The Legal Politics of the Article 16 Decision: The International Criminal Court, the un Security Council and Ontologies of a Contemporary Compromise

Abstract

This introductory essay aims to offer a framework through which to make sense of the controversies arising from International Criminal Court (icc) intervention in Africa. One such controversy is related to the deployment of the powers to refer and defer icc cases central to Article 16 of the Rome Statute for the icc. The manner in which the unsc has employed this power has led critics – particularly on the African continent – to conclude that a range of geopolitics has undermined the judicial independence of the icc. The essay argues, therefore, that the drafting history of Article 16 of the Rome Statute shows the workings of the political origins of the law and the manner in which foundational inequalities were woven into the very fabric of the Rome Statute. Following theorists such as Giorgio Agamben and Walter Benjamin who have conceptualized law as violence and who have taken seriously the ways in which violence and inequality live on through the law, the authors argue that not only can contemporary ontologies of international criminal law not escape the politics of its making, but if we are to adequately address the conditions of violence in the postcolonial African state there must be an ontological shift in the way we conceptualize law. They propose a rethinking that acknowledges root causes of violence and that take seriously politically adumbrated histories of violence that continue live in the armature of the postcolonial state. Considering how and when political settlements are relevant and rethinking how complementarity and cooperation might work more effectively are key to the conceptual framework.