The International Criminal Court: Idealpolitik vs. Realpolitik and the special case of the United States ABSTRACKT The Rome Statute that was adopted on July 17st 1998 was a controversial treaty that despite initial backing from great and small powers alike ended up facing fierce opposition for a number of reasons. Internationally it was widely accepted that there was a need to stem the tide of an ever-increasing number of human rights violations and that the institution best suited for achieving this goal, following the relative successes of ad hoc criminal tribunals, could be a permanent International Criminal Court, ICC. This essay will attempt to clarify the contrasting ideas and interests of key actors that ultimately shaped the compromise that became the Rome Statute of the ICC. It will go on to assess the relative influence of idealpolitik - that is the altruistic idealism embedded in a genuine desire to create a court to bring an end to the reality of perpetrators of war crimes escaping justice - and realpolitik - the realist notion of national interest and power politics as the main catalysts behind the politics of the Rome Statute. The judicial powers entrusted to the ICC became, as stated above, a matter of compromise. The final text of the Rome Statute was the result of intense negotiations that revolved around the concepts of national sovereignty and security politics on the one hand and the desire of non-great powers to establish a court with as much authority as possible on the other. As negotiations drew to a close and it became increasingly evident that the draft text attracted less and less Great Power support, the question remains why the Rome Statute was adopted despite opposition from the national powers that could lend the court the credibility it needed – and still needs. This essay will look to the national interests of non-great powers and conclude that realpolitik in many ways trumped idealpolitik and that the political desire to curb the influence of the great military powers – and by extension the United Nations Security Council was instrumental in explaining the non-great powers’ push for an ambitious court.

PRELUDE TO THE ICC: THE DESIRE FOR GREATER INT. JUDICIAL POWER As argued by Christopher Rudolph (2001: 655) the nature of conflict has shifted in ways that, in terms of frequency, have turned toward localized intercountry struggles. The link between ethnic conflict and acts of horrendous brutality, he argues, has been significantly strengthened as the prevalence of these conflicts has risen and is now threatening a new world ‘disorder’. The atrocities committed in Cambodia at the hands of the Khmer Rouge regime during the 1970s, and in the civil war of Sierra Leone in the 1990s where the clashes between government forces and the Revolutionary United Front (RUF) had unfathomable costs for the people, formed part of the backdrop that fuelled international calls for justice (Rudolph, 2001: 655). It was this outrage, Prakash (2002: 4113) argues, which united global actors in a broadening consensus that crimes against humanity should not any longer ‘be swept under the rug’, and brought about renewed efforts in entertaining the notion of a permanent criminal court as a complement to national judicial systems to strengthen the global legal order. Justice on an international scale, in response to war crimes and crimes against humanity, had up until the coming into effect of the ICC been carried out through the formation of ad hoc criminal tribunals dedicated to the principles laid down by the Nuremburg Tribunal following the Second World War. As Robert Tucker (2001: 71) argues, the idea of an ICC was not a new one in the 1990s, but instead an idea that formed in the aftermath of Nuremburg as criticisms mounted. ‘The Victors’ Law’ was how Nuremburg was perceived by many and the need for an independent court with the authority to try individuals for crimes violating international law, regardless of position and state protection, was made apparent. The ICC was to provide the framework for establishing itself as a mechanism not just for holding war criminals accountable, but for peace as well. By extending justice to war torn regions of the world the hope was that the ICC could calm the animosity arising in the power vacuum of fallen regimes and bring about national reconciliation (Rudolph, 2001: 656). The progress toward an ICC stagnated however and the International Criminal Tribunal for the former Yugoslavia, ICTY as well as for Rwanda, ICTR exhibited with all clarity that a permanent court could not hope to rest solely upon the authority vested in it. As argued by Bekou and Cryer (2007: 60) the ICTY – and by extension the later ICC – require, as an essential component, the support from sovereign states in order to function. The lack of supranational authority at the systemic level is not in practice mitigated by a permanent court without any real enforcement power and because of this the