Norm Contestation, Sovereignty and (Ir)responsibility at the International Criminal Court

This chapter seeks to reorientate the set of theoretical foundations underpinning the sovereignty as responsibility debate, namely, not only the conventional constructivist understanding of norm development but also the concept of sovereignty, and the model of sovereignty commonly assumed as the benchmark for assessing change. As a whole, the chapter challenges any reading of international society that ends up collapsing on either the domain of ‘ideas’, ‘agency’, and ‘intentionality’ or the domain of the ‘material’. Instead, the proposed reappraisal focuses on the recursive quality of the relationship between structure and agency, and the implications thereof in the (re)production of unequal social, political, juridical realities. More to the point, it offers a critical—and, notably, post-positivist—qualification of Finnemore and Sikkink’s model. This brings the configuration of normativity as part of institutional practice to the forefront of the analysis, in the attempt to offer an innovative account of normative change—and (change in) sovereignty, more specifically—distinguishly receptive to questions of power and power inequalities.

This chapter shows that the ICC relies on a largely unchanged structure of International Law to the degree it places some of its major functions at the disposal of state processes and decisions. The analysis unfolds in two main parts. Firstly, it addresses the ICC’s dependence on the elective commitment of sovereign states—to establish and accept the Court’s jurisdiction and to give it access to the resources and tools needed to achieve successful investigations and prosecutions. The second part specifically delves into the statutory mechanism for the selection of situations and cases. The resulting analysis substantiates the view that the ICC sits at the crossroads between the idealistic vision of a court meant to prosecute cases that domestic authorities cannot or will not prosecute, and the pragmatic—when not plainly political—constraints of an institution placed in the pressing need to recruit state power for its cause. As a whole, the chapter suggests that the Rome Statute is built around a basic tension—between ‘sovereignty-limiting’ rationale and ‘sovereignty-based’ operation, which crucially impinges on the Court’s own ‘ability’ and ‘willingness’ to investigate and prosecute.

In line with the updated understanding of the norm life-cycle outlined in Chap. 2, the present chapter moves forward in the attentive critical scrutiny of the ICC’s lived practice undertaken in the previous chapter. It shows that the tension between ‘sovereignty-limiting rationale’ and ‘sovereignty-based’ operation therein described is unequivocally reflected in the ‘tribunalization’ of a highly selective range of violence and the sanctioning of an even more restricted selection, which both lay bare the Court’s subjection to the existing distribution of power both among states and within them. More to the point, such tension cuts utterly against the normative aspirations of sovereignty as responsibility, specifically by leaving the Court practically ill-equipped to break with a notorious pattern of hyper-protected sovereignty. This is most clearly exemplified by the fact that to date the ICC has been utterly ‘unable’ to successfully prosecute crimes of individuals who can rely on governmental protection. Furthermore, the selectivity of the Court’s intervention looms even more severely if we consider that all the individuals who are or have been in the Court’s custody—indeed, all ICC defendants to date—are African and black—a fact that powerfully exposes the continuing rac(ial)ism, civilizing impulse, and coloniality of the liberal international project. Hence, the conclusion that contemporary calls for normativized practices of conditional, provisional recognition should no longer appear as game-changing, but rather placed against a persisting backdrop of core/periphery relations, and West’s assumed position of superiority.

This concluding Chapter discusses the ICC’s controversial achievements described earlier (Chaps. 3 and 4) in light of the theoretical framework outlined in the first part of the book (Chap. 2). Focusing on questions of delegation to international institutions, the Chapter cautions against a straightforward invocation of greater forms of supranationalism. Instead, it seeks to problematize questions about the feasibility and desirability of a greater transfer of authority and coercive capabilities to the supranational level, and it, ultimately, proposes a critical reconsideration of the idea of sovereignty as responsibility itself. According to this, projects of the kind of a global power to prosecute cases and punish criminals are more about ‘traditional’ sovereignty than they are about representing any real alternative. Hence, the conclusion that the prospects of sovereignty as responsibility can only be validly assessed from an analytical standpoint genuinely critical of liberal depoliticization; that is, receptive to the modes of power that are tied to the protection of rights—even in a supranational and cosmopolitan framework—and to acknowledge them as both a tool and a potential curse for the enforcement of such an order.