The Exceptionalist Foundation of Liberal Internationalist Support

Scharf, who continued in his role as Attorney Adviser during the transition to the Clinton administration, cited a ‘major policy reversal’ taking place from October 1993.Footnote ⁴⁷ State Department Legal Adviser Conrad Harper announced that the new administration had ‘decided to take a fresh look’ at supporting the court, accepting that the project was ‘a serious and important effort which should be continued, and we intend to be actively and constructively involved’.Footnote ⁴⁸ According to Scheffer, on as many as six occasions prior to the Rome Conference, the president himself expressed his personal belief that ‘before this decade and this century end, we should establish a permanent international court to prosecute crimes against humanity’.Footnote ⁴⁹ The US Senate fortified this stance by stating that the ICC ‘would greatly strengthen the international rule of law’ and thereby ‘serve the interests of the United States and the world community’.Footnote ⁵⁰ Yet careful examination reveals that, despite a common desire to end impunity under the law, the administration’s renewed support always remained distinct from that of global partners.

The commitment to developing global governance through IL was evident in the 1993 Senate confirmation hearings of Warren Christopher. Chairman Claiborne Pell opened by framing the immediate post–Cold War world in internationalist terms as one where ‘we face the task of devising or revising mechanisms to deal with new circumstances. In particular, we have an opportunity to reclaim the dream of the U.N. as an effective agent for world peace.’ The Chairman concluded his remarks by reminding the nominee that ‘you will take office at a time when you can truly reshape the world’.Footnote ⁵¹ The specific issue of the ICC was raised by Senator Christopher Dodd, who lamented that IL policy under the Reagan and Bush 41 administrations ‘robbed us of the moral authority to be the standard bearer of the rule of law internationally’.Footnote ⁵² Dodd’s own father had been Deputy Prosecutor at the Nuremberg trials,Footnote ⁵³ with the vision of both father and son cited by Clinton as contributing to his ultimate support for the permanent court.Footnote ⁵⁴ In the nomination hearing, Dodd recognised a ‘tremendous opportunity for this country to help rewrite the rules of international law’ and specifically to ‘strengthen international institutions that can then act as impartial guardians of this new world order’. In this context, Dodd continued:

Even from this point, the project was signalling a special US role and, moreover, one likely to challenge a formalised design excluding policy discretion. Dodd emphasised that the ICC would ‘never happen, in my view, unless the United States takes the leadership role in this issue’.Footnote ⁵⁶ Warren Christopher concurred in rejecting the Bush 41 policy as ‘fairly abysmal’, while framing the court as realising rather than superseding American exceptionalism:

The distinction from legalism matters, since this exchange presupposes an exceptional US role making IL work, and one advocated throughout the Clinton administration as more decisive to the international rule of law than the substance of any ICC agreement.

The significance of this more policy-oriented understanding of the ICC is evident in the words of Christopher’s successor Madeleine Albright, who contextualised the court within broader liberal internationalist commitment to ‘building a more integrated, stable, and democratic world, with increased security for all who respect the interests and rights of others’.Footnote ⁵⁸ That understanding again emphasised transnational connections between international criminal law and democracy as central to promoting non-arbitrary governance. US commitment to underwriting any process that strengthened these liberal values mattered, and more so than any specific court design formalised in a binding treaty, or of securing its universal membership.

Pragmatic Development of the ICC

Although liberal internationalist beliefs dominated in this period, they competed throughout with alternative ideologically informed conceptions of IL. In particular, legal policymakers from the Department of Defense strongly emphasised a more pragmatic approach, and one moreover that Scheffer believed ‘undercut my negotiating posture with other governments’.Footnote ⁵⁹ Immediately before the Rome Conference, the Pentagon issued a cable to military representatives from over 100 states expressing concerns that advocates were expanding crimes within the court’s statute beyond their customary limits. The cable warned that the ICC ‘must not be used to push the envelope of international law’.Footnote ⁶⁰ The most detailed account of these military views is found in the jurisprudence of Major William Lietzau, who joined the US delegation to Rome in his capacity as Deputy Legal Counsel to the Office of the Chairman of the Joint Chiefs of Staff. Following the Conference, he went on to prepare the draft elements of crimes relied on at the Preparatory Commission for the Establishment of an ICC between 1999 and 2002.Footnote ⁶¹ Scheffer described Lietzau as ‘instrumental’ in persuading participants at Rome and the Preparatory Commission to explicitly define elements of crimes falling under the court’s jurisdiction rather than leaving them to judicial discretion.Footnote ⁶²

Lietzau’s jurisprudence was firmly internationalist in advocating global institution building and in opposing the Rome Statute for threatening American international engagement.Footnote ⁶³ Along the values dimension, his position primarily emphasised illiberal concerns to maximise American strategic autonomy for national security purposes. He did acknowledge the broader liberal context of the court as a means for addressing atrocities, but this concern was addressed by advocating greater US strategic autonomy rather than through the formalised authority of a court. Broadly, he advocated an IL policy balancing liberal concerns of attaining justice on the one hand with ‘preservation of state sovereignty and current practices that promote international peace and security’ on the other.Footnote ⁶⁴

What is notable about Lietzau’s recollections of and proposals for the court is his framing that ‘the rule of law must itself be preeminent’.Footnote ⁶⁵ This became a touchstone in Lietzau’s criticism of the ICC design and informed his argument against US accession. He expressed apprehension at the ‘paradigm’ guiding court proponents ‘that international humanitarian law progresses in a linear fashion, with progress equalling more law.’Footnote ⁶⁶ The process of establishing the municipal rule of law necessitates the taming of political power by closing gaps in the legal framework regulating citizens’ rights and duties. Lietzau rejected the projection of a domestic analogy to the international level, however, as not only misguided but also a threat to the realisation of the international rule of law itself. Rather than seeing law controlling politics in the court, he identified the court itself as threatening to constrain American foreign policy through ‘politically-motivated charges’.Footnote ⁶⁷ This view was no less focused on the idea of the international rule of law than the dominant approach within the administration, but it eschewed the central focus on liberal values, which were promoted only indirectly through pragmatic considerations of national security.

Pragmatism was also evident in the preferences among some US legal policymakers to exclude the role of IL altogether, where strictures of international criminal law were seen to impede peace agreements. This initiative was led in part by then national security adviser Sandy Berger, with specific reference to the 1994 amnesty given to coup leaders in Haiti to facilitate the return of ousted president Jean-Bertrand Aristide.Footnote ⁶⁸ Here, Scheffer acknowledged that the very idea of limiting jurisdiction by political amnesties ‘seemingly flew in the face of the entire purpose’ of the ICC.Footnote ⁶⁹ John Czarnetzky and Ronald Rychlak observed that the ICC jurisdictional regime was ‘intended to make clear that a purely juridical model is the only appropriate method for dealing with human rights violations’.Footnote ⁷⁰ However, in illiberal internationalist terms, pragmatically defining exceptions to law’s proper reach remained entirely consistent with eliminating arbitrariness within a stable global legal system.

Nationalist Objections

From the very first discussions in 1994, competing internationalist conceptions were met with forceful nationalist opposition to the very concept of the court and any enlargement of the international legal system. At a 1998 US Senate hearing on the Rome Conference, the chairman, Senator Rod Grams, expressed liberal nationalist concerns that the court’s jurisdiction came at the expense of US constitutional protections and that judges might be selected from undemocratic countries lacking the rule of law at home. He concluded with the plea that the court ‘shares the same fate as the League of Nations and collapses without U.S. support … [T]his court truly I believe is the monster and it is the monster that we need to slay.’Footnote ⁷¹ The voice of illiberal nationalist opposition was led by Senator Jesse Helms, who served as Chairman of the Senate Committee on Foreign Relations from 1995 to 2001. In an open letter to Secretary Albright he declared himself ‘unalterably opposed to the creation of a permanent U.N. criminal court’ that would be ‘dead-on-arrival’ in the Senate unless ‘a clear U.S. veto’ was provided for.Footnote ⁷² Scheffer took the ‘veto’ demand to mean total UNSC control, which equated the legitimacy of the court with its development as a permissive institution enabling but never constraining US power. In the absence of this unlikely design, Scheffer concluded that Helms’ singular intention became ‘to kill the court and any American role in it’.Footnote ⁷³ For these reasons, Scheffer described feeling only ‘soiled’ when Helms later congratulated him for ultimately rejecting the Rome Statute.Footnote ⁷⁴ In these examples, nationalist US legal policymakers contested not only legalism but also internationalist American policymakers, with agreement only on the outcome of all opposing the final agreement at Rome.

Achieving Liberal Equality

At the level of general legal principles, Scheffer affirmed ‘two basic building blocks’ necessary for the rule of law, being ‘reciprocity’ in the rights and duties exercised between states and ‘equality of nations’ under international treaties. Prima facie, these principles meant that ‘no nation and no people have superior rights or exceptional privileges in the realm of international law’. Applied to the specific case of the ICC crimes, however, this meant that ‘no perpetrator of atrocity crimes should be able to avoid justice’.Footnote ⁸⁶ Contradictory commitments to the rule of law are concealed by the simplicity of Scheffer’s formulation but become visible in the many scenarios in which upholding sovereign equality is a practical barrier to prosecuting perpetrators of international crimes.

Scheffer’s own conception expresses the internationalist belief that has been the main source of hypocrisy accusations: that the United States faced ‘the paradox of being a leader for international justice but at the same time a leader for international peace and security’.Footnote ⁸⁷ Justice under the ICC depended on the equal application of the law, but, as with any effective system of justice, the court also presumed a framework of effective enforcement mechanisms. For liberal internationalists, the ICC must not ‘handcuff governments that take risks to promote peace and security and undertake humanitarian missions’. This was more explicitly pursuant to a belief that the ‘US military, in particular, is called upon to carry out mandates of the Security Council’ in combination with other further responsibilities that advance liberal equality.Footnote ⁸⁸ Scheffer’s paradox was that, to achieve equal justice, it may sometimes be necessary to recognise inequality in American responsibilities before the law.

Murphy’s explanation for contradictory policies toward the ICC was a belief that ‘global responsibilities for maintaining the peace’ should exempt US military personnel and civilians from appearing before the court.Footnote ⁸⁹ A design that reduced the status of the United States to a single voice among many thereby risks undermining real commitment to the international rule of law. It is notable that Scheffer’s reflections on the Rome Conference attributed significant blame not to the United States’ insistence that its disproportionate military role be recognised through unequal legal protections but to its failure to properly explain its unique legal responsibilities. This represented a ‘disconnect between our military commanders and those of other nations because they were not confronting atrocity crimes with the same understandings’.Footnote ⁹⁰ The ‘disconnect’ is evident in Richard Goldstone’s retort: ‘What the US is saying is, “In order to be peacekeepers … we have to commit war crimes.” That’s what the policy boils down to.’Footnote ⁹¹ The suggestion of hypocrisy recedes only when the US position is seen as drawn from beliefs in America’s messianic global role in promoting liberty.

In the context of the existing post–Cold War legal architecture, the clearest way to recognise this status was to graft the ICC onto the structure of the UNSC and the oversight of US veto power. It is significant that Warren Christopher’s guarded support for the ICC at his Senate confirmation hearing was at all times framed as an extension of the ‘U.N. system’ to be achieved through ‘leadership at the U.N.’.Footnote ⁹² Read in the context of the United States’ beliefs about its role promoting liberal equality, insistence on UNSC privileges remained consistent with a liberal internationalist conception of IL.

Institutionalising Hegemonic Privilege

Liberal internationalist policy converged neatly with illiberal internationalist preferences for an institutional design preserving hegemonic privilege. The Pentagon made it clear from the beginning that the UNSC must retain sole power of referral over ICC crimes, reflecting beliefs in effective international legal power, as already institutionalised in P5 membership. Scheffer was informed by a Pentagon representative that the sheer global responsibilities of the United States, including 200,000 troops deployed in 40 countries, ‘had to mean something in the negotiations’.Footnote ⁹³ Lietzau was sceptical about the fixation on sovereign equality and any suggestion to treat the court as an apolitical judicial body. His conception took account of the ‘unique and vital national security responsibilities’ of the United States in maintaining international peace and security.Footnote ⁹⁴ By way of example, it was noted that the design of the UN itself integrated power relations that did not reflect sovereign equality – ‘“fairness” has never been the talisman of international peace and security’.Footnote ⁹⁵ The evidence from decision-making processes does not therefore point toward Defense Department lawyers disregarding legal principles for political expediency. Rather, policy was structured by beliefs that principles of sovereign equality actually sat in opposition to the international rule of law, as established by existing legal processes spanning municipal and international jurisdiction.

