Introduction
Ever since its inception, the International Criminal Court (ICC or Court) has been in the spotlight of public debates about the increasing role of international jurisprudence in world politics. It has been hailed as an important step forward in bringing an end to impunity for international crimes, but it has also met with persistent criticism from different sides, whether for being too legalistic or too political. States that reject the Court’s mandate to investigate and try individual citizens have rebuffed and at times even threatened the Court – for example, in 2020, the Trump administration imposed sanctions against ICC Prosecutor Fatou Bensouda – while critics who are in principle sympathetic to its mandate often see it falling short of its ambitious goalsFootnote 1 and contest the Court’s focus on suspects from weaker and especially African states.Footnote 2 The decision of 17 March 2023 by the Office of the Prosecutor (OTP) to issue an arrest warrant for Russian President Vladimir Putin and another Russian official has also been both warmly welcomed and fiercely condemned. Focusing on more advanced instances, the Court has spurred controversy in recent years notably for not opening an investigation into alleged crimes committed by British armed forces in Iraq, for opening up such investigations into the conduct of US forces – alongside Taliban and former government forces – in Afghanistan, and for confirming its own jurisdiction to investigate potential crimes perpetrated by Israeli authorities – as well as Palestinian groups – in the West Bank, East Jerusalem, and the Gaza strip.Footnote 3 Going beyond the ‘usual suspects’, but again provoking endorsement, outrage, and rejection, these three decisions shed new light on the old question of the Court’s difficult position at the contested intersection of (international) law and politics.
The ICC has often been interpreted through the prism of the complex relationship between ‘law’ and ‘politics’ as distinct spheres that compete with and yet cannot let go of each other. To be sure, this dichotomy has haunted debates about international courts in both international law and International Relations (IR) more generally, and it underpins the great hope of the last century or longer for a ‘judicialisation’ of world politics, which is also linked to the move from the domestic to the international or global sphere,Footnote 4 from the perceived parochialism of state sovereignty to the horizon of a shared humanity.Footnote 5 This move towards international law and its setbacks have been discussed in various domains, from security to trade to environmental law,Footnote 6 but it is arguably in international criminal law, and human rights law, that the moral impulse of moving beyond ‘realist’ power politics – by ending the impunity for perpetrators of international crimes – captures the ‘legalist’ imagination of the judicialisation of world politics most vividly.Footnote 7 Following the ad-hoc tribunals of the 1990s on crimes committed in Rwanda and on the territory of the former Yugoslavia, the establishment of a permanent international criminal court appeared as a pivotal step in this direction.Footnote 8 The problem is only that the relationships between both politics and law and between state sovereignty and the international sphere are more complicated than a progressive story from one to the other would suggest.Footnote 9 For one, as the recent discussion of ‘dejudicialisation’Footnote 10 illustrates, the trend is no longer so clear. Apparent episodes of ‘backlash’Footnote 11 against international courts are on the rise, and renewed ‘politicisation’Footnote 12 appears as a reaction to the increasing role of technical expertise in international affairs more generally.
More fundamentally, however, sociological and critical-legal inquiries into international courts, including the ICC, have shown that the line between legality and politics itself is blurred, constantly shifting, and time and again sharply redrawn.Footnote 13 If legal arguments are in principle indeterminate, contingent, and malleable,Footnote 14 and if in practice they coalesce around particular preferences, rationalities, and habits,Footnote 15 then politics is routinely involved in legal inquiries, proceedings, and decisions, without the law losing its specificity as a particular arena of professional reasoning, style, and conduct. Similarly, if the emergent field of international criminal lawyers, activists, and scholars is transnational in its origins, scope, and concerns,Footnote 16 and if domestic courts invoke international law while international courts resort to state discretion or responsibility, then it becomes difficult to sketch a linear development from a world of sovereign states to one of an international law of humanity.Footnote 17
Yet the sharp distinction between international law and politics does not need to be thought of as either a substantive opposition or entirely enmeshed in the everyday politics of international courts. As we argue in this article, there is a third way to conceptualise and study the distinction, which is perfectly compatible with the sociological and critical view but also takes the seemingly sharp opposition of traditional legal and realist – and more recent (de-)judicialisation – perspectives seriously. Taking our cue from an interdisciplinary body of critical and constructivist literature highlighting the performative effects of boundary-drawing through technical expertise,Footnote 18 we draw attention to the meta-political use of the divisions between international law and politics by the Court itself. That is, we maintain that the Court itself invokes sharp distinctions between politics and law, states and the international, but does so flexibly, contingently, and with important consequences for the arguments it advances in any particular situation. This happens when the Court constructs ‘legal’ cases, excludes ‘politics’, defers to or relies on states and ‘domestic’ institutions, or applies ‘international’ rules. Politics then has two faces: it is, on the one hand, the seemingly substantial sphere that is designated as being opposed to law, much as in realist and legalist views and perspectives on (de-)judicialisation; but it is also, on the other hand, the particular interpretation by the Court of where these boundaries lie, a decision that is itself an instance of the politics of international law. The Court, in this analysis, refers to the institution as a whole and includes its different organs, such as the OTP as well as pre-trial, trial, and appeals chambers. In fact, as some of the cases show, these different bodies of the Court might well disagree, but they all routinely presume, invoke, and shift the lines between international law and politics – while speaking and proliferating the vernacular of international criminal law.
This change in perspective has three important implications. First, it clarifies and orders competing notions of ‘politics’ and ‘legality’ on two levels that can then be reintegrated for the critical analysis of the ICC and other international courts. Second, it advances an explanation for the apparent paradox that an expanding international court based on a legal approach is haunted by charges of politics, by showing that the Court is structurally compelled to meta-politically draw the line between international law and politics. This can only be (meta-)political, even if it proceeds through legal technicalities, because the ICC cannot defer the determination of politics and legality to any other institution. Third, it sheds light on a dilemma of the ICC, namely that it both expands international criminal law and entangles it with the old opposites of politics and law, sovereign states and the international sphere.Footnote 19 The result is a Court that is condemned to perpetually reproduce divisions of international law and politics that are both its condition of possibility and its limitation, thus illuminating the sources for a key tension in the development of international criminal law and the ICC.
