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Friday, Nov 27, 2009
The president surprises his critics by, at the last possible moment, signing on to the treaty for an International Criminal Court.
Jan 5, 2001 | Back in the early summer of 1998, delegates from over 160 nations gathered in Rome were wrapping up work on a treaty to establish an International Criminal Court. The court would have the power, for the first time in history, to try and convict individual perpetrators for particularly heinous violations of the laws of war, for crimes against humanity and for genocide -- it would be not an ad hoc Nuremberg or Yugoslav/Rwanda-type tribunal, but rather a permanent court with generalized and ongoing worldwide jurisdiction, a court whose existence the U.S. had been advocating for years, but whose birth the U.S. delegation now suddenly seemed just as hellbent on forestalling.
I remember there was a lot of talk there in the halls about the League of Nations. "If the U.S. walks out on this court," the Syrian delegate assured me, his eyes twinkling with grim satisfaction (he was all for it; he couldn't wait), "it will be like the League of Nations." Perhaps, I remember thinking at the time, but in that case ought President Clinton be cast in the role of Woodrow Wilson, the League's strongest advocate, or that of Henry Cabot Lodge, its most ferocious opponent?
Of course, the answer, in retrospect, was both. With regard to the court, Clinton wanted to play both Wilson and Lodge. And not half and half: not a wily Wilson disguising himself as a grimly realistic Lodge, or vice versa. Rather, Whitmanesque, Clinton wanted to contain multitudes. He saw no contradiction in being both Wilson and Lodge, each 100 percent and both simultaneously.
Which is to say that he was approaching the International Criminal Court in much the same way he'd approached just about everything else -- gays in the military, national health insurance, campaign finance reform, land mines, Bosnia, global warming -- in his presidency.
In this particular instance, both the Pentagon and Senate Republicans, led by Sen. Jesse Helms, R-N.C., were adamant in their insistence that the U.S. ought never sign on to any sort of international tribunal that might ever, under any circumstances, claim jurisdiction over any American soldiers or officials. Such justice was fine for the Saddam Husseins or the Pol Pots of the world, American opponents of the treaty argued, but not for us. Hence the court would be fine, so long as the U.S. was able to maintain veto control over its operations, for example, by way of strict Security Council oversight.
But virtually all of the rest of the world's delegates in Rome protested that justice would hardly be universal if great powers could willy-nilly exempt themselves from its provisions. Furthermore, it was the Security Council's propensity for tying itself in veto-knots (France covering for Rwanda's genocidaires, China sheltering the Khmer Rouge, Kissinger-era America backstopping Pinochet and so forth) that so often led to paralysis and the unchecked proliferation of precisely the sorts of horrors this court was being created to address.
The U.S. delegation attempted all sorts of other gambits to effect the same outcome (total immunity for Americans), each more convoluted yet transparent than the one before, but to no avail. In the end the vote in favor of the treaty was overwhelming, with the U.S. stranded in opposition alongside such other holdouts as China, Iraq and Libya.
In the months that followed, considerable pressure was brought to bear on Clinton to stand up to the treaty's domestic opponents. It was pointed out that in fact all sorts of safeguards had been inserted into the treaty, at U.S. insistence, to forestall frivolous and even not-so-frivolous prosecutions of American nationals. Notably there were the complementarity provisions that decreed that any ICC prosecution could be trumped by a good-faith investigation and, if need be, prosecution, on the part of domestic judicial authorities. (The ICC was being created for precisely those instances where local authorities were proving unable or unwilling to pursue such investigations.)
The Pentagon and the Senate opponents were unswayed, however, and Clinton, for all of his idealistic pronouncements to the contrary, seemed incapable of standing up to them. "The problem here isn't political," one longtime observer of the process pointed out to me a few months ago, "but rather biological. Has anyone ever heard of an instance of an invertebrate's suddenly and spontaneously growing a spine?"
