The United States and the International Criminal Court: The Case for "Dexterous Multilateralism"

I. INTRODUCTION On Sunday, December 31, 2000, the United States signed the Rome Statute of the International Criminal Court ("ICC"), and thus became one of the 139 nations that met the New Year's Eve, 2000 deadline for signature established in the Treaty.1 David Scheffer, who served as the Clinton Administration's Ambassador-at-Large for War Crimes Issues, signed on the President's behalf, after traveling to the United Nations on the Sunday morning at the direction of the National Security Advisor, Samuel R. "Sandy" Berger. Scheffer's last major diplomatic mission for the outgoing Administration came after an eleventh-hour Presidential decision that marked a major shift in US policy toward the ICC. The President's decision was hailed by Court proponents, who have long advocated the establishment of a permanent international judicial tribunal with jurisdiction over genocide, crimes against humanity, and war crimes. But the decision was also roundly condemned by conservative commentators and members of Congress, who see the ICC as a threat to US sovereignty. John Bolton, now Undersecretary of State for Arms Control and International Security, writing in the Washington Post, accused the President of "a stealth approach to eroding our constitutionalism and undermining the independence and flexibility that our military forces need to defend our interests around the world."2 He urged the incoming Administration, of which he is now a part, to "unsign" the Treaty. Despite highly charged criticism by ICC opponents, President Clinton's signature was far from the unequivocal endorsement of the ICC that Court advocates would have most welcomed. In fact, the President's signature statement complained about "significant flaws in the Treaty," and indicated that US concerns should be effectively addressed before the Senate considered consent to ratification of the Rome Statute.3 Signature offered neither unqualified support nor unbridled rejection of the Rome Statute. Rather, it represented an effort to manage effectively legitimate yet conflicting policy imperatives to reach an equilibrium that best addressed US interests. This effort at "dexterous multilateralism" is worth examining closely, as it relates to an issue of growing importance in US foreign policy: the tension between sovereign prerogatives and deference to multilateral institutions. It is this issue which increasingly bedevils US policymakers as they consider how to address the war on terrorism, the situation in Iraq, and related national security challenges. II. BACKGROUND TO SIGNATURE In many respects, President Clinton's decision to sign the Rome Statute grew out of his Administration's forward-leaning approach toward multilateral engagement on international human rights issues. This included successful Administration efforts to establish the post of the United Nations High Commissioner for Human Rights; to secure Senate consent to ratification of the International Convention on the Elimination of All Forms of Racial Discrimination; to sign the Convention on the Rights of the Child; and to negotiate the International Labor Organization Convention on the Worst Forms of Child Labor, as well as UN protocols against trafficking in persons, exploitation of children, and use of child soldiers. The Clinton Administration combined its emphasis on promoting international human rights norms with an effort to encourage political accountability for human rights abuses-for example, through active US involvement in the UN Human Rights Commission. US officials also recognized that the United States could not easily urge upon others standards of behavior and accountability that the US government was unprepared to accept for itself, and the Administration spent a great deal of time and energy in preparing reports on human rights practices in the United States, which were submitted to UN bodies pursuant to treaties relating to civil and political rights, torture, and racial discrimination. …