||Unsign That Treaty
by John R. Bolton
Thursday, January 4, 2001 ; Page A21
The Washington Post
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
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.
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.
© 2001 The Washington Post