The Inevitable I.C.C.

The Evolution of International Law and the Inevitable I.C.C.

Whether the current U.S. President desires it or not, the United States should be a member of the International Criminal Court Treaty. Throughout the evolution of international law, it is clear that the power of international bodies extends past the limits that nation-states think they can impose. Two main features of international relations are realism and liberalism. Liberalists understand the organic and evolving nature of international law, yet realists look at the world through myopic lenses that reveal a world in which the nation-state has few limits and international organizations serve as mere functionaries of hegemonic power. This essay will trace the recent history of war crimes, specifically crimes against humanity, and show the evolving nature of international law as well as the need for American participation in the International Criminal Court.

From Napoleon Bonaparte to Enver Pasha, Adolph Hitler and Hideki Tojo something happened to realism’s principal unitary actor. By the time of Slobodan Milošević, limits were put on the power of the leaders of nation-states. What is the balance between the legitimacy of international law and the sovereignty of a nation-state? Traditional realism was best personified by Louis XIV who said “L’etat c’est moi.” From the time of the establishment of the Westphalia System to the Sun King, there was little direct, personal danger as a consequence of one’s conduct of foreign policy. [Indeed, the regicide of Charles II was done at the “be-head-st” of internal struggles, not external conflict.] Look at U.S. President Andrew Jackson. Would the leader of a nation-state today be able to forcibily relocate residents without repercussion in foreign affiars? Jackson’s attitude, which he revealed in his maxim, “To the victors belong the spoils,” is that the president is able to do as he wishes. Even in a constitutionally limited presidency, Jackson thwarted the rule of law (Cherokee v. Georgia) for his own personal desires. The Jacksonian point of view, coupled with Winston Churchill’s world view (“History is written by the victors”), illustrates a perspective in which there is no higher power to answer to beyond the nation-state.
It is not a coincidence then that the only criminal trials were imposed by the existing power; no victorious power subordinated itself to any legal authority. After the American Civil War, it was the victorious North who put Southerners on trial for war crimes at the Andersonville Prison. Yes, the leaders of the French Reign of Terror were put on trial, but it was after they had fallen from political power and were tried by the victorious forces of the Thermidorian Reaction. Over the past hundred years, however, the leaders of nation-states have agreed to international rules of war and humanity. Violaters of these conventions have been put on trial by foreign countries as well as international courts. Thus, liberal philosophies, such as Common Security, have made in-roads to repudiating the traditional beliefs in traditional realism.
Throughout history, there have been laws of war regulating armed conflict. During the Medieval Ages, these laws of war, were thoroughly discussed by Augustine of Hippo and, since then his jus ad bellum et jus in bello (just war and justice in war) has been the basis for European laws of war. The “Just War” theory states that there must be a ‘competent authority’ who decides to go to war. In addition, there must be a “just cause” for the war such as a) “to protect the innocent from unjust attack” b) to restore the rights wrongfully denied and c) to re-establish a just order (O’Brien). Finally, in the just war theory, the war must be conducted with proportional force of ultima ratio.
The most common excuse by a violating nation-state is the term military necessity. For example, during WWI German invasions and “severe” occupation of Belgium, Great Britain accused Germany of violating the rules concerning the treatment of innocents. The Germans, however, argued that their actions were a military necessity; if the Germans had been slowed down in Belgium, then more Germans would have died in France. The debate concerning U.S. President Harry Truman’s decision to use atomic weapons against Japan is similar: had the US not employed the atomic weapons, more Americans would have died in a conventional invasion of the Japanese home islands. The fact that one even questions the one-time Machiavellian powers of nation-states suggests the importance of liberalism in the balancing act between the legitimacy of international law and the sovereignty of a nation-state. One of the cornerstones of liberalism is the “faith in international law and legal instruments” (Mingst, 63). Collective Security Theory is one branch of neoliberalism that took classical liberal theory and retooled it to fix an international system left broken by classical realism. Collective Security is a mix of ideas from Immanuel Kant and Woodrow Wilson. [Collective Security theorists believe that cooperation is both practical and probable. Even if states are only interested in security and self-preservation as realists claim, then collective security theory still works. Indeed, Wilsonian idealism even believed that war is preventable (Mingst, 63). While his idealism was tarnished by the failed Kellogg-Briand Treaty and League of Nations, Collective Security Theory still exists today in the mutual-protection pact of NATO as well as similar bilateral pacts such as the US-Japan agreement.] As such, promulgators of Collective Security Theory, Neoliberal Institutionalists, Complex Interdependence Theory, and even Democratic Peace Theory to an extent, believe in the establishment of international norms. They believe that cooperation emerges from continuous contact (Mingst, 64). Institutions, such as the United Nations, the International Court of Justice, and the International Criminal Court provide a “guaranteed framework of interactions.” These interactions, codified into set agreements “will occur not just only on security issues but on a whole suite of international issues including human rights” and therefore issues of war crimes and crimes against humanity (Mingst, 64).
