Academic journal article Law and Contemporary Problems

The Risks and Weaknesses of the International Criminal Court from America's Perspective

Academic journal article Law and Contemporary Problems

The Risks and Weaknesses of the International Criminal Court from America's Perspective

Article excerpt


In the aftermaths of both World War I and World War II, the United States engaged in significant domestic political debates over its proper place in the world. President Wilson's brainchild, the League of Nations, was the centerpiece of the first debate, and the United Nations the centerpiece of the second. The conventional wisdom is that the dark forces of isolationism defeated Wilson's League in the Senate, and that the advent of the Cold War gridlocked the nascent United Nations, preventing it from assuming the role intended for it in preserving international peace and security. While the mythology surrounding both of these important debates is wrong and incoherent in many respects, [1] there is no doubt of the far-reaching implications of American political decisions attendant on them.

Neither the debate over the League nor the one over the United Nations settled the issue of America's proper relationship with other governments and international organizations. During the Cold War, there was little or no occasion for the debate to re-emerge in the United States because the life-or-death struggle with Communism dominated U.S. attention, at least at the national level. Nonetheless, below the surface, largely in academic circles, those debates favoring international legal measures to constrain the independence of nation states continued their efforts, both here and in Europe. Although motivated by a wide range of considerations, many of which were contradictory, one broad theme was that it was the nation state itself, and the seemingly inescapable attendant concept of "balance of power," that posed the most important threat to a regime of international peace. [2] Accordingly, many looked for ways to constrain nation states, to limit their ability to act unilaterally, especially in the use of m ilitary force. It was hoped that such constraints would lead generally to reduced international tensions and the consequent temptation to use force in resolving disputes among nations. [3]

America's victory in the Cold War seemingly freed the United States from many of the constraints that had kept the broader debate about America's place in the world underground. Especially with the 1992 election of President Clinton, the first President since Harry S. Truman who actually seemed to have faith in the United Nations, the debate turned on again. Explicitly espousing a foreign policy of "assertive multilateralism," President Clinton launched an ambitious experiment in a U.N.-led "nation building" in Somalia. The experiment collapsed with the deaths of eighteen Americans in Mogadishu in late 1993, and the vocabulary of "assertive multilateralism" largely disappeared. [4]

Nonetheless, although the rhetoric stopped, the underlying policy did not, revealing itself in a multitude of policy initiatives. The Clinton Administration engineered a series of international agreements, such as the Kyoto Protocol, [5] the Landmines Convention, [6] the Convention on Biological Diversity, [7] and many others, some of which it signed and some of which it did not for fear of certain defeat in the U.S. Senate. This penchant for multilateral solutions also reflected an enduring if often badly mistaken legalism that has permeated American foreign policy during the twentieth century.

Nowhere was this convergence of multilateral and legalistic thought more evident than in the Clinton Administration's pursuit of a permanent International Criminal Court ("ICC,,). [8] In the eyes of its supporters, the ICC is simply an overdue addition to the family of international organizations, an evolutionary step following the Nuremberg tribunal, and a logical institutional development over the ad hoc war crimes courts in Bosnia and Rwanda.

So described, one might assume that the ICC fits logically into history's orderly march toward the peaceful settlement of international disputes, sought since time immemorial. …

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