military personnel. This scenario represents the worst of American fears with respect to the International Criminal Court.

To respond to these fears, it is important first to understand the ways in which the United States would be obligated to respect the International Criminal Court’s ruling. There is a common distinction in the philosophy of law between legal obligation and moral obligation.[38] Since the United States is currently a member of the United Nations, and since the Rome Treaty gives the International Criminal Court automatic universal jurisdiction over war crimes, as a matter of international law, the United States would be legally obligated to respect the Court’s ruling, irrespective of whether or not it ratifies the Rome Treaty. On the other hand, if the United States were to withdraw its membership from the United Nations, and if the United States stopped participating in international law altogether, then, although the International Criminal Court has universal jurisdiction over war crimes, the United States would have grounds for arguing that it is not legally obligated to respect the Court’s ruling.

Note also that even if the United States withdrew its membership from the United Nations and stopped participating in international law, and if its military personnel were guilty of committing war crimes and if the United States was unwilling to prosecute them, then, although the United States might not be legally obligated to respect the International Criminal Court’s ruling, the United States would nonetheless be morally obligated to respect the Court’s ruling. Here’s why. In part, Locke’s arguments for universal human rights are intended to illustrate that each human is morally obligated to respect the universal human rights of all other humans. Humans who fail to respect the universal human rights of others ipso facto give others—in this case, the International Criminal Court—justifiable reasons for acting against them. In the Second Treatise Locke writes:

And thus it is, that every man, in the state of nature, has a power to kill a murderer, both to deter others from doing the like injury, . . . and also to secure men from the attempts of a criminal . . . who having renounced reason, the common rule and measure, God hath given to mankind, hath by the unjust violence and slaughter he hath committed upon one, declared war against all mankind; and therefore may be destroyed. . . . And upon this is grounded the great law of nature, ‘who so sheddeth mans blood, by man shall his blood be shed.’ And Cain was so fully convinced, that every one had a right to destroy such a criminal, that after the murder of his brother, he cries out, ‘Everyone that findeth me, shall slay me.’[39]

Therefore, if the military personnel of the United States were guilty of committing war crimes and if the United States was unwilling to prosecute them, the International Criminal Court would be morally justified in acting against them and the United States would be morally obligated to respect the Court’s ruling.

Nevertheless, given the hypotheses that the United States military personnel are, in fact, innocent and that officials of the International Criminal Court have engaged in judicial misconduct, the United States would not be morally obligated to respect the Court’s ruling. Such a ruling would be contrary to the principles of fairness that the United Nation’s Lawyer’s Committee articulated for the International Criminal Court.[40] More importantly, however, the United States would not be morally obligated to respect the Court’s ruling because such a ruling would be contrary to the rule of law insofar as it was politically motivated and not grounded in established legal rules, principles, and procedures.[41] Hence, since the United States is currently a member of the United Nations, and since the Rome Treaty gives the International Criminal Court universal jurisdiction over war crimes, if a case such as the one hypothesized above were to occur, the United States would be legally but not morally obligated to respect the Court’s ruling.

Lastly, there remains the question of how the United States should respond if a case such as the one hypothesized above were to occur. First, the United States should pursue all of the International Criminal Court’s remedies for redress. This is consonant with the official policy of the United States for cases in which its citizens are subjected to unfair foreign judicial proceedings. If this fails, the State Department should explore its diplomatic options for seeking redress. This is also in accord with the official policy for cases in which citizens of the United States experience gross denials of justice in foreign courts. Finally, if legal and diplomatic avenues for redress fail, the United States would be justified in defying the International Criminal Court’s ruling on moral grounds. In other words, the United States would be justified in exercising its “right to resistance.” This is in accord with what John Locke argues in Chapter Eighteen of the Second Treatise. In short, Locke argues that whenever a governing body extends its authority beyond its legal perimeters those who are governed by that body have a right to resist it.[42] For cases such as the one hypothesized above, resistance might entail that the United States refuse to extradite the accused—assuming that they are not already in the International Criminal Court’s custody. Secondly, resistance might require that the United States seek the help of its allies and Non-Governmental Organizations in an effort to pressure the Court into releasing its citizens—if they are in the Court’s custody. Third, it might require the United States to withdraw its funding from the United Nations as a way of pressuring the International Criminal Court to release its citizens. And finally, in extreme cases, it might entail that the United States use force to resist the Court. All of these options would be morally justified in cases such as the one hypothesized above.