In discussing war criminals, there are two classifications: “major” war criminals are the leaders of government and high ranking military officials while the enlisted soldiers and low-ranking bureaucrats are referred to as “lesser” war criminals. The most well known precedents for the treatment of major war criminals are Napoleon Bonepart’s exile to Elba (1812) and his subsequent imprisonment on St. Helena (1815) as well as Kaiser Wilhelm II’s asylum in the Netherlands (1919) (Willis, 10).
The First World War was responsible for creating precedents in the punishment of lesser war criminals as well as the diplomatic and legal process of designating responsibility for crimes and atrocities. The first of such war crimes convictions was the decision of a French military court to execute three Germans who had pillaged (Willis, 13). Notice, however, that a) it was a national, not international court and b) the prosecution was by the victorious French over the defeated Germans.
In Britain, the Prime Minister’s Cabinet created the Government Committee on the Treatment By the Enemy of British Prisoners to compile a list of war crimes. It is this committee’s work that not only served as a basis for post-war trials, but also for future war crimes tribunals. Notice again that it is a British committee that is used by the victors to prosecute the defeated Germans. On January 18, 1919, the Commission of the Responsibility of the Authors of the War and the Enforcement of the Penalties was established and it relied heavily on the British committee’s work. The Commission studied, “questions concerning the origins of the war and the culpability for it, offenses against the laws and customs of was in its conduct, and the constitution of a tribunal to try the accused” war criminals (Willis, 68). In the Treaty of Versailles, the victorious Allies gave themselves the right to punish German war criminals, but deferred the trials of 854 Germans to Provisional German Government. These proceeding, known as the Leipzig Trials were considered a failure by the Allies because many Germans were freed or received light sentences (Willis, 113). On the other hand, the precedent was created for trying war criminals and the relative failure of national trials gave greater support for international courts in the future.
In another theater of World War I, the Allies had declared their intention to punish Turkish “war criminals” who were responsible for the massacre of Christian Armenians in 1915. For a plethera of reasons, this failed to happen. Most notably, the Ottoman Empire had ceased to exist and there was less demand to punish a new country, similar to the manner in which German criminals were left to the Provisional German Government (later the Weimar Republic) that had succeeded the Kaiser’s Imperial Germany. Secondly, the victims of the war crimes were subjects of the Ottoman (and later Turkish) nation-state. Did the international body have the right to punish offending states for the treatment of their own populance? Although unanswered, the question was edging closer to the forefront of internatioanl diplomacy.
Woodrow Wilson, the American President who spearheaded the Treaty of Versailles strove to answer this and other questions. In fact, one of Wilson’s Fourteen Points in the treaty called for self-determination, the right of national groups to self-rule (Mingst, 36). But what is the limit to national ambitions? What is the limit to the nation-state’s right to preserve itself in the face of national aspirations by sub-national popluations? As has been mentioned, the Treaty of Versailles called for collective security and the triumph of international law over national-sovereignty. It left the enforcement of the treaty to the League of Nations. The League, while a failure in its attempt to prevent war, raised the profile of international law. It seems that this is a major dividing point in international relations: there are those who support the growing importance, power and responsibilitiy of international law and on the other hand there are those who adhere to the traditional theories of realism that are isolationist and unilateral in nature. Senator Henry Cabot Lodge’s blocking of the Treaty of Versailles used much of the same rhetoric that has been recently used against the International Criminal Court. That is, the “unchecked power” and broad jurisdiction is a threat to American sovereignty (American Journal of International Law, 724).
