IJCentral: International Justice Central

So far this blog series has investigated the US-ICC relationship from a historical perspective.  It has become evident that this relationship has waxed and waned from one of initial engagement, but not acceptance, under the Clinton administration, to belligerency under the first several years of the Bush administration, to a more engaging, almost accepting approach under the latter years of Bush and the early years of the Obama administration.  With these previous historical perspectives as our foundation, we may now ask what policy towards the ICC is most beneficial for the United States.  In other words, what approach to the Court serves the United States’ national interests?  In order to engage this question, it is imperative that we first understand the concept of ‘national interest’ before discussing how US-ICC relations affect it.

Oftentimes the literature and debate on US national interest is characterized as contentious and partisan.  I would argue that the contestation concerning national interest is typically not about what constitutes national interest, but the means by which the United States achieves that interest. Generally speaking, there is a commonality that persists in the debate over national interest; and although some (like Ron Paul’s neo-isolationist agenda) remain opposed to this common notion of national interest, others are united around the idea of perpetuating a global liberal order.  The pursuit of what John G. Ikenberry referred to as a “liberal grand strategy” binds together the seemingly different foreign policy agendas of such administrations as Woodrow Wilson, Harry Truman, John Kennedy, Ronald Reagan, Bill Clinton, George W. Bush and Barack Obama.  What they all have in common is the desire to have American liberal values permeate all areas of the global community.  Such values would include: rational leadership, limited and representative government, freedom and liberty of the individual, and substantive equality among these individuals.  Where they differ, as mentioned above, is in the means by which the US achieves this goal.  Should the United States pursue a liberal institutionalist or multilateral policy, a unilateral approach, interventionist policy, or something altogether different?  But in the end, all administrations are trying to perpetuate the global liberal order because it is within this liberal order that the United States remains hegemonic.

So how does US policy concerning the ICC fit into this national interest debate?  In order to address this question, we must first address whether the ICC is a liberal institution.  If US national interest is bound up in the promotion of a global liberal order, then acceptance of international institutions should in some way be predicated on their relationship to liberal principles.  And one only need read the Rome Statute to realize that the ICC is clearly a liberal institution.  This institution accepts the notion of individual equality, protection and equality before the law, election of authority via democratic means, victims’ rights, rights of the accused, and many other legal-liberal principles.  Aside from the use of bench trials as opposed to trial by a jury of peers, the Rome Statute is complementary to the United States Bill of Rights.  Thus, the liberal nature of the Court is simply unquestionable.  This does not eliminate the issues raised by the United States concerning the Court, as discussed in earlier entries in this series, but it stipulates that the ICC retains many of the liberal principles that are inherent in a liberal global order.

How then should this affect US policy concerning the ICC?  This brings us to the final piece of the puzzle, the notion of hegemony.  As I stated earlier, the liberal order is a fundamental part of US hegemony; but what exactly does this mean?  Hegemony is defined as the ability to control outcomes.  Traditionally, this is discussed in a purely material way—which country has the largest military, most advanced technology, strongest economy, etc.  This form of hegemony, not only in its acquisition but also in a state’s ability to sustain this position, is predicated on a more coercive form of authority.  However, another way to conceive of hegemonic authority is via ideational power.  Some, such as Joseph Nye, discuss this as soft power, or power via consent and acceptance as opposed to domination and control.  The Italian philosopher Antonio Gramsci described this form of authority as “intellectual and moral leadership.”  But no matter what we term this form of hegemony, it remains predicated on an intersubjectively accepted understanding of norms and principles that finds its leadership in a hegemonic nation-state working to perpetuate this system.  Thus, its causal source of power is in aligning one’s interests with those of the global community, not in imposing your will on said community in a coercive manner.

If the United States is the current hegemon, and I believe this is empirically accurate, and the causal source of power is the acceptance of a global liberal order, then how should the US approach the ICC?  Bearing in mind the foundational conception of both ideational hegemony and the liberal nature of the ICC, it seems accurate to claim that an oppositional policy towards the ICC is both hindering the international community’s pursuit of global justice and undermining the current status of American hegemony.  This is due to the liberal nature of the ICC and its contribution to the perpetuation of the global liberal order.  As a result, the United States’ ability to pursue its national interest is also being hindered.  One must recall that the basis of American hegemony throughout much of its history has been the pursuit of an international system that reflects its domestic liberal values.  This pursuit exists in both material power and ideational hegemony, or one predicated on soft power.  Thus, US opposition to the ICC and its mandate appears detrimental to the primary goal of American national interest—the perpetuation of a global liberal order.  The only rational policy recommendation is acceptance of the ICC and its pursuit of global justice.  Any other approach to the Court undermines US power as opposed to sustaining it. 

In making this recommendation, it is important to recognize that such a policy originates from a power-based perspective, not a moral one.  Many of the world’s most pre-eminent legal scholars have drafted supportive documents in favor of US support and/or ratification of the Rome Statute based on morality.  As evidenced by the slow and incremental engagement of the ICC by the United States, it is apparent that this line of rational thinking has not fully permeated the mindset of current policymakers.  Thus, this editorial attempts to speak to government officials in a language they can understand—power.  By opposing the ICC, the United States is failing to support its own liberal agenda.  The result of such action is a loss of ideational influence, a decline in hegemonic status, and a defeat for American national interests—in short, a loss of power.  In order to rectify this situation, the US need not openly embrace the ICC and immediately move towards ratification of the Rome Statute; instead, the US should continue to establish a working relationship with the Court and cease its undermining tactics.  The Obama administration has done well to create such an affable relationship with the Court and needs to continue with this approach.  Only such a policy will serve as a foundation for future participation in liberal institution building and as a result, continued promotion of a liberal world order—both of which serve US national interests.

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Read parts One and Two of the special series on the US and the ICC here.