THE INTERNATIONAL CRIMINAL COURT MUST DIE
Aug 10, 1998, Vol. 3, No. 46 • By DAVID FRUM
Bluster minus resolve equals humiliation: That is the Clinton foreign-policy formula. Over the past five years, the United States has endured such humiliations in Somalia, in Yugoslavia, in Iraq, and at the hands of China and Iran. Last month, it suffered yet another -- this time at the United Nations.
For five years, the Clinton administration talked and talked in its garrulous way about establishing a permanent international court for prosecuting war criminals. This year, it got its wish. In June and July, representatives of the world's governments gathered in Rome to vote on a treaty establishing a new International Criminal Court. As might have been predicted -- indeed, it was predicted -- the treaty is a disaster from the point of view of both American interests and American values, so much so that the Clinton administration has refused to sign it or send it to the Senate.
It's embarrassing to have to pull the plug on a diplomatic process you started yourself, but the embarrassment is a debacle of the administration's own making. From the beginning, the Clintonites sent dangerously misleading signals to the rest of the world about what the United States was prepared to tolerate. And perhaps, in their dreamy way, they misled themselves too. This is an administration that has all too often seen American sovereignty as an irritating technicality. This sentence from a speech given by chief U.S. war-crimes negotiator David Scheffer in the Netherlands last October merits parsing: "The shield of sovereignty -- which, after all, is the bedrock of international law -- and the Cold War prevented the best-intentioned architects of the postwar international system from extending accountability or enforcement beyond state responsibility to those individuals who are the most egregious violators of international law."
That's just the sort of self-abnegating talk the U.N. likes to hear from an American. Taking the hint, the Rome delegates went promptly to work on a treaty that refused to pay heed even to America's minimum requirements. Too late, Clinton administration negotiators frantically strove to salvage from the Rome convention something that might have some remote prayer of ratification by the Senate. But the Rome delegates voted down American compromises and amendments amid scenes of anti-American cheering and jeering reminiscent, according to witnesses, of the worst U.N. excesses of the 1970s. The Clinton administration was obliged in the end to reject its own off-spring. But despite that rejection, damage has been done: As soon as 60 countries accede to it, the treaty goes into effect -- and, according to its terms, it will bind not only those countries that sign, but those that don't. Indeed, unless the United States acts wisely now to forestall it, the International Criminal Court will grow into an institution with a great capability to inflict harm.
It's tempting to believe that things that are impossibly boring -- like the work of the United Nations -- are also pointless and unimportant. But as tedious as the discussions and position papers leading up to the creation of the new world court have been, they can only be ignored at great peril to U.S. interests in the world.
The treaty confers on an appointed prosecutor the power to decide that the actions of individuals and governments are "crimes against humanity." Working closely with a court staffed by judges from a number of different countries, some democratic, others not, the prosecutor will have the power to question witnesses, gather evidence, frame indictments, and issue arrest warrants. The whole court will then try these cases and impose punishments. Supporters of the Rome treaty argue that nobody has anything to fear from it except the world's Pol Pots. But the treaty's own language tells a different story.
Article VIII lists war crimes over which the International Criminal Court will have jurisdiction. Here's one of them: "Intentionally directing attacks against civilian objects, that is, objects which are not military objectives." Question: Was Hanoi harbor a "civilian object" when President Nixon ordered it bombed in the spring of 1972? What about the presidential palace in Benghazi, Libya, which President Reagan attacked in 1986? How about the electrical and water systems of Baghdad, destroyed by the American bombing raids on Iraq in 1991? Or the camps and neighborhoods of Mogadishu into which President Clinton ordered the Marines in pursuit of Gen. Aideed? Americans will say -- rightly -- that these "objects" were in every case legitimate targets of war, and that the civilian deaths that resulted were sad but unintended. If the International Criminal Court becomes a reality, however, American opinions of American military actions will no longer be the last word. Not the Congress and the American people but a prosecutor perhaps from Bangladesh, and judges drawn (who knows?) from Ghana, Denmark, Jamaica, Ecuador, Oman, and Malaysia, will decide whether an American president has gone too far in defense of American interests.
Of course, power politics being what they are, the International Criminal Court may hesitate to strike directly at the United States. But Israel will provide a convenient proxy, as it long has in the U.N. General Assembly. The language of the Rome treaty implies that the existence of Israeli settlements in the West Bank constitutes a war crime: "The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies." The treaty further appears to declare the very existence of Israel a crime against humanity; it lists "apartheid" as a crime and then defines "apartheid" in language that U.N. agencies habitually apply to Israel.
Defenders of the treaty will say that these ominous possibilities remain hypothetical. Canadian foreign minister Lloyd Axworthy, perhaps the treaty's single most persistent promoter, says the chances that the court will ever prosecute an American serviceman are "minute." But there's little reason to accept that not very reassuring reassurance. The conferees at Rome stripped away the international procedures that have until now protected the interests of the United States from the caprices of the U.N. system, and opened the door to an alarming possibility of interference in and sabotage of America's ability to defend itself and to guarantee world peace and security.