court must rely on states to lend it strength. Jack Goldsmith (2003: 92-93), also referring to the ICTY, goes into detail in explaining this. Slobodan Miloševic was ousted not because of a court ruling, but by US military and economic pressures and he was delivered to the court only when the US and the IMF threatened to withhold half a billion dollars in aid. He goes on to say that the lofty hopes and dreams of the ICC when the Rome Statute was adopted are unrealistic as long as the United States remains in opposition (Goldsmith, 2003: 89). How then did the United States end up opposing an international judicial regime to curb human rights violations when, as argued by Amann and Sellers (2002: 382-383), the US has had a long-standing commitment to ad hoc tribunals and as Tucker (2001: 73), quoting David Scheffer, the chief negotiator for the US on the Rome Statute, saying that ad hoc justice is slow and limited in scope and that a permanent court, readily available when needed, would provide a stronger deterrent for human rights violations? THE ICC AND THE UNITED STATES It quickly became apparent that a permanent court as the United States had envisioned it contrasted heavily with the views of a majority of the nations that met in Rome in 1998. The United States, as argued by Tucker (2001: 74,78), sought to establish a court that would essentially complement the power of the Security Council, SC, and would be forced to rely on referral of cases by it. The US wanted to ensure that the ICC could not prosecute American soldiers without US consent and would not seek to encroach upon the powers of the council. This policy goal was irreconcilable with the wishes of most other parties at Rome, who believed that the veto-wielding powers of the SC were part of the problem. Not only would an ICC subject to SC referral make the five permanent members immune to prosecution, it would also undermine universal justice as illustrated by the failure of the SC to establish tribunals in hot spots around the world (Goldsmith, 2003: 90). The compromise became an ICC independent from the SC, but without the power of universal jurisdiction. A compromise that according to Goldsmith (2003: 92) watered down the authority of the ICC and prevents it from achieving its principal goal: curbing human rights violations. The ICC does not have jurisdiction over non-parties to the Rome Statute acting within their own territory and thus fails to address the number one source of crimes against humanity: ethnic struggles within national borders. The United States likewise opposed the composition of the body granting the ICC its powers, the assembly of state parties. The fact that each party to the Rome Statute has a single vote in matters that can expand ICC power or redefine the powers already vested in it, and can put forth candidates for judges to preside over the court raised concern that US forces abroad could become the subject of politically motivated prosecutions as a way for sovereign states, unable to influence US foreign policy directly, to instead target those that implement it (Lietzau, 2001: 127,136; Amann & Sellers, 2002: 390). The danger of such policy is that it might discourage the United States from entering into operations aimed at halting human rights violations (Lietzau, 2001: 126,128; Goldsmith, 2003: 95; Mayerfeld, 2003: 106). The sad irony is that the ICC will have likely affected the country most capable of preventing crimes against humanity more than it will have affected those countries in which they take place (Goldsmith, 2003: 99). As Lietzau (2001: 126) puts it: ‘No other country has up to 200,000 troops engaged in operations outside its borders’ and ‘to inhibit those forces is to take a step back in international peacekeeping’. The United States, as argued by Amann & Sellers (2002: 385) will not cede sovereignty to an institution, which claims to have the power to override the US legal system and pass judgment on its foreign policy. Doing so would violate the strongly held belief that only the American people should assess the accountability of the United States and, under the constitution, must retain ultimate authority (Tucker, 2001: 78). US opposition to the ICC came to light in the passing of the American Service members’ Protection Act in 2002, which enables the President of the United States to ‘use all necessary measures to release from captivity US or allied personnel held by the ICC’ (Goldsmith, 2003: 97) and in UN resolution 1422 of 2002 by which the US forced through an exemption for US forces from ICC jurisdiction in UN peacekeeping missions by threatening to veto the continued effort in Bosnia (Weller, 2002: 706-708). Why then did President Clinton sign the treaty? Amann & Sellers (2002: 383) argue that, fully anticipating an act of voluntary defection, American objective shifted to insolating the US from the effects of the ICC and becoming a signatory ensured continued influence (Tucker, 2001: 71,78).

