Defining strategic argumentation

Arguing is central to political life in both domestic and international societies. I employ a common sense definition of arguing as the use of reasons – whether verbal or written – to justify a particular policy to a target audience, with the intention of causing these actors to alter their behaviour accordingly. Yet my approach differs from the most common usage in IR by relaxing the assumption that arguing implies a change in the beliefs or opinions of audience members. Scholars of communicative action contend that argumentative rationality is premised on the creation of shared understandings in which actors must be open to changing their own views on the basis of a better argument.Footnote ¹³ Instead, I propose a conception of strategic argumentation in which persuasion and socialisation is not necessary to generate meaningful change in international outcomes. While actors would prefer to change the minds of their target audience – since this would result in a more lasting solution in their favour – in the short term the purpose can be to shift the strategic terrain such that other arguments are no longer sustainable.

In this form of rhetorical contestation, two or more parties present competing claims concerning a purported problem and a policy solution that follows from their framing. The goal is to deploy arguments that are acceptable to the wider audience of participating actors and in that way deny the opposing claimant(s) equally suitable rhetorical grounds for continuing the debate. Hence, ‘winning’ an argument on these terms does not require a fundamental shift in actor identities or preferences, but can more simply be achieved if the other side determines that it is no longer worth continuing the contest, and alters its behaviour in order to meet the demands of its interlocutor. The ‘losing’ side may not have been persuaded of the validity of its opponent's argument, but acquiesces to the policy demand so as to avoid audience sanctions or the sheer cost of further argumentation.Footnote ¹⁴

My account is closely related to existing conceptions of ‘rhetorical action’ and ‘rhetorical coercion,’,Footnote ¹⁵ though I prefer the term strategic argumentation. This retains the focus on the deliberate and self-interested use of language to achieve policy goals, and does not seek to account for changes in cognitive beliefs of states, bureaucratic organisations, or individual human subjects. At the same time, the explicit reference to arguing draws attention to the salience of principled claims at the root of strategic action. Argumentation – whether meeting the conditions of genuine deliberation or not – is based in factual statements about how the world works, or normative claims concerning what should be done. It is also interactive, as members of the target audience will respond with their own reasoned claims. Legitimate international authority is ultimately sustained as much by intersubjective justification as by the raw application of force. The present account thus shares the assumption of communicative action that the valorisation of reasoned claims leads to a diminishment of material power resources that characterise bargaining and coercion.Footnote ¹⁶ And while argumentation assumes that all aspects of discourse are open to contestation, the ability to advance claims, and respond to those proposed by others, requires at least some minimum degree of stability in the underlying social structure. The meaning of social norms and legal rules is never fully solidified, though to the extent that they bear upon actors at a particular moment in time, institutions may be studied as effectively fixed entities.Footnote ¹⁷

For these reasons, the public language of diplomacy is causally significant for outcomes in world politics irrespective of the internal dispositions of subject actors.Footnote ¹⁸ Whether actors are fundamentally transformed by argumentative practices, their actions are conditioned by the social setting in which both calculated use of rhetoric and genuine truth-seeking take place. This insight generates theoretical expectations concerning the consequences of public utterances that can be traced in the empirical record. Both rationalist and constructivist scholars have highlighted potential audience costs when actors violate their own previously articulated standards; these may take the form of material sanctions, or social rewards and punishments tied to status within a community.Footnote ¹⁹ In my account, the deployment of strategic argumentation can lead actors to become rhetorically entrapped by a more effective alternative frame, and concede to the will of their opponent by dropping the argument and revising their behaviour accordingly. Regardless of the motivations, therefore, the credibility and consistency of claims bears upon their reception and the perceived legitimacy of associated policies.

Audience dynamics and the impact of claims

Diplomacy takes place via justificatory discourse, and in this way implicates some audience of other actors in the deployment and reception of claims. This is made explicit in accounts of communicative action, but strategic environments are also underpinned by a social setting in which rhetorical contests can be adjudicated. Instrumental theories of compliance acknowledge that actors reside within a community of similarly-situated others, and that the constitutive norms of this community inform – but do not strictly determine – the self-interested pursuit of policy goals.Footnote ²⁰ More specifically, since meanings in the international system cannot be imposed unilaterally, models of rhetorical action presume that target subjects must accept or reject the proposed arguments.Footnote ²¹ As a practical matter, therefore, actors must be attentive to the content of their claims, and seek to tie their particular appeals to widely-recognised community standards since this will increase the chances of their argument being accepted. Collectively held views concerning the appropriateness of certain discourses and behaviours thus strongly condition and constrain the type of claims that actors may make in legitimating their policies.

