President Bill Clinton signed the Rome Statute establishing the International Criminal Court on December 31, 2000, the last day on which the treaty was open for signature. However, recognizing that given the failure of the treaty to address the reservations that he himself had raised it would not be ratified by the Senate, he did not present it to the Senate for ratification. President George W. Bush raised the same objections to the treaty that President Clinton voiced and, not faced as President Clinton was with the embarrassment of not signing a treaty he had helped negotiate, authorized the “unsigning of the treaty”.
In an op-ed in the Washington Post John Bellinger notes that President Obama, despite the strong support for international institutions and international law articulated in his campaign and his presidency so far, has not submitted the treaty to the Senate for ratification:
Secretary of State Hillary Clinton said in Kenya last week that it is a “great regret” that the United States is not a member of the International Criminal Court, the international tribunal established in The Hague to prosecute war crimes, genocide and crimes against humanity. The Bush administration was vilified by the international community and by human rights groups for a perceived hostility toward the court during its first term, but U.S. reservations about the ICC predated President George W. Bush and are likely to continue under President Obama. Although the Obama administration will undoubtedly make greater efforts to engage with the court, the United States is unlikely to join the ICC anytime soon.
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Secretary Clinton is right that U.S. non-participation in the ICC is regrettable, especially given the long-standing U.S. commitment to international justice. Yet non-participation also reflects an unfortunate but deep-seated American ambivalence toward international institutions that the Obama administration, despite its support for international law, is unlikely to be able to change.
Our non-participation is only regrettable insofar as the Court actually furthers the cause of international law. I’m not even certain that there’s a consensus on that among Americans.
International institutions and international law are not synonymous. Rather than being a force for law the international court could be an instrumentality for the politics of its members, an international kangaroo court. That, indeed, has been the complaint of the United States under, now, three presidents.
Should President Obama re-sign the Rome Statute? Should he submit the treaty to the Senate for ratification? Should the Senate ratify it?
