In the latest issue of International Organization, Beth Simmons and Allison Danner examine the puzzle of why states join the International Criminal Court and thereby surrender some control over domestic prosecutions. In particular, they focus on the oddity that both peaceful, high “rule-of-law” states and conflict-prone, low rule-of-law states–those most likely to attract the ICC’s attention–have ratified the Rome Statute in large numbers. Their explanation is that states that have experienced recent conflict are using ICC ratification as a way of signaling (mainly to a domestic audience) their committment to ratchet down violence by, in essence, tying their own hands.
This exposure to prosecution by an independent international institution acts as an implicit promise by governments that they will foreswear particularly heinous military options, and it endows that promise with a credibility that such governments would otherwise lack.
It’s a fascinating conclusion and their argument is well supported. But I wonder if there isn’t an alternative explanation in many cases: that states at high-risk for ICC scrutiny have chosen to “appease” the ICC by joining and, in some cases, even referring themselves to the court (as the Democratic Republic of Congo and Uganda have done) rather than “confront” it by refusing to join. After all, as these countries well know, refusing to ratify the Rome Statute doesn’t immunize them; the Security Council can always expand the ICC’s jurisdiction to cover states not party to the statute, as it has done in the case of Sudan.