International Justice

CJ354 Endicott College

Will the U.S. Ever Become a Member State?

In our readings and class discussions this week, as well as Sarah’s post on the blog last week, I’ve been thinking about the factors that would prompt U.S. to ratify the Rome Statute and become a member state of the International Criminal Court. What kind of political dynamics, either domestically or internationally, would need to take place?

The Chicago Council on Global Affairs, in a 2012 poll, found that 70% of Americans support U.S. participation in the ICC. It is hard to imagine, however, how this public opinion would practically translate into the political momentum that would push the U.S. into becoming a member state.

It seems to me that in order for the U.S. to ratify the Rome Statute, it would require either immense political pressure from its allies that are member states, or an international conflict grave enough to force the U.S. into action.

But the Obama administration’s approach – cautious and limited cooperation – seems to be the best of both worlds, as far as the U.S. is concerned. Acting in a more cooperative manner than the Bush administration makes Obama look good, by comparison, on the global stage. And by providing indirect support, such as through the UN Security Council, the U.S. can protect its own international interests.

All the while, as a non-member state, the U.S. doesn’t have to contribute financially to the ICC, nor give up its national sovereignty- a foreign policy win-win. Despite criticism, the status quo for the United States regarding the ICC seems to work quite well for U.S. interests, domestically and abroad. So despite the findings of the Chicago Council’s poll, it’s difficult to imagine a scenario that would draw the U.S. past its current level of involvement, at least for now.

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10 responses to “Will the U.S. Ever Become a Member State?

  1. sarahcmorell October 28, 2012 at 11:56 pm

    For all of the reasons you’ve laid out, it’s difficult to imagine a scenario in which the US would join the ICC. When we look at the reasons why the US refused to join in the first place – the Court’s jurisdiction in Article 12, the fact that the ICC is independent from the UN Security Council, and, according to Birdsall, the fact that the Court “does not recognize the special role that the United States plays as a major superpower in international relations” – it’s easy to paint the US government as a self-interested body that cares little for conception of bringing foreign criminals of heinous acts to justice, as long as our own national interests are met. However, when we unpack the “national interests” idea, we’re left with the nightmare scenario of young American Marines, sent to a war zone by their government, following orders from their leaders, and then indicted by a Court that their government cannot protect them from, a Court that in certain respects does not endow them with the rights guaranteed to them by the US Constitution. Right or wrong, hypocritical or not, the US believes that this cannot happen. As you’ve said, the “best of both worlds” strategy is working out for the US at the moment, and I imagine it will for quite some time.

  2. seohchoi October 29, 2012 at 12:16 am

    While agreeing to your conclusion that it would be better for the US to not join the ICC, thinking about why made me think about the role of the US in terms of the balance between peace vs. justice.

    The United States has been playing a special role in promoting stability and peace in many different countries all over the world. For an (controversial) example, the US participated in the Korean War to stop communism dominating the entire Korean peninsula.

    However, there are certainly hints here and there that the US also has been taking advantage of this special role it has in the world and has been using it to its advantage. For example, the US involvement with the drug trade in Afghanistan, yet there is no mention of it in the US media.

    The role of the US in the world is a complicated one to define. Maybe the rest of the world is not as actively seeking justice for many wrong the US has done just because it wants stability and peace. Would this put the US in a bad place if the ICC were to gain power over it to start investigations?

  3. branwall1 October 29, 2012 at 12:13 pm

    I too agree that the United States is in a good place right now in its relationship with the ICC. Its ‘best of both worlds’ position seems to be serving both the USA and the ICC well. However, I could very easily imagine a situation in which the USA does become a member state.

    Especially if the findings from the Chicago Council on Global Affairs are accurately representative of Americans, it is not unlikely that a presidential candidate, or even an entire party, might take advantage of such an opportunity to court the votes of a majority of citizens. It would be easy, for example, for a democratic presidential candidate within the next decade to support the USA joining the ICC and to quickly make it a staple of his party’s platform. I can clearly picture campaign advertisements claiming that joining the ICC would strengthen the United States’ international presence and “restore our country to its former glory” as a respected player in international politics and justice. As unfortunate as it is, politics may well prevail even if it is not in the United States’ best interests to become a member state.

