International Criminal Law

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”). [1] Towards the close of the century, the United States proved itself as an ardent supporter for the creation of a permanent international criminal tribunal. 2] 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”),[3] but even took active steps to oppose the court. [4] 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. 5] 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.

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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. II. 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. [6] 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. On September 20, 2001, in the wake of the September 11 attacks on the United States, then United States president George W. Bush threatened the Taliban government of Afghanistan with military action if it did not turn over al-Qaeda chief, Osama bin Laden. 7] In response, the Taliban offered to try bin Laden in an Islamic Court. [8] The United States rejected this and launched Operation Enduring Freedom a month later. This was followed shortly by Operation Iraqi Freedom in March 2003. Both military operations are illustrative of the potential constraints which an independent ICC might impose on the United States. If the United States had ratified the Rome Statute, it is arguable that it would have exercised more restrain in mobilizing its armed forces to invade another country.

This would be so, even if it felt that it had a casus belli for war, or a just objective of dismantling a terrorist organization. As critics have argued, the war in Afghanistan was not legitimate self-defense; it is well-established that when once the attacks are over, the victim cannot retaliate with force and claim self-defense. Doing so would be considered a reprisal, rather than self-defense. [9] Furthermore, it is debatable whether Afghanistan as a state had initiated the attacks, or whether the attacks were the work of an independent extremist group. 10] Similarly, if the United States had submitted to the jurisdiction of an independent ICC, it would have been more cautious, at least legally, before it unilaterally authorized an invasion of another country, in search of purported weapons of mass destruction that ultimately failed to materialize. As senior judges of the United Kingdom, including Lord Bingham,[11] Lord Steyn[12]and Professor Phillipe Sands QC[13] have asserted, the Iraqi invasion was wholly unlawful under international law.

Academics in England[14] and Canada,[15] as well as then Secretary-General of the United Nations, Kofi Annan, [16] have expressed this view as well. The above examples are not meant to argue against the legality of the two American-led wars, and indeed, this paper expresses no opinion on the issue. Instead, the examples demonstrate that the line between self-defense and crimes of aggression, or the line between military necessity and crimes against humanity, is often an extremely fine and controversial one.

As a result, the United States would always find itself in a legally difficult nd highly controversial position if it had to consistently appear before an international legal institution to justify itself. The desire to minimize such appearances would then encourage more restrain on its actions. Furthermore, the United States would gain little from winning such legal battles, but stand to lose much of its autonomy and hegemonic legitimacy if it lost; a win would add little more to the hegemonic influence which it already had, while a loss would not only damage its legitimacy on the international stage, but also constrain present and future military interventions.

A global hegemon in the United States’ position would have concluded upon a straightforward and pragmatist calculation that it had little need or incentive to support the ICC. [17] If it were to vote for the Rome Statute, its military operations had to be insulated from judgment by the ICC. This would only be possible if the ICC was subordinate to the Security Council,[18] as had been envisioned in the original 1994 draft statute by the International Law Commission. [19] Alas, such a structure was roundly rejected by the international community, and therefore, the United States had little reason to support the Rome Statute. [20]

This paper has shown on a practical level how the United States’ desire to maintain its wide latitude in responding to national security issues, as well as the fact that it would gain little from the ICC in its current form, caused it to oppose the court. It now adopts a normative level analysis. The subsequent analysis traces concurrently, the development of international norms and the development of American domestic norms, from Nürnberg to Rome. In doing so, it aims to show that it is the divergence between American domestic norms and international norms in the mid-90s that resulted in the United States rejection of the ICC.

III. The road to Rome: A normative analysis A. Nürnberg A search for a new norm was triggered at Nürnberg when Mankind realized that prevailing international norms were inadequate to deal with the atrocities of World War II. [21] The new norms that emerged meant that (a) individuals, including head of states, could now be held personally liable for their actions; and (b) crimes against humanity, even those committed against one’s own citizens, could now prosecuted. [22] These normative changes went towards the question of who could be placed on trial, and what he could be tried for.

On these aspects, the prevailing domestic beliefs of both the United States, and the wider international community, were very much similar. As Telford Taylor put it, the prevailing sentiment was that only the most incorrigible legalist could pretend to be shocked by the conclusion that the perpetrator of an aggressive war could be held liable for his perpetration. [23] The normative changes at Nürnberg did not deal with how a decision would be made as to whom to prosecute, i. e. issues of the trigger mechanism and prosecutorial discretion.

As evident in the Moscow Declaration, this was wholly a political decision made by the victorious powers. Little conflict between the United States and the international community arose out of this because the victorious powers were in complete control of the entire prosecution process, and there was no likelihood that any of their own citizens would be prosecuted by the defeated powers. B. After the Cold War The transformation of norms did not end at Nürnberg, but merely took a brief hiatus for the Cold War.

The end of the Cold War and the mid-90s saw the large scale commission of war crimes in the Former Yugoslavia and Rwanda. As a result, the ICTR and ICTY were created by Security Council resolutions to prosecute violations of international humanitarian law. [24] However, these ad-hoc tribunals were problematic for a number of reasons, least of which were the time-consuming, and politically exhausting efforts which were required for their creation. [25]

For example, the ICTY was criticized, inter alia, for the inability to try crimes against the peace, and the perceived disproportionate indictments of Serbs. 26] Some scholars even argued that its indictments were legally invalid as it had no jurisdiction. [27] These problems arguably caused the ad-hoc tribunals to be seen by the international community as being unworkable in the long term, having insufficient legitimacy, and presenting an unacceptable mix of politics and justice. While both the United States and the international community saw value in a permanent court, opinions differed as to how the court should be structured.

