Abstract
For the traditional legalistic discourse on the International Criminal Court (ICC), “politics” is a bête noire that compromises the independence of the Court and thus needs to be avoided and overcome. In response to this legalistic approach, a burgeoning body of literature insists that the Court does not exist and operate “beyond politics”, arguing that the ICC is an institution where law and politics are intimately connected. The present article seeks to contribute to this “non-traditional” literature by addressing two of its fundamental weaknesses: First, writers of the “non-traditional camp” often present a rather limited view of “politics”; in particular, they have shied away from taking the radical step of portraying and analysing the ICC as a “political actor”. This undermines both its critical and constructive potential. Secondly, these commentators offer a simplistic explanation as to why “traditionalists” treat politics as the ICC’s bête noire: Traditionalists, they claim, are “legalists” with scant interest in and understanding of politics. By focusing on the ICC’s nature as a political actor, this article does not only paint a more nuanced picture of the ICC but also demonstrates the constructive potential of this understanding of the ICC to shed light on the so-called “peace versus justice dilemma”. And secondly, it demonstrates that precisely because the ICC is and ought to be a prudent political actor, it must officially disavow politics. The “noble lie” of disavowing politics, therefore, is a prudential strategy to avoid dangerous moral and political consequences and, ultimately, to secure the continued existence of the ICC itself.
Highlights
Many advocates of international criminal justice have gone to great lengths to portray the International Criminal Court (ICC) as an apolitical—even anti-political— institution
While I am sympathetic to this non-traditional camp, I believe that this body of literature suffers from two serious weaknesses: first, these writers often present a rather limited view of “politics” or the political”; in particular, they have shied away from taking the radical step of portraying and analyzing the ICC as a “political actor.”
For most proponents of international criminal justice, the creation of the ICC was a historical achievement primarily because they interpreted the creation of the Court as a major triumph of law over politics
Summary
Many advocates of international criminal justice have gone to great lengths to portray the International Criminal Court (ICC) as an apolitical—even anti-political— institution. The view that the ICC is and must be isolated from politics has been expressed by the Court’s prosecutors who are anxious to paint a picture of the Court as an unyielding pursuer of legal justice that is completely detached from politics This “traditional approach” has created a legalistic narrative in which politics is portrayed as the ICC’s bête noire. In response to this legalistic approach, a burgeoning body of literature on international criminal justice has begun to emerge, which insists that the ICC cannot be adequately understood from an exclusively legal perspective. The noble lie, is a prudential strategy to avoid dangerous moral and political consequences and, to secure the continued existence of the ICC itself
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