The justice pivot: U.S. international criminal law influence from outside the Rome Statute.

Author:Mahony, Chris
Position:Abstract into III. Procuring ICC Prosecution Deference, p. 1071-1103


International criminal prosecutions have become more common since 1993, both domestically and at international courts and tribunals. Where the United States government is unable to control how and when international criminal law is enforced, prosecutions may confront realist U.S. self-interest. This Article considers the extent to which post-Cold War international justice case selection has become more independent of U.S. pressure, or more captured by it. By considering both the jurisdictional and functional elements of case selection independence, I consider changes in U.S. capacity to influence international criminal law enforcement. This Article examines case selection independence at the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone and the International Criminal Court. Drawing on the jurisprudence, literature, field interviews and experience working in international justice, I observe increasing capture by state self-interest, entrenchment of U.S. definitional preferences, emergence of unintended precedent, and a pivot in how and the extent to which the United States shapes International Criminal Law enforcement. The research observes a combination of factors affecting U.S. influence, including shifts in power dynamics between and among weak and powerful states, increasing state sophistication in international court engagement, a shift in jurisdiction triggering actors and forums, and realist state co-option of norm entrepreneurs via endearing explanation of independence-diminishing policies. (1)

  1. INTRODUCTION II. THE UNITED STATES AND POST-WORLD WAR II INTERNATIONAL CRIMINAL LAW A. Explaining Negotiations at The Rome Conference B. The Rome Statute's Constraints on Case Selection Independence C. Pivoting to Domestic Enforcement Under a Shadow: Complementarity and U.S. Intimidation III. PROCURING ICC PROSECUTION DEFERENCE A. Complementarity and Political Control of Domestic Case Selection 1. Colombia: Heightened U.S. Interests, Heightened International Justice "Gaming" 2. Complementarity Implications for U.S. Policy IV. U.S. INTERESTS, UNFORESEEN CONSEQUENCES, AND ICJ ENFORCEMENT EVOLUTION V. CONSIDERING AN INTERNATIONAL CRIMINAL JUSTICE TRAJECTORY OF U.S. INFLUENCE A. A "Justice Contraction The Increasing Capture of International Justice Case Selection VI. SHIFTS IN AVAILABILITY OF STATE LEVERS OVER INTERNATIONAL CRIMINAL LAW ENFORCEMENT A. The Global Economic Order and U.S. Control of International Criminal Law Enforcement VII. UNIVERSAL JURISDICTION AND U.S. CAPACITY TO CONTROL INTERNATIONAL CRIMINAL LAW ENFORCEMENT VIII. THE U.S. INTEREST IN SCALING UP CONFLICT WITHIN STATES GOVERNED BY UNFAVORABLE REGIMES IX. CONCLUSION I. INTRODUCTION

    The United States remains the primary source of influence over the evolution of international criminal law (ICL) and ICL enforcement despite its reluctance to join the International Criminal Court (ICC). In this Article, I argue that the U.S. government has successfully locked in critical policy preferences for the evolution of ICL and ICL enforcement despite relinquishing instruments of control enjoyed over ad hoc and hybrid tribunals. It was able to do so for two reasons. First, it was an early adopter, driving the agenda of post-Cold War international justice in response to the 1989 United Nations General Assembly (UNGA) Resolution calling for the International Law Commission (ILC) to address the establishment of an international criminal court. Secondly, the time at which policy positions relating to international criminal justice were locked in occurred during a period of U.S. economic and security predominance. This timing enabled U.S. preferences to be achieved via the United Nations Security Council when weaker permanent members were less able to oppose U.S. preferences (compare Russian and Chinese opposition to ICC referral of the Syrian situation with their acquiescence regarding the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY)). Early U.S. engagement, I argue, established path-dependent preferences and negotiating positions, particularly in relation to the crime of aggression and key elements of jus ad helium. The U.S. experience with the ad hoc tribunals helped the U.S. government identify potential for unintended consequences as well as modes of case selection capture. The U.S. experience illuminated means of capturing prosecution case selection either through inserted jurisdictional constraints or functional vulnerability into court design, or through subsequent cooperative pressure.

