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My stand on the International Criminal Court has been repeated (over and over again) and obvious:  Get rid of it.  It is an anti-US institution that will be used against us.  US citizens should withhold their assistance to the ICC and there should in fact be legislation prohibiting cooperation with the court.

Why would you be against the bringing to justice of genocidal maniacs?  How is that consistent with liberty?  Well, I never said the ICC wasn’t well-meaning.  But it is a concentration of power in a global institution that has the power to place people in jail.  And I want to leave the jailing power in the hands of national governments.  I do not want US citizens to be tried in foreign courts unless they commit a crime in that nation.  I especially do not want those who the international left has gone against, not just former President George W. Bush but ordinary people like John Yoo, to be under threat of arrest in other nations.  Even President Obama and some of his advisers are not beyond scrutiny.  This will discourage good honest men and women from the honor of serving the President of the United States.

For those who agree with me and are against the ICC, here is some exciting news:  The African Union has come very close to recommending that its member states withdraw from the ICC.  Here’s several stories (and more!) on the recent AU summit.

From the Irish Times:

Kenya’s parliament voted on September 5th to leave the ICC, and it will be lobbying at the 54-country summit for a mass withdrawal by the 34 remaining AU members, or alternatively for a two-thirds majority instructing those countries to end their co-operation with the court.

“The Kenyans were criss-crossing Africa in search of support for their cause even before their parliament voted to withdraw from the ICC,” said one AU diplomat. “A complete walkout by signatories is certainly a possibility – but other requests are also possible.”

More from the Irish Times article from several African nations:

Last week, Ivory Coast’s government decided not to transfer former first lady Simone Gbagbo to join her husband in The Hague on charges of crimes against humanity in connection with the 2010 presidential election, and said it would try her at home.

Rwanda’s ambassador to the African Union, Joseph Nsengimana, observed: “It is not only the case of Kenya. We have seen international justice become more and more a political matter.”


Ugandan president Yoweri Museveni accused the ICC of continually “mishandling complex African issues”.

Ethiopian prime minister Hailemariam Desalegn, the AU chairman, told the UN General Assembly last week: “The manner in which the ICC has been operating has left a very bad impression in Africa. It is totally unacceptable.”

Even the South African president, Jacob Zuma, says that this ICC issue of selective prosecution is the reason for this summit and that African nations are split over the question.

The Irish Times in a follow up report that the AU urged the ICC to exempt sitting heads of state from prosecution.

Africa has agreed that sitting heads of state should not be tried by the International Criminal Court where Kenya’s leaders are in the dock, ministers said before African leaders opened a summit today.

Foreign ministers of the 54-member African Union also called for deferring the cases of Kenyan president Uhuru Kenyatta and his deputy, William Ruto, after a meeting to discuss Africa’s relations with the court based in The Hague.

I agree!  I would go one step further:  Heads of state should not be tried for decisions made while they are heads of state, nor should their immediate advisers carrying out their policies.  But an Ethiopian leader rightly says the real issue in the Kenya matter is loss of sovereignty:

Following that session, Ethiopian foreign minister Tedros Adhanom said trying Kenya’s president and his deputy infringed on that nation’s sovereignty. The two men deny charges that they orchestrated a killing spree after a disputed 2007 election.

It is a matter of sovereignty.  No nation should allow outsiders to try their citizens.  Especially the United States.  Build rule of law institutions in the several nations and you will have a rule of law that respects sovereignty and also works together.  The Kenyan issue appeared to be to be internal to the nation and ought not been the business of the ICC.

But some nations withdrawing from the ICC could still happen, even though the AU did not take that position.  The Kenyan parliament did vote for withdrawal.  But this BBC article says a mass withdrawal is possible but not likely.

Despite widespread speculation that the summit will consider calling on all 34 African members to pull out of the ICC, Kenya’s Foreign Minister Amina Mohamed said on Wednesday that it was “quite naive” to think that leaders would “come together with the sole aim” of breaking ties with the court.

They should.  This BBC article also gives silent and unintentional support to a contention that Tom DeWeese has made that the “enforcers” of UN and other global norms are non-governmental organizations, such as in this case, Amnesty International and Human Rights Watch, both organizations that have called for the arrest of former President George W. Bush.  No patriotic American should be members of either AI or HRW.  Here’s the 120+ NGOs coming out against any sort of withdrawal from the ICC:

On Monday, about 130 non-governmental organisations wrote an open letter to the AU, warning that “any withdrawal from the ICC would send the wrong signal about Africa’s commitment to protect and promote human rights and to reject impunity”.

There also are other things that made me think about the misuse of the ICC to punish small nations who cannot stand up against it’s power while major powers either do not join the ICC or will never be int he near future its targets.  The President of Kenya made a fiery speech to the AU contending the focus on Africa is imperialistic:

“Even though we were dominated and controlled by imperialists and colonial interests in years gone by, we are now proud, independent and sovereign nations,” he said. “More than ever, our destiny is in our hands. Yet at the same time, more than ever, it is imperative for us to be vigilant against the persistent machinations of outsiders who desire to control that destiny.”

He went on to thank the African Union for backing him: “As Kenya’s President, it gives me a feeling of deep and lasting pride to know that I can count on the African Union to listen and help in trying times. Africa has always stood by our side.”

I do believe President Kenyatta is partly right.  I do not think it is overt imperialism – it is similar to the sports imperialism of the use of pro athletes in the Olympics.  The effect is the same:  The smaller nations get targeted but the major powers exempt themselves.  I would hope that the African nations would withdraw from the ICC.  Here’s another reason why the African nations should withdraw:  Our very own government tried to bring a sitting head of state before the ICC even though that nation never ratified the Rome Treaty.  That was Libya.  Here’s a blog entry I did earlier about it:

There is one small, tiny problem with all this jurisprudential activity.  Libya did not agree to the Rome Treaty.  The leaders of Libya, however evil they may be, elected NOT to place themselves under the jurisdiction of the Treaty or the Court.  Nor has the USA.

The UN resolutions governing this sordid episode do not require or refer the matter to the ICC for prosecution.  (That is assuming the UN Security Council has the authority to try and jail individuals; I do not accept that.  If so, where does the power come from?  The nations that organized and joined the United Nations?  I suspect that was not what the US bought into when we ratified the UN Charter in 1945!)  Absent that, the ICC simply has no jurisdiction or authority to arrest the leader of a nation that did not agree to be bound by the Rome Treaty.

African nations ought not cooperate with the ICC and nor should the US.  This will probably be papered over so the ICC remains intact but hope springs eternal in this heart.  Remember, the stronger the ICC gets, the more likely someone like former President Bush or more likely one of his advisers will be tried by foreigners in a foreign land without the rights accorded in our nation to the worst criminal.  We went to war against Britain in part due to that very issue (from the Declaration of Independence):

For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences

African nations should keep fighting the ICC and most if not all other global UN treaties!

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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