The Onset of Global Governance

International Relations Theory and the International Criminal Court

Eric K. Leonard

• Publisher: Routledge
• Year: 2017
• Print ISBN:
  9780754645313
• eBook ISBN:
  9781351884686
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

Assessing the formation process of the International Criminal Court (ICC), this study provides a fuller and richer understanding of this institution. It does so by adopting three analytical approaches: neoliberal institutionalism, regime theory and global governance. Examining the implications of the ICC, the volume draws conclusions about the changing nature of world politics in terms of conflict management, authority, governance and actor relevance. It is highly suitable for courses and research in humanitarian and international law, international relations theory, globalization, global governance and regime formation.

Chapter 1
The Need for Analysis

Trials never end, of course. Unhappiness and misfortune are bound to occur as long as people live, but there is a feeling now, that was not here before, and is not just on the surface of things, but penetrates all the way through: We’ve won it. It’s going to get better now. You can sort of tell these things.

Robert M. Pirsig¹

Introduction

In his 1993 article, Stephen Krasner, reflecting a mainstream neorealist understanding of international relations, asserts that the confrontation between state sovereignty and human rights makes the formation of a viable human rights regime unlikely. According to Krasner, “States have been reluctant to accuse other states of human rights violations because of the danger that their own sovereign control would be undermined.”²

As a result of this statement, one could presume that Krasner regards the establishment of a permanent international criminal court as problematic, subject to manipulation by certain states, and simply an implausible solution to violations of humanitarian law. According to Krasner, nation-states will not relinquish their sovereignty to a transnational court and in regards to the issue of humanitarian law states will continue to set the agenda. From this perspective, the establishment of a permanent international human rights regime is unlikely because it challenges the core constitutive principle of the global system—that is state sovereignty.

Counter to Krasner’s argument is the current reality surrounding the establishment of a permanent International Criminal Court (ICC). At the time of writing this text, the Rome Statute for an International Criminal Court has one hundred and thirty-seven signatories and ninety-nine ratifying states.³ The establishment of such an institution creates a tension in which either Krasner’s depiction of humanitarian law as an issue-area is incorrect or the mainstream understanding of international relations is inadequate, or both. Thus, the central research questions contained in this text are as follows: 1) what does the formation of a permanent International Criminal Court represent in terms of governance in the contemporary world? 2) What does this suggest about the way in which international relations scholars analyze world politics?

In addressing these questions, this text will first and foremost assess the formation of the International Criminal Court as established during the Rome Conference. Second, through an analysis of this case and its formation process, I will draw some conclusions about the changing nature of world politics in terms of the primacy of state actors, authority, governance, and norm construction.

In order to accomplish these goals, this text will analyze the ICC formation process from three different analytical approaches: neoliberal institutionalism, regime theory, and global governance. This method of analysis provides my audience with three different readings of the ICC, thus revealing different aspects of this case. The primary purpose of this exercise is not to test the different perspectives in order to ascertain the “best” one, but to employ these three different perspectives in order to ascertain a fuller and richer understanding of this novel institution. With that said, it would be naïve of me to think that this method does not provide any test of these perspectives and their relevancy. By employing them to understand the formation of the ICC, I am judging their ability to understand this particular case. Thus, a secondary accomplishment of this discourse is an elementary form of theory testing at least as these perspectives pertain to this case and this issue-area.

The Current Global Context

During the 1980s and 1990s, theorists recognized that something deeper was happening, something more fundamental than a mere interconnectedness among states and between states and individuals…Spurred by technological change and the globalization of economic life, the state is challenged, its sovereignty undermined and constrained, its structures unable to provide the necessary public goods.⁴

No longer is the world organized into a set of discrete sovereign states exercising a large (though never complete) degree of control over their domestic economies. Globalizing patterns add new complexity to what is quaintly called international relations; they transcend, blur, and even redefine territorial boundaries.⁵

These two statements succinctly capture the changing nature of the current global system. The system is no longer constructed solely of Westphalian polities, but is instead a system of multiple actors concerned with multiple issues. As the Commission on Global Governance stated:

What is new today is that the interdependence of nations is wider and deeper. What is also new is the role of people and the shift of focus from states to people. An aspect of this change is the growth of international civil society. These changes call for reforms in the modes of international cooperation…⁶

The common term for this transformative process is globalization. One could assert that the past two decades have entailed an intensification of this globalization process. Therefore, it is necessary to begin this text with a brief analysis of the globalization process in order to understand the environment within which the ICC is forming.

Martin Shaw defines globalization as: “[a] complex set of distinct but related processes—economic, cultural, social and also political and military—through which social relations have developed toward a global scale and with global reach, over a long historical period.”⁷

Arguably, the intensification of this process over the past decades has initiated a global system in which the interaction between actors has also intensified, along with an increase in the actual number of influential actors.⁸ The global system now consists of not only states, but also non-state actors who are operating in and across a system of culturally and economically permeable boundaries. As a result, a multiplicity of actors, including, but not limited to nation-states, appear to be embodying the idea of international authority and the level of interdependence between actors and issues appears on the rise. It is from this type of environment that the formation of an ICC becomes plausible.