This contribution is subdivided into five main sections. The following section revisits the literature on the ICC to discuss how different theoretical approaches conceptualise the intersection of (international) politics and legality as substantially opposed or enmeshed. In the subsequent section, we emphasise the contingent meta-politics of legality that lie in redrawing the boundaries between international law and politics through technical expertise in international – criminal – law. To probe the merits of this approach empirically, we then briefly analyse in the three following sections the recent decisions to (not) open investigations in the situations of Iraq, Afghanistan, and Palestine. As these vignettes illustrate, it is through the meta-politics of legality that the Court exercises its role at the crossroads of international law and politics. Rather than an anomaly or analytical difficulty, the blurred boundaries of legality and politics, states and the international, appear thus as the very source of the ICC’s evolving position in international affairs. A brief conclusion summarises the article and suggests inroads for future research on the ICC and international courts.
From judicialisation to boundary-drawing: Perspectives on the ICC’s politics of legality
The promise of international criminal justice in general and of the ICC specifically to incrementally supplant the traditional prerogatives of sovereign states by ending impunity for international crimes has been much discussed in international law and IR alike. This debate also reflects the larger question of how (international) law and politics relate to each other. While some literatures, including traditional realist and legalist accounts, have emphasised the opposition between international law and politics, others, such as sociologies of law and critical-legal approaches, have instead drawn attention to the inherent politics of law itself.
In this section, we briefly revisit these traditional and critical perspectives in the literature on international law and politics – and on international criminal law and the ICC specifically – to highlight how the former affirm the binaries between international law and politics, whereas the latter tend to entangle them. This short review prepares our own argument for paying particular attention to how the binaries between law and politics, and the international and states or the domestic, are both contingently constructed and yet constantly reaffirmed.
Law versus politics? Realism, legalism, and (de-)judicialisation
Supporters of the project of international criminal justice, both in academia and civil society, as well as the ICC itself regularly conceptualise law and politics as two autonomous and competing spheres. Nouwen and Werner summarise this position for the ICC as seeking:
to stay clear from politics, to subordinate politics to law, and speak law to power. Politics, in other words, is portrayed as external to law, as something that needs to be overcome […]. In this understanding, the Court’s fight against impunity is also a struggle with, or even against, politics.Footnote 20
As Simpson observes, war crime tribunals were regularly framed as ‘trials of the “political”, or, at least, indictments of the political’.Footnote 21 This understanding not only separates law and politics but also draws a clear line between states and the international. It establishes a hierarchy between these two spheres where the international sphere is seen as better equipped to deal with the adjudication of international crimes than states. For instance, Cassese argued that the proliferation of international criminal bodies during the 1990s set in motion a ‘seismic shift’, as ‘for the first time international bodies penetrated that powerful and historically impervious fortress – state sovereignty – to reach out to all who live within this fortress’.Footnote 22 International criminal law thus ‘domesticates’ the international and transforms it into a sphere pursuing justice for humanity.Footnote 23
Others, however, have regarded this move as politics by other means or claimed that ‘political questions’ cannot be adjudicated by international (criminal) bodies, or only in a way that is itself political in disguise.Footnote 24 Recent critics, such as Zolo, have argued that war crimes tribunals, as well as the ICC, established a ‘dual-standard system’ of international criminal justice,Footnote 25 where ‘major powers and their political and military authorities … enjoy total impunity’ while ‘victor’s justice [is] applied to vanquished, weak and oppressed peoples’.Footnote 26
Both positions, namely that taming world politics through international (criminal) law is either possible (the legalistic view) or impossible (the realist view), seem to stand in clear opposition. Yet, as Krever observes:
beyond their apparent antagonism, both positions share an idealized notion of an apolitical trial – both insist that war crimes trials should and can be apolitical. Politics enters in the misuse of the legal form for political ends – to eliminate political opponents, as in claims of victor’s justice – or in the deformation of procedures and rules or absence altogether of legal process.Footnote 27
This debate has recently been updated by approaches to judicialisation that aim to conceptualise and empirically explore the role of courts and tribunals in world politics, including the ICC. Despite the particular attention the ICC has attracted in the public debate, its inception and development are also seen as part of a larger trend of ‘judicialisation’.Footnote 28 In IR, this research programme follows in the footsteps of earlier studies of ‘legalisation’Footnote 29 but focuses more particularly on the proliferation and increasing role of courts and tribunals. The literature on judicialisation and legalisation speaks to a liberal tradition in IR, which has long argued that international organisations and institutions would contribute to a rules-based international order that could tame or overcome the primacy of power politics.Footnote 30 Judicialisation therefore suggests not only a quantitative accumulation of ‘more law’, but also a qualitative transformation of international affairs through judicial institutions.
Yet while the general focus of the judicialisation literature indicates a twofold movement from politics to legality and from the domestic to the international level,Footnote 31 the literature is at the same time wary of any teleology.Footnote 32 State elites, as well as constituencies, have not disappeared from the picture. The growing role of courts has been met with an apparent ‘backlash’,Footnote 33 ‘de-judicialisation’,Footnote 34 and renewed ‘politicisation’.Footnote 35 In other words, whether, when, and how (de-)judicialisation takes place is an open question and must be empirically explored rather than presumed. Yet irrespective of the complex intricacies of judicialisation and de-judicialisation, at least conceptually the literature still pits the judicial authority of international courts against various political actors, whether they support, undermine, or use them for their own – political – purposes.Footnote 36 Ultimately, then, international law and politics are treated as substantively distinct spheres, despite their complex empirical entanglements.
