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Drew Cassidy

PS 451

Policy Briefing

2/14/2011

Case # 14

The International Criminal Court: National Interests versus International Norms

1) What are the primary foreign policy issues and questions raised by your topic? Consider

both process and substantive policy issues.

The primary foreign policy issue for the United States that is raised by the creation of the

permanent International Criminal Court has always been in regard to our sovereignty.

 The United States, historically, (especially the Senate) has feared the power of an

international court. This is a current hindrance to any changes that the Obama

administration might consider.

 In the past the U.S. has been shown to only abide by international norms when they

are beneficial to our national interests. This is why the permanent creation of the ICC,

which largely remains outside of U.S. influence, is troublesome to our nation’s view

of sovereignty.

 The United States inability to form the ICC as they saw fit resulted in differences

between the U.S. and its allies, when most of them voted for the creation of the ICC,

and the U.S. opposed it.

 Only seven countries (China, U.S., Israel, Iraq, Libya, Qatar, and Yemen) voted

against the Rome Statute. Since then, the issue of the ICC has been a case U.S.

national interest versus the international norm of the ICC.

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 U.S. national interests have been presented as the idea that the ICC might place

American citizens under wrongful prosecution, because of the United States’ unique

role in “shouldering the burden” of international security.

Examples: Article 43 of the UN Charter shows how the Senate has been reluctant to support

international institutions that could remove their power overseas. It required two

amendments, the Vandenberg and Connally amendments, to ensure Senate support for World

Court’s jurisdiction in 1946. The Connally amendment is especially well known, because it

essentially states that the U.S. will abide by World Court jurisdiction when the U.S. agrees

with it.

2.) Summarize foreign policy history, experience, and controversies thus far. What has been

the operational definition of the national interest with regard to this issue? What strategies

and tactics have been employed in pursuit of the national interest?

American concerns regarding an international court have been an issue since the end of

World War I, but it became especially obvious after World War II.

1. Congress worried in 1945 that the UN Charter, which obligated members to make

available to the Security Council: armed forces, assistance, and facilities, would rob it

of its right to declare war.

2. It took two amendments to ensure Senate support for US acceptance of the

jurisdiction of the World Court in 1946.

i. Vandenberg amendment specified that the court’s jurisdiction wouldn’t

apply to ‘disputes arising under a multilateral treaty, unless: “all parties to

the treaty affected by the decision are also parties to the case before the

court,” and the U.S specially agrees to the jurisdiction, (Carter)

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ii. The Connally Amendment drew the line of the World’s Court obligatory

jurisdiction at “disputes with regard to matters which are essentially within

the domestic jurisdiction of the USA as determined by the US. Essentially,

the United States would obey the World Court when the US agrees with it.

b. U.S. has shown multiple instances of unwillingness to be bound by international

law, but it isn’t the only country to reject the jurisdiction of the World Court.

i. Other instances of the rejection of international norms include the U.S.

and its control of the Panama Canal. Which many felt disregarded

Panama’s sovereignty.

ii. The World Court’s ruling that the U.S. was illegally trying to overthrow

the government of Nicaragua led to the United States withdrawing from

the World Court’s decisions of it actions in Central America for two years.

Recently, George W. Bush declared his decision to cut off military aid to thirty-five

countries that hadn’t signed a bilateral agreement regarding foregoing ICC jurisdiction

over U.S. citizens in their country. Currently, over a hundred countries have signed these

agreements. Bush used this power to negate the power of the ICC in allied nations that

had ratified the Rome Statute. It was a way of illegitimating the jurisdiction of the ICC,

because as of now the U.S. has no say in the actions of the court.

Bush also passed the American Servicemembers’ Protection Act, as set forth by Senator

Helms (who is strongly opposed to the ICC) as an additional safety for our military

against the ICC. The act’s purpose is to shield U.S. military and/or other appointed

officials of the U.S. government from prosecution by any international criminal court that

the U.S. is not a member of.

3.) How is this topic articulated and framed by the Obama administration?
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The Obama administration’s only real approach to the ICC has been to announce the United

States’ support for it in regards to current ongoing investigations. This is a change from the Bush

Administration, who opposed the ICC in all ways. This is a difficult topic for the President to

expect success in, and at this time it appears that President Obama has placed it low on his

agenda of foreign policy.

Obama has currently framed the United States’ national interest in the ICC in the same way as

past administrations, such as Clinton. Obama, like past presidents, fears that the ICC might place

our military and government officials under unjust prosecution in the international arena,

because of our unique international security role. For the time being, Obama appears to be taking

a similar stance to that of Clinton by showing support for the ICC, but not accepting its

jurisdiction over the United States.

4.) Suggest and/or identify policy alternatives from this point on. What is the national interest

with regard to this issue? What direction could and should the US pursue to achieve this goal?

The government’s stance thus far has been to secure our national interests in regards to the

protection of our military and government officials. The U.S. has made it very clear that it is

unwilling to forego its sovereignty in such instances.

A second national interest involved in the issue of the ICC is multilateralism. By denying the

ICC’s jurisdiction over America, the U.S. has caused tension between our allies. At this point the

ICC has essentially become an international norm. This one norm in which the U.S. is not

abiding by and it places us in a unique position with our allies, especially in Europe.

If Obama ever expects to make changes regarding U.S. involvement in the ICC he would have

the difficult task of trying to align our narrow national interests with those of the court, which are

set by the Rome Statute, and most importantly he would have to find a way to gain the support of

the Senate in ratifying the treaty. History has proven that this would be a difficult task.
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Works Cited

Carter, R.G. (2011). Contemporary cases in U.S. foreign policy. Washington, DC: CQ Press.

Coalition for the International Criminal Court. (2011, January). Updates and developments.

Retrieved from http://www.iccnow.org/?mod=courtnews

United Nations. (2002, December). The international criminal court. Retrieved from

http://www.un.org/News/facts/iccfact.htm