Knights of the court: the state coalition behind the International Criminal Court.

AuthorAtkinson, L. Rush
  1. INTRODUCTION 66 II. POWER, INSIDE AND OUT 69 1. COMPULSORY POWER 70 2. INSTITUTIONAL POWER 72 III. THE COALITION BEHIND THE ICC 75 1. OVERVIEW OF THE ICC COALITION 75 A. ORIGINS OF THE ICC COALRRION 75 B. THE ICC COALITION AFTER ROME 77 2. EXEMPTIONS TO THE ICC 79 A. LIMITING SECURITY COUNCIL EXEMPTIONS 81 B. LIMITING BILATERAL EXEMPTIONS 85 3. THE EXPANSION OF THE ICC: RESOLUTION 1593 87 A. THE LANGUAGE OF RESOLUTION 1593 90 B. RESOLUTION 1593 IN PERSPECTIVE 91 IV. THE POWER OF THE ICC COALRRION 92 1. THE POWER OF SIZE 94 2. THE POWER OF DIVERSITY 97 3. THE UNITED STATES NOT-SO-HEGEMONIC POWER 99 V. CONCLUSION 100 I. Introduction

    In June 2011, the Tunisia became the 116th State Party to the International Criminal Court (ICC). (1) The number of ICC members has steadily increased since 1998, and the Court has, consequently, increased both its caseload and its role in defining the parameters of international criminal law. (2)

    Not all nations, however, have supported these trends. The United States, not a member of the Court, has traditionally taken particularly great efforts to minimize the ICC's influence in the international system. The U.S. has, in connection with its ICC protests, removed troops from UN peacekeeping missions; refused to fund international criminal trials; vetoed the renewal of UN peacekeeping operations; revoked military aid to states that have supported the ICC; and threatened to halt humanitarian aid to ICC members. (3) These tactics have won the U.S. some victories in the form of exemptions from the Court's jurisdiction; however, despite the United States' remarkable use of resources towards limiting the Court's global role, such tactics have had limited effect, and the ICC has expanded its reach over U.S. objections.

    While some of the ICC's increasing role can be attributed to the tribunal system itself and its fleet of non-governmental supporters, an often overlooked force is the coalition of states that has served as the ICC's guardian in its first years. During this period, State Parties to the ICC, and in particular a subset of member states, have been critical in protecting the ICC. The nascent Court has lived in a veritable political minefield, and its success and relevance are largely due to a de facto coalition that has championed a strong and independent international judiciary.

    To date, the coalitional success has been entirely overlooked; instead, the success of the ICC has been more readily attributed to global movements and non-state forces of civil society. This article hopes to correct this oversight, largely by recounting the various political disputes over the ICC. (4) Using United Nations documents, contemporaneous media accounts, statements by diplomats, and various secondary sources, this article revisits the major political incidents concerning the ICC during the Bush Administration. While it is hoped that this account, itself, will enrich our understanding of the ICC, this article also uses the case study to assess how international law is forged.

    In addition to this article being a state-centric discussion of the ICC's development, this article explains how power has influenced the Court's form. In this way, the article accepts the recent challenge of Nicole Deitelhoff that "[p]ower-based approaches ... cannot account for ... the ICC's institutional design." (5) Quite to the contrary, this article argues: the Court's jurisdiction and caseload cannot be explained without discussing the various sources of power at play during the negotiations.

    Ultimately, this article offers one example of how power dictates form, even in cases where normative factors play a hugely influential role in state motivations. However, it diverges from traditional power politics accounts of international law in that it concludes that the ultimate outcome of international disputes over international law can be dictated by a coalition of smaller states and not by a hegemonic force. For many that have previously disdained the concept of power politics for merely consequentialist reasons (i.e. they thought power politics was the game of the strong), the ICC example may lead some to reconsider their position.