It is important not to conflate the two variants of internationalist thinking, which conflicted significantly at Rome. Despite Scheffer’s insistence on a central UNSC role, he believed that the Defense approach ‘made little sense’, since it insisted on immunity for US forces while denying it to others.Footnote ⁹⁶ That contradiction can again be understood in the light of competing views on the proper legal relationship to be established between states. From a liberal perspective, the special US status in the UNSC allowed for the extension of constitutional values into the international arena, which could be applied in principle to US forces who fell short of them globally. From the illiberal perspective, the fact of US global preponderance required recognition within the law of absolute privileges for US forces. Pentagon demands for a right to withhold consent to prosecutions were integral to an institutional design recognising power realities, albeit structured by predetermined legal principles. The internal US compromise was ultimately to propose a design requiring consent only for non-parties to the Statute as a middle ground between liberal internationalist resistance to a design establishing sovereignty as a shield against criminal liability and the illiberal internationalist demand that the law take account of America’s hegemonic status. Both positions were rejected outright by other negotiating parties for enshrining sovereign inequality in the law.Footnote ⁹⁷

Democratic Foundations of International Judicial Power

It is telling that Bassiouni defended the possibility of ICC independence by drawing an analogy between its seemingly idealistic judicial aspirations and the initially ineffective separation of powers in the United States. He referred to the supposed 1831 retort of President Andrew Jackson dismissing the Chief Justice of the Supreme Court: ‘John Marshall has made his decision, now let him enforce it.’Footnote ¹¹⁰ With the authority of US judicial power only realised over time, Bassiouni suggested that likewise with the ICC, ‘its moral authority will be established, and great expectations will be realized’.Footnote ¹¹¹ What this claim overlooked, however, is the central role of democratic legitimacy in liberal internationalism. ‘Moral authority’ in US municipal law is sustained by the continuous operation of democratic checks and balances on judicial power. It did not follow therefore that the same legitimacy would attach to the ICC simply by the fact of its existence and operation. Bassiouni’s claim assumed the possibility of independent judicial power in the ICC but founded instead on cosmopolitan values.

Lietzau’s jurisprudence expressed liberal commitment to the rule of law founded on American constitutional government. He argued that, even though the ICC was likely to be governed by a judiciary adhering to the highest standards of competence and integrity, this was inherently inferior to American safeguards. In his view, ‘Americans, for good reason, are not culturally disposed toward such “trust” of an institution’. Confidence was, however, provided by the separation of powers enshrined in the US Constitution that were simply ‘not as evident in other democratic governments’.Footnote ¹¹² ‘American legal culture’ was accordingly defined by a belief that judicial power must ultimately be tied to citizens’ democratic control.Footnote ¹¹³ On this basis, the ‘changes sought by the United States should be implemented not just because U.S. participation is key to an effective, functioning court, but because enacting them promotes the rule of law and is therefore the right thing to do’.Footnote ¹¹⁴ Likewise, Scheffer argued that the United States ‘could not negotiate as if certain risks could be easily dismissed or certain procedures of the permanent court would be infallible’.Footnote ¹¹⁵ These legal ideals remained central to US challenges to ICC judicial and prosecutorial independence.

Complementarity as a Check on ICC Independence

The legalist principle for determining international judicial power was to establish ICC ‘primacy’ over domestic law, following the precedent of the ICTY and the ICTR.Footnote ¹¹⁶ The United States challenged that design from an early stage, proposing a court based on the novel principle of ‘complementarity’. Primary prosecutorial obligations would be reserved to states, with ICC jurisdiction enlivened only when the state was deemed ‘unwilling or unable genuinely to carry out the investigation or prosecution’.Footnote ¹¹⁷ The principle pressured states to ‘prosecute nationally, or risk international prosecution’, forming the quintessential example of IL playing a backstopping role in establishing a true transnational legal order.Footnote ¹¹⁸ Complementarity appeared to offer a genuine reconciliation between liberal internationalist and legalist preferences by preserving both municipal legal processes and the overarching authority of IL, with separate jurisdictions assumed to be ‘guided by the same objectives’.Footnote ¹¹⁹ However, the record demonstrates that parties remained divided on whether the principle strengthened or derogated from the rule of law. Although states largely accepted complementarity, many held concerns that fracturing international judicial power would allow states to shield perpetrators through sham investigations. Indeed, the principle was accepted by many as a compromise to accommodate political interests and therefore it was considered to be incapable of ensuring ICC integrity in its own right.Footnote ¹²⁰ For these policymakers, complementarity necessitated a counterbalance, by giving the court ‘its own discretionary power to determine its jurisdiction’.Footnote ¹²¹ Advocates accordingly insisted on granting the ICC prosecutor proprio motu powers: the independent power to initiate an investigation and bring a case before the court.Footnote ¹²² Germany reasoned that such power had the attraction of ‘depoliticizing the process of initiating investigations’.Footnote ¹²³ The Office of the Prosecutor (OTP) was thus created as an independent organ of the court, intended to promote the international rule of law by checking complementarity.Footnote ¹²⁴

The response from US policymakers made clear that this solution was even more objectionable than the original perceived mischief. Jamison Borek, Deputy Legal Adviser to the State Department, argued that ‘bona fide national investigations and prosecutions will always be preferable’ to those of the ICC. Reversing the onus would entail the fraught judgement that ‘a functioning national system is not bona fide’.Footnote ¹²⁵ The US preference was thus for a narrow conception of complementarity consistent with the 1996 Preparatory Committee Report:

To ensure that outcome, US negotiators insisted on various measures to favour domestic processes, including requiring a supermajority of judges before domestic investigations could be overridden and that states be notified of potential ICC jurisdiction in any case where a state or the prosecutor intended to refer a matter to the court.Footnote ¹²⁷

In this context, the United States rejected an independent prosecutor as ‘utopian’, thereby risking ‘rejection of the Draft by States’.Footnote ¹²⁸ For the United States, the nature of prosecutorial power has been somewhat contentious even at the level of municipal law, and was acutely so around the 1998 impeachment of President Clinton. It is nominally an extension of executive functions, yet the task of prosecution requires a degree of independence from executive direction. Executive control nevertheless remains crucial to ensure democratic accountability against ‘frivolous or vindictive prosecutions’.Footnote ¹²⁹ For American legal policymakers of all stripes, this principle did not recede merely because prosecutorial power was being exercised at the level of global governance. The legalist view of an independent prosecutor guaranteeing ICC independence directly contradicted the beliefs of American policymakers, who saw the prosecutor ‘making difficult public policy decisions’ and therefore eroding both the appearance and the reality of prosecutorial impartiality.Footnote ¹³⁰

Former chief prosecutor of the Yugoslav and Rwandan Tribunals Justice Louise Arbour responded to US opposition by arguing:

However, the division over prosecutorial independence demonstrated that, even on the apparent consensus over complementarity, divergence in ideology crystallised in incompatible proposals for the court. Parties adopted contradictory positions whereby complementarity was seen either as a democratic check on the court’s independence, or as a compromise that itself required checking by an independent prosecutor.

Contesting Delegated Jurisdiction

The mechanism by which the ICC sought to establish its jurisdiction opened up a clear division between legalist and US advocates over the lawfulness of ‘delegating’ jurisdiction.Footnote ¹³² Earlier stages of negotiation had seen calls from key states and voices within the LMS and CICC for a form of universal jurisdiction.Footnote ¹³³ Those expansive claims were rejected by the United States for being ‘in conflict with certain fundamental principles of international law’.Footnote ¹³⁴ The final outcome under Article 12 of the Rome Statute was instead a regime based nominally on consent to jurisdiction by states parties, but with the extension of jurisdiction to all crimes committed in the territory of member states – irrespective of whether an accused was a national of a member state.Footnote ¹³⁵ In consequence, territorial jurisdiction came to divide US policymakers from their global counterparts as the ‘single most problematic part of the Rome Treaty’.Footnote ¹³⁶

What was not disputed was that states had a ‘fundamental’ right to exercise jurisdiction over crimes committed in their own territory, as confirmed in the landmark Lotus Case.Footnote ¹³⁷ Furthermore, that right may extend to transferring jurisdiction to a third state that met relevant criteria for extradition. However, prominent voices went on to assert a right ‘to transfer jurisdiction to another state that has jurisdiction over an accused, or to an international adjudicating body’.Footnote ¹³⁸ The ICC regime was argued to constitute an analogous ‘delegation’ to an international court, which did not turn on state consent any more than did the direct exercise of territorial jurisdiction.Footnote ¹³⁹ In so arguing, states invoked the Lotus principle: ‘Restrictions upon the independence of States cannot therefore be presumed.’Footnote ¹⁴⁰ Absent a specific contrary rule, delegated jurisdiction remained presumptively legal.

The United States contested the legality of delegated jurisdiction from the beginning, and did so from a position defended as ‘grounded in law’.Footnote ¹⁴¹ For David Scheffer, the legalist position depended on a customary IL assumption to the effect that states have a right to delegate territorial (or universal) jurisdiction to an international court. He ‘lit a firestorm among international law scholars’ by responding that, although it was ‘indisputable’ that municipal courts could exercise territorial jurisdiction, customary IL did not yet recognise the equal status of an international court.Footnote ¹⁴² Moreover, a state exercising territorial jurisdiction over a US national has ‘no legal right to extradite’ to a third state ‘which has no connection to the crime or the suspect … for the sake of political expediency’. Therefore, neither did that right exist in relation to the ICC absent ‘the consent of the non-party state’.Footnote ¹⁴³ The difference thus came down to a question of whether and how the ICC was distinguished from national courts for delegation purposes.

The jurisprudence of the US legal position was developed from the academic work of Professor Madeline Morris, whose critique of the delegation analogy was picked up and endorsed by Scheffer.Footnote ¹⁴⁴ Up to that point, the US government had relied chiefly on arguments under the VCLT that, as a ‘third State’, the United States could not be bound by treaty obligations it had not consented to.Footnote ¹⁴⁵ In Scheffer’s words, ‘the establishment of, and a state’s participation in, an international criminal court are not derived from custom but, rather, from the requirements of treaty law’.Footnote ¹⁴⁶ The legal objections were more fundamental for Morris, however, and went to the limits of institutionalised global judicial power. Whereas the ‘jurisdictional structure of the ICC is based on a view of the ICC as a criminal court, tout court’, which adjudicates over individuals, the nature of ICC cases would necessarily also adjudicate official acts of states. In these cases, ‘the ICC’s role as an adjudicator of interstate disputes is not adequately accounted for in the Court’s jurisdictional design’.Footnote ¹⁴⁷ Existing customary law rights could not therefore be delegated to an international court, which would carry ‘an authoritative weight and resulting political impact of a categorically different nature’ to those of municipal courts. Moreover, the ICC held ‘the power to create international law in a manner disproportionate to that of any state’, which was not easily amended through domestic legislative processes.Footnote ¹⁴⁸

These are intriguing arguments, since the precise factors cited by Morris are those that legalist advocates cite as evidence of the ICC upholding the rule of law. From an alternative perspective, the listed concerns have been interpreted as evidence of superior political and legal authority derived from an effective separation of international and domestic judicial powers, and the integrity of third-party adjudication untainted by parochial politics.Footnote ¹⁴⁹ The US position has been criticised as politically compromised, with Georg Nolte arguing that ‘it can be comparatively easily refuted’Footnote ¹⁵⁰ and Cassese claiming that, as ‘a legal objection, this is easily dismissed’.Footnote ¹⁵¹ Sands more forcefully rejected the ‘absurd notion that it is contrary to international law for the ICC to exercise jurisdiction over Americans who commit international crimes on the territory of countries that have joined the ICC’.Footnote ¹⁵² The dispute persists nearly twenty years later, with American legal policymakers acknowledging the obstacles that disagreement has created, but with no clear resolution.Footnote ¹⁵³ Such divergence, on what should be a matter of jurisprudential interpretation, presents a striking case for identifying the reception and contestation of IL through competing ideologies.

It matters that US interpretations originated in the intervention of Professor Morris speaking as an independent scholar bound by legal convention, and not as a government advocate.Footnote ¹⁵⁴ Crucially, Morris argued that US concerns could not be dismissed as irrelevant to law, since the legality of customary obligations is itself constituted by consistent state practice. Thus, these are ‘not “mere policy concerns” but are, in fact, of fundamental legal significance’.Footnote ¹⁵⁵ The division opened by US policy represented ‘a genuine dilemma – not excuses or pretexts, but legitimate concerns on each side’.Footnote ¹⁵⁶ Foreign policy ideology provides a compelling explanation for such divergent yet firmly held legal interpretations: that legalist and US policy determined the integrity of international judicial power through competing conceptions of IL and that they have remained coherent in these terms. David Wippman recognises that, as between the United States and its opponents, ‘the dispute was framed as a disagreement over competing legal values’. These were respectively ‘accountability’ and ‘independence and impartiality’, upon which ‘[e]ach side claimed the legal high ground’.Footnote ¹⁵⁷ That Morris’s interpretation resonated so readily with US legal policymakers, including in the National Security Council, speaks to the power of shared ideological IL attitudes, which now manifested in sophisticated jurisprudential terms.

Consent-Based Division of Powers

Legalist advocates opposed US demands for a UNSC-centred court not only for contravening sovereign equality, but also for eroding the separation of powers at the global level. Bassiouni warned that such a design ‘cannot be reconciled with the principles of judicial independence and judicial impartiality’.Footnote ¹⁵⁸ Fears of the UNSC ‘unduly tainting the independence of a judicial body’ were duly noted by Borek for the State Department. She responded that, under legalist proposals, ‘the initiation of cases would be subject to whatever political agenda a particular State may have, rather than a collective decision by the Council that in fact would be less likely to reflect a political bias than that of an individual State’.Footnote ¹⁵⁹ Rather, the UNSC role ‘can be defined so that it in no way undermines the judicial independence of the court, its judges and its prosecutor, but rather strengthens the court in addressing the important cases that would be part of its mandate’.Footnote ¹⁶⁰ Proposed measures included limiting the UNSC to only referring ‘over-all situations’ to the prosecutor, with the prosecutor then retaining sole power to determine which individuals to indict.Footnote ¹⁶¹ This was a rejection not merely of the specific draft design, therefore, but also of the very compatibility of legalist principles with preserving the integrity of international judicial power. Implicit was that UNSC members, and the United States in particular, would in contrast remain faithful to rule of law principles in exercising global powers.