The United States, like the four other permanent members of the Security Council, can veto important U.N. actions. But the International Criminal Court was carefully structured to deny an American veto. And as the Indian delegate to the Rome conference explained, this was done with the deliberate intention of reducing the influence of the country that through this century has paid most of the bills and shed most of the blood required to defend democracy: "The composition of the Security Council and the veto vested in five permanent members is an anomaly. This anomaly cannot be reproduced and recognized in an [International Criminal Court]. There cannot be one rule for some countries for the exercise of [the court's] jurisdiction and another rule for others."
Astonishingly, David Scheffer, the Clinton administration negotiator, at one point indicated that the United States might actually accept the stripping away of its once-cherished veto, providing only that some role was reserved for the Security Council. This was the so-called "Singapore compromise": Instead of putting in the hands of the Security Council the power to start prosecutions (which the United States could thus always veto), it would have given a majority on the Security Council the power to stop them (which would have meant that the U.S. could protect itself only if seven of its fellow Security Council members agreed). Even this compromise was too much for the governments assembled in Rome, though: They voted instead to confer on the court nearly unfettered discretion to decide whom and when to prosecute.
Almost equally intolerable for the United States, the Rome conference vitiated the principle known in U.N.-speak as "complementarity" -- the idea that democratic countries can be trusted to prosecute their own William Calleys. Instead the Rome treaty gives the International Criminal Court power to prosecute criminals even in countries with functioning legal systems if the prosecutor believes that the home country of the criminal is "unwilling to prosecute."
Someday, somebody will have to explain why so many alleged democrats of the late twentieth century were so eager to vest political power in bodies unaccountable to any electorate. But that is what the backers of the International Criminal Court want. In a fascinating speech last December, Louise Arbour -- the Canadian chief prosecutor of the Yugoslav and Rwandan war-crimes tribunals -- declared, "Subject to legitimate national-security concerns, which should be adjudicated by the court, governments should not control, nor should they be perceived to be controlling, the prosecutor's access to relevant evidence." In other words, the international court, and not the duly elected leaders of a country, ought to have the last word about what is vital, and what is not vital, to a country's national security.
Nobody expects the International Criminal Court to go around subpoenaing the U.S. secretary of state right off the bat. It will take a while for the court to work up its nerve. But direct accusations against the United States are not the only way for this body to make a nuisance of itself. Suppose a civil war breaks out within a country in which the United States has a vital national-security interest. The American interest in such a conflict will probably lie in pacifying it as quickly as possible, by bringing the leaders of the warring factions to the table. But what if those faction leaders have blood on their hands? The last thing an American diplomat needs, after a long day of persuading the various sides to put down their arms and negotiate, is to have some ambitious U.N. official show up to serve subpoenas. True, the treaty creates mechanisms by which the United States can ask the court to cool its jets. But why should it have to ask?
Considerations like these have obliged even the feckless Clinton State Department to abandon the treaty it sponsored. Now the United States must decide what to do about it. There are four main choices: wait and see, renegotiate it, subvert it, or fight it.
The wait-and-see option would mean giving the court time to establish itself, perhaps providing technical assistance so as to prevent it from acting too idiotically. This risks conferring undeserved legitimacy on the court without in any way curbing its potential to damage U.S. interests. This will be the course preferred by the squishiest officials of the Clinton State Department.
Renegotiation is perhaps the most dangerous alternative, and it's (naturally) the course that the Clinton administration seems most interested in. It entails striking a rhetorical hard line against the treaty in its present form, while pleading with the treaty's sponsors in Canada and Europe to offer the United States some concessions that might provide an excuse for an American signature. In other words: another round of bluster and irresolution leading inevitably to yet another humiliation.
In closely reasoned testimony before the Senate Foreign Relations Committee in late July, former assistant secretary of state John Bolton sketched out the third option. He argued that the United States should isolate the International Criminal Court: make clear that the U.S. will pay no heed to its decisions and refuse in any way to cooperate with its work, all with an eye to reducing its status to that of a UNESCO or some other futile U.N. bureaucracy where the nephews of African and Asian dictators find refuge. Meanwhile, Jesse Helms, chairman of the Foreign Relations Committee, is urging the Clinton administration to adopt the fourth option: combat the court directly -- by, for example, refusing to keep troops on the soil of countries that have acceded to the treaty.
Some combination of options three and four will emerge as the foreign policy of the next conservative administration. But in the meantime, there are three things that the United States should do immediately: announce its unwavering refusal to accept the jurisdiction of the court; reduce its contribution to the U.N. budget by a dollar for any dollar that the U.N. devotes to the International Criminal Court; and declare that any attempt by any country to arrest or interfere with any American at the behest of the court will be deemed an unfriendly act.
Among its many charming habits, the Clinton administration has repeatedly condemned all criticism of its foreign adventuring as "isolationism." But if there is anything likely to stir up the old spirit of American isolationism, it is the arrogant attempt by a world body to displace American sovereignty and American law with unaccountable, unelected quasi-governmental world institutions. Real internationalism is, now and always, internationalism that defends and vindicates American interests and American constitutional values. It's no paradox at all: Those who most want America to play a constructive role in the world must most vehemently insist that the International Criminal Court be junked.
David Frum is a contributing editor to THE WEEKLY STANDARD.