  4. gentryj October 29, 2012 at 12:29 pm

    A certain irony has long existed within the United States regarding international politics. The irony being that while the United States has been deeply involved in shaping world politics at critical junctures, it then often distances itself from the very thing it helped to create. Put simply, it has been a founder but not a member. An oft-used example is the League of Nations. In many ways this international organization was the brainchild of President Woodrow Wilson, who sought to create a new international order and a world made “safe for democracy”. However, upon returning to the United States, he found Congress unwilling to surrender any sovereignty. Despite his best efforts, Wilson could not get the United States into the League of Nations.
    The ICC, though a different case in many ways, also saw the United States deeply involved in the formative process, as pointed out by Benjamin Schiff in Building the International Criminal Court. Compromises were made in order to create a structure that would more suitably accommodate U.S. interests. However, again this proved insufficient. Fears arose about the threat to US sovereignty that the court could create. Therefore, to this day, the United States is not a member of the ICC. I agree with the previous entries that the current US position is more advantageous, for it allows the US most of the benefits of the ICC without the potential drawbacks. This position also fits into the pattern of US engagement in international politics: to be involved without being constrained; to form the framework while remaining separate from it.
    But the United States has become a part of many other organizations, such as the UN and NATO. The difference is that the special role of the US is recognized by such organizations and the US is endowed with special powers (for example the veto power in the security council, afforded permanently to only 5 states in the entire world). So, if the United States were to join, based on this pattern, special privileges would have to be afforded to it. Such special privileges though, would seem to contradict the foundational principle of the ICC: the rule of law. The rule of law asserts that no one is above the law and that no one is afforded special privileges based on status. Therefore, the established pattern of US engagement and the expectation of special advantages in organizations that it joins adds further weight to the argument that the US is unlikely to become a member of the ICC in the near future. This is not to say that it is impossible. Change could occur if domestic pressure was employed by the majority of Americans who support the ICC. However, this also remains unlikely, as this broad-based support remains “shallow and untapped” (http://www.amicc.org/usicc/opinion ).

  5. sarahupp14 October 29, 2012 at 12:29 pm

    Interestingly enough, U.S. Ambassador to the United Nations Susan Rice recently issued this statement (see below–links can’t be embedded directly into comments) expressing American support for the ICC and commitment to its goals. She goes so far as to say that “how we act to halt violence against civilian populations and hold accountable those who perpetrate such crimes is a fundamental test of our time.” Such a statement is in line with the apparent trend of increased U.S. cooperation with and support for the ICC. In terms of U.S. policy in practice, however, she seems to be in favor of our aforementioned “best of both worlds” approach, which shows American support for the ICC’s mission while keeping U.S. leaders out of the Court’s jurisdiction and freeing the U.S. from financial entanglement.

    http://usun.state.gov/briefing/statements/199261.htm

  6. Brian Wilkinson October 29, 2012 at 2:19 pm

    It seems exceedingly unlikely that any event could force the US into ratifying the Rome statute. While 70% of Americans may support US involvement in the ICC, that issue is much less salient than economic issues or highly visible foreign affairs issues, and are thus the ICC is unlikely to become an issue to campaign on. The US is uniquely powerful economically and militarily, and it would be unwise for any country to attempt to pressure them into joining the ICC.

    It’s important to point out that America is likely concerned about any of its own citizens being tried by the ICC. The reports from Iraq and Afghanistan of torture of POWs constitute war crimes, and the number of civilians killed by drone strikes may leave US military members vulnerable to investigation. Also we’ve seen a “grave international conflict” with the conflict in Darfur, and that didn’t pressure any countries into joining the ICC.

    It will be interesting to see how the US (and the UNSC) respond to information coming out of Libya and Syria, and what direction they chose in regards to war crimes there.

  7. amyg414 October 29, 2012 at 8:43 pm

    I also agree that U.S. ratification of the Rome Statue is not likely to be motivated by a particular event or conflict situation. The U.S. has a complicated relationship with the ICC, and I do not believe it will decide to actually become a member of the ICC. Management concerns, personality clashes and allegations of ICC politicization that Kayne details in the article “Who’s Afraid of the ICC” ultimately have little to do with this decision. As others have mentioned in this thread, there is concern that the ICC would encroach on U.S. sovereignty by subjecting nationals of non-state parties to the potential jurisdiction of the ICC, and the U.S. will not accept a treaty containing rights that go beyond or are in conflict with those guaranteed by the Constitution because they are therefore not enforceable.

