I’m not sure why I’m bothering, given that the entire internet is occupied with dress-related content today, BUT: Someone is wrong on the internet about the International Criminal Court, and I simply cannot let that pass.
The individual in question is Stephen Rademaker, a former Bush (both H.W. and W.) administration official who drafted the legislation creating the Frankenstein’s Monster known as the Department of Homeland Security. And the substance of his wrongness is contained in his recommendation that:
Congress should make it a federal criminal offense for an official of the ICC, or a foreign government acting under authority of the ICC, to indict, prosecute, detain, or imprison American military personnel or government officials for alleged war crimes.
He is literally suggesting that we make a federal case out of the vanishingly slim possibility of ICC prosecutions of Americans.
Over at Justice in Conflict, Mark Kersten highlights a number of problems with this “breathtakingly absurd” proposal. It’s silly, it’s hypocritical, and it would sabotage the U.S.’s reasonably functional, if uneasy, relationship with the Court.
Personally, I think it’s kind of cute that paranoid Republicans still think of the ICC as some kind of all-powerful, avenging justice monster, despite all the evidence to the contrary. (Remember that time it took 10 years and 600 plus pages of judicial opinionating to sentence one guy for one war crime?)
But what strikes me as truly insane about Rademaker’s proposal is his blithe disregard for immunities. Because you know what you can’t do under U.S. law? Prosecute foreign officials, or representatives of international organizations, for conduct undertaken in the course of their official duties. (This is called “functional” or “act” immunity.) And I really can’t think of anything much more official than fulfilling the obligations contained in a treaty that over 120 countries have ratified. So unless Rademaker is suggesting that ICC prosecutions are jus cogens violations (there appears to be an emerging exception to immunity for universally-agreed-to-be-serious crimes like genocide, torture, and slavery), this makes no sense.
And frankly, if ANYONE should be in favor of robust, no-exceptions-allowed, functional immunity, shouldn’t it be former Bush administration officials?