Academic journal article Global Governance

How Political Is the ICC? Pressing Challenges and the Need for Diplomatic Efficacy

Academic journal article Global Governance

How Political Is the ICC? Pressing Challenges and the Need for Diplomatic Efficacy

Article excerpt

The International Criminal Court faces many daunting political challenges in Kenya, Libya, and Sudan. It has addressed these challenges and defended its impartiality in these situations by insisting that it remains an apolitical institution. This article challenges the conventional focus on the ICC's apolitical nature by adopting an alternative approach that examines its political and pragmatic role in seeking mutual accommodation. It argues that the ICC can and should seek mutual accommodation rather than simply justice under the Rome Statute. In doing so, the article develops and applies the term diplomatic efficacy, or the political capacity of the ICC to produce acceptable solutions, by addressing the soft power dimension of such efficacy. The ICC's diplomatic efficacy not only reflects its special role as an independent court or agent in the interstate system, but also represents a practical and strategic attempt to manage the political problems that its interventions and deferral to national authorities may create. The article concludes that the ICC's political efficacy can help to resolve the incongruities between proactive complementarity and the provisions of cooperation encoded in the Rome Statute. KEYWORDS: International Criminal Court, diplomacy, international theory.

THE INTERNATIONAL CRIMINAL COURT (ICC) IS AN INDEPENDENT AND PERmanent standing court. Under the Rome Statute, the ICC prosecutor abides by an extensive list of Rules of Procedure designed to ensure that its legal judgments and actions meet strict evidential standards of impartiality and fairness. But the ICC also lacks a standing police force to apprehend the perpetrators of genocide, crimes against humanity, and war crimes. It depends on state cooperation to operate effectively, and it is this dependence that has raised concern that the lack of reliable enforcement at the international level will continue to enable and encourage state leaders and authorities to either ignore the court's requests or to use the ICC's legitimacy for political purposes. Another related concern is the developing gap between the court's ambitions to actively pursue justice regardless of the political consequences (i.e., the arrest warrants against two heads of state, Omar al-Bashir, president of Sudan, and the late Muammar al-Qaddali) and the work of state and international diplomats in negotiated peace settlements. It is believed that the ICC's pursuit of justice or legal intervention in some states has made it increasingly difficult to carry out the terms of peace agreements. Despite this concern, some maintain that there is no discrepancy between justice and peace. (1) Others insist that the ICC's interventions in Uganda have had an inherently destabilizing effect on state and regional politics. (2) ICC officials, however, have addressed these challenges by insisting that it is an impartial and apolitical institution, and that its actions have been carried out in accordance with the due process and legal requirements of the Rome Statute. (3)

As important as this legal defense may be, it may be just as important to address what I believe is the court's special status in the interstate system; that, unlike domestic courts that can rely on police forces to enforce arrest warrants, the ICC lacks such a mechanism to administer justice. For this reason, domestic courts do not need to negotiate with and persuade the accused perpetrators, while the ICC, however, must do so on some limited scale in order to conduct its affairs with state officials. But if the court cannot ignore the need to negotiate on some limited scale, then it could be argued that it is the need to negotiate that defines in part the court's rather unique political status as a legal body in the interstate system. Developed further, this need to negotiate turns into what I propose is a (positive-oriented) political capacity to reach mutual accommodation. Such a proposal is, of course, contestable, since reaching mutual accommodation is a political and diplomatic priority, not a judicial responsibility or duty of carrying out justice through the due process provisions of the Rome Statute. …

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