Enabling Networks: What Alliances Mean In International Law

From economic advantages to military might, alignment with the great powers of the world has its perks. But what about potential implications and advantages in the legal realm?

UN Office at Geneva, Switzerland (UNOG); headquarters of the UN Human Rights Council. The International Criminal Court — where international tribunals are held — is located elsewhere, in The Hague, Netherlands. Credit: Mathias P.R. Reding

In a World Policy Journal article published in 2003, the current Chair of Political Science at City University of New York, Rajan Menon, boldly declared “The End of Alliances” [1]. After witnessing the fall of the Soviet Union in 1991, the ascension of the United States into the role of lone superpower by 2000, and the American shunning of both allies and the U.N. in the run-up to its 2003 invasion of Iraq, Menon was confident that the 20th-century military alliance game had been rendered obsolete. In its place, he argued, would grow a new preference for individual national personalities, an end to a foeless NATO, and a propensity for unilateralism.

While the election of right-wing leaders with a preference for nationalism and varying degrees of anti-globalism in the U.S., U.K., and elsewhere might partly align with Menon’s theory, the fact is that alliances remain in vogue — particularly those that include the powerful permanent P5 members sitting on the U.N. Security Council (Russia, China, France, the U.K., and the U.S.). NATO is still strong; since 1991, it has expanded to include Turkey and former Soviet satellites in Eastern Europe. American sentiment towards NATO has remained overwhelmingly favorable, even after the Trump era [2]. Bilateral alliances, too, have grown increasingly popular; a 2006 Council on Foreign Relations paper found an overall increase in bilateral agreements — in both military support and economic cooperation — between powerful and not-so-powerful nations since the mid-1990s [3]. In total, the U.N. counts over 560 bilateral and multilateral alliances within its ranks [4], illustrating not an international move towards isolation as Menon suggested, but rather the continued thrust of a prevailing wind sweeping towards global interconnectedness.

In light of these facts and trends, why are nations increasingly pursuing alignment with these great powers?

When it comes to economics, trade, and military strength, the answers are obvious: basic microeconomics reminds us that trade is mutually advantageous and common sense informs us that military relations with powerful nations generally helps secure the safety and territory of the less powerful (I must acknowledge, however, that these generalizations remain too often blind to inequity and imperialist leanings when it comes to the Global South). But what about international law? Are there any legal advantages to be gained in an alliance with one of the P5? The data suggests a definitive yes.

Before diving into the data, it is imperative to set the scene that has created an unfair international criminal justice infrastructure. The formation of the International Criminal Court via the 1998 Rome Statute reflects an increased Western focus on prosecuting actors behind atrocities — the culmination of international law efforts, mainly through the United Nations, that began in the post-World War II era. Rooted in Allied interests in holding Nazis and other Axis powers’ human rights abusers accountable for their actions during the war, the Nuremberg and Tokyo Trials were among the first international war crimes tribunals and established a Western precedent for both human rights laws and similar human rights trials in the future. The Judgment of the Nuremberg Trial, for example, is the origin of the idea that “crimes against international law are committed by men, not by abstract entities,” thereby reflecting a hope to stop the impunity enjoyed not only by states but also by individuals who carry out crimes against humanity [5].

In recent years, the International Criminal Court has been the subject of criticism over charges of bias, particularly a pattern of selective justice practiced for nations in the Global South. Such nations have found it difficult to escape the ICC’s authority. African states in the African Union (A.U.), for example, are increasingly defying the ICC after years of alleged unfair targeting of African countries [6]. The 2009 A.U. decision not to turn over Sudanese President Omar Hassan Al Bashir to the ICC could be viewed as the culmination of years of growing tension between the two institutions, especially over the idea that “…the ICC is seen [in Africa] as a Western imperial master exercising imperial power over African subjects” [7].

Conversely, the U.S. and China (among a select handful of other states) did not sign the Rome Statute in 1998 and therefore have never faced real sanctions from the ICC for their well-documented human rights abuses, including civilian casualties stemming from U.S. military action in Afghanistan, Libya, Iraq, and Yemen, as well as the systematic genocide of Uighur Muslims in Western China by the Chinese government [8]. In the case of the former, the U.S. has repeatedly played the international community when it comes to the ICC, utilizing various quid pro quo tactics to block pushes towards international tribunals for its citizens; under the George W. Bush administration, a series of controversial, bilateral “Article 98” agreements (including one with Afghanistan and one with Yemen) guaranteed immunity for nationals and soldiers from both countries in exchange for continued military support and/or economic cooperation [9]. The Trump administration continued that pattern of ICC coercion in 2019 when it revoked the visa of a prosecutor focused on potential U.S. war crimes during the War in Afghanistan [10].

Beyond the ICC, the United Nations Security Council (UNSC) also holds tremendous power in the international law infrastructure. In essence, the UNSC acts as a gatekeeper for international tribunals: it has the power to extend ICC authority to certain abusive states, set up ad hoc trials for certain nations and actors, create exceptions, develop legal norms, and veto any extension of ICC authority to a certain state. The permanent P5 countries — Russia, China, France, the U.K., and the U.S. — hold that power continuously, unchanging even as other UNSC member states rotate, rendering those five all the more powerful in determining who goes to trial [11].