The politics of law: Sociology of the judicial field and critical-legal studies
Within critically inclined sociological and legal perspectives, legality as a social field and practice is not the opposite of politics but is itself imbued with a particular form of politics. Pierre Bourdieu, for instance, rejected both legalistic or ‘formalist’ and realist or ‘instrumentalist’ approaches because ‘these two antagonistic perspectives, one from within, the other from outside the law, together simply ignore the existence of an entire social universe’, which is the ‘judicial field’.Footnote 37 The ‘judicial field’, Bourdieu explains, is ‘the site of competition for monopoly of the right to determine what the law is’.Footnote 38 While Bourdieu focused on the (French) domestic judicial field, which is traditionally structured by the monopoly of the state,Footnote 39 his approach has been adapted to analyse the emergence, stabilisation, and ordering of a trans- and international legal field.Footnote 40 From this perspective, the process of judicialisation must be understood as the growth and increasing role of the ‘ever expanding international judiciary in terms of a transnational power elite’, which is not defined by its ‘institutional affiliation but by its collective transnational power’.Footnote 41 Politics is thus largely defined as struggle for status and power playing out between different groups or types of actors within this particular emergent field, and can be ‘mapped’Footnote 42 in terms of court staffing, biographic trajectories of judges, and patterns of reasonings and rulings.Footnote 43
To better understand how the ‘field of international criminal justice’Footnote 44 or ‘transnational field of criminal justice’Footnote 45 demarcates itself from and competes with other fields, its differentiation from inter-state diplomacy has been highlighted,Footnote 46 as well as the attempt within this emerging field to become independent from domestic bodies adjudicating international crimes.Footnote 47 Others have traced the struggles within this specific field as a competition between different forms of expertise provided, for instance, by human rights advocacy groups,Footnote 48 international law scholars,Footnote 49 and the judiciary at the ICC.Footnote 50 As Mégret points out, the field of international criminal law, as international law in general, is not simply yet another field of technocratic expertise but is characterised by its ‘specifically legal dimension’.Footnote 51 In other words, the legal field is imbued with politics, but politics articulated in terms of law and the legal profession.
In contrast to these sociological explanations of court politics, critical-legal perspectives rather highlight, and keep open, their contingency.Footnote 52 Instead of seeking to explain why or how particular decisions have come about or form larger patterns, critical law scholars analyse their conditions of possibility within legal discourse, and their creative use. From this angle, international law is composed of fundamental tensions and oppositions between core principles. It operates in practice by entangling such opposites to craft persuasive legal arguments that could have been made differently. In other words, international law is, logically speaking, indeterminate.Footnote 53 Within this apparent predicament for judicial decision-making lies the ‘politics of international law’,Footnote 54 which is not an accident, a derivation, or a perversion, but the necessary underpinning of proper jurisprudence. Without preconceptions, dilemmas, and difficult choices, there is no genuine interpretation; and without interpretation, no genuine jurisprudence.Footnote 55
The critical perspective also helps understand why the ICC is so often accused, and from opposing sides, of being political. As Robinson highlights, when an investigation by the ICC is triggered by a referral from a State Party or the UN Security Council (UNSC), the Court appears to do the bidding of states, while if the Prosecutor’s Office launches an investigation by proprio motu initiation, the Court is charged for its utopian, political agenda.Footnote 56 Similarly, the Court can appear to pick too easy or too difficult cases, collaborate too closely with states or not enough, and to speak too ambitiously in the name of humanity or to defer too timidly to states and conservative principles of international law. In trying to escape these dichotomies, Robinson shows that the Court balances different considerations – crafts legal arguments – that convince and can be defended but remain nevertheless vulnerable to counter-arguments.Footnote 57 The politics of international law are thus inherent to international legal jurisprudence, including that of the ICC.
This does not mean that ‘anything goes’. Indeed, much as sociological perspectives, critical-legal studies emphasise the expertise of international lawyers to use and re-enact the fundamental binaries of international law. As this expertise constitutes their professional competence,Footnote 58 international lawyers must take care not to transgress the occasionally thin line between judicial lawmaking and judicial activism.Footnote 59 In other words, the politics of international law remains distinctly tied to the logic of legality and operates within flexible but professionally limited ‘bounds of sense’.Footnote 60
In line with the interest in the politics of decision-making and technicalities, critical-legal and constructivist perspectives have also increasingly looked into the role of expertise and specific regimes of knowledge in shaping international institutions and thereby participating in ‘world making and world ordering’,Footnote 61 that is, actively shaping the reality of international affairs by interpreting and adjudicating over it from specific vantage points.Footnote 62 The politics of international law lies not only in the principal indeterminacy of legal arguments, assessments, and decisions, but also in the way specific regimes and institutional perspectives frame questions of international law, which differs between environmental, trade, and human rights law, for instance. This adds another dimension of contingency and further emphasises the creative dimension and ‘productive power of legal arguments’.Footnote 63 International law, courts, and legal decisions not only operate within given constraints but also ‘produce … realities, symbolic orders, and power’Footnote 64 by reflecting particular commitments and techniques and inscribing them through the associated reconstructions of cases onto the world.
Despite the differences between sociological and critical-legal approaches, both enmesh politics and legality so that their distinction no longer substantively demarcates international law. Instead, the practice of international law is defined by the specific type of politics that operates by means of legality.
Drawing boundaries, crafting authority: The meta-politics of legality
Sociological and critical-legal approaches question the substantive dichotomy between international law and politics and instead point to the politics of legality and the legal field itself. Yet this does not mean that the distinction itself would no longer play any role. In fact, as we highlight in this section, it is a constitutive boundary that international courts, including the ICC, employ themselves to demarcate their competence and authority. Here, we focus on these meta-politics of drawing the boundaries by which the ICC both expands the project of international criminal law, framed in the language of a shared ‘humanity’, and at the same time falls back on the old dichotomies of (international) law and politics.
