President Bill Clinton unexpectedly authorized a
U.S. representative to sign the 1998 Rome Statute establishing an
International Criminal Court (ICC) on December 31, 2000--the last
day countries could become parties to the treaty without ratifying
it. This caught Congress and America by surprise; the
Administration had refused to sign the treaty for 18 months
because, in the President's words, it had "significant flaws" that
threaten the rights of Americans and legitimate activities of the
U.S. military. Now the White House is claiming its midnight action
will ensure that U.S. negotiators have a voice in the ICC's actions
and procedures and reaffirm America's opposition to genocide, war
crimes, and crimes against humanity.
justifications are disingenuous. The United States has demonstrated
its opposition to such offenses, for example, by making substantial
commitments to military and humanitarian interventions. Moreover,
repeated attempts to secure changes that address its concerns have
been rejected. By signing the treaty without those changes, the
President has undermined these principled efforts.
Bush Administration should move immediately to counter President
Clinton's ill-considered action, first by notifying the
Secretary-General of the United Nations (the depositor of the
treaty) that the United States will not be bound by the current
statute, which threatens national sovereignty and is unlikely to be
ratified by the U.S. Senate. In the meantime, the Administration
should work with Congress to ensure that Americans are protected
from the court's actions and to prohibit U.S. diplomatic or
financial support for the court until its concerns have been
addressed. If these conditions are not met by the conclusion of the
ICC Preparatory Commission's meetings in March, the Administration
should discourage other countries from ratifying the treaty.
What's Wrong with the Treaty
The Rome Statute has been ratified by only 27 of the 60
countries needed for it to take effect. If it enters into force, it
will create a Netherlands-based international legal bureaucracy
with the authority to arrest, prosecute, and punish nationals from
any country accused of such "international" offenses as war crimes
and crimes against humanity. As the statute is now written,
Americans who appear before the court would be denied such basic
constitutional rights as trial by a jury of one's peers, protection
from double jeopardy, and the right to confront one's accusers.
Finally, the ICC could prosecute and punish even the nationals of
countries that do not sign and ratify the treaty--an astonishing
break with the accepted norms of international law.
Supporters argue that the ICC will deter
genocide and other atrocities, but this flies in the face of
reality. Many repressive governments have signed the Rome Statute
but continue to commit atrocities against civilians. The Sudanese
government, for example, is embroiled in a civil war against
Christians and others from the nation's southern region, and
Zimbabwean President Robert Mugabe has encouraged his supporters to
murder political opponents and seize their property. Clearly, such
regimes do not fear an ICC. They are more likely to see it as a
useful vehicle for spurious accusations against the United States
and its allies.
What Signing the Treaty Signifies
President Clinton acted inappropriately by authorizing the
signing of the ICC treaty in the last days of his Administration.
Although the statute will not be binding under U.S. law until it
receives the Senate's consent and is ratified, the Administration's
signature carries symbolic weight. It implies that the United
States supports the ICC and intends to become a full participant.
This weakens its position that the treaty is seriously flawed,
bolsters the credibility of an ICC, and increases the probability
that other nations will ratify the statute. Indeed, few
international organizations can prosper without full U.S.
What the Bush Administration Should
Upon taking office, President Bush should send written
notification to the U.N. Secretary-General that the United States
does not intend to be bound by the treaty. This will help avert
international objections to future efforts to protect U.S.
interests and U.S. citizens from the effects of an ICC based on a
Administration should also pursue, with Congress, measures that
safeguard the constitutional rights of Americans, such as
provisions of the American Servicemembers' Protection Act of 2000
(H.R. 4654/S. 2726) that authorize actions to free U.S. military
personnel and officials held by the court and to prohibit U.S.
funds from supporting the ICC until U.S. concerns are adequately
addressed. In the meantime, the Administration should participate
in the ongoing negotiations on the treaty to seek remedies for its
flaws. At a minimum, the treaty should be changed to protect U.S.
soldiers and officials from arrest for actions that support legal
military operations and ensure that the basic rights embodied in
the U.S. Constitution are used in ICC cases involving the United
States or its citizens.
the statute's flaws are not satisfactorily addressed at the
February 26-March 9 ICC Preparatory Commission meetings, the
Administration should exert the full political and diplomatic
influence of the United States to discourage other
nations--particularly friends and allies--from ratifying the
treaty. Finally, Washington should pursue all additional measures
that will protect Americans, the U.S. military, and U.S.
sovereignty should the court become a reality.
Proponents of the ICC suggest that if it continues to oppose
the court, the United States will lose credibility and moral
standing as the world's foremost democracy, and instead will appear
to be an isolationist nation that wishes to remain above the law.
President Bush should ignore such groundless claims and make clear
that the United States will not sign any treaty that weakens its
sovereignty or violates the core principles on which its
constitutional system is founded.
true measure of America's commitment to peace and justice and its
opposition to genocide and war crimes lies not in its participation
in international bureaucracies, but in its actions. America has an
unmatched record of policing its military and countering the
actions of despots. The Bush Administration should remind the
participants in the ICC Preparatory Commission of this fact and not
accept the terms of a seriously flawed treaty signed by its
predecessor at the 11th hour.
Brett D. Schaefer is
Jay Kingham Fellow in International Regulatory Affairs in the
Center for International Trade and Economics at The Heritage