Syracuse University SURFACE Dissertations - ALL SURFACE 5-14-2017 Enabling Justice: State Cooperation with the International Criminal Court Franziska Boehme Syracuse University Follow this and additional works at: https://surface.syr.edu/etd Part of the Social and Behavioral Sciences Commons Recommended Citation Boehme, Franziska, "Enabling Justice: State Cooperation with the International Criminal Court" (2017). Dissertations - ALL. 687. https://surface.syr.edu/etd/687 This Dissertation is brought to you for free and open access by the SURFACE at SURFACE. It has been accepted for inclusion in Dissertations - ALL by an authorized administrator of SURFACE. For more information, please contact [email protected]. Abstract This dissertation analyzes state cooperation with the International Criminal Court (ICC, or the Court). State cooperation is the precondition for the Court to bring perpetrators of genocide, war crimes, and crimes against humanity to justice. The Court does not have a police force of its own to enforce its arrest warrants and court requests. Consequently, the ICC depends on the cooperation and assistance of states and international organizations to arrest suspects and facilitate the Court’s work in various ways. Through qualitative methods, including case studies, content analysis, and process tracing, I investigate how states support or undermine the Court’s work through mandatory compliance as well as voluntary cooperation. Based on in-depth case studies of two African ICC states parties—South Africa and Kenya—I develop a new framework to classify states into four types of cooperators (model cooperators, pro forma cooperators, cheap talkers, and non-cooperators) based on whether they engaged in mandatory compliance and/or voluntary cooperation for institution weakening or institution strengthening. While mandatory engagement refers to specific compliance requirements governments take on when they join the Court as states parties, such as complying with court requests, voluntary cooperation refers to support behavior that goes beyond the Rome Statute, such as diplomacy and public statements. In the case study chapters, I trace South Africa and Kenya’s cooperation behavior longitudinally to describe their shifts from model cooperators to pro-forma and non-cooperators and explain these countries’ cooperation behavior in the al-Bashir and Kenyatta court cases. While South Africa failed to arrest Sudanese President Omar al-Bashir when he visited the country in June 2015, the Kenyan government cooperated to some extent with the ICC while also undermining the Court regionally and domestically. I complement these case studies with a content analysis of what states say about the Court at the UN to show how discourse about the ICC has developed over time and what states like and dislike about the Court’s work. I contrast this venue with the African Union’s (AU) position on the Court. While more critical of the ICC, the AU’s focus lies on the Court’s charges against sitting African heads of state rather than the overall portfolio of ICC situations. The dissertation’s findings relate to how states parties cooperate with the ICC and when and why they cooperate. First, I find that states can simultaneously cooperate with the Court while undermining it in other forums. Kenya engaged in a multifaceted strategy that included mandatory cooperation but also diplomacy and statements against the Court. Second, I find that the AU plays an important role as a mediator in the state-ICC relationship. The AU functioned as a forum for ICC-critical African leaders and contributed to the stalling of progress in the al- Bashir case by passing a non-cooperation policy that provided countries with a legal ‘out’ if they did not want to arrest a fellow African leader. Moreover, the organization called repeatedly for the deferral of cases and that sitting heads of state should be immune from prosecution. Third, I find that domestic-level factors help explain cooperation behavior. Most importantly, I argue that governments cooperate with the ICC when their interests are aligned with the Court; cooperation is not forthcoming or is undermined when the interests are misaligned. Moreover, reputation concerns can help explain cooperation decisions. The dissertation contributes to ongoing debates in International Relations (IR) on global governance, transitional justice norms, and compliance with International Law. The cooperation framework that I introduce expands on existing accounts of state cooperation with the ICC by including a wider array of state behaviors. While existing accounts either focus on mandatory cooperation or on political support for the ICC, I combine these behaviors into one framework. Beyond the ICC, this framework has the potential to travel to other international courts and organizations. Second, the crucial role of the AU in the state-ICC nexus challenges common accounts of Global South countries and the AU as weak actors in the international system. In the court cases against sitting heads of state, the AU’s involvement suggests that a regional organization can counteract a global institution’s work and purpose. Thus, when analyzing compliance, we need to expand our focus beyond domestic-level explanations to include regional actors that may impact compliance and create loyalty conflicts for states parties. The longitudinal analyses reveal that states can shift their cooperation behavior over time. This attests to the value added of in-depth case studies for our understanding of the temporal variation of compliance. It complicates existing compliance studies that analyze compliance through ratifications and domestic implementation of international treaties. These studies represent the compliance behavior of countries at a specific point in time but they cannot tell us about the degree to which a state will honor its legal commitment when called on to fulfill a specific task years or decades after the initial commitment. In addition, the empirical chapters add to the second image and second image reversed traditions in IR. On the one hand, the case studies show that these countries’ domestic politics can impact the functioning of an international organization. On the other hand, they contribute to our understanding of the ICC’s impact on domestic politics in South Africa and Kenya. Lastly, the dissertation attests to the formidable hurdles in prosecuting suspects of mass atrocities when those perpetrators are sitting heads of state. When equipped with the resources and powers of office, sitting leaders can easily circumvent international justice and might even be supported by important allies in their endeavors. This casts doubt on more optimistic accounts that posit an increasing trend toward accountability for all perpetrators. ENABLING JUSTICE: STATE COOPERATION WITH THE INTERNATIONAL CRIMINAL COURT By Franziska Boehme B.A., Martin-Luther University Halle-Wittenberg, 2008 M.A., University of Leipzig, 2010 M.A., Syracuse University, 2012 Dissertation Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Political Science Syracuse University June 2017 Copyright © Franziska Boehme 2017 All Rights Reserved Acknowledgments This work benefitted from a wide community of individuals and organizations. I owe gratitude to my dissertation committee members and especially Audie Klotz for her continuous support and encouragement in intellectual and more personal qualms over the past six years. I also thank Hans Peter Schmitz for helping me settle into graduate school at Syracuse University and providing helpful feedback along the way, and I thank Tom Keck, Lamis Abdelaaty, and Seth Jolly for agreeing to be on my committee and for providing comments and feedback. I thank Shana Gadarian for being a role model as a junior female faculty member. I also owe gratitude to the Political Science Department at Syracuse University for allowing me to learn and to find my political science home, and for providing a nurturing and challenging intellectual environment. This work also benefitted immensely from a variety of reading groups, including the Department’s weekly research workshop, Audie’s global governance reading group, and Tom’s law and society reading group. I also thank the staff at the Department for their support in getting paperwork and life on track. Of course, the work also would not have been possible without the support of other graduate students in the Department, many of whom have become dear friends. They were support when hurdles arose, sounding boards for complaints, and fun ‘distractions’ from work. I thank Syracuse University, the Graduate Student Organization, the Political Science Department, the International Studies Association, the National Science Foundation, and the Horowitz Foundation for Social Policy for their generous support for this project. Their support allowed me to live safely and travel to conferences and to research locales. I was fortunate to travel to The Hague, South Africa and Kenya to conduct research and it has enriched this project and my life in many ways. I also want to thank the people closest to me for their support throughout these past six years. I thank close friends in Syracuse, especially Katherine Barnes, Ronit Berger, Eric van der Vort, and Lindsay Burt for sharing their lives with me and spending encouragement and humor when this work seemed too overwhelming. I thank close friends in Germany for staying in touch through regular conference calls