We refer to the ‘re-entry’ of the key distinctions between law and politics, as well as states and the international, as meta-politics of legality. It is a particular dimension of the court politics discussed above, and specifically highlights the re-inscription of the key distinctions between (international) law and politics that are invoked in, and bear on, the more technical legal assessments made by various bodies of the Court in concrete instances. These distinctions, while contingent and flexible in principle, have an effect when they are rhetorically invoked as fixed and substantive by the Court. As such, their use is itself political, by virtue of deciding whether a particular matter, or parts of it, should be included as legal or excluded as political, whether it falls under the jurisdiction of the Court or is left with or pushed back to the jurisdiction of states. In practice, this boundary-drawing is made possible by the competent use of legal ‘technicalities’Footnote 65 and fine-grained interpretations and reinterpretations.Footnote 66 The devil is in the detail, and only close textual analysis of the arguments, decisions, and revisions by the prosecutor and different chambers of the Court reveals the (meta-)politics of crafting professional, technical legal arguments by which the dichotomies of (international) law and politics are redrawn.Footnote 67 As such, the meta-politics of legality are entangled with the politics of legality more generally but differ from other forms of it.Footnote 68
The meta-politics of the ICC, more specifically, is conditioned by what Mégret calls the ‘founding paradox’ of international criminal law, i.e. ‘that it is criminal law without the state’.Footnote 69 This does not mean that the state is absent, but that there are multiple states, and no monopoly of force or legislation. International criminal law ‘operates at the intersection of the domestic and the international: from the former it borrows the characteristic penal form, whilst the latter gives it its scope, ambition, and environment’.Footnote 70 As such, the Court’s authority in international (criminal) law is entangled with its authority to decide what an international (criminal) legal matter is in the first place, which means arguing both that it is a legal matter, and not a political one, and that it specifically calls for international attention and authority, and not first and foremost for domestic.Footnote 71 Yet the Court’s meta-politics is also premised on ‘re-imagining the international’ as a sphere of ‘humanity’ beyond sovereign states,Footnote 72 extending the specific logic of international criminal law as part of a larger project of ‘humanity’s law’.Footnote 73 Importantly, the concept of humanity is, as Graf writes in a discussion of universal crimes, ‘politically productiv[e]’ as it gives new meaning to the international.Footnote 74 In this constellation, international criminal tribunals, such as the ICC, seek to function as representatives of humanity in their decisions. Yet, as Corrias and Gordon point out, by their attempt to ‘represent … humanity as a whole, international criminal tribunals engage in a constitutive act by which they establish that which they purport to represent’.Footnote 75 Moreover, as bodies of international criminal law, they attribute responsibility to individual perpetrators. As has been repeatedly argued by these bodies, not states but individuals are on trial. By turning to individual perpetrators and victims, and by placing humanity at the horizon of the international beyond sovereign states, the ICC promotes a particular project of the transformation of international law, one that differs in its world-making from other projects.
The ‘founding paradox’ both conditions and perpetuates the meta-politics of the ICC: while the Court derives legitimacy from a promise of advancing an agenda of transforming international law, it also actively uses the distinctions between states and the international and between politics and law for its own purposes as a court of international criminal law. That is, since the Court derives its authority from the crossroads of (international) law and politics, which constitute an ‘interface in flux’,Footnote 76 it ironically also re-enacts these traditional boundaries, all the while using them to advance the project of international criminal justice. Between transformation and reproduction, the Court has considerable leeway – or authority – to draw the boundaries between (international) law and politics in specific instances.
In the remainder of the article, we focus on three recent ICC decisions regarding potential international crimes committed in – and beyond – Iraq, Afghanistan, and Palestine to illustrate the Court’s meta-politics of legality in practice. The analytical purpose is neither to provide a comprehensive legal or sociological review of these decisions nor to ‘test’ our approach in competition with others, but rather to showcase the added value of a perspective on meta-politics by highlighting how the Court uses its technical expertise to contingently draw the distinctions between (international) politics and law in different contexts. Other examples could have been chosen, but apart from presenting recent decisions made between 2019 and 2021, these three instances stand out because they qualify the realist narrative of the Court’s restraint vis-à-vis Western or powerful states, as they include, inter alia, the armed forces of the UK, the US, and Israel. They seem thereby also at odds with the criticism of the ICC as a ‘European Court of African Affairs’,Footnote 77 reflecting the project of then-Prosecutor Fatou Bensouda to react to these criticisms by turning the ICC into a ‘global’ court, with a concern for cases beyond Africa.Footnote 78 While we do not study cases where the ICC ‘avoids’ investigating at all,Footnote 79 our three examples concern attempts by the Court to expand and stretch its mandate into areas where it had been previously inactive. The three cases can thus be understood as particularly challenging instances for the ICC, as they put the Court’s need to (re)draw the boundaries of (international) law and politics in the spotlight. Moreover, all three decisions concern the crucial question of whether a preliminary examination would turn into a proper investigation, in which case the ICC ‘owns’ the case and the OTP can use the Court’s full resources and eventually bring the case to trial. At the same time, they offer variety, since they differ in their outcome and reflect three different mechanisms for considering a particular situation within the Court. The Iraq situation was opened by the OTP by its own initiative (proprio motu) but then closed again after six years of examination due to the application of complementarity. The Afghanistan situation was also opened by the OTP proprio motu but not closed and instead turned into a full investigation – which was initially denied by a Pre-Trial Chamber (PTC) but then granted by the Appeals Chamber. Finally, after Palestine’s self-referral, the OTP asked a PTC whether it is possible to open an investigation in the territory of Palestine, and the PTC decided in favour. In all three instances, the mobilisation of technical legal concepts such as ‘complementarity’, ‘genuineness’, ‘interest of justice’, and ‘jurisdiction’ plays a decisive role. The Court’s ‘ability to assess … whether a state is “able or willing” to prosecute those individuals brought before it, or the prosecutor’s ability to take into account “the interests of justice” in determining whether to investigate or prosecute, provides important openings to contextual and extra-legal considerations’.Footnote 80 Most prominently, the principle of complementarity is rather ambiguous as it ‘by definition lack[s] a definition’Footnote 81 but serves as a powerful tool occasionally used to (re)draw the line between the international and the state in practice. Finally, questions of jurisdiction compel the Court to engage with and invoke again the territoriality of states.