To account for the wide variety of alignments, interactions, and alliances between nations in the 21st century, I define a new term to encompass all documented international partnerships: the Lateral Enabling Network (LEN). To fit the LEN designation, the interstate arrangement must include two or more states, one of which must be a P5 state (owing to their high degree of power). The LEN can either consist of a bilateral or multilateral agreement (i.e. trade deal, immunity agreement, etc.) or a formal military alliance between a P5 state and the rest of the network (i.e. RSII — Russia, Syria, Iran, Iraq, formed in 2015), or both.

With the infrastructure of the international legal system, the unique strength of the UNSC P5, and my aforementioned question about increased alignment with powerful nations still in mind, it would seem logical that, beyond economics and military needs, legal needs could play a role in LEN formation. It turns out that that LENs may indeed play a major role in the selective justice on display in international law — the data suggests that there are clear legal advantages to be gained when less powerful nations align with P5 states.

For the purposes of analysis, I looked at available data on state-perpetrated crimes against humanity [12] and corresponding international tribunals [13] and compared the results to the alignment of that state (LEN or non-LEN). In a sample of 30 unconnected episodes of human rights abuses dating back to 2011, the data suggests a clear imbalance between the probability of an international tribunal among states inside and outside of LENs. Those allied with P5 nations faced almost no accountability for any human rights abuses committed since 2011; those outside of such alliances were held to account about 38% of the time.

Results of data sampling of LEN states vs. Non-LEN states. The probability of facing an international trial for state human rights abuses or war crimes if aligned with a LEN is about 0%; the corresponding probability if unaligned with a LEN is 37.5%. Credit: Lucien Wostenholme

Does this suggest that the trend towards more alliances is motivated by a calculated effort on the part of less powerful states to seek immunity from the ICC and other tribunals? Probably not. But what these findings do highlight are the inequities in the international criminal justice system originally created by the world’s leading democracies and great powers. The LEN-alignment discrepancy alone illustrates the incredible might of the UNSC P5 and reinforces the “gatekeeper”-like status of the five nations with respect to international law tribunals — as if each LEN-aligned nation had unfettered access to a “get out of jail free” card. But beyond the LEN discrepancy, another problem is evident: the international law infrastructure might not be working properly if — at a maximum — only about 1 in 3 crimes against humanity are held to account.

Where do we go from here? We need international criminal justice reform.

The P5 must take charge — but how feasible is this? Not before and not since President Jimmy Carter (my favorite President) has U.S. foreign policy been characterized by a full-throated commitment to human rights, and all of the P5 states together hold an awful historical record when it comes to international law.

In creating a reformed set of legal norms, criminal justice systems, and international tribunals, all powerful nations must be mindful of the past — a genuine reckoning of their own imperial histories and neo-imperial behavior. This is wishful thinking. However, I firmly believe that the U.S. can still lead the P5 itself, and therefore the international law system, under President Biden. NGOs and other advocacy networks can lead that charge. If we accumulate enough global political and moral capital by repairing alliances, rejoining the U.N. Human Rights Council, reasserting a commitment to freedom and democracy, addressing our own problems with systemic inequality, oppression, and racism at home, leading in green energy, and dealing with the pandemic and COVID-19 vaccination campaigns admirably on a global level, our allies will follow our lead. A united movement of democracies — working in concert with the United Nations and informed by their respective social and racial justice movements of 2020 — can lead a movement to radically reform our international criminal justice system, hold abusive nations to account in every appropriate situation, and promote equitable treatment of all nations — both powerful and not-so-powerful, LEN-aligned and non-LEN-aligned — under the rule of law.

Footnotes / Further Reading

[1] Menon, Rajan. “The End of Alliances.” World Policy Journal. 2003: 1–20.

[2] Tamkin, Emily. “More than 8 in 10 Americans support NATO, study finds.” The Washington Post. 3 April 2019.

[3] McMahon, Robert. “The Rise in Bilateral Free Trade Agreements.” Council on Foreign Relations. 13 June 2006.

[4] Piccone, Ted. “Why international law serves U.S. national interests.” 2017.

[5] United Nations. Rome Statute of the International Criminal Court. 17 July 1998.

[6] Zavis, Alexandra; Dixon, Robin. “Q&A: Only Africans have been tried at the court for the worst crimes on Earth.” Los Angeles Times. 23 October 2016.

[7] Tladi, Dire. “The African Union and the International Criminal Court: The battle for the soul of international law.”

[8] Hernández, Javier C. “I.C.C. Won’t Investigate China’s Detention of Muslims.” The New York Times. 15 December 2020.

[9] Coalition for the International Criminal Court. “US Bilateral Immunity or So-called Article 98 Agreements.” Global Policy Forum. 18 April 2003.

[10] Simons, Marlise; Specia, Megan. “U.S. Revokes Visa of I.C.C. Prosecutor Pursuing Afghan War Crimes.” The New York Times. 5 April 2019.

[11] Forsythe, David P. “The UN Security Council and Response to Atrocities: International Criminal Law and the P-5.” Human Rights Quarterly. 2012: 840–863.

[12] Schrodt, Philip A. and Jay Ulfelder. “Political Instability Task Force Worldwide Atrocities Dataset.” 2016.

[13] Payne, Leigh et al. Transitional Justice Research Collaborative.

Cornell '23 | Political takes informed by economics, psychology, urbanism, and empathy.

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