Liberal internationalist policymakers were prepared to endorse the formal capacity of the ICC to prosecute US nationals via complementarity, should the United States ever become a state party and fail to prosecute. In this, Scheffer expressed faith that the operation of exceptionalist constitutional values would ensure that accountability remained in US municipal courts: ‘Either we are the United States of America committed to the rule of law, or we have transformed into another kind of nation.’Footnote ¹⁶² That faith was not shared by the Departments of Justice and Defense, however, who, although diverging on preferred institutional design, each turned to illiberal internationalist insistence on strict US consent. Justice insisted on UNSC control as the sole method for referring cases – despite that design being considered ‘toxic’ in the eyes of ‘almost the entire world’.Footnote ¹⁶³

Even so, UNSC control alone remained inadequate protection for Pentagon officials, who argued, consistently with maintaining hegemonic privileges, that additional immunity for US military personnel was essential to upholding international policing duties. To that end, Defense insisted that consent of the state of nationality also be required – a position endorsed by Clinton.Footnote ¹⁶⁴ The Washington Post reported on the extent to which Pentagon pressure, in conjunction with congressional support, had significantly shaped the US position going into Rome. Defense officials were said to

Scheffer admonished the Pentagon for failing to recognise ‘how impractical their insistence on the alleged war criminal’s government consenting to his prosecution sounded to the rest of the world’.Footnote ¹⁶⁶ In any case, broader international support for a UNSC-centred court had already waned in the years leading up to the Rome Conference, with all such US proposals ultimately rejected by other delegations as incompatible with rule of law beliefs.Footnote ¹⁶⁷

Shift from Internationalism

A 2002 report for the US Congress identified the ‘main issue’ for policymakers as ‘the level of cooperation to allow between the United States and the ICC’. Options presented were: ‘to withhold all cooperation from the ICC and its member nations in order to prevent the ICC from becoming effective, to continue contributing to the development of the ICC in order to improve it, or to adopt a pragmatic approach based solely on U.S. interests’.Footnote ⁴⁹ These effectively encompassed the competing policies drawn from foreign policy ideology: nationalist opposition to the court, a continuation of liberal internationalist support without acceding to the Rome Statute, and pragmatic illiberal internationalist development of the ICC relationship. Legalist policies, however, remained outside the range of options.

The illiberal nationalist preference of the Bush 43 administration highlighted a growing distinction from the illiberal internationalism that had characterised the Bush 41 ICC policy.Footnote ⁵⁰ In Michael Scharf’s Recommendation for the Bush Administration, the primary architect of the former policy posed a choice between being an ‘influential insider or [a] hostile outsider’. Figures such as Senator Helms epitomised the ‘hostile outsider’ strategy, which would ‘transform American exceptionalism into unilateralism and/or isolationism’. So doing threatened to ‘erode the moral legitimacy’ of the United States, which otherwise facilitated concrete military and economic interests.Footnote ⁵¹ Because the ICC was already a confirmed reality of the international system, Scharf concluded that the United States could only really sustain illiberal nationalist opposition through hostility toward the international order itself. That possibility sharply divided internationalist and nationalist forms of illiberalism, with Scharf framing his intervention as a ‘detached’ analysis ‘based on realpolitik considerations’.Footnote ⁵² Despite apparently similar policy scepticism across the two Bush presidencies, decision-making processes were structured by categorically distinct ideologies.

Hostility toward liberal internationalism was already evident in the weeks leading up to Clinton’s decision to sign the Rome Statute, with Helms objecting that ‘the President has effectively given his approval to this unprecedented assault on American sovereignty’.Footnote ⁵³ During his 1998 appearance alongside David Scheffer before the US Senate Committee on Foreign Relations, John Bolton expressed his view that IL was mere ‘sentimentality’ and the ICC motivated by an ‘unstated agenda of creating ever more comprehensive international structures to bind nation states in general and one nation state in particular’.Footnote ⁵⁴ Rather than interpreting IL in terms of universal values recognised by liberalism, Bolton adopted the prism of particularistic American cultural values, dismissing overwhelming support of European allies by saying ‘that is a major reason why they are Europeans and we are not’.Footnote ⁵⁵ The attitude was shared by Bolton’s former professor and colleague Robert Bork,Footnote ⁵⁶ for whom the ICC illustrated the ‘futility and danger of pretending that there is law’ when there remained ‘pervasive anti-Americanism in much of the world’. Allowing the ICC to stand would have costs for American soldiers and officials through ‘propaganda defeats that may carry weight in both international and domestic politics’.Footnote ⁵⁷ These statements signalled the trend away from the internationalist worldview prevailing since the end of the Cold War toward beliefs that only permissive development of IL could secure American foreign policy interests.

Once appointed as under secretary, Bolton redoubled his opposition, describing the ICC as ‘an organization that runs contrary to fundamental American precepts and basic Constitutional principles of popular sovereignty, checks and balances, and national independence’.Footnote ⁵⁸ Consistent with the administration’s ‘lawfare’ concerns, Bolton identified the threat in a strategy of external forces using IL to constrain US power. The EU was singled out to make the case that increasing secularism in the continent had contributed to a new ‘theology’ centred on ‘the pursuit of global governance, and in particular the International Criminal Court’. More particularly, this objective was ‘repeatedly and cynically designed to put the United States in an impossible position, with only unpleasant and inconsistent alternatives, in the hope and expectation that we would acquiesce in progress for the ICC in order not to frustrate other important American objectives’.Footnote ⁵⁹ Where the United States was compelled to formulate policy responses to the subject matter of international criminal law, Bolton expressed a preference for transferring cases to domestic courts ‘grounded in sovereign consent’.Footnote ⁶⁰ This went beyond mere criticism of the ICC’s particular design, instead opposing the very principle of developing global governance to address international crimes. Bork again concurred, attributing ‘great credit’ to Bush for withdrawing from the treaty regime. He fortified his claim of a court interwoven with anti-American sentiment by recounting the ‘cheers and rhythmic stomping’ that accompanied US defeat in the final vote of the Rome Conference.Footnote ⁶¹

Compatibility of US Policy with the International Rule of Law

Rejection of ICC constraints on US foreign policy did not, however, constitute a denial of IL as an institutional structure with which the United States must engage. Despite campaigning against the ICC, Bolton carefully emphasised US compliance with existing legal obligations. The legal ambiguity of the Bush administration removing any possibility of ICC support, yet leaving its signature on the founding treaty, left Bolton ‘determined to establish the precedent, and to remove any vestigial argument that America’s signature had any continuing effect’,Footnote ⁶² In liberal internationalist terms, signing and creating an obligation ‘not to defeat the object and purpose of a treaty’ progressed transnational development of IL, even in the absence of ratification.Footnote ⁶³ However, as Daalder and Lindsay argue, the Bush administration rejected the idea popular in the Clinton years that ‘committing good words to paper would create international norms capable of shaping state behaviour’. Rather, for the Bush administration, ‘the benefits of flexibility far outweigh the diplomatic costs of declining to participate in international agreements that are popular with friends and allies’.Footnote ⁶⁴ In illiberal nationalist terms, IL should be developed solely as a permissive framework, rejecting treaty commitments entailing any constraints.

The unsigning of the Rome Statute was achieved against the wishes of the State Department, but with the urging of the secretary of defenseFootnote ⁶⁵ and the support of the president.Footnote ⁶⁶ At his confirmation hearings, Powell noted that the effect of Ambassador Scheffer’s signature was that ‘in legal terms you sort of bind yourself not to defeat the purpose and objectives of the treaty. But we have no plans to ask for ratification of this treaty.’ Helms responded not by denying the obligation, but, rather, by quipping: ‘We are going to send somebody down there to strike the signature of that ambassador.’Footnote ⁶⁷ By May 2002, Bolton had relevantly communicated to the UN Secretary General that the United States had no intention to become a party to the treaty and therefore had ‘no legal obligations arising from its signature’.Footnote ⁶⁸ This act renounced the legal obligation not to engage in actions inconsistent with the Rome Statute, which had arisen from Clinton’s 2000 signature, ‘until it shall have made its intention clear not to become a party to the treaty’.Footnote ⁶⁹ In following this procedure, Bolton emphasised US compliance with ‘legitimate mechanisms provided for in the Rome Statute itself’.Footnote ⁷⁰

On the day of the unsigning, Under Secretary of State for Political Affairs Marc Grossman articulated the beliefs structuring the Bush ICC policy, beginning with a commitment to ‘justice and the rule of law’. Equally identified, however, were beliefs that ‘states, not international institutions’ upheld this principle, with the ICC itself lacking the ‘checks and balances’ present in US domestic law. The United States was thus compelled to unsign the statute precisely to uphold its ‘leadership role in the promotion of international justice and the rule of law’.Footnote ⁷¹ Here, Grossman’s reasoning followed elements of liberal nationalist beliefs – about the sufficiency of municipal law for upholding democratic rights and the corrosive effect of IL on these rights. Such a position does not amount to ‘isolationism’ per se, which would entail structuring IL to achieve a complete separation between the United States and global affairs. It does nevertheless reflect elements of what has often been labelled isolationism, in interpreting the United States’ legal interests by reference to its self-sufficient character. Grossman defined US commitment to ‘promotion of the rule of law’ as protecting independent states that accept ‘the challenges and responsibilities associated with enforcing the rule of law’. Grossman’s argument shared the liberal preference for ‘self-governing democracies’ to facilitate the rule of law, but remained distinct from liberal internationalism through primary emphasis on the protective development of IL rather than its role in strengthening transnational connections.Footnote ⁷²

Curtis Bradley retrospectively defended compatibility of the policy with the rule of law, which never amounted to ‘repudiations of international law’.Footnote ⁷³ In relation to Article 18 of the VCLT, the administration ‘did not contravene or disregard international law; rather it carefully followed international law governing “unsigning”’.Footnote ⁷⁴ However, this line of argument is effective only to confirm US fidelity to Bradley’s own conception of the international rule of law. His commitment is to pragmatically develop IL based on consent as the normative foundation for global governance, while challenging worldviews ‘that having more, and more expansive, international rules is always better for the world’.Footnote ⁷⁵ For the actual legalist critics cited by Bradley, these commitments fall short of demonstrating any affinity for the international rule of law. The act of unsigning directly repudiated the formal development of global governance – not just the particular design of the ICC.

Bradley’s argument is less persuasive in claiming that the administration ‘was not antagonistic to international criminal law, but simply had particular concerns about the structure of the International Criminal Court, concerns that also had been expressed by the Clinton Administration’.Footnote ⁷⁶ This conclusion flows from analysis at the level of IL policy outcomes – according to which there were broad similarities between successive administrations. But disaggregating the beliefs of legal policymakers reveals a crucial distinction between the previous liberal–illiberal internationalist contest and the shift to a contest between forms of nationalism–illiberal internationalism. Bradley readily conceded that Bolton was ‘openly hostile’ toward the UN, but without identifying the degree to which that ideological hostility was constitutive of IL.

Hegemonic Privileges through UNSC Control

Exemptions from ICC prosecution for US peacekeepers made tangible American beliefs ‘that it is the exceptional, indeed “indispensable,” nation entitled to the benefit of special rules’.Footnote ⁸² In this period the meaning of ‘equality’ under IL took on the particularistic meanings correlated with prevailing influences of illiberal internationalism and nationalist ideologies. The only meaningful support for the court among these ideological approaches came from illiberal internationalist policymakers, with the exemplar being Jack Goldsmith as Legal Adviser in the Department of Defense and later head of the Office of Legal Counsel in the Department of Justice. His contemporaneous and subsequent writings demonstrate the process by which the administration sought to carve out forms of hegemonic privilege, contrary to the principle of sovereign equality, and yet in furtherance of a coherent conception of the international rule of law.

Goldsmith perceived a conflict at the heart of ICC disagreement between demands for sovereign equality and a countervailing belief in hegemonic privilege as the necessary guarantor for the rule of law. Noting that the outcome of the Rome Conference was ‘dominated by weak and middle powers’ as well as NGOs,Footnote ⁸³ he adopted Kagan’s 2002 reasoning that transatlantic divisions in ICC policy reflected ‘a broader pattern of middle power (and especially European) efforts to use international law to limit the power of militarily superior nations’.Footnote ⁸⁴ Although this statement was made critically, it would likely be agreed to by the states in question, who did indeed view formal equality as a proper legal constraint on military might. Goldsmith acknowledged that states taking a principled stand was one plausible explanation for opposition to US policy, with legalist ‘commitment to the equality of all nations before international criminal law’ viewed by other states as necessary for the ‘rule of law’.Footnote ⁸⁵

To this claim, Goldsmith responded that a court designed in such terms was ‘unrealistic’, above all else, because its design as of 2002 ‘is, and will remain, unacceptable to the United States’. By way of explanation:

These observations fitted within a broader conception of IL requiring a foundation not in high-minded aspirations, but in effective political power. To illustrate, the appearance of former Serbian and Yugoslavian president Slobodan Milošević before the ICTY was not achieved through the ‘gravitational pull’ of properly constituted judicial power, but, rather, through ‘U.S. military, diplomatic, and financial might’.Footnote ⁸⁷ This is equally a rebuttal to liberal internationalist arguments that transnational processes create a sense of legal obligation capable of imbuing a ‘compliance pull’ in IL, independent from enforcement mechanisms.Footnote ⁸⁸ For Goldsmith, there was a ‘perversity’ in the ICC design in its potential ‘chilling effect’ on America’s ‘unique international policing responsibilities’ to uphold human rights.Footnote ⁸⁹ In circumstances where the United States was uniquely exposed while fulfilling this global role, the court ‘appears to expose the only nation practically able to intervene to protect human rights to the greatest potential liability for human rights violations’.Footnote ⁹⁰ Contrastingly, states that breached international criminal law but were not globally engaged escaped the reach of the court.

