The Magazine

Don't Tread on Us!

How to handle the International Criminal Court.

May 20, 2002, Vol. 7, No. 35 • By JEREMY RABKIN
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AFTER A YEAR of internal debate, the Bush administration announced a decision last week: The United States would no longer consider itself a signatory to the Rome Treaty establishing the International Criminal Court.

The world barely reacted. The American media yawned. The policy decision was not announced by the president or the secretary of state. It was made public by Marc Grossman, undersecretary of state for political affairs, at a hastily organized presentation, hosted by a think tank in Washington on May 6.

It was not exactly big news that the United States would not join the ICC. Even President Clinton had described the Rome treaty as "flawed" when he signed it in the last weeks of his term. It was never submitted to the Senate and has never had any prospect of ratification.

Unsigning the treaty does release the United States from its obligation under customary law (as codified in the 1969 Vienna Convention on the Law of Treaties) to "refrain from acts which would defeat the object and purpose" of the treaty. But what will the administration actually do now to "defeat the object and purpose" of the Rome treaty? Grossman didn't say.

To the contrary, he stressed general American sympathy for the aims of the ICC. "From our pioneering leadership in the creation of tribunals in Nuremberg, the Far East, and the International Criminal Tribunals for the former Yugoslavia and Rwanda, the United States has been in the forefront of promoting international justice." Grossman made no distinction between trials conducted in Germany and Japan after the war, where the United States exercised sovereign powers through its military occupation, and tribunals created by the Security Council in the 1990s to judge perpetrators of crimes in states still regarded as sovereign.

The fact is that in Rwanda, the U.N. tribunal has generated tremendous frustration by protecting the perpetrators of genocide, very few of whom have actually been punished. The tribunal for the Balkans has managed to make Slobodan Milosevic popular again in Serbia. At the same time it has made democratic leaders--those who actually overthrew Milosevic--look weak and incapable, because the tribunal would not even let Serbia's democratic government attempt its own trial of the former dictator, and the trial in The Hague has been incompetently organized.

In the State Department view of the world, however, international justice is just fine--as long as it is imposed by the Security Council, where the United States has a veto. So, says Grossman, the "United States will use its position on the U.N. Security Council to act in support of justice" and we "ask those nations who have decided to join the Rome Treaty to meet us there."

No wonder there hasn't been much outcry. We'll meet you in New York. They'll wait for us in Rome or at The Hague. It's just a dispute about the address, it seems.

What the Bush administration did not say--at least not at all clearly--is what it will do if the ICC does indict Americans and signatory states then follow through with arrests. The administration does not seem to have thought that far ahead. But it may not have more than a few months to figure out a response.

It's true that Americans get arrested in other countries all the time for crimes committed in those countries. In principle, we have no objection to sovereign states exercising criminal jurisdiction in their own territory. But if the United States government thinks the arrest of an American abroad was unfair or abusive, it can, in the normal case, register a strong protest with the arresting state and try, in various ways, to get that state to change its position.

What the ICC treaty does is remove the element of state responsibility. The arresting state can claim that it is just following orders from The Hague: "nothing personal." The accused may then be sent to prison facilities in the Netherlands while awaiting trial. But the Dutch government will also disclaim any responsibility for holding an American because it is the ICC which is making the decisions.

This is intolerable and the administration needs to say so very clearly. The last time a government disclaimed responsibility for the detention of Americans, it was the new government of Iran in 1979, claiming that it could not control the revolutionary students who held personnel in the U.S. embassy as prisoners for more than a year. The only thing different about arresting or holding Americans for the ICC is that the detaining states--or the hosts for the detention--have signed a treaty saying they will do so. That should have no bearing on the American position. The treaty is an agreement between the arresting state (or the Dutch state) and other consenting states. The United States has not consented. Its right to act in defense of its own citizens can't be waived away by treaty agreements among third parties.