Thursday, April 21, 2022

Part I

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The Crucial Nature of Jurisdiction to Law: A History of the 20th Century and the Implausibility of an International Criminal Court

Where should war criminals be prosecuted? Under what jurisdiction? In what court? When you’re looking at crimes against humanity, crimes on the scale of national activity, where would such crimes rightly be prosecuted? That’s not just a theoretical question, several big issues we’re going to be looking at today, but we’re going to start with calls for the United States to cooperate in seeking to prosecute the Nation of Russia and Vladimir Putin, in particular, for war crimes committed in the Russian invasion of Ukraine.

The documentation, the evidence is becoming overwhelming. President Joe Biden called Vladimir Putin a war criminal, and actually accused Russia’s leader of an attempted genocide, maybe an actual genocide being carried out, an intentional effort to try to eradicate our people. Nonetheless, regardless of the actual crimes that might come down in some form of an indictment, the reality is the evidence is building, but so are some very interesting arguments. And one of those arguments is one, we need to look at very closely. One of those arguments was recently made by a member of Congress, Representative Ilhan Omar of the 5th District of Minnesota, the democratic Congresswoman, who is, by the way, a member of the so-called gang of rather extremely liberal members of the United States House.

Ilhan Omar wrote an article that ran just recently The Washington Post. As an opinion piece, her headline is this, “For Putin to face justice, we, meaning the United States of America, must join the International Criminal Court.” But virtually at the same time, an opposing argument by former United States ambassador to the United Nations, John Bolton, ran saying that even though war crimes have been committed and should be prosecuted, they should be prosecuted through the Ukrainian or the Russian legal and judicial processes, not through the International Criminal Court. And furthermore, even as the United States is now at least through the president of the United States calling for such prosecutions, this is going to raise the question of where the jurisdiction might be in which such trials take place.

This takes us into a very interesting consideration of history in the 20th century, especially after World War II, but it takes us into huge questions about the United States of America. So as you’re thinking about the International Criminal Court, just keep in mind, this is an international tribunal that has the power to convict criminal of crimes and to adjudge sentences, and yet this is a court known as the International Criminal Court and the United States officially, as a matter of national policy, does not recognize its jurisdiction. The United States, along with Russia, by the way, is not a signatory to what was known as the Rome Statute. And that brought into being the International Criminal Court, often known as the ICC, in July of 2002.

Since then, it has carried out just a handful of prosecutions, but the United States is not a participant. And for that matter, Israel is not a participant, Russia is not a participant. It is actually an International Criminal Court that was set up by some nations in an international agreement. But there’s a very good reason that Israel is not one of the participating nations. There’s a very good reason why the United States, as well as Russia is not a participating nation. Now, by the way, the legal setup for the International Criminal Court means that states that are not participating or leaders of those states or military officials of the states can actually involuntarily be dragged into these criminal proceedings if indeed agents of the court can get their hands on them, can actually comprehend them or make an arrest. But in the case of what we’re looking at here, you see a bit of political opportunity for someone like Congresswoman Ilhan Omar to say, oh, this just underlines the fact that the United States should join the International Criminal Court,

Representative Omar makes her case just exactly as you would think that she would make it. She points to the war crimes, almost undoubtedly being carried out right now in Ukraine by Russian forces. She speaks of the moral responsibility for those crimes. She spoke of her own background. She said for her personally, “It evokes a traumatic past.” She was an eight-year-old girl in Somalia, and as such, she says, “I remember watching armed militias go by my family’s window, hearing bombs go off outside our doors, and wondering if our house was next.” She goes on to say that accountability is the key to prevention, and she calls upon the International Criminal Court to have its authority strengthened by the joining of the United States of America as a participating or member nation.

She makes the argument that even though President Biden has accused Russia of war crimes, the United States is not a member of the International Criminal Court, and thus, she says, “It’s that exact position that is now hamstringing the United States as we seek accountability for Putin.” She says, “If we oppose investigations into countries like our own that haven’t joined the ICC, how can we support an investigation into Russia, another country that hasn’t joined the court?” She says, “There’s a simple solution to this.” And I quote, “The United States must join the International Criminal Court.” She thinks she’s strengthening her argument when she says, “Equality under the law is one of the core tenants of our legal system and the international legal system. If we truly believe in prioritizing human rights and enforcing international law, how can we not be part of the court that upholds that law?”

Well, that’s a fascinating question. She asked the question. I think she actually knows the answer, but the fact is that many readers of The Washington Post, many other Americans considering this issue, won’t recognize the scale of the issues that actually are at stake, but we’re also looking at some fascinating implications that arise because of the Christian worldview. So the Christian worldview makes very clear that criminal acts are indeed criminal acts. As you look at the Old Testament, there is an entire legal system whereby criminal acts are to be investigated, criminals are to be effectively tried, and also effectively punished.