In jurisprudential terms, this is a case for institutionalising American hegemonic privilege as a core element of the international rule of law. The unstated belief squaring the account with equality under IL was that rights are defined equal to the unequal duties performed by each state in upholding the global system. Goldsmith certainly did not characterise his position in this way, and in fact framed his argument as ‘benign hypocrisy that appears to reconcile rule-of-law values with the enforcement asymmetries of international politics’.Footnote ⁹¹ In other words, he stated his position in terms of the null hypothesis of this book: that the international rule of law had a unified meaning, but that US policy erodes the ideal according to political necessity. The power of ideology as defined here, however, is in structuring the worldview of adherents without any necessary consciousness of shared sets of interrelated beliefs. The structure of Goldsmith’s beliefs remains congruent with ideas about IL long established by illiberal internationalist ideology. The argument thus corroborates legal conceptions in which sovereign equality was problematic not merely because it diminished American political influence but also because it diminished the international rule of law itself.

Exceptionalist beliefs were realised in the substantive content of resolutions 1422 and 1487. The resolutions noted that states had different legal obligations depending on whether they were parties to the Rome Statute while emphasising that ‘it is in the interests of international peace and security to facilitate Member States’ ability to contribute to operations established or authorized by the United Nations Security Council’.Footnote ⁹² That understanding became the basis for tailoring special immunity rights within the law to facilitate the policy objective of ongoing US contributions to international peace and security. The influence of these legal beliefs was further evident in the way the resolutions determined international judicial powers in relation to the ICC. The resolutions made a clear distinction between the obligations of states parties who ‘have chosen to accept’ ICC jurisdiction and those who have not. The latter were explicitly excluded from the reach of the Rome Statute, but nevertheless undertook to ‘continue to fulfil their responsibilities in their national jurisdictions in relation to international crimes’.Footnote ⁹³ The influence of illiberal internationalism remained coherent in dividing international legal powers according foremost to state consent.

The internationalist policies advocated by Goldsmith and others frequently melded with more nationalist legal conceptions in this period, but they remained distinct from them through a commitment to maintaining America’s global legal presence. From an illiberal nationalist perspective, states should possess a relative sovereignty equal to their alignment with American values and national security. Jesse Helms warned of ‘a court run amok’, which should be resisted for being controlled equally by states that included ‘dictatorships’. That problem was acute where the ICC remained ‘immune to a U.S. veto’ through the UNSC.Footnote ⁹⁴

The Threat of an Independent Court

The US position on the ICC’s legal powers was set out in the NSS 2002, which sought to ‘reaffirm the essential role of American military strength. We must build and maintain our defenses beyond challenge.’Footnote ¹⁰⁹ The relevant section continued:

These sentiments replicated statements that the president delivered earlier that year where he gave an assurance that no member of the American military would appear before an ‘unaccountable’ ICC or any such ‘international courts and committees with agendas of their own’.Footnote ¹¹¹ These jurisdictional interpretations directly addressed proper institutional arrangements for determining the integrity of global judicial powers, which came to be defined by opposition both to legalist arguments for a fully independent court and to liberal internationalist policy that supported a court with independent powers subject to democratic checks and balances.

The underlying contention with the ICC’s structure of legal power was the implausibility of separating purely judicial power, with the court seen to exercise a form of political power by definition. Bolton characterised the ICC as ‘an unaccountable prosecutor, possibly politically motivated, posing grave risks for the United States and its political and military leaders’.Footnote ¹¹² For Rumsfeld, the ICC constituted ‘a potential lawfare weapon against the United States’.Footnote ¹¹³ Guided by the principle of protecting ‘America’s sovereignty’, Rumsfeld rejected any legal arrangement that granted legal powers to courts not held accountable by the consent of Americans themselves. He concluded that such ‘growing international judicial encroachments on our sovereignty’ will erode ‘America’s willingness to use our military as a force for good around the world’.Footnote ¹¹⁴

During this period, John Yoo wrote to Alberto Gonzales, then legal counsel to the president, to argue that ICC independence could threaten the administration’s use of decidedly illiberal ‘enhanced interrogation’ techniques.Footnote ¹¹⁵ Yoo argued that these possible acts of torture ‘cannot fall within the jurisdiction of the ICC, although it would be impossible to control the actions of a rogue prosecutor or judge’.Footnote ¹¹⁶ The chief mischief lay in the fact that ‘the ICC is not checked by any other international body, not to mention any democratically-elected or accountable one’. Citing various scenarios, including that of the rogue prosecutor, Yoo concluded that the Office of Legal Counsel ‘can only provide the best reading of international law on the merits. We cannot predict the political actions of international institutions.’Footnote ¹¹⁷ Yoo later maintained with Posner that the ICC would ‘not be an effective tribunal’ for reasons that could be ‘traced directly to the independence of the court’.Footnote ¹¹⁸ Sands described these as ‘extreme views on the ICC’ and Yoo’s memorandum of advice as ‘error-ridden’.Footnote ¹¹⁹ Yet the arguments from both Rumsfeld and Yoo were consistent with standard illiberal interpretations of IL drawn from the administration’s foreign policy ideology, which rejected the necessity or even compatibility of independent judicial powers with the international rule of law.

The administration’s preferred policy was not to consign the subject matter of international criminal law to a legal black hole, but to assert the merits of the supremacy of municipal legal powers. In 2001 David Scheffer was succeeded as Ambassador-at-Large for War Crimes Issues by Pierre-Richard Prosper, who proceeded to advocate hybrid courts constituted at the municipal level as an alternative to the ICC.Footnote ¹²⁰ Prosper testified that the administration remained a committed leader in ‘efforts to end impunity by holding perpetrators of war crimes accountable’. He rejected a central ICC role, however, in favour of ‘lasting initiatives, especially securing the rule of law’. The United States would not abdicate its responsibilities to this task as part of the ‘international community’, but nor ‘should that responsibility be taken away’ from states by international courts.Footnote ¹²¹ Elsewhere Prosper elaborated that a strengthened ICC would ‘undermine the legitimate efforts of member states to achieve national reconciliation and domestic accountability by democratic means’. This returned to previous calls for limiting the reach of formal international rules in order to resolve conflicts through non-binding measures, such as truth and reconciliation commissions. Such were ultimately more likely to create ‘a lasting benefit to the rule of law’.Footnote ¹²² It is notable that in a subsequent public address on the topic ‘War Crimes in the 21st Century’, Prosper failed to even acknowledge the existence of the ICC, let alone US objections, even as he reiterated commitment to accountability for atrocities in Sudan and the rule of law more generally.Footnote ¹²³

Reordering International Judicial Power through the ASPA

The legislative intent of the ASPA can be conceived as a bridge between the Rome Statute and prevailing US ideological preferences. The preamble warned against exposing American citizens to international judicial power in terms consistent with liberal nationalism and the vertical separation of powers. This included ‘procedural protections to which all Americans are entitled under the Bill of Rights to the United States Constitution, such as the right to trial by jury’.Footnote ¹²⁴ The preamble also drew upon illiberal conceptions of law in structuring the ICC regime to ensure that American armed forces and senior government officials remain unimpeded in protecting the ‘vital national interests’ and ‘national security decisions’ of the United States.Footnote ¹²⁵ The legislation warned in these terms that the ICC itself threatened to breach IL – either by usurping the role of the UNSC through defining the crime of aggression or by purporting to override US consent as a non-treaty member.Footnote ¹²⁶

Liberal–illiberal nationalist legal conceptions converged in many respects, with distinct sets of beliefs equally supporting domestic legislation to constrain ICC jurisdiction. Illiberal nationalist conceptions remained dominant in shaping policy, especially as they opposed legalist and liberal internationalist policy. Introducing the ASPA, and its prohibition against US authorities cooperating with the court, was one of Helms’ final victories over the ICC.Footnote ¹²⁷ The senator presented the ASPA as a corrective for US failures to secure UNSC control and thus an ‘insurance policy for our troops and our officials – such as Secretary of State Powell – to protect them from a U.N. Kangaroo Court where the United States has no veto’.Footnote ¹²⁸ Such illiberal nationalist responses were recognised not as a call for the impunity of American citizens but as a measure to reassert the supremacy of American judicial power.

The influence of liberal nationalist beliefs remained important nonetheless, evident in Powell’s support for legislation preventing the external prosecution of American military personnel. Although accepting the principle of an international court, he remained cognisant of threats to constitutional liberties:

This returned to the principle of a vertical separation of powers whereby an international court could legitimately exercise judicial power, but only where clearly separated from judicial protection of liberal values under the US Constitution. A more hardline liberal nationalist approach was espoused by then Congressman Ron Paul, who argued that the ICC was ‘inherently incompatible with national sovereignty’. Specifically, the potential for competing judicial authority presented a ‘conflict between adhering to the rule of law and obeying globalist planners’ so that ‘America must either remain a constitutional republic or submit to international law, because it cannot do both’.Footnote ¹³⁰ Paul presented a resolution to Congress in February 2001 calling on the president to ‘declare to all nations that the United States does not intend to assent to or ratify the treaty and the signature of former President Clinton to the treaty should not be construed otherwise’.Footnote ¹³¹ The resolution focused centrally on the impermissibility of ‘a supranational court that would exercise the judicial power constitutionally reserved only to the United States’. This offended the liberal nationalist principle that international and municipal law should govern separate spheres, with the ICC encroaching on ‘the legislative and judicial authority of the United States’. The resolution never engaged in bare denials of international legal authority, however, emphasising consent requirements under the VCLT to argue the illegality of the court.Footnote ¹³² For sponsors of the congressional resolution, the international rule of law meant upholding the thin framework of rules facilitating coexistence between domestic jurisdictions, while protecting municipal judicial powers over the subject matter of international criminal law.

The contours of these illiberal and nationalist approaches become clearest when contrasted with the persistence of liberal internationalist beliefs as a minority position during the Bush 43 administration. Senator Dodd remained a leading champion of the ICC cause, arguing that, since the time of the Founding Fathers, the ‘long-term security needs of the Nation’ were strengthened by globally extending ‘inalienable rights’ established by the US Constitution. That principle, when combined with unrivalled power, created leadership responsibilities in the United States to establish a system of international criminal justice. Dodd recognised the inconsistency of his worldview with nationalist attempts to ‘become a gated community and retreat from international agreements’.Footnote ¹³³ With the establishment of the ICC appearing to be politically inevitable, the ASPA would have the effect only of placing US military personnel ‘in greater jeopardy than they would be if we were to participate in trying to develop the structures of this court to minimize problems’. Dodd thus advocated sustained US commitment to stay ‘at the table to try to work it out so that it becomes a viable product which we can support and gather behind’. The policy of minimising IL in the immediate aftermath of the September 11 terrorist attacks was ‘stunning’, with the United States traversing from once leading the creation of the UN system to now ‘shirking its international duty’.Footnote ¹³⁴ More acutely, in Dodd’s worldview it was contradictory for the United States to call for greater international solidarity against terrorism yet, at the same time, signal an intention to act unilaterally through the ASPA.Footnote ¹³⁵ Liberal internationalist preferences were ultimately legislated in the ‘Dodd Amendment’, which made an exception to prohibitions against US ICC cooperation in cases where the United States could provide ‘Assistance to International Efforts’ advancing criminal justice.Footnote ¹³⁶

Swings between competing definitions of US interests certainly confirm a form of political incoherence in US policy outcomes. However, the shifts as identified by Dodd also reveal that each distinct policy was coherent within the terms of an identifiable ideological structure. The complexity of Dodd’s own position emphasises the value of ideological context since, as the Rome Statute stood in 2001, he ‘would vote against it because it is a flawed agreement’.Footnote ¹³⁷ That appears equally contradictory from a legalist standpoint, which his sentiments otherwise coincide with, but is consistent with his scepticism about the judicial integrity of a court lacking democratic checks and balances. Even this most forceful American advocate contradicted legalist rule of law principles through remaining faithful to ideological beliefs.

Article 98 Agreements and the Supremacy of American Judicial Power

From the time of the Rome negotiations, Scheffer recalled that the Joint Chiefs of Staff made clear their preparedness to give, in principle, support for the ICC – provided that it was designed as ‘subordinate’ to and ‘strictly an adjunct to national prosecutions’.Footnote ¹³⁸ This was significant evidence that defence officials were prepared to support some form of the court and were not categorically opposed. A specific stipulation was that the ICC could not eclipse a Status of Force Agreement (SOFA) with any country on whose territory US soldiers were based. These agreements upheld the ‘sacrosanct’ principle that the criminal investigation and prosecution of US military personnel would remain the sole province of US military or federal courts.Footnote ¹³⁹ The Department of Justice joined the calls for a design allowing municipal legal processes to prevail over those of an international court, with relevant legal advisers in both cases expressing commitment to IL, yet in terms of rejecting the separation and privileging of the ICC’s international judicial power. Through US insistence, the principle of a consent-based division of powers was ultimately enshrined in Article 98(2) of the Rome Statute, which prevented the ICC from requesting surrender of an accused person if the state having custody had pre-existing obligations not to do so – such as those established under a SOFA.