Now, let’s return to Jasper’s final two objections. Jasper objects to the International Criminal Court on the grounds that the Rome Treaty extends the Court’s jurisdiction over citizens of non-ratifying countries. According to Jasper, “never before has a treaty put itself over those who have not been included in it.”[43]This claim is false. First, the Vienna Convention on the Law of Treaties obliges all states to adhere to peremptory norms of international law, irrespective of whether or not they have ratified the treaty creating the peremptory norms.[44] This means that states that have not ratified a treaty that creates peremptory norms of international law are nonetheless obliged to adhere to the peremptory norms of the treaty. Secondly, the United States has prosecuted violations of important international treaties despite the fact that the perpetrators were citizens of non-ratifying countries. For example, in case of the United States v. Wang Kun Lue, the United States prosecuted Wang Kun Lue under the Hostages Treaty despite the fact that he was a citizen of a country that had not ratified the 1979 Hostage Convention. In this case, the Court found that the Hostage Treaty requires all countries that have ratified the treaty to take “effective measures for the prevention, prosecution, and punishment of all acts of taking hostages,”[45] irrespective of whether or not the perpetrators are from ratifying countries.

Finally, Jasper calls for genuine Americans to support Constitutionalism, arguing that international law is subversive to the laws of the United States and that, for this reason, the United States ought to withdraw from the United Nations. Again, Jasper’s objection seems to follow from a confused understanding of international law. First, contrary to what Jasper seems to think, ratified international treaties are consonant with United States law. Article II, section 2, of the Constitution of the United States gives the President the power to make treaties provided that two-thirds of the United States Senate concurs. This represents only one of several ways in which treaties may become American law. In addition, Article VI of the Constitution of the United States says that ratified treaties are the supreme law of the land. This means, in effect, that international treaties that are ratified by the Senate are consonant with, not contrary to, American law. Secondly, the United States accepts customary international law, that is, international comity, as apart of American law. This means that if some element of a treaty becomes commonly practiced international law then that practice becomes a part of American law, irrespective of whether or not the United States ratifies the treaty in question. Justice Gray states this in Paquete Habana.[46] Here, Jasper fails to illustrate that international law is subversive to American law. Therefore, his conclusions that the United States ought to withdraw from the United Nations and that the United States ought to cease its participation in international politics are unjustified. In the absence of cogent reasons for the withdrawal of the United States from the United Nations and international politics, the United States ought to continue its participation in the United Nations and international politics.

Conclusion

In the final analysis there is, at least, one principled reason why the United States ought to ratify the Rome Treaty and continue its participation in international politics, namely, that the Principle of Consistency requires it. First, the United States has a long history of supporting international criminal tribunals. In fact, American judges and attorneys played key roles in the Nuremberg, Tokyo, and Rwandan trials. Moreover, the United States had supported the establishment of the International Criminal Court until the provision giving the Security Council the power to veto cases remanded to the Court for adjudication was rejected. Secondly, the United States has a long history of participating in international politics, particularly politics concerning international human rights. In fact, American diplomats, ambassadors, and United Nations’ delegates, in particular, Eleanor Roosevelt, played a key role in convincing the United Nations to adopt the Universal Declaration of Human Rights. Because the United States has a long history of supporting international criminal tribunals, and because the United States has an even longer history of participating in international politics, in the absence of cogent reasons for non-ratification of the Rome Treaty and withdrawal from international politics, the United States ought to ratify the Rome Treaty and to continue its participation in international politics.

Notes

[1] My definition. This definition represents a general 17th century notions of human rights. For example, cf. John Locke, Second Treatise of Government; Jean-Jacque Rousseau, The Social Contract; and Karl Marx, On the Jewish Question. Although Hartvig Frisch, in Might and Right in Antiquity (New York: Arno Press, 1976) identifies various discussions of natural rights prior to modern philosophy, Isaiah Berlin, in Two Concepts of Liberty, in Readings in Social and Political Philosophy, ed. Robert Steward (Oxford: Oxford UP, 1996) notes that the notion that all humans have right-claims to certain freedoms, which no state, government, or private citizen may infringe without due process of law is a particularly modern notion of human rights, one which begin with modern social and political philosophy (92-94).