You look at the New Testament in Romans 13, you have Paul writing that Christians understand that the system of justice, even the system of justice of Rome, has been put into place because God demands righteousness and justice of nations, and thus, the government is doing the right thing. Even a government like the Government of Rome is doing the right thing by applauding the innocent and punishing the evil doer. So why isn’t the United States a signatory to the Rome Statute? Why isn’t the United States a participating nation in the International Criminal Court? Well, the answer is this, as you are thinking about court systems, you’re going to have to think about which are legitimate and which are illegitimate.

Calling something the International Criminal Court might, at least in terms vocabulary, give the idea or give the court some sense of authority and importance, but the reality is the Christian worldview also tells us that when you are looking at something like an international context, it’s going to be extremely difficult to actually maintain or administer justice, which is another way of saying that the United States of America would effectively put itself into the way of all kinds of malfeasance by the International Criminal Court if it ever does recognize that court’s existence, because like so many other international bodies, just think the General Assembly of the United Nations, you’re looking at enormous opportunities for mischief.

And by the way, even the most hardened globalist or internationalist who says, look, the United Nations is the model of how these things should be carried out, those persons would also have to admit that the United Nations is really made up of two different bodies, the General Assembly, which has very limited powers, and the United Nations Security Council, made up of just a handful of nations, each of which has veto power over just about anything important to be undertaken, certainly anything with teeth or with military force or prosecutory force that might be considered by the United Nations as a whole.

And going back to the origins, after World War II of the United Nations, and you’re looking at the victorious allies basically setting up that process, Russia has one of those seats that gives Russia veto power over the Security Council. That’s very frustrating right now because it really is hampering the Security Council in responding morally, or even in some sense, militarily to Russia’s invasion of Ukraine. But here’s where Christians have to understand something, it just might be that an ineffective international organization is far less destructive to human rights and human dignity than an effective, or at least what might be considered an effective international agency or international court.

Earlier, I mentioned the argument that was made by former United Nations ambassador, John Bolton, and remember, he was the United States ambassador to the United Nations, where, to the frustration of the United Nations, he actually represented the United States of America rather than the United Nations. And you had John Bolton warning that the International Criminal Court would basically be a way for the enemies of the United States, especially given the global reach of our military and all the context in which the United States would be involved, it would give the enemies of the United States an opportunity without the legal protections of American courts, just basically to go after Americans, including American soldiers or American business people, wherever they may be operating all over the world.

Soldiers are a particular concern, that is the American Military, so much so that during the administration of President George W. Bush, the United States actually passed, and the administration signed what was known as the American Service Members Protection Act, which means that the United States will take every action and will extend every effort to prevent American Armed Forces from being tried by the International Criminal Court. Christians need to step back and recognize that the question of legitimate jurisdiction is one that’s absolutely necessary to the question of law. Otherwise, you can have a citizen of the United States who might be confronted with an arresting officer, because someone wants to take some legal action in a foreign country.

With the threat of dragging the American there and dragging them into the courts, there’s a second issue. It’s not just jurisdiction of where and jurisdiction of who, it’s also the question of the jurisdiction of certain kinds of criminal prosecutions. And then it is the nature, not only the prosecution, but of the court. Here’s something most Americans just wouldn’t realize hearing the International Criminal Court, they might think, well, of course, we would be a participant in that court, a signatory nation, but those Americans would not know, and Representative Ilhan Omar would evidently not tell you that one of the big problems with the International Criminal Court is that that court lacks the due process protections that are afforded to Americans in any criminal process in the United States of America. Instead, the International Criminal Court is run more like courts in some foreign lands where the prosecution can basically run roughshod. It’s just a matter of who’s making the asked, who is in the doc, and then who will decide, meaning often the prosecution itself.

There’s a lot more for Christians to consider here. As you think about history, you look back to the end of World War II, and the United States and the allies put together two very unique and fairly unprecedented international judicial tribunals in order to try Nazi and Japanese war criminals. And those trials were imminently defensible in moral terms. And you also had the allies, because of the insistence of the United States of America, offering due process and protection rights to even foreign criminals being tried in an international tribunal because of the United States and our commitment to the rule of law. Those courts were also of limited duration and of specific assignment.

Now, there were some of the time who said that when the allies put together those two tribunals to try former Nazi leaders for genocide and other war crimes, it was just a form of what was called Victor’s justice. In other words, if the other side won, they might have held a tribunal and they might have put American, British, French, and other forces on trial. Well, yes, they might have, but the point is, when you are looking at an international situation where issues are often actually decided by use of military force, the reality is that military force is going to be more powerful than any kind of international criminal court.

