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A Crack In the ICC’s (Imaginary) Fairness Foundation


Lawfare Tyranny

A scholar at the Institute for Justice and Reconciliation who a few months back declared the International Criminal Court an “important institution” that should be given enough power to cause “a rupture in global power arrangements” — a wildly overoptimistic degree of faith and trust the institution most certainly has not earned — now appears concerned over the persistently politicized culture around the co-called “international justice architecture.”

Specifically, Kelly-Jo Bluen takes issue with the way the ICC power-brokers during the recent Assembly of State Parties session at the Hague brushed aside African complaints over the “inequality of the global system including the UN Security Council’s referral of situations to the ICC while three of the permanent five are not ICC members, and the lack of prosecutions to date outside Africa.”


These concerns are often dismissed, implicitly or explicitly, as obstructive, the argument being that while the system is imperfect, focus on redress is at the expense of victims. While some situations in Africa are self-referrals, non-prosecution outside Africa must be seen in the context of the politics of international justice and powerful states’ interaction with the court, specifically when their nationals or allies face scrutiny.

Rather than positing a false dichotomy, it is possible and necessary at once to seek justice for victims and call for a better system. It does no service to victims to promise justice in a system whose credibility is undermined by political manoeuvring. To deliver such justice, the legitimacy of the international justice system is critical.

The trouble, of course, is the Great Powers view this inequality as a feature not a bug of the Court. And the Court, for its part, has only two bedrock, non-negotiable principles when it comes to expanding its power and reach — first, its own infallibility and, second, impunity for me but not for thee.

Many earnest, smart, well-meaning scholars and activists will no doubt strive to alter these unpleasant truths.

They will fail.