The American Non-Governmental Organizations Coalition for the International Criminal Court (AMICC), a UN-aligned pressure group which advocates for U.S. membership in the International Criminal Court (ICC), has released an “analysis” of our recent paper, “An Inconvenient Founding: America’s Principles Applied to the ICC”. The paper argues that the Rome Statute and ICC are incompatible not only with U.S. constitutional principles but also with the lessons learned from America’s historical experiences involving the British Vice-Admiralty Courts of the 1700s and the International Slave Trade Tribunals of the 1800s. Instead of responding to the central thesis, the AMICC “analysis” myopically quibbles over the extent to which U.S. membership in the Rome Statute violates core American constitutional principles.
That the Rome Statute denies the American “right of trial by jury” is an incontrovertible fact. AMICC rightly notes that “it is not feasible for individuals to be tried by a jury of peers in international tribunals.” We could not have said it better, and this is precisely the problem with international tribunals.
While AMICC acknowledges this detail, their ICC advocacy is undeterred. AMICC defends its position by referencing the rare and extraordinary circumstances when U.S. citizens, at the discretion of the U.S. government, may be tried on a case-by-case basis without a jury trial overseas. But the Rome Statute presents a very different scenario wherein the ICC would categorically deny jury trial to all American citizens who the ICC independent Chief Prosecutor investigates and indicts. In essence, the Rome Statute would make the exception the rule and remove the due process protections of America’s constitutional rule of law.
The AMICC author (name unknown) cannot avoid the fact that institutionally excluding “the right to trial by jury” contradicts the wisdom of the U.S. Constitution, the Bill of Rights, Chief Justice Joseph Story, and John Quincy Adams, each referenced in my paper. Other than these, there are numerous sources better trusted, fairer and more articulate than AMICC who believe that constitutional due processes are worth keeping even in matters regarding international law (e.g. William Blackstone‘s observation that trial jury is the “palladium of our civil rights”)
“Representative government and trial by jury are the heart and lungs of liberty.” – John Adams (1774)
“Illegitimate and unconstitutional practices get their footing … by silent approaches and slight deviations from legal modes of procedure … It is [our] duty … to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon …” – Justice Joseph Bradley (1886)
“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” – Thomas Jefferson (1801)
By so dismissively relegating the principle of trial by jury to the dustbin of history, AMICC and its parent organization, the United Nations Association of the United States of America (UNA-USA) have seriously undermined their legitimacy as a trusted source on U.S. involvement in international law. If AMICC hopes to have any relevance to U.S. policy makers and the broader American public, they must take America’s history and political principles seriously. Progressive advocates of supranational solutions to the world’s many problems may indeed wish to move away from core principles of the American Founding, but they should do so openly and not couch their arguments in equivocating legalese. AMICC would do well to recognize that for America, the Rome Statute is still primarily a political issue, not a legal one: they do not yet have the luxury of ignoring the larger questions.