ADOPTION OF THE ROME STATUTE AGAINST GREAT POWER OPPOSITION Opposition to the Rome Statute was not exclusively voiced by the United States. In fact other Great Powers, as Bekou and Cryer (2007: 54-55) argue, were quite content with letting the US provide the public face of opposition to the ICC. Russia’s involvement in Chechnya and India’s dispute with Pakistan over Kashmir would have converged with Chinese opposition had these powers had any real fear that ICC universal jurisdiction was a possibility. With 3 of 5 permanent members of the SC in strong opposition the adoption of the Rome Statute seems to be an oddity. Lietzau (2001: 128) offers an explanation: The framers of the ICC, he argues, were much more focused on establishing an independent court with as much authority as possible while attracting the support of as many states as possible. Goldsmith (2003: 100) goes on to say that the short-term obsession with creating an ambitious court without special exemption for Great Power States completely failed to consider the far more important long-term and indispensible goal of preventing human rights abuses by not addressing the future need of the court to have Great Power support. Bruce Broomhall (2001: 149-150) suggests a different approach. He argues that although the US voiced strong opposition, European and other powers believed that once crimes against humanity were committed the US would eventually still support the notion of accountability – even if the only institution to achieve this was the ICC. He goes on to say that the US had a political interest in not ceding the platform of accountability to its allies, which would turn public opinion, domestically and abroad, against the US and that proponents of the ICC therefore had little incentive to weaken the court through concessions. This notion of Idealpolitik – the desire to create the best possible court to curb human rights abuses is altogether dismissed by Jonathan Greenberg (2003). ‘Power always trumps law’, he argues. Treaties and international institutions have little or no authority and reflect nothing but the distribution of power among sovereign states, which determine how they are created, to which extent they are implemented and when they cease to be in effect. Treaties are formed, he claims, solely for the purpose of sovereign states to exercise their power and to further their political and economic interests (Greenberg, 2003: 1795-96). ‘Law is the weapon of the stronger’, Rudolph (2001: 683) interjects. It is not a fixed ethical standard, but rather a flexible one that reflect the policy and interests of the dominant group of states. The reason then for why the Rome Statute was adopted despite strong Great Power opposition is, according to Goldsmith (2003: 100), to be found in Realpolitik of especially middle European powers. He argues that European states were less interested in curbing human rights violations and more interested in establishing an ICC that limited the militarily powerful nations and thus maximized their relative power. The unprecedented effort to limit the power of the Security Council supports this, he argues, and so does the compromise over universal jurisdiction. The fact that the ICC has jurisdiction over non-signatories acting across national borders in countries that are parties to the ICC affects militarily strong countries, as they are the ones most likely to engage in such operations. That the ICC fails to hold jurisdiction over actors operating within their own territorial confines mattered less as those states tend to be less significant in terms of global security policy (Goldsmith, 2003: 101). CONCLUSION It seems evident that in the half century prior to the adoption of the Rome Statute, there have been widespread international calls for a permanent criminal court to replace ad hoc justice in response to crimes against humanity. The proliferation of ethnic cleansings and the most horrendous brutality imaginable provided the grim, disheartening catalyst for international consensus. It seems likewise evident that this process was hijacked by conflicting national interests that fundamentally changed the admirable objective of the ICC by forcing it down a divergent path. Surprisingly, strong evidence suggests that Middle and Great Powers alike sought to further or retain their relative influence rather than address the issues at hand. The bold and ambitious commitment to Idealpolitik surrendered to Realpolitik as global security policy swept aside what promised to be a greater cause for humanity. The United States, seeking to subjugate the ICC to the Security Council, sought to preserve its relative power as a permanent veto-wielding member of the SC, which focalized with concerns over ceding national sovereignty and a fear that the ICC would become a platform for politically motivated attacks upon its national interests, while for European powers, the ICC provided an opportunity to curb the influence of militarily strong nations. This essay has attempted to provide an overview of events and political interests of key actors up to and in the immediate aftermath of the adoption of the Rome Statute of the International Criminal Court. As such it serves as an introductory text to understanding the complexity of the negotiations that ultimately established the ICC. 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