Legitimising negotiated justice: the International Criminal Court and flexible governance

Abstract

How has the International Criminal Court's (ICC) assertive use of judicial power enhanced its legitimacy as a fair and impartial court? I argue that preserving and even enhancing the ICC's legitimacy depends in large part on its willingness to negotiate more, rather than less, with states regarding its jurisdiction and requests for cooperation. In doing so, I address the challenges posed to the ICC's credibility and assess this factor of the ICC's legitimacy in terms of the complex relationship between (proactive) complementarity and cooperation. One of my principal aims is to show how a flexible approach, or what I call negotiated justice, can bring together proactive complementarity and cooperation. I conceive negotiated justice in terms of the constructive trade-offs involved in meeting one another's demands and the need to reduce the tensions between realpolitik and the cosmopolitan ideals embedded in the Rome Statute.