The United States concluded over 100 Article 98 agreements with global allies pledging to honour this form of ICC immunity. The strategy was fortified by congressional support through the ASPA and its provisions for cutting off military assistance to states who failed to sign agreements. Scheffer considered these agreements inconsistent with interpretative principles under IL, since the original intent of the provision had been to cover US military personnel and diplomatic staff from ICC jurisdiction but not individuals acting in a private capacity.Footnote ¹⁴⁰ This avoided the appearance of asking for blanket immunity for all Americans, while still addressing internationalist concerns to preserve a US role enforcing international criminal law. Such a rationale did not therefore extend to non-government representatives who, although US nationals, were not performing legally relevant functions.

Scheffer’s critique of Article 98 immunities clearly diverged from illiberal nationalist initiatives as spearheaded by John Bolton. Bolton sought immunity for every American: ‘private citizens such as missionaries, journalists, NGO members, businesspeople, even tourists, who could be swept up in a conflict and used as scapegoats simply because they were Americans’.Footnote ¹⁴¹ During this period, Lincoln Bloomfield, as Assistant Secretary of State for Political-Military Affairs (and head of the bureau within which Bolton worked), further elaborated on the rationale for the broad immunity, arguing: ‘One does not have to hold a view of American exceptionalism to acknowledge the profile and symbolic resonance of the American identity in the world.’Footnote ¹⁴² The bureau was ultimately animated by the perception of an existential threat to all Americans, thereby justifying structuring IL to enshrine the supremacy of US courts over all Americans in order to uphold the rule of law.

Defining Pragmatic Limits to ICC Authority

The re-emergence of illiberal internationalism was succinctly contained in John Bellinger’s statement that the administration’s ‘general approach to international courts and tribunals is pragmatic’. International courts were foremost ‘potential tools to advance shared international interests in developing and promoting the rule of law, ensuring justice and accountability, and solving legal disputes’.Footnote ³⁵ That framing pointedly does not endorse the role for the court proposed in the UN and EU ICC agreements. There, the court held a privileged status for embodying progressive development of global governance in the domain of criminal law. The conception advocated by Bellinger instead maintained that US accession to the Rome Statute would not in itself demonstrate ‘deeper commitment to the rule of law and [prove] … us to be better international citizens’. To the contrary, US scepticism was said to show ‘how seriously we take international law. Embracing the Rome Statute in spite of our serious concerns could only reflect a cavalier attitude towards the Court and international law more generally.’Footnote ³⁶ This foremost rebuffed legalist demands for the progressive formalisation of legal obligations, but also contradicted liberal internationalist beliefs in the value of symbolically aligning US policy with legal principles. Rather, for Bellinger, global governance was assigned to the ICC only to the extent that it directly complemented American national security interests, with the United States otherwise demarcating the pragmatic limits of the legal regime.

Although Bellinger acknowledged that the ICC ‘has a role to play in the overall system of international justice’,Footnote ³⁷ he did so seeking to ‘agree to disagree’ – favouring the term modus vivendi to describe the new position.Footnote ³⁸ The underlying principle was that the shared ends of ‘promoting international criminal justice’ remained ‘far more important than the means by which we seek them’.Footnote ³⁹ In practical terms, this was an argument for circumscribing the role of the ICC, not in opposition to international criminal justice but in the belief that it would enhance its practical realisation. The goal in the EU-ICC agreement of securing universal membership was characterised as ‘counterproductive’ by Bellinger for impeding a practical working relationship with the United States. Rather, ‘ICC supporters will ultimately have to decide which they value more: hewing to an idealistic commitment to universality or pursing practical efforts to build an effective court’.Footnote ⁴⁰ Provided the United States then complied with these predetermined obligations, the conception offered an ideal of non-arbitrary global governance.

Providing analysis at the level of legal beliefs takes on a special importance where policymakers themselves have drawn attention to outcomes rather than decision-making, to make the case for continuity. Bellinger has consistently argued, both during his time in office and subsequently, that US ICC policy has been basically unchanged – across and within US administrations. In his view presidents and congresses have differed according to ‘the tone and means’ by which they express concerns, but there is otherwise a ‘relatively straight line’ running through US ICC opposition.Footnote ⁴¹ Focusing at the level of competing ideologies, however, provides the true measure of policy discontinuity, even between the first and second Bush 43 terms. Bellinger argued that ‘people misread the Bolton letter’ (notifying the 2002 unsigning decision) as evidence of a deeply conflicted US attitude toward the ICC. While the letter has been interpreted as expressing ‘in aggressive or confrontational terms U.S. rejection of the ICC’, Bellinger instead saw it as an attempt to clarify the nature of US obligations in conformity with treaty law.Footnote ⁴² Nevertheless, Bellinger’s own stance on the ICC’s role in global governance reveals a real shift toward pragmatic development, whereby the United States readily supports global institutions so far as they advance national security interests, while clearly distinguishing the domain of diplomatic or non-legal forms of resolution. Bellinger suggested that the ‘warming’ of relations reported in the 2006 Wall Street Journal article ‘overstates the case’, but that it did accurately reflect the strong desire to reach a practical understanding with the court.Footnote ⁴³ This IL policy constituted a categorical shift away from ideological beliefs that structured decision-making in the first term.

At the level of analysing legal conceptions, Bolton’s illiberal nationalist interpretation of ICC obligations was precisely intended to be ‘aggressive or confrontational’. Bolton was nominated as UN Ambassador at a time when the United States had shifted from unyielding ICC opposition, to agreeing not to block the UNSC referring an investigation into the Darfur situation. In Bellinger’s words, where there were ‘no other ways to achieve accountability for the genocide in Sudan, then we don’t have any problem abstaining’.Footnote ⁴⁴ Bolton strongly rejected any such investigation at the level of international legal governance, dismissing EU advocates as frivolously ‘getting out their wig boxes and preparing to go to court’. US acquiescence amounted merely to ‘a gesture to the EUroids, which they cynically pocketed, knowing they had a precedent they could and would use against us later’. Instead the United States ‘should have voted “no,” insisting on actually doing something’, such as establishing an ad hoc international tribunal following the model of the Extraordinary Chambers in the Courts of Cambodia.Footnote ⁴⁵ Beliefs that IL should develop permissively, solely to enable US autonomy, remained distinct from the pragmatic development advocated by Bellinger.

The predominant strategic conclusion by this period was that uncompromising opposition to the ICC had harmed American interests. Ambassador Danforth warned against cases such as the Darfur situation, in which the United States was forced to abstain or even vote against UN resolutions mentioning the court, even where they advanced national interests. He recommended that the United States instead pass an ‘agreement to disagree’ resolution permitting greater flexibility in US voting. Such a resolution would affirm that states were governed by separate jurisdictional regimes, depending on whether they were parties to the Rome Statute, but that each approach equally represented a legal commitment ‘in accordance with international standards of justice, fairness and due process of law’.Footnote ⁴⁶ Permissive development had previously been followed, whereby officials avoided any acknowledgement of the court lest it embolden pretensions to constrain US policy. Policy now shifted to a pragmatic development of global governance as most consistent with an effective international legal system.

The new attitude was clear in US responses to the 2004 ICC-UN negotiated agreement and its objective of consolidating the place of the ICC in global governance. Deputy Legal Adviser to the US Mission to the UN Eric Rosand reiterated to the UNGA that the ICC ‘is not part of the UN Charter System’ and as such should not be treated as having an equivalent status.Footnote ⁴⁷ Most significantly, Rosand reaffirmed ‘U.S. commitment to accountability for war crimes, genocide, and crimes against humanity’, but in a form contrary to the development of global governance advocated by ICC supporters. Rather, this commitment was demonstrated in a US record ‘second to none in holding its own officials and citizens accountable for such crimes, as well as for supporting properly constituted international war crimes tribunals’. Rosand concluded: ‘Properly understood, therefore, our decision not to support the ICC reflects our commitment to the rule of law, not our opposition to it.’Footnote ⁴⁸ This reasoning is a repudiation of rule of law ideals embedded in the ICC-UN agreement, which seeks to invoke UN Charter commitments to the progressive development of IL. Viewed within the structure of ideologically informed American conceptions, however, the reasoning assumes a coherence it otherwise lacks.

Resistance to accepting the ICC as a core institution of global governance remained strong to the end of the administration. US Deputy Representative at the UN Ambassador Alejandro Wolff rejected a 2007 UNGA resolution that confirmed ‘the role of the International Criminal Court in a multilateral system that aims to end impunity, establish the rule of law, promote and encourage respect for human rights and achieve sustainable peace’.Footnote ⁴⁹ Wolff responded that the resolution failed to acknowledge that US rights remained outside the regime, thereby demonstrating that its sponsors and members of the LMS

The frustration arose directly from the fault line between the legalist conception that did view US obstruction to the development of global governance as illegitimate, and the belief by US legal policymakers that pragmatic development remained a legitimate strategy for advancing the international rule of law.

Too Legalistic or Too Political?

The prevalent alternative explanation for outcomes in this period is that US legal policymakers sought to mitigate global criticism by engaging in tactical compromises between a unified rule of law ideal and US political interests. In this vein, a specific claim made by some US policymakers is of a shift from excessive attention to law in the first term to more politically informed decision-making in the second. Philip Zelikow served as Counselor of the US Department of State through the second term, having previously drafted the NSS 2002 that introduced the legal argument for ‘pre-emptive’ self-defence in the War on Terror.Footnote ⁵¹ For Zelikow, there was an unwarranted reliance on lawyers in the first term, who thought in terms of ‘a binary division between the world of policy judgment and the world of legal analysis’.Footnote ⁵² The consequence was an approach to national security questions ‘less as a detailed analysis of what should be done, and more as a problem of what could be done’.Footnote ⁵³ Bradley concurs that the administration demonstrated ‘an almost obsessive attention to international legal process’. The lesson learnt was that, although the ‘rule of law promotes important values, framing questions in legal terms can sometimes produce undesirable outcomes’.Footnote ⁵⁴ Zelikow and Bradley both commended the ‘pragmatic’ return to reasserting diplomatic interests over legal doctrine.Footnote ⁵⁵ Rice offers some corroboration, in recalling that President Bush’s first question when faced with proposed ‘enhanced interrogation’ techniques was whether they were legal, and then holding off interrogations until assurance was received. Rice remained faithful to Justice Department guidance, since she ‘would never have engaged in – or encouraged the President to undertake – activities that I thought to be illegal’.Footnote ⁵⁶

The account of too much legality contrasts dramatically with the interpretation of Sands and others, for whom the first term was dominated by political interests and only belatedly began to acknowledge IL obligations.Footnote ⁵⁷ The contradiction cannot be resolved merely by analysing US policy in terms of the opposition between law and politics, as each side has sought to do. Rather, the most coherent explanation is that of competing underlying conceptions of law, which were themselves constituted by politics. First term IL policy did rely on legalistic justifications, but it would be implausible to characterise these as strategically neutral for that reason.Footnote ⁵⁸ Rather, commitments were consistently structured by an illiberal nationalist conception of IL as a permissive legal framework enabling almost unconstrained discretion to implement substantive foreign policy decisions. Zelikow’s analysis chiefly considered legal justifications for detainee treatment in the War on Terror, but is equally relevant to interpreting ICC policy. In these cases, administration lawyers defined IL as malleable almost without limit in order to accommodate ideologically informed national security and cultural values.

Contradiction of Exceptionalist Beliefs in US Prisoner Abuse Scandals

In 2005, then Senator Hillary Clinton continued to defend American IL policy in broadly internationalist terms, emphasising principles of both liberal equality and hegemonic privilege. Clinton reminded European critics:

Clinton thus framed the ‘lawfare’ threat as the direct cost of exceptionalist American duties: of legalist judicial institutions being used to constrain the United States and thereby eroding not merely its global power but also the international legal system it underwrote. Where Clinton sought to speak for ‘all of those people looking at us and yearning to be part of what we are’,Footnote ⁷⁰ her determination of the proper relationship between sovereign states reflected the ideological commitment to principles of liberal equality.

The significance of exceptionalist beliefs to American legal conceptions became strongly apparent in the second Bush 43 term, but in the unique circumstances of their elimination from policymaking processes. Schabas documented the first sign of a shift in ICC policy from 2004, when the United States backed down on requested renewal of UNSC resolutions granting peacekeepers ICC immunity.Footnote ⁷¹ The turning point was revelations about the abuses in Abu Ghraib Prison in the aftermath of the 2003 Iraq War: ‘[s]hamed and humbled by the tales of abuse’, the United States withdrew its deferral resolution.Footnote ⁷² The significance of prisoner abuse scandals in Afghanistan, Guantanamo, but especially Abu Ghraib, was that they provided compelling evidence against US political culture being a sufficient check against international illegality. In terms of the theoretical framework adopted here, any piercing of the exceptionalist veil would be expected to undermine US commitment to legal conceptions drawn from associated ideologies. If foreign policy ideology does play a meaningful role in structuring IL policy, then the United States would become more likely to accede to legalist demands for sovereign equality – even as political interests were held constant.

