What's Worse: Toxic Engagement Or Malign Neglect?

By: John Caruso

In the wake of the International Criminal Court's warrant against Omar al Bashir, and with the dawning of a new golden age of enlightened Democratic rule, I thought I'd post an article I wrote a little over a year ago that many ATR readers probably didn't see.

Despite endless handwaving about "politicized prosecutions" and "national sovereignty", the U.S. position on the ICC has always been easy to understand if you keep this one key principle in mind: if you plan on committing war crimes, the last thing you want is an international court that's dedicated to prosecuting them.

The International Criminal Court is a signal example of why I prefer outright Bushian rejectionism to Democratic maneuvering and calculation.  Summarizing Bush's approach to the ICC is easy, of course: he just flipped the bird to the entire world by "unsigning" the Rome Statute--a serious contender for the most ridiculous thing he's done in office.  No ambiguity there.

But Clinton's approach to the ICC was, as with so many other issues, carefully crafted to creation the illusion of cooperation to mask the double dealing.  First he tried to negotiate the ICC to death (like Kyoto), always with the intention of ensuring that it could be used as a bludgeon against official US enemies but with no threat of it being used against the US itself.  And he was in fact successful at getting various restrictions put into the Rome Statute.  In his own words:

The treaty requires that the ICC not supersede or interfere with functioning national judicial systems; that is, the ICC prosecutor is authorised to take action against a suspect only if the country of nationality is unwilling or unable to investigate allegations of egregious crimes by their national.

The US delegation to the Rome Conference worked hard to achieve these limitations, which we believe are essential to the international credibility and success of the ICC.

Despite achieving limitations on this crucial instrument of international justice, Clinton failed to kneecap the ICC in the most important way: by forcing through a ludicrous amendment that would have required states to give consent to have their nationals prosecuted.  Faced with the unacceptable prospect of universal rather than victor's justice, the US proceeded to join human rights stalwarts like Israel, China, Iraq, Libya, Qatar, and Yemen in opposing the Rome Statute, which was adopted by a vote of 120-7 (with 21 abstentions).  The list of opposing countries wasn't initially known, by the way, since in a classic illustration of the Clintonian approach the US called for an unrecorded vote.

The Clinton administration continued trying to submarine the ICC after the Rome Statute was adopted, again pushing for an amendment that would have prevented the Court from prosecuting a national of a state that was not a party to the ICC unless either the state agreed or the UN Security Council gave its consent.  This was basically an attempt to put a multinational gloss on the longstanding US position while actually giving the US veto power over any prosecutions. (The calculated use of the Security Council was a staple of Clinton's foreign policy; his administration always negotiated Security Council resolutions such that actions the US had been forced to accept could only be renewed with a second resolution, but actions the US favored would be automatically renewed unless they were halted by another Security Council resolution--which the US could of course veto.)

Despite his longstanding opposition to the court and his failure to halt the spread of impartial international justice, Clinton signed the Rome Statute shortly before the end of his presidency, no doubt in part as an 11th-hour attempt to burnish his legacy.  But he did so with a recommendation that Bush not submit it for ratification.  To this day, though, the Rome Statute is marked by the limitations his administration achieved--one of the more important measures of his true legacy.

Getting back to the original point, the Bush and Clinton approaches, though very different in execution, have had an identical goal: to shield US officials (and to a lesser extent US allies) from prosecution for their crimes.  But the opposition came with crystal clarity in one case and endless banks of fog in the other--so much so that you need a half hour and a flip chart to explain Clinton's true position (and even then nice liberals will just keep bleating, "But Clinton signed the treaty!").  Ultimately, as with Kyoto, Clinton's toxic engagement was worse than Bush's malign neglect, because the effect was to undermine and weaken the ICC for everyone.

REALITY BONUS: This seems like as good a time as any to remember Bill Clinton's actual feelings about how justice should be dispensed (courtesy of George Snuffleupagus's book All Too Human):

"We’re not inflicting pain on these fuckers,” Clinton said, softly at first. “When people kill us, they should be killed in greater numbers.” Then, with his face reddening, his voice rising, and his fist pounding his thigh, he leaned into Tony [Lake, his National Security Advisor], as if it was his fault. “I believe in killing people who try to hurt you. And I can’t believe we’re being pushed around by these two-bit pricks."

— John Caruso