The Ongoing Supremacy of American Constitutionalism over the International Criminal Court

As the United States continues to selectively choose how to incorporate international law into its legal system, the ongoing relationship between domestic law and international law remains  ambiguous in nature. International law, a set of global rules established by custom or treaty and recognized by international powers as binding, is separate and distinct from U.S. domestic law, notably because the “binding” aspect of such governance is met with very little enforcement mechanisms that hold sovereign states accountable for their actions. The United States fails to engage with international law and justice in many regards, with a major example being the nation’s abstention from the International Criminal Court (ICC). [1] The ICC is a criminal court that tries individuals for serious and global crimes such as genocide, crimes against humanity, and war crimes. While choosing to not be a member of the ICC isn’t a violation of international law, by remaining out of the ICC, the U.S. greatly undermines its effectiveness and makes the enforcement powers of this international body extremely weak.

The Supreme Court of the United States ensures that when international law passes through the U.S. legal system, it is consistent first and foremost with domestic constitutional values. This foundation rooted in American constitutionalism gives the United States the power to disagree and differ from the actions taken by international tribunals. While the choice of the United States to not participate in the ICC and other international justice systems may seem to be solely based on maintaining national autonomy, it is really underpinned by several factors: the  Supreme Court’s filtering power, its domestic application of international law, and the theory of delegation as applied to U.S. war crimes in Afghanistan.

When engaging with international law, the Supreme Court works to filter policies through domestic constitutional values such as liberty, federalism, and the separation of powers. This filtering power, which allows the U.S. to sometimes circumvent international treaties, is exemplified through the Court’s 2008 ruling in Medellin v. Texas. This cased followed Jose Medellin, a Mexican citizen, who was convicted and sentenced to death for the gang rape and murder of two teenage girls in Houston. According to Article 36 of the Vienna Convention on the Law of Treaties, foreign nationals who are arrested or detained  have the right to notify their consulate “without delay.”[2] Given that Medellin was unable to contact his consulate, he raised a post-conviction challenge in which he called upon a previous ruling by the International Court of Justice (ICJ) and their holding of Article 36 that a foreign national detained for a crime had the right to contact their consulate. [3] This case forced the Supreme Court to confront the question of whether or not the Constitution required state courts to honor treaty obligation of the U.S. by enforcing an ICJ decision. The Texas Court of Criminal Appeals rejected Medellin’s post-conviction challenges, arguing that raising the Vienna Convention after a trial violated the state’s procedural rules. [4] In the end, the Supreme Court ruled that the United States’ obligation to the UN Charter that required compliance with ICJ  judgements was non-self-executing, meaning it had to require legislative implementation before being applied to the courts. [5] The Vienna Convention treaty was therefore not legally binding to state courts because it was not enacted into law by Congress. This case aptly demonstrates the Supreme Court’s filtering as being used by the Court to pick and choose which international treaties it wants to uphold, and thus circumventing international law if it doesn’t comply with federalism and the value of separation of powers. 

In addition to the filtering power of the Court, domestic application of international law is also influenced greatly by the competing interests of  domestic states and federal treaties, as an international treaty’s substantive value is determined by the U.S. Courts when applied to domestic issues. The Supreme Court ruling in Bond v. United States (2014) epitomized this, as this case created a tension between the principles of federalism and individual liberty. After an attempt by a Pennsylvanian women to use toxic chemicals to poison another woman in a domestic dispute, the issue arose as to whether the Chemical Weapons Convention Treaty--a multilateral treaty the United States has signed onto which bans chemical weapons--applied to a domestic state dispute. [6] The Court held that the international statute would not be applied to this case because federal law typically does not intrude on a state’s ability to regulate local matters, respecting the sovereignty of states despite the ability of Congress to legislate and enforce treaties.  In Bond, the Court ruled that Congress must explicitly outline that a treaty should be applied to cases at the state level in order to hold legislative power in that jurisdiction. [7] The domestic application of international law in Bond has further allowed the Court to avoid specifying the constitutional limitations of U.S. engagement with international law. 