A court of international influence assumes there is some international authority that can establish a rule of law and make certain that it is honored the International Criminal Court, though it might at times righteously prosecute those who deserve prosecution, simply has no international authority to establish justice and to uphold the rule of law. And you’re looking at many countries that certainly would not come close to agreeing on what the rule of law would even look like.

Part II

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The Principle of Subsidiarity for Justice: How Abstraction Leads to Less Justice

But finally, this takes us back to a basic Christian principle we often think of, just as we think about how the Christian worldview engages such an issue. And that is the principle of subsidiarity. That is to say that the greatest moral good, the greatest authority, the greatest integrity is found in the most basic unit. And when it comes to civilization, that means the most basic unit of civilization.

The argument is, by the way, that it’s not just the greatest integrity, but the greatest competence. The most clear illustration of this is in raising a child. The raising of a child is assigned first and foremost to the sphere of the family, to parents. And even as there are others who might, in some sense, contribute to the care of the child, it is the parents who are responsible for the care of the child. And if you try to abstract the care of children away from marriage and the family, you do injury to everyone involved, because just to put the point as simply and straightforwardly as it might be put, government might be competent for some things, actually probably very few things, but one thing the government is not competent to do is to raise a child.

The more you try to abstract say the raising of a child from the context of the family, it’s not that you get more efficiency less, not greater competence, lesser competence. And not, of course, more nurture and support for the child after all but less. But if that’s true for raising children, you just think about something else, like say a criminal charge. What about a charge of murder? That’s a very serious charge. One of the most serious criminal charges we can consider, but where are most cases of murder tried in the United States court system? Most murder trials, trials for the most horrible crime that most people can imagine, most of them are carried out in something like a district court or a circuit court at the level of something like a county.

Now, you might say, it might be that there are some cases of murder that might be prosecuted, might be actually adjudicated in some kind of international context. Well, maybe, but how exactly are you going to bring that about? The point is that you really can’t imagine that the justice system would be improved by moving even those murder trials from the local court to the state court, much less to a federal court. There would not be gain in that process, there would be loss. So that basic Christian worldview principle of subsidiarity, which is revealed even in the structures of creation in Genesis 1 just brings us back to the fact that most issues are going to be handled locally if they are handled competently.

And as you’re even looking at nations, it’s hard to imagine that any authority beyond the nation state can be anything other than minimally competent in trying to bring about something like a criminal prosecution for a very serious crime. I’m not saying that there is no role for international law. I’m just saying that it has to be incredibly limited, it will be generally incompetent, it will fail more than it will succeed, and it has to be something like a court of absolutely last resort. And if you’re thinking, well, if that’s true, certain crimes, certain criminals are going to fall through the cracks, just remember the biblical worldview. Yes, they will, but not forever.

Part III

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Moral Insanity and Biological Impossibility: Same-Sex Couple Cites ‘Antiquated View of Homosexuality’ in Discrimination Suit after Being Denied IVF Benefits

But next, while we’re on the issue of subsidiarity and on the absolute necessity of marriage is a union of a man and a woman at a very center of our understanding of how human beings are to live and even how human beings are to reproduce and how we are to even be defined, well, distance center headline from The New York Times, here’s one, the article’s by Precious Fondren, headline, “Gay couple file complaint over New York’s denial of in vitro fertilization coverage.” Similar article appeared in The Washington Post in this case, and Branigin is the reporter, the headline, “Who can access IVF benefits? A gay couple’s complaint seeks an answer.” Well, this breaks yourselves because we are about to confront a form of cultural and moral insanity, the likes of which was actually technologically impossible until very recent times.

The background to this particular news story is that there are two men. The New York Times says that they are legally married, a same sex married couple who are demanding that New York City’s policy that covers IVF or advanced reproductive technology treatments for city employees should be extended to them, to two men. The first sentence in The New York Times article is this, “A same sex married couple said in a complaint that the city of New York discriminated against them in denying them in vitro fertilization coverage for the city’s insurance plan for employees. They say that the policy, “discriminates against them based on their sex and sexual orientation, and that if they were female or in a heterosexual relationship, they would have access to IVF treatments that city employees are entitled to.” We’re told that until recently, one of the two men was an assistant district attorney there in New York.

New York City’s policy, it’s health insurance policy for city employees offers at least some coverage for IVF. At one point, this particular couple is suggesting that coverage could extend up to about $200,000 of cost that otherwise they’re going to have to pay. But the really revealing part is where, for instance in The New York Times article, one of the two men says this, “It’s mind blowing that in 2022, we’re still having this conversation about a policy that so clearly excludes gay men because of horribly antiquated views of homosexuality.” He says, “We got the ability to get married and the rest would’ve been kind of smooth sailing, but we were sorely mistaken.” Well, here’s what is most sorely mistaken, is the idea that two men can, in any legitimate sense, have a baby.

