The US and International Criminal Justice

I. Introduction

George Kennan and others have made much of an alleged legal strain in US thinking about foreign policy. ¹ In contemporary times the United States (US) has carefully dissected the Rome Statute that would create an International Criminal Court (ICC) and vigorously objected to various parts of it. ² These US legal arguments about international criminal justice, however, are embedded in cultural and power considerations far deeper than the particular legal arguments against the ICC that have been subjected to so much analysis by lawyers. The twin reality of US exceptionalism and US commitment to power politics remains essential to the US orientation to the ICC and other forms of international criminal justice. Precise legal arguments are but the superstructure of this enduring fundamental reality.

II. US Exceptionalism

US exceptionalism is alive and well at the start of the twenty-first century, comprising one of the two deep reasons informing US opposition to the ICC. ³ That the US saw itself as a city on a hill, a beacon to others, was well known prior to the Ronald Reagan era that epitomized this cultural trait. ⁴ From the founding of the republic, the dominant self-image was of a good and great people, divinely inspired to lead the world—by example at home or activism abroad—to greater respect for personal freedom. ⁵ The US constitution and its bill of rights symbolized this superior commitment. As such, US law was not to be trumped by any international law to the contrary. In the words of contemporary constructivist theorists of international relations, the identity of the US was constructed "from below" on the basis of domestic factors. It was not constructed "from above" on the basis of international law negotiated from many national experiences. ⁶ While some states—e.g., Hungary—manifest a constitution that gives clear primacy to international law, the US does not. Hungary, fearful of the lessons of its own past, wanted to bind itself firmly to the human rights guarantees of international law. ⁷ The US, supremely confident of its past as selectively remembered, has recently accentuated its commitment to the supremacy of national over international law. ⁸ Some prominent recent practitioners of US foreign policy, with an eye on the growing emphasis on international human rights and criminal justice, even state that treaties are not legally binding, not really law. ⁹

US exceptionalism as a cultural phenomenon is broadly and especially evident in US approaches to internationally recognized human rights. The US preaches universalism, but it practices national particularity and cultural relativism. ¹⁰ The dominant view in Washington is that real human rights come from US experience and are then exported to the rest of the world. ¹¹ The US never intentionally accepts internationally recognized human rights that cause the US to change its domestic laws and policies on human rights. ¹² The rest of the world may say that there should be international standards to protect the rights of the child, but the US persists in its isolated position (along with Somalia, which lacks a functioning central government) in rejecting the treaty on the subject.

Washington's preference for the supremacy of national policy making was true in the 1940s when human rights became part of routinized international relations, and remains true to this day. The US wanted human rights language in the UN Charter but, especially aware of its legally sanctioned racial discrimination, resisted efforts to make that language more precise and judicially enforceable. The same view explains US leadership for the 1948 Universal Declaration of Human Rights as a statement of aspirations rather than binding norms. ¹³ It is well known that either the US does not accept human rights treaties that do not fit with US culture—e.g., the International Covenant on Economic, Social, or Cultural Rights, or attaches reservations by whatever name to those treaties it does accept so as to ensure that no domestic changes...