[2] See the editor’s introduction to the Second Treatise of Government in Classics of Moral and Political Theory, ed. M.L. Morgan, (Indianapolis: Hackett, 1992) 734.

[3] John Locke, Second Treatise of Government, 2.4-5. Here, Locke actually uses the term “natural” rights. However, for the sake of consistency, I will use the term “human” rights.

[4] Locke 6.63.

[5] Locke 6.58.

[6] Locke 6.58.

[7] Locke 6.61.

[8] Locke 1.1.

[9] Locke 2.5.

[10] Locke 733-734.

[11] David Forsythe, Human Rights in International Relations (New York: Cambridge UP, 2000) 31.

[12] Forsythe 217.

[13] Forsythe 24.

[14] Forsythe 24. See 17-19 in which Forsythe’s discusses the Westphalian system of international relations, that is, the notion that states have absolute sovereignty over its citizenry, and how this notion often clashed with that of international human rights, particularly when such rights were imposed on states that did not recognize them.

[15] Paul Lauren, Power and Prejudice: The Politics and Diplomacy of Racial Discrimination (Boulder: Westview Press, 1996) 28.

[16] Lauren 28.

[17] The Lawyer’s Committee for Human Rights, “Crimes Within the ICC’s Jurisdiction and Essential Elements of Their Definitions,” International Criminal Court Briefing Series 1.3, 1997.

[18] For examples of human rights violations that have gone unpunished visit www.OAS-Castillo/chapterV.cub.html.

[19] The Lawyer’s Committee for Human Rights, “Principles of Fairness for the ICC.” http://www.lchr.org/icc/princ.htm.

[20] Lawyer’s Committee.

[21] Lawyer’s Committee.

[22] Lawyer’s Committee.

[23] William Jasper, “Court of Injustice.” In The New American, http://www.thenewamerican.com 2.

[24] Jasper 2.

[25] Jasper 2.

[26] Jasper 2.

[27] Jasper 2-3.

[28] Jasper 3. My emphasis.

[29] Jasper 3.

[30] Jasper 5.

[31] Jasper 6.

[32] Jasper 7.

[33] Jasper 7.

[34] Jasper 7. My emphasis.

[35] See Fay v. Public Prosecutor, [1994] 2 SLR 154.

[36] M.M. Whiteman, Digest of International Law (Washington, D.C.: U.S. Govt. Printing Office, 1973) 906.

[37] See Article II of the General Claims Convention 43 Stat., Pt. II, 110, 112. cf. Chattin v. United Mexican States, 4 U.N. Repts. of Intl. Arb. Awards 282 (Mexico/U.S.A. Gen’l Claims Comm’n).

[38] See John Finnis, “Natural Law and Natural Rights,” and H.L.A. Hart, “Positivism and the Separation of Law and Morals,” ed. Keith Culver (Orchard Park: Broadview, 1999).

[39] Locke 2.11.

[40] The Lawyer’s Committee for Human Rights, “Principles of Fairness for the ICC.”

[41] See Joseph Raz, “The Rule of Law and its Virtue,” Reading in the Philosophy of Law, ed. Keith Culver (Orchard Park: Broadview, 1999) 13-27.

[42] Raz. See also Locke’s Second Treatise 18.206, in which he writes: “But they may be questioned, opposed, and resisted, who use unjust force, though they pretend a commission from his, which the law authorizes not.

[43] Jasper, “Court of Injustice” 7.

[44] See the Vienna Convention on the Law of Treaties, http://www.un.org/law/ilc/texts/treatfra.htm cf. Articles 53, 64, and 71.

[45] See U.S. v. Wang Kue Lue, 134 F.3d 79 (2nd Cir. 1998). My emphasis.

[46] See Justice Gray’s opinion Paquete Habana, 175 U.S. 677 (1900).

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