The Irresolution of Rome

RUTH WEDGWOOD [*] I INTRODUCTION--THE U.S. SIGNATURE AND ITS AFTERMATH President Clinton's signature of the Rome treaty in the twilight of his Administration has punctuated the long impasse over American participation in the International Criminal Court (the "ICC"). [1] Signing on December 31, 2000 (the last day possible for a signature without ratification), the President proclaimed his "strong support for international accountability" and for "bringing to justice perpetrators of genocide, war crimes, and crimes against humanity." [2] A "properly constituted and structured" criminal court, said the President, could "make a profound contribution in deterring egregious human rights abuses worldwide." [3] The signing was unusual, for the President foreswore any intention of ratifying the treaty in the foreseeable future. He would not send the treaty to the Senate for advice and consent, nor recommend that his successor do so, until and unless "fundamental concerns" could be resolved. The United States preferred to "observe and assess the functioning of the Court, over time," said the President, adverting to the need to "protect U.S. officials from unfounded charges." This is a legal realist's vantage--a jurisdictional statute, the elements of crimes, and the specification of procedures do not suffice to show how a court will operate, what the culture of a prosecutor's office will be, or how a court will read its mission. Watching the court in action is a far more rigorous test. But why sign at all, if ratification is purely hypothetical? With signature, said the President, the United States could better "influence the evolution of the Court," and, in particular, address the court's misplaced temptation to assert third-party jurisdiction "over personnel of states that have not" ratified. This, of course, was not an independent reason to eschew ratification. If a country is willing to accept direct responsibility for its nationals' actions (as a treaty party), it has no occasion to worry that there may be an alternative avenue of liability. But the literary grace of the President's signing statement is not the point. Rather, the emphasis on third-party liability is a measure of U.S. anxiety that the court might ultimately choose to criminalize good faith debates in military doctrine. When and how to use force is hardly a settled matter in foreign policy or even in the law. The ICC is asked to interpret and apply norms that are not bright-line rules, including questions such as proport ionality, and the nature of a military versus civilian target. These are hotly debated among responsible militaries, and must in practice be informed by military expertise and battlefield alternatives, as well as by political and ethical judgment. The United States has understandably feared that good faith operational questions could be precipitously removed from their usual place of debate in alliance headquarters and military manuals, and be recast in a courtroom's criminal rhetoric. Should one disable dual use electrical systems that support antiaircraft as well as hospitals? Does an adversary's perfidy in misusing civilian sites to launch attacks then change the eligibility of those sites as targets? The standards for war-fighting are often more akin to open-textured principles, rather than self-executing rules--depending on acute judgments of facts and alternatives, in a fluid situation where lives are at stake and one hardly has time to "make a record" for litigation later. It is not surprising that the review of all battlefield decisions by civilians without military experience might worry a professional military operator, at least in countries where the military actually deploys on duty in combat missions. The President's treaty signature may advance the international debate over the American request for a fair chance to watch the court in action. A unilateral diplomatic gesture can be risky, since there is no guarantee of reciprocity. …