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Sovereignty on Trial

THINK TANK WITH BEN WATTENBERG
#1134 Sovereignty on Trial
FEED DATE: December 11, 2003

Opening Billboard: Funding for this program is provided by...



(Pfizer) At Pfizer, weíre spending over five billion dollars looking for the cures of the future. We have 12,000 scientists and health experts who firmly believe the only thing incurable is our passion. Pfizer, life is our lifeís work.



Additional funding is provided by the Lynde and Harry Bradley Foundation, the John M. Olin Foundation, the Bernard and Irene Schwartz Foundation, and the Smith Richardson Foundation.




WATTENBERG: Hello Iím Ben Wattenberg. Since the end of World War II, international institutions like the United Nations have played a growing role on the world stage. Today, controversial new entities like the World Trade Organization and the International Criminal Court are raising questions about where national laws end and international law begins. The debate surrounding global governance rests on the concept of sovereignty. Where should America draw the line? How should we participate in the world community without giving up the right to act in our own best interests? To find out, Think Tank is joined by Steven Rickard, a former senior advisor in the U.S. State Department and Director of the Freedom Investment Project, a Washington based human rights organization, and Paul Rosenzweig, a Senior Legal Research Fellow with the Center for Legal & Judicial Studies at the Heritage Foundation. The Topic Before the House: Sovereignty on Trial. This week on Think Tank.



WATTENBERG: Gentlemen, thank you for joining us on Think Tank. Let me ask as an opening question weíre gonna deal with this International Criminal Court. Uh, where did the idea come from uh, and what - what crimes is it designed to handle?



RICKARD: Well, the idea of a permanent court to try the worldís worst criminals has really been around since Nuremberg.



WATTENBERG: After World War II.



RICKARD: After World War II where the Nazi leaders were put on trial - fair trials - actually a few people were acquitted in those trials and that was a real change uh, for humanity.



WATTENBERG: It was a fair trial but the - the criticism in legal circles is that there were ex post facto; there was no previous law like that.



RICKARD: Thatís right. And - but - aft - and as a result of that complaint - understandable complaint - the world community got together and said, 'Well, we donít want to have that argument ever again...



WATTENBERG: I see.



RICKARD: I want to know what the laws are. So we adopted the Geneva Conventions and the Genocide Convention and the other conventions that made it a crime to do the things that the Nazis had done. But it was impossible to create a permanent institution to enforce those laws or have accountability until the Cold War ended and when it ended people began to talk about going back to this long-shelved idea that there should be a permanent body; not to replace national courts, but to serve as a safety net when failed states canít bring people to justice.



WATTENBERG: And the specific crimes it would go after were...



ROSENZWEIG: Genocide. You had them...he had them on...



RICKARD: Genocide, crimes against humanity and systematic war crimes. One of the crimes in the statute possibly is the crime of aggression, which was a crime at Nuremberg but which the parties couldnít agree on a definition so they deferred that.



WATTENBERG: Does the international Criminal Court have in itís jurisdiction a crime of aggression?



RICKARD: Itís in the statute subject to being defined and agreed upon by the parties. So the court canít try anybody for aggression now and in fact the very first thing that the International Criminal Court prosecutor did was to hold a press conference and summarily dismiss every complaint that had been filed with the court based on the charge of aggression against the United States and Iraq.



WATTENBERG: So...



ROSENZWEIG: Yes, thatís right but that doesnít mean... One of the things weíre talking about, though is how that will be defined.



WATTENBERG: In other words if Iraq had invaded Kuwait that would not be as a transnational border aggression; that would not be under his jurisdiction?



ROSENZWEIG: By itself, no. But itís quite feasible that some of the other things that the Iraqis did while occupying Kuwait, the killing of civilians, the killing of its own civilians would fit within the other crimes of genocide.



WATTENBERG: Is there now a physical place called the ICC? This is not the world caught in The Hague or anything like it. This is...



ROSENZWEIG: Well theyíre building it in the Netherlands. I think itís got temporary quarters and theyíre going to build out a real building for it, yes.



WATTENBERG: Do they have enough signatories to have something whether or not the United States joins?



