It is Time to Abandon Constructive Disengagement as U.S. Foreign Policy

by William J. Aceves

Jan 5, 2001

Aceves is Associate Professor of Law at California Western School of Law.  He teaches on human rights and international law.

On Dec. 31, 2000, the United States took a small step toward re- engagement with the international community by signing the Rome Statute of the International Criminal Court. It is a significant development because it counters a growing trend of isolationism in U.S. foreign policy.

Since the end of the Cold War, the United States has struggled with its role in the international community. While calls for a New World Order were made with much fanfare in 1990, the United States has been unwilling to embrace its development. Indeed, the past 10 years have seen an increasing international isolation. U.S. foreign policy has become a policy of constructive disengagement.

For example, the United States refused to sign the Landmine Convention in 1997. U.S. intransigence continues even though the agreement has been signed by over 135 countries, including all major U.S. allies. In 1999, the U.S. Senate rejected the Treaty on the Non- Proliferation of Nuclear Weapons, a treaty signed by over 187 countries. The United States and Somalia are the only two countries in the world that have not ratified the Convention on the Rights of the Child.

In July 1998, the United States voted against the Rome Statute of the International Criminal Court. The Rome Statute will establish a permanent international tribunal to prosecute people accused of serious human rights violations, including genocide, crimes against humanity, and war crimes. To date, 139 states have signed the treaty; 27 states have subsequently ratified it. The Rome Statute will enter into force when 60 states have ratified it.

To its credit, the United States has played an active role in the development of the international criminal tribunals for the former Yugoslavia and Rwanda. It also has participated in similar efforts to establish ad hoc tribunals for Cambodia, Sierra Leone and East Timor. But unless the United States is willing to make its own military operations subject to judicial review, these international efforts appear hypocritical.

President Clinton acknowledged these considerations when he signed the Rome Statute. “We do so to reaffirm our strong support for international accountability . . . [and] we do so as well because we wish to remain engaged in making the [international criminal court] an instrument of impartial and effective justice in the years to come.”

Accordingly, President Clinton’s decision to sign the Rome Statute is an important development. He correctly points out that the United States is now in a position to influence the evolution of the court. Indeed, the U.S. action spurred the Israeli government to announce its own signature of the Rome Statute. In the international community, engagement is more useful than isolation.

The U.S. signature, however, has not resolved several outstanding issues. The United States has expressed concern that the Rome Statute will be used by politically motivated prosecutors against U.S. military personnel and political leaders. President Clinton raised this issue when he signed the treaty. Several members of the Senate, as well as incoming officials in the Bush administration, have voiced misgivings about the Rome Statute.

Their concerns are unfounded. U.S. military personnel have always been subject to indictment by foreign governments. This has never deterred the United States from undertaking military operations abroad. Indeed, the United States recently renegotiated its Status of Forces Agreement with South Korea to allow for the detention and prosecution of U.S. military personnel for such crimes as rape, murder, drug trafficking and arson. More importantly, the Rome Statute has numerous procedural safeguards, including an independent judiciary, to prevent politically motivated prosecutions. Finally, it is simply inconsistent for the United States to argue for international accountability of all states, except itself.

It remains for the incoming Bush administration to resolve these issues. One hopes it will work quickly with the Senate to address its concerns and ratify the treaty. The United States must not allow the Rome Statute to suffer the fate of the Genocide Convention — a treaty that took 40 years to ratify. Even worse, however, would be for the Senate to reject the treaty — a goal now championed by Sen. Jesse Helms, R-N.C.

Only two treaties were rejected by the Senate in the 20th century, the Treaty of Versailles and the Non-Proliferation Treaty. Nothing constructive emerged from the rejection of the Treaty of Versailles. Disengagement failed in 1920; it has no place in U.S. foreign policy today. It is certainly not the way to begin the 21st century.

President Clinton’s decision to sign the Rome Statute is an important step in returning legitimacy to U.S. foreign policy. It is now up to President-elect Bush and the Senate to ensure that the United States fully abandons the policy of constructive disengagement.