Yet this still leaves open the vital question of why some arguments resonate more effectively with an audience. The instrumental accounts surveyed above do not offer much insight into how the specific content of claims should impact upon their reception beyond the general conclusion that the quality of arguments matters. For Frank Schimmelfennig, actors deploy arguments in view of a general ‘standard of legitimacy’ in which the most valid arguments are those that are deemed to most closely adhere to the accepted normative structure of values and beliefs.Footnote ²² Ronald R. Krebs and Patrick Thaddeus Jackson employ a minimal conception in which an argument ‘wins’ when ‘its grounds are socially sustainable – because the audience deems certain rhetorical deployments acceptable and others impermissible’.Footnote ²³ But neither explanation gets to the bottom of the content of these necessary determinations and why certain arguments are judged to be better in the first place – or, to put it differently, what constitutes the prevailing standard of legitimacy which may be acted upon. I contend that we can provide greater precision in accounts of rhetoric and argumentation by drawing attention to the particular role of international law as an authoritative source of claims in the international community of states.

The social structure of international law as a reservoir of legitimacy

Constructivist IR theory has made significant contributions in conceptualising international law as part of a multifaceted social system. In this account, law is not defined by a by a strictly enumerated set of binding rules backed by sanctions – as per rationalist ‘hard law’ approachesFootnote ²⁹ – but rather encompasses a particular mode of practice based in precedent that generates categories of meaning and more specific permissive and prohibitionary standards. International law's essence is rooted in a principled justificatory discourse that channels present debates over the meaning and scope of law through reference to previously articulated rules and procedures.Footnote ³⁰ In so doing, actors engage in a continual process of making and evaluating claims concerning the prescriptive and proscriptive status of law. These associated repertoires of ideas, behaviours, and language comprise the intersubjective practices that structure international legal action, and aggregate over time as precedents that increasingly bind participants to positions.Footnote ³¹

The development and enactment of international law is thus intimately associated with the social construction of international actors and the definition of acceptable and unacceptable forms of action. A central insight of recent constructivist work is that ‘legal practices are embedded within, and constituted by, layers of nested social understandings’.Footnote ³² The authoritative nature of law is derived from its connection to fundamental normative structures that act as ordering principles to demarcate the constituent units of the system and structure subsequent efforts to develop frameworks for appropriate conduct. In the contemporary international system, conceptions of territorially based sovereign statehood, contractual international law, the sanctity of commitments (pacta sunt servanda), and multilateral diplomacy operate both as a precondition for mutual recognition and foundational rules of the game through which actors pursue their policy goals.Footnote ³³ In turn, they provide the impetus for the development of particular normative systems that constitute the features of ‘responsible’ statehood – defining acceptable behaviour in issues such as the conduct of warfare, the nature of human rights and proper representation in political communities – that may be further articulated as more precise norms and rules.

This social density explains why actors to regard law as an especially legitimate form of order and, consequently, how a generalised obligation towards the law develops. Legal institutions emerge from the intersubjective practices of actors and are thereby nested within the underlying normative structure of the system.Footnote ³⁴ While the resort to law is undoubtedly driven in part by the desire of state actors to advance self-interested goals like improving organisational efficiency, bolstering reputation, or exerting their will, these considerations are given meaning by a pre-existing belief that the international legal system possesses legitimate authority worthy of adherence.Footnote ³⁵ In this way, legal institutions contribute to the reconstruction of actor interests and subsequent behaviours, meaning that ‘politics may take a distinctive form when conducted within the realm of legal reasoning and practice’.Footnote ³⁶

Conceiving of law as a core feature of the international social system suggests how the shared understandings essential to effective argumentation action may develop among self-interested actors. Schimmelfennig and Krebs and Jackson recognise that the social legitimacy of claims is central to their reception and hence, impact, but do not extensively develop this important point. I contend that since international law helps to constitute international politics, it comprises an authoritative source of collective validity claims and a basic grammar ‘in which speakers anchor their arguments’.Footnote ³⁷ Actors may not agree about the fundamental correctness of specific claims – which is not necessary in a strategic account – but the resort to legal argument provides a shared language for determining the minimal acceptability of competing positions. One key consequence is that while politics and law are co-constituted, actors regard the international legal realm as a partially autonomous field of action in which different ground rules apply.Footnote ³⁸ Legal discourses can be distinguished from political forms of argumentation by the fact that the former are framed in the context of agreed standards informed by precedent while the latter tend to invoke more transitory concerns for self-interest (what benefits a given party in the particular situation) unencumbered by principled justification. For these reasons, law is typically held to be more technocratic and impartial in contrast to an unregulated political realm in which material power is expected to dominate.Footnote ³⁹ Of course law is never truly divorced from power, as dominant actors create and interpret legal institutions in the pursuit of their own egoistic policy preferences.Footnote ⁴⁰ Yet while profoundly shaped by material realities, a transition to a legalised mode of justification channels and moderates these forces through a particular social process that is generally regarded as more legitimate in its application and adjudication. For this reason, ‘[w]hen an actor in world politics makes reference to international law he or she is implying that international law offers the highest standard against which action in world politics can be judged; if offering an argument based on international law it is a justification “other than” or “more than” a mere political, economic, or moral, rationale.’Footnote ⁴¹