    Even though, as was pointed out in the Schiff readings from last week, the jurisdiction of the ICC is intended to be complementary to that of national courts and will not seek prosecution unless national courts are unwilling or unable to do so, this is still perceived as a potential threat to sovereignty because the ICC may seek prosecution of U.S. military members, yet U.S. federal legislation specifically prohibits this. From a legal standpoint, section 4 of the American Servicemember’s Protection Act actually directs the President to use the U.S. vote in the Security Council to make sure that resolutions authorizing peacekeeping operations exempt “members of the Armed Forces of the United States participating in such operation from criminal prosecution or other assertion of jurisdiction by the International Criminal Court for actions undertaken by such personnel in connection with the operation.” (For those who are interested, the ASPA can be read in its entirety at: http://www.state.gov/t/pm/rls/othr/misc/23425.htm) Further, conflicting issues such as the one I’ve pointed out here are hard to reconcile because the ICC Statute, unlike many other human rights treaties, does not permit any reservations by state parties. As a result, it is extremely unlikely that the U.S. will proceed to join the ICC.

  8. smshetty October 29, 2012 at 10:16 pm

    Andrea Birdsall’s piece on US-ICC relations brought up a lot of good points for me. Specifically, the notion of the U.S. as a “special superpower”, though initially off-putting, holds real credibility. We’ve discussed America’s double standard in generally supporting initiatives like the ICC, but then demanding exceptions and withdrawing from the court’s jurisdiction. This is absolutely true: our leadership, both in the Oval Office and in Congress, have yet to unearth the perfect balance between supporting international norms and succumbing to them.

    Less mentioned, however, is the double standard of the international community, which often depends heavily on U.S. intervention, fiscal aid, and general international policing, while simultaneously demanding that America be treated similarly when considering universal jurisdiction. The plain truth is that because it is the most militarily involved nation on earth, the notion of universal jurisdiction is a much larger threat to American operations than those of other countries. Even UN peacekeeping forces often include American armed forces; it would be overly idealistic to expect no resistance from American politicians when pressured to sign a statue like that of the ICC.

    Birdsall mentions the bilateral immunity agreements (BIAs) the U.S. used as a sort of compromise between subscribing the to the ICC but avoiding the dangers of having American nationals indicted by the Court. I see such a system – without the cuts in military assistance to countries that do not sign BIAs – as perhaps being a solution to the ongoing attempt to reach a resolution regarding ICC-U.S. relations. Such an initiative would at least ensure immunity and security in some countries, while leaving room for possible negotiations with others.

  9. mrivera11 October 30, 2012 at 10:58 am

    If the US were to re-sign the treaty, even if they do not intend to ratify, would the international community be open to further discuss changes to the statute? When Clinton signed the Statute, the US intentions were to keep actively working with the international community so that changes could be implemented that would possibly allow the US to actually ratify. One of the main concerns after the Bush administration decided to “un-sign” the treaty was that it could no longer voice its opinion on the treaty. Currently, under this “best of both worlds idea” with the Obama administration in which cooperation was seen in the Kampala conference, the US participation as an observer, achieved similar outcomes/involvement as they would if they were still adhering to the statute- it seems that such high levels of cooperation were welcomed by the international community, thus would signing the treaty even be necessary for the US relationship at this particular moment from the international community? The question of “double standards” would inevitably come up, but at this moment, such levels of cooperation appear to signify an understanding that the US will use its “influence” with the international community, to favor the overarching goals of the ICC.

  10. jokadieva October 31, 2012 at 6:40 pm

    Birdsall’s article was a clear overview of the U.S.’ intentions regarding the ICC. More importantly, Birdsall explains the United States’ reasoning from the perspective of international relations theory. The U.S. not joining the ICC makes perfect sense in terms of its realist approach to power and sovereignty. The ICC is an institution with universal jurisdiction and it threatens to break borders in order to pursue perpetrators, instituting new norms in the process. While it is also true that the United States has often interfered in Latin America, Asia and the Middle East to propagate democracy, the U.S. has also shown periods of great restraint from international affairs in its grand strategy. The U.S. often relies on offshore balancing regarding conflicts among other great powers.

    It seems that the U.S. enjoys this ability of changing its perspective on foreign intervention often and depending on the international climate. This is way it is “unique” in its status as a world power and hegemon. Joining the ICC would put the U.S. actions under scrutiny and bring it closer to control by the other U.N. powers. This oversight is fundamentally contrary to the United States’ stringent pursuit of sovereignty within its borders. Obama’s cooperation with the ICC is probably the farthest the U.S. will go for now. That way, it is able to be respected without compromising its values in regard to its place in the international system.

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