Principled and pragmatic: reconciling competing arguments for ICC attention

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The International Criminal Court (ICC) was founded to end impunity for war crimes, such as violence against civilians, but its legitimacy as an impartial institution is often questioned. Previous research has suggested that even though the ICC gets involved in the worst atrocities, investigations and prosecutions are influenced by political interests. We show that member state interests are critical already at the selection stage of initiating preliminary examinations. We theorize that incentives and drivers of ICC involvement move through two pathways. On the one hand, the Prosecutor seeks to maintain public legitimacy through performance; it does so by getting involved in the worst situations and thereby meeting the expectations on the Court as outlined in the Rome Statute. On the other hand, states can refer situations to the ICC as a way of managing their own domestic military challengers; the Prosecutor seeks to maintain cooperation from member states by examining such situations, even if the crimes are less severe. These pathways to examinations matter because state-referrals are more likely to move to investigations. We examine this argument through a global analysis, covering the period 2002–2019, using a multinomial regression model for the two pathways. Our findings support these claims. We also provide additional qualitative descriptions of how domestic challenges have clearly preceded self-referrals by governments in all cases but one. By differentiating the two pathways, we accommodate conflicting claims about the politicization of ICC involvement versus attention to the most severe situations.