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Broache, M.P. and Kyle Rapp (Forthcoming, 2022). Who Stands Up for the ICC? Explaining Responses to U.S. Sanction Threats. Foreign Policy Analysis.

On June 11, 2020, U.S. President Donald Trump issued an executive order authorizing sanctions against International Criminal Court (ICC) officials and their families. This order directly followed the authorization by the ICC Appeals Chamber, in March 2020, of an investigation into the situation in Afghanistan, including alleged war crimes involving American forces. Within ten days of the announcement of the executive order, 22 ICC States Parties issued individual statements directly condemning the U.S. sanctions and/or expressing support for the Court. Then, on June 23, 2020, a group of 67 States Parties (including all 22 that had issued individual statements) released a collective statement affirming “unwavering support for the Court as an independent and impartial judicial institution.” Even so, this constituted just slightly over half of the Court’s 123 States Parties. Why did some ICC States Parties condemn the U.S. sanctions or otherwise express support for the Court while others did not? This paper explores this question by first documenting variation in the content, format, and timing of statements concerning U.S. sanctions. We then propose and test a series of hypotheses to explain this variation, focusing on factors such as susceptibility to U.S. pressure and domestic rule of law, inter alia. We find that domestic rule of law is the main factor driving states decision to speak out – outweighing material concerns and security dependence on the U.S., contributing to broader understandings about the motivations for – and roles of – public statements in international relations, as well as scholarship on the development of the ICC.
What is the role of international law in foreign-policy decision-making? In particular, why do leaders justify policy decisions with appeals to international law and why do these appeals make the references that they do? This paper combines scholarship on the role of justifications and the permissive power of international law, theorizing that decision-makers will seek out international legal justifications over justifications that reference non-legal claims. These justifications are seen as particularly important in the contemporary world, reflecting the legalized nature of international relations today. In particular, decision-makers will especially prefer to reference codified international agreements over customary international law, seeing a particular value ito referencing a written text even if it is not as directly connected to the issue at hand. These more general justifications are, in turn, preferred over non-legal justifications. This reflects the importance of international law in international relations - in a deeply legalized system actors feel compelled to portray their behaviors as legal, even if these justifications are tenuous or if pursuing them is time and resource consuming. The United Kingdom's 1956 intervention in the Suez and the United States' 1983 intervention in Grenada are used to test these assumptions. Both cases support the theory: decision-makers prefer legal justifications, pursuing these over other options. Additionally, decision-makers appear to prefer legal arguments built on codified law, keeping with the theoretical predictions. These findings deepen our understanding of how actors understand and use international law, its role in justifications, and the legalized nature of international relations today.

Rapp, K. (2021). Social Media and Genocide: The Case for Home State Responsibility,
Journal of Human Rights, doi:10:1080/14754835.2021.1947208

Who bears responsibility when social media platforms are used to incite genocide? While courts and scholarship have recognized the role of mass media in past mass atrocities, social media poses a unique challenge. Its transnational nature, with companies and infrastructure often located in different jurisdictions from where the crimes are committed, makes determining responsibility challenging. This article argues that the prohibition of genocide obligates home states - those where companies are headquartered - to act in such cases. In particular, home states may be obligated to restrict social media access in the state in question and are permitted to do so under the laws of state responsibility. Finally, this paper discusses how possible domestic or international arrangements may be used to realize these obligations and the relative merits of each. A discussion of Myanmar demonstrates how these domestic and international options may function and emphasizing the urgency of the question.

Rapp, K. (2020). Law and Contestation in International NegotiationsReview of International Studies, 46 (5): 672-90. doi:10.1017/S0260210520000303

What is the role of rhetoric and argumentation in international relations? Some argue that it is little more than ‘cheap talk,’ while others say that it may play a role in persuasion or coordination. However, why states deploy certain arguments, and why these arguments succeed or fail, is less well understood. I argue that, in international negotiations, certain types of legal frames are particularly useful for creating winning arguments. When a state bases its arguments on constitutive legal claims, opponents are more likely to become trapped by the law: unable to develop sustainable rebuttals or advance their preferred policy. To evaluate this theory, I apply qualitative discourse analysis to the US arguments on the crime of aggression at the Kampala Review Conference of the International Criminal Court – where the US advanced numerous arguments intended to reshape the crime to align with US interests. The analysis supports the theoretical propositions – arguments framed on codified legal grounds had greater success, while arguments framed on more political grounds were less sustainable, failing to achieve the desired outcomes. These findings further develop our understanding of the use of international law in rhetoric, argumentation, and negotiation.
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