June 14, 2000

MEMORANDUM TO: OPINION LEADERS

FROM: GARY SCHMITT

SUBJECT: International Criminal Court

Congressional Republican leaders yesterday announced their intention to introduce legislation to prohibit the United States from cooperating with a permanent international war crimes tribunal and requiring American troops to receive immunity from the court before participating in any UN peacekeeping mission. While the move to preempt the Clinton Administration’s attempts to fix an “unfixable” treaty deserve support, the immunity requirement would grant the International Criminal Court (ICC), established in Rome in 1998, a legitimacy it shouldn’t be accorded, and it and could serve as a roadblock to future U.S. foreign policy.

Two years ago, we predicted that the Clinton Administration would refuse to take “no” for an answer when it comes to the court. Instead, we suggested a policy of “three noes” toward the tribunal, then advanced by Project board member John Bolton in Senate testimony (a fuller version of that testimony is reproduced below):

• No financial support, directly or indirectly;
• No collaboration; and
• No further negotiations to “improve” the tribunal.

Yet this is exactly what the Clinton Administration proposes to do. The Washington Post today quotes David Scheffer, the U.S. ambassador at large for war crimes, who says, “If we can get this in the treaty…the United States will be a good neighbor to this treaty….We have many things to offer and will be in a position to offer those assets.”

Congress is correct to fear the administration’s ulterior motives. But to condition American participation in any military operation on a grant of immunity from the ICC would needlessly complicate U.S. policy options. It should be the goal of American policy to keep the operations of the United Nations free from any limitation by the ICC; to the degree the UN becomes linked with the ICC, it will lose much of whatever remaining value it has for American foreign policy. Congressional Republicans should remember that President Bush fought the Gulf War under the auspices of the UN, as are today’s “no-fly” zone operations -- which might be construed as “peacekeeping” -- over Iraq. Should these operations be halted while we await a grant of immunity from the ICC?

The ICC inevitably will complicate the exercise of American geopolitical leadership. Congress should strive to maximize the chances that the ICC will wither and collapse.