Why the United States Is So Opposed?
By Paul W. Kahn
By Paul W. Kahn
Introduction
The opposition of the United States to the International Criminal Court appears as either a puzzle or an embarrassment to many of the nation's traditional supporters. A puzzle, because it is not at all obvious why the United States should feel so threatened by this new court. Supporters of the Court point out that there are ample provisions in the Rome Statute designed to protect a mature democracy's capacity to engage in legal self-regulation and self-policing. To raise the specter of an irresponsible prosecutor before the ICC, or of other nations manipulating the Court's jurisdiction for anti-American political purposes, is to create a straw man.
An embarrassment, because the United States appears to be exempting itself from rules of the game that it believes should apply to others. This is singularly inappropriate when the game involves allegations of crimes against humanity, genocide and war crimes. The US claim for special status undermines the very idea of the rule of law as a single, principled normative order to which all are bound. Even worse, it may undermine the great international effort of the last century to subject the use of force to the rule of law. For the United States to take this position is particularly embarrassing, since it, more than any other modern nation-state, has held itself out as committed to and constituted by the rule of law.
Stuck between the puzzle and the embarrassment, friends and allies have few arguments with which to respond when critics offer easy political explanations for the US position. Easiest of all is the claim that US opposition to the Court is based upon a kind of "bad man" view of the new regime of international criminal law. Expecting to violate the rules, the United States wants to exempt itself from their institutional enforcement. After all, no other nation pours comparable resources into a defense establishment. These resources are not being spent for no purpose. The United States pays for its military because it intends to use it as an instrument of national policy: witness Kosovo, Afghanistan, Iraq, and who knows where next. With the deployment of armies come charges of aggression as well as alleged violations of humanitarian law.
The Battle Between Law and Politics
The conflict over the Court today is so intense not because the practical stakes are high, but because the jurisdiction of the Court has become the site for a symbolic battle between law and politics. Supporters of the Court tend to believe that twentieth century politics led to the devastating violence of that century. On their view, politics itself is dangerous; indeed, it is the source of the problem for which the Court is to be the answer. In this new century, the politics of vital national interests should be replaced by the managerial and technocratic sciences of the welfare state, on the one hand, and a regime of universal law, on the other. Both constrict the space that remains open for the traditional politics of nation-states. That space should extend no further than the health and well-being of populations.
The triumph of the West in 1989 is read not as a triumph for one political view over another, but for managerial and administrative science. The new western democracies are to be depoliticized spaces in which government's role is to apply diverse forms of expertise to manage the market and to deal with those problems resistant to market solutions. A state that tends to the well-being of its population domestically - increasing GDP and decreasing morbidity rates - and deals with the rest of the world through transnational institutions and international legal regimes has nothing to fear from this Court. The real sin of the United States is to believe in itself as a political entity, when the new world order is to be an order of law.
There is nothing new in this conflict. Cosmopolitan lawyers have long sought to impose a regime of international law on the use of force; they have long believed that politics should be displaced by bureaucratic management. The 20th century began in much the same way as the 21st - with dreams of law displacing the politics of vital, sovereign interests in a new age of reason.1 International law and international institutions were produced in abundance, including the Hague Conventions and the International Court of Arbitration. After the First World War, the dream took the form of the League of Nations, the Kellogg-Briand Pact, and the Permanent Court of International Justice. The same dream briefly flourished between the end of the Second World War and the start of the Cold War, producing another set of international institutions. Of course, the end of the Cold War reawakens the dream of the end of politics and the age of international law.
Conclusion
Thus, behind the formal dispute over the Rome Statute is a deeper dispute over the character of law, and behind that is an even deeper dispute over the place of sovereignty in the contemporary moment. Post 9/11, these opposing political cultures have been forced into the open, because, in response to a security crisis, nations fall back on to their most ingrained patterns of belief. The United States has responded to the attack in the pattern of the powerful, modern nation-state that it is, while our European allies have, for the most part, responded as post-modern transnational communities. Americans went to war, while Europeans generally appealed to the mechanisms of international law enforcement. The very idea of law operates quite differently in these opposed perspectives. For Americans, the constitutional order was to be defended by the use of force and an ethic of sacrifice; for Europeans, law was the means of dealing with the threat.
The United States is, in its own view, the most successful political project in history. Apart from a cosmopolitan elite, Americans see no reason to give up the faith that has fueled this triumph. There is, however, no reason whatsoever to believe that others will share this faith. There is every reason to doubt that this faith offers a ground for the contemporary exercise of American power abroad with which others will agree. But before anyone can hope to shift American policy, they need to understand the political faith upon which it rests. At the center of that faith is belief in the rule of law as rule by the popular sovereign.
Comments
This is a piece of detailed analysis why US fiercely opposing for the formation of ICC. One can understands that the operation of entire mechanisms are to avoid any kind prosecutions to its citizens as one can sees the War and USA cannot disassociated themselves.
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