Dynamic equilibrium: The evolution of US attitudes toward international criminal courts and tribunals

Abstract

This article examines the seemingly dynamic relationship between the United States and international criminal courts. Its scope is limited to a description of the attitude of the US government toward international criminal courts and tribunals, both at present and historically, and how that attitude has evolved. The article surveys US attitudes toward all of the major international criminal courts created or proposed over the past century. The US attitude is influenced by a range of factors, including such variables as ideological leanings of those in power and the strength of certain personalities (proponents or opponents). The impact of such variables tends to be moderated over time. The survey also reveals certain consistent themes underlying US attitudes toward international criminal courts. One consistent element would appear to be the (un)likelihood of prosecution of US nationals. The US has tended to support international criminal courts where the US government has (or is perceived by US officials to have) a significant degree of control over the court, or where the possibility of prosecution of US nationals is either expressly precluded or otherwise remote. If the US is assured that US nationals will not be prosecuted (or, at least, not without its consent), it will engage in a balancing of interests to determine its level of support or opposition. Ideological leanings will of course colour this balancing of interests and at times define some of those interests. To the extent that an administration's ideological strain in favour of accountability is stronger than its ideological strain opposed to the creation of international authority, the prospect of US support of a given international criminal court increases. © EJIL 2007; all rights reserved.