While the Treaty of Versailles was not ratified by the United States, it was still an early, privotal step in the inception of international law. The critical stage of this larvae-esque development was during and shortly after World War II. After the League of Nations collapsed with the onset of World War II, though, there was little talk of war crimes adjudication until the outcome became more foreseable. By the fall of 1943, Axis power had reached it zenith. The Allied leaders’ Big Three met in the Soviet Union and on November 1, 1943 issued the Moscow Declaration. This document was intended to serve as a stepping stone for future announcements concerning the punishment of Axis war criminals, but became the sole document due to deteriorating relations between the Soviet Union and the other Allies. The Moscow Declaration stated that the lesser war criminals would be tried in national courts and major war criminals would be tried in a manner to be decided by the Allies in the future. [Note again it was Allied prosecution of Axis war criminals that was discussed. Allied powers would still be expected to police their own war criminals.]
The problem from the Western Allies perspective was the tension between a public policy against Axis war criminals, which might have repercussions against Allied prisoners-of-war held by the Axis, and the fear that without a strong war crime policy many might escape to neutral countries in much the same way as Kaiser Wilhelm II had sought refuge in the Netherlands (Kochavi, 520). Meanwhile in the East, the Soviets refused to wait until the end of the war to deal with suspected war criminals. The Soviets held immediate military trials upon the capture of possible war criminals, most notably the Kharkov Trials.
The American government was a microcosm of this international debate. The U.S. Secretary of the Treasury, Henry Morganthau favored the summary execution of German leaders. Henry Stimson, the U.S. Secretary of State/War believed that the war criminals should be publicly tried for crimes of conspiracy and aggression. One might say that Morganthau represented more of a realist position in that he thought the US could act on its own accord in what it viewed its own national interest. Stimpson, on the other hand, could be said to represent to more liberalist tradition because he pushed for international condemnation and prosecution. Stimpson also argued that a fair trial depended on a defendant being charged with a punishable crime, given the opportunity for defense, and tried on evidence by a legitimate judiciary (Stimson, 180). Stimson defended the charge of agression since the Germans had violated the Kellogg-Briand Pact. Therefore, he argued the Nuremburg Trails were not based upon ex post facto laws, but upon the natural evolution of international law.
The Anglo-American Allies now had the beginings of a paradigm for war crimes adjudication. The question was whether the concept would have teeth. The British government proposed a United Nations War Crimes Commission, but they seemed to only want to appease the London-based governments-in-exile (especially the Polish and Czechoslovakian governments) to punish war criminals. There was also mounting pressure from the British and American press to hold the Germans accountable for their actions during the war. Unfortunately for the Anglo-Americans, the UNWCC did not see itself as a tool of appeasement, but as an international body with the opportunity to create new precedents for international law and the future of war. In the terminology of hegemonic stability, the State Department and British Foreign Office took the view that transnationals enitities are beholden to their creators and “thus reflect their interests” (Milner, 4). On the other hand the UNWWC, much like Institutionalists (Keohane, 42) and Regime Theorists (Krasner, 3), see the need for growing, almost self-governing entities that serve functions like “sustained cooperation” among nation-states (Keohane, 50).
The United Nations War Crimes Commission opened its proceedings on January 18, 1944. The UNWCC was composed of seventeen nations: the British Dominions, the European governments-in-exile, Britain and the United States. Although it was, “mandated to ‘investigate and record the evidence of war crimes, identifying where possible the individuals responsible’ and to ‘report to the governments concerned cased in which it appears the evidence may be forthcoming” (Kochavi, 29), the Commission had little to do while the war was still being waged. The Commission was further undermined because the Soviets Union refused membership.
The American representative to the UNWCC, Ambassador Herbert C. Pell, drew the resentment of the U.S. State Department since his appointment had come at the cost of career civil servants. After the UNWCC began its proceedings, the State Department tried to undermine Pell’s credibility and delay his access to certain materials. The fundamental problem that plagued the Commission was the exact definition of the war crimes they were investigating. The Commissioners, including Pell, believed the UNWCC had the responsibility to create new precedents and charge the Germans with the crime of genocide. However, the U.S. State Department and British Foreign Office did not want the Commission to become an author of international law. The emergency appropriations which financed the American mission to the UNWCC expired after one year and the State Department prevented the appropriations from being renewed. Without financial support, Pell left the Commission and the State Department was able to directly control US participation through the embassy in London.
