Only three weeks before leaving office, Clinton authorized the United States to sign a treaty creating the International Criminal Court for crimes against humanity. On December 31, 2001 he appeased human rights activists by supporting the charter. Clinton said in the Los Angeles Times (January 1, 2001), "In taking this action, we join more than 130 other countries. We do so to reaffirm our strong support for international accountability and for bringing to justice perpetrators of genocide, war crimes and crimes against humanity." A few hours after Clinton's announcement, David Scheffer, the American ambassador at large for war crimes issues, signed the treaty on behalf of the United States. And Israel, another holdout, followed suit and signed the treaty as well.

Congressional Republicans castigated the treaty, fearing that an international court could prosecute Americans. Democrats could not muster the required two-thirds vote in the Senate to ratify the treaty. GOP Senator Jesse Helms, head of the Senate Foreign Relations Committee, vowed to block membership in the court. Other Republicans echoed similar sentiments. Richard Perle, an assistant Defense secretary during the Reagan administration., said, "I certainly don't approve of (the court), and I disapprove even more strongly of him signing something like this on his way out of office. It's like creating a compact between police and criminals."

Critics also seized on the issue of whether Americans would be safe from politically motivated prosecution under the proposed court. The treaty sought to defuse that issue with provisions that would give member nations priority in adjudicating such charges rather than leaving that job to the international court.

However, a handful of Republicans supported the court. Kenneth Adelman, head of the Arms Control and Disarmament Agency during the Reagan administration, said that the court was worth supporting. "I think it's a good idea to hold the Idi Amins and Saddam Husseins accountable."

Once in office, Bush immediately refused to send to the Senate for ratification. Some Republicans advocated that Bush should even somehow attempt to revoke Clinton's signature, contending the treaty violated American sovereignty or might be used against American soldiers abroad. The International Criminal Court, based on the principles of the Nazi war crime trials at the end of World War II, would try individuals accused of mass murders, war crimes, and other gross human rights violations. Widely supported by all Western nations, the court was approved by legislatures of 28 nations when Bush took office, and another 139 signed the treaty and appeared ready to ratify it. (New York Times, February 15, 2001)

On May 6, Bush hammered the final nail into the coffin that finally closed out any involvement by the United States in the International Criminal Court. Pierre Prosper, the American ambassador for war crimes, said, “We believe the International Criminal Court should not expect any support or cooperation from the United States government. … If the prosecutor of the ICC seeks to build a case against an individual, the prosecutor should build the case on his or her own effort and not be dependent or reliant upon U.S. information or cooperation.” (New York Times, May 6, 2002)

John Bolton, an undersecretary of state for arms control and international security, wrote to Kofi Annan, the secretary general of the United Nations, explaining that the signature of the Clinton administration on the treaty creating the court was no longer legally binding. Bolton said, “The United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations from its signature on December 31, 2000.” (New York Times, May 6, 2002)

Senior Bush advisors, led by Defense Secretary Don Rumsfeld and Bolton contended that the treaty would require the United States to cede some of its sovereignty to an international prosecutor who would be answerable to no one. They were correct. Presumably, the Bush administration feared that the newly created criminal court would subpoena and prosecute Americans involved in overseas military actions.

It certainly gave the appearance that the Bush administration was deeply concerned that American personnel overseas might be charged with international war crimes. In June, the administration declared that it would no longer participate in United Nations peacekeeping missions unless the Security Council granted the troops permanent immunity from prosecution by the tribunal.

In two draft resolutions presented to the Security Council, the United States outlined the specific legal guarantees it sought before committing military or civilian personnel to United Nations-authorized peacekeeping operations.

First, the Bush administration demanded that participants in all United Nations-backed missions should enjoy “immunity from arrest, detention and prosecution with respect to all acts arising out of the operation, and this immunity shall continue after termination of their participation in the operation.”

Second, the Bush administration proposed amending similar guarantees to the renewal of the United Nations mandate for the peacekeeping force in Bosnia- Herzegovina. The resolution extending the Bosnian mission applied both to a United Nations police training program there and to the NATO-led troops -- including 2,500 Americans-- who are charged with enforcing the Dayton peace accords. (Los Angeles Times, June 20, 2002)

Only about 700 United States citizens -- none of them combat troops -- were serving in peacekeeping missions under direct United Nations control. But thousands of United States troops were deployed in American-led but United Nations-endorsed peacekeeping operations. The Bush administration sought exemptions from international prosecutions for these and similar deployments in the future.

But the Security Council refused to grant American participants immunity from the International Criminal Court. Apparently fearful that Americans might be hauled away before the new criminal court, the Bush administration countered by threatening to halt United Nations peacekeeping operations in Bosnia-Herzegovina.

The United States veto came after weeks of negotiations with Britain and France, fellow veto-wielding members of the council, and strong backers of the new court. But the American allies refused to capitulate to the Bush administration’s demands Finally, the administration agreed to drop its demand of permanent immunity for Americans serving in United Nations peacekeeping missions. The White House began seeking a temporary exemption from prosecution that would buy the United States time to negotiate bilateral accords and military agreements barring individual governments from surrendering American nationals to the International Criminal Court. (New York Times, July 11, 2002)

The reversal represented a significant diplomatic retreat by the Bush administration. Bush’s reversal reflected the administration’s failure to calculate the intensity of international support for the court, particularly from European governments, and its reluctance to jeopardize United Nations-approved missions that serve U.S. interests.

The Bush administration’s compromise, backed by China and Russia, centered on a provision of the international court’s charter that allows the Security Council to defer a criminal investigation or prosecution of an individual for 12 months. The White House proposed a blanket deferral from prosecution for one year to all nationals from countries that have not ratified the International Criminal Court. The Security Council resolution also called on the council to express its intention to renew the deferral each year.

But the proposal failed to satisfy the court’s strongest advocates, who maintained that any exemption not explicitly sanctioned by the tribunal would undermine its integrity. Canada’s United Nations ambassador, Paul Heinbecker, said any exemption for American nationals would “send an unacceptable message that some people -- peacekeepers -- are above the law.” (New York Times, July 11, 2002)

In September, the Bush administration gained a victory, when the European Union agreed on a compromise to spare Americans the fate of standing trial in the new international war crimes court. The ruling came after extreme pressure from White House officials who asked countries for blanket exemptions from the court. The administration feared Americans could face politically motivated trials stemming from peacekeeping or other military operations in areas of war or crisis.

EU foreign ministers reached a deal among themselves that in effect prevented them from extraditing United States soldiers or government officials to the International Criminal Court as long as Washington guarantees that any Americans suspected of war crimes would be tried in the United States. (New York Times, October 1, 2002)