ROSENZWEIG: The treaty said that it would go into effect upon the signing of sixty members and, in fact, sixty members have signed and so the court is up and running; theyíve named their first prosecutor and you know, who may very well be a very moderate and thoughtful man and indeed by all reports he is but nonetheless he is unbound by anything other than the majority vote of the members in the court.




WATTENBERG: Well we hear stories - Iíve seen in the paper, havenít followed them very closely, but that in certain countries Bill Clinton could be arrested; in certain countries George W. Bush could be or Tommy Frankscould be arrested. That great powerhouse, super power Belgium has tried to say, 'Well, weíre going to grab so-and-so and weíll put them on trial.'



ROSENZWEIG: Um hm.



WATTENBERG: How does that relate to this...




RICKARD: Well I think one of the reasons why people are concerned about those kinds of scenarios ought to in fact support the court, is that itís so different than the situation with Belgium. I mean I think we do need to have rules of the road and I think that a - a proper court defers to other countries that have the most appropriate jurisdiction. Thatís the way the International Criminal Court was created. The Belgian law is Belgiumís law; itís completely different, itís not a U.N. body; it doesnít have anything to do with the International Criminal Court. The way the International Criminal Court...



WATTENBERG: But the Belgians, if they wanted to swoop into the United States and pull somebody out - Tommy Franks out of Tampa and take them to Antwerp and fill him with chocolates and make him talk, they could do that.



RICKARD: Well, first of all I mean, itís the United States that lately has been the leading proponent of allowing states to do that kind of thing on their own; that is go into other places and seize people



WATTENBERG: ...of course Israel did that with Eichmann. Went and picked him up and brought him back to Israel for trial.



RICKARD: But the International Criminal Court canít do that by its very nature itís mandatory that it defer to other countries and not even to second-guess their judgments if they decline to prosecute. I think you raised the question of the independent prosecutor and I think thatís a very legitimate point. I donít know where I was when the American Enterprise Institute and other conservative institutions decided that Ken Starr was a threat to liberty, but they apparently have.



WATTENBERG: Weíre conservative only relatively.



RICKARD: I guess. But the ICC prosecutor is number one...



WATTENBERG: Not compared to Heritage...



RICKARD: Right. The ICC prosecutorís number one subject to political control is subject he can be removed by the assembly of stateís parties if he abuses his power; heís subject to jurisdiction - oversight of the judges on the court. Now Paul says, 'Well, this means Zimbabwe and Sudan.' This is one of the great, you know, myths thatís been put out there about the court that, oh, Yemen was going to control it or Syria will control it. Freedom House, which is not remotely a, you know, liberal catís paw - Jeane Kirkpatrick on the board; James Woolseyís chairman of the board...says that there are eighty-nine free countries in the world today. Sixty-two of them are parties to the International Criminal Court. Freedom House says that there are forty-eight countries in the world that are not free. Five of them are parties to the court. Two thirds of the members of the court are our closest friends and allies the rule of law states. One twentieth of the court are countries that have human rights problems. Now itís good that a few countries that have some human rights problems join the court because thatís the only way to get jurisdiction.



WATTENBERG: What was wrong with doing whatever we wanted to do on an ad-hoc basis? I mean Nuremberg or Rwanda; there have been other places - Bosnia - where the nations of the world or some nations of the world have decided we are going to intervene and just do it.


RICKARD: Well whenever this issue comes up I always imagine you know, a Western where the bad guys have ridden into town and robbed the bank and burned down the schoolhouse and run out of town and then the guys come and they say, 'We gotta - we gotta form a posse. We gotta go after íem.' And the Sheriff says, 'No, no. First we got write the code a laws and then we gotta build the courthouse and we canít go after them until weíve done all of the background stuff to create an institution. In Rwanda the court that was created is now functioning well; itís bringing people to account, but there were enormous difficulties getting it up and running. There were startup costs. Really the way the court will function in reality is as the standing ad-hoc tribunal. The - if itís gonna get jurisdiction, almost always itíll be because the Security Council referred a matter to the ICC and so it really will function most of the time. I think as the ad-hoc



WATTENBERG: Yeah, but Americans uh - Americans particularly recently have not been particularly enamored with what the Security Council has uh, has decided to do or not to do. What...



