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Human Rights and International Law

A Dangerous Step Closer to an International Criminal Court
Jeremy Rabkin*
American Enterprise Institute
January 2001


President Clinton has approved a treaty that would create an international court to try war crimes and crimes against humanity. He explained that, despite having concerns about the treaty, he signed on because he wants the United States "to remain engaged in making the ICC an instrument of impartial and effective justice." Signing was at best a tactical blunder, however. The treaty as it stands would further erode our diminishing sovereignty, and signing it removes our leverage in trying to fix its flaws.

On December 31, with the country distracted by the New Year's revels, Bill Clinton announced that the United States would sign the treaty to establish an International Criminal Court. He characterized his decision as an act of "moral leadership." In other words, it was a betrayal of American interests.

The treaty was drafted at a United Nations conference in Rome in July 1998. Then, and in over two years of subsequent bargaining over remaining details, Mr. Clinton had refused to sign, primarily because of strong objections from the Pentagon. The objections remain strong.

What the Treaty Would Do

The treaty would transfer ultimate judgment on American military measures from the U.S. government to an international prosecutor. The Clinton administration has consistently sought some great-power veto on the prosecutor's discretion, or some exemption for troops on U.N. missions. The Europeans and others have persistently rejected such modifications.

Mr. Clinton says that "jurisdiction over U.S. personnel should come only with U.S. ratification of the Treaty" and has called on the Senate to delay ratification until the court is adequately reformed. But U.S. personnel would be subject to prosecution anyway, because the court now has jurisdiction where the victims of a "war crime" or "crime of aggression" come from a ratifying state (even if the alleged perpetrators do not).

Moreover, the treaty establishes a special provision by which a country can ask the court to take jurisdiction over some crime against its nationals without that country actually committing itself to turn over its own nationals to the court. This is an invitation to special raids on Americans. Or perhaps on American allies, such as Israel, which pleaded in vain at the Rome conference against successful Arab initiatives that effectively classify the building of Jewish settlements on the West Bank as a "war crime."

Suppose Israel and the Palestinians are making progress in a serious peace negotiation. Will it be helpful for the court's prosecutor to barge in with his own indictments? No national government is permitted to offer an amnesty that binds the court, nor is the United Nations authorized to do so. Yet every country that has made a transition to democracy in the past decade (from South Africa to numerous states in Latin America and Eastern Europe) has sought national reconciliation with just such measures.

Any country that wants to arrange for outside trial of its own nationals can already do so. The United Nations has established three special-purpose tribunals (for the former Yugoslavia, for Rwanda and, most recently, for Sierra Leone), and could do this again. Spain and other European countries, which offered to try Gen. Augusto Pinochet for abuses in Chile over two decades ago, could certainly make their courts available for special trials of other perpetrators. Far from excluding such ad hoc ventures, the ICC treaty actually invites states to adopt them, "recalling" in its preamble "that it is the duty of every State to exercise its criminal jurisdiction over . . . international crimes," without limiting this jurisdiction to its own nationals.

Much of the world wants to pretend that international justice can be delivered on the cheap. Mass murder in Rwanda? No need to send troops and risk casualties of your own. Just send in a team of lawyers to show you care. This has, of course, been the policy of the Clinton administration as well as the United Nations. But the International Criminal Court's statute was finally a way to call the Clinton bluff: If international justice is so noble, why not impose it on the United States, too?

Let the United States supply the troops and the court will sit in judgment on how well the U.S. has done. But the world that presumes to judge American action in this court does not volunteer to replace American power with any international alternative. International justice is merely a slogan that appeals to European leaders who are eager to make European rhetoric a counterweight to American resources.

What the United States Should Do

Mr. Clinton claims that signing the treaty assures the United States a better opportunity to work for changes from within. But the U.S. has only one vote among some 130 current signatories. What we haven't been able to persuade others to do in two years on the sidelines we aren't likely to put over as a signatory.

In the meantime, though, Mr. Clinton's action has undercut our actual leverage as a critic of the court. We should be saying that we don't want to see this court come into existence at all in its current form. We should be exerting pressure on allies and friends not to ratify. Instead, we have now blessed the existing treaty by signing it, hoping the world will heed our cavils more than our blessing.

In fact, we may now be committed, under existing international law, not to act in any way that would undermine this treaty. That is the obligation of states that sign a treaty before they ratify it, according to the 1969 Vienna Convention on the Law of Treaties. And in general terms, the obligation makes sense: Countries should not sign treaties with their fingers crossed behind their backs.

But Mr. Clinton has repeatedly signed treaties that have no hope of Senate ratification and then simply declined to submit them to a vote there. The 1997 Kyoto Protocol on global warming is but the most notorious example. This practice enables the president to cast the United States as a willing partner in ventures that actually command very little domestic support. Instead of rallying domestic consensus for international commitments, such maneuvers leave our diplomacy in a fantasy land of good intentions, which the president then doesn't dare put to the test.

President-elect Bush should give top priority to a review of Mr. Clinton's globalist legacy—starting with the International Criminal Court. According to our Declaration of Independence, "a decent respect to the opinions of mankind requires that [Americans] should declare the causes which impel them to the separation." There is more "decent respect" in an honest statement of American opposition than in a perpetuation of Clintonian evasions.


Note *: Jeremy Rabkin, a professor of government at Cornell University and an adjunct scholar of AEI, is the author of Why Sovereignty Matters (AEI Press, 1998; to order call 800.937.5557). This article appeared in the Wall Street Journal on January 3, 2001.  Back