Strategic legal argumentation and its consequences

While commonly associated with forms of deliberation, the above account is also compatible with the strategic assumptions adopted in this article. An actor will seek to gain support for – or at least acquiescence to – its policy by reference to the most compelling constellation of claims it can muster. The particular authority that international law enjoys means that actors will prefer to invoke legal claims in their diplomacy, and effective arguing must adhere as closely as possible to the prevailing interpretations of relevant law. Similarly, the target audience should assess competing claims on their merits, and the legal content of arguments will shape their reception; this is so even in the many instances where actor beliefs do not change during the argumentative episode. Law is by its nature inherently contested, but it is not infinitely malleable; at any given point in time, actors still operate in relation to the existing legal institutions even as they may seek to modify or replace them. Hence while actors enjoy considerable flexibility in choosing how to present their arguments, the range of possible claims is bounded by contemporary legal practice.

Strategic legal argumentation proceeds via analogy, as parties attempt to justify their particular arguments by linking them to widely accepted standards operating at two different levels of generality. First, actors may invoke specific legal rules, whether found in a treaty or other source. The relative precision of legal texts may increase their impact in argumentative episodes, since they tend to permit a more limited scope for interpretation and deviation.Footnote ⁴² Yet reference to rules in isolation is often insufficient to provide definitive answers concerning the meaning and limits of law. For this reason, actors will typically seek to further root their claims in a second set of higher-order norms spanning an array of concerns relating to conceptions of appropriate action (for example, ending impunity for grave crimes), status (for example, equality under law) and the nature of legal obligation itself (for example, voluntary consent as the basis of adopting commitments). The existence of multiple sources of authority does not eliminate interpretive dilemmas, therefore, but the structure of international law provides an agreed framework through which the pursuit of policy goals via principled arguments can take place.

Material power is never absent in international politics, but when deployed within a legal setting it is transformed, leading to outcomes that are substantially different from those that would be expected if law were mere ‘cheap talk’. The move to a legal setting can empower weaker actors to overcome structural disparities by advancing more authoritative arguments in an environment in which forms of coercive force have receded.Footnote ⁴³ At the same time, because rules are embedded within the extensive network of social practice, they provide a resource that may be exploited by states that are not formal members. But by invoking rules – even those they do not officially endorse – in an effort to advance their own narrow self-interest, resistant states are simultaneously drawn into debates about the scope of these institutions and may then be challenged on the validity of their interpretation concerning what a given rule permits or forbids. These factual disagreements may be further parlayed into claims of hypocrisy – in effect pointing out discrepancies between an actor's rhetoric and behaviour that undercut its purported good faith application of the law – leading to increasing social pressures to comply with the new standard. In other words, while nonparties may avoid the binding legal effect of new rules, they are never able to fully isolate themselves from these developments, and attempts to instrumentalise the law can generate unintended consequences that are difficult to control.

The core claim of this article is thus presented in the form of a counterfactual, that without the constraining effects of legal discourse, the United States would have been able to leverage its preponderant material power advantages to gain concessions that much more closely adhered to its initial demands.Footnote ⁴⁴ Counterfactual analysis is an especially useful means of adjudicating amongst an array of possibilities that cannot be observed directly.Footnote ⁴⁵ In establishing these scenarios, however, attention must be paid to selecting theoretically and logically coherent possibilities: the more closely proposed counterfactuals follow the actual flow of events, the greater their analytical leverage. This can be achieved by identifying critical points from which alternative historical pathways could plausibly have emerged. If strategic argumentation were operative therefore, we should expect to see public discourse increasingly coalesce around a set of specific statements relating to context-appropriate legal standards, and policy outcomes shift in favour of the more widely accepted position. This should occur largely irrespective of the distribution of material capabilities between interlocutors. By contrast, an alternative explanation emphasising material power would expect the US to deploy forms of coercion – possibly in concert with arguments – to gain acquiescence to its policy goals without substantial concessions to its opponents. In this view, while legal rhetoric is one potential strategy a powerful state may employ, the back-and-forth of strategic claim making will not significantly alter either its goals or the outcome of the episode; more fundamental forms of power politics will always be decisive in driving international diplomacy. Hence a predominant power may invoke law as a smokescreen for its interests, but move to a legal sphere should not stop it from getting its way on its terms.Footnote ⁴⁶

