The Justice Pivot: U.S. International Criminal Law Influence from outside the Rome Statute

International criminal prosecutions have become more common since 1993, both domestically and at international courts and tribunals. Where the United States government is unable to control how and when international criminal law is enforced, prosecutions may confront realist U.S. self-interest. This Article considers the extent to which post-Cold War international justice case selection has become more independent of U.S. pressure, or more captured by it. By considering both the jurisdictional and functional elements of case selection independence, I consider changes in U.S. capacity to influence international criminal law enforcement. This Article examines case selection independence at the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone and the International Criminal Court. Drawing on the jurisprudence, literature, field interviews and experience working in international justice, I observe increasing capture by state self-interest, entrenchment of U.S. definitional preferences, emergence of unintended precedent, and a pivot in how and the extent to which the United States shapes International Criminal Law enforcement. The research observes a combination of factors affecting U.S. influence, including shifts in power dynamics between and among weak and powerful states, increasing state sophistication in international court engagement, a shift * Dr. Chris Mahony is a Research Fellow at the Centre for International Law Research and Policy where he is engaged in research that expands upon his DPhil thesis examining the trajectory of international criminal justice case selection independence. Dr. Mahony is also a Criminal Justice and Citizen Security Specialist at The World Bank. He holds a DPhil in Politics and an MSc in African Studies from Oxford University. He holds a BCom and an LLB from Otago University. He was previously founding Deputy Director of the New Zealand Centre for Human Rights Law, Policy and Practice at Auckland University and Director of the Witness Evaluation Legacy Project at the Special Court for Sierra Leone where he directed the design of Sierra Leone’s witness protection program. He has advised the U.S. Department of State, the International Criminal Court, the Open Society Initiative, and the International Centre for Transitional Justice. © 2015, Chris Mahony.