Shaping Sovereignty as Responsibility at the ICC (Part II): The Test of Institutional Practice

Abstract

In line with the updated understanding of the norm life-cycle outlined in Chap. 2, the present chapter moves forward in the attentive critical scrutiny of the ICC’s lived practice undertaken in the previous chapter. It shows that the tension between ‘sovereignty-limiting rationale’ and ‘sovereignty-based’ operation therein described is unequivocally reflected in the ‘tribunalization’ of a highly selective range of violence and the sanctioning of an even more restricted selection, which both lay bare the Court’s subjection to the existing distribution of power both among states and within them. More to the point, such tension cuts utterly against the normative aspirations of sovereignty as responsibility, specifically by leaving the Court practically ill-equipped to break with a notorious pattern of hyper-protected sovereignty. This is most clearly exemplified by the fact that to date the ICC has been utterly ‘unable’ to successfully prosecute crimes of individuals who can rely on governmental protection. Furthermore, the selectivity of the Court’s intervention looms even more severely if we consider that all the individuals who are or have been in the Court’s custody—indeed, all ICC defendants to date—are African and black—a fact that powerfully exposes the continuing rac(ial)ism, civilizing impulse, and coloniality of the liberal international project. Hence, the conclusion that contemporary calls for normativized practices of conditional, provisional recognition should no longer appear as game-changing, but rather placed against a persisting backdrop of core/periphery relations, and West’s assumed position of superiority.

[O]ne cannot avoid asking whether the states that established this permanent institution, which is aimed at the universality of criminal justice, have not put the cart before the horse

—Köchler (2017)