Background

The ICC is the first permanent international court aimed at investigating and prosecuting individual human beings for acts of atrocity, and thus reinforces a recent expansion of international law to include individuals as subjects of criminal responsibility and punishment.Footnote ⁴⁷ The Rome Statute reverses established diplomatic norms by removing the protected legal status of Heads of State and other high officials,Footnote ⁴⁸ and further adopts two forms of jurisdiction that apply to crimes committed by the nationals of a State Party in any geographic location, or by the citizens of any state on the territory of a State Party.Footnote ⁴⁹ While stopping short of permitting universal jurisdiction therefore, the Statute leaves open the possibility that nationals from nonparties may be subject to ICC prosecution even though their governments do not accept the Court's authority. This jurisdictional structure has been strongly resisted by the US and other prominent Court opponents on the grounds that it violates the foundational tenet that legal obligations may not bind third (nonparty) states.Footnote ⁵⁰ The Rome Statute also gives the Prosecutor the power to initiate investigations proprio motu – that is, under his or her own initiative.Footnote ⁵¹ This goes against the demands of the US and others that the right to launch proceedings would be vested with the UNSC, giving the Council effective control over the Court's operation.Footnote ⁵²

Yet this legal regime is complicated by the fact that the Rome Statute provides mechanisms for limiting its own application. First, the Statute incorporates, in Article 98, the established international practice of granting legal exemption to representatives of other states for acts that would normally fall within the jurisdiction of the foreign host. Second and more important for the present analysis, Article 16 of the Statute permits the UN Security Council, acting under its Chapter VII authority, to request that the Court suspend an active investigation or trial for a renewable period of one year. These provisions attempt to strike a delicate balance between promoting international justice while acknowledging the importance of principles of state sovereignty and noninterference underpinning the international political order.Footnote ⁵³ Yet the implications of these legal innovations are far from settled, and differing views remain concerning the extent to which a UNSC resolution would bind the Court and thereby alter the operations of an independent international organisation.Footnote ⁵⁴ For this reason, the strategic positioning of claims hinged on competing assertions concerning the scope of Article 16 – under what conditions the UNSC could limit the Court's jurisdiction – and by extension the manner in which the ICC related to other features of the international legal order.

Security Council politics and the immunities debate

To assess the dynamics of strategic legal argumentation, I focus on a series of debates in the Security Council over the renewal of the UN peacekeeping mission in Bosnia and Herzegovina (UNMIBH). The meetings over UNMIBH came at a particularly sensitive moment in the consolidation of the ICC, and emerged as a focal point in the shifting US strategy towards the Court. While the United States had long harboured serious reservations, these objections transformed into overt hostility only once it became clear that the ICC would soon become operational with the entry into force of the Rome Statute on 1 July 2002. To that end, US representatives sought to secure binding Security Council resolutions that would provide permanent exemptions from ICC jurisdiction for military and police forces drawn from non-ICC member states deployed on UN-sanctioned operations.

A large number of states participated in the discussions as Council members or invited observers; extensive data thus exists concerning the US view and international responses.Footnote ⁵⁵ Moreover, the UNSC is recognised as a primary setting for the enactment of bargaining, argumentation, and deliberation.Footnote ⁵⁶ Indeed, the meetings in question were explicitly identified by a number of delegations as a forum in which to debate appropriate responses and seek a reasoned consensus on extent of immunities and the nature of the relationship between the ICC and UN system. While such statements imply a measure of flexibility and willingness to be persuaded, it was understood at the time that underlying views were unlikely to change. The principal lines of debate thus focused on two main perspectives: that of the United States in seeking to gain acceptance for its immunities policy on the one hand, and that of the majority of participating states seeking to resist this effort (and thus support the status quo in the Rome Statute), on the other. Hence, the resulting interactions are most appropriately conceived as strategic attempts to convince the other side to accept the inevitability of an outcome without changing minds.

Finally, the Security Council is suffused with power politics and structural inequality, and is an ideal setting in which to explore the interaction of coercive and argumentative modes of influence. It is therefore not surprising that the United States sought to leverage its privileged position within the UNSC to advance its goal of a global exemption from ICC jurisdiction. The US initiatives were explicitly linked to continued participation peacekeeping operations – in other words, a threat of material punishment. US diplomats first attempted unsuccessfully to incorporate an immunity provision into the May 2002 establishment of a UN peacekeeping mission in East Timor; when this failed, the US promptly withdrew its forces from the mission.Footnote ⁵⁷ The stakes were much greater in the case of the UN Mission in Bosnia, which constituted one of the largest UN operations. As a State Party to the Rome Statute, alleged crimes committed on Bosnian territory by the national of any state would be subject to potential ICC jurisdiction, including the approximately 8,000 US service members deployed as part of UNMIBH and associated NATO-led Stabilization Force (SFOR).Footnote ⁵⁸ Officials made clear that the United States would continue to block future resolutions that did not contain the desired immunity provision, and would withdraw their forces from those UN operations that did not enjoy suitable exemptions from ICC jurisdiction. Moreover, officials threatened to withhold the US's 25 per cent share of the UN peacekeeping operations budget should their demands go unheeded.

