The Creation and Expansion of the International Criminal Court: A Legal Explanation

International courts have proliferated in the international system in the past century, with one hundred judicial or quasi-judicial bodies currently in existence. While the supply of international courts has increased substantially, state level support for international courts varies across states, across courts, and over time. This paper focuses on the cross-sectional and temporal variation in state level support for a particular court, the International Criminal Court (ICC). The authors argue that domestic legal systems create different predispositions with respect to states’ willingness to join adjudicatory bodies and the design of their commitments to international courts. Negotiators involved in the creation of the ICC pushed for rules and procedures that mimicked those of their domestic legal systems to help reduce uncertainty regarding the court’s future behavior and decision-making processes. This interesting process of legal bargaining led to the creation of a sui generis court, one which represents a mixture of common law and civil law systems. The hybrid nature of the court’s design enhanced the attractiveness of the court to civil and common law states, making them significantly more likely to sign and ratify the Rome Statute. Empirical models demonstrate that common and civil law states were fervent supporters of the ICC in preliminary negotiations and that they have shown higher levels of support for the Court since the ICC’s inception in comparison to Islamic law or mixed law states. ∗ Paper prepared for the Midwest Political Science Association Conference, Chicago, IL, April, 3-6, 2008. We thank Beth Simmons for sharing her data on the ICC. We also thank Brandon Prins for his thoughtful comments. “Politics is driven by normative as well as material concerns (...); law is both a product of – and constitutive of – this multifaceted politics” (Wippman 2004: 155). International courts have proliferated significantly in the international system, growing from only a handful of courts a century ago, to over one hundred judicial or quasi-judicial bodies today (Raustiala and Slaughter 2004; Romano 2006). The mounting presence of international courts reflects a more general dynamic process towards global legalization (Goldstein et al. 2001), the expansion of transnational law (Koh 1997), and a blurring distinction between public and private law (Cutler 1997). This two level legal game has been documented clearly in the case of the European Court of Justice (ECJ), where judgments rendered at the supranational level have altered the domestic law of European Union member states (Burley and Mattli 1993). It is also manifest in the proliferation of human rights courts, which go beyond the positivist tradition of giving standing to states only in international courts, and recognize the rights of individuals to bring cases forward. The International Criminal Court (ICC), created by the Rome Statute in 1998, not only exemplifies the process of global legalization, it also points to the strong connection between domestic and international law. ICC negotiators pushed for rules and procedures that were familiar to them based on their domestic legal backgrounds, which resulted in the creation of a sui generis international court, an interesting compromise between common law and civil law principles. This design process was not only rational from the perspective of the court’s supporters, it also had unintended consequences, in that states considering whether to join the ICC at a later date would be influenced by the original design of the court. This nexus of domestic and international law is certainly not new; all international courts are created via interstate bargaining processes that reflect the political and legal preferences of their originators.