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New world court out of order by Brett D. Schaefer
Published by The Washington Times 1/16/01

In an unexpected break with longstanding U.S. policy, President Clinton recently ordered an administration official to sign a treaty that would create an International Criminal Court. This despite what he calls "significant flaws" in the document that threaten the rights of Americans traveling or living abroad and military personnel stationed overseas.

The question is, why? The same flaws that led him to reject signing the treaty for more than 18 months are still there. The president has said he changed course because only by signing could U.S. negotiators work to amend the ICC treaty and reaffirm our opposition to genocide, war crimes and crimes against humanity.

This defense is disingenuous. The United States has tried unsuccessfully to secure changes that would protect Americans since the treaty was made final in 1998. If anything, the signature undermines America's position because it implies the treaty is easily fixed, when its problems are fundamental and require wholesale changes.

Granted, it sounds well-intentioned. The treaty would create an international legal bureaucracy in the Netherlands with authority to arrest, prosecute and punish citizens from any country accused of such offenses as war crimes and crimes against humanity. But Americans appearing before the court would be denied basic rights that are pillars of our criminal justice system, including a trial by a jury of one's peers, protection from double jeopardy, and the chance to confront one's accusers.

ICC supporters argue that an international court is needed to deter genocide and war crimes. Nonsense: Despots don't pause to weigh the possible legal ramifications before committing atrocities. Consider that the treaty's signatories include Sudan, whose government has regularly bombed civilian targets in its ongoing civil war, and Zimbabwe, which signed the treaty after its president had stolen the country's latest election and encouraged his supporters to murder political opponents.

Clearly, these governments don't fear the court would be used against them. More likely, repressive governments would use the ICC to harass nations such as the United States with spurious and politically motivated accusations designed to discourage U.S. military action in support of its national interests.
So what can be done? Not much, treaty proponents will say, arguing that this signature obligates the United States to "refrain from acts which would defeat the object and purpose of a treaty," a principle incorporated in the Vienna Convention on the Law of Treaties. Even though the United States has never signed the Vienna Convention, proponents no doubt will use this treaty to frustrate U.S. opposition to the ICC.

To circumvent this, President-elect George W. Bush should immediately notify treaty officials in writing that the United States will refuse to be bound by the treaty. The administration should then work with Congress to enact legislation that would prohibit U.S. cooperation with the ICC, authorize actions to free U.S. military personnel and officials held by the Court and bar American funding for the court until this country's concerns are adequately addressed.

Some observers may say this is unnecessary, since the treaty isn't binding unless it is ratified by the U.S. Congress a highly unlikely development. But if enough countries finally sign it (encouraged, perhaps, by our example), the ICC could claim jurisdiction to prosecute and punish nationals of countries that have not signed and ratified the treaty, thus threatening U.S. interests.

The Bush administration therefore should exert the full diplomatic influence of the United States to discourage other countries from ratifying the treaty, which cannot take effect until at least 60 countries have signed and ratified it (only 27 have so far).

ICC proponents have suggested the United States will damage its credibility and moral standing if it continues to oppose the ICC, that America risks appearing isolationist and a bully that wishes to remain above the law. But the true measure of our commitment to justice (and our opposition to genocide and war crimes) lies in our actions, not in our participation in international legal bureaucracies as witnessed by the many repressive governments on the list of ICC signatories.
Mr. Bush's pick for defense secretary, Donald Rumsfeld, identified the stakes quite well in a letter to Congress in December. He joined nearly a dozen other prominent retired policy-makers in warning that "American leadership in the world could be the first casualty" of the ICC. By the same token, the court can and should become a casualty of American leadership, but only if the new administration acts quickly.

Brett D. Schaefer is the Jay Kingham Fellow in International Regulatory Affairs at the Heritage Foundation's Center for International Trade and Economics.


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