Retreat or retrenchment? An analysis of the International Criminal Court's failure to prosecute presidents

This chapter examines the Court’s attempts to prosecute sitting Heads of States, and their repercussions, to establish the extent to which the ICC is failing or dysfunctional. In examining the cases, the chapter highlights aspects of ICC process which, perhaps unexpectedly, give reasons for optimism for the Court’s ability to uphold human rights in future, as well as discussing the challenges it continues to face. I argue that, while the OTP would clearly have preferred to be able to move forward in its prosecutions of Presidents Bashir and Kenyatta, its failure to do so demonstrates the ways which the Court is maturing. It is turning into a flexible and pragmatic institution whose key player, the Prosecutor, is developing an understanding of how and when to exercise the legal and political powers of the Court to greatest effect. This said, the power politics of international justice remain a substantial threat to human rights protections, and the Court may be forced to tolerate a devil’s bargain on immunity for sitting Heads of State to avoid losing influential States Parties. However, the stalling of the Bashir and Kenyatta cases should be seen more as failures of States Parties to the Rome Statute to stand behind their own human rights commitments than failures of the Court itself. This conclusion is far from positive – the failures to prosecute in these cases may have far-reaching repercussions in undermining any deterrent effect that the ICC can generate, particularly at the highest levels of government – but it does at least identify where efforts to strengthen the system should focus

Rethinking agency & responsibility in contemporary international political theory

The core argument of this work is that the individualist conceptions of agency and responsibility inherent in the contemporary ethical structure of international relations are highly problematic, serve political purposes which are often unacknowledged, and have led to the establishment of an international institutional regime which is limited in the kind of justice it can bring to international affairs. Cosmopolitan liberalism has led to the privileging of the discourse of rights over that of responsibility, through its emphasis on legality and the role of the individual as the agent and subject of ethics; this has culminated in the establishment of the International Criminal Court (ICC). The ICC, described by its supporters as the missing link in human rights enforcement, is a result of changing conceptions of agency and responsibility beyond borders – normative discourse has moved from state to individual, from politics and ethics to law, and from peace to justice, but I argue that it has not yet moved beyond the dichotomy of cosmopolitan and communitarian thinking. I contend that neither of these two positions can offer us a satisfactory way forward, so new thinking is required. The core of the thesis therefore explores alternative views of agency and responsibility – concepts which are central to international political theory, but not systematically theorized within the discipline. I outline models of agency as sociality and responsibility as a social practice, arguing that these models both better describe the way we talk about and experience our social lives, and also offer significant possibilities to broaden the scope of international justice and enable human flourishing. I end the research by considering the implications of these more nuanced accounts of agency and responsibility for ongoing theorising and practice

The evolution of funding for the International Criminal Court: budgets, donors and gender justice

In this article, we introduce a new dataset on financial support for the International Criminal Court (ICC) and examine how this support has changed over its two decades of existence. We first consider how the ICC’s overall budget has changed over time. Then, we explore the evolution of support from individual donor governments. In addition, given former Prosecutor Bensouda’s emphasis on the effective investigation and prosecution of sexual and gender-based crimes, we examine the extent to which ICC funding is consistent with its apparent commitment to gender justice. Our research contributes to debates about the cost of justice, donors and norm diffusion, South–North clashes over the definition and delivery of justice, and gender mainstreaming within costly international justice processes. We argue that the level of funding state parties and other bodies allocate to particular forms of justice is a better proxy for their commitment to justice than their rhetoric, and conclude that the patterns of funding seen at the ICC support the claim that the Court remains, to a significant extent, a tool of powerful states