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March 07, 2009

What's Worse: Toxic Engagement Or Malign Neglect?

By: John Caruso

In the wake of the International Criminal Court's warrant against Omar al Bashir, and with the dawning of a new golden age of enlightened Democratic rule, I thought I'd post an article I wrote a little over a year ago that many ATR readers probably didn't see.

Despite endless handwaving about "politicized prosecutions" and "national sovereignty", the U.S. position on the ICC has always been easy to understand if you keep this one key principle in mind: if you plan on committing war crimes, the last thing you want is an international court that's dedicated to prosecuting them.

The International Criminal Court is a signal example of why I prefer outright Bushian rejectionism to Democratic maneuvering and calculation.  Summarizing Bush's approach to the ICC is easy, of course: he just flipped the bird to the entire world by "unsigning" the Rome Statute--a serious contender for the most ridiculous thing he's done in office.  No ambiguity there.

But Clinton's approach to the ICC was, as with so many other issues, carefully crafted to creation the illusion of cooperation to mask the double dealing.  First he tried to negotiate the ICC to death (like Kyoto), always with the intention of ensuring that it could be used as a bludgeon against official US enemies but with no threat of it being used against the US itself.  And he was in fact successful at getting various restrictions put into the Rome Statute.  In his own words:

The treaty requires that the ICC not supersede or interfere with functioning national judicial systems; that is, the ICC prosecutor is authorised to take action against a suspect only if the country of nationality is unwilling or unable to investigate allegations of egregious crimes by their national.

The US delegation to the Rome Conference worked hard to achieve these limitations, which we believe are essential to the international credibility and success of the ICC.

Despite achieving limitations on this crucial instrument of international justice, Clinton failed to kneecap the ICC in the most important way: by forcing through a ludicrous amendment that would have required states to give consent to have their nationals prosecuted.  Faced with the unacceptable prospect of universal rather than victor's justice, the US proceeded to join human rights stalwarts like Israel, China, Iraq, Libya, Qatar, and Yemen in opposing the Rome Statute, which was adopted by a vote of 120-7 (with 21 abstentions).  The list of opposing countries wasn't initially known, by the way, since in a classic illustration of the Clintonian approach the US called for an unrecorded vote.

The Clinton administration continued trying to submarine the ICC after the Rome Statute was adopted, again pushing for an amendment that would have prevented the Court from prosecuting a national of a state that was not a party to the ICC unless either the state agreed or the UN Security Council gave its consent.  This was basically an attempt to put a multinational gloss on the longstanding US position while actually giving the US veto power over any prosecutions. (The calculated use of the Security Council was a staple of Clinton's foreign policy; his administration always negotiated Security Council resolutions such that actions the US had been forced to accept could only be renewed with a second resolution, but actions the US favored would be automatically renewed unless they were halted by another Security Council resolution--which the US could of course veto.)

Despite his longstanding opposition to the court and his failure to halt the spread of impartial international justice, Clinton signed the Rome Statute shortly before the end of his presidency, no doubt in part as an 11th-hour attempt to burnish his legacy.  But he did so with a recommendation that Bush not submit it for ratification.  To this day, though, the Rome Statute is marked by the limitations his administration achieved--one of the more important measures of his true legacy.

Getting back to the original point, the Bush and Clinton approaches, though very different in execution, have had an identical goal: to shield US officials (and to a lesser extent US allies) from prosecution for their crimes.  But the opposition came with crystal clarity in one case and endless banks of fog in the other--so much so that you need a half hour and a flip chart to explain Clinton's true position (and even then nice liberals will just keep bleating, "But Clinton signed the treaty!").  Ultimately, as with Kyoto, Clinton's toxic engagement was worse than Bush's malign neglect, because the effect was to undermine and weaken the ICC for everyone.

REALITY BONUS: This seems like as good a time as any to remember Bill Clinton's actual feelings about how justice should be dispensed (courtesy of George Snuffleupagus's book All Too Human):

"We’re not inflicting pain on these fuckers,” Clinton said, softly at first. “When people kill us, they should be killed in greater numbers.” Then, with his face reddening, his voice rising, and his fist pounding his thigh, he leaned into Tony [Lake, his National Security Advisor], as if it was his fault. “I believe in killing people who try to hurt you. And I can’t believe we’re being pushed around by these two-bit pricks."

— John Caruso

Posted at March 7, 2009 02:32 PM

Nothing works like loaded dice or a stacked deck.

Posted by: Mike Meyer at March 7, 2009 05:05 PM

A big problem with Clinton's widely-shared wanting to "kill people who try to hurt you" is it metastasizes - the more people you try to kill, the more people there are who want to hurt you.
Also of course you have to be pretty much a saint going in, or a nation of saints, to avoid the problem of people understandably wanting to hurt you because of something you've done, or are doing, that's caused them harm.
There's probably a medical term for the mental condition that always begins negotiations from a position of never doing anything wrong, and proceeds to react to the world and its claims from there. A condition that an awful lot of people seem to be suffering from these days.
Tangentially, doesn't it seem like these main events are being reported on by and to a really thin veneer of a shrinking minority with more immediate power than it can wield accurately? A minority that grows increasingly desperate.
The bank stuff pretty well knocked a lot of people out of the MSM news loop.
So that "gettin' them A-rabs" just isn't quite the auto-reflex it was a few years back.
The response cues are still coming out of that technicolor hole just as adamantly, just as one-sidedly, but a dwindling number buy the story.
It's not that hard to contrast graphic images of atrocity from Gaza with the celebrity Save Darfur fluff campaigning.
Riots in Sweden. The kids are upset. Connecting the dots.
And the Tamil, Sri Lanka, that's still happening.
Not that people aren't suffering and dying in Sudan. Not that al Bashir's a good guy.
Just why the emphasis.

Posted by: roy belmont at March 8, 2009 02:45 AM

If the next attack--because surely one is coming--occurs on Obama's watch, he'll be impeached before the ashes have cooled...

Posted by: woody at March 8, 2009 12:09 PM

roy belmont: The "medical condition" is called "Lying-to-YOURSELF" or as WE say in the amusement business "swallowing YOUR own bullshit".
woody: After the last 2 years of trying to get people to call Pelosi over impeachment, and after ALL the shit Georgie and Deadeye pulled and NOBODY lifted a hand to say no, I think I can safely say, "YOU'll NOT have Mike Meyer backing up ANY impeachment movement against Obama", no fucking matter what party or color he is.

Posted by: Mike Meyer at March 8, 2009 01:53 PM

Could we have another option, please?

Posted by: SteveB at March 8, 2009 03:45 PM

SteveB; Sometimes, SOMETIMES the month runs out and the rents due.

Posted by: Mike Meyer at March 8, 2009 06:26 PM

I have a simple problem with the ICC; the only people whom it has thus far sought to prosecute have been official demons of the West. I presume that this is because, even though the US has sought to protect itself against the ICC, it is a very convenient force for the US and its allies to generate moral superiority. "See! Our enemies are charged in open court! Are we not virtuous?"

I am not sure that we should have an International Criminal Court before we have any kind of democratic international structure to oversee it.

Posted by: MFB at March 9, 2009 02:30 AM