International Justice

CJ354 Endicott College

The International Criminal Court and American Exceptionalism

Now that you know more about the ICC in terms of his historical precedents, current cases, and challenges in terms of effectiveness and legitimacy, it’s an interesting time to address the U.S. relationship with the Court.

Recall a number of important things. The U.S. is considered a “judicial carpenter” of past tribunals (Nuremberg, ICTY, ICTR) and has long supported, if not consistently, the idea of a permanent international criminal court. And the U.S. participated actively in the Rome negotiations and many of the compromises made in the Court’s jurisdictional triggers and limits were a result of such concessions. Since then, there’s been a lot of ebb and flow it the U.S. relationship with the Court. The Bush administration pushed against the ICC – not only seeking to ignore it but undermine it. This policy gradually changed toward the end of the Bush admin and the Obama admin has a policy of constructive engagement. U.S. support for ICC intervention (through UNSC referrals) in Sudan and Libya underscore this.  But this raises a number of important questions that are worth debating:

1) What justifications are there for why the U.S. has not signed the Rome Statute? Is this a case of “American exceptionalism”?

2) Should the U.S. sign the Rome Statute? And why?

3) If the U.S. were to sign, what difference would it make in the Court’s effectiveness and legitimacy?

4) Is it fair for the U.S. to “constructively engage” with the ICC, by supporting Security Council referrals and participating in ICC meetings and diplomacy, but not to be bound by the Rome Statute itself?

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6 responses to “The International Criminal Court and American Exceptionalism

  1. inesventura4 February 28, 2012 at 11:55 pm

    1. The U.S. has not signed the Rome Statute because it is afraid of losing its sovereignty if it gives up some powers to an international organization. The U.S. is also afraid of what will happen to its own citizens given that former high-ranking officials could be subject to arrest for crimes committed in time of war. I am sure that there is some form of American exceptionalism for not signing the Rome Statute, however I feel that fear also plays a vital role in this very politicized decision.

    2. I believe that the U.S. should without a question sign the Rome Statute. The United States is seen as a leader in the world and their lack of engagement in an effort of justice seems out of place. The fact that the U.S. played such a big role in Nuremberg, ICTR and ICTY and is now unwilling to be a part of a more permanent version of these tribunals is unsettling and makes the U.S. look bad. There really is no other way to say it; the United States looks bad for not signing the Rome Statute.

    3. Since the U.S. is the world superpower the Court would definitely gain legitimacy and more recognition world-wide. As for effectiveness, it would still be difficult for the Court to arrest everyone they need to without a police force of its own, but having the United States military’s help would help in some respects in term of effectiveness.

    4. Is it fair for the U.S. to engage with the ICC? Absolutely not. It is unfair to the ICC and to states that are party to the ICC. However, it is a way for the U.S. to keep showing some kind of support for the ICC and an opportunity for the U.S. to see itself more and more in the ICC and what it stands for. With that said, allowing the U.S. to engage with the ICC in various ways creates a bridge that can be crossed in the future with further interactions and negotiations.

  2. ecadams February 29, 2012 at 9:56 pm

    1. As stated above, the U.S. has not signed the Rome Statute because it requires the submission of it’s sovereignty as a international actor. Since the U.S. has been such an active participant within world affairs, and so used to getting it’s way most of the time, adhering to an international body is threatening. The check of the ICC would certainly make the U.S. appear weaker especially if officials were indicted for violations of international law. This is not an unfounded fear as the ICC has indicted sitting heads of state and not just in failing states. Ideologically speaking, American exceptionalism plays a role in the U.S.’s refusal to sign the Rome Statute. The U.S. has been a strong supporter of enforcing human rights, but it’s refusal to sign the statue illustrates that thinks it is above the check of an international court, because it views itself as different from other countries. This is deeply engrained within every U.S. citizen, and thus signing the Rome Statue is threatening to American identity in itself.

    2. I do believe that the U.S. should sign the Rome Statue. Although it could cause some major political controversy and loss of autonomy on the international stage, I believe it is a step in the right direction. The ICC offers a fresh vision of where political leaders are held responsible, which can make huge strides to create a more secure world (ideally speaking). If the U.S. is serious about global justice, it should sign on as so many of it’s allies have. Although the U.S. is in no current danger of being viewed as a less powerful actor in the world, I think respect for the U.S. would be increased and improve diplomacy. In the long run, the U.S. may not always be a world power, and it might do it good to reach out on even ground with other countries instead of acting as as bully.

    3. I do not think the court’s legitimacy would change if the U.S. joined the court, as in many ways it’s opposition and the ICC’s autonomy has helped show that it can survive without major world powers. I do believe, however, that the court could become more effective, as the U.S. could supply more funds and has the best intelligence in the world, which could be useful for arresting war criminals at large.

