President Clinton's last-minute decision to authorize U.S. signing of the treaty creating an International Criminal Court (ICC) is as injurious as it is disingenuous. The president himself says that he will not submit the Rome Statute to the Senate for ratification because of flaws that have existed since the treaty was adopted in Rome in 1998. Instead, he argues that our signature will allow the United States to continue to affect the development of the court as it comes into existence.
Signing the Rome Statute is wrong in several respects.
First, the Clinton administration has never understood that the ICC's problems are inherent in its concept, not minor details to be worked out over time. These flaws result from deep misunderstandings of the appropriate role of force, diplomacy and multilateral institutions in international affairs. Not a shred of evidence -- not one -- indicates that the ICC will deter the truly hard men of history from committing war crimes or crimes against humanity. To the contrary, there is every reason to believe that the ICC will shortly join the International Court of Justice as an object of international ridicule and politicized futility. Moreover, international miscreants can be dealt with in numerous other ways, as Serbia may now be proving with Slobodan Milosevic.
Second, 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.
Third, the administration's approach is a thinly disguised effort to block passage of the American Servicemembers' Protection Act, introduced last year in Congress. This bill, if adopted, would unequivocally make it plain that the United States had no interests in accepting or cooperating with the ICC. Sponsored by Sen. Jesse Helms and Rep. Tom DeLay, the proposal has garnered impressive political support, including from former secretaries of state Henry Kissinger, George Shultz, James Baker and Lawrence Eagleburger, Secretary of Defense-designate Donald Rumsfeld and former secretary Caspar Weinberger and former national security advisers Zbigniew Brzezinski, Brent Scowcroft and Richard Allen.
So what will signing the Rome Statute do? The president is undoubtedly thinking of Article 18 of the Vienna Convention, which requires signatories to a treaty, before ratification, not to undertake any actions that would frustrate its objectives. President Clinton has used this provision before. After the Senate defeated the Comprehensive Test Ban Treaty, the administration cited Article 18 (rather than the president's constitutional authority as commander in chief) to justify a continued moratorium on underground nuclear testing. Obviously, the pending anti-ICC bill would divorce the United States from the court and violate Article 18, or so we will soon hear.
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. Ironically, however, President Clinton's "midnight decision" to sign the Rome Statute provides guidance to solve the problem he has needlessly created, and others as well.
After appropriate consideration, the new administration should straightforwardly announce that it is unsigning the Rome Statute. President Clinton himself stated that he will not submit the treaty to the Senate, so this is a purely executive decision. What one president may legitimately (if unwisely) do, another may legitimately (and prudently) undo. The incoming administration seems prepared to take similar actions in domestic policy, and it should not hesitate to do so internationally as well.
Not only would an unsigning decision make the U.S. position on the ICC clear beyond dispute, it would also open the possibility of subsequently unsigning numerous other unratified treaties. It would be a strong signal of a distinctly American internationalism.
The writer, a senior vice president of the American Enterprise Institute, was assistant secretary of state for international organization affairs in the first Bush administration.