After the removal of Ambassador Pell, the American press publically criticized the State Department and questioned the agenda of the US government. Regardless of the public out-cry, Pell was not reinstated and the Commission became a rubber-stamp of the Allied governments. When the Allies moved into German territories, the UNWCC was finally able to receive first-hand reports and began to document the German war crimes.
The significant legacy of the United Nations War Crimes Commission was that the Nuremburg Court accepted the UNWCC’s arguments and charged the German leaders with genocide. Ultimately, the Axis criminals were charged with 1) initiating a war of aggression 2) violation of neutrality and 3) crimes against humanity which included civilians, commerce, and genocide.

The point is that international law does not belong to any singular nation-state. The career civil servants in both the US State department and the British Foreign Office wanted control of the international investigation and yet, ultimately, the independent commissioner’s view points won out. In the battle between Morganthau and Stimson, it was the international, public trial that won out. In addition, the concept of genocide was added to the lists of war crimes. The term itself was coined in 1943 by Raphael Lemkin. Lemkin himself said that:
“genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups” (Lemkin, 79).

It is worth noting that Lemkin consciously or unconsciously uses the term “national groups.” What are the limits and extensions of this term? Does a ‘national group’ have to have a history of stateship? What of Gypsies who have never been ‘stated’? By Lemkin’s own definition, what of Jews who had no nation-state for two thousand years? Lemkin obviously believes the Nazi atrocities perpetuated against the Jews constitutes genocide and, during those atrocities, there were notable Germans who struggled against the genocide. So much for the single, unitary and principle actor who spoke with one voice for the whole nation-state. Moreover, “the principle of collective security requires that states identify their national interest completely with the preservation of total world order that they stand ready to join in collective action to put down any aggressive threat by any state, against any other state anywhere” and for any reason (Kaufman, 373). This basic call for cooperation is the operating guideline for the United Nations. In its sixty years, the United Nations has only sanctioned military force twice (the Korean Police Action and the Persian Gulf War). In both of those conflicts, the goal was to put down the aggressive threat of the North Koreans and Iraqis toward the South Koreans and Kuwaitis, respectively. In Collective Security, “peace and security are indivisible” (Kaufman, 373).

It is the term “state” that is particularly interesting. Individually, rights are constantly being extended to persons to who they were not offered previously and the definitions of the rights themselves have been extended. What would it mean if one took this trend and applied it to the definition of a ‘state’ instead of a ‘person’? What about dependent states within another state? What about internally recognized states or sub-states? What of stateless persons (like gypsies, aborigines, or Maori)? The evolution of international law, in many ways, extends rights and protection to people and/or groups that otherwise would have no legal status or protection.
Traditional realism presupposes that the leader of a nation-state speaks with one voice for all of the nation-states people. Yet if there is international precedent against genocide and crimes against humnaity and subnational persons identify with the international law in lieu of the national policy, is not the sovereignty of the nation-state limited? The nation-state is constrained by the international law, whether it wants to or not. What’s more, the realist presentation of how a nation-state operates fails when it comes into conflict with international norms of behavior.
Lemkin also successfully campaigned for the defining and forbidding genocide. In 1948, the Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations General Assmbly. The CPPCG defines genocide and makes it a crime, prosecutable under the Rome Statute of the International Criminal Court and the same-titled International Criminal Court that it created. The Convention (in Article II) defines genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: “(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group” (http://en.wikipedia.org/wiki/Genocide).
Unfortunately, there were three problems with the enactment of the CPPCG. First, by UN treaty, a law is only binding after a minimum of twenty nation-states ratify the accord. As a result, the CPPCG did not become international law until January 12, 1951. Secondly, the Soviets successfully blocked the inclusion of political killings in the definition of genocide. The argument had been that a homogenous group may have similar political opinions and thus the execution of such people for their political opinions was also genocide. Finally, there was the issue of the five permanent members of the UN Security Council (those with veto power). Only France and Republic of China (Taiwan) had ratified the convention. In 1954, the USSR ratified and in 1970 the British adopted the measure. A year later, Taiwan was replaced on the Security Council by mainland China, but the People’s Republic of China failed to ratify the agreement until 1983. It could be argued that the British were afraid of the CPPCG being used against them in Northern Ireland or that the Chinese were afraid it would be used against them in Tibet. But what of the United States of America? The US did not ratify until 1988. As a result, the agreement was a toothless tiger while the leading superpower ignored the treaty. It was not until the 1990s -after Pol Pot, Edi Amin, and Jose Efrain Rios Montt left power- did the international law on the crime of genocide begin to be enforced. Even then, the enforcement was delayed without a permanent court.
