Abstract
This article examines the puzzle of state commitment to the International Criminal Court. It asks why some 100 states would join an international human rights treaty like the ICC treaty which has relatively strong enforcement mechanisms to punish bad and noncompliant behavior. After all, by joining the ICC, states agree that an independent prosecutor may try the state’s own nationals for mass atrocities should the ICC conclude the state is unwilling or unable to do so domestically. Thus, although states regularly join the many international human rights treaties that only require states to self-report compliance, I theorize that states will view the ICC’s enforcement mechanisms as a credible threat and will be more likely to commit only if calculations about the ability to comply with treaty terms show that commitment will not lead to a significant sovereignty loss. In this case, states should consider (1) the strength of the anticipated enforcement mechanism and (2) the state’s ability to comply with the terms of the ICC treaty. I test this argument empirically and find support for the credible threat theory. In contrast to prior studies empirically examining state commitment to international human rights treaties, I find that states with poorer human rights practices are less likely than states with good practices to commit to the ICC. I conclude that although this means that member states tend to have relatively good human rights practices, the ICC and its relatively strong enforcement mechanisms can still positively influence state behavior. Indeed, the ICC is uniquely situated to improve international cooperation on human rights matters since it has been designed so that commitment requires compliance. All states that have joined the court – including those with poor practices – will have to comply or face sovereignty losses.
Highlights
The creation of the International Criminal Court (―ICC‖) on July 1, 2002 was a remarkable event for many reasons
The idea of a permanent international criminal court dates from at least 1948, when the Genocide Convention referenced the possibility of individuals being tried by ―such international penal tribunal as may have jurisdiction.‖1 Shortly thereafter, the International Law Commission (―ILC‖) was tasked with preparing draft statutes for such a permanent court.[2]
Approximately ninety nations are still not parties to the ICC treaty, and some states have ratified less swiftly than others.[22]. Why did these states fail to ratify the Rome Statute or ratify more slowly than others? Given the treaty’s relatively strong enforcement mechanisms, should we expect that states with the worst human rights practices are among the states that have not ratified? After all, for these states, joining international human rights treaties with weak enforcement mechanisms may be in their rational self-interest, but joining the ICC may not be
Summary
The creation of the International Criminal Court (―ICC‖) on July 1, 2002 was a remarkable event for many reasons. States can comply with ICC treaty terms and avoid having their citizens tried in The Hague if they have independent domestic law enforcement institutions that are capable of prosecuting any human rights violations within their own states They want to tie their own hands and limit their ability to commit mass atrocities); Jay Goodliffe & Darren Hawkins, A Funny Thing Happened on the Way to Rome: Explaining International Criminal Court Negotiations, 71 J. The evidence is less conclusive about the role domestic law enforcement institutions play in state ratification decisions, there is evidence showing that democracies are more likely to commit to the court—even the relatively few democracies with poorer human rights practices This finding provides support for the idea that states that already have checks on government power, such as through independent judicial institutions, view commitment to the ICC as less costly. The Article’s conclusion suggests how to structure international treaties so that states perceive them as credible threats to punish bad and noncompliant behavior
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