Diplomacy at the Security Council must also be situated within a wider US policy of seeking global indemnity from the Court through a web of bilateral nonsurrender agreements. These agreements – in which third party states agreed not to turn US service members over to the ICC – were negotiated via threats and incentives, as US law required that military aid and economic assistance be suspended to any states that refused to conclude a nonsurrender arrangement.Footnote ⁵⁹ Hence, coercive tactics featured prominently in the US approach both inside and outside the Security Council, and ICC supporters faced real material costs in resisting US pressure. This generated a dilemma of whether to persist with their prior commitment to the ICC or concede to American demands, making the episode a key early test case for the US immunities strategy and the international response.

Strategic legal argumentation in motion: Resolutions 1422 and 1487

The United States initially proposed language to amend the reauthorisation of the UNMIBH mission that would have absolved US forces in perpetuity for acts committed as part of UN operations in Bosnia.Footnote ⁶⁰ The core thrust of the US position relied on political claims concerning the primacy of state sovereignty and its special role as a global military power.

In so doing, the US delegation only made passing reference to the prevailing legal context, highlighting immunity provisions in previous statuses of forces agreements and briefly asserting that Article 98 of the Rome Statute generically accommodated this practice.Footnote ⁶²

The response from other UNSC members begins to demonstrate the analytical purchase of the strategic legal argumentation frame. Rather than conceding to US coercion at this early stage, ICC proponents instead offered a counterproposal (attributed to France) that specifically invoked Article 16 of the Rome Statute, limiting prospective deferrals of ICC investigations or prosecutions ‘on a case by case basis’. While this concession could be read as an effort to reach an acceptable position via a convergence of views – as accounts of bargaining would suggest – it is more properly understood as a strategic attempt to shift the diplomatic discourse onto the more favourable (for ICC proponents) legalised terrain of the Rome Statute. This move to a legal mode of argumentation substantially influenced the resulting diplomacy by narrowing the range of acceptable claims in subsequent debates. The United States initially persisted with its position, and when its effort failed to gain sufficient support within the Council the US vetoed the resulting draft resolution that excluded an immunity provision.Footnote ⁶³ This episode was significant, however, as it marked the turning point where the Rome Statute – and especially Article 16 – now became the primary reference point for effective strategic appeals.

The defeat led the US to change its approach, and American diplomats adopted an explicitly legal mode of argumentation. The demand for an effectively blanket immunity from ICC prosecution was now premised on a claim that as a nonparty, the United States had no legal obligations under the Rome Statute, and US nationals should therefore not be subject to ICC jurisdiction through its participation in UN operations. For the first time, the US also took pains to couch its claims in the more precise terms of the Rome Statute, arguing that Article 16 permitted the exemptions they were seeking, and was consistent with the Security Council's primary role in upholding international peace and security.Footnote ⁶⁴ US diplomats consequently introduced a new draft proposal that referenced Article 16 but simultaneously retained a quasi-permanent exemption since the immunity provision would be automatically renewed annually ‘unless the Security Council decides otherwise’.Footnote ⁶⁵ This change can be understood as a strategic attempt to present the US position in terms that would be more acceptable to its audience – in other words, an effort to instrumentalise the justificatory language of law to serve pre-established policy goals.

This effort did not result in an immediate concession as US representatives expected. The vast majority of states speaking at the meeting challenged to the US initiative through a discursive strategy that invoked both the specific legal criteria of the Rome Statute as well as broader principles of international law.Footnote ⁶⁶ First, they argued that the Statute already contained sufficient procedural checks and balances to effectively eliminate US concerns for politically motivated prosecutions.Footnote ⁶⁷ Second and more fundamentally, it was claimed that contrary to American assertions, the proposal for granting a priori immunity expressly violated the terms of Article 16 both because it envisioned an effectively permanent exemption irrespective of an ongoing ICC legal process and because it reversed the intention that renewal be done by an affirmative vote of the Council.