Complementarity, ‘genuineness’, and domestic legality: The Iraq/UK preliminary examination
On 9 December 2020, the OTP, under Bensouda, announced that it would close its preliminary examination related to the UK involvement in the Iraq War and thus not seek authorisation from one of the Court’s PTCs to open any further investigations. The OTP justified the decision by stating that the principle of complementarity would apply.Footnote 82 Complementarity is a technical notion crucial in delineating the jurisdiction between national courts and the ICC. While previous international criminal tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), exercised primacy over any national courts, a case before the ICC is only admissible if a state is ‘unwilling or unable genuinely to carry out the investigation or prosecution’.Footnote 83 Complementarity thereby marked a compromise in the negotiation process of the Rome Statute between maintaining state sovereignty in a traditional sense and transferring sovereign rights to the international level, aiming at increasing the number of states joining the Statute.Footnote 84 Importantly, however, the Statute did not settle the matter, as complementarity quickly became an issue of interpretation and judicial politics – and not an automatic ‘mechanism’ or ‘trigger’ as often framed. First, different notions of complementarity emerged. For instance, a ‘classical’ notion of complementarity, where complementarity ‘preserve[s] and protect[s] domestic jurisdiction’ and works as a ‘threat-based concept’ of ‘carrots and sticks’, has been contrasted with a ‘positive’ version of complementarity, understanding it as a ‘forum of managerial interaction between the Court and States’.Footnote 85 This latter interpretation, which enhances the power of the ICC, has been advocated by the OTP, while the former has been regarded as being more in line with the legal text.Footnote 86 Second, concepts closely linked to complementarity have become sites of reinterpretation, including the notion of ‘unable’ and ‘unwilling’Footnote 87 and, as we will see in the decision on the Iraq/UK situation, ‘genuineness’. Thus, in the Iraq/UK situation, the meta-politics of legality was embedded in the (re)interpretation of the technical notion of complementarity and the related concepts of ‘unable’, ‘unwilling’, and, in particular, ‘genuine’. To zoom into the Iraq/UK decision allows us thus to interrogate the reasoning process of the ICC, especially the OTP, thereby reconstructing its rationale in meta-politically drawing the boundary between the domestic and the international.
In 2014, the OTP decided to reopen the preliminary examination into the situation in Iraq. A previous examination had been closed by then-Prosecutor Luis Moreno Ocampo in 2006. Based on the information available to the Prosecutor at the time, the required gravity threshold of the Rome Statute was not met.Footnote 88 However, new communication brought forward by the legal activist networks European Center for Constitutional and Human Rights (ECCHR) and Public Interest Lawyers led to a reversal of the initial decision and the reopening of the examination. The new examination focused on alleged war crimes, in particular the abuse of detainees, in Iraq between 2003 and 2006 in the context of Operation Telic, which was the military codename for all UK military operations between the invasion of 2003 and its withdrawal in 2011. As Iraq is not a State Party to the Rome Statute, the OTP could not examine potential international crimes on Iraqi territory (under jurisdiction ratione loci) but was restricted to the wrongdoings of UK nationals, which it could investigate because the UK is a State Party (under jurisdiction ratione personae) (paras. 69–74).Footnote 89 However, after more than six years of preliminary examinations, the OTP decided in December 2020 to not open a full investigation.
As the OTP states in this decision, the reason for not seeking authorisation to open an investigation lies in ‘the nature of the ICC’s admissibility regime’ (para. 9). According to the OTP, the ‘ICC is not a human rights body called upon to decide whether in domestic proceedings the requirements of human rights law or domestic law have been violated’ (para. 9). The ICC, as an international criminal court, can only investigate international crimes. Thus, the OTP had to evaluate whether acts had taken place that constituted one of the international crimes included in the Rome Statute. As the OTP concluded, this had been the case, as members of British forces committed war crimes against Iraqi civilians in detention (para. 9). In a second step, however, the OTP had to decide whether the principle of complementarity would apply. According to Article 17 of the Rome Statute, the ICC can only act if a state is inactive – ‘unable’ or ‘unwilling’ – to conduct a ‘genuine’ criminal investigation and prosecution.
As the UK government cooperated throughout the entire process with the OTP, the discussions centred around the question whether UK authorities ‘have been unwilling to investigate and prosecute – namely whether they have engaged in shielding perpetrators from criminal justice’ (para. 9). This issue emerged because the domestic criminal inquiry in the UK, which was conducted through the investigative units Iraq Historic Allegations Team and Service Policy Legal Investigations, remained inconclusive. Due to the absence of any convictions, the OTP evaluated whether the UK had investigated the allegations ‘genuinely’. It was the first time an organ of the ICC checked the previously unspecified and uncontested concept of ‘genuineness’. It is the technical competence of international lawyers to problematise such concepts and thereby open avenues for manoeuvring. As the OTP summarises, the ‘outcome of the more than ten year long domestic process, involving the examinations of thousands of allegations, has resulted in not one single case being submitted for prosecution: a result that has deprived the victims of justice’ (para. 6, see also para. 481). Despite this ‘mixed picture’ (para. 481), the OTP concluded that the domestic investigations fulfilled the criterion of ‘genuineness’, since the UK did not act in ‘bad faith’ (para. 484) and, therefore, the situation remains ‘inadmissible in view of complementarity’ (para. 489).
Within civil society circles, the decision to stop investigating the conduct of British forces in Iraq has been contested as a politics of ‘double standards’. As one commentator wrote, the ‘OTP’s decision reinforces long-standing double standards in international justice and shows once again that powerful actors can get away with systematic torture. It fails to close the impunity gap for which the ICC was created.’Footnote 90 In this context, the ECCHR asked the OTP in July 2021 to review its decision.Footnote 91 Importantly, however, these discussions are entrapped in the normative paradox of the ICC,Footnote 92 which is most evident in the concept of complementarity: whereas the ICC gains its authority by showing itself to be independent of states, it must at the same time cooperate with states to be able to investigate and prosecute. While seeking to transcend the world of states, this world remains its condition of possibility.
