The International Criminal Court and the United States of America
Ee Wenyang, Jonathan
The United States of America has a long history of support for international criminal justice that can be traced from the Nürnberg War Crimes Trial through to the International Criminal Tribunals for Yugoslavia (“ICTY”) and Rwanda (“ICTR”). Towards the close of the century, the United States proved itself as an ardent supporter for the creation of a permanent international criminal tribunal. Yet in July 1998, when the vote on the adoption of the Rome Statute of the International Criminal Court (“Rome Statute”) was called, the United States not only sided with Libya, Iraq, and Yemen against the International Criminal Court (“ICC”), but even took active steps to oppose the court.
This paper aims to understand the United States’ rejection of the Rome Statute in the context of its otherwise strong enthusiasm for the establishment of a permanent international criminal court. Such an enquiry is essential for a number of reasons: If the scathing criticisms of the court by the global hegemon are well-founded, then the continual opposition by America could rapidly erode the legitimacy of the court unless swift action is taken to address these concerns; this enquiry is also necessary if the international community is to attempt to bring the United States on-board the ICC. And it arguably should make such an attempt, due to the immense political, economic and military might which the United States current wields, and will continue to wield, at least for the next decade.
This paper carries out its analysis of the United States’ behavior both on a practical and a normative level. A discussion of the United States’ concerns on a practical level alone is insufficient as practical concerns are invariably motivated by normative ideals. For example, the United States’ criticisms of the lack of accountability, and hence the fear of politicized or rogue prosecution, are arguably driven by normative ideals of democratic accountability.
In the first part of this paper, a practical-level analysis is adopted to show that the United States was unable to support an independent court due to the implications of such a court on its national security interests. The next part of this paper goes beyond the practical aspects and adopts a normative-level analysis. First, it is shown that the United States has historically marched in lock-step with the international community. This is because the norms of the international community, as adopted at Nürnberg, resonated with the United States’ domestic norms. Then, it is shown that the United States was unable to resonate with the new set of norms that were embraced by the international community in Rome, as these new norms were at odds with its domestic beliefs. This paper concludes by advancing that the United States’ opposition to the ICC can be explained by its practical self-interests which are underpinned by strong cultural norms of American exceptionalism, and domestic ideals of democracy.
Analysis on a practical level
This section illustrates constrains which the ICC could potentially impose upon the actions of a global hegemon. On a practical level, much has already been written by academics, either denouncing or supporting the United States’ concerns relating to politicized prosecution, a rogue prosecutor, or the lack of due process in the ICC. In this section, we focus on national security concerns. This paper contributes to the existing literature by examining the ‘benefits’ which the United States’ rejection of the Rome Statute had on its actions post-September 11, 2001. These were effects which could not have been foreseeable back in July 1998, when the United States voted against the Rome Statute. Arguably, the United States might have had been more restrained in its actions, had it ratified the Rome Statute.
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