- Defending the Society of States: Why America Opposes the International Criminal Court and its Vision of World Society
An obviously controversial and novel institution, the International Criminal Court attracts hyperbole from all sides. For United States policymakers during the past fifteen years—remember the Clinton administration was no golden age of ICC policy—the Court has been regarded as either an idealistic but ill-conceived venture or as an outright threat, in the words of one senator following the 1998 Rome Conference, “a monster that must be slain.”
For its many supporters, the ICC is seen as a symbol of post-modern justice, another nail in the coffin of the post-Westphalian order in which states, not individuals, are the primary focus of international law. From this perspective, the ICC offers a litmus test for a nation’s acknowledgment and commitment to this new international legal order. At one pole is the view of the ICC as an illegitimate and improper incursion on the right of states to judge violations of international law committed by its citizens. At the other pole is the modern view that dismisses the territorial imperative of international criminal law because every country, indeed, every person in every country, has an interest in prosecutions of the world’s worst crimes.
Until the ICC actually began functioning in Summer 2002, the pro-ICC and anti-ICC perspectives were fairly well defined. These perspectives and their bases are the subject of Jason Ralph’s book Defending the Society of States: Why America Opposes the International Criminal Court and its Vision of World Society. Ralph, like many observers of [End Page 809] the Court, regards the Court as an innovation; a symbol of all that has changed in international relations and the harbinger of a brave new world where “the state” no longer dominates but is instead regarded as a relic. Ralph then contrasts this perspective with what he sees as the opposite pole: US foreign policy.
The lens through which Ralph presents US policy toward the Court is the English School of international relations theory. As Ralph explains, the central idea of English School theorists is the notion that the structural reality of international relations is the “society of states.” Ralph points to Hedley Bull’s The Anarchical Society as a critical exposition of the English School. To the extent there is order in world society, it is because states have a shared interest in maintaining order. Each state has the task of making its rules legitimate in order to advance the legitimacy of the state. Anything that threatens the state’s competence is, naturally, unwelcome. Ralph highlights a quote from The Anarchical Society that summarizes the English School’s perspective: “the idea of international society . . . excludes conceptions which assign this political competence to groups other than the state, such as universal authorities above it or sectional groups within it.”
The ICC—which resulted from the efforts of both “universal authorities” and “sectional groups” —would appear to be quite problematic for the English School. Ralph, however, argues for the continuing relevance of English school theory by casting the internal debate as one between pluralism and solidarism. For Ralph, the pluralists bear the mantle of the state-centric approach while the solidarist wing of English school theory is described as more progressive.
Ralph then veers away from the ICC discussion to consider certain international criminal law flashpoints in the context of the pluralist/solidarist distinction. For the pluralist, concerned primarily with international order, universal jurisdiction is “undemocratic and even neocolonial.” The Pinochet extradition proceedings by the English courts in 1998 offended pluralists because it undermined the interests of Chile’s national courts. For solidarists, all states have the right to prosecute violations of international criminal law, especially when national courts fail to do so. This divide also arose in the 2002 Yerodia case, in which the International Court of Justice upheld the immunity from prosecution by national courts of a sitting foreign minister of the Democratic...