Should the U. S. Join the International Criminal Court?

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.


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?

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Dave Schuler
About Dave Schuler
Over the years Dave Schuler has worked as a martial arts instructor, a handyman, a musician, a cook, and a translator. He's owned his own company for the last thirty years and has a post-graduate degree in his field. He comes from a family of politicians, teachers, and vaudeville entertainers. All-in-all a pretty good preparation for blogging. He has contributed to OTB since November 2006 but mostly writes at his own blog, The Glittering Eye, which he started in March 2004.


  1. ggr says:

    The ICC isn’t a democratic institution – neither is the UN for that matter. Its members include countries that do not elect their governments. Why would any democracy want to tie themselves to such a system?

    Associating with the ICC, working in tandem at times, is another matter of course. Where it does useful work, it would be good to work with it. Submitting to it on the other hand does not.

  2. PD Shaw says:

    No, the Supreme Court will implement it so that the political branches don’t need to be accountable for it’s downsides.

  3. PD Shaw says:

    By the way, Dave, the astute body of international legal possessors of conventional wisdom and expertise (job seekers for short), have ruled that the treaty cannot be unsigned under the legal maxim, the bell unrung beareth not fruit. I’ll try to find a link later.

  4. Mr. Prosser says:

    It is quite obvious that this is not the time for rational debate on anything. Clinton signed it “with reservations” because it was the easy way out (look good but do nothing). Bush unsigned it for the same reason. Obama is wise to ignore this at the moment no matter what the noise made on its behalf.

  5. Dave Schuler says:

    cannot be unsigned under the legal maxim, the bell unrung beareth not fruit

    Where I come from bells don’t bear fruit. I’ve lived in Europe so I’m pretty sure it’s the same there. 😉

  6. Boyd says:

    To answer your questions: No; no; and…umm…no.

  7. Raoul says:

    What does this court that you talk about do?

  8. Dave Schuler says:
  9. DL says:

    Joining the court and global warming have but one great similarity – the inevitable destruction of our sovereignity. Coincidence that the one-world pro big-government party so strongly supports both? Methinks not!

  10. DavidL says:

    I’d imagine that even the one is smart enough to figure that if the ICC were to be signed and ratified, he’d be shipped off to face trial by some roque judge in Spain. It would not take too much for some Spainish judge to deem the one’s actions in Afganistan to be war crimes.

    You can debate if the one was born in the United States, but he wasn’t born yesterday.

  11. PD Shaw says:

    The American Society of International Law convened a task force on the outstanding issues concerning the ICC and opined that the Bush administration’s letter could not constitute an unsigning, as that concept is not supported by established law. Instead, the act was construed as revoking certain obligations that came into play upon signature, namely the obligation to refrain from acts that would defeat the treaty.

    Pages 59 & 60 of the report (pdf) discusses this issue: LINK

    I think this points to a few of issues:

    First, the “experts” believe the Senate could ratify the treaty tomorrow. This would be a politically tone-deaf move out of the Cheney playbook.

    Second, there is probably some sort of observer/associate status that might better achieve American objectives — we could work with the ICC where our interests connect without binding ourselves to it. The “unsigning” letter is a more direct impediment to that path.

    Third, the “experts” and world community will maintain that the U.S. is bound by elements of the treaty that are deemed to be customary international law regardless of ratification. We probably need to be engaged in some form, at the very least to let our disagreements be known.

  12. William d'Inger says:

    I am sorry that I came to this thread late. I have read the English language version of the Statute of Rome at the U.N. web site three times through. It’s not an easy read, so I wanted to be sure I understood it.

    It is an abomination that no thinking American could endorse. I could spend hours and hours telling you why, but the short story is it is a court of inquisition not a court of justice.

    It is Euro-hubris on steroids. It is a modern version of the missionaries who circled the globe enforcing Christianity in past centuries. They’ve just substituted a liberal ethic in place of Christ.