The Magazine

THE INTERNATIONAL CRIMINAL COURT MUST DIE

Aug 10, 1998, Vol. 3, No. 46 • By DAVID FRUM
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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.