Institute of Governmental Studies

On December 31, 2000, the last day the Rome Statute creating the ICC was open for signature, President Clinton signed for the United States. The U.S. demanded several conditions to membership, including being allowed to use its U.N. Security Council veto to stop any ICC investigation it opposed. The ICC refused.  President Bush withdrew the U.S. signature and it remains a non-party to-date. Several reasons have been advanced by Congress and successor administrations for not joining.

On March 17, 2023, after an investigation conducted by ICC chief prosecutor Karim Khan, the ICC issued arrest warrants for Vladimir Putin, President of the Russian Federation, and Maria Lvova-Belova, Commissioner for Children’s Rights in the Putin administration.  The charges are War Crimes, namely forced and unlawful deportation and transfer of children from areas of Ukraine occupied by Russia during wartime, across national borders to Russia. Ukraine claims that over 14,700 children have been deported to Russia, with more than 1,000 of them from the port city of Mariupol. A U.S. backed Yale University study found in February of 2018 that Russia at that time held at least 6,000 children in at least 43 facilities as part of a large-scale systematic network.

This is the first time the ICC has charged a head of state who is also a U.N. Security Council member. The ICC does not recognize diplomatic immunity for acts of sitting heads of state.

ICC President Piotr Hofmanski made a video statement which called for the international community to enforce the arrest warrants. U.S. Attorney General Merrick Garland announced specific technical and manpower assistance to Ukraine to conduct its own prosecution of Putin.

President Biden has stated he believes Putin has clearly committed war crimes and the ICC was justified in charging him. But the United States to-date has not yet offered material assistance of any kind to the ICC and has announced no further steps to directly aid or support the ICC in its prosecution.

In light of the Putin arrest warrants, has the time now come for Congress and the Biden Administration to change course? Should it overcome the opposition of the Department of Defense and members of Congress, and remove legislation which limits direct assistance to the ICC? Should the U.S. aid the ICC in its prosecution of Putin as a war criminal? Has the time also come for the United States to take a step further and finally join 123 fellow nations to become an ICC member?

This paper examines the history of war crimes prosecutions and U.S. participation. It reviews the history of ICC prosecutions, conduct of ICC prosecutors, and problems providing adequate redress to victims (especially in Africa). It outlines critics’ objections to the prosecutions, including the Bush, Obama, Trump and Biden Administration reactions. It discusses many new efforts of the Biden Administration in response to the Russian invasion of Ukraine and resulting ICC indictments. 

It then examines current strong arguments in favor and opposed to the U.S. joining the ICC. What are the underlying reasons the U.S. has not joined? Are they still credible?  Do they make sense today in light of the Russian invasion of Ukraine and ICC indictments of Vladimir Putin and Maria Lvova-Belova? Or do new U.S. steps to combat Russian war crimes prove that now there is no need to join the ICC?  Should the U.S. join or proceed on its own? It’s a close call. The paper offers an answer to that difficult question.

A large body of research suggests that immigration policy-making in liberal democracies overlooks most citizens’ preferences most of the time. To support this view, scholars often point to an apparent “disconnect” between the expansionary immigration policies prevailing in most of the West and the heavily exclusionary bent of public opinion. This paper argues that the “disconnect” thesis oversimplifies ordinary citizens’ preferences over immigrant admissions policies in ways that inflate the divergence of public policy from public opinion. It demonstrates that the U.S. public’s abstract preference for less immigration in general coexists with strong majority acceptance of the specific admissions policies that generate most immigration. This seeming inconsistency arises in part because concrete questions about admissions policies evoke stronger humanitarian and economic considerations than the standard, more abstract, gauge of immigration policy preferences does. Citizens by and large do not support rolling back the number of immigrants admitted through family reunification, provisions for refugees, and skills-based visas even when they are made aware that these three admissions categories combined account for nearly all foreigners admitted permanently into the country.

Experimental research has yielded findings that are largely optimistic about the Court’s powers to move public attitudes. But left largely unexplored is whether the Court’s pronouncements simultaneously cause the Court to lose support among those who disagree with it. Here we explore these questions using a two-wave survey experiment with a nationally representative sample of Americans. We find that learning of the Court’s rulings moves opinion toward the Court in an unmistakable fashion in only one out of six cases studied (the decriminalization of same-sex relations in Lawrence v. Texas). More significant, we find strong evidence that unpopular Court rulings result in a loss of legitimacy for the Court—but only among conservatives. Our findings suggest that in contemporary American politics, the persuasive powers of the Court are more limited and the institutional legitimacy of the Court more fragile than implied by previous work.

Scholars and politicians have always fiercely debated on the role of government in the economy. This has shaped the legal frameworks governing the relationship between markets and governments. A key element of these legal frameworks is the antitrust legislation and the focus of this paper is the most remarkable difference between US and EU: State Aid. It is virtually non existent in the former while explicit policy in the latter. While in Europe it became an important issue in the light of the building of a single European market, it has not been a key issue for US antitrust basically because of historical reasons. More specifically, this discussion paper analyzes the impact on regulation of network industries played by the European Court of Justice (ECJ) with its Altmark decision (July 24th 2003), which defined the conditions so that a compensation for public services is not considered state aid. The analysis address specifically on the fourth condition which applies whenever the undertaking is not chosen in a public procurement: compensation needs to be determined by benchmarking the operations of the public service provider against market determined standards. In the last part of this paper we briefly present a case study on the postal sector, where risks for State Aid legislation infringement are likely to arise if universal service cost burdens are to be compensated through public subsidies. We also present a possible way forward that needs to researched to address this issue.