Limits of the ICC

The International Criminal Court (ICC) has been heralded as marking the birth of a new globalised era.

Many have argued that the ICC, established on 1 July 2002, represents the end of sovereignty and the decline of the nation state, and is a new kind of institution to reflect the increasingly universal nature of international society.

However, the continuing rows between the USA and Europe over the court’s jurisdiction call these extravagant claims into question. These conflicts reveal the inequality, rather than the universality, of new rights in the international sphere.

Last month’s stand-off between the USA and Europe on the question of whether the US citizens should be granted legal immunity, paralysed the work of the UN Security Council and was only resolved when the USA was granted a 12-month exemption from ICC prosecution (1). This partial compromise suggests that, in the words of George Orwell, ‘some were more equal than others’ in post-Cold War international law.

Now there is a dispute about the East European states, which have been forced to take sides in the trans-Atlantic row. The USA is seeking to sign bilateral ‘Article 98 agreements’ with the states that have ratified the ICC Rome Treaty. These agreements would ban the state concerned from extraditing US personnel and peacekeepers to The Hague. Those states that refuse to sign can be denied military aid under the provisions of the American Servicemembers Protection Act, recently passed in Congress and signed by President George W Bush.

Considering its dependency on US military assistance, it was hardly surprising that Israel was quick off the mark to sign the agreement. For East European states the breaking of military ties and a diplomatic rift with the USA is the last thing they need. Nevertheless, the only East European country to sign up has been Romania (and the Romanian government is now back-pedalling, claiming that it was intimidated by Washington).

The EU has accused the USA of ‘pressuring’ the East European states, and undermining East European states’ freedom of decision-making. In return, the USA accused the EU of ‘inappropriate’ behaviour, for encouraging East European states not to sign US agreements.

Despite appearances, the EU is hardly the representative of legal univeralism in these disputes – European countries have made promises that Western peacekeepers will in practice be exempt from the ICC. And the attempts by Brussels bureaucrats to argue against US interference in East European government policy are not inspired by the desire to defend the political independence of East European states – instead, they are part of a ‘turf war’ over a region the EU considers as its own ‘backyard’.

The dispute reveals the clear subordination of East European states to the dictates of Washington and Brussels. Romania and other East European states, while not members of the EU, are tied into the EU Accession Process, effectively transferring large areas of government policy-making into the hands of Brussels. Strict measures are laid down for adopting the EU acquis (the set of collective EU legislation that all new member states have to sign up to), including detailed regulations on energy policy and taxation, justice and home affairs, and foreign and security policy.

East European governments have to follow a prescribed framework, overseen by the long-term secondment of EU civil servants through the ‘twinning’ process (2). States not covered by the Accession Process have been subordinated to the EU by the informal mechanisms of the Stability Pact – and through the Stabilisation and Association process, which makes economic and financial aid conditional on the implementation of Brussels’ policy prescriptions (3).

The continuing row between the USA and Europe over the ICC brings into question the assumption that state sovereignty is being replaced by the safeguards of a new set of global institutions. While it is clear that the rights of sovereignty and self-government are being undermined in regions like Eastern Europe – already home to international protectorates of Bosnia and Kosovo – global institutions which institutionalise equal rights remain a pipe-dream.

The overt assertion of Western dominance over other regions cannot be seen as a process towards global equality. In fact, the post-Cold War world is an increasingly hierarchical one. There has been no ‘end of sovereignty’ as such. Instead, just as in the days of Empire, we are seeing the denial of political equality – some states are ‘more sovereign’ than others.

David Chandler is senior lecturer in international relations at the Centre for the Study of Democracy, University of Westminster. He is the author of:

• Constructing Global Civil Society: Morality and Power in International Relations (Palgrave Macmillan, 2004)
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And he is the editor of:

• Protecting the Bosnian Peace: Lessons from a Decade of Nation Building (Routledge, 2004)
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• Rethinking Human Rights: Critical Approaches to International Politics (Palgrave Macmillan, 2002)
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Read on:

Making and breaking the rules, by David Chandler

In defence of sovereignty, by Jon Holbrook

The not-so-new imperialism, by David Chandler

Ripping up the Charter, by David Chandler

(1) See Making and breaking the rules, by David Chandler

(2) See Regular Report on Romania’s Progress towards Accession (.pdf), Commission of the European Communities, Brussels, 13 November 2001, p13

(3) Review of the Stabilisation and Association Process (.pdf) , European Union General Affairs Council Report, IIIc