Rejecting the ICC and Pax Roeana
Posted on | August 6, 2012 by Wendy Wright |
The International Criminal Court has faced criticism from various quarters, but perhaps not one so elevated and personal as a U.S. Supreme Court justice. Until now.
Kofi Annan’s soon-to-be-released memoir “Interventions: A Life in Peace and War” describes a lunch the former UN Secretary General had with U.S. Supreme Court justices. Washington Post reporter Colum Lynch, apparently reading an advance copy of the book, blogs on this fascinating exchange.
The conversation turned to the establishment of an International Criminal Court, which was established in 2002 to prosecute individuals for massive crimes, including genocide and war crimes. And it quickly grew contentious.
“I’ll be damned if I’m going to let my son be dragged before some foreign kangaroo court to face judgment,” said one of the judges, who is not named, but is said to have a son who had served as a U.S. Army captain in Iraq. (Justice Antonin Scalia’s son, Matthew, served as a U.S. Army captain in Iraq.)
Annan appeared to have been taken aback by the reaction, saying that while he knew that many American politicians and commentators were hostile to the court he was surprised to here it put so bluntly by a Supreme Court Justice.
“I tried to reassure the irate justice about the procedures that were in place to stop frivolous prosecutions; that the ICC would act only when there was a credible accusation and the state in questions was unwilling or unable to investigate and prosecute the matter,” Annan wrote. “He was unconvinced.”
Justice Scalia is known for his blunt, no-nonsense style. An entire book on “Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice” was published in 2004. Perhaps it’s time for another volume.
My favorite Scalia quip is a take-off of Pax Romana, the peace that followed the Roman empire’s conquest in the 1st and 2nd centuries AD. In the infamous 1992 Casey decision on abortion that almost overturned Roe vs. Wade until, at the last moment, one justice changed his vote, the Supreme Court’s majority lectured citizens that when the Court rules on a particularly contentious matter we must simply, passively, stop fighting over it. As they put it:
“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”
Justice Scalia rejected this decision that upheld Roe, and took exception to this “because I said so” argument:
“[T]o portray Roe as the statesmanlike ‘settlement’ of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian. Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana, that the Court’s new majority decrees.”
