RUTHFULLY YOURS

In an editorial published Monday evening, the Wall Street Journal’s editors appear to echo President Biden’s call for war-crimes prosecutions over Russia’s atrocities in Ukraine. Tellingly, though, the Journal omits the little detail of who, exactly, should do the prosecuting.

Presumably, that’s because the Journal well knows it shouldn’t be the International Criminal Court — not if the United States has anything to say about it.

The scenes of mass graves in Bucha and other Ukrainian towns are sickening, as are the well-documented reports of brutal Russian attacks targeting civilians, rape as a weapon of war, the kidnapping and murder of elected officials and their families, and Moscow’s troops conducting themselves as marauders rather than as armed forces beholden to the laws and customs of civilized warfare. Against this gory background, the Journal points out that an investigation “is already underway at the U.S. State Department and the International Criminal Court at the Hague.” In context, this observation appears to endorse an ICC probe of Russia, supported by the U.S. government. But the Journal stops short of proposing that, and for good reasons.

The U.S. State Department is a diplomatic arm of the United States government. It has no authority to prosecute anyone. Prosecution is the Justice Department’s job. DOJ, however, has been confined to enforcing statutorily based sanctions imposed against Russian oligarchs, officials, and entities. That is because the United States is not a combatant in the Ukraine war. Provocative rhetoric and military aid notwithstanding, the president’s top priority since Vladimir Putin’s unprovoked invasion has been to prevent the United States from becoming a combatant.

America’s lawyer-Left has mobilized for the better part of two decades against military tribunals against combatants who mass-murdered Americans and against whom the United States has actually been at war. There are not going to be American prosecutions against Russia for war crimes against Ukraine. That is not to say the Justice Department may not apply Magnitsky Act provisions that enable our government to sanction Russian human-rights offenders: Seize any assets of theirs within our jurisdiction, bar them from entering our country — the sorts of things already being done under existing sanctions. But U.S.-initiated war-crimes tribunals? No.

That leaves the ICC as the only game in town. In terms of legitimacy, that’s no game at all.

Like Russia and Ukraine, the United States is not a party to the 1998 Rome Treaty, out of which the ICC was established in 2002. President Bill Clinton’s administration signed the treaty in the now-familiar transnational–progressive scheme to supersede the Constitution’s treaty clause — a scheme whereby the president’s signature, coupled with the abracadabra force of the progressive politics that brands itself “international law,” somehow overrides our law’s condition-precedent of two-thirds’ majority Senate consent before the president may ratify an international agreement.

The reason Clinton didn’t dare submit the Rome Treaty for the Senate’s consideration, and the reason President George W. Bush withdrew even the nonbinding U.S. signature to the pact, is the ICC’s flagrant contradiction of our foundational law and principles.

The ICC purports to exercise jurisdiction even over the citizens of countries that have not agreed to be bound. This violates the core American premise that governmental legitimacy hinges on the consent of the governed. At present, 70 percent of the people on earth are nationals of countries that have not submitted to the ICC’s jurisdiction; even if it were just 1 percent, ICC action against that 1 percent would be illegitimate, notwithstanding the tut-tutting of the European Left.

Our government is founded upon the strict separation of powers because the agglomeration of too much authority in any governmental actor’s hands is the express train to tyranny. This is especially so in matters of law enforcement, where the judiciary is a key check on executive excess but, in order to forfend judicial excess, is deprived the executive power of the sword. The ICC, in stark contrast, combines the executive and judicial functions, such that its prosecutors are the aggressive arm of the tribunal. The ICC’s history of corruption and abuse owes to its complete lack of both political accountability and objective judicial oversight.

Under the U.S. Constitution, (a) crimes must be prescribed by representatives answerable to voters, (b) that prescription must be based on some enumerated power that gives Congress authority to regulate, and (c) the offenses thus stated must be sufficiently clear that persons of ordinary intelligence can grasp what conduct is prescribed. The ICC, to the contrary, makes crimes up as it goes along, most notoriously under the vague guise of “crimes of aggression.” These can readily be stretched by political prosecutors to outlaw any national-defense actions frowned on by transnational progressives.

Thus, for example, has the ICC endeavored to investigate American actions in the war in Afghanistan — even though the ICC purports to stay its hand if countries adequately investigate their own wrongdoing, while the United States (which, again, has never agreed to submit to ICC jurisdiction) has a legal system that is the envy of the world and a political system that holds rogue officials accountable. And of course the ICC investigates our democratic ally Israel’s self-defense against terrorism — at the prompting of the “State of Palestine,” which is a member of the ICC despite not being recognized by much of the world, including the U.S., as a sovereign nation. As former Trump national-security adviser John Bolton has pointed out, moreover, the ICC has begun discussions over the possibility of adding “ecocide” — vague environmental and climate-related crimes — to the list of manufactured offenses over which it claims jurisdiction.

Because the United States rejects the premise that the ICC may legitimately exercise jurisdiction over Americans, Congress and presidential administrations have labored to shield us from its processes. Shortly before President Bush “unsigned” the Rome Treaty, Congress enacted legislation to protect U.S. troops, officials, and allies from ICC proceedings — including by the imposition of sanctions against countries and persons that cooperate in ICC actions against Americans, and by withholding U.S. financial contributions to the United Nations and other international organizations that support ICC operations. Our government has numerous bilateral agreements with other countries that bar them from cooperating in any ICC actions against Americans (particularly, by apprehending and extraditing Americans for ICC proceedings). In 2020, the Trump administration authorized sanctions against ICC officials over their investigation of our combat operations in Afghanistan, which the ICC prosecutor portrayed as war crimes.

In sum, the ICC is a global-governance scheme by which transnational progressives and anti-American regimes seek to undermine our nation’s capacity to self-govern. It is illegitimate and hostile, the Framers’ worst nightmare of Americans governed without their consent by faraway foreigners indifferent to, if not set against, our interests and liberties. Since the ICC is an enterprise antithetical to the Constitution and national defense, our government should never facilitate its mission and operations — no matter how well-intentioned we are in desiring that war criminals be held to account.

Russia’s regime is despicable. We should be doing everything we can within U.S. law to punish its atrocities. We should be doing everything we can within reason to help the Ukrainians defend themselves — especially given that the same Clinton administration that tried to tether us to the ICC also did its best to render Ukraine defenseless against the threat of neighboring Russia’s aggression, which was always ever clear and present.

Nevertheless, Russia is a sovereign nation and has not submitted to the ICC’s farcical jurisdiction. There is no legitimate basis to call for ICC war-crimes prosecutions of Russian officials and general officers. Any Biden administration rhetoric in support of such folly will be turned against the United States in short order, undermining 20 years of righteous efforts by our government to protect our citizens and allies from ICC machinations.