Rice accepted that the images from Abu Ghraib diminished global perceptions of ‘America as something different’.Footnote ⁷³ She later lamented the lasting damage caused when ‘the image of the U.S. soldier around the world became associated with the depravity of Abu Ghraib’.Footnote ⁷⁴ Translation of this recognition into IL policy was evident in Ambassador Danforth’s classified communications, which advised that failure to renew UNSC Resolution 1487 was ‘principally because it came up at the same time as the Abu Ghraib abuses came to light’.Footnote ⁷⁵ Bassiouni explained that the examples ‘evidenced to the international community the need for accountability’, and most especially for the United States, who had claimed that ‘its system of criminal justice is better than that of most other countries and that its system of military justice can be relied upon to perform its mission without international monitoring’.Footnote ⁷⁶ To the contrary, Amnesty International argued that the scandal demonstrated ‘blatant disregard being shown for the rule of law, and the Bush Administration should be doing everything in its power to support the principles embodied in the ICC’.Footnote ⁷⁷

That these circumstances led to the withdrawal of US demands for hegemonic privilege, or even for deference to the interests of liberal equality, is compelling evidence of the extent to which foreign policy ideology was structuring conceptions of IL. Once the foundation of exceptionalist beliefs was fractured, the entire edifice of distinctive interpretations of the rule of law collapsed. The only coherent legal policy remaining that did not depend on exceptionalist beliefs was that of legalism. Following the lapsing of Resolution 1487, US policy accepted a legal status in UN peacekeeping missions that, formally at least, was as a sovereign equal. The policy outcome in this narrowly defined area therefore provided an insight into US legal policy stripped of its exceptionalist foundations – which, through its absence, confirmed the power of foreign policy ideology.

Reframing UNSC Referral of the Darfur Situation

The shift in US policy culminated in tacit support for a UNSC referral of the Darfur situation in March 2005, described by David Bosco as a ‘major breakthrough’.Footnote ⁷⁸ The congruence of the shift with the model of legal conceptions is evident in a prescient statement five years earlier by Michael Scharf, which had advocated the illiberal internationalism that made such a comeback in Bush’s second term. In reference to evidence of rising illiberal nationalist hostility in the first term, Scharf warned that IL must be preserved as a diplomatic tool since ‘when the next Rwanda-like situation comes along, the Bush administration will find value in having the option of Security Council Referral to the ICC in its arsenal of foreign policy responses’.Footnote ⁷⁹ That was precisely the realisation reached in coming to see the ICC as the best forum for fulfilling US interests in the case of a humanitarian crisis not directly involving American security interests.

Goldsmith provided the most explicit defence of the Darfur referral in illiberal internationalist terms. In The Washington Post he reminded the administration that a successful UNSC referral reinforced the wisdom of the original US demands for an international court under UNSC control. Goldsmith readily acknowledged the inconsistency of UNSC control with sovereign equality, which critics would likely reject as ‘a double standard for Security Council members, who can protect themselves by vetoing a referral’. Yet, rather than defending the US position as consistent with sovereign equality, he instead observed that

This is an assertion of hegemonic privilege as an element of the international rule of law: that IL must be harnessed to the realities of political power if it is to be a meaningful force in ameliorating raw political ambition. Bosco characterised Goldsmith as effectively calling for the United States ‘to informally merge the court into the system of major-power privilege’.Footnote ⁸¹ Likewise, Corrina Heyder repeated the legalist critique that US acquiescence to the Darfur referral was contradictory in jurisprudential terms and coherent only when understood as tactical manipulations of the law to ‘maintain hegemonic power over international criminal justice’. The referral thus ‘must be interpreted as an attempt to safeguard American exceptionalism and enable the United States to more easily advance its particular interest’.Footnote ⁸² These statements are undoubtedly accurate accounts of the political dynamics underpinning policy outcomes. But, where inquiry is located at the more fine-grained level of decision-making processes, the crucial interplay between law and ideology becomes necessary to explain the underlying logic. Identifying Goldsmith’s argument in illiberal internationalism reveals the ideological reconciliation of political interests with expressed commitment to IL.

The power of exceptionalist beliefs was laid bare in US explanations for why citizens of Sudan, as a non-party to the Rome Statute, should be subject to ICC jurisdiction even as the United States denied that jurisdiction over itself. For Rice, it was ‘important to uphold the principle that non-parties to a treaty are indeed non-parties to a treaty’, but that ‘Sudan is an extraordinary circumstance’. The United States reasoned that the referring UNSC resolution itself created a general exemption to non-parties to the treaty, but this was hardly an answer given it was the United States who demanded those protections in the first place. Rice’s further explanation was that, as a practical matter, Sudan represented ‘a humanitarian crisis, … a moral crisis, and … a crisis that is extraordinary in its scope and in its potential for even greater damage to those populations. So I think this is a different situation, frankly.’Footnote ⁸³ Sands described this explanation as ‘flummoxed’.Footnote ⁸⁴ From these statements, the most consistent principle that emerges is that, precisely because of the perceived unequal position occupied by the United States, the meaning of equality under IL properly encompassed a commensurate counterbalance in legal rights and duties. Certainly, Rice appeared satisfied that US policy was consistent with the international rule of law when she addressed the American Society of International Law within the same day as her initial statements:

Beyond objections to the principle of UNSC control, Bosco noted that Resolution 1593 created an important precedent whereby P5 members were effectively able to circumscribe the rights and privileges enjoyed by specific states before the ICC. This appeared to go beyond the UNSC’s proper power to simply refer situations to the court, but not to set the terms for prosecution.Footnote ⁸⁶ Robert Cryer cited this as a key reason for raising ‘serious questions’ about the resolution’s ‘compliance with basic principles of the rule of law’.Footnote ⁸⁷ He noted previous statements by Scheffer appearing to interpret Article 13(b) of the Rome Statute as permitting the United States to specifically ‘define the parameters’ of ICC jurisdiction over states who play a special enforcement role in the international legal system.Footnote ⁸⁸ In the quest for fidelity to the international rule of law, Cryer rejected the legitimacy of elevating ‘exceptionalist claims’ over sovereign equality.Footnote ⁸⁹

Cryer’s argument demonstrates the limitations of compartmentalising law and politics when explaining US ICC policy, and the fertile ground for ideology to bridge the gap between them. Cryer noted that, on the one hand, the possibility of selective justice resulting from exceptionalist beliefs was ‘a sobering reminder that the international legal order is not one in which the rule of law is easy to realize’. Yet he also conceded that ‘prosecutions for extremely serious crimes are likely now to occur, when they were unlikely to have done so if the Security Council had no role in referring cases to the ICC’. In that light, Cryer was wary of ‘being too precious about principle’ where practical justice was at stake.Footnote ⁹⁰ This is precisely the kind of dissonance that drives evolution of ideological beliefs to reconcile law and politics in the distinct configurations now structuring American IL policy. For US legal policymakers, the perceived nexus between exceptionalism and the operation of IL is not unique to the Darfur referral but is constitutive more generally of the international legal system. In short, a system defined by reference to unyielding sovereign equality is not merely a poor description of the rule of law: it is an account incompatible with the realisation of the ideal. The quality of ideology evolving to accommodate the ‘needs and interests of a group or class at a particular time in history’Footnote ⁹¹ is thus well demonstrated in this case.

Prior to the Darfur referral, Heyder opined that it was ‘difficult to understand’ why the United States would not support such a resolution on at least an ad hoc basis when a commitment to international criminal justice ‘is a deeply rooted part of U.S. foreign policy’.Footnote ⁹² Yet, so long as the court was defined by the principle of sovereign equality, any vote for the referral was tantamount to endorsing an ideal unrecognised by US policymakers. Instead, US hegemonic privilege was consolidated by 2008 when, having pocketed its own immunity, the United States supported the ICC in blocking African Union requests that then Sudanese president Omar al-Bashir be granted immunity in light of the Darfur referral. Scheffer observed that by this period ‘the Bush administration had finally rid itself of Bolton’, thereby allowing the policy shift toward a United States–specific vision for a functioning court.Footnote ⁹³

ICC Judicial Power Limited by US Consent

US approaches to the Darfur referral uniformly insisted on terms contrary to a court design determined by an effective separation of international legal powers. Legal disputes among American policymakers were thus not about how to accommodate the supremacy of the ICC’s judicial power; rather, they were about how to reconcile ordering principles drawn from entirely separate ideological commitments. Bellinger emphasised that, in the second term, the administration resisted only the ICC’s ‘method for achieving accountability [original emphasis]’, not its aspiration to do so. This was an argument about the proper determination of international judicial power according to a ‘deeply held American belief that power needs to be checked and public actors need to be held accountable’.Footnote ¹⁰² The first term of the Bush administration was marked by insistence that judicial determination of international criminal matters be the sole province of municipal law – of American courts or tribunals in the case of US nationals and of locally constituted courts in the case of international prosecutions. The shift in the second term was to recognise that, in the latter case, there were strategic advantages to employing the ICC in lieu of locally constituted courts, provided the United States withheld consent for matters within its national jurisdiction. The shift along the governance dimension, from an illiberal nationalist to an illiberal internationalist conception of IL, bolstered functional cooperation but not agreement on rule of law ideals.

The United States initially continued to resist the UNSC Darfur referral according to its long-held insistence that matters of criminal justice be reserved to municipal legal processes. The United States had been among the first and most prominent states to declare that the Darfur situation met the legal definition of genocide.Footnote ¹⁰³ Accordingly, policymakers were at great pains to defend US commitment to international criminal justice. Rice asserted that US resistance was instead towards the unaccountability of the ICC prosecutor to an identifiable government: ‘an issue of sovereignty and a step that looked a bit too much like “world government”’.Footnote ¹⁰⁴ Acting UN Ambassador Anne Patterson reiterated that the US preference remained for domestic-based resolutions, such as a hybrid tribunal in Africa.Footnote ¹⁰⁵ The choice perceived by the United States was thus between blocking the referral in preference of a hybrid court using the infrastructure of the ICTR, or to ‘carve out US exemption’ within a referral it could support.Footnote ¹⁰⁶ The State Department went to great lengths to achieve the former option, and it was only after failing to do so that it switched to the latter, as initially recommended by Ambassador Danforth.Footnote ¹⁰⁷ Rice ultimately supported the referral on the basis that a change in strategy promised greater accountability under IL for Darfur perpetrators. To do otherwise would be ‘just to make an ideological point about the construction of the court or the Rome Statute’.Footnote ¹⁰⁸ This is a revealing insight into the dynamic relationship between ideology and legal accountability at the heart of shifting IL policies.

On US insistence, the terms of UNSC Resolution 1593 explicitly took note of ‘agreements referred to in Article 98–2 of the Rome Statute’. The resolution directly reiterated the limits of US consent to ICC judicial authority in the sixth of its operative clauses, which stated that the UNSC:

Thus, although the resolution was designed to legitimise the ICC’s exercise of international judicial power, it did so by certifying that the United States retained judicial power over international criminal matters in relation to its own nationals.

Patterson confirmed that consent to jurisdiction set the limits of US support for the Darfur referral, with any alternative arrangement striking ‘at the essence of the nature of sovereignty’. On those terms the United States still wouldn’t vote for the referral but ultimately

Far from denying the legitimacy of IL, the United States remained committed to the principle that ‘[v]iolators of international humanitarian law and human rights law must be held accountable’. Patterson reminded that the United States had long argued for UNSC control of referrals and that, by doing so in relation to Darfur, ‘firm political oversight of the process will be exercised’. She nevertheless reiterated that US objections to the ICC remained unchanged in the absence of ‘sufficient protections from the possibility of politicized prosecutions’. In this sense, politics was identified as both the guarantor of the international rule of law, in the UNSC, and its enemy, in the ICC. Such incoherence is resolved only by viewing the underlying conception of IL in terms of the role of foreign policy ideology and exceptionalist beliefs. Patterson concluded by asserting that the position did not equate to sanctioned impunity, since the United States itself would ‘continue to discipline our own people where appropriate’.Footnote ¹¹¹ The arrangement achieved in the Darfur referral thus normalised and institutionalised parallel exercises of international judicial power divided between the ICC and US courts.

Liberalism

The most instructive account of Obama’s conception of IL remains his Nobel Lecture, which was largely authored by the president and has been characterised by his closest advisers as a ‘template’ or ‘framework’ for his foreign policy beliefs.Footnote ³² Crucially, the balance of the speech directly addressed the relationship between international power and conflicts internal to American IL policy. Obama’s exceptionalist thinking is, paradoxically, revealed in his declaration that the United States cannot ‘insist that others follow the rules of the road if we refuse to follow them ourselves’, which would appear ‘arbitrary’. A belief that the United States elevates liberal values above the ordinary geopolitical incentives to carve out legal exceptions is itself an exceptionalist claim. According to Obama, ‘even as we confront a vicious adversary that abides by no rules, I believe the United States of America must remain a standard bearer in the conduct of war. That is what makes us different from those whom we fight.’Footnote ³³ The anchoring of IL in liberalism was made explicit in Obama’s self-identification as an ‘idealist’, believing that

These liberal values found their expression in both internationalist and nationalist approaches to global governance, with a divergence between policy means and ends.

Liberal Internationalism

The president’s primary conception of liberalism was of an international rule of law in which the United States played an exceptional role upholding and promoting the system. In Obama’s words: ‘If you compare us to previous superpowers, we act less on the basis of naked self-interest, and have been interested in establishing norms that benefit everyone.’Footnote ³⁵ The halting establishment of the international rule of law was attributed to an exceptional American role after each of the world wars, wherein it ‘led the world in constructing an architecture to keep the peace’. This premise departs in key ways from legalism by asserting American values and power as constitutive of IL itself:

Read in the context of a warning against ‘reflexive suspicion of America, the world’s sole military superpower’, this was not merely a political observation but an expression of the necessary elements of an effective international legal system.