The language of the draft resolution – and hence the centrepiece of the US legal claim – was thus considered by most ICC parties to be fundamentally incompatible with the letter and intent of the Statute and hence contrary to objective of the Court.Footnote ⁶⁹ Finally, ICC proponents contended that the US position equating the international prosecution of citizens with a violation of state consent (the third party effect of treaties) was a misinterpretation of established law. Indeed, a variety of international treaties concerning torture, terrorism, and hijacking already permit extra-national jurisdiction for individuals without their home state's approval, yet this does not amount to a legally binding obligation on the state itself.Footnote ⁷⁰ In light of this, a host of ICC proponents suggested that adoption of the proposed Resolution would pose a threat to the integrity of the Rome Statute itself by placing unjustified burdens on the operation of the Court.Footnote ⁷¹

Yet the arguments also transcended the particular content of the Rome Statute to encompass more fundamental claims of legal equality and respect for norms regulating the modification of international legal instruments. On the one hand, the attempt to exempt an entire category of individuals – peacekeepers and affiliated personnel – was described as ‘enshrin[ing] an unconscionable double standard’.Footnote ⁷² On the other hand, numerous countries argued that the US demand would set a precedent for the Security Council to unilaterally reinterpret existing multilateral agreements without the approval of the treaty parties, a power not envisioned in the UN Charter.Footnote ⁷³ Such an outcome, it was held, would force State Parties to violate their legal obligations under the Statute, and undercut the sovereign right of states to undertake binding legal commitments. The US proposal was thus portrayed as an extra-legal interference in the treaty making process, and an overreach of Security Council authority ‘that would destabilize and undermine the international legal regime’ based on the principle of sovereign equality and the sanctity of legal agreements.Footnote ⁷⁴ This, in turn, could only serve to degrade the credibility of the Security Council by further politicising its decisions.Footnote ⁷⁵

Finally, delegates attempted to leverage US support for the International Criminal Tribunal for the Former Yugoslavia into a claim of inconsistency to further challenge the validity of the US position. They pointed out that the ICTY retained jurisdiction over all alleged crimes committed in Bosnia, so the concern regarding ICC authority was misplaced.Footnote ⁷⁶ But more fundamentally, if the US was satisfied with ceding authority – including, potentially, over its own soldiers – to one supra-national court, how could it justify its virulent opposition to the ICC? This rhetorical move conveniently neglected the fact that the ICTY was created by a UNSC resolution and thus remained (though at arms length) under its purview, which was precisely why the US could countenance the Tribunal. The strategic positioning of this claim was therefore not intended to advance a reasoned process of truth-seeking leading to a convergence of views, but instead to further box the US into a socially unsustainable position. Irrespective of this deliberate oversight, charges of hypocrisy forced US representatives into further defence of their proposal that later proved consequential in limiting US policy options. The most obvious rejoinder – that the US only accepted international justice when it could control the outcomes via its Security Council veto – was politically undesirable as it was obviously unlikely to appeal to the majority of ICC supporters.

Despite the stakes and apparent vehement opposition from the majority of participating states, Resolution 1422 was approved by a unanimous vote. A sceptical reading would suggest – as per the alternative explanation to this study – that international law served merely as a convenient forum for airing grievances, but did not ultimately affect the policy outcome sought by the most powerful actor.Footnote ⁷⁷ Undoubtedly Resolution 1422 was passed under extreme duress as the US employed extensive coercion in the form of prospective sanctions (the withdrawal of US forces and funding from UN operations) to gain acquiescence to its demands. Yet an emphasis on material power in isolation fails to appreciate the extent to which the shift into legal argumentation constrained US options in pursuing its global immunities policy. First, ICC supporters could have simply accepted the initial US proposal in order to avoid the prospect of substantial punishment. Yet the overwhelming majority of states instead chose to challenge US policy through an alternative assemblage of legal arguments anchored around Rome Statute Article 16. This strategic reframing occasioned a shift in emphasis to the legal criteria of the Statute itself, thereby drawing the US into a debate on the terms of an institution it openly opposed.

Second and relatedly, the opposition faced within the Security Council compelled the United States delegation to hew more closely to the wording of Article 16, which in turn implied substantial concessions limiting the impact of the exemption. Recall that the US initially sought permanent immunity for all nationals deployed in the Bosnian peacekeeping missions. The US draft text thus included an effectively automatic annual renewal, since cancellation was subject to an affirmative Security Council vote in which the US held veto power.Footnote ⁷⁸ At the same time, the initial US proposal employed the more authoritative formulation of ‘decides’ that is typical of Chapter VII resolutions; this was meant to underscore the pre-eminence of the Council in requiring the Court to defer any future investigation relating to nonparty nationals. Yet at the insistence of pro-ICC states, Resolution 1422 authorised only a more modest one-year exemption that could be renewed via a further resolution and incorporated Article 16's use of ‘requests’ vis-à-vis the Council and Court. These were significant modifications since they placed the US demand under regular scrutiny, ensuring that representatives would have to continue to engage in public justifications on the terms of the Rome Statute. The US concession was made necessary by the institutional context of the Security Council and the requirement of nine affirmative votes (and no vetoes from permanent members); yet the particular content of the final resolution was profoundly shaped by the prior argumentation in which the initial US claim failed to out-manoeuvre the contending position. The successful attempt by ICC supporters to bring UNSC 1422 under the aegis of Article 16 thus shifted the balance between claimants, deemphasising the US demand that the Security Council should dominate the Court in favour of greater equity between two independent bodies and consequently restraining the exercise of US power.