I think that just about everyone listening to the briefing will understand it takes a male and a female to make a baby. You can’t do it with two females, you can’t have a baby with two males. But as you look at this, you recognize we are at the intersection of several different vital, urgent, more oral issues. One of them is just the confusion about human sexuality and the corruption of marriage, because you also have the statement from these two men one of them say, “Hey, we thought when we got married, we’d be able to have a baby.” Well, again, just go back to sixth grade science, or just go to a farm, you’ll figure it out. And the fact that two men actually can’t have a baby, that is dismissed as a form of an antiquated view of homosexuality. That’s actually what one of the two men said, as if a view of homosexuality has virtually anything to do with whether or not two men can together make a baby. They can’t.

Actually, regardless of your view on homosexuality, it’s just a biological fact. They can’t. In The Washington Post article one of the men said, “Growing a family is the sort of thing that I think gives people a sense of completeness and partially a sense of purpose in life. I frankly don’t think I would feel complete without being able to have a child.” That is why, by the way, the Bible says, “Therefore, a man shall leave his father and mother and shall cling to his wife and they should become one flesh.” That is actually God’s plan. But we’re told that this couple is now suing the city of New York because the city of New York’s in vitro fertilization coverage policy doesn’t cover them. They’re saying that the city’s judgment “constitutes unlawful sex and sexual orientation discrimination.”

This article in the Washington Post is just filled with incredible material for our thinking. First of all, we have the statement that the two men, “Knew early on that conceiving a child would be a costly and difficult endeavor, one that would involve an egg donor and a surrogate to carry the child.” Now, let’s be clear, there are some married heterosexual couples who struggle with infertility. That is not the background to this particular statement. This particular statement is the apparent moral shock that two men can’t have a baby. Later in The Washington Post article, we read that the two men, “Knew early on that conceiving a child would be a costly and difficult endeavor.” Hold on just a minute. Difficult? Again, it’s not difficult for two men to conceive a baby, it is impossible.

But nonetheless, the article then acknowledges that by saying that the process, “Would involve an egg donor and a surrogate.” That means a surrogate mother to carry the child. They met with some doctor about the possibility of going through that process, and it was frustrating. One of them had said, “This system is just not set up to support gay men in this process.” And here’s also something very interesting, a couple, a heterosexual married couple under this policy cannot just go and demand in vitro fertilization or advanced reproductive technological assistance until they have been trying to have a baby by normal means for some time, at least 12 months. And we are told here that that is itself discriminatory since two men can’t do that. Yes, that is actually a principle of nature, two men can’t do that.

Later in The Post article, Cathy Sakimura, who’s Director of Family Law the National Center for Lesbian Rights, pointed to some of the obstacles faced by same-sex couples. She said that this has to do with the way insurance policies are written, and The Post tells us, “Many require a medical diagnosis of infertility…” Notice these next words, “Defined in heterosexual terms or prove the individual couple’s unable to conceive children through the natural normal means.” But just look at this, we’re told that what is required is a medical diagnosis of infertility, and don’t miss these words, “Defined in heterosexual terms.” Let’s just point to something that evidently these days is something close to a thought crime. It comes down to this, two men together cannot be infertile, they can’t be fertile either. Two women can’t be either fertile or infertile.

Those are categories that simply do not apply. But if you buy into the LGBTQ ideology, and you buy into the morality of these advanced reproductive technologies, if you redefine having a baby to involve the cells being donated, the laboratory being involved, and a surrogate womb being hired, well, you might try to define this as the latest frontier battle for civil rights, but the fact is it’s going to be very difficult for any form of logic or biology to consistently apply to this equation. This is insanity, it is the unraveling of creation, and of course, it is also, just to think about this, this is the most minor of considerations mentioned so far, but it’s still, in some sense, a consideration, how in the world can you offer some kind of benefits package for employees that is going to offer to two men or to two women something like $200,000 a child of medical insurance coverage for these so-called reproductive technologies? How in the world is that supposed to work?

By the way, another indication of the rightness of creation is that under most conditions, it costs a man and a woman, who are husband and wife, nothing in terms of medical cost to conceive most babies. As I often mention on The Briefing, there are huge Christian worldview moral and theological issues that simply are attached to in vitro fertilization and other modern so-called advanced reproductive technologies. But we see right now how these technologies have supposedly morally and scientifically facilitated what no previous generation of human beings could even have imagined. We simply have to end this today by saying those previous generations couldn’t have imagined it because in the right sense, it should be unimaginable.