Obama’s understanding of how that system enhances global peace centres on democracy as the link between the municipal and the international rule of law. The evidence was said to be that greater adherence to IL between nations, across the twentieth century, was achieved through US support for ‘ideals of liberty and self-determination, equality and the rule of law’. Ultimately, Obama’s liberal vision drew on a foundational belief ‘that the human condition can be perfected’ and in a ‘fundamental faith in human progress’.Footnote ³⁷ This animating purpose of IL remains distinct from illiberal internationalism, which promotes international engagement without accepting that IL can progressively extend shared values as a strategy for overcoming geopolitical interests.

Dominance of liberal internationalism was reinforced in Obama’s preface to the 2010 National Security Strategy (NSS 2010),Footnote ³⁸ which drew connections between democracy, promoting rights through transnational processes, and American national security:

The NSS 2010 importantly departed from the strategies of the Bush 43 years in commitment to ‘an international order based upon rights and responsibilities’ and the ‘modernization of institutions, strengthening of international norms, and enforcement of international law’.Footnote ⁴⁰

Liberal Nationalism

Although Obama self-identified as also a ‘realist’, Walt and Dueck both rightly point out that the standard IR sense of that term is inconsistent with Obama’s overriding liberal objectives.Footnote ⁴¹ Rather, what he describes is consistent with the narrow realism encompassed by liberal nationalism, that ‘we can’t, at any given moment, relieve all the world’s misery … We have to choose where we can make a real impact.’ This call remains in the exemplar tradition of American liberalism, being combined with recognition that

The most telling evidence of liberal nationalism was Obama’s belief that dividing the burden of global leadership with other nations is desirable to protect liberalism at home, and as a guard against unchecked US global power. Obama warned that global counterparts ‘who claim to respect international law cannot avert their eyes when those laws are flouted’. Rather, the responsibility for enforcing IL was a shared one: ‘[T]he closer we stand together, the less likely we will be faced with the choice between armed intervention and complicity in oppression.’Footnote ⁴³ He later added: ‘One of the reasons I am so focused on taking action multilaterally where our direct interests are not at stake is that multilateralism regulates hubris.’Footnote ⁴⁴

Likewise, the NSS 2010 spanned both variants of liberalism, stating that ‘national security begins at home’ and, accordingly, that ‘moral leadership is grounded principally in the power of our example – not through an effort to impose our system on other peoples’.Footnote ⁴⁵ Yet that warning was tempered by beliefs that ‘America has never succeeded through isolationism … [W]e must reengage the world on a comprehensive and sustained basis.’Footnote ⁴⁶ To that end, the United States ‘must pursue a rules-based international system that can advance our own interests by serving mutual interests’.Footnote ⁴⁷ This remained consistent with combining a restrained defence of universal American political values with the aspiration of an international environment that would ultimately reinforce them.

Illiberal Internationalism

Finally, Obama’s recognition of the disjunct between liberal intentions and the reality of an illiberal world also manifested in examples of employing illiberal policies for the limited purpose of returning the global balance of power toward American values:

Quoting President Kennedy, Obama warned against idealistic adherence to liberal values in IL policy, favouring ‘a more practical, more attainable peace, based not on a sudden revolution in human nature but on a gradual evolution in human institutions’. In this vein, he noted that, although ‘engagement with repressive regimes lacks the satisfying purity of indignation’, it was sometimes necessary to pragmatically advance illiberal interests in the short term, with liberal faith that ‘human rights and dignity are advanced over time’.Footnote ⁴⁹

Maintaining Ambiguous Obligations under the Rome Statute

The Obama administration’s official ICC position was set out in the NSS 2010, in terms that became something of a mantra among legal policymakers:

The terms of renewed support were equally a confirmation of the court’s subordinate status to US legal autonomy and the perceived need to shield military personnel.

The divergent path of US policy is clearest in the administration’s ambiguous retraction of the 2002 unsigning statement of John Bolton, combined with emphatic assurances that a clear policy shift had occurred.Footnote ⁷⁵ The act of unsigning during the first term of the Bush 43 administration was widely accepted as effective in removing minimal US obligations to not frustrate the objects of the treaty.Footnote ⁷⁶ As the Bush 43 era came to a close, this remained the most conspicuous signal of the hostility flowing from illiberal nationalist conceptions of the ICC. Immediately prior to assuming the role of State Department Legal Adviser, Koh declared that,

Doing so was framed as a necessary step toward an IL policy ‘that lives up to America’s historically high standards of international responsibility and respect for the rule of international law’.Footnote ⁷⁸ In Scheffer’s opinion, ‘a new letter could nullify the effect of Bolton’s missive and resurrect the legal authority of the signature on the treaty’.Footnote ⁷⁹ The call by Koh and Scheffer was therefore for the formal reacceptance of the legal obligations created by Clinton’s 2000 signature, which would equally send the strongest political signal of US commitment to the international rule of law. In the years following these statements, US policy is best described as political recommitment to the substance of Rome Statute signatory obligations, but ambiguous commitment to legally binding obligations. Koh had previously characterised the Bush administration’s increased ICC cooperation during its second term as ‘de facto repudiation of the political act of unsigning’ that largely brought the United States back in line with its former international obligations.Footnote ⁸⁰ The subsequent Obama policy, led by Koh, suggests that this ‘de facto’ shift was adopted as sufficient for the policy ‘reset’, without further formalised obligations.

The United States signalled its policy shift by attending the Annual Session of the ASP for the first time in November 2009. Questions soon followed about what that signified about US legal obligations in circumstances where the Bolton letter was never formally annulled. The issue was deftly avoided by US Ambassador-at-Large for War Crimes Issues Stephen Rapp, who told reporters that the United States was entitled to participate in the ASP and related conferences irrespective of the treaty signature – by virtue of signing the Final Act at the 1998 Rome Conference.Footnote ⁸¹ When pushed on the unsigning, he stated only that the effect of the Bolton letter was the limited one of making it ‘clear that we did not, that the Bush administration did not, believe that we were bound to act as others expected a signatory to act’.Footnote ⁸² He pointedly did not repudiate the release from legal obligations, emphasising that US participation ‘did not require an acknowledgement of our December 2000 signature to the treaty’.Footnote ⁸³ When later asked about the same issue at the Kampala Conference, Koh agreed that the United States was legally entitled to engage as an observer nation, but was more explicit that US cooperation arose from discretionary decisions alone:

This is consistent with the administration’s overall policy of ‘principled engagement’ in multilateral forums to advance American interests. Yet, in legalist terms, this remains a diplomatic stance and not a commitment to be bound by IL stricto sensu. That point was picked up by a questioner at the post-Kampala press conference who noted that the ‘reset’ in ICC policy had ‘more of a political tinge’ than a legal character. Koh’s and Rapp’s responses confirmed that the US reset entailed accepting the ICC as ‘a tool in the international toolbox’, but not as a binding regime.

Later, in 2010, some commentators perceived Koh moving closer to a de jure shift in obligations, by picking up the words of Article 18 of the VCLT to distinguish the Obama policy from that of his predecessors:

This carefully worded phrase was quoted by Koh in subsequent speeches, but without further clarification.Footnote ⁸⁶ There is some uncertainty when interpreting the legal significance of these words. It is worth noting that the statement was made in the context of a quote from the NSS 2010: a document that studiously avoided any suggestion that the United States was legally bound by the ICC. At the time of Koh’s statement, Beth van Schaack raised but did not answer the question of ‘whether Koh has said the magic words’ necessary to annul the 2002 Bolton letter. She agreed that the policy of obstructing the court was at an end but that no conclusive inferences could be drawn about altered legal obligations.Footnote ⁸⁷ Jennifer Trahan described Koh’s words as having ‘orally negated’ the unsigning, but conceded that the statements lacked ‘the weight of a counter-note’. Rather, she reiterated her previous call, as chair of the American Branch of the International Law Association’s ICC Committee, to send a legally binding note.Footnote ⁸⁸ Finally, Amann drew the conclusion that ‘top Obama Administration officials have made clear that the United States now acts toward the ICC treaty as any good signatory should’.Footnote ⁸⁹ So much had already been made clear, but this goes no further than the non-binding undertakings of policymakers.

The combined force of these statements and legal opinions is that: (a) the Obama administration firmly committed to an IL policy consistent with the objects and purposes of the Rome Statute; and (b) the Obama administration conspicuously avoided accepting any formal legal obligations commensurate to its stated policy. Moreover, beyond such ambiguity, policymakers were much clearer that there was no intention to ratify the statute at any time in the foreseeable future which, by virtue of gridlocked domestic politics and the intractability of US Senate opposition, remained ‘not a question of when … [but of] if’.Footnote ⁹⁰ Those impediments are undeniable, yet there is scant evidence that the Obama administration would have moved to ratify the treaty as it then stood, even absent Congressional opposition. Attention must turn to foreign policy ideology to understand how American legal policymakers squared outcomes with simultaneous statements that the Obama ICC policy did represent recommitment to the international rule of law.

Transnational Development of Global Governance

The consistent position emphasised by the United States through this period was closer engagement with the court’s activities and the processes through which US actions were brought in line with the entire project of international criminal justice. This exemplifies the ‘transnational legal process’ explanation for how IL shapes the behaviour of states. Increased US interactions with states parties and the ICC itself caused increased compliance with legal norms and, through this engagement, the United States became a part of mechanisms making the court effective. Koh had contested perceived US legal failings throughout the first term of the Bush 43 administration, arguing that ‘the United States and those within it who are committed to the rule of law should now invoke transnational legal process as a way to address the continuing problems’. Indeed, Koh believed that US constitutional values were already imbued in the ICC through transnational legal processes such that ‘as much as the Bush administration may wish to be free of the legal exoskeleton that the United States has helped create, already that legal framework is visibly pushing back’.Footnote ⁹¹ This highlights a conceptual distinction between Koh’s jurisprudence and that of his predecessor John Bellinger, in circumstances where their ICC policies of re-engaging with the ICC appeared functionally alike. Bellinger expressed illiberal internationalist commitment to pragmatically develop the court by reference to clearly identified strategic interests, while limiting its reach to that extent. Koh, on the other hand, saw the shift under Bellinger less as a calculated decision and more as a consequence of the milieu of transnational forces drawing the United States back toward universal liberal values.

This is not to suggest that formally signing the Rome Statute and even creating conditions for ratification were not genuine aspirations for liberal internationalists. The Clinton administration always aimed its efforts at the ideal of a treaty drafted in such terms that the United States could formally accept its obligations. However, for these policymakers such steps were meaningful primarily for advancing an effective regime shaping international legal behaviour. On that basis, the Obama administration placed its strongest emphasis on the degree to which it was influenced by and continued to influence the development of legal norms through the court. Secretary Clinton confirmed early in the administration that the United States intended to ‘end hostility towards the ICC, and look for opportunities to encourage effective ICC action in ways that promoted US interests by bringing war criminals to justice’.Footnote ⁹² In the UNSC rule of law meeting, Ambassador Susan Rice characterised the ICC as ‘an important tool for accountability’, even as the United States repudiated formal membership. Instead:

That stance was reinforced in a major policy speech by Sarah Sewell, Under Secretary for Civilian Security, Democracy, and Human Rights, who argued that although the United States agreed that ‘aggression is inimical to a rules-based international order’, the real question for upholding such an order was not formalised endorsement of the crime but, rather, ‘whether the Rome Statute amendments can be an effective and appropriate addition to the international community’s tool-box’.Footnote ⁹⁴

Running through these arguments are strands of exceptionalist belief that reconcile a special US role with legal principle. Koh described US policy as shifting to an ‘integrated approach to criminal justice’, by which was meant reconciling ‘incongruous’ historical support for the Nuremberg, Tokyo and ad hoc tribunals with equivocation about the ICC. The objective was to ‘align, integrate, and make congruent our approach towards these institutions’.Footnote ⁹⁵ Koh’s statements downplaying formal obligations were accompanied by reference to beliefs in a unique global mission: ‘Our historic commitment to the cause of international justice remains strong.’Footnote ⁹⁶ Likewise, Rapp noted that the United States had been ‘a leader in international justice’ in establishing the ad hoc tribunals and making them operational. In the case of the ICC, ‘the opportunity to do some of those same things presents itself’ with the United States again leading the initiative.Footnote ⁹⁷ These are telling comparisons given that the United States was generally excluded from the jurisdiction of the ad hoc tribunals by their very subject matter,Footnote ⁹⁸ whereas no such limitation would exist for a criminal court with general jurisdiction. Yet the United States sought exclusion from ICC constraints, through claims to an exceptional role fostering the institutions that made international criminal justice effective.

A reporter at the Kampala Conference observed that it was ‘curious that an administration would become so engaged in shaping the kind of format of a court that it’s not a signatory to’. Koh invoked exceptionalist beliefs in his response that ‘international institutions and courts with which the United States is not involved tend not to be as effective’, whereas the ad hoc tribunals ‘have been more successful by virtue of deep U.S. engagement’. For Koh, the proper understanding of US policy was that it represented a ‘process’ rather than an ‘end game’ toward membership.Footnote ⁹⁹ By necessary inference, the explanation for involvement in criminal justice without formal obligations is that the United States saw itself as enmeshed in transnational legal processes shifting behaviour in line with the international rule of law.

