Commentary

Courting Disaster

By Gary Dempsey
August 19, 1998

The United Nations recently concluded a five-week conference in Rome aimed at finalizing a treaty establishing a permanent international criminal court. The advertised mission of the court is to investigate, indict and try future war criminals. But as it did with last year’s Kyoto climate change treaty and the Ottawa landmine treaty before it, the Clinton administration has negotiated another international agreement that stands no chance of being ratified by the U.S. Senate. But don’t be misled: this court could still have dangerous consequences for the United States.

For starters, there is the issue of the court’s jurisdiction, which is unprecedented. In fact, the treaty’s proponents have given the court the legal authority to try citizens of nations that haven’t even ratified the document. As State Department spokesman James Rubin has remarked, “Never before has a treaty put itself over those who have not been included in it.”

What the treaty says is that even if the United States doesn’t ratify the agreement, its citizens can be brought before the court as long as the nation where alleged crimes took place has ratified the treaty. In other words, American troops stationed in foreign lands could find themselves arrested and prosecuted by the court. Paradoxically, the treaty also says that the nations that ratify the agreement can opt out of the court’s jurisdiction over war crimes for seven years, while citizens of those nations that do not ratify the treaty can be subjected to the court’s jurisdiction immediately.


Not ratifying the international criminal court treaty does not necessarily mean that the United States will be exempt from paying for its operation.


More worrisome still is the inclusion of the yet-to-be-defined crime of “aggression” in the court’s expansive jurisdiction. According to the Rome debates, “aggression” could eventually include such things as the “bombardment by the armed forces of a State against the territory of another State” and “the blockade of the ports or coasts of a State by the armed forces of another State.” Including those actions under “aggression” will reduce the military options available to the United States by outlawing preemptive strikes and the kind of naval blockade President Kennedy employed during the Cuban Missile Crisis. That has U.S. policymakers worried. As Department of Defense spokesman Kenneth Bacon has explained, “What we’re concerned about is that the court not be set up in a way that gives it very broad authority to pursue a vague definition of aggression that could be confused with legitimate defensive action to protect our national security interests.”

The court also could jeopardize future U.S. efforts to resolve international conflicts. For example, if the court indicts the leaders of a warring faction while the United States is trying to conduct peace talks, that faction may respond by rejecting the resulting peace plan or staying away from the negotiating table altogether. That result would lead to more death and destruction, not less. In fact, according to former British envoy David Owen, a similar scenario unfolded in Bosnia in 1993 when the Serb faction rejected the Vance-Owen peace plan out of “fear that skeletons in their cupboard, such as massacres and war crimes, would be uncovered by the United Nations if they accepted the peace plan.” The result: the Bosnian war dragged on for another 18 months.

Furthermore, the court could destabilize future U.S.-led peacekeeping operations and endanger American lives in the process. Suppose the court handed down a verdict that the leaders of one faction had to pay reparations or return conquered territory to the victims of another faction, U.S. peacekeeping troops on the ground could find themselves in the messy position of either enforcing or refusing to enforce the court’s judgment. Either way, one faction will be upset and U.S. peacekeepers will be caught in the middle — a prospect that adds one more reason to get out of the peacekeeping business altogether.

Finally, not ratifying the international criminal court treaty does not necessarily mean that the United States will be exempt from paying for its operation. That’s because the court’s funding will be derived, in part, from the United Nation’s general budget. If historical contribution rates apply and the United States resumes making payments to the U.N. budget, 25 percent of the court’s costs could be passed on to American taxpayers.

Thus, even though the international criminal court treaty is not likely to be ratified by the U.S. Senate, it still threatens to compromise your national security and your pocketbook — a bad deal that only the United Nations could cook up.

Gary Dempsey, a foreign policy analyst at the Cato Institute, is the author of “Reasonable Doubt: The Case against the Proposed International Criminal Court.”