International Justice

CJ354 Endicott College

Realism and the ICC

International relations scholars as well as ordinary people have accepted that the international system is anarchic in nature, meaning there is no actor above states capable of regulating their interaction. Thus, states must arrive at relations with other states on their own, rather than it being dictated to them by some higher controlling entity. Moreover, many believe that the international system exists in a state of constant antagonism. States are also the most important actors in this system, and they are unitary and rational pursuing self-interest.

Yet, in this anarchic system, it is unclear where the ICC stands. It is an institution that operates outside of the sovereignty of states on a complementarity principle. While it operates a “back-up,” it can intervene without the consent of sovereign states because overarching international individuals believe that sovereign states are inadequately running their government or judicial procedures.

Despite the fact that states are rational actors who should be able to perceive when to call in international reinforcements, the ICC overrides their sovereignty when it gets involved. For example, in the Uganda case, it is clear that the state authorities thought themselves to be capable of handling the LRA commanders, yet the ICC still indicted Joseph Kony and four other elite LRA commanders. Are there abuses that are able to transcend sovereignty to necessitate international involvement? Also, what criteria does the ICC examine when it decides to intervene in national conflicts?

The vagueness of the Rome Statute and its articles is the main cause of frustration among sovereign nations, particularly the transitional ones. They often feel powerless before the ICC and the UN Security Council that is often behind it. Additionally, if the ICC as an institution were to create more binding, explicit provisions for its involvement in internal conflict of sovereign nations, perhaps it would build credibility. That way, its actions would not look arbitrary to other states. Further codification and explanation of the ICC will alleviate individual national concerns as to its violation of the anarchic system. Otherwise, it looks like the individual prosecutors behind the ICC and the UN Security Council are targeting states they deem irrational and incapable of using their own mechanisms to solve conflicts.

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4 responses to “Realism and the ICC

  1. seohchoi December 5, 2012 at 12:57 pm

    Realism and the ICC

    I actually believe that realism and the ICC are in conflict because states’ sovereignty hinders the ICC from functioning more efficiently, rather than the Court infringing upon states’ sovereignty. From Schiff’s article, Building of the ICC, it becomes apparent that one of the main problems of the ICC is that it is extremely difficult to obtain states’ cooperation. Because the Rome Statute does not provide the ICC with judicial authority, the Court has to rely heavily on states’ cooperation for funding, investigation process, and arresting of criminals.

    Even with funding, which is necessary for the functioning of the Court, the ICC only can rely on states’ cooperation. It cannot enforce any rules on the states, therefore can only ‘remind’ its members of the agreement they made while signing the Rome Statute. Even after the ICC receives enough funding from its member states, it still has to do its job ‘properly’ to satisfy its member states so that they will be motivated to fund the Court further.

    As evidenced by the arrest warrant for Kony, and many other international criminals, the ICC does not have militaristic power to exert its authority, and thus has to rely on its members states to arrest and bring these criminals to the Court. This is not to say that the Court is not influential because it can still put enormous pressure on states and international criminals by issuing arrest warrant.

    • patrickwu December 5, 2012 at 5:13 pm

      I agree with seohchoi’s points–the ICC is completely powerless without international support. Not only was this evidenced by the arrest warrant for Kony, but it was also evidenced by the way that the international community handled Libya. When international support was building up for a foreign intervention into the conflict, the ICC got on board with the rest of the international community and issued arrest warrants for three Libyan officials, including Muammar Gaddafi and his son, Saif Gaddafi. These arrest warrants were met with fervent international approval. Yet, in the present day, there is very little support to apprehend Saif al-Islam Gaddafi and Abdullah al-Senussi, who are currently being held by the National Transitional Council. As this article describes (http://mideast.foreignpolicy.com/posts/2012/10/08/no_winners_in_icc_libya_standoff), there is very little incentive for the international community to pursue the remaining two individuals. This can be explained by the realism theory–the states have already accomplished their goals, so they have very little interests in apprehending the last two individuals. Even the UNSC has been lackluster in their support.

      The Libyan case best exemplifies the ICC fits into realism. The ICC was created out of states’ self-interests in expressing their commitment to international justice–a state that expresses a commitment to human rights pleases many of the world’s most powerful countries in the international scene. The ICC is the physical form of these states’ desires. It has become evident over time that the ICC serves as a political tool for these states because they can choose when to invoke and disregard the ICC as they please. Uganda was the first state to refer their own case to the ICC, but Uganda soon distanced themselves from the court. Therefore, the shortcomings of the ICC can be explained by realism: the ICC was created out of the self-interests of the signing parties, which means the ICC can be used (or not used) as the states desire. The Rome Statute was created vague in order to serve the self-interests of each party that was interested in it, and that weakness is obviously reflected in the fact that the ICC has no power unless the states have the incentive to give it power.

  2. seohchoi December 5, 2012 at 1:12 pm

    I actually believe that realism and the ICC are in conflict because states’ sovereignty hinders the ICC from functioning more efficiently, rather than the Court infringing upon states’ sovereignty. From Schiff’s article, Building of the ICC, it becomes apparent that one of the main problems of the ICC is that it is extremely difficult to obtain states’ cooperation. Because the Rome Statute does not provide the ICC with judicial authority, the Court has to rely heavily on states’ cooperation for funding, investigation process, and arresting of criminals.

    Even with funding, which is necessary for the functioning of the Court, the ICC only can rely on states’ cooperation. It cannot enforce any rules on the states, therefore can only ‘remind’ its members of the agreement they made while signing the Rome Statute. Even after the ICC receives enough funding from its member states, it still has to do its job ‘properly’ to satisfy its member states so that they will be motivated to fund the Court further.

    As evidenced by the arrest warrant for Kony, and many other international criminals, the ICC does not have militaristic power to exert its authority, and thus has to rely on its members states to arrest and bring these criminals to the Court. This is not to say that the Court is not influential because it can still put enormous pressure on states and international criminals by issuing arrest warrant. However, the ICC could further utilize its power if there was a better way of obtaining states’ cooperation. This idea of providing the ICC with such power would be checked by the idea that there is no higher sovereignty over states, perpetuating the dilemma over realism and the ICC.

  3. mfcarpenter December 5, 2012 at 2:24 pm

    The issue of states’ sovereignty is certainly not a new consideration for international law. Much of international justice inherently infringes states sovereignty — but international legal institutions are not the only methods of “violating” sovereignty. Powerful states, such as the U.S., often are involved in various forms of intervention (sanctions, military, diplomatic, among others) when it’s appropriate. While the scholarly literature, and controversy, over interventions is enormous, it illustrates how not only institutional breeches on sovereignty exist in an anarchic international system.
    Yet, for the ICC – their power is limited, but necessary (in my opinion). Many authors we’ve discussed this quarter have debated the power and politics of the ICC, but lets consider the alternative. Assume that sovereignty is the primary principle respected among the international community – violations within the borders of a state become beyond the international communities responsibility, and State’s have no incentive to uphold civil liberties and human rights.
    This is partly why the UN adopted the resolution of the Responsibility to Protect (R2P). This norm alters the conception of sovereignty to mean ‘responsibility’. State’s have a responsibility to protect their citizens from war crimes, crimes against humanity, genocide and ethnic cleansing. When a state has failed in that responsibility, it becomes the duty of the international community to take timely and decisive action to resolve the conflict. To me, this also open’s doors for the ICC. By altering the conception of sovereignty, R2P (in theory) articulates when action should be taken — and a decisive action could certainly include judicial repercussions.

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