This Article examines U.S. opposition to the International Criminal Court (ICC) as a case study in how domestic and international politics shape discourse against new treaty-based legal obligations. When it comes to the ICC, official U.S. government discourse repeatedly alleges process-oriented shortcomings, particularly procedural due process problems and risks of prosecutorial abuse. This tendency to emphasize process-oriented arguments is borne out in a sample of public documents with dates between February 2001 and February 2003, where U.S. government officials made statements opposing U.S. participation in the ICC. Procedural due process and prosecutorial abuse claims account for about 80% of the lead arguments (i.e., arguments mentioned first in a series and developed in the most detail), and about 62% of the total arguments in the sample.
Just as process arguments about domestic criminal law sometimes masquerade for positions about substantive law, the process arguments against the ICC appear to under-explain the vehemence of U.S. rejection of the court. The ICC’s procedural protections for defendants tend to be comparable to those in the U.S., and it is not obvious that the court’s prosecutor will be free from at least some legal, political, and economic forces that also impact U.S. prosecutors. Conversely, even if the court copiously observed procedural safeguards and the prosecutor only proceeded with the utmost fidelity to the substantive law, the underlying international law the court would enforce would still interfere with unfettered military discretion likely to be valued by a number of U.S. domestic constituencies.
Despite their legalistic pedigree, the process-focused arguments and the underlying rejection of the court by the U.S. government appear to reflect the impact of international and domestic politics. A focus on procedure sounds marginally more principled to international audiences than a brute realist assertion that American interests are best served by keeping unfettered control of military decisions. The process arguments and rejection of the ICC exemplify the sort of discourse that can appeal to members of the public forming opinions about foreign policy that in turn shape more general evaluations of the government. Yet this comes with costs: It elides debate over the value of the brute realist position that American military power should be subject to few meaningful constraints, and instead makes it look like the most important question is about the procedural shortcomings of a court that is precisely meant to address the arbitrariness in international criminal justice that critics use to assail it.