Making and breaking the rules

Many see the dispute between the USA and Europe over the jurisdiction of the new International Criminal Court (ICC) as fundamental to the future of international law.

According to Guardian columnists Oliver Burkeman and Richard Norton-Taylor, ‘At the root of the disagreement is a bigger philosophical dispute about the very notion of a single international framework of justice applicable to all’ (1).

The US government is seeking immunity from ICC jurisdiction, for its ‘peacekeeping’ forces around the world. The US airforce bombing of a wedding party in southern Afghanistan on 1 July 2002, which reportedly killed up to 30 civilians, demonstrates why this is an issue (2). Washington is no doubt right to argue that, in the unlikely event that the ICC would ever treat all states equally, the USA’s self-appointed role as world policeman would put its troops at high risk of prosecution.

It is difficult – some might argue impossible – to wage war without running the risk of being accused of committing war crimes. The new international court’s vague definition of a war crime, and the ambiguous relationship it establishes between international and domestic jurisdictions, means that Washington is loath to risk the possibility of ICC involvement in US foreign policy. The US establishment argues that, because the USA ultimately enforces international law, legally restricting its ability to do so by making US troops subject to the vagaries of the ICC makes little sense.

Britain and France, America’s traditional allies on the UN Security Council, both support the establishment of the ICC and have condemned Washington’s unwillingness to accept ICC jurisdiction. This clash came to a head in early July 2002, when the USA vetoed a regular UN Security Council extension to the UN peacekeeping mission in Bosnia, throwing into doubt the future of UN-mandated peace missions.

However, the dispute between the USA and Europe has little to do with philosophical disputes over international law. It is merely the latest in a series of clashes as the bipolar (West v East) Cold War institutional framework is reshaped by the pressures of today’s unipolar (USA rules) world.

European states, used to sharing the top table in Cold War institutions, are keen to develop new institutional ties, while Washington favours increasingly ad hoc arrangements. From both sides of the Atlantic, governments pressed for a reform of the post-1945 UN Charter international regulatory framework, justified in the language of ethical foreign policy, human rights and liberal internationalism.

As long as the Europeans were included in new ad hoc arrangements for ‘coalitions of the willing’, like the Contact Group, the Peace Implementation Council and the Balkan Stability Pact, there was little opposition to the downgrading of formally constituted international bodies. The shift to a more informal policy structure also took place within international institutions – for example, by loosening the ties of the UN or NATO Charters. Temporarily, it appeared as if both European and US aspirations could be satisfied through the consensus built around the liberal international project.

This fiction of a liberal international project – the idea that the formal legal and political bonds of international society were being strengthened rather than dismantled – appeared most convincing with the creation of the tribunals for war crimes in former Yugoslavia and Rwanda. Here it seemed that international law was being institutionalised when, with hindsight, it is clear that international law was being recast on the basis of ‘might makes right’, where Western powers sit in judgement on Africa and the Balkans.

The disagreement between the USA and the EU shows that the ‘justice’ of the ICC will be just as selective. The British government argues that the importance of the new court is in legitimising intervention by ‘coalitions of the willing’, suggesting that the court’s attentions will be focused, not on Western ‘peacekeeping’, but on the ‘armed conflict’ of other powers.

The ICC statute itself suggests that the new court will not treat like cases in a like manner. The court’s mandate will be restricted to jurisdiction over situations where the national judicial system is held to be ‘unable or unwilling’ to try the case. The international judiciary is unlikely to find against Western governments, and even less likely to be able to instigate any action against them. But they won’t need much prompting to question the ability or willingness of African or East European states to try alleged war criminals, and will find it much easier to take coercive enforcement action against such states.

Rather than being a legal question, at the heart of the US v Europe quarrel lie the competing Western interests that have shaped the liberal international project. Attempts to formalise international institutional relations, such as the ICC, will inevitably be exposed in the face of US power to ignore formal regulations. The European powers will have to accept the increasingly ad hoc nature of international policy forums, where they will not always have an equal voice.

However, it is a sad irony that the dispute over the international court reveals that both European proponents and US opponents of the ICC share a similar disregard for international law and an opposition to any ‘framework of justice applicable to all’.

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)
  Buy this book from Amazon (UK) or Amazon (USA)




• From Kosovo to Kabul: Human Rights and International Intervention (Pluto Press, 2002)
  Buy this book from Amazon (UK) or Amazon (USA)

And he is the editor of:

• Protecting the Bosnian Peace: Lessons from a Decade of Nation Building (Routledge, 2004)
  Buy this book from Amazon (UK) or Amazon (USA)

Read on:

The king of Bosnia, by David Chandler, in the Spectator

Human rights trump democracy, by David Chandler

(1) ‘Newborn World Court Fights for Survival’, Oliver Burkeman and Richard Norton-Taylor, Guardian, 1 July 2002

(2) One wedding, many funerals, by Brendan O’Neill