The United States and the 1998 Rome Statute
“Though the United States took part in negotiations that led to the 1998 treaty, President Clinton did not sign the treaty until the final days of his administration in 2000 and never submitted it to the Senate for a ratification vote on membership. When the court came into being in 2002, Bush ordered the treaty “unsigned” – an unprecedented action for any nation (…) – and worked to insulate the United States.”
Bob Egelko, on page A – 1 of the San Francisco Chronicle
Wednesday, January 2, 2008
The International Criminal Court isn’t discussed much in the presidential campaign, but few issues are more revealing of a candidate’s perspective on the United States’ legal and political relations with the rest of the world.
The court was established in 2002 to deal with cases of war crimes, crimes against humanity and genocide. Headquartered in the Dutch city of The Hague, it was conceived as a permanent successor to the Nuremberg tribunals formed to try Nazi leaders after World War II. It now has 105 members, including virtually all current U.S. allies, but not the United States itself.
President Bush has attacked the court relentlessly, saying it could subject Americans to politically motivated prosecutions abroad. He has renounced the 1998 treaty that created the court, pressed other nations to disregard it, and signed legislation – nicknamed the “Hague Invasion Act” by critics – authorizing military action to free any citizen of the United States or an allied nation held for trial by the court.
Republican presidential candidates generally share Bush’s view, while Democratic candidates largely reject it. But there are differences among candidates within each party.
Unlike the rest of the Republican field, Sen. John McCain has said he would like to see the United States join the international court, although he would first require more protections for U.S. personnel. Sens. Hillary Rodham Clinton and Barack Obama have taken similar wait-and-see positions, while most of the other Democratic hopefuls have called for full U.S. membership.
The presidential candidates also took differing positions in the only congressional vote on the issue, the 2002 legislation allowing military action to free prisoners at The Hague. Clinton and McCain voted for the bill, as did then-Sen. John Edwards – who now favors U.S. membership in the court – and Republican Rep. Duncan Hunter of Alpine (San Diego County). Three other Democrats, Rep. Dennis Kucinich and Sens. Joseph Biden and Chris Dodd, voted against the measure. The other candidates weren’t in Congress at the time.
Two international law scholars say the candidates’ positions are illuminating because the disagreements over the court represent some of the most critical foreign-policy questions in the post-Cold War world – U.S. autonomy and its limits, the role of international law and the multinational bodies that enforce it, and the balance between power and accountability.
“The court can be seen as a bellwether of their approach to the rule of law and international institutions,” said Michael Scharf, a law professor at Case Western Reserve University in Cleveland. As a State Department official during the administrations of Presidents George H.W. Bush and Bill Clinton, Scharf was responsible for issues related to the court as it was being created.
A second legal analyst, Jose Alvarez, said the candidates “are using (the court) to say something about where they think the U.S. should be in the future with respect to multilateral regimes,” and issues such as unratified treaties on land mines and global warming and relations with the United Nations. Alvarez is a Columbia University law professor and president of the American Society of International Law.
Candidates who favor U.S. membership or increased cooperation with the court, he said, are saying “we think multilateral cooperation still matters,” while opponents regard such institutions as an “infringement on our national sovereignty.”
The court, with 18 judges from member nations, has the power to try individuals for war crimes, crimes against humanity or genocide committed by citizens of member nations, or by others – including Americans – within those nations’ borders. Crimes committed elsewhere can also be prosecuted with the approval of the U.N. Security Council, where the United States has veto power.
The court is required to give a nation’s own legal system the first chance to investigate and prosecute a case and will step in only when it concludes the nation is not making a good-faith effort to hold anyone accountable. So far, it has issued arrest warrants in only three cases, from Uganda, the Democratic Republic of the Congo and Sudan.
Though the United States took part in negotiations that led to the 1998 treaty, President Clinton did not sign the treaty until the final days of his administration in 2000 and never submitted it to the Senate for a ratification vote on membership. When the court came into being in 2002, Bush ordered the treaty “unsigned” – an unprecedented action for any nation, according to Scharf – and worked to insulate the United States.
Threatening cutoffs of U.S. aid, the administration has obtained agreements from 100 nations not to send Americans to the court. Bush also supported the 2002 law that, besides authorizing military action to free U.S. prisoners, forbids all U.S. cooperation with the court and, in selected cases, denies military aid to member nations who refuse to sign the agreements with the United States.
The administration has made one exception to its policy of opposing the court, the continuing slaughter of villagers in the Darfur region of Sudan, in which the advocates of U.S. intervention include Christian conservatives. Bush declined to veto a 2005 Security Council resolution authorizing the international court to investigate and indict Sudanese officials, whom Sudan’s government has since refused to surrender.
