The Irresolution of Rome

Abstract

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"). 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." A "properly constituted and structured" criminal court, said the President, could "make a profound contribution in deterring egregious human rights abuses worldwide. 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.