Academic journal article Stanford Law Review

The International Criminal Court and the Political Economy of Antitreaty Discourse

Academic journal article Stanford Law Review

The International Criminal Court and the Political Economy of Antitreaty Discourse

Article excerpt

INTRODUCTION

I. THE INTERNATIONAL CRIMINAL COURT AND ANTITREATY DISCOURSE
   A. Understanding the International Criminal Court
   B. Arguing About the International Criminal Court:
   Official Antitreaty Discourse and Its Alternatives
II. ANTI-ANTITREATY DISCOURSE: SOME LIMITATIONS OF THE
PROCEDURAL AND THE PROSECUTORIAL ABUSE CRITIQUES
   A. Limitations of the Procedural Critique
   B. Limitations of the Prosecutorial Abuse Critique
III. THE POLITICAL ECONOMY OF ANTITREATY DISCOURSE
   A. The Allure of Process Discourse
   B. Interested Constituencies
     1. Military leadership
     2. Executive branch officials
     3. Legislators
   C. Target Audience No. 1: International Elites and Publics
   D. Target Audience No. 2: The Domestic Public
CONCLUSION

INTRODUCTION

When a nation state ratifies a treaty to extradite criminals, safeguard natural resources in international waters, or provide for common defense, it places some constraints on its sovereignty by committing to do something for other nations. (1) Presumably, whether those constraints are worth accepting depends on the circumstances in which the nation finds itself, the legal and political impact of ratifying the treaty, and the consequences of rejecting the treaty and retaining a fuller measure of unshackled sovereignty. (2) It all sounds simple enough, except for the devilish detail that a nation state is not an "it" but a "they." (3) Accept this fact and it becomes less clear what it means to say that new treaty obligations might be "worth accepting depending on the circumstances in which the nation state finds itself," because it is less clear who exactly the nation state is, and how exactly its constituent parts should evaluate a prospective treaty.

My purpose here is to consider one implication of this fact: that arguments made by a nation state's official representatives against a new treaty (i.e., arguments that the costs of treaty membership exceed the benefits) do not necessarily reflect deep moral or analytical truths. Instead those arguments are likely to reflect the confluence of three forces: (1) pressure from interest groups that the new treaty would affect, (2) the need to appeal to domestic political audiences, and (3) the need to appeal to international political audiences. The debate over the International Criminal Court (ICC) is an example of this dynamic, where representatives of the U.S. government make process-oriented arguments that may seem more alluring to domestic and international audiences even though they are at odds with U.S. practices in other contexts and with the structure of the ICC.

This dynamic is not unique to international law; on the contrary, domestic criminal law scholars have noted that discussions of process can masquerade for--and crowd out--talk about the substantive law. (4) The fact that the issue arises in the context of international law means the debate is not only about how certain criminal defendants are tried but also about which legal constraints on military power shall be enforced (for example), and what costs shall be borne if the United States commits in principle to legal restrictions on the use of military power but seems intent on avoiding their enforcement. In identifying this dynamic, this Article does not imply that the United States should sign the Rome Statute or that all the process arguments are necessarily phony. Instead the point is that just as domestic criminal procedure must be understood in light of the substantive law with which it interacts, the procedural objections cited by the United States should be understood in light of the substantive law the court will enforce. Thus, the process objections do not fully explain the vehemence of U.S. objections. (5)

The balance of this Article examines the debate over U.S. participation in the ICC as a case study in the political economy of antitreaty discourse. Part I offers a brief description of the ICC, the range of arguments that U. …

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