The International Criminal Court and the Political Economy of Antitreaty Discourse

Abstract

This article examines U.S. opposition to the International Criminal Court (ICC) as a case study in how domestic and international politics shape discourse against new treaty-based legal obligations. When it comes to the ICC, official U.S. government discourse repeatedly alleges process-oriented shortcomings, including procedural due process concerns and risks of prosecutorial abuse. This tendency to emphasize process-oriented arguments is borne out in a sample of public documents with dates between February 2001 and February 2003, where U.S. government officials made statements opposing U.S. participation in the ICC. Procedural due process and prosecutorial abuse claims account for about 80% of the lead arguments (that is, arguments developed in the most detail), and about 62% of the total arguments in the sample.

Just as process arguments about domestic criminal law sometimes masquerade for positions about substantive law, the process arguments against the ICC do not capture the full extent of plausible U.S. concerns about the role and implications of this tribunal. The ICC's procedural protections for defendants tend to be comparable to those in the U.S., and it is not obvious that the court's prosecutor will be free from at least some legal, political, and economic forces that also impact U.S. prosecutors. Conversely, even if the court copiously observed procedural safeguards and the prosecutor only proceeded with the utmost fidelity to the substantive law, certain of its interpretations of the relevant international legal norms could conflict with conclusions more supportive of military discretion likely to be valued by a number of U.S. domestic constituencies. Such substantive constraints and risks are worth acknowledging explicitly.

Keywords: International Criminal Court, Political Economy of Treaties, Criminal Enforcement, Law and the Political Process

JEL Classification: K14, K33