The International Criminal Court's Provisional Authority to Coerce

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The United Nations ad hoc tribunals in the former Yugoslavia and Rwanda had primacy over national judicial agents for crimes committed in these countries during the most notorious civil wars and genocide of the 1990s. The UN Charter granted the Security Council the right to establish a tribunal for Yugoslavia in the context of ongoing civil war and against the will of recalcitrant national agents. The Council used that same right to punish individuals responsible for a genocide that it failed earlier to prevent in Rwanda. In both cases the Council delegated a portion of its coercive title to independent tribunal agents, thereby overriding the default locus of punishment in the world order: sovereign states.

By contrast, the 1998 Rome Statute gives the International Criminal Court (ICC) a coercive title that is "complementary to national criminal jurisdictions." (1) The ICC may prosecute and punish individuals for committing genocide, crimes against humanity, war crimes, and, eventually, aggression, but only when states are genuinely unable or unwilling to do so. (2) Indeed, the complementarity principle limits the ICC's titular powers even relative to nonparty states sanctioned by the Security Council. If the Security Council refers a situation to the ICC (in a resolution based on Chapter VII of the UN Charter), as with Sudan (2005) and Libya (2011), the ICC does not thereby suddenly enjoy a primacy akin to that of the Yugoslav and Rwandan tribunals.

This distinction between primacy and complementarity may seem like a technical issue with little practical difference. For instance, the Yugoslav tribunal's title to investigate and prosecute did not alter state behavior for years. Yugoslavia, its successor states, and intervening Western states variously resisted, obstructed, or ignored the tribunal at different stages despite a Security Council resolution compelling them to do otherwise. (3) The ICC is similarly dependent on states' physical and material capacities and willingness to cooperate. Yet the political power of international courts depends also on the rules and principles that entitle supranational agents relative to sovereign state authorities. The authority to coerce is distinct from an ability to punish. With primacy, clear and semi-hierarchical lines of authority are set out for criminal tribunals. With complementarity, these lines are more political: they need to be asserted and defined in practice, and may be subject to intense conflict. As the other contributors to this roundtable show, states commonly obstruct or behave at cross purposes with the ICC. Under the terms of the Rome Statute, states have considerable latitude to discharge their duties as they see fit, and the ICC is authorized to counter perceived state resistance and noncompliance. Authority may be settled by legal principle, but political practice is unsettling, particularly when the legal principle is as open-ended as complementarity.

Drawing on Immanuel Kant's political theory, I outline two reasons the ICC's coercive authority matters for its practical and political success. First, for Kant, coercive authority rests on a noninstrumental criterion of success: the duty to establish and maintain a general system of rights. If this criterion is supreme, the ICC's coercive authority has moral legitimacy if and when it effectively supports (or substitutes for) the default role of sovereign states in systematic rights vindication. Moreover, whether the ICC succeeds in a particular trial or in effectively wielding its authority to withstand and counter political resistance by states is a secondary, instrumental concern.

Second, uncertainty and ambiguity about who possesses a final coercive authority can slow the pursuit of international justice, but it is not fatal to the noninstrumental quest for (re)establishing a sovereign state capable of systematic rights vindication. The ICC's complementarity regime is messy in terms of separating clear lines of authority. …