Norm Contestation, Sovereignty and (Ir)responsibility at the International Criminal Court : Debunking Liberal Anti-Politics

Grappling specifically with the norm of sovereignty as responsibility, the book seeks to advance a critical constructivist understanding of norm development in international society, as opposed to the conventional – or liberal – constructivist (mis)understanding that still dominates the debate. Against this backdrop, the book delves into the institutionalization of sovereignty as responsibility within the lived practice of the International Criminal Court (ICC). More to the point, the proposed exploration intends to revive questions about the power-laden nature of the normative fabric of international society, its dis-symmetries, and its outright hierarchies, in order to devise an original framework to operationalize research on how – institutional – practice impinges on norm development. To this end, the book resorts to an original creole vocabulary, which combines the contributions of post-positivist constructivist scholars with the legacy of key post-modernist thinkers such as Michel Foucault and Jacques Derrida, as well as critical approaches to International (Criminal) Law and Post-Colonial Studies. The book will appeal to scholars of international relations and international law, in addition to critical scholars more broadly, as well as to practitioners in the fields of human rights and international justice interested in normative theory and the implementation and contestation of international social norms. Acknowledegments 7 Contents 8 Abbreviations 10 1 Introduction: Beyond the Practice-Norm Gap 13 1.1 A Critical Constructivist Approach 13 1.2 The Current Practice-Norm Gap 16 1.3 Redressing the Gap 18 1.4 The Structure of the Book 23 References 24 2 Sovereignty and the Life-Cycle of Norms Revisited 29 2.1 Introduction 29 2.2 Sovereignty: Beyond the Norm/Fact Incommensurability 30 2.3 The Westphalian Model of Sovereign Equality Discarded Once and for All 36 2.3.1 The Peace of Westphalia 37 2.3.2 The United Nations and Decolonization 39 2.4 Norm Development in International Society 43 2.4.1 Constructivism and Norm Development: Strengths and Shortcomings 44 2.4.2 Beyond Critique: Norm Development Re-apprised 47 References 51 3 Shaping Sovereignty as Responsibility at the ICC (Part I): The Rome Statute 58 3.1 Introduction: Between ‘Sovereignty-Limiting’ Rationale and ‘Sovereignty-Based’ Operation 58 3.2 The Institutional Architecture of the Rome Statute: Kowtowing to State Sovereignty 59 3.2.1 A Consent Regime 59 3.2.2 The Role of State Parties in Financial Oversight: From the Withholding of Resources to the Steering of Prosecutorial Discretion 62 3.2.3 The Lack of a Reliable International Enforcement Mechanism 64 3.3 Selecting Situations and Cases Before the ICC: The Contours of the Problem 67 3.3.1 Gravity and Its Muddy Waters: Between Legal Minimum Threshold and Discretionary Criterion 69 3.3.2 The Inescapable Ambivalence of Complementarity 75 3.3.3 The Continuing Mystery of the Interests of Justice 81 3.3.4 The Role of Judicial Review: Between Statutory Shortcomings, Missed Opportunities, and Structural Limits 83 3.4 Conclusions: The Untenability of Pure Legalism 87 References 88 4 Shaping Sovereignty as Responsibility at the ICC (Part II): The Test of Institutional Practice 96 4.1 Introduction: From Sovereignty as Responsibility to Irresponsible Sovereignty 96 4.2 A Tilt Towards ‘Sovereign-Backed’ Situations 97 4.2.1 Preliminary Examinations, Politics, and Pragmatism 100 4.3 Case Selection and the Court’s Blind Eye 104 4.3.1 Self-Referrals and the Hobbesian Turn Laid Bare 104 4.3.2 An ad hoc Court of the UNSC 112 4.4 The Persistent Failure to Successfully Prosecute Representatives of State Power 115 4.4.1 The Sudanese Stalemate 116 4.4.2 The Collapse of the Kenyan Cases 120 4.4.3 A New Course in the ICC’s Prosecutorial Strategy? More ‘Willing’ but Not Any More ‘Able’ 124 4.5 Conclusions: A Full-Blown Short-Circuit 130 References 132 5 Conclusions. Irresponsible Sovereignty: A Dead-End? 143 5.1 In Defence of a Greater Supranationalism? 143 5.2 The Role of Coercion in International Law: Another Round-Up 144 5.3 Sovereignty as Responsibility: A Re-Politicized Perspective 148 5.3.1 The Slippery Slope of Supranationalism 153 5.4 Closing Remarks 155 References 159