A further problem in the adjudication of war crimes is that some signatories ratified the accord only with the stipulation that they can not be charged without their own permission, realistically, that they are immune. These nation-states are: Bahrain, Bangledesh, India, Malaysia, the Philippines, Singapore, the United States, Vietnam, Yemen, and Yugoslavia. [Tangentally, isn’t it interesting how the U.S always winds up on these lists with the last countries you would expect? My favorite is the death penalty leaders –China, Saudi Arabia, Iran, Vietnam and the USA.] Perhaps its two sides of the same coin, but 1) how can a nation-state hold another state liable for a crime while holding themselves immune and 2) why would a nation-state respect another which holds itself above the law. Cyprus and Norway even filed legal protests to the self-immunity, but to no avail. This immunity, interestingly, was used by the United States in 1999 when Yugoslavia attempted to charge the United States with genocide against Serbians in the Kosovo War. The Yugoslavian legal manuever seems to justify the warnings of traditional realists that the US is in danger of losing sovereignty. The current American position is perhaps best explained by Stephen J. Hadley, US Deputy National Security Advisor:
The U.S. has a number of serious objections to the International Criminal Court. Among them are the lack of adequate checks and balances on the powers of the ICC prosecutor and judges, and the lack of any effective mechanism to prevent the politicized prosecution of U.S. citizens…Despite these objections, the ICC has now come into being, with many of America’s closest allies as strong supporters. All the USA asks is that its decision – and U.S. sovereignty – be respected. (http://usinfo.state.gov/dhr/Archive_Index/tribunal_threat.html)
This rhetoric is similar to the concept of “sovereign immunity,” yet at the same time international law has been evolving, the Federal government has been inversely losing the right to sovereign immunity. In 1946 the Federal Tort Claims Act allowed limited suits against the United States and, on February 22, 2006, the United States Supreme Court extended that to include even the Postal Service (Dolan v. Postal Service, 2006). If the US government is no longer afraid or protected from lawsuits from the 285 million Americans, by what logic would it make sense to be afraid and necessitate protection from the 192 other countries in the world.
The evolution of war crimes such as genocide is also eerily similar to the slow evolution of the eradication of slavery. In both cases, the international body banned the practices, then the US banned external slavery (i.e., the international slave trade) and finally the US banned internal slavery (i.e., the Thirteenth Amendment to the U.S. Constitution). War crimes, like war itself, might well go the way of slavery (Mueller, http://psweb.sbs.ohio-state.edu/faculty/jmueller/apsa1991.pdf). In retrospect, the delay on bannng slavery is unconscionable; in the future, will history look back at the delay in adopting the CPPCG and ICC and feel it was similarly unconscionable?
The nature of the international system is that it involves the agreement of certain norms. These norms are slowly adopted by nation-state after nation-state. At some point, there is a critical mass, and the norm becomes law. The issue is 1) what happens to the nation-states who resist, even after the point of critical mass and 2) is a law in fact a just law without equal application. Detracters always paint the issue as a loss of national sovereignty to a world government, but the loss, if properly understood is for a greater good and leads to greater security for all. And isn’t security what realists, populists and neoconservatives say that its all about?