Not all the presidential candidates have expressed opinions about the court. But four of them – Clinton, Obama, Edwards and Kucinich – answered questionnaires on the subject from the American Society of International Law, and most of the others have commented on the court or related issues.
At one end of the spectrum is Mike Gravel, a former senator from Alaska and one of the Democrats who backs U.S. membership in the court. In a recent San Francisco appearance, he said he considers himself a “globalist” and “a citizen of the human race, first and foremost. Only secondly do I consider myself an American.”
At the other end is Ron Paul, a Republican congressman from Texas, who said in 2002 that both the court and the United Nations “are inherently incompatible with national sovereignty. America must either remain a constitutional republic or submit to international law because it cannot do both.”
McCain, who has expressed more willingness than other Republicans to consider court membership, also has spoken up for international law in other contexts, notably the nation’s duty to follow the Geneva Conventions on the humane treatment of foreign prisoners.
Former Arkansas Gov. Mike Huckabee has condemned the abuse of prisoners. But he has not responded to The Chronicle’s inquiries about the international court and seems unlikely to support it, if his comment on another pending treaty is any indication: He referred to the Law of the Sea Treaty, a less-controversial pact that Bush supports, as a “crazy” plan that would “give away our sovereignty.”
Other Republicans who haven’t answered queries about the court are former Massachusetts Gov. Mitt Romney, who has criticized the United Nations; former New York Mayor Rudy Giuliani, who has suggested that the United States look for alternatives to the United Nations; and Hunter, a congressman from San Diego, who has denounced “treaties that infringe on basic U.S. sovereignty.” Former Sen. Fred Thompson of Tennessee opposes U.S. membership in the court.
Among Democrats, Edwards, Kucinich, Gravel, Dodd and New Mexico Gov. Bill Richardson support U.S. membership; Clinton and Obama say they want more assurances of safeguards for Americans; and Biden, in a 2003 statement referring to a number of unratified treaties, said the nation should try to negotiate compromises with its partners.
Regardless of the next president’s position, there’s little prospect of immediate U.S. participation in the court, which would require an extremely difficult two-thirds ratification vote in the Senate, said Scharf, the former State Department official.
But he said a supportive president could take other steps – financial aid to the court, legislation that would allow all such crimes to be prosecuted in the United States, backing for Security Council resolutions authorizing prosecutions for crimes in nonmember nations like Burma and Iraq, and repeal of the “Hague Invasion Act.”
“The U.S. is already exposed to the ICC,” Scharf said, using the initials for the court. “It’s not like staying outside it protects us. If a politician really wants to protect us from the ICC, being an influential insider might protect us more.”
Candidates’ statements can be found at: links.sfgate.com/ZBYI or links.sfgate.com/ZBYJ
For information about the International Criminal Court, see: links.sfgate.com/ZBYK
How the candidates rate the court
Excerpts from presidential candidates’ statements about the International Criminal Court:
Sen. Hillary Rodham Clinton: “Consistent with my overall policy of reintroducing the United States to the world, I will as president evaluate the record of the court, and reassess how we can best engage with this institution and hold the worst abusers of human rights to account.”
Sen. Barack Obama: “The United States has more troops deployed overseas than any other nation. … Maximum protection for our servicemen and women should come with that increased exposure. Therefore, I will consult thoroughly with our military commanders and also examine the track record of the court before reaching a decision on whether the U.S. should become a state party.”
Former Sen. John Edwards: “When America doesn’t engage in these international institutions, when we show disrespect for international agreements, it makes it extraordinarily difficult when we need the world community to rally around us to get them there. We should be the natural leader in all of these areas, and, certainly, we should be a member of the International Criminal Court.”
Sen. John McCain: “I want us in the ICC, but I’m not satisfied that there are enough safeguards.”
Rep. Dennis Kucinich: “Only the ICC presents a workable framework for the functioning of an international justice system which will affirm the basic human rights of all people.”
Gov. Bill Richardson: “The U.S. should join the International Criminal Court as a full-fledged member. We have nothing to fear.”
Sen. Chris Dodd: “Let’s make good on the vision of (Nuremberg prosecutors) Robert Jackson, Whitney Harris, and my father (former Sen. Thomas Dodd) and lend American support to a strong, stable, permanent international criminal court to help end genocide once and for all.”
Rep. Ron Paul: “The United Nations and the ICC are inherently incompatible with national sovereignty.”
E-mail Bob Egelko at email@example.com.