Contesting the ‘interest of justice’: The Afghanistan investigation
The ICC’s recent decision to open an investigation into the situation in the Islamic Republic of Afghanistan has created strong reactions. Yet it did so in completely different directions, as two judicial bodies within the ICC, one of the PTCs and the Appeals Chamber, issued two diametrically opposed decisions, based on conflicting reasonings. The two decisions show how various actors within the ICC continuously engage in the meta-politics of legality by (re)drawing the boundaries between law and politics and the domestic and the international.
In 2017, after over a decade of preparation, the OTP under Bensouda filed a Request to open an investigation against the Taliban, the Afghan National Security Forces, and the United States and its CIA. While the Prosecutor requested the investigation of war crimes for all three parties, it added crimes against humanity for the Taliban. According to the Request, the ICC exercises jurisdiction over this case even though it considers the conflict as a non-international armed conflict (para. 15).Footnote 93 The justification for extending the jurisdiction of international criminal justice into non-international armed conflicts had been established in the Tadić decision of the ICTY.Footnote 94 More controversial, however, was the attempt to extend the investigation beyond the territory of Afghanistan. As the Prosecutor requested, the ICC should consider acts outside the territory of Afghanistan as long as there is a ‘nexus to the armed conflict in Afghanistan’ (para. 1). Concretely, this was meant to include the CIA’s programme of secret detentions in the investigations. It would enable the OTP to investigate apprehensions made by US special forces outside of Afghanistan (in Pakistan’s border region with Afghanistan) and alleged acts of torture and other war crimes thousands of miles away (in Lithuania, Poland, and Romania) as long as they had occurred on the territory of one of the ICC’s State Parties (which Lithuania, Pakistan, Poland, and Romania are) and even if there are separate agreements to not transfer an investigation to the ICC (as exist between Afghanistan and the US).
As the OTP acted through its propriu motu powers, it was necessary that a PTC, in this case Pre-Trial Chamber II, reviewed the legal grounds of the investigation. While the PTC agreed with the OTP that a non-international conflict, as in Afghanistan, falls under the ICC’s jurisdiction, it took its ‘filtering role’ seriously and argued that wrongful acts which did not occur on Afghan territory and had only a ‘nexus’ to Afghanistan could not be investigated.Footnote 95 More importantly, the PTC argued that opening an investigation would not serve the ‘interest of justice’. It was the first time a Chamber had refused to grant authorisation to investigate a situation initiated proprio motu by the OTP. According to the PTC, the OTP had failed to check whether such an investigation served the ‘interest of justice’, as stated in Article 53(1)(c) of the Rome Statute. The ‘interest of justice’ check serves, as the PTC argued, to ensure ‘the Court’s credibility … its very function and legitimacy’ (para. 33) by avoiding a ‘[f]rivolous, ungrounded or otherwise predictably inconclusive investigations’ (para. 34) and thereby binding ‘a significant amount of resource’ (para. 96) of the Court. The PTC came to this assessment not only because it had taken the OTP an ‘eleven-year-long preliminary examination’ (para. 93), and a better supply of information was unlikely in the future, but also because ‘changes within the relevant political landscape both in Afghanistan and in key States (both parties and non-parties to the Statute), coupled with the complexity and volatility of the political climate still surrounding the Afghan scenario, make it extremely difficult to still gauge the prospects of securing meaningful cooperation from relevant authorities for the future’ and thereby make it likely that an investigation by the Court would remain inconclusive (para. 94). Although the PTC’s decision was unanimous, Presiding Judge Antoine Kesia-Mbe Mindua felt it necessary to further explain in a ‘concurrent and separate opinion’, inter alia, the expression ‘interest of justice’.Footnote 96 As the Opinion states, ‘interest of justice’ is a way to ‘include legal and “non-legal” factors’ into the Court’s consideration (para. 39). This is important since the ‘ICC is a Court of last resort’ and its ‘mission is not to adjudicate each and every heinous atrocity committed all over the world’, for which the ‘primary responsibility … rests on States’ (para. 42). Moreover, while ‘[a]s an independent and impartial court of law, the ICC shall not be guided by politics’, it is necessary to recognise that ‘because of the cases the ICC is handling, it is at the crossroads of law and politics, and its decisions impact the international community and international relations’ (para. 47).
The PTC’s ‘momentous decision … immediately sparked significant critical discussion’Footnote 97 and was contested within the international criminal justice community, stating, for example, ‘the fear that [the PTC] acted on political considerations rather than legal ones’.Footnote 98 In response, the OTP impugned the decision before the ICC’s Appeals Chamber (AC), leading to a full turnaround. In March 2020, the AC decided unanimously that the PTC had ‘erred’ in its previous decision and reversed it.Footnote 99 On the one hand, the PTC’s decision to limit the investigations to wrongful acts committed within Afghan territory was ‘incorrect’ as ‘the Prosecutor must carry out an investigation into the situation as a whole’ and restricting the scope of the investigations ‘would erroneously inhibit the Prosecutor’s truth-seeking function’ (paras. 60, 61). Moreover, the AC decided that the PTC ‘did not properly assess the interest of justice’ (para. 50), as this is for the Prosecutor alone and independently to evaluate. Thereby, the PTC went ultra vires by deciding upon the ‘interest of justice’. Interestingly, both the PTC and the AC had problems filling the concept of the ‘interest of justice’, and the procedures around it, with ‘life’ and had to rely in part on the drafting history (travaux préparatoires) of the Rome Statute in their interpretation.
