The International Criminal Court: A Budget of Paradoxes

Abstract

The International Criminal Court, to be established under the Rome Statute of 1998, is a major step in the process by which the world is moving from a state-centered international system to a genuine global community. Nonetheless, in part because it is the product of a transitional era in international relations, the Statute embodies certain contradictions or paradoxes. This Essay aims to set out some of these paradoxes. First, the primary function of the ICC will be its symbolic affirmation of the ties that hold the international community together; yet this function presupposes the existence of an international community that is not completely in being. Second, the Rome Statute, in a number of ways, undercuts by its very terms the idea that the ICC will be an organ of universal law: states are only tenuously obligated to cooperate with the Court, the principle of “complementarity” presupposes the primacy of national jurisdictions, the Court’s jurisdiction is not clearly universal, and the law to be applied by the ICC is not necessarily general international law. Finally, although the Statute embraces the principle of legality, it can do so only in a qualified manner because that principle, as it nowadays is understood in domestic systems, presupposes legal and political institutions that do not exist on the international level: the Statute represents, in effect, criminal legislation without a legislature, international governance without a government. None of this constitutes a reason for giving up on efforts to enforce international criminal law through the ICC; but it does suggest that there will be certain abiding paradoxes in efforts to do so.