The fact of the matter is that the issue is a “fait accompi.” The United States Constitution clearly gives the US Senate ratification power over treaties. That is because, upon ratification, a treaty is the law of the land. Native Americans have successfully argued treaty-law in the courts in the last twenty years. They have received lands, financial annuities, lost interest and hunting rights all through the power of treaty-law. Even the U.S. Supreme Court recognizes the importance of treaty-law and international law. In Roper v Simmons (2005), the United States Supreme Court declared the juvenile death penalty to be unconstitutional (prior to that the US was one of only eight countries that allowed juvinile execution; the others were Iran, Saudi Arabia, Yemen, Nigeria, China, Democrat Republic of Congo, and Pakistan). What is notable about the decision is the USSC’s reference to “the evolving standards of decency that mark the progress of a maturing society” as well as the international consensus and rule of law set forth in the United Nations Convention on the Rights of the Child and the International Covenant on Civil and Political Rights (Roper v Simmons, 2005). In Roper v. Simmons, the conservative-minded court recognized the importance of international law in U.S. law. And, since Marbury v. Madison, the USSC has been held as the final arbiter for legal questions. The Court has spoken. Whether neoconservatives or neorealists want to admit it, the United States is tied to the conventions of international law (Wald, 163). Of course, there are bumps in the road of acceptance. While “Collective Security requires the creation of a legal and structural apparatus capable of giving institutional expression to its basic principles [and] this involves the legal establishment of the prohibition of aggression… and to determine when and against what states sanctions are to be initiated…” and for these penalties to be uniformly enforced, it does not always happen that way (Kaufman, 364). In The U.S. v. Nicaragua (http://www.gwu.edu/~jaysmith/Nicaragua.html), The International Court of Justice found the US guilty of violating international law and ordered the removal of the harbor mines. “It also awarded Nicaragua an unspecified but potentially tremendous level of damages, estimated to be as large as $17 billion” (ibid, Jay Smith). Not only did the US not remove the mines, the US did not pay the award and thus the US violated international law. While there was no punishment for not abiding by international law, it makes it much more difficult for the United States to criticize other nations for not following international law, such as Libya’s lengthy (but recently resolved) handing over the Pan Am bombers and more recently Iran’s flaunting of the Non-Proliferation Treaty and IAEA. Collective Security theory only works, like any law, if it is applied equally to all individual units, whether they be people or nation-states. If the United States wants other countries to follow international law, then the U.S. must follow it even when it is not appealing.
In addition, collective security theory “assumes that states will relinquish sovereignty and freedom of action or inaction to increasing interdependence and the premise of the indivisibility of peace” (http://www.irtheory.com/know.htm). Again, this only works if everyone is on board. Kellogg-Briand was great until the invasion of Poland. Germany exercised its sovereignty and was soundly defeated in World War II. What happened next? Germans were tried in international court for the crime of aggression. The short-term attempt to reclaim a sovereign nation-state’s right to war was universally rebuffed. The fact that Germany had rescinded on the treaty did not make them less liable. The fact that Yugoslavia claimed immunity from prosecution when it ratified the CPPCG did not save former Yugoslavian leader Slobodan Milošević from prosecution for crimes against humanity. The ICC is an expression of international law. The United States signed the treaty. Regardless of U.S. President George W. Bush’s decision to withdraw the US from the treaty, the treaty still exists. Has Bush truly reclaimed American sovereignty as the Germans thought they had, or is he simply highlighting an American double-standard when it comes to adherence to international law?

It is obvious at this point that that power of international bodies extends past the limits that nation-states think they can impose. Without international law there would be no UN War Crimes Commission and no Hague. The diplomatic blindness to the internal issues of nation-states would never have brought Milošević and the Rwandan/Burundian killers to justice. As Inis Claude states, “Collective security implies a general alliance, a universal alliance” (Kaufman, 372). This common ground gives the world community a framework without which modern genocidists would have gotten away with their crimes, just as the Turks have thus far evaded responsibility in theirs. Without a permanent criminal court, the world is left with slow-to-form, localized tribunals (like the ICTY and the ICTR) which delay justice and are vulnerable to political interference each step of the way. While realists continue to hide behind straw-soldier arguments like national sovereignty, liberalist traditions have shepherded and pruned accepted forms of state behavior into conventions, treaties and international law. The self-perpetuating momentum which international law has created indicates that there are and there will be limits to nation-state power. The United States has willingly entered into military (NATO) and monetary (Breton Woods) regimes that involve cooperation and integration. Why avoid involvement in legal regimes? The United States must take an active role and position of leadership in the formation and execution of international law. The ICC will happen. The ICC is happening. It is a failure of leadership and international diplomacy for the United States to not be a member-state and active participant in the International Criminal Court.

 

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