The International Criminal Court (ICC) - The End of Impunity

The International Criminal Court (ICC) - The End of Impunity

Why the United States Is So Opposed

By Paul W. Kahn, December 2003

The opposition of the United States to the International Criminal Court appears as either a puzzle or an embarrassment to many of the nation’s traditional supporters. A puzzle, because it is not at all obvious why the United States should feel so threatened by this new court. Supporters of the Court point out that there are ample provisions in the Rome Statute designed to protect a mature democracy’s capacity to engage in legal self-regulation and self-policing. To raise the specter of an irresponsible prosecutor before the ICC, or of other nations manipulating the Court’s jurisdiction for anti-American political purposes, is to create a straw man.

An embarrassment, because the United States appears to be exempting itself from rules of the game that it believes should apply to others. This is singularly inappropriate when the game involves allegations of crimes against humanity, genocide and war crimes. The US claim for special status undermines the very idea of the rule of law as a single, principled normative order to which all are bound. Even worse, it may undermine the great international effort of the last century to subject the use of force to the rule of law. For the United States to take this position is particularly embarrassing, since it, more than any other modern nation-state, has held itself out as committed to and constituted by the rule of law.

Stuck between the puzzle and the embarrassment, friends and allies have few arguments with which to respond when critics offer easy political explanations for the US position. Easiest of all is the claim that US opposition to the Court is based upon a kind of "bad man" view of the new regime of international criminal law. Expecting to violate the rules, the United States wants to exempt itself from their institutional enforcement. After all, no other nation pours comparable resources into a defense establishment. These resources are not being spent for no purpose. The United States pays for its military because it intends to use it as an instrument of national policy: witness Kosovo, Afghanistan, Iraq, and who knows where next. With the deployment of armies come charges of aggression as well as alleged violations of humanitarian law.

Another easy explanation is to point to political psychology. The United States allegedly suffers from a kind of political paranoia, a latent tendency toward xenophobia. Sometimes this is expressed in the claim that the opposition is "ideological," usually meaning that it is a product of right-wing fantasies. Sometimes, an historical element is added: US exceptionalism rests on a combination of Protestant faith in a messianic mission and a tradition of isolationism. The United States was founded by those fleeing the religious and political corruption of the Old World. Solutions to old world problems are seen as irrelevant to American life. Worse, those solutions are tainted with the corruption of old world politics. The United States, to its critics, has a fantasy of purity.

There is just enough truth in each of these explanations to give them some traction. The United States is a militarized, imperial power; it does maintain a political culture deeply informed by Protestant faith; it does believe that its history has been providential. But the negative twist put on each explanation calls forth the question: As opposed to what? Of course, American politics is self-interested. Whose is not? Of course, American politics rests upon certain ideological beliefs. Since when is politics not ideological? Of course, contemporary political beliefs reflect historical experience and the larger frame of religious beliefs held by the community. How could they not?

All politics arises out of this mix of self-interest, ideology, history and faith. If this produces a particularly dangerous form of politics in the United States, then it should be opposed. But too often supporters of the International Criminal Court seem to think that the invocation of law is a kind of trump to politics, that it is enough to appeal to law to win this argument. The problem with the American attitude, they believe, is that it is a political position — an anachronism in the emerging global order of law. The American perception tends to be just the opposite: invocation of international law is seen as just another form of politics to be assessed like any other political claim.

The Battle Between Law and Politics

The conflict over the Court today is so intense not because the practical stakes are high, but because the jurisdiction of the Court has become the site for a symbolic battle between law and politics. Supporters of the Court tend to believe that twentieth century politics led to the devastating violence of that century. On their view, politics itself is dangerous; indeed, it is the source of the problem for which the Court is to be the answer. In this new century, the politics of vital national interests should be replaced by the managerial and technocratic sciences of the welfare state, on the one hand, and a regime of universal law, on the other. Both constrict the space that remains open for the traditional politics of nation-states. That space should extend no further than the health and well-being of populations.

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