    4. Strictly speaking, yes, it is unfair that the U.S. gets to participate in these kinds of negotiations without being signed onto the statue. On the other hand, I think it is a hopeful sign that the U.S. acknowledges the ICC and works with it (if only when it is in their political interests). That is certainly better than trying to undermine it as the Bush administration did. If the U.S. continues these kinds of positive interactions, I think that it should be urged to sign onto the Rome Statue eventually. It will certainly be a process, and process and progress (even if initially unfair) than no movement at all.

  3. brianumass March 1, 2012 at 7:07 pm

    I would like to expand the 4th question. There are other major players in the international stage, ie. China and Russia, who are also not members states of the ICC. Are their any positives the the semi involvement of these countries? Economically no, their reservations definitely hurt the ICC, but as far as the court operating as a individual body on an international stage, does the global community benefit from these reservations held by the US, China, and Russia?

    I would argue that the operation of the ICC without this major international players certainly adds to the legitimacy and functionality of the court. But beyond that, the lack of total commitment operates as a check on the power of the court. It is naturally easy to look at the ICC in the most idealistic light, and its actions so far seem to certainly be noble, but looking forward, will this always be the case? It may be better for the global community and the prolong existence of the ICC to have countries like Russia and China defending the sovereignty of nations, and for the United State to operate on the fridges of the court. In short, the check on the court’s power maybe prove, in the long term, to be beneficial to the international community and the goals of the ICC.

    Thoughts?

    • ecadams March 1, 2012 at 8:58 pm

      That question has been lingering in the back of my mind for sometime, and unchecked power can always lead to problems. Due to the international structure and the many players of the court, I can never foresee the ICC becoming that centralized of a power. However, I do agree that the notion of state sovereignty should always be present as the ICC is seen as the final resort and means to help strengthen domestic justice, and it should not lose sight of that role. Ideally speaking, I find the opposition of these countries are wrong, but I think you make a good point. Sometimes we cannot look at the intent and look at the results, and this could potentially be a good thing in the long run.

  4. mbaglane March 3, 2012 at 9:25 am

    I think this is absolutely another case of American exceptionalism. I initially did not believe that the US signing the rome statute would effect the ICC’s legitimacy or effectiveness however I was looking over the slides and thought that perhaps the US signing could effect the fear of victor’s justice because if the court had the ability to come after US citizens they would be touching people who originally seemed untouchable. However, I do think that signing the statute could help the US in terms of legitimacy. The US is rightfully not in good favor with many people all over the world, and perhaps signing the statute could signal a new day in american foreign policy and a move away from American exceptionalism.

  5. billvancour March 4, 2012 at 12:44 pm

    These are all really interesting questions to take into consideration, and I’m actually contemplating writing about this very topic for another class I’m taking right now. That said, here’s what I think:

    1. As others have already noted, I think a primary reason behind the US refusal to re-sign onto the Rome Statute is the fear of what it would mean for US sovereignty. By having such an active military presence in the world the United States may feel as though they would be unfairly targeted by the ICC. This is evidenced by the fact that the US in the past has refused to take part in UN operations in countries who are party to the treaty without special exemptions, for fear that some of its troops could be accused of committing war crimes. However, the US judicial system is one of the most competent in the world. If the US were to sign onto the Rome Statute and individuals were accused of war crimes its very possible that no case would ever actually reach the ICC due to complementarity. I believe that the ICC would have a very difficult time proving that the US would be unwilling or unable to investigate or prosecute any cases. In some ways this absolutely appears to be a case of American exceptionalism, but even more so as an example of the US practice of double standards which was at the core of American foreign policy during the Bush administration.

    2. I would argue that the United States should absolutely sign onto the treaty. In doing so it could work to reinforce American soft power by demonstrating American morals and values, as well as its dedication to human rights and justice around the world. The US claims to be for all of these things, but by not being a party to the treaty it really loses some credibility on that front. And again, I feel as though US judicial capabilities will probably keep any American citizens from ever actually facing the ICC, so fears about losing the ability to try our own citizens appear to be unfounded.

    3. If the United States were to sign the treaty I believe it would absolutely bolster both the ICC’s effectiveness and legitimacy. For one, in being a party to the treaty the US would then be providing money to help fund the ICC, funding that the court desperately needs. This new flow of cash could potentially help the court in a slew of areas, and maybe even help speed up its trials. Legitimacy would most definitely be impacted by the US becoming a state-party to the treaty. Considering the scope of US military involvement in the world, demonstrating a willingness to subject itself to scrutinization by the court could encourage others to do the same and would help reinforce the global desire to pursue justice and human rights.

    4. As it stands right now, I think that the US ability to engage with the ICC via the UNSC but not being bound b the treaty itself is an issue. If the United States approves of and believes in the court to the point that it is willing to refer cases to it, then the US should just suck it up and join the treaty. While it helps show that the ICC is a valid institution by having support in this manner, it is a massive drain on resources when the US has the ability to send cases its way but has no obligation to actually help pay for the investigations and trials.

    Overall, I honestly see little reason for why the US is not party to the Rome Statue. However, since the end of the Bush administration the US has been far more willing to engage with the ICC, a shift in policy that I hope continues in the future.

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