Deliberating CFSP: European foreign policy and the International Criminal Court

The International Criminal Court (ICC), which commenced work in The Hague in 2002, is viewed by many as a success story for international governance and the beginning of a new era in international law. It is the first permanent institution able to prosecute severe violations of international humanitarian law in principle in independence of the nation states, and the speed with which the Rome Statute was developed, resolved and came into force was also impressive. Less than ten years passed between the inception of pre-negotiations and the ICC starting work. Some commentators suggest the proactive stance of the European Union, which supported the ICC from the word go, was a reason for this incredible speed. This paper therefore traces EU policy both within negotiations on acceptance of the Statute of Rome and following the latter’s successful adoption, through to the commencement of ICC operations, in order to examine whether the assumption that the EU has pursued a proactive stance is tenable. In this context, we have seen a clear shift in the EU’s stance. While during negotiations it hardly wielded a coherent policy, things changed fundamentally once the Statute was resolved. The fact that this proactive stance endured despite the struggle with the United States over the ICC must be seen in light of the fact that the CFSP is more than just an institutional forum to coordinate EU member states’ interests. The norms and principles that inform CFSP’s goals and strategies, such as democracy, rule of law, fundamental rights, and the CFSP’s procedural norms (e.g., regular consultation) are particularly suited to encourage deliberation among member states strengthening a consensus over time, even if the short-term interests of individual members would seem to suggest that they will leave the consensus position.