Clinton Legacy Watch # 54: An International Criminal Court that Erodes U.S. Sovereignty, Constitutional Rights

(Washington, D.C.): At the last possible moment,¹ President Clinton inflicted upon the Nation and, in particular, its military what may prove to be one of his most damning legacies — by making the United States a signatory to the 1998 Treaty of Rome establishing an International Criminal Court (ICC).

This action was especially outrageous insofar as the President felt compelled in announcing his eleventh-hour decision to subject the U.S. to the ICC to declare that:

In signing…we are not abandoning our concerns about significant flaws in the Treaty. In particular, we are concerned that when the Court comes into existence, it will not only exercise authority over personnel of states that have ratified the Treaty, but also claim jurisdiction over personnel of states that have not….Court jurisdiction over U.S. personnel should come only with U.S. ratification of the Treaty. The United States should have the chance to observe and assess the functioning of the Court, over time, before choosing to become subject to its jurisdiction.

President Clinton went on to declare that, in light of these problems, “I will not, and do not recommend that my successor, submit the Treaty to the Senate for advice and consent until our fundamental concerns are satisfied.”

Clinton Flim-Flam

Unfortunately, this arrangement reeks of Mr. Clinton’s characteristic disingenuineness. As an excellent op.ed. column by former Assistant Secretary of State John Bolton that appears in today’s Washington Post makes clear, pursuant to Article 18 of the Vienna Convention on Treaties, the President has now obliged the United States “not to undertake any actions that would frustrate [the Treaty of Rome]” prior to ratification.²

In other words, unless and until the United States government formally serves notice that it is not going to proceed with ratification — in Mr. Bolton’s turn of phrase “unsigns” the ICC treaty — the Nation will be bound to observe its provisions and obligations. That prospect is unacceptable in the extreme, both for practical reasons that have prompted vehement opposition to the ICC from the U.S. military and for the Treaty of Rome’s larger implications for American sovereignty and constitutionally defined jurisprudence.

A Bill of Particulars

The concerns expressed by the U.S. military and others about the Treaty of Rome can be summarized as follows:

• In the absence of a clear UN Security Council veto over war crimes prosecutions, American troops and civilian leaders could be subjected to politically motivated trials without the protections built into our system of jurisprudence derived from the U.S. Constitution and, in the case of the armed forces, enshrined in the Uniform Code of Military Justice (UCMJ). And, in a broader context, oversight by the Security Council is necessary to ensure a meddling court does not interfere, or otherwise endanger peacekeeping efforts aimed at resolving conflicts.
• Of particular concern is the prospect that without an agreed definition in the Treaty of Rome of the crime of “aggression,” U.S. political and/or military leaders could be arrested and tried in the future in connection with combat operations simply because others do not approve of those operations. For example, had the ICC been in place at the time of President Bush’s 1989 incursion into Panama to end Manuel Noriega’s despotic rule, it is entirely possible that the incoming President’s father and his Secretary of State-designate, then-Chairman of the Joint Chiefs of Staff General Colin Powell, might have been subjected to prosecution over charges of inordinate loss of civilian life.
• The United States military has a highly refined legal code with an established record of bringing to justice in a fair and dispassionate manner those suspected of perpetrating, among other things, crimes against humanity. By dint of their unique global responsibilities and deployments, America’s armed forces have concerns about being subjected to extra-national systems of justice that simply do not apply to other countries’ militaries. It is essential to the maintenance of good order and discipline that the UCMJ be preserved as the preeminent code of conduct for U.S. service personnel.
• A related concern is that the ICC creates a mechanism for producing highly prejudicial developments in the body of international law known as the “law of war.” –the legal regime defining acceptable miliary conduct developed through the customary practice of states in which humanitarian concerns are balanced with the military necessity of bringing a conflict to a rapid and successful conclusion. The manner in which the Court itself came into being is illuminating — and worrisome: In the end, American objections to the Treaty of Rome were simply voted down, 120-7 vote with 21 abstentions.

  Without the protections inherent in consensus-based decision-making, U.S. constitutional rights and other aspects of our sovereignty are likely to be jeopardized whenever it suits a majority of the “international community.” The mere act of defending legitimate national security interests accepted as legitimate under traditional notions of customary international law could now subject our military and political leaders to ICC war crime prosecutions.

Post-Americanism

The last of these represents the larger problem with the ICC — and the notion that the United States will be subjected to it: The Treaty of Rome is a product of a phenomenon John Fonte of the Hudson Institute has dubbed “post-Americanism.” According to this school of thought, the nation-state is pass; in particular, American exceptionalism is a relic of an earlier age that must give way to the imperatives of globalist supranationalism. Its adherents believe that inequities in the distribution of power and resources — especially the United States’ disproportionate allocation of both — mean that multinational institutions must be devised to level the field. The rule is one country-one vote and the lowest-common-denominator produced by majority rule must govern.

As Secretary Bolton put it:

…The ICC’s supporters have an unstated agenda, resting, at bottom, on the desire to assert the primacy of international institutions over nation-states. One such nation-state is particularly troubling in this view, and that is the United States, where devotion to its ancient constitutional structures and independence repeatedly brings it into conflict with the higher thinking of the advocates of “global governance.” Constraining and limiting the United States is thus a high priority.