Finally, while the US strategy of combining coercion and argumentation did yield some success, it also had the unintended consequence of reinforcing the move to a legal discourse that did not favour the US position over the long term. The diplomatic record demonstrates that ICC supporters assessed the US initiative on the merits, and thus employed legal criteria as an alternative source of legitimate authority in deciding on the content of the resolution. Only three states – China, India and Russia – endorsed the content of the US position in the Council discussions before voting was held on the 2002 draft resolution. This is contrasted with 32 states, including two speaking on behalf of major regional organisations, which did not accept that the resolution accurately reflected the letter or intent of the Rome Statute. While the American shift to legal arguments did not change minds, the deference to a legal framing was crucial in strategic terms as it provided other states with the minimally acceptable grounds required to justify their temporary yielding to US demands, even though the decision was motivated by other concerns. This is the essence of the strategic account advanced here. At the same time, such discursive moves are ‘sticky’ in the sense that once activated they are difficult to abandon, a fact that would prove highly relevant to subsequent developments.

One year later, the United States was able to secure a further one-year extension of the UNMIBH immunity provision with the approval of Resolution 1487.Footnote ⁷⁹ Here again there was little acceptance of the US view, as the overwhelming majority of states spoke against the resolution.Footnote ⁸⁰ The modes of argumentation followed a similar form, though with some important changes that hold implications for the integrity of the ICC. The US again argued that the resolution was compatible with the Rome Statute and the fundamental principles of consent and the limit of third party effects in international law. Yet the American representative also sought to challenge the Court's legitimacy through an invocation of the constitutive structures of the international system. The reading of Article 16 advocated by ICC proponents would ‘challeng[e] and weak[en] the United Nations Charter system and the Council's place in it’;Footnote ⁸¹ the US interpretation, by contrast, was presented as returning the UNSC to its appropriate position of primacy. The US also revisited the theme of peace and security, and argued that the spectre of ICC jurisdiction – without the limits provided in Resolutions 1422 and 1487 – could have a chilling effect on the future efficacy of UN peacekeeping operations by imperilling the participation of non-ICC members.

Supporters of the Court again contested the US position on largely the same legal grounds, by reiterating the Rome Statute's safeguards against politicised prosecutions,Footnote ⁸² and challenging the US interpretation of Article 16 of the Rome StatuteFootnote ⁸³ and its resulting implication concerning the Security Council's role in interpreting multilateral treaties.Footnote ⁸⁴ As such, the majority of the Council again found that the US demands were inconsistent with the Rome Statute, UN Charter, and more fundamental principles of international law. Finally, Court proponents invoked a new claim that Resolution 1487 and its predecessor were context-specific and temporary exceptions that did not constitute a legal or political precedent for future exemptions.Footnote ⁸⁵ The statements made particular reference to the exceptional circumstances and noted that the annual renewals should not be regarded as automatic or predetermined. Hence the immunity provision was not normalised even as the international system's highest political body again conceded to US pressure.

The successful limits placed on US policy would prove highly consequential the following year, as the Security Council again deliberated a renewal of the UN mission in Bosnia and with it, the contested exemption of US personnel. Yet in the intervening period, a series of revelations concerning American policies in the War on Terror undercut the US negotiating position. In particular, the release of photographs documenting serious abuses at Abu Ghraib Prison in Iraq drew widespread condemnation, and further increased scrutiny on US efforts at the Security Council. In light of this, the United States announced that it would not seek a further renewal immunity provision as a precondition for approving the extension of UN operations in Bosnia. In doing so, US representatives indicated that while they had not changed their views regarding the ICC, they equally recognised that members of the Council were no longer willing to support their demands.Footnote ⁸⁶ This reversal cannot be adequately explained solely in reference to changes in external conditions. Legal protections for US nationals remained an active concern: by 2004 roughly 1,000 American military personnel were deployed in Bosnia as part of the NATO-led Stabilization Force (SFOR) and hence the value of a further Security Council resolution had not abated.Footnote ⁸⁷