ROSENZWEIG: Well, I was going to say I think that the startup cost is a - is an important point. I think startup costs are a good thing. I think that we shouldnít make it too easy uh, for the exercise of this sort of universal jurisdiction. I mean you were talking about all the freedom-loving countries that are parts of the ICC and I have to say that is some comfort, but it isnít a real comfort because I donít want Belgium or France doing, you know, being the arbiter of American propriety either. France has exercised - wants to exercise extra territorial jurisdiction; it recently issued a subpoena to Henry Kissinger about Chile.



RICKARD: There are problems in the world that are best - that the smart way to deal with them is through cooperative action. Not because itís the nice thing to do or because we oughta do it because itís a religion. Because itís in our interest to do it.




ROSENZWEIG: Itís important to - I mean I think all thatís all well and good, but the key word in all that is cooperation. I mean one of the fundamental problems I think with the ICC Treaty, the Rome Treaty, is that it purports to extend jurisdiction over Americans without Americaís consent. You know, since the treaty was...



WATTENBERG: This is for the International Criminal Court?



ROSENZWEIG: For the International Criminal Court. I mean since the treaty was ended the wars in 1648 and you know, in the treaty of Vienna...



WATTENBERG: I remember it well, yes.



ROSENZWEIG: And in the Treaty of Vienna on the making of...



WATTENBERG: 1815. I know that one.



ROSENZWEIG: Actually I was thinking of the one in 1948.



WATTENBERG: Oh, oh, that one.



ROSENZWEIG: But that one said that no countryís going to be subjected to a treaty without its consent. Yet, you know, Article 12 of the ICC treaty purports to say that Americans abroad who are deemed in violation of its provisions will be subject to uh, to trial without our consent. Now, you can say that itís a territorial..



RICKARD: ...this is thousands of years of jurisprudence is embodied in the treaty.



ROSENZWEIG: No, itís absolutely not.



RICKARD: If you want to test this, go to France and throw a brick through a bakery window and find out whether or not you can be subject to the laws



ROSENZWEIG: You can be prosecuted by France, but never before - never before has a nation state like France purported to transfer its territorial jurisdiction to an international organization.



RICKARD: Well Paul, let me..right...



ROSENZWEIG: Itís a completely unique change in the law where France will say, 'Now if you say that an American in violation of the laws in Iraq is going to be tried by the courts in Iraq, I say fine, right, and thatís great. But never before have we said that Iraq can take its territorial jurisdiction and give it to an international organization without our consent.



RICKARD: The idea that nation states who have the unquestioned ability to try people for criminal violations canít do this jointly it seems to me, if they choose to, is not defending sovereignty; itís an attack on sovereignty. And Paul, I just - all you have to do is ask yourself. If Columbia and the United States decided that they wanted to have a joint tribunal to try people for drug offenses and a French...a French citizen came to Columbia, took cocaine, brought it to New York and then because it was a joint institution and it was unprecedented, had never been done before, the government of France said, 'Oh, this is an outrage. Youíre trying our citizen under a treaty that weíre not a party to.' Would anybody take that seriously?



ROSENZWEIG: I would. I think that we cannot subject the citizens of France to international organizations that France has not been a party to.



WATTENBERG: Even if he has committed a crime in America on American soil?



ROSENZWEIG: In America on American soil?



WATTENBERG: Excuse me?



ROSENZWEIG: To U.S. Courts - if I traveled to France and I throw a brick through a French storehouse, you know, store window, the French courts can try me. I can be arrested by the French and sent to whatever their equivalent of the '...'



WATTENBERG: Even if you have a U.S. passport?



ROSENZWEIG: Even if I have a passport today and you know, my treatment is governed by bilateral treaties that France and the United States have entered into. But I cannot be taken by the French and transferred willie-nillie to the jurisdiction of a court that the United States doesnít recognize anymore than I would say that the United States could take the Frenchman in the United States who violated a law and transfer him to the jurisdiction of a Pan American council part because of the lack of Security Council...



WATTENBERG: Would the ICC work well in what is called then the diplomatic terminology the failed states.



RICKARD: Well thatís exactly where it is.



WATTENBERG: Somebody tell me what a failed state is.



