Document Type

Article

Publication Date

2013

Journal

American University International Law Review

Volume

28

Issue

3

Abstract

Unlike other international institutions, the International Criminal Court (the Court) derives its strength not from state interest or economic or military power, but from the intrinsic pull of justice — a normative pull universally held to some degree by all human beings. As such, the Court, possibly more so than other institutions, is characterized by a jealous regard for its independence, from which it gains much of its legitimacy.

The Court, however, has become intertwined with the political process of guaranteeing peace and security. While the Court draws its potency from the normative demands of justice, in reality, justice is also subject to political interests, state power, and the political process. In addition, the Court exerts its own influence on political efforts to ensure peace and security, sometimes even contributing to an alteration of the balance of power. In this way, it inches ever closer to the realm of realpolitik policy makers.

This state of affairs has set the stage for a seemingly perpetual clash of the Titans, with the Court and other mechanisms of justice in one group of powerful actors, and realpolitik-oriented policy makers and the state institutions they operate in another group of even more powerful actors. Just like the pre-Olympian Titans of Greek mythology, these groups often clash as they are driven by divergent desires (in the modern arena: justice on the one hand, and stability and the protection of national interests on the other). Nonetheless, at times, they can also cooperate in the pursuit of a common objective (in the modern arena: peace). Whether cooperative or discordant, the relationship between the Court’s activities and realpolitik efforts to maintain peace and security is embryotic, complex, and rapidly evolving.

This article is directed to policy makers who are perplexed and often frustrated by this independent actor; it is equally directed to advocates of justice frustrated by the perceived efforts of some policy makers to constrain justice. A better understanding of each perspective will yield a more effective tool for promoting durable resolutions of conflicts that threaten international peace and security.

This article will describe six primary questions that policy makers and justice advocates should consider regarding the role of international justice mechanisms and realpolitik in conflict settings. It also uses the recent events in Libya as a case study designed to help further understand the relationship between the Court and policy makers.

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