The U.S., Impunity Agreements, and the ICC: Towards the Trial of a Future Henry Kissinger
Guild Practitioner Vol 62, No. 4, Fall 2005
19 Pages Posted: 9 Dec 2013
Date Written: December 7, 2004
To what extent the ICC will succeed in its ambitious task is a question on the minds of many, but it will only be answered many years in the future. This note will attempt to provide insight on one aspect of this question: what effect, if any, the ICC may have upon US. By far the dominant discourse on the subject of the US and the ICC has focused on the US government's proffered reasons for its anti-ICC stance, and whether the so-called “Article 98 agreements" the US has been signing with dozens of other countries are “legal" or not. This author's position is that US government objections to the ICC are mere procedural fig leaves to cover a substantive dispute the US government fears would not sit well domestically or internationally. Furthermore, the question of the “legality" of Article 98 agreements is moot without a discussion of the US government's motives in signing them - since in a Legal Realist sense “legality" is the equivalent of effectiveness, and how effective these agreements will prove to be is determined by the extent to which the US government is willing and able to ensure their enforcement. This note will argue that the US government will have an uphill battle to fight should the legality of its Article 98 agreements ever be called into question by a trying circumstance. However, since the motivation behind these agreements goes to the very core of current US government values, namely what it perceives as US sovereignty, by hook or by crook these Article 98 agreements may yet achieve their desired effect.
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