Investigating the Supreme Court’s filtering power and domestic application in cases like Medellin and Bond reveals that the United States views international law as secondary to federal and state autonomy. It remains unlikely that the United States will become a signatory to the International Criminal Court in the near future because the Court continues to value federal law above international law in their recent rulings. 

Another key indicator that the United States will not become a signatory to the ICC in the near future is evidenced in the way the country handled the allegation of war crimes in Afghanistan. In November of 2017, the Office of the Prosecutor of the ICC requested to investigate members of U.S. Armed Forces and Central Intelligence Agency for allegedly committing war crimes and crimes against humanity in Afghanistan at and around the time of May in 2003. [8] Afghanistan is a member of the ICC, meaning that it has delegated its power to this court to investigate global crimes. Given that the United States is not a part of the ICC, an independent agreement was signed between Afghanistan and the U.S. which allowed the latter to retain exclusive jurisdiction over its soldiers for crimes committed in Afghan territory. Thus, the ICC-driven investigation was prohibited to proceed due to the jurisdictional conflicts between the ICC and the United States. To even further complicate the matter,  the United States in 2019 revoked the visa of Fatou Bensouda, the ICC prosecutor investigating the country’s alleged war crimes. Secretary of State Mike Pompeo also announced at that time that the U.S. would impose visa restrictions on any individuals directly responsible for an ICC investigation into U.S. personnel. [9] The political response of the United States to the ICC war crimes investigation highlights America’s harbored hostility towards working with international agencies when it comes to investigations and jurisdictional conflicts. 

The Supreme Court’s filtering power over international law demonstrates the United States ability to circumvent treaties it has signed onto, specifically when applying treaty law domestically. The supremacy of American constitutionalism has assumed power over international law, allowing the Court to never fully specify the scope of U.S. engagement with international law. While it may seem innocuous, the ICC’s overall effectiveness is deeply undervalued when powerful nations such as the United States are not signatories. The U.S. hesitation to become a signatory to the ICC will not change unless both the judicial and executive branches agree to delegate specific powers to international courts. Further, this delegation of legal power can only be articulated when the Supreme Court stops circumventing treaties and when the United States agrees to prosecute and investigate global crimes from all sovereign powers. Until then, the power of the ICC and international governance remain very much up to the whims of the world’s superpowers. 

[1] Timothy De Swardt, “Trigger Mechanisms of the International Criminal Court,”Helvidius Group of Columbia University, https://academiccommons.columbia.edu/doi/10.7916/D80G3H40, 1 (2014). 

[2] "Medellin v. Texas." Oyez. Accessed November 18, 2019. https://www.oyez.org/cases/2007/06-984.

[3] id 

[4] Curtis Bradley, “The Supreme Court as a Filter Between International Law and American Constitutionalism,” California Law Review, https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=4344&context=californialawreview, 1573 (2016). 

[5] David Sloss, “Non-Self-Executing Treaties: Exposing a Constitutional Fallacy,” U.C. Davis Law Review, https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1281&context=facpubs, 5 (2002). 

[6] "Bond v. United States." Oyez. Accessed November 18, 2019. https://www.oyez.org/cases/2013/12-158.

[7] Curtis Bradley, “The Supreme Court as a Filter Between International Law and American Constitutionalism,” California Law Review, https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=4344&context=californialawreview, 1571 (2016). 

[8] Monique Cormier, “Can the ICC Exercise Jurisdiction over US Nationals for Crimes Committed in the Afghanistan Situation?” Journal of International Criminal Justice, https://academic.oup.com/jicj/article/16/5/1043/5127272, (2018).

[9] Marlise Simons and Megan Specia, “U.S. Revokes Visa of I.C.C. Prosecutor Pursuing Afghan War Crimes,” The New York Times (2019), online at https://www.nytimes.com/2019/04/05/world/europe/us-icc-prosecutor-afghanistan.html, (visited December 3, 2019).