The International Criminal Court and the Foreign Policies of the United States

Abstract

ON 6 MAY 2002, AMERICAN PRESIDENT George W. Bush withdrew the United States' signature from the Rome statute of the International Criminal Court (ICC). Three months later, Bush signed the American Servicemembers' Protection Act (ASPA) into law. The ASPA prohibits the United States from cooperating with the ICC and authorizes the president to use all means necessary to free American personnel imprisoned in by the ICC in The Hague. In addition, the ASPA withholds military aid to certain states party to the Rome statute and mandates that the United States negotiate impunity agreements with states party to ensure that American personnel do not fall under the jurisdiction of the ICC when operating on their territory.Given these and other measures, it has become commonplace for members of the international community to accuse the United States of intransigence towards the progress of international criminal law. Indeed, in light of the fact that it played a pivotal role in establishingPhilippe Lagasse is a doctoral student in the department of political science at Carleton University and the recipient of a Canada Graduate Scholarship. The author thanks Joel J. Sokolsky and Norman Hillmer for commenting on drafts of this article. the Nuremberg trials, the Helsinki Accords and the International Criminal Tribunal for the former Yugoslavia (ICTY), it appears that the US is reneging on the principles of international justice it previously championed. Were American foreign policy a consistent enterprise, such an estimation would have merit. What is often overlooked in commentaries on America's troubled relationship with the ICC is the ongoing internal debate within the American foreign policy elite about the worth and significance of the Rome statute. An examination of this debate shows that the United States is a nation of multiple foreign policy traditions, each competing to direct American statecraft. Seen from this vantage point, it is not simply an American debate about a particular treaty or even the pursuit of international justice. Rather, it is an example of fundamental differences within Washington about how the United States relates to the world.This article aims to place the American ICC debate in the context of these various foreign policy traditions. It begins with an overview of the foreign policy traditions identified by Walter McDougall in Promised Land, Crusader State.(1) It is argued that the American ICC debate is waged in the traditions of exceptionalism, unilateralism and Wilsonianism. Next, the article examines how each of these traditions views and has shaped American policy towards the Rome statute. The argument presented is that the United States' ambivalent relationship with international criminal law and the ICC results from not from hypocrisy or self-service, but from the essential philosophical divisions that exist in America's foreign policy traditions.MCDOUGALL'S TRADITIONSAmerica's first foreign policy tradition, exceptionalism, is defined by two principles. First and foremost is the axiomatic notion held by the American founders that their new country was destined to be different and better than others. Yet the uniqueness of the United States in no way implied that Americans were to be saviours. On the contrary, the creed of American exceptionalism is [l]iberty at home, period. Indeed, the aim of American exceptionalism is to protect the republic's foundational vision from alien infringements. Accordingly, the second principle of exceptionalism is an avoidance of the insidious wiles of foreign influence.A derivative of exceptionalism, the unilateralist tradition, compels the United States to act alone in defence of its liberties and national interests. Often confused with isolationism when it has manifested itself in American foreign policy, unilateralism is not equivalent to disinterest in international politics. Instead, unilateralism demands only that the United States be free of entangling alliances. …