This brief description of the current global context is crucial because globalization is not simply about the rise of transnational entities and the interdependence of states. Globalization is also a process of localization that often takes the form of ethnic violence and the reassertion of “nested polities.”⁹ James Rosenau terms this process “fragmegration”, in order to capture the fragmenting and integrating aspects of globalization. Because the ICC is a transnational entity that deals with the results of the fragmentation of nation-states and the localization of international politics, one could argue that the ICC is an institution that arose in part from this fragmegration process. The need for such an institution appears to stem from the increased rise in intra-state violence and the rise in prominence of ethnic, religious, and cultural polities across the globe.¹⁰ These issues have always been at play in global politics, but now appear more prominent in the eyes of both decision-makers and scholars. The approval of the Rome Statute captures the prominence of these issues and exemplifies the importance of this case in light of the current global order.

Importance of the International Criminal Court

On April 11, 2002, a group of state representatives, along with a coalition of nongovernmental organizations (CICC), International Criminal Court supporters, and media personnel, gathered at the United Nations headquarters in New York. The purpose of this gathering was to celebrate the establishment of a permanent International Criminal Court. At this event, the Rome Statute for an International Criminal Court received its sixtieth ratification, establishing it as a functioning organization. For many states, non-governmental organizations (NGOs), and other human rights advocates, this marked a joyous moment in the struggle to uphold international humanitarian law and the principles of global justice. As Persig’s epigram at the beginning of this chapter describes, there is a feeling amongst advocates of an ICC that things are getting better and that advances are occurring in the fight for global justice.

The fight to construct an International Criminal Court is not simply the product of the past fifteen years and all its turmoil. The international community first discussed the idea of a permanent international criminal court after World War I with the unsuccessful attempt to establish an international tribunal on war crimes. After World War II, the victorious governments established the Nuremberg and Tokyo war crime tribunals, thus setting the precedent for an international criminal court. In 1948, many members of the United Nations General Assembly called specifically for the establishment of an international criminal court, but in 1954 the UN abandoned this effort due to strong opposition from the world’s most powerful states. It was not until 1989 that Trinidad and Tobago re-introduced the idea of forming an ICC. At that time, the United Nations General Assembly requested that the International Law Commission (ILC) prepare a draft statute on the ICC. In 1994, the ILC submitted its final draft statute and the General Assembly recommended that a conference convene to try to negotiate a treaty that would enact an ICC. From this process the Rome Statute was born and the resultant ICC gained international legitimacy.¹¹

The establishment of a permanent International Criminal Court is an important and novel development in contemporary international relations for several reasons. First, as stated earlier, the formation of an International Criminal Court institutionalizes important elements of the international human rights regime. More specifically, it results in the protection of individuals against the crime of genocide, crimes against humanity, war crimes, and crimes of aggression.¹² In the past, certain countries and institutions have offered protection against some of these crimes. The post-World War II Nuremberg and Tokyo international military tribunals, the 1948 Genocide Convention, the 1948 Universal Declaration of Human Rights, the International Court of Justice, and the ad hoc tribunals for the former Yugoslavia and Rwanda each represent attempts to institutionalize, to some extent, the human rights regime. However, none of these institutions and/or conventions provides for the same protections found in the Rome Statute.

Second, the formation of the ICC is an important and novel development in international relations because of the court’s a priori presumptive authority to act. Along with this, the Rome Statute holds individuals responsible for their actions. This premise of individual responsibility allows the ICC to accept cases that are beyond the scope of the International Court of Justice (ICJ).¹³ Finally, the ability of the prosecutor to initiate an investigation proprio motu is crucial because of the independence that this will grant the court.¹⁴ Simply put, no other convention, declaration or institution has had the legal authority to uphold humanitarian law as broadly and as fully as this institution. The ICC truly is the institutionalization of an international humanitarian law regime.

Another novel feature of this case is the fact that the establishment of an ICC initiates a global judicial mechanism of the humanitarian law regime that resides outside of the authority of nation-states. Signatories of the Rome Statute are nation-states, and the convention does call for a complementary relationship between the states’ judicial systems and the ICC, but this does not mean that states control the actions of the Court.¹⁵ States play a part, but it is the ICC and its third party arbitration system that has the ability to exercise its authority “on the territory of any State Party and, by special agreement, on the territory of any other State.”¹⁶ Therefore, the ICC appears to be an example of transnat...

Table of contents

• Cover
• Half Title
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• List of Abbreviations
• 1 The Need for Analysis
• 2 Historical Rise of the ICC
• 3 The Rome Statute
• 4 Mainstream Cooperation Theory
• 5 The Primacy of the State
• 6 Making Sense of Regime Theory
• 7 Complexity Leads to Understanding
• 8 What is Global Governance?
• 9 The ICC and the Future of Global Governance
• 10 Conclusion
• Appendix
• Bibliography
• Index