Nothing changed after Rome: Continuity in state support for the International Criminal Court

Abstract

Despite significant structural and domestic changes, states’ attitudes toward the International Criminal Court (ICC) have not fundamentally changed since 1998. In her 2021 article, García Iommi identified four levels of support for the adoption of the Rome Statute—Entrepreneurs, Supporters, Accepting States, and Detractors—and argued that a combination of identity and interests explained what category states fell into. Building on this argument, and using a combination of statistical methods and case studies, this article establishes that the aforementioned categories of support constitute a good predictor of support for the ICC today and explains that the reason is that the underlying conditions have not changed. Accordingly, it is unsurprising that countries that endorsed the adoption of the Rome Statute but never championed it (Accepting States) display lower levels of support for the Court than Entrepreneurs and Supporters. This suggests that the difficulties the ICC has faced in Africa, where almost a third of Accepting States are located, could also take place in other regions with Accepting States.

Notes

1 This understanding is often linked both in academia and the media to the perceived biases of the Court against Africa (Austin & Thieme, 2016; Marquand, 2009; Sunga, 2014).

2 For a rationalist account, see Goodliffe and Hawkins (2009).

3 There is no final record of the vote in the Rome Conference. As a proxy for states’ positions, García Iommi (2021) relied on states’ statements, LMG membership, and the list of signatories to establish states’ positions toward the adoption of the Statute.

4 Westerness was operationalized as a combination of a country’s score on liberal democratic values (Freedom House, 2018) and on Christian tradition, measured as percentage of the population that self-identifies as Christian (Cline Center for Democracy, 2013). These proxy indicators were meant to capture a Western view of justice. Western criminal legal systems recognize punishment as the primary means of dealing with transgressions (Wenzel et al., 2008, p. 375), a notion influenced by culture (Garland, 1990), including religion. Indeed, Western thinkers such as Augustine and Kant were deeply influenced by Christianity in their ideas on criminal punishment (Murphy, 2003, p. 262). A liberal emphasis on individual responsibility and procedural fairness is also critical to the Western vision of justice (Fichtelberg, 2006; Robinson, 2013). For a more detailed discussion, see García Iommi (2021, pp. 112–114).

5 Only those countries that participated in the negotiation of the Rome Statute with a population greater than 500,000 people are included in the analysis, because micro-states are inherently different (Iommi, 2021, p. 115). This brings the universe of cases considered to 147 states.

6 States that have not ratified or signed the Rome Statute automatically score 0 on support for the ICC.

7 See the Online Appendix for details on the operationalization of support for the ICC.

8 A comprehensive analysis of public statements on the ICC is beyond the scope of this article, but it would constitute a valuable addition to the operationalization of support for the ICC.

9 Building on Chapman & Chaudoin’s claim that democracies are more likely to ratify the Rome Statute than autocracies (2013), I argue that democracies are also more likely to support the Court because it is in line with their values.

10 The general average value of support for the ICC is 5.88/10.

11 In order to ensure that the determinants of support did not fluctuate over time and then “circle back” to correspond to the initial determinants, I ran my model for 2005, 2010, and 2015 as well. The only variations found were that the under ICC investigation control variable has a positive effect on support for the ICC in 2009 and that proximity to court appears to be significant in 2009 and 2015. The significance of under ICC Investigation in 2009 could speak of states’ efforts to instrumentalize the Court in line the literature (Hashimoto, 2020; Hillebrecht & Strauss, 2017). The influence of this variable is positive, which might be indicative of the weakening pressure the United States exercised on states to not cooperate with the Court (I discussed the softening of the US position in the corresponding case study) in tandem with the affinity between states ideologically close to the United States and the ICC. (The idea that US identity would lead to higher support than actually demonstrated is also discussed in the corresponding case study.) This is not surprising, as the model shows that the variables that impact support are highly stable ones, such as Westerness.

12 The United Kingdom signed the Rome Statute in 2001 and ratified it in 2002. Ratification was not possible earlier because the necessary implementing legislation had to be put in place first, as treaties are not self-executing in the United Kingdom.

13 Article 98(2) of the Rome Statute accommodates SOFAs.

14 In connection with this hypothesis, consider McLaughlin Mitchell and Powell’s (2011) argument regarding states support for international courts as a function of how closely these courts reflect their domestic legal systems.

15 Similarly, Schabas (2004) observed that US opposition to the ICC was linked to it not being under the control of the Security Council.

16 It is worth mentioning that UNSC Resolution 1970 exempted its members from ICC jurisdiction as well as officials and staff involved in related UN operations.

Additional information

Notes on contributors

Lucrecia García Iommi

Lucrecia García Iommi is associate professor of political science at Fairfield University, where she teaches international relations (IR) theory, US foreign policy, and international law. Her research focuses on IR theory, norm dynamics, and global governance. She has published in International Studies Quarterly, International Relations, Global Constitutionalism and Cambridge Review of International Affairs. Most recently, she coedited The United States and international law: Paradoxes of support across contemporary issues (with Richard W. Maass; 2022, University of Michigan Press).