THE INTERNATIONAL CRIMINAL COURT MUST DIE
Aug 10, 1998, Vol. 3, No. 46 • By DAVID FRUM
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.