The American Interpretive Gloss on the Crime of Aggression

US policymakers had long pushed for an exclusive UNSC filter over aggression – beginning as early as the 1994 draft statute. The Obama administration reiterated the position from its very first re-engagement with the ASP in late 2009, arguing that ‘jurisdiction should follow a Security Council determination that aggression has occurred’.Footnote ¹¹¹ The outcome of the Kampala negotiations was ultimately a compromise creating two routes for an aggression prosecution. The first was through an exclusive UNSC trigger in the same terms as those governing the existing Rome Statute crimes.Footnote ¹¹² The second route was through the ICC prosecutor’s own motion, where the UNSC failed to take action within a six-month period, but still subject to the existing UNSC power to halt any ICC investigation under Article 16 of the Rome Statute.Footnote ¹¹³ The primary UNSC role over cases of aggression was almost entirely maintained, with only a marginal step taken in the direction of sovereign equality.

The compromise resolution does not support any further inference that participants reached an agreed position on legal principles for guiding the court’s enlarged subject matter jurisdiction. Much of the distance between the United States and other states parties and observers is reflected in what became Annex III to the 2010 amendments, entitled Understandings regarding the Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression (the Understandings). During the Kampala Conference, Koh fixed upon a suggestion from the conference chair to address concerns about the proposed amendments through written ‘understandings’ that placed a gloss on the meaning of draft articles, without disturbing their language. Koh stated: ‘[W]e believe that without agreed-upon understandings, the current draft definition remains flawed’ and that ‘apparent consensus on the wording of Article 8bis masks sharp disagreement on particular points regarding the meaning of that language’.Footnote ¹¹⁴ US absence from a decade of prior negotiations effectively precluded any alteration of an aggression definition ‘locked in stone’,Footnote ¹¹⁵ with the understandings becoming a backdoor means for registering concerns. As a matter of strict legal interpretation, Heller rightly points out that the understandings comprise ‘nothing more than supplementary means of interpretation that the Court would have the right to ignore once the aggression amendments entered into force’.Footnote ¹¹⁶ However, they are valuable as formulations of the divergence in legal views held by American policymakers about the ideal design of the ICC.

Exceptional Humanitarian Responsibilities

Substantive US demands in the Understandings focused on bolstering exclusive UNSC control and on limiting ICC jurisdiction where authority was to be shared. Understanding 2 stated that the ICC could exercise jurisdiction pursuant to a UNSC referral ‘irrespective of whether the State concerned has accepted the Court’s jurisdiction in this regard’. Heller notes that this understanding is unlikely to have ‘any substantive effect’, as it merely mirrors the ‘default position under the Rome Statute’.Footnote ¹¹⁷ However, it does reveal the degree of concern that American policymakers had about any erosion of existing legal privilege.

The more significant assertion of legal principles was in understandings that sought to limit ICC jurisdiction by reference to exceptionalist beliefs, and thereby to reinforce UNSC privileges. A consistent theme when defending the status quo was the exceptional role of the United States in making the system of international criminal law effective. On several occasions, Koh and Rapp framed US opposition to the aggression definition by reference to a line in Obama’s Nobel Lecture: there are ‘times when nations – acting individually or in concert – will find the use of force not only necessary but morally justified’.Footnote ¹¹⁸ The United States argued that the definition, as it then stood, could be used to entrench the principle of non-intervention as an absolute prohibition. That would be the strongest expression of sovereign equality, but, in contrast, it would conflict with any legal conception privileging the liberal equality of natural persons. Koh proposed that the Article 8bis definition of aggression be accompanied by written understandings explicitly protecting ‘those who undertake efforts to prevent war crimes, crimes against humanity or genocide – the very crimes that the Rome Statute is designed to deter’.Footnote ¹¹⁹

The initial draft understanding was phrased to exempt any actions ‘undertaken in connection with an effort to prevent the commission of any of the crimes contained in Articles 6, 7 or 8 of the Statute’.Footnote ¹²⁰ That formulation was rejected by other states, who recognised that, in practice, this amounted to creating special legal rights exercisable primarily by the United States.Footnote ¹²¹ Understanding 6 ultimately read:

The intent behind ‘consequences’ remained exemption of claimed ‘unilateral humanitarian intervention’ from ICC aggression jurisdiction, as exemplified by the United States–backed 1999 NATO intervention in Kosovo. Koh pointed out: ‘Regardless of how states may view the legality of such efforts, those who plan them are not committing the “crime of aggression” and should not run the risk of prosecution.’Footnote ¹²² Responding to a question about the meaning of the ‘international rule of law’, Rapp responded in part that ‘where atrocities are being committed and UNSC approval is not possible, it is possible to proceed with a legitimate action to protect civilians … The Kosovo precedent may be said to have established a new custom, applicable in truly exceptional cases.’Footnote ¹²³ Legalistic negotiations over the scope of the aggression definition never disconnected from consciousness of the history of American global engagement and a specific understanding of how IL facilitated that role.Footnote ¹²⁴

By the end of the Kampala Conference, Koh considered that the ‘final resolution took insufficient account of the Security Council’s assigned role to define aggression’, but that the definition had been narrowed through US efforts. He defended the privileged UNSC role sustained by the resolution by articulating the exceptionalist premise underpinning US policy:

It is here that Koh most explicitly emphasised the substantive beliefs reconciling US legal privilege with a stated commitment to the international rule of law. UNSC privileges presupposed beliefs in both the United States’ capacity to uphold liberal norms without the oversight of sovereign equals and its unique global role in advancing compliance with international criminal law.

Continued Role of Ad Hoc and Hybrid Tribunals

From the very first attendance at the ASP in 2009, the United States opposed any determination of international judicial powers through supranational ICC authority.Footnote ¹⁴⁵ The ‘greatest importance’ was attached not to a globalised court upholding criminal justice but to ‘assisting countries where the rule of law has been shattered to stand up for their own system of protection and accountability’.Footnote ¹⁴⁶ The NSS 2010 reaffirmed that the Obama administration was foremost ‘working to strengthen national justice systems and is maintaining our support for ad hoc international tribunals and hybrid courts’.Footnote ¹⁴⁷ Only secondarily would the administration turn to ‘supporting the ICC’s prosecution’ in a backstopping capacity.

That stance was maintained through the UNSC rule of law meeting, where US policy was distinguished by its primary emphasis on addressing international criminal justice through national justice systems and ‘hybrid structures where appropriate’.Footnote ¹⁴⁸ Even in relation to prosecuting ongoing atrocities in Syria, the United States carefully made clear that it was not ‘prejudging the ultimate venue for it’.Footnote ¹⁴⁹ Rather than seeing an independent ICC as an ideal for international criminal justice, US policymakers instead saw it embedding forms of politics into the law, and ones likely to be foreign to victims of atrocities. The operative principle for determining the integrity of international judicial power remained their grounding in effective democratic checks and balances.

Dividing In Personam ICC Jurisdiction

US support for the court reached new levels of engagement in relation to the 2011 Libyan Civil War when, for the first time, it voted through the UNSC to refer a situation for ICC investigation.Footnote ¹⁵⁰ Yet the resolution equally sought to divide the judicial power presumptively reserved to the court. Consistent with a rejection of formal legal obligations, the resolution was written ‘recognizing that States not party to the Rome Statute have no obligation under the Statute’ while still urging ‘all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor’.Footnote ¹⁵¹ More particularly, the United States denied the institutional separation of international judicial power by preserving the capacity of the US legal system to exercise these powers parallel to the ICC. Substantive clause 6 of the UNSC resolution decided

This replicated limitations in the Darfur referral, which upheld institutional principles other than a separation of international judicial powers. There was no suggestion that the United States was carving out the right for its military personnel to act with impunity, contrary to accusations by some states parties. Rather, the objective was always defended in terms of preserving the jurisdiction of domestic courts and military tribunals to try defendants in such matters.

In response to a question on whether there was any conceivable situation where international judges would be better placed to deal with American nationals, Ambassador Rapp reiterated that it was the United States’ ‘constitutional system that establishes who can be judges and generally these positions are restricted to American citizens’. The clear implication was that there was a hard limit to accepting international judicial power as a continuation of municipal powers. The essence of a liberal nationalist vertical separation of powers is that these remain distinct and not interchangeable in relation to the same subject matter. At the same time, Rapp gave an assurance that the administration would ‘conduct ourselves in terms of our adherence to international law in such a way that we will never give cause to any legitimately motivated prosecutor to bring a case or to seek admission of a case against an American citizen in an international court’.Footnote ¹⁵³ This argument from liberal internationalism is distinct from the first, in seeking to check international judicial powers through the integrity of the American system, as compared to the absolute separation of that system from international powers. By tracing ideological influences, it is clear that the administration thus charted a course rejecting the illiberal principles that shaped the Bush 43 ICC policy, of supremacy of municipal legal power and a bare right to withhold consent, yet also legalism’s supremacy of international judicial power in the ICC.

The Indivisibility of Legalism and the Crime of Aggression

Although the United States maintained a constructive dialogue defining and implementing the crime of aggression, it became clear that its very inclusion in the Rome Statute ran counter to any conception of legal power held by American policymakers. Across a series of statements, Koh and Rapp emphasised that, even apart from actual politicisation of aggression prosecutions, it would be impossible to avoid the apprehension of such bias. Koh warned that any such ICC prosecution ‘by its very nature, even if perfectly defined, would inevitably be seen as political’.Footnote ¹⁵⁴ Moreover, however judicial power was determined, inevitably, ‘someone must make these political judgements’.Footnote ¹⁵⁵ Rapp explained that aggression would take the ICC ‘into the political area’ dealing with ‘crimes not against individual civilians, as in war crimes or crimes against humanity or genocide, but crimes against states’.Footnote ¹⁵⁶ These were not merely criticisms about the design of the ICC but a challenge to the very principle of instituting judicial powers at the global level lacking democratic foundations. US scepticism translated into a policy of maintaining direct and indirect barriers to realising the crime in any meaningful form.Footnote ¹⁵⁷

US policymakers raised an especial concern that inadequate consideration had been given to how complementarity could work in the case of aggression. The nature of the crime was such that political leaders would rarely be prosecuted by their own states, and thus it may fall to other states to do so.Footnote ¹⁵⁸ US policymakers warned that this scenario would contravene basic principles of sovereign immunity by allowing ‘the domestic courts of one country to sit in judgment upon the state acts of other countries in a manner highly unlikely to promote peace and security’.Footnote ¹⁵⁹ Scenarios were envisioned of states circumventing sovereign immunity by claiming that complementarity empowered them to act as agents exercising the independent judicial powers of the ICC.Footnote ¹⁶⁰ Since official state involvement is an element of the crime itself, there was a real risk of adversaries exploiting the crime to engage in ‘lawfare’.Footnote ¹⁶¹ Understanding 5 was thus instituted to directly combat expansive applications of complementarity:

The Understanding contravened legalist principles by effectively denying any exercise of universal jurisdiction by states parties.Footnote ¹⁶² Koh responded, however, that any power to prosecute aggression at the municipal level ‘derives from national jurisdiction’ and not from notionally impartial ICC power. The general rule that a state must consent to another state exercising jurisdiction over its leaders must hold for domestic aggression prosecutions.Footnote ¹⁶³

The eventual outcome of the Kampala negotiations was a compromise between states who opposed a UNSC monopoly on aggression cases and US insistence that it check ICC jurisdiction. The UNSC’s monopoly was loosened by allowing the prosecutor to proceed where the UNSC had declined or failed to act. This minor concession came, however, at the cost of granting the US immunity from all aggression prosecutions for so long as it remained a non-state party, and even as a state party through an opt out provision.Footnote ¹⁶⁴ The agreement transformed ad hoc immunities of non-state parties set out in prior UNSC referrals and enshrined them in the Rome Statute itself. US policymakers had ensured ‘total protection for our Armed Forces and other U.S. nationals going forward’.Footnote ¹⁶⁵ The arrangement was adopted by consensus in the final resolution of the Kampala Conference.

Far from being evidence of a common understanding on the proper legal principles for determining ICC judicial powers, the outcome represented a highly contentious political trade-off. Paulus foresaw the risk of ‘politicization’ if the United States and other UNSC members were granted the power to control ICC judicial independence, but ultimately accepted that legal principle must give way to political expediency. The ideal of ‘complete freedom’ needed to be weighed against the risk that it would endanger the ‘vital support of the P5 for ICC investigations in the first place, and further alienate the United States, in particular’.Footnote ¹⁶⁶ States that had opposed US negotiators throughout the Kampala Conference viewed the agreement as an instrumental concession to political power. Minutes before the final resolution was adopted, Japan intervened to declare as its ‘sad duty’ that compromises within represented ‘the undermining of the credibility of the Rome Statute and the whole system it represents’.Footnote ¹⁶⁷ Throughout the conference, Japan had highlighted its ‘strong belief that the activities of the ICC [contribute] … to the establishment of the rule of law in the international community’.Footnote ¹⁶⁸ Faced with the final resolution, Japan condemned the exclusion of non-states parties and territories from ICC aggression jurisdiction under Article 15bis(5). Such a concession ‘unjustifiably solidifies blanket and automatic impunity of nationals of non-States Parties: a clear departure from the basic tenet of article 12 of the Statute’. The method by which this was incorporated amounted to ‘suicide of legal integrity’. With ‘a heavy heart’, Japan allowed the adoption by consensus, but warned that its future cooperation depended on these concerns being addressed.Footnote ¹⁶⁹