Rather, the US decision can only be understood by taking into account the social context of diplomacy and especially the legal criteria that informed successful strategic argumentation. While global publicity surrounding US abuses undoubtedly weakened the US negotiating position, this development was consequential not instead, but because of the interconnected nature of legal reasoning and justification. The United States had sought to oppose the ICC jurisdictional regime on the grounds that it did not accord with established international law. Yet conduct in Iraq and elsewhere exposed widespread human rights violations that undermined the credibility of US claims to good faith respect for the law. Other states were consequently even less inclined to conditionally accept US interpretations in the Bosnia case, precisely because the immunities issue was assessed in the context of a wider international law discourse. It was in this sense that the subsequently revealed hypocrisy proved politically consequential: as external events reinforced the legal basis informing judgements over American immunities policy, the social costs associated with its continuation became intolerable. Yet this was only relevant because previous manoeuvres by the pro-ICC constituency had already successfully limited the immunities provision to annual nonautomatic renewals. The decision not to further extend the resolution in 2004 is therefore crucial, since it prevented the substantiation of the US position as a fait accompli.Footnote ⁸⁸

Had US coercive power been sufficient on its own, we would expect the international community to continue its begrudging acceptance of US demands for special exemption from ICC jurisdiction even if the principled case became less favourable. Instead, the decision to deploy legal argumentation in the pursuit of its immunities objective had the unanticipated consequence of boxing the US into a defence of its policy on specific grounds from which it subsequently found it difficult to extract itself. When the widening gap between words and deeds became apparent, the US had little room for rhetorical manoeuvre. Put differently, strategic argumentation by pro-ICC constituency made the political conditions inhospitable for the US position, and the United States consequently altered its policy in order to avoid additional diplomatic damage.

Subsequent developments

More recent developments within the Security Council have continued the debate over US immunity policy. Successive resolutions creating a UN peacekeeping force Liberia and referring the situations in Darfur and Libya to the ICC Prosecutor have contained an operative clause that provides a permanent exemption for nationals of nonparty states from ICC jurisdiction.Footnote ⁸⁹ American representatives regarded this as legal affirmation of their previous position and a precedent for future deliberations.Footnote ⁹⁰ The debate in these three cases largely mirrored the discourse surrounding Resolutions 1422 and 1487, raising the question as to whether the United States has succeeded in manoeuvring other states into a de facto acknowledgement of a permanent nonparty exemption from the ICC.

Subsequent discourse reveals a mixed picture, but one in which the US strategy has failed to fundamentally alter international practice regarding immunities. As in the Bosnia case, ICC proponents again accepted the US demand on the grounds that its negative implications were outweighed by the immediate necessity of addressing ongoing violence in Liberia, Sudan, and Libya.Footnote ⁹¹ The inclusion of an immunity provision was therefore due to the combined effect of material threats and the inclusion of minimally acceptable legal language that provided a pretext for the concession. A number of delegations thus explicitly asserted that their approval of the resolutions did not represent a precedent for future situations, despite US assertions to the contrary.Footnote ⁹² Yet the evidence equally does not support a view that US efforts have generated a sufficiently widespread or stable acceptance of its position as successful strategic argumentation would require. Since the immunities campaign began in 2002, there have been 217 UN Security Council resolutions authorising or renewing peacekeeping operations; of that substantial list, only the five mentioned above contain provisions exempting nonparty nationals, or UN personnel more broadly, from ICC jurisdiction. When considered in this light, the short-term concessions from pro-ICC states resemble isolated tactical accommodations rather than a genuine shift in the international status quo. And significantly for my theory, states have not been boxed into an unsustainable position by US efforts, but have rather continued to contest its policy on principled grounds. Given the enduring prevalence of coercion in US foreign policy more generally, this suggests that the strategic invocation of legal argumentation has limited the scope of US power and thus generated outcomes that are notably different than would be expected had material power trumped principled discourse.

Rather, US efforts have arguably had the inverse – and unintended – consequence of increasing the profile of the ICC as a competent feature of the international system. As Stahn has noted, ‘by pushing for the adoption of Resolution 1422 (2002) the US has incidentally recognized that the jurisdiction of the ICC extends to nationals of third states’.Footnote ⁹³ This had significant repercussions, as US representatives were increasingly subject to claims of hypocrisy in allowing other nonparty nationals (in Sudan and Libya) to be subject to a Court from which they themselves were exempted. Legalised argumentation has thus led to a form of rhetorical entrapment that further undermined the prospects that the global audience of states will accept the US position. Recognition of the US failure to undermine the ICC immunities regime has compounded during the Obama administration, which has signalled a more open – though not fully supportive – approach to the Court and has clearly seen no political benefit in reviving its legal contestation. This in turn demonstrates the often subtle, but politically significant, role that legal rhetoric plays in shaping state policy.