The International Criminal Court in Self-Referral States: Legitimacy, Reputation, and the Court’s Anti-Impunity Mandate
As per its establishing treaty, the Rome Statute, the mandate of the International Criminal Court (ICC) is to end impunity for the crimes falling under its jurisdiction, i.e., genocide, crimes against humanity, war crimes, and crimes of aggression (ICC-level crimes). Concerning investigations initiated by a State Party to the Rome Statute referring a situation within their own territory to the ICC (self-referral states), the ICC has been criticized for only indicting rebel/ non-state actors when there is credible evidence that state elite were complicit in ICC-level crimes in the situations under investigation. This criticism has been detrimental to the ICC’s legitimacy with many victims of ICC-level crimes and general proponents of international criminal law. Previous research has convincingly found that the ICC’s apparent inability and/or unwillingness to indict state elite in self-referral states emerges from its dependence upon this elite for protection and access during its investigations, but this work posits that these choices also illustrate the ICC favouring its interest in its immediate survival over its interest in genuinely fulling its mandate. Further aggravating this criticism is the previously discovered tendency for the political regimes of these states to co-opt the ICC’s investigations to enhance their international legitimacy and other related interests in the face of fierce challenges to their holds on power. Paying particular attention to this problematically political reality, this work articulates an approach to potentially mitigate the legitimacy costs of the ICC’s case selection strategy in self-referral states. This approach involves the ICC taking advantage of the interests motivating the political regimes of self-referral states to co-opt the ICC’s investigations by leveraging the reputations of these regimes and their political elite to incrementally improve their states’ domestic judicial systems so that these systems might get to a point where they are eventually able and willing to prosecute ICC-level crimes genuinely and impartially themselves. At the center of this approach is the goal of creating an incentive structure to motivate this political elite to engage with strategies embodying the long-established concept of positive complementarity.
International Criminal Court, International Criminal Law, Legitimacy, Interests
Master of Arts (M.A.)