Europe, the United States, and the
International Criminal Court
Previous chapters have attempted to understand recent developments in international criminal justice through the interpretive framework provided by the English School approach to IR. These chapters argued that the Statute helps to constitute what English School scholars have tentatively called world society by articulating a set of core crimes and setting up a system of justice that is independent of the society of states. Chapter 5 sought to explain why the United States opposes this development. In contrast to other democratic states, the United States sees the Court as a threat to its autonomy and to its democracy. This perception of 'threat' is driven by nationalists who see in the policy of opposing the Court an opportunity to reaffirm an exceptional American identity. Chapter 5 also identified a division between irreconcilables, who oppose the Court as a matter of principle and those who can be reconciled with the Court as long as American citizens are not subject to its jurisdiction. The irreconcilable position is now largely academic. The United States was not able to prevent other states from ratifying the Rome Statute and while the lack of American support certainly limits the Court's effectiveness, it has not stopped the Prosecutor from conducting investigations.1 The United States, in other words, has been forced to live with the Court and to do this it has continued to search for ways to exempt US citizens from the Court's jurisdiction.
Where the Clinton administration tried to do this within the ICC framework—as Chapter 5 noted, it signed the Rome Statute in order to guarantee a US presence at the PrepCom meetings—the Bush administration chose to ignore the PrepCom process. Instead, the Bush administration
1 Since taking office on 16 June 2003, the Independent Prosecutor Luis Moreno-Ocampo has
begun to investigate situations in Uganda, the DRC, and Sudan. The first two were self-referrals,
which according to certain commentators was not anticipated by the Statute and the Prosecutor's
decision to investigate is considered to be in breach of the complementarity principle. See Claus
Kress, ' [Self-Referrals] and [Waivers of Complementarity] Some Considerations in Law and
Policy', and Paola Gaeta, 'Is the Practice of [Self-Referrals] a Sound Start for the ICC?', Journal of
International Criminal Justice, 2 (2004), 944–8 and 949–52. The situation in Darfur was referred
to the Prosecutor by the UN Security Council. This is discussed in detail below.