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I am going to commit the unpardonable Jewish sin of kenahora and assume that Joe Biden sweeps to victory and brings with him a Senate Democratic majority. He will then be doomed to spend a major chunk of the next four years simply cleaning up the mess left by Trump, and recruiting real human beings to fulfill critical government functions.

Crimes Against Humanity

Let’s talk for a moment about foreign affairs because it is a subject given little attention in light of our domestic crises. We assume that President Biden will swiftly rejoin the Paris Climate Accord and try to re-activate the Iran Anti-nuke agreement, as well as hug our NATO allies and keep Russia at bay. He will also inject a healthy skepticism into our historic alliance with Israel, hoping to decelerate the confiscation of Palestinian land and embrace a two-state solution. These are no-brainers.

What if, before Cyrus Vance Jr. can indict and prosecute the ex-President for something as mundane as bank fraud, Trump is arrested and turned over to authorities at the International Criminal Court in the Hague...?

But now let me indulge your wildest fantasies. What if, before Cyrus Vance Jr. can indict and prosecute the ex-President for something as mundane as bank fraud, Trump is arrested and turned over to authorities at the International Criminal Court in the Hague to stand trial for crimes against humanity, to wit, the forcible separation of children and parents at our southern border as a purposely cruel program designed to deter lawful asylum seekers?

And what if, alongside Trump in the defendants’ dock sit all his enablers in this program, such as Jeff Sessions, Kristjen Nielsen and Homeland Security apparatchiks who purposely failed to track children and parents so as to make reunification impossible? Critical witnesses for the prosecution would be the Inspector General of Homeland Security and all the courageous civil servants and whistleblowers who valiantly tried to derail the illegal program.

Also testifying would be the ACLU and immigrant rights crusaders who pressured judges to halt the illegal conduct, as well as the judges themselves whose numerous injunctions were intentionally ignored.

In the streets of our country today there is a reckoning going on. A big part of that reckoning is the belated acceptance of our own history. Native Americans were subjected to genocide and theft. Blacks were enslaved, and when a brutal war ended slavery, oppression lived on in the form of Jim Crow and institutional racism.

It is a phenomenon of a maturing society that we can (finally!) look at our own history, embrace the good and learn from the bad. In the realm of international human rights, the United States should rejoin the rest of the world and unashamedly embrace international efforts to bring the most egregious offenders to justice. That would mean enacting a treaty and joining the Rome Statute of the International Criminal Court. And it would mean that we accept that international human rights is a stated goal of our foreign policy, that what happens to the Uighers and Tibetans in China and the Rohingya in Myanamar are concerns of every American, even if that means we have to allow international examination of our own country’s conduct in torturing prisoners in Bagram or tearing children from their parents at our southern border.

The Obama administration flirted with joining the ICC; it’s time to make joining a platform plank of the newly muscular and progressive Democratic Party. In the Trump era the United States has lost its voice. It is time to regain that voice if we want our children and grandchildren to be proud citizens of the world.

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This is what the Rome Statute says about crimes against humanity:

Article 7 Crimes against humanity

1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

  • (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

. . . . (d) "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;

(e) "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; .

. . (g) "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;

(h) "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;

(i) "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

What’s not to like in the above? Trials are intended to be teachable moments. Think about the progress the proponents of evolution made in 1925 by showcasing the trial of John Scopes, a schoolteacher charged with teaching Darwin’s theory in Tennessee. Or the Nuremberg trials of Nazi leadership, which led to the establishment of the International Criminal court. The rule of law has taken a tragic hit under Trump. Let’s do everything we can to restore it, both domestically and internationally.

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Roger Lowenstein