This chapter proceeds to the question of the authority of international criminal law. Although there are links between international criminal law and public international law, rooted in the treaty agreements which created the former, the partly compulsory nature of international criminal law sets it apart from other forms of public international law. Accordingly, this chapter focuses on the way in which the Rome Statute’s jurisdiction, as its primary exercise of power, and, potentially, authority are set out in the treaty and how this may affect its authority. As its jurisdictional provisions also permit the UNSC to make referrals to the Court, where a situation threatens international peace and security, the question of this power going beyond ‘typical’ jurisdictional powers is discussed in the context of power politics. This will allow an exploration of the mechanism as a legitimate exercise of power.

The final substantive discussion looks at the idea of authority rooted in both justice and rights, discussing the development of international criminal justice alongside the human rights movement, and the way in which the justification for following such rules in rooted in an understanding of the rules serving the international population, particularly those vulnerable to atrocity crimes and victims of previous crimes. It examines the implications for a theory of authority based on rights for areas such as positive complementarity and UNSC referrals, and how these areas may need to adjust to conform to an understanding of authority which supports the legitimate exercise of power in this area. As is frequently noted, the Court’s main aim is to end impunity. If this is truly the case, it should move towards a complete approach to complementarity. This completeness should involve the generalised support for domestic prosecutions to ensure that its exercises of power are truly legitimate.

Much has been written about the legitimacy of international criminal law and the International Criminal Court. The underlying problem of what would constitute legitimacy or authority for the Court is rarely explored. This work seeks to deal with the issue by exploring the concept of authority and seeking to provide a theory of authority of international criminal law. The overarching intention of the work is to contribute to a more focused debate on the reasons for the Court’s perceived and actual lack of legitimacy.

The work concludes by drawing together the threads of the theory of authority, demonstrating its quiet controversy and undermining its conceptualisation as an archaic aspect of jurisprudence. It is aimed to demonstrate the significant implications that a failure to adequately understand and set out the authority of institutions in international criminal law could have. The question of legitimacy is redundant should there be no exploration of authority, and thus the initial discussion, which demonstrated the link between authority and legitimacy, provided a foundation for the discussion of, effectively, whether exercises of power in international criminal law can be viewed as legitimate.

This chapter examines the role of authority in public international law, based on the preceding discussion of authority and legitimacy in the context of exercises of power. Although there is a source of power, if not authority, at the domestic level in the form of government, this does not automatically transfer to the international level. This is primarily because the international system exists without a central authority. The question automatically arises of who ought to be able to make such rules, and whether the requirement for the exercise of autonomy is still as critical as it would be at the domestic level. The discussion is based on an analysis of foundational texts, exploring the ideas of authority at the international level expounded by Grotius and Vitoria, before moving on to work by more recent authors.

This chapter begins to shape the theory of authority posited by this book, by exploring the way in which the authority of international criminal law is rooted in both justice and rights, exploring the development of international criminal justice in parallel with the human rights movement, and the way in which both have sought to serve victims of abuse. It also explores the way in which a reliance on State consent as the source of authority can undermine the authority of international criminal law. This argument is underpinned using Third World Approaches to International Law (TWAIL) scholarship, which offers the opportunity to move away from the Euro- and State-centric approach to international criminal law and encourages a greater focus on domestic prosecution. The discussion engages with what this complete approach should comprise, exploring the impact of generalised support for domestic prosecutions to ensure that its exercises of power are truly legitimate.

This chapter deals with an analysis of sovereignty and complementarity, including the political idea of ‘sovereignty costs,’ in which powerful actors will commit to actions which limit their power to achieve overarching aims. The exercise of complementarity in both postcolonial States and wealthy, Western States are also examined to determine whether such exercises of complementarity undermine the Court, or if these could reinforce the Court’s authority. The issue of shielding, as the protection of citizens from international prosecution through obfuscation, as a natural corollary to the preceding discussion, is then analysed, taking the examination of the situation in the UK/Iraq as a prime example. This serves as a precursor to a discussion of the examination of Afghanistan, which may confront the same issues and should be considered given that the UK/Iraq examination by the Court has now been concluded.

This chapter examines how the concept of authority relates to questions such as how law binds its subjects, and whether certain rules ought to be followed. This is important at all levels of rule-making, but particularly so in respect of domestic criminal law, because of the way in which criminal law requires individuals to adhere to a certain level of conduct. These restrictions, such as they are, have a direct impact on individual autonomy with the aim of protecting the vulnerable and securing society in respect of crimes against the person. Although it is acknowledged that criminal law regulates a variety of conduct, the focus here is on crimes against the person because of its relevance to much of the conduct proscribed under international criminal law.