The reality for the United States is that over time, the Rome Statute may risk great harm to our national interests. It is, in fact, a stealth approach to eroding our constitutionalism and undermining the independence and flexibility that our military forces need to defend our interests around the world.

This is no exaggeration. One of the principal U.S. champions of the ICC is the World Federalist Association. As Walter Cronkite, the former CBS news anchor and recipient of the organization’s 1999 “Norman Cousins Global Governance Award” put it on receiving this dubious distinction:

Those of us who are living today can influence the future of civilization. We can influence whether our planet will drift into chaos and violence, or whether through a monumental educational and political effort we will achieve a world of peace under a system of law where individual violators of that law are brought to justice. We need a system of enforceable world law — a democratic federal world government — to deal with world problems.

Tellingly, Mr. Cronkite — who was introduced at the World Federalist Association event by then- First Lady/now-Senator Hillary Clinton — added that, in order to achieve world government: “Americans will have to yield up some of our sovereignty. The notion of unlimited national sovereignty means international anarchy.”

Affirming the ICC Won’t Help the U.S. Fix It

Another powerful indictment of Mr. Clinton’s eleventh-hour rejection of his Defense Department’s opposition to the Treaty of Rome appeared as an op.ed. in yesterday’s Wall Street Journal. Its author, Dr. Jeremy Rabkin, emphasized what this action actually does to the President’s stated interest in fixing the ICC’s “serious flaws”:

…Mr. Clinton has undercut our actual leverage as a critic of the court. We should be saying that we don’t want to see this court come into existence at all in its current form. We should be exerting pressure on allies and friends not to ratify. Instead, we have now blessed the existing treaty by signing it, hoping the world will heed our cavils more than our blessing….

…Mr. Clinton has repeatedly signed treaties that have no hope of Senate ratification and then simply declined to submit them to a vote there. The 1997 Kyoto Protocol on global warming is but the most notorious example. This practice enables the president to cast the U.S. as a willing partner in ventures that actually command very little domestic support. Instead of rallying domestic consensus for international commitments, such maneuvers leave our diplomacy in a fantasy land of good intentions, which the president then doesn’t dare put to the test.

First into the Dock — Ehud Barak?

With his authorization of a U.S. signature on the Treaty of Rome, President Clinton knocked the pegs out from under those in Israel who were resisting international pressure to enroll as well. This may shortly produce a most ironic result: Palestinian and other Arabs have repeatedly cited Israeli activities such as the construction of settlements as “war crimes.” Then, on 1 October, the Arab League issued a communique following an emergency session in Cairo declaring that it held Israel “fully responsible” for the deaths of Palestinians resulting from the latest Intefada. The League called for an international investigation “into the horrible crimes carried out against the Palestinian people, and the trial of the Israeli officials responsible for them by the International Criminal Court.”

Recently, the UN Human Commission met in a rare emergency session and found Israel guilty of “war crimes” and “crimes against humanity” in the “occupied Palestinian territories, including Jerusalem” and created its own human rights investigation on all Israeli activities. Of course, this is the same commission which is regularly unable to condemn China, Cuba or even Yasser Arafat for their human rights violations. More to the present point, this situation illustrates how counterproductive an interloping court can be to efforts to achieve a just and durable peace.

As a result, Prime Minister Barak — having made the mistake (among many others) of allowing his country to join the ICC — may be one of the first to be prosecuted by the Court, and there will be nothing the Israeli government or, for that matter, the U.S. government can do about it. If so, it seems unlikely that friends of Israel in the United States and elsewhere, to say nothing of the people of the Jewish State themselves, will enjoy very much what Mr. Clinton called “the chance to observe and assess the functioning of the Court.”

The Bottom Line

President-elect Bush’s press spokesman Ari Fleisher announced in the wake of Mr. Clinton’s New Year’s eve announcement that the new Administration will not submit the Treaty of Rome to the Senate for its advice and consent. While that is a positive step, because of the Vienna Convention Article 18 problem, it is wholly insufficient.

Mr. Bush should make the “unsigning” of the ICC treaty one of his first orders of business upon taking office. By so doing, he will send an incalculably important message to his troops that help is no longer “on the way,” as Vice President-elect Cheney put it in the course of the campaign — it has arrived. No less importantly, the Bush-Cheney team will be serving notice on the international community: The incoming team is determined to be an American administration, not a post-American one.

¹In so doing, Mr. Clinton departed somewhat from his usual practice of taking controversial actions in the news-cycle’s equivalent of a black hole by announcing them on Friday afternoon, or better yet the eve of a holiday weekend. In the case of the ICC, the President waited until New Year’s eve Sunday to unveil his odious decision.

²Of course, as with the Clinton Administration’s fealty to the 1972 Anti-Ballistic Missile Treaty, the U.S. adherence to the Vienna Convention’s requirements are a function of policy rather than legal obligation since, as Secretary Bolton notes in today’s Post: “Relying on Article 18, which cannot sensibly apply to our government of separated powers, is wrong in many respects, not least that the United States has never even ratified this Vienna convention.”