The justice pivot: US international criminal law influence from outside the ICC
Version 2 2024-06-18, 00:16Version 2 2024-06-18, 00:16
Version 1 2017-05-03, 10:18Version 1 2017-05-03, 10:18
journal contribution
posted on 2024-06-18, 00:16authored byCB Mahony
International criminal prosecutions have become more common since 1993,
both domestically and at international courts and tribunals. Where the United
States government is unable to control how and when international criminal law
is enforced, prosecutions may confront realist U.S. self-interest. This Article
considers the extent to which post-Cold War international justice case selection
has become more independent of U.S. pressure, or more captured by it. By
considering both the jurisdictional and functional elements of case selection
independence, I consider changes in U.S. capacity to influence international
criminal law enforcement. This Article examines case selection independence at
the International Criminal Tribunal for the former Yugoslavia, the International
Criminal Tribunal for Rwanda, the Special Court for Sierra Leone and
the International Criminal Court. Drawing on the jurisprudence, literature,
field interviews and experience working in international justice, I observe
increasing capture by state self-interest, entrenchment of U.S. definitional
preferences, emergence of unintended precedent, and a pivot in how and the
extent to which the United States shapes International Criminal Law enforcement.
The research observes a combination of factors affecting U.S. influence,
including shifts in power dynamics between and among weak and powerful
states, increasing state sophistication in international court engagement, a shift in jurisdiction triggering actors and forums, and realist state co-option of norm
entrepreneurs via endearing explanation of independence-diminishing policies.1