RICKARD: Well, if you have a country like Somalia say, or Sudan, if there were jurisdiction over the court which probably...



WATTENBERG: Meaning if they had joined the court.



RICKARD: If they joined the court or if the Security Council said, 'We really need a body to step in and help have accountability for terrible atrocities.' Then what would happen is the first thing the court would say is 'Is there a national court, a sovereign state that is - has jurisdiction and is looking at this matter?' And if it is, we step out of the picture. We are not to supplant or override. Weíre not the ultimate appeals court. Weíre not above national courts; weíre a safety net below courts. If the United States or any other country investigates an issues legitimately, they have a functioning court system, they look in it and they decide we donít think thereís anything there, weíre not gonna prosecute.



WATTENBERG: Paul, let me ask you and Steve, is it fair to say that on this issue of the International Criminal Court you - you - you are uh, sort of echoing your domestic views which I will say, which I will characterize for you if you would let me, which is Paul, you think the less government and the less regulations, the better. And Steve, you say letís get - thereís nothing wrong with good regulations, letís enforce them well and maybe expand them where necessary. Is that what weíre talking about when we say should America join the International Criminal Court? Is that the nub of it?



RICKARD: The fact is that you know, I come to the conclusion that we should do this because itís in Americaís interest to do this because we have a stake in accountability for gross atrocities around the world. And weíve seen that in the last few years.



WATTENBERG: And the three items it deals with again, letís repeat them so we...



RICKARD: Genocide, crimes against humanity and gross war crimes.



ROSENZWEIG: See thatís actually - I mean, it actually defines another set of crimes which is crimes of aggression that are yet to be defined, which is another one of those kinds of concerns.



RICKARD: And this is why...



ROSENZWEIG: Itís clearly - I understand. This is why we should be at the table.



RICKARD: Thatís why we should be at the table. Weíve unilaterally disarmed...



RICKARD: But I got to tell you...



ROSENZWEIG: ...you were at the table when the Treaty of Rome was being negotiated and our, please for limitations on the courts jurisdiction for Security Council check were rejected a hundred and thirty-one to seven; ninety-nine to eighteen; you know, once you get into a regime where itís one country; one vote and the vote of you know, Sudan or Zimbabwe or Belgium or France is of equal weight to the United States where we lose the opportunity to act as a unilateral check to whatever definition they give us.



WATTENBERG: Itís not set up the way the U.N. Security Council is with a veto for every state.



ROSENZWEIG: Thatís correct. Itís going to be the - what are there, now nine - eighty-nine member states to the court? They vote.




ROSENZWEIG: One country; one vote.



WATTENBERG: And the majority rules?



ROSENZWEIG: The majority rules.



RICKARD: The U.S. wanted controls on the prosecutor; it got controls on the prosecutor. It wanted controls on the judges; it got controls on the judges. In fact every protection the American government wanted in the Treaty of Rome it could get except for one and that was the rest of the world wasnít willing to give us and that is you can be different than every other country in the world, you can decide when and if you will be, you know, your conduct can be examined and that is what is fundamentally different about this period in American foreign policy from the post World War II period. In the post World War II period the greatest generation went out and it said, 'weíre going to create a system of rules and - and organizations that are in our interest, but theyíre in everyoneís interest. And if every once in awhile someone questions our conduct or we even lose a point' - and this is Eisenhower, the man who defeated Nazi Germany, who said, 'You know, it would be better to lose a point once in awhile and have everybody accept the rule of law.' And that was the way the United States was viewed - as a country that was creating and defending a system that it was accountable to and that everyone else




RICKARD: The perception of the United States today is that the number one - that our view is there should be a system of rules that apply to everybody else, but not us. And thatís why we canít...



ROSENZWEIG: No, because see...in creating the U.N. we recognize that for the great powers to be parts of it, the great flaw of the League of Nations we all seem to recognize, was the one nation/one vote idea because that gave incentives to the great powers to bail out. They were not protected from the tyranny of the small nation majorities. The U.N. was formed with the protection of the Security Council for precisely the reason uh, that the construct of the League of Nations which is now mirrored in the ICC and itís mirrored in the General Assembly hadnít worked in the League of Nations. Thatís what was at the core of the flaw in the League of Nations structure.