While the reaction to the AC’s ruling from supporters of the ICC was, as expected, positive, others raised concerns about whether the ‘turf battle’ of the ‘Afghanistan saga’ impacted the judicial architecture of the ICC, as it ‘undermines the balance of power between Prosecutor and PTC’.Footnote 100 More problematic for the ICC was that the US administration criticised the decision heavily. Then US Secretary of State Pompeo stated that the ICC was ‘an unaccountable political institution, masquerading as a legal body’.Footnote 101 Such a position had been prepared earlier by National Security Adviser Bolton, who claimed in 2018 that the Rome Statute had ‘granted potentially enormous, essentially unaccountable powers’ to the ICC and its Prosecutor, who were aspiring to ‘universal jurisdiction’; moreover, the architecture of the ICC failed in terms of checks and balances, as it was both an ‘executive and judicial institution’.Footnote 102 In response to the decision to open an investigation, the US imposed economic sanctions and a travel ban on Prosecutor Bensouda and other ICC staff. As Kreß commented, this has been an ‘unprecedented decision’, as high-ranking members of the Court were put on a ‘black list’, ‘on a par with transnational terrorist organisations and associations dedicated to the proliferation of weapons of mass destruction’.Footnote 103 For Kreß, the more fundamental problem was, however, that ‘the legal view of the US Government’, namely that the ICC violates US sovereignty, was enacted politically by Presidential decree and not as ‘a matter of civilized legal argument, either in the course of the ongoing proceedings of the ICC or in suitable proceedings before another international court’.Footnote 104 Although the Biden administration lifted the sanctions in April 2021, new US Secretary of State Blinken confirmed that ‘[w]e continue to disagree strongly with the ICC’s actions relating to the Afghanistan and Palestinian situations. We maintain our long-standing objection to the Court’s efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel.’Footnote 105 The ICC has also attempted to de-escalate. While the Afghan government requested in April 2021 to defer the case back to Afghan legal bodies as prosecution had been opened in Afghanistan – claiming that this invokes complementarity – the new Prosecutor Karim Khan decided after the fall of the government and the takeover by the Taliban to focus exclusively on crimes committed by the Taliban and the Islamic State, and thereby to ignore for the time being crimes committed by US forces.Footnote 106 However, the question is whether the OTP and the ICC recognise the Taliban as (de facto) government, which is why the Court has asked both its Assembly of State Parties (ASP) and the UN Secretary-General for further clarification.Footnote 107
As this case demonstrates, the interpretation of ‘interest of justice’, as a technical yet open concept, played a significant role in justifying and reversing wide-ranging decisions about launching investigations. The interpretation of this concept allowed for drawing and re-drawing the boundaries between law and politics, and between the domestic and the international. It thereby operates as an interface in internal ICC discussions about importing ‘extra-legal’ factors into its considerations and decisions. Whereas interest of justice is interpreted by some, as Judge Mindua, as a means for bringing political factors into international criminal justice, others see in the interest of justice a possibility to consider different forms of justice, going beyond the ICC’s punitive approach.Footnote 108
ICC jurisdiction and self-authorisation: Delineating Palestinian statehood and territory
The contingent delineation of the boundaries between law and politics and between the domestic and the international by the ICC is well illustrated by the recent decision of Pre-Trial Chamber I confirming the ICC’s jurisdiction over the ‘territory’ of ‘Palestine’ for the purpose of investigating alleged war crimes.Footnote 109 Indeed, a Court ruling on its own jurisdiction is a case of self-authorisation par excellence. The investigation by the Prosecutor of alleged crimes committed by Israeli authorities, Hamas, and other Palestinian groups shows how the Court depends on, and actively reaffirms, the existence and delineation of states and their territories, here Israel and Palestine, in order to operate as an international court of criminal law. An analysis into the reasoning of the Chamber suggests that these boundaries could have been drawn differently, but it also shows that the Court inevitably had to draw them once called upon.
In its decision from 5 February 2021, PTC I went to great lengths to insist that it did not aim to determine the status of Palestine or its territorial borders, and that its response to the Prosecutor’s request to clarify the Court’s ‘territorial jurisdiction in Palestine’ was of a purely legal nature distinct from the supposedly political question of state creation (paras. 53–8). Yet its assessment implies and projects Palestinian statehood in several ways, and its specification of what a legal analysis includes, and what it excludes, could have easily been reversed, with important consequences for its decision. As such, the majority decision and dissenting opinion reveal how the Chamber tailored a legal basis for confirming the Court’s jurisdiction by invoking a Palestinian state, while at the same time excluding the determination of its existence from the scope of legal analysis.
The Chamber addressed two issues in its response to the Prosecutor’s request, namely, first, whether Palestine can be regarded as ‘“the State on the territory of which the conduct in question occurred” within the meaning of Article 12(2)(a) of the Statute’ (para. 87) and, second, whether the alleged crimes were committed within its territorial borders (ibid.). As for the first question, the majority decision argued that since the ‘State of Palestine’ was a ‘State Party’ to the Rome Statute and had acceded to the Statute according to its proper procedures, it should be treated like any other state party and, thus, as a state. As such, Palestine was entitled to request the formal launching of investigations of alleged international crimes committed on its territory. Although the Chamber maintained that its answer to the question ‘does not … require a determination as to whether that entity fulfils the prerequisites of statehood under general international law’ (para. 93), it nevertheless anchored its treatment of Palestine as a state in Palestine’s status as a ‘non-member observer state’ accorded to it by the UN General Assembly (UNGA) (UNGA 2012). As Judge Péter Kovaćs points out in his dissenting opinion, apart from the fact that the legal authority of a UNGA resolution was doubtful under international law, the reasoning that Palestine was a state because it was considered a state party by the Statute was circular (Kovaćs, para. 17).Footnote 110 While the Chamber had thus bracketed the proper assessment of Palestine’s statehood, it had at the same time affirmed it for the purpose of ICC investigations.
