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The EU: global judicial despotism and the international criminal court

This essay has been excerpted from Todd Huizinga’s new book, The New Totalitarian Temptation: Global Governance and the Crisis of Democracy in Europe (Encounter Books, 2016).

The European Union’s goal of creating a post-nation-state, supranationally governed world—in which nations give up key aspects of their national sovereignty to a web of international institutions that administer and enforce a body of international law—is diametrically opposed to U.S. identity and ideals. Americans instinctively refuse to recognize as legitimate any international organization, law or treaty that claims any authority over Americans above the U.S. Constitution, particularly if that organization, law or treaty contradicts the Constitution or violates Americans’ constitutional rights.

In the American system, it is because sovereignty rests in the people that the U.S. government does not have a right to transfer sovereignty to any other organization, government or group of governments. But in the EU, the member states have been ceding ever more sovereignty to “Europe” since the establishment of the European Coal and Steel Community in 1952. Sovereign power is exactly what the European Union exercises over the national governments of the EU member states. And again, for EU elites it is not just about Europe. Their vision of supranational governance is a global one, and that is why a political and moral clash between the American idea of democratic sovereignty and the EU’s agenda is unavoidable. Regardless of the eerie ambiguity of the global governance ideology, which lets it appear to be almost anything to anyone, there is at least this one foundational certainty: the idea of global governance, at its core, cannot but be a sworn enemy to democratic sovereignty as practiced in the American system. The U.S.-EU dispute over the International Criminal Court will graphically illustrate the seriousness of the break this difference in worldview portends.

The International Criminal Court (ICC) is not about bringing criminals to justice. It is about giving teeth to global governance. It is about giving enforcement powers to an international body that is not accountable to any electorate or to any elected government—powers that in many ways go beyond those of any duly constituted national court in a democratic country. For example, a U.S. citizen could conceivably be brought before the ICC on a charge that the U.S. government considers politically motivated and illegitimate, and be subject to prosecution and punishment without benefiting from several key rights that the U.S. Constitution guarantees to those who are prosecuted in U.S. courts.

With its sensitivity to national sovereignty and the constitutional rights of its citizens, the United States cannot accept this. The EU on the other hand, with its belief in global governance, is the world’s most enthusiastic champion of the ICC. The EU’s ardor for the ICC is undampened by the fact that its own citizens could be subject to arbitrary prosecution without enjoying rights that various EU member states guarantee their citizens—and this is testimony to how deeply committed the EU elites are to supranational global governance.

The ICC is a logical outgrowth of the notion of universal jurisdiction, which the American sovereigntists Lee Casey and David Rivkin define as the claim that “any state can define and punish certain ‘international’ criminal offenses, regardless of where the relevant conduct took place or what the nationality of the perpetrators or victims may be.” Universal jurisdiction suggests that any country can prosecute anyone for anything it has defined as a prosecutable crime, even if the alleged crime was committed thousands of miles outside of that country, and even if neither the perpetrator nor the victim of the alleged crime has ever set foot in that country or had any connection whatsoever with that country. Presumably, the right of universal jurisdiction would be limited to certain types of crime and certain well-defined circumstances that have been internationally agreed upon.

Whether or not universal jurisdiction is limited in that way, however, it remains breathtakingly broad in scope, arrogant, intrusive and predatory upon national sovereignty. Any nation that presumes to apply universal jurisdiction to prosecute crimes that have not affected it or its citizens in any direct way is arrogating to itself the power not only to decide what is right and wrong for other countries, but to enforce that decision by supplanting the judicial processes of other countries and possibly imprisoning their citizens. Universal jurisdiction goes so far as to claim the right to prosecute officials of other governments for actions taken “in the execution of their official duties” even if those actions were “otherwise consistent with the laws and constitution of their own country.”

All of the EU member states have some sort of universal jurisdiction law on the books, of varying levels of reach and intrusiveness. In the EU, the mission to build the soft utopia of a globally governanced world goes on.

The ICC is the next step in the universal jurisdictionists’ quest for cosmic justice, as Thomas Sowell might put it. As the first permanent international court dealing in criminal matters, the ICC “has competence to investigate, try and punish dozens of offenses,” currently within three broad categories: genocide, crimes against humanity, and war crimes, with a fourth category, “aggression,” to be included as of 2017 if approved by state parties. What is truly unprecedented about the ICC is its supranational authority, which could reach even to citizens of countries that are not signatories of the Rome Statute, the treaty establishing the ICC. In violation of previously construed international law, the Rome Statute invests the court with the authority to prosecute citizens of non–state parties, even, under certain circumstances, for crimes committed on the territory of non–state parties. Also, the reach of the ICC extends to government officials who would traditionally enjoy official governmental immunity in the performance of their official functions.

Thus, an American citizen could conceivably be prosecuted by the ICC for an alleged crime committed on U.S. soil. For example, the ICC could prosecute a Pentagon official if the ICC believes an attack ordered by that official against a country with which the U.S. was at war to be a war crime. And it is by no means clear how it is to be determined that a “war crime” has occurred. It is quite conceivable that this Pentagon official could be accused of a war crime if civilians were unintentionally injured or killed or civilian property damaged. It is this pretense of supranational authority, crowned by an assertion of jurisdiction over non– state parties, that is the heart of the ICC’s unacceptability to the United States. For the EU it is just the opposite. It is exactly because of this supranationality that the EU values the ICC as a major step forward for global governance. And the story of the decades-long dispute between the United States and the EU over the ICC is a chilling illustration of how the global governance movement aims to impose its vision on all who resist it.

This European policy of actively undermining U.S. attempts to protect U.S. citizens and their constitutional rights came from the top, animated by the EU commitment to building a world in which no country has the right to opt out of the pursuit of universal justice. Senior government officials from European countries including Germany and Belgium publicly criticized U.S. efforts as “undermining justice,” as “incompatible with the rule of law,” and as “a blow to the credibility of international law.” For the European global governancers, this was not just a disagreement over an isolated issue. Rather, opposing this core U.S. national sovereignty concern— the concern to protect U.S. citizens from an essentially unaccountable international court—had arguably become central to an emerging European identity. Many Europeans saw the dispute over non-surrender agreements as “a question of values regarding the role of international law,” and an issue that went “to the core of the European perception of the world, of an emerging European identity.” Of course, European advocates of the ICC insist that it poses no threat to the United States. They maintain that politically motivated prosecutions in the ICC are not possible. But as illustrated by the Belgian courts’ inquiries into the actions of George H. W. Bush and Colin Powell, among others, there is no reason to believe that other U.S. and allied officials could not be subject to frivolous investigations by an unaccountable ICC. In fact, there have been many calls to bring George W. Bush, Tony Blair and other policy makers involved in the Iraq war before the ICC.

Why should the United States expose U.S. citizens to the possibility of being tried, convicted and sent to jail by people who are not in any way subject to the Constitution of the United States? Indeed, why should any country that cares about its citizens subject itself to the whims of the ICC? How could the EU support such an institution, unless the ideological blinders of global governance have completely distorted its perspective on reality?

The story of the ICC makes clear that the European commitment to global governance, while now still “manageable,” could one day become as passionate and inflexible as it would have to be in order to realize the European dream on a global scale. If that ever happens, the price of maintaining a strong transatlantic alliance will have become a price too high to pay.

Todd Huizinga is director of international outreach at the Acton Institute and was a U.S. diplomat from 1992–2012.