Discussion: American Exceptionalism and the International Criminal Court

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Discussion: American Exceptionalism and the International Criminal Court
For this section, we will conduct a Senate “Hearing” on the advisability of ratifying the Rome Statutes of the International Criminal Court. The hearing takes place in the spring of 2009, at the initiation of the (Barack) Obama administration. Democrats hold a slim majority in the Senate.
The ICC has now been in existence for more than six years (since 2002). In that time, the court has prosecuted individuals in three cases referred to the prosecutor from States Parties (Uganda, the Democratic Republic of Congo (DRC) and the Central African Republic (CAR). The Prosecutor has also received one referral from the Security Council, regarding the situation in Darfur in Sudan, which is in process as the hearing is underway. The general pattern of “communications” received from the general public has continued to reflect the pattern as of 2007 (see http://www.icc-cpi.int/library/organs/otp/OTP_Update_on_Communications_10_February_2006.pdf). Of particular interest, the prosecutor has thus far declined to investigate complaints against US officials relating to “aggression” against Iraq and US military strategists and officials for civilian casualties in either Iraq or Afghanistan.
Chairman Biden has decided it is important to have a bipartisan hearing, and to that end he has encouraged state department officials from the previous administration, military leaders, and a wide range of non-governmental organizations to participate.
Hearing procedures:
The Hearings begin with Senator Biden opening the meeting, and then an opening statement by President Obama about why she wants the Senate to consider ratification at this time. The Hearings proceed with a combination of short prepared statements, as well as questions (often with interruptions!) by the Members of the Senate Foreign Relations Committee. Senator Biden has the right to recognize persons testifying in any order he wishes. Those testifying should try to respond to the arguments made by other witnesses, where appropriate when they take the floor, but they cannot interrupt. Furthermore, if a previous witness has made the same argument one wanted to make, it should be acknowledged and reinforced but not repeated. The Senators should aggressively seek the information they need to make good public policy. They should ask questions, interrupt and challenge, the witnesses. Senator Biden may “thank” (cut off) a witness if they are not providing relevant information in a concise and persuasive manner, although every witness should be given the opportunity to take the floor at least briefly. The Hearing will last forty minutes. A vote of the Senators present as to whether to send the treaty to the entire Senate will take place at the end of the hearing. Each Senator will justify his/her vote.
After the vote, we will step out of character and discuss briefly how our readings on “American exceptionalism” speak (or not) to this debate. To this end, it might be useful to look at the readings for the last day of lecture (December 18th).

Background Information (everyone should read):
United States policy with respect to the ICC (Clinton I and Bush II):

On shifting attitudes in Washington regarding the ICC:


For your assigned roles, the following provides a starting point to research your respective position. However, please feel to do additional research to formulate a clear position and provide substantive testimony.
Senate foreign relations committee

US Senators:

Joseph Biden (D – Delaware; Chairperson)

Richard Lugar (R – Indiana ; Ranking Minority Member)

Norm Coleman (R – Minnesota)

Barbara Boxer (D – California)

John Kerry (D – Massachusetts)

See information on an earlier hearing:

As members of Congress, it is important to be aware of public opinion with respect to US participation in the ICC.

(See for example http://www.amicc.org/docs/PIPA%20Poll%20May%202006.pdf). But it is also important to be aware that most Americans do not know much about the Court and for most it is hardly a high priority.

President Barack Obama:
It's very hard to pin down Barack Obama's view on the court, because he hasn’t explicitly stated his position. You should research his views on other international agreements and restrictions on U.S. sovereignty to formulate a position on the ICC.


Barack Obama was not in the US Senate at the time 2002 American Service-members Protection Act, which prohibited U.S. cooperation with the ICC, blocked U.S. involvement in U.N. peacekeeping missions unless the UN first exempted American troops from prosecution by the new court, outlawed the provision of U.S. military aid to non-NATO countries that had ratified the ICC treaty (absent a so-called Bilateral Immunity Agreement) and authorized the president to use force to free American service-members or their colleagues if they were ever brought before the tribunal. His primary challenger, Hillary Clinton, did vote for ASPA, while his general election opponent, John McCain, voted against ASPA and the Nethercutt Amendment to the 2004 Foreign Operations Appropriations Act.
Barack Obama has stated that:

"Now that it’s operational, we are learning more and more about how the ICC functions. The court has pursued charges only in cases of the most serious and systematic crimes and it is in America’s interests that these most heinous of criminals, like the perpetrators of the genocide in Darfur, are held accountable. These actions are a credit to the cause of justice and deserve full American support and cooperation. Yet the Court is still young, many questions remain unanswered about the ultimate scope of its activities, and it is premature to commit the U.S. to any course of action at this time."


Testimony from the previous administration:
John Bolton: US State Department -

Lincoln Bloomfield, US State Department: -

Testimony from representatives of the US military (Joint Chiefs of Staff)


Air force



See also:


Testimony from non-governmental Organizations:
The American Bar Association -

Human Rights Watch -


Jerry Fowler – Lawyer’s Committee for Human Rights –

American Heritage Foundation


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