Thus, the stage was set up for a clash between the world’s sole superpower and the rest of the international community. C. Rome In Rome, a group of middle powers, commonly called the ‘like-minded’ states, led by Canada and Norway, sought to alter the structure of international law and to divorce it from politics. [28] This was mainly done by creating an independent prosecutor. The independent prosecutor had the capacity to pursue cases based on evidence gathered by non-governmental organizations, thus enabling victims who were not necessarily represented by states, to have their claims heard.

As Jason Ralph puts it, the Rome Statute helped to constitute ‘world society’ by creating a system of justice that could bypass the society of states when states failed to uphold the law. [29] The United States was naturally concerned. From Nürnberg to the ICTY and then the ICTR, it had always had a great degree of control over the decision-making process as to whom to prosecute. [30] As John Bolton declared, “[n]ever before has the United States been asked to place any of that power outside the complete control of our national government. [31]

One issue at stake was the obvious threat to its hegemonic influence over international justice. [32] With an independent court, America could no longer, through American-sponsored Security Council resolutions, be perceived to be the primary driver of international criminal justice. [33] From another angle, it is likely that the double-standard form of American exceptionalism factored greatly in the United States’ adverse reaction to the court too. For example, in Rome, the United States argued that Article 2 of the Rome Statute gave the ICC jurisdiction over a national of a non-party state,[34] and that this was in violation of Article 34 of the Vienna Convention. [35]

However, this is in direct contradiction to its own stand on numerous other occasions. As Michael Scharf notes, the United States has taken a far less conservative approach to these issues of jurisdiction when it is in its interests; in 1998, it took the lead role in negotiating the International Convention for the Suppression of Terrorist Bombings, without seeking to limit its jurisdiction to offences committed by nationals of parties to the Convention. 36] Furthermore, the United States is also a party to various international conventions like the 1949 Geneva Conventions that empower state parties to exercise jurisdiction over perpetrators of any nationality found within their territory, irrespective of whether the state of the accused’s nationality is also a party to the treaty. [37] As many legal scholars have pointed out, universal jurisdiction over Article 5 crimes have been accepted in customary international law and the Rome Statute merely gives effect to this.

Therefore, when the arguments against the court put forth by the United States are viewed in light of these, one comes to the inescapable conclusion that this is merely an attempt by a global hegemon to submit the international community to its ideals of justice, while simultaneously ensuring that its own citizens are not subjected to the very same standards. The United States normative ideals which are rooted in constitutional patriotism and revolve around traditional notions of democratic accountability and popular sovereignty[38] likely played a role in its opposition too.

An independent court whereby the prosecutor could initiate investigations proprio motu was probably seen as anathema to the United States’ ideals of democratic accountability and popular sovereignty. [39] Critics often lamented of the encroaching ‘democratic deficit,’[40] and argued that there was no democratic accountability since there was neither an international polity nor working global representative institution.

As John Bolton advanced, both the ICC and the independent prosecutor accounted to no one; the prosecutor answered neither to a superior executive power nor a legislature. [41] One could also argue, as Moravcsik has done, that Americans hold a principled belief in local, small-scale democracy within a federal system, and this predisposes them to reject centralized forms of rights enforcement, particularly at the international level. As Moravcsik notes, Americans report suspicion about ‘big government’ in Washington, and tend to trust state and local officials more. 42] It could also be argued that international obligations are at odds with a general culture of ‘reverence’ among Americans towards the United States Constitution as a ‘sacred symbol’. [43]

As David Golove writes, Americans are accustomed to thinking of their legal system, and its constitutional commitment to fundamental rights as a model for other countries to emulate. Therefore, it comes as no surprise that they are far less comfortable with the idea that when it comes to justice, they might have something to learn from other nations. 44] Furthermore, Samuel Huntington argues that in the United States, ideology and nationality are fused and the disappearance of the former would mean the disappearance of the latter. [45] The cumulative effects of these factors mean that any foreign institution with different values will likely be viewed with suspicion and as a potential encroachment on both American ideology and nationality. Therefore, as a result of these closely held and revered fundamental beliefs, the United States found that it was unable to support the Rome Statute. IV. Conclusion

This paper has shown that the United States rejection of the ICC in Rome can be attributed to practical concerns of national security, as well as normative reasons based on American exceptionalism, constitutional patriotism, democratic accountability and popular sovereignty. At the outset, this paper questioned whether there was a need for the international community to take action to address the United States criticisms, and whether the lack of such action would erode the legitimacy of the court. If the analysis in this paper is accepted, then both questions ecessarily have to be answered in the negative.

The United States is not, in this case, the lone voice in the desert crying out for reason. Instead, its criticisms are the product of an innate desire to perpetuate its influence, and to impose its normative ideals upon less powerful countries. It is not likely that the ranting of a self-interested hegemon will have adverse effects on the legitimacy of an institution that has been subscribed to by most of the international community. In the past five years, there has been a moderation of the United States’ once aggressive stance towards the ICC. 46] This could be attributed in part to political change, and in part to the fact that the United States has seen that its practical fears of politicized and rogue persecution are unfounded. It could also be because, in light of its arguably diminished standing in the world today, the United States has come to realize that, if it is to regain its hegemonic influence, it has to first toe the line drawn by the international community. In a sense, this could mean that the normative beliefs held by Americans have gradually evolved over the past five years, such that they are now more compatible with those held by the international community.

A future work could explore this in greater detail. On a final note, it bears reminder that international criminal justice is not just another tool which the Security Council uses to maintain global peace, or a pawn of power politics. As Robert Jackson articulated at Nürnberg, international criminal justice is simply the means by which civilization condemns and punishes wrongs which are so calculated and devastating, and an avenue for innocent victims to have a minute degree of closure from the immeasurable harm caused to them.

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International Criminal Law. (2016, Oct 04). Retrieved from