John Kerry Intends to Subject American Foreign Policy and Liberty itself to a “Global Test”

Last week, in the first presidential debate, candidate John Kerry did what most expected him to do. He presented a polished argument. He seemed confident and knowledgeable. For sure, on style alone, John Kerry has the natural political talent to score points. In the debate, Kerry skillfully wove as many words as possible into every one of his 90-second responses.

Do not for an instant, however, permit Kerry’s natural political skill – further refined over a lifetime in Washington D.C. – to fool you. It is easy to allow Kerry’s slick rhetoric to conceal his radical ideas.

When it comes to defending our nation and defeating terrorism, Kerry insists that U.S. foreign policy must pass a so-called “global test.” He repeated this at the debate, and this is consistent with what he has said throughout his entire political career. For example, in 1970, Kerry explained, “I’m an internationalist. I’d like to see our troops dispersed through the world only at the directive of the United Nations.”[1]

In the debate, Kerry also harshly criticized our President for opting against adopting particular international treaties. One such treaty that Kerry supports is the treaty that created the International Criminal Court (“the ICC”).[2] If Kerry is elected, he will sign this treaty and in doing so, he will sign away liberties guaranteed under our Constitution. Kerry’s support of the ICC would give foreign nations leverage over our national defense. More importantly, his radical position on the ICC would deprive Americans of constitutional liberty, giving our freedom a backseat to his grand notion of a “global test.”

The ICC was established by a treaty (hereinafter “the Rome Treaty”) proposed at a United Nations conference in Rome on July 17, 1998. It was created to take jurisdiction over crimes of “international concern.”[3] The structure of the Rome Treaty is problematic, however, because it differs from our system of jurisprudence, and it would infringe on bedrock principles of the Constitution. Indeed, allowing the ICC to try U.S. citizens would deprive those citizens of constitutional due process. Equally dangerous, the ICC has nearly unlimited authority to prosecute.

The following points illustrate specific reasons why the U.S. must never ratify the Rome Treaty:

-•- If adopted, the Rome Treaty would allow the ICC to prosecute our soldiers, civilian personnel who provide support and logistics to soldiers, as well as military commanders. The ICC could also put the President and Congress on trial.

-•- The definitions of crimes in the Rome Treaty can be easily amended to politicized forms. Already, efforts to politicize the ICC crimes are in full swing. For example, Cuba has proposed that the ICC prosecute economic tariffs as international crimes.

-•- The ICC does not allow for a jury of one’s peers, a right guaranteed in the Sixth Amendment to the Constitution. Instead, in an ICC trial, a tribunal of three judges will always decide a defendant’s fate.

-•- The judges who will preside over ICC trials will be citizens of nations who have adopted the treaty. These nations include Cambodia, Jordan, and Liberia.

-•- An American tried before the ICC could be denied the right to a speedy and public trial, reasonable bail, and protection from cruel and unusual punishment. These due process rights and protections are found in Amendments VI and VIII of the Constitution.

-•- In contrast to our system of justice, ICC prosecutors can appeal unfavorable verdicts on the basis of fact in addition to questions of law. This cedes tremendous power to ICC prosecutors and erodes finality of rulings by allowing the possibility for open-ended trials. Unlike our legal system, if an ICC prosecutor does not nail a guilty verdict the first time around, he can simply try, try and try again, forevermore until the prosecution reaches the desired result.

-•- An ICC tribunal would likely permit hearsay evidence and anonymous witness testimony into the courtroom. This would be inconsistent with protections secured by the Constitution. Specifically, the Sixth Amendment protects an individual’s right to be “confronted with the witnesses against him.” Unlike our Constitution, however, the Rome Treaty lacks a specific prohibition against hearsay evidence. Furthermore, there exists international precedent that would permit the admission of hearsay evidence where there is no rule against such evidence. For example, in one of the international trials related to the tragedies in the former Yugoslavia, where there was no such prohibition in the rules, the judges permitted the admission of hearsay evidence over the defendant’s objections.[4]

-•- As a newly created court, the ICC will set its own precedent and, thereby, render over two hundred years of case law in the United States meaningless.

-•- Armchair bureaucrats from around the world can use the definitions of crimes in the Rome Treaty to second-guess U.S. military tactics. As an example, since the U.S. has laser-guided bombs in its arsenal, the U.S. could be prosecuted for using regular bombs if those bombs inadvertently injure civilians unintended as targets. We are already seeing the groundwork for this type of lawsuit – the ICC is currently investigating and considering whether to prosecute Britain, which ratified the Rome Treaty, for using cluster bombs in the Iraq War.