More significantly, when determining the territory of Palestine in order to delineate the scope of its own jurisdiction, the majority decision resorted to UNGA resolution 67/19 and its affirmation of ‘the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967’Footnote 111 (paras. 116–17), as well as additional UNGA resolutions emphasising ‘that the Palestinian people have the right to … sovereignty over their territory’ (GA/RES/58/292, para. 1, cit. in ICC-PTC I 2021, para. 117).Footnote 112 The Chamber concluded that ‘the Court’s territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem’ (para. 118).Footnote 113 By contrast, provisions of the Oslo Accords, which currently limit the jurisdiction of the Palestinian Authority, were not regarded as having any implications for the territorial jurisdiction of the Court, essentially because state sovereignty is not contingent on the actual exercise of authority or international agreements limiting it. The Court also did not ask the ASP or the UN Secretary-General for further clarification, as it would later do in the Afghanistan situation. While apparently technical, the Court’s reasoning and its consideration of some sources rather than others shows the politics of legal interpretation. While the PTC insists on not treating the question of Palestinian statehood as such, its invocation of Palestine’s status in the General Assembly as well as of its territory in accordance with its right to self-determination nevertheless imply the existence of a Palestinian state, at least functionally and for the purpose of the ICC.Footnote 114
In his dissenting opinion, Judge Kovaćs disagreed with the majority decision regarding its attempt to bracket the determination of Palestine’s statehood, the argument that the status as a State Party to the Rome Statute and as a ‘non-member observer state’ in the UNGA allowed for inferring functional state status, and the delineation of territory under Palestinian jurisdiction without regard for the specific provisions of the 1993 Oslo Accords.Footnote 115 For Kovaćs, although a ‘State Party’ to the Rome Statute, Palestine is merely a ‘state in statu nascendi’ (para. 267), and any jurisdiction it could have delegated to the ICC would have been restricted to the designated areas for which Palestine had obtained jurisdiction in the Interim Agreement of the Oslo Accords (para. 282 ff.). By contrast, Kovaćs did not see the right to self-determination either determining the state status of Palestine or the scope of its territory and jurisdiction.Footnote 116 While the majority decision and the dissenting opinion come to different conclusions regarding the Court’s jurisdiction in the ‘Situation of Palestine’, they both rely on assumed state territories in one way or another in their legal arguments. The reasoning that belligerent occupation does not preclude statehood, including statehood developed on the basis of self-determination, has found both supportersFootnote 117 and opponents in international law scholarship.Footnote 118
Unsurprisingly, the decision has been regarded as ‘political’, rather than properly ‘legal’, by different observers. While the Palestinian Authority celebrated the decision as ‘a victory for rights, justice, freedom and moral values in the world’,Footnote 119 the US and Israeli governments denounced it, and the Australian government rejected the ruling because, as it insisted, it did not recognise Palestine as a state or ‘State Party’ to the Rome Statute.Footnote 120 The German government, too, reiterated that in their ‘legal view’, ‘the court has no jurisdiction because of the absence of the element of Palestinian statehood required by international law’.Footnote 121 Beyond these endorsements and criticisms, and from a perspective on the Court’s meta-politics of legality, it is striking that to authorise its own authority to adjudicate, the Court not only had to actively interpret what in this case was legal and what political, but it also had to establish which states could actually be regarded as existing, and within which borders, if only for its own purposes. By deciding which entities possess state sovereignty and in which territory, in an effort to define its own jurisdiction over the ‘state’ of Palestine, the Court performs the meta-politics of legality inherent in redrawing the boundaries of law and the international.
Conclusion
The starting point of this contribution was the observation that the fundamental distinctions between law and politics, and between the domestic and the international, are neither substantively given nor irrelevant to the process of judicialisation and the ICC’s operation in particular. Our contribution complements the existing literature by focusing on the Court’s meta-politics of redrawing these distinctions, flexibly and contingently, but with significant implications. From this vantage point, the distinctions between politics and law, and between the international and sovereign states, are not already established, but are constantly reproduced in processes of stabilisation, contestation, and transformation, in particular by international courts. Meta-political boundary-drawing, we have argued, is made possible by technicalities of law and the employment of technical legal expertise in the interpretation and adjudication of particular cases. To illustrate this process empirically, we turned to the three recent decisions of the ICC to (not) investigate alleged international crimes committed by British forces in Iraq, by the Taliban, governmental, and US forces in Afghanistan, and by Israeli authorities and Palestinian groups in the West Bank, East Jerusalem, and Gaza. We were not interested in whether the ICC’s decisions were political or legal, whether it was ‘correct’ to keep investigations on the international level or to refer them to states and the domestic judiciary. Instead, we have shown how the Court itself has actively established these distinctions within the different cases by crafting legal arguments, often reconfiguring the boundaries from one decision to another without any predetermined interpretation of where they lie.
This does not mean that the decisions of the Court are arbitrary or that ‘anything goes’. On the contrary, the proceedings are highly technical and reflect, all apparent indeterminacy notwithstanding, a ‘culture of formalism’ by which courts distinguish themselves as legal bodies, restrict access, and define the scope of competent arguments.Footnote 122 Such arguments include, for instance, questions of jurisdiction, complementarity, and the interest of justice. However, the contingency of the Court’s decision does reveal its particular meta-political authority that emerges from its position at the very intersection of legality and politics and of the domestic and the international. This also has implications for other globalising legal fields, beyond the ICC and international criminal law, as it suggests that the emerging power of international courts must be understood as enabled and constrained by the opposition and entanglement of distinct social logics in a simultaneously integrating and differentiating world society. The question here is not whether (international) law supplants politics, or whether politics maintains its role by successfully contesting the authority of international courts. We suggest that we should ask instead how particular courts engage in the meta-politics of legality, and thereby promote particular logics – such as that of international criminal law as part of a move towards the law of humanity – while participating in both the transformation and reproduction of our contemporary world society and its constitutive distinctions, including those between (international) law and politics.
Acknowledgements
Earlier versions of this article have been presented at EISA’s 2021 Pan-European Conference (Section: Authority and the Making of International Facts: Symbolic Orders, Expertise and Imaginaries) and the WISC workshop ‘Conceptualizing History/Historizing Concepts’ in June 2022. We would like to thank the organizers and participants for their valuable feedback, especially Pınar Bilgin, Zeynep Gülşah Çapan, Benjamin Herborth, Monica Herz, Oliver Kessler, Ole Jacob Sending, and Karen Smith. We are also grateful to the editors and three anonymous reviewers for their comments and suggestions. All errors and omissions are our own. The authors of this article have contributed equally.
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