    Despite the aforementioned U.S. advantage of advanced experience, I also identify a shift in power to shape ICC prosecution case selection away from the Security Council and towards increasingly sophisticated weak states more deeply engaged with the ICC--a "justice pivot." To illustrate this argument, this Article casts a particularly focused lens on the Uganda situation--the ICC's first--as demonstrative of both the justice pivot and continued U.S. policy impact on international crimes case selection despite U.S. absence from the Assembly of States Parties (ASP) to the Rome Statute. This Article also examines how a shifting global economic order is reinforcing the justice pivot by lending increased confidence to weak states in a geopolitical context where the Security Council has become increasingly inactive.

    Contextualization is particularly pertinent in assessing where the independence of international crimes prosecution has come to: complementarity reinforces the justice pivot. The ICC jurisdictional element of complementarity instructs, unlike the ad hoc tribunals or hybrid courts, such as the Special Court for Sierra Leone (SCSL), that ICC jurisdiction is dependent on the willingness and ability of states themselves to prosecute crimes committed on their territory or by their nationals. In this Article, I will consider what this principle means for both the interests of the United States and others, and for the advancement of the fight against impunity for core international crimes. I consider the extent to which the complementarity principle of the Rome Statue of the ICC accepts politicized trials, the U.S. position on that issue, and how the U.S. government has shaped state adherence to complementarity through cooperation with other states. Does the complementarity principle, which provides primacy to states unless they are "unwilling or unable," (2) tolerate politicized domestic processes, and how has U.S. foreign policy shaped other states' engagement with that question? I identify the source of complementarity being less about principled advancement of the norm of international crimes prosecution and more about realist state self-interest in constraining the independent ICC pursuit of those most responsible for international crimes.


    This part briefly considers the historical trajectory of international criminal justice and how U.S. policy has shaped the process leading to the establishment of the ICC. I trace the interests of both strong and weak states throughout their efforts to regulate asymmetric relations through rules entrenching powerful state advantage while providing weaker states certainty. A statist perspective views strong states as seeking weak delegation so as to provide more easily manipulated institutions while weak states prefer delegation to mitigate domestic responsibility for sensitive issues. (3) Considering case selection independence will facilitate the opportunity to consider whether independence increases when weaker states are involved. Abbott and Snidal's theory suggests that greater design participation by weak states facilitates greater independence and a cascade of the norm of international crimes prosecution. (4) I identify key elements that constrain prosecution independence in pursuing those most responsible for crimes identifying a degree of "justice capture," and the role of the United States in shaping this trajectory. I note the dilution of U.S. influence via the forum of the ICC design (the Rome Conference) which enabled weak state participation after weak start marginalization in Security Council-established courts' design by permanent members.

    As stated in the introduction, the timing of U.S. engagement in shaping the emergence of post-Cold War international crimes prosecution is important. The theory of increasing returns suggests that personnel enthusiasm provides positive feedback that reinforces institutional confidence in case selection and decreases the likelihood of change. (5) Path dependence therefore challenges existing political science explanations that attribute large outcomes to large causes. (6) The analysis of timing, sequence, and the capacity of rational actors to design and implement optimal solutions emphasize an institution's, or in our case a negotiation's, embryonic stage. (7) Path dependence helps explain variance in case selection independence from one court or situation to another by examining the relationship between historical narratives, state policy toward courts, and the extent to which institutionalization of international crimes case selection "locks in" (8) historical narrative and state policy at the time of court design. Similarly, by considering the preferences, comparative power dynamics and timing of state engagement, path dependence assists the explanation of parties' positions, concessions, and the institutional outcome-the ICC, established by the Rome Statute.

    The idea of an international criminal court was first raised at the 1919 post-World War I peace negotiations to provide for a special tribunal to prosecute the German Kaiser, a head of state, for waging war. (9) A confluence of interests between norm entrepreneurs and states temporarily demanded...

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