-•- The ICC can prosecute for the same conduct that a defendant was already convicted or acquitted of in a U.S. court if the ICC believes that the former trial was conducted unfairly. How is fairness decided? The answer is that fairness can be whatever the ICC wants it to be.

-•- The ICC does not answer to the United Nations Security Council; it does not answer to any nation; ICC judges will not be elected by or answer to the American electorate.

No one can deny that some U.N. programs, such as humanitarian aid, are positive. But Kerry’s plan to blindly adopt everything the U.N. proposes to garner “credibility” is nothing short of sheer folly.

That Kerry supports this politicized tribunal simply to convince the world’s dictators, tyrants, and despots to like us is stunning and revealing. That Kerry would sign a treaty that would permit a U.S. citizen to be tried by a tribunal of judges from foreign nations is shocking.

Clearly, when it comes to selecting our commander-in-chief in November, Kerry is the wrong man, with the wrong ideas, who applied for the wrong job.

For more information about the International Criminal Court and how it differs from and would infringe on the U.S. Constitution, please read:

Steven T. Voigt, The United States Must Remain Steadfastly Opposed to the Rome Treaty International Criminal Court, 12 WIDENER L.J. 619 (Sept. 2003);

Steven T. Voigt, Tyranny, The Collapse of Traditional Law in America (Feb. 2004).

[1]. Rome Statute of the International Criminal Court, art. 1, Dec. 31, 2000 (entered into force on July 1, 2002).

[2]. Thomas R. Eddlem, John Kerry: Radical Internationalist, The New American Vol. 20, No. 10 (May 17, 2004). Kerry has since tried to spin his way out of this statement, but his position on the ICC belies these efforts.

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The views expressed in this commentary are solely those of Steven T. Voigt and do not necessarily reflect the views of his employer, any organizations he is affiliated with, or any forum where this is published. Furthermore, the views are not intended to be construed as legal advice. If you need advice about anything in this article, please speak directly with an attorney.

The Constitution gives the power of pre-emptive strike (an act of War) to the Congress without regard to obtaining a global concensus. If Congressional War powers act can be usurped by a President that may or may not have the opionion that the act did not meet a "Global Test" this would be a Constitutional crisis.

Would John Kerry's Global Test cause a Constitutional Crisis?

I submit that the very reason that the founding fathers created the Constitution was specifically so no foreign influence would impede our right to self preservation.

It is time for Legislative and Judicial branches to weigh in on their concensus of a Presidential veto based on some phantom Global Test.

John may be an articulate speaker and we can acknowledge that Bush is not UNDER THESE CIRCUMSTANCES.

But this was a hit job not a debate.

Bush won on the war for several reasons. He asked for 87 Mill to help the troops. He asked the UN for assistance. He asked the Congress for approval AND HE CONTINUOSLY BOLSTERS THE TROOPS AS WELL AS THE HOPES OF THE AMERICAN PEOPLE.

He told the UN that he did not need their "Global Test". The conditional treaty & the resolutions were more than sufficient.

Guess who always gets the job done? THE USA AND WHATEVER ALLIES ARE WILLING.

for 90 minutes, Kerry spoke. at the end of 90 minutes, i still did not know where he stood on Iraq or what his plan is.

he has no plan. his plan and interest is summed in two words - "john" "kerry" Kerry is a career politician and he scares the heck out of me.

I think that to say that we would submit to the will of foriegn powers is a distortion of Kerry's position. By completly rejecting the treaty we have lost the ability to control and influence the process. There is no harm in talking to the world about the serious nature of war crimes,if we can get a new treaty more to our liking.

I think this is one of the few issues that Kerry actually has a position on. And, he is flat-out wrong. Now, he is trying to spin his way out of it. Too late! We know where he stands. We know the dangerous road where he will take us. As for your point on war crimes - War crimes are serious, certainly, but defitions can always be manipulated to serve a partisan purpose. Nations like Cuba have demonstrated that they have a different idea of what should be a so-called crime. These issues need to be left to regional tribunals. There was a tribunal for the Balkans. Saddam will be tried by Iraqis. The US supported a tribunal to handle the Rwanda genocide. Placing our Constitution and our rights behind the politicized ideas of an international tribunal is wrong for America and wrong for liberty.

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