This book engages with the International Criminal Court (ICC), one of the most important new institutions of the post-Cold War era. The emergence of the ICC, like almost all international institutions, is a two-act play. The first act occurs mainly in the international arena as states negotiate a treaty that forms the features of a prospective institution and then vote or agree on its adoption. The second act is performed in the domestic realm, where the executive, the legislative, and other domestic stakeholders contemplate whether the respective state should accede to the institution through treaty ratification. Both acts are equally important, because the institution will not materialize without a founding treaty that in most cases requires a certain number of ratifications before the institution can become operational. This book addresses the institutionalization of the ICC from multilateral negotiations on the Rome Statute to state commitment to the ICC through treaty ratification.
With the adoption of the Rome Statute in July 1998, states conclusively codified norms of international criminal law, established a permanent institution to punish the gravest crimes, and eliminated retroactive and selective prosecution of most horrendous atrocities. However, the negotiations on the ICC were not straightforward as international jurisdiction touches delicate issues, such as state sovereignty and territorial integrity. In fact, considering traditional theoretical explanations for international cooperation, the institutionalization of the ICC was quite exceptional. Realist theories of international relations explain the design of international institutions by the preferences of superpowers and institutionalization with hegemonic preponderance or hard power capabilities, which coerce smaller states into cooperation. The ICC flies in the face of such theories for two reasons. First, European countries and not the USA were the primus motor behind the ICC and, second, while the USA wanted to secure control over the ICC through the United Nations Security Council (UNSC), European states succeeded in realizing their agenda of an ICC, independent from the direct control of powerful states. Hence, the most powerful state of the system neither initiated nor controlled the establishment of the ICC. While realist theories emphasize hard power capabilities, institutionalist theories explain the emergence of a new institution by states’ own or mutual interests that serve as engines of cooperation. However, the ICC does not generate direct benefits and significantly restricts state sovereignty and, therefore, it does not directly respond to such rationalist preferences. From these theoretical perspectives, it is puzzling why the ICC emerged against the will of the USA and why the European Union defied the USA in the case of the ICC.
After the Rome Statute was adopted, a number of states were eager to institutionalize the ICC and the Rome Statute swiftly received the required number of ratifications for the court to become operational. When the ICC was about to materialize in July 2002, the Bush Administration started to challenge its jurisdiction at all levels of foreign policymaking: in the multilateral framework of the United Nations (UN), through bilateral diplomatic relations, and at the national legislative level. A significant part of the ICC’s demotion was a global drive for bilateral agreements, aimed at securing immunity for all Americans from the court. The Bush Administration wanted to conclude these agreements with all states and used economic threats and sanctions to coerce its way through. The European Union responded to the US actions by launching a universal campaign in support of the ICC. As a result, third states that contemplated joining the ICC faced two most powerful actors in terms of economic and development aid that exercised pressure in order to realize their respective agendas. During the heyday of the Bush Administration’s campaign against the ICC, the ratification rate drastically declined, but after the Obama Administration took over and adopted a friendlier approach to the ICC, the Rome Statute intriguingly received ten new ratifications in less than two years. From these developments follows the second puzzle of this book, namely which factors explain states’ desire to ratify the Rome Statute after more than ten years?
The juxtaposition of the Bush Administration and the European Union campaigns on the ICC, the shift in the US policy after Obama took over, and third states’ responses to these events create a framework that allows the analysis of the role of external actors and incentives on states’ decision to commit to the ICC. Regarding this second act of the emergence of institutions, legal scholars and political scientists have traditionally maintained the ratification of international treaties as a domestic matter and the sovereign right of a nation-state. Accordingly, the ratification of the Rome Statute has so far been explained with domestic preferences, constituted by rational calculations of political players, or common identities, created through a socialization process that results in commitment to common values, such as the ICC. I demonstrate that the accession to international treaties is not solely an endogenous decision of a nation-state but is also influenced by interests and actions of external actors. Accordingly, the process leading to a state’s commitment to the ICC proceeds simultaneously at multiple levels, domestic, bilateral, and international ones, and cannot be explained with one single variable.
To summarize, this book addresses two intertwined events: the materialization of the ICC through multilateral negotiations and their aftermath that influenced state commitment to the Rome Statute. It offers an alternative theoretical account for the emergence of international institutions by developing a novel concept of normative binding. Normative binding is a strategy that provides middle powers means to tie down unilateral policies of powerful actors that do not prefer to cooperate. The idea is to promote new multilateral norms and deposit them in institutions, which have the prospect to become binding even on unilateralist actors, if the majority of states adhere to them. Thus, normative binding provides grounds to explicate why international institutions may emerge against the will of powerful states and how norms can become binding on states that reject them.
1.1 Negotiations on the Rome Statute of the International Criminal Court
After the Nuremberg and Tokyo war crimes trials and the adoption of the Genocide Convention, it was not unexpected that in its first meeting the International Law Commission (ILC) of the UN started to consider the “desirability and possibility” of establishing an ICC to try persons accused of genocide and other international crimes (A/RES/260 (III) B 1948). However, the ILC’s work on this topic was disrupted in the year 1954, first because of the failing definition of the crime of aggression and later because of the power politics of the Cold War and the resulting lack of political will to proceed with the matter. The ILC resumed its work on an ICC in the beginning of the 1980s and when Trinidad and Tobago requested the United Nations General Assembly (UNGA) to address the question in 1989 because of drug trafficking and transnational crime, a process that resulted in a permanent ICC was triggered (A/44/195 1989; A/44/770 1989; A/C.6/44/L.18 1...