WATTENBERG: Okay. I want to ask a couple of wrap-up questions. Why is it that so many of the countries that have really considerable military power Paul, like China, India, Pakistan, Russia...why is it that those big-time hitters have opted not to join the ICC? Is there a special reason?



ROSENZWEIG: Well I think itís because they recognize that one of the potential functions of the court, and I think probably in its heart some of the intentions that some of its highest proponents hold for it is to control powerful nation states; to use legal mechanisms to control them and those nation states recognize that itís not in their interest...



WATTENBERG: The small - itís the small states that always want to band together to...



ROSENZWEIG: Yes. Itís the Gulliver in Lilliput kind of idea and you know, that doesnít mean that we think that all of the uses that Chinaís going to put its military power to are right, but from itís own perspective it certainly doesnít want be bound to that.



WATTENBERG: So this is one case where America has some big heavy hitters on its side and the basic thrust of it, the people who are against the United States are the Europeans. Is that right?



RICKARD: Well, the likeminded countries. I mean, rule of law states Costa Rica; you know, Australia is a party to the court but I think really there are two courts.




WATTENBERG: Yes, but the big hitters are the Europeans in this operation. I mean...



RICKARD: Well, theyíre obviously...



ROSENZWEIG: They essentially control the court and theyíre, I mean, of the defenses that Steve was making is the fact that most of the countries that have exceeded to the treaty are European or Europeanesque nations like Australia who are from the commonwealth countries of Europe.



RICKARD: Well itís the democratic and free states. Now that - by - the way the world is today that means a lot of íem are European, but itís a lot of Latin American democracies, Costa Rica, Australia, uh, you know, it - itís countries that are rule of law democratic states. You know, two thirds of the court are countries that are uh, rated by Freedom House as the free countries and are on the top of the chart.



WATTENBERG: As we move toward wrapping this up, I wonder is there something that could be crafted that would satisfy the concerns of most of the states and make this something that was generally acceptable?




ROSENZWEIG: I think that the one flaw that is missing here is a Security Council authorization. If you use the current existing structures of the UN for the authorization of the use of force to also authorize, on behalf of the UN, the use of criminal law, which is in truth a government monopoly on the lawful use of force in the civil context, that would I think for me do it altogether...for most people in my position probably do it altogether.




RICKARD: Well on this in a lot of ways we agree because the fact is that the secret of the court is that itís not too strong, itís too weak, and most of the time itís not going to have jurisdiction at all over the worst problems in the world unless it operates exactly as Paul just described.




WATTENBERG: Are we moving toward a United States of the world?



RICKARD: I donít think so. I hope that weíll move in the direction of a world that does a better job cooperating to tackle the problems that can only be tackled effectively if we do it cooperatively like drug trafficking, terrorism, uh, hunger, disease. Those problems that donít respect dotted political lines on a - on a chart. Thatís when we should and itís the great problem of the day and age that we live in that the United States has convinced the rest of the world that it - it doesnít believe that it wants to work cooperatively on these problems...that it wants to do things on its own.



WATTENBERG: Last shot.



ROSENZWEIG: I think cooperatively on those are good, but de Tocqueville said that the exercise of criminal law authority was the ultimate aspect of sovereignty and the creation of an international criminal court that will exercise criminal law authority on behalf of some supranational organization is I think, the first step towards if not a United States of the world then a supernational world organization that purports to be able to control the activity of nation states. Some may see that as a good thing. I do not and thatís one of the reasons why I think in the end accession to the ICC treaty is a mistake.



WATTENBERG: Okay. Paul, Steve, thank you very much. And thank you. Please send us your comments via email. It helps us make a better program. For Think Tank, Iím Ben Wattenberg.




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Funding for this program is provided by...



(Pfizer) At Pfizer, weíre spending over five billion dollars looking for the cures of the future. We have 12,000 scientists and health experts who firmly believe the only thing incurable is our passion. Pfizer, life is our lifeís work.



Additional funding is provided by the Lynde and Harry Bradley Foundation, the John M. Olin Foundation, the Bernard and Irene Schwartz Foundation, and the Smith Richardson Foundation.



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