    The article proceeds as follows. Section I briefly offers a power-centric model of the forces behind international law, drawing in particular from the field of International Relations (IR). (6) The effort here is not to cover all forms of power that influence international law, but rather to identify the different forms of power that influenced the Court in its infant years. Section II contains this article's case study: the early history of the ICC and the role of the state coalition that supported it. After reviewing the coalition's origins, it turns to the coalition's behavior during the first years of the Court's operation, focusing on two particular disputes between the coalition and the United States. First, the article examines the coalition's role in limiting the U.S. campaign to exempt itself from the Court's jurisdiction. Second, the article examines the 2005 Security Council referral of Sudan to the ICC, which took place over U.S. objections. In Section III, the article returns to explanations of how states exercise power during international disputes. It highlights two facets of the ICC coalition--size and diversity--that were critical to its success in negotiations. The article concludes by considering the importance of recognizing that power influences international law by examining how the ICC's attitude towards the prospect of power politics had a measurable effect on the outcome of certain smaller disputes. Put simply, refusing to acknowledge power politics does not reduce power's influence; indeed, an overly principled approach to these disputes merely affords opponents the opportunity to flex their own muscles unopposed.

  2. Power, Inside and Out

    As explained above, the story told here is one about power. In recent years, the academy's interest in power has been renewed and proposed power taxonomies--categorizations of the different types of power at play in the international system--have emerged with some frequency. This paper does not aim to add unnecessary ink to that debate and instead elects to employ the frameworks offered by others. Specifically, this paper begins within the four-faced taxonomy of power offered by Michael Barnett and Raymond Duvall (7) and then incorporates the insights of others along the way.

    In their recent article, Barnett and Duvall argued that international relations had failed to develop adequate conceptualizations of power, which "limits the ability of international relations scholars to understand how global outcomes are produced and how actors are differentially enabled and constrained to determine their fates. (8) The fault, in their opinion, was twofold. Certain schools had run from discussions of power, and as a result their paradigms lacked considerable explanatory force for some of the most common types of interaction in the international system. (9) At the same type, groups that had engaged in "power studies" had defined power too narrowly, thereby excluding obvious examples of power from their analyses.' Barnett and Duvall's solution was to offer a single framework that accounted for the most important forms of power at play in the international system and would incorporate the insights of disparate schools; their result was a structure that categorized power along two dimensions, giving a four-fold taxonomy of power. (11)

    Though Barnett and Duvall offer four types of power that affect the international system, this article's focus is mainly trained on two: compulsory power and institutional power. These two types of powers constitute the types of power involved during the "interaction of specific actors," in this case states. (12) Non-interactive forms of power, in contrast, are relatively less influential in the ICC story. (13)

    Finally, the line between compulsory power and institutional power is not clean. Barnett and Duvall themselves acknowledge that the distinction is sometimes difficult to draw. (14) Because the focus here is simply on emphasizing the role of power in general, and not overly concerned on identifying the precise type of power that was most influential during the formation of the ICC, this article does not spend a lot of time worrying about where to draw the line. In general, the analysis simplifies Barnett and Duvall's model so that exercises of power that come through multilateral organizations, particularly during negotiations within the Security Council, are considered examples of institutional power; examples of power exercised outside the organization are deemed compulsory power. Finer line-drawing is unnecessary for the purpose of this paper and would unnecessarily complicate the explanation offered here about the Court's first years.

    1. Compulsory Power

      Barnett and Duvall describe compulsory power as the "direct control of one actor over the conditions of existence and/or the actions of another." (15) Compulsion has been the traditional focus of international relations' focus on power, led primarily by the realist school.

      Barnett and Duvall define compulsory power broadly enough to include normative forces like the shaming campaigns commonly led by transnational non-government organizations, (16) and this article similarly adopts this categorization. However, the general focus of this article remains on the traditional sources of compulsory power, namely economic and military capabilities. Realists, For instance, ignore the force of norms and categorize compulsory power as either "military" or "latent," the latter defined as "the socio-economic ingredients that go into building military power ... largely based on a state's wealth and the overall size of its population." (17)

      While latent resources and military capabilities are reservoirs of power, a different issue is the manner in...

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