How can the United States remain engaged in the evolution of the International Criminal Court (ICC) while it refuses to endorse the treaty? Balancing these two interests is the best course of action available to the United States, said Eric Schwartz, a Public Policy Scholar at the Woodrow Wilson International Center for Scholars, former Special Assistant to the President, and Senior Director for Multilateral and Humanitarian Affairs at the National Security Council, at a meeting held July 2nd at the Wilson Center. Schwartz discussed the evolution of the Clinton Administration’s position on the ICC and suggested that the United States maintain a policy of “ambivalent multilateralism” toward the Court. Although President Bill Clinton did sign the Rome Statute of the ICC on December 31, 2000, the United States refuses to ratify the treaty. The steady endorsements of the statute—36 countries of the required 60 have ratified the treaty—mean the Court’s establishment is simply a matter of time, Schwartz said. In his opinion, the United States should work toward shaping and influencing the Court, instead of repudiating the treaty or refusing to participate. Still, he conceded that its detractors have plausible arguments, including the belief that the Court threatens American sovereignty and could perhaps extend its jurisdiction over Americans even if the United States has not ratified the Court. This concern is evidenced by the introduction of the American Servicemembers Protection Act (ASPA) in Congress, a bill that bars the United States from cooperating with the ICC until it ratifies the Court.

Schwartz began his remarks by examining the evolution of the Clinton Administration’s policy toward the ICC. Schwartz explained that “from the outset of the Clinton Presidency, [the] Administration sought to make human rights and the rule of law important components of U.S. foreign policy.” For this reason, it initially was a strong supporter of the ICC, the permanent court to try individuals accused of genocide, war crimes, and crimes against humanity; active contributions of the United States include discussions of the protections for due process and rights of the accused. The Clinton Administration stressed the universality of human rights, coupled with political accountability for human rights abuses. However, the Administration also emphasized the desire to have the Court cooperate with the United Nations Security Council. Schwartz noted that “the U.S. position reflected a concern that a Court not accountable to the Security Council risked shoe-horning into a judicial framework controversies that are the appropriate province of politics and diplomacy.” For this and other reasons, the United States joined six other countries, including China and Iraq, in an attempt to defeat the adoption of the Rome Statute in 1998. Still, the United States has participated in the subsequent sessions of the Prepatory Commission and continues to advocate for specific exemptions necessary for U.S. participation.

For instance, because of the international presence of the United States (over 200,000 troops are overseas), some feared that the Court could become politicized and Americans would be targeted for prosecution. However, Schwartz noted that the Court does include a provision on complimentarity, or deferment to domestic courts, unless these courts are ruled to be unable or unwilling to carry out a trial. For example, in the United States, twenty-five officers and enlisted men were court marshaled for their involvement during the My Lai Massacre in Vietnam. Further, Pinochet is currently in Chile where judges will decide whether or not his health issues will prevent him from facing charges of torture and human rights violations. The United States is also concerned that the absence of Security Council endorsement might lead to inappropriate Court interference in international issues. Lastly, the presence of the ICC may deter states from engaging in humanitarian interventions, lest they run the risk of zealous prosecution, Schwartz said.

Currently, U.S. ratification is unlikely because “American elites are much more jealous guardians of their sovereignty…and will not easily accept the notion that U.S. citizens could be prosecuted for war crimes, crimes against humanity or genocide by an institution that is not more directly accountable to the American public.” Given this political reality, signing the treaty was the best the United States could do, and Schwartz contends that this “good neighbor approach” is much better than actively working against the Court. A signature allows the United States to remain engaged and promote policies amenable to the United States. Unsigning or repudiating the Rome Statute or supporting the reintroduction of the American Servicemembers Protection Act (ASPA) would prohibit the United States from cooperating with the ICC and would remove it from actively engaging with the Court. This would be, said Schwartz, an “option with serious costs” since “the obligations agreed upon by others will, at the very least, negatively impact U.S. diplomacy.” Moreover, “obligations agreed upon by others will inform the development of international law.” As a result, ambivalent multilateralism is the best course of action. The United States should not fully commit to the ICC, but should keep its options open by not working to cripple the Court.