. 3
( 54 .)


resides in its military and economic capabilities. Formal sovereignty “ the
state™s right to a monopoly on the domestic use of force to maintain order
and its freedom to use force externally to protect itself “ is an institution7 of
the (post-1648, European) international system. States affect each other by
using, or threatening to use, coercive power de¬ned in material (military
and economic) terms. The relative power of any state as against others is the
key measure of its capacities for action, and thus independence. Balances of
power emerge from confrontations among states, and realist theorists
generally regard the balance of power as the primary ordering institution of
the anarchic system.
For realists, two kinds of change are possible. Change in the interna-
tional system means that the relative power of particular states, or the
power hierarchy, varies due to war, differential economic growth, techno-
logical innovation, and so on; however, anarchy persists, and the institu-
tions of sovereignty and balance survive. Change of the system, on the other
hand, would mean transforming the conditions under which international
politics takes place. If some international authority were to arise and ter-
minate international anarchy, if new actors of a different sort appeared that
could powerfully constrain states, or if states were to base their actions on
some principle other than self-help, then the system would be transformed
and the balance of power would give way to other institutions.
For realists, international organizations ¬t into the system as tools of
states in their competition with each other, but they are not instruments of
an escape from anarchy. It would make little sense for states to sacri¬ce
sovereignty to enforce international laws against genocide, crimes against
humanity, and war crimes, unless to do so would confer some relative
advantage or to oppose it would entail some relative costs. Realists might

Institutions: The term ˜˜institution™™ appears in the international relations literature in at least
four different ways. For some, an institution is an organization. For others, it is a routinized
pattern of behavior (such as free trade, democracy, or domestic legal processes) that can be
characterized by principles (antiprotectionism, majoritarianism, rule of law) and decision-
making routines (global negotiations, voting, trials) that may or may not necessitate
organizations. The term is also used to denote an important general characteristic; for
example, sovereignty is considered by many to be an institution of the post“Westphalian
international system and states within it. Lastly, an institution can be a common, expected
dynamic within the system, such as war or the balance of power. When referring to a
concrete organization “ with a headquarters, of¬cials, mandate, functions, and the like “ I use
the word ˜˜organization.™™ When referring to the broader idea of an accepted pattern of
behavior, accepted characteristic (such as sovereignty), or common dynamic, I use
6 Building the International Criminal Court

thus explain why states would seek to limit the Court™s powers (to retain
their own freedoms) or go along with it once it was created by others, but
they have no explanation for its creation in the ¬rst place. This is where
additional theoretical perspectives can help.

Neoliberal Institutionalist Theorists
The theories of the neoliberal institutionalists overlap with the realists™
vision of international relations but differ in important ways. Liberals too
believe in rationality. Classical liberals believed as well in the idea of
progress, human goodwill, and the (rational) perfectibility of mankind
through collective institutions.8 Neoliberal institutionalists combine liber-
alism with realism. They grant the realist premise that states are the primary
international actors but argue that states can experience incentives to
cooperate for improvements in their own welfare, seeking absolute gain,
rather than exclusively relative gain.9 When states seeking absolute gains
cooperate to reduce international transaction costs, to create new collective
goods, and to prevent collective bads, they may establish organizations to
implement these objectives.10 To the extent that these organizations™ mere
existence and/or requirements of membership entail changes in domestic
legislation and international behavior, organization participation may alter
and constrain states™ behavior. A pervasive enough web of interdependence
could create areas of international interaction in which behavior is limited
by law or other orderly institutions, and in such areas anarchy could recede.
The international system could thus incrementally change as states become
increasingly enmeshed in a web of institutionalized interdependencies.11
Liberal institutionalists also accept that actors other than states “ such as
international organizations, nongovernmental (or civil society) organizations,
transnational movements, and multinational corporations “ can affect

Mingst, Essentials of International Relations, 3rd ed. (2004), 63“4, explains that liberalism
assumes that human nature is basically good, societal progress is possible, and behavior is
malleable and perfectible through institutions, based on the Greek idea that individuals can
understand universal laws of nature and society through rationality. Immanuel Kant is an
example of a classical liberal. Liberals believe in cooperation driven by rational
Mingst, ibid., describes neoliberal institutionalists, such as Robert Axelrod and Robert
Keohane, as reviving liberalism (and rescuing it from utopianism) by ¬nding in iterative
international interactions principles of cooperation, even in an anarchic environment, that
can lead to the creation of international institutions.
Abbott and Snidal, ˜˜Why States Act through Formal Organizations™™ (1998), 3“32.
Jacobson, Networks of Interdependence: International Organizations and the Global
Political System (1979).

states, and that states™ objectives are de¬ned, at least in part, by internal
political dynamics such as interest groups and political parties, and not just
deduced by realist calculations ¬‚owing from a structurally determined
national interest.
Seeking to explain how organizations can affect states, and vice versa,
neoliberal institutionalists argue that states will support cooperation if it
produces absolute or relative gains. If they see cooperation damaging their
interests, they will oppose, constrain, or defect from it. Thus, if the ICC
assists in implementing states™ normative objective of countering impunity,
it should receive continued or increasing support.
For liberal institutionalists, the more the Court can serve states™ interests,
the greater its autonomy and legitimacy. Its ability to convince states that it
is operating to enhance their objectives depends largely on what it does,
compared to what it was designed to do, and how ef¬cient it is in achieving
these ends. Neoliberal institutionalism thus helps explain aspects of the
organization™s form, operations, survival, momentum, and growth, but it
doesn™t explain why the antiimpunity norm and international criminal law
grew in the ¬rst place. For that purpose, a constructivist perspective is very

Social Constructivists
Social constructivists observe that all visions of how the world works are
based on ideas that people develop within a social, historical context. For
constructivists, both realism and institutionalism assume that human
motivation is primarily materialist, and that states™ actions are primarily
dictated by anarchy.12 Constructivists argue, however, that not all motives
are materialist and the vision of a world based in anarchy is a particular
mental construction. Other motives and visions are possible. Non-
materialist motives can include normative objectives.
Because the assumption of anarchy leads to certain conclusions (the
importance of relative power, for instance), a different set of assumptions

As Ruggie, ˜˜Introduction,™™ Constructing the World Polity: Essays on International
Institutionalization (1998), 3, put it, realism and institutionalism ˜˜share a view of the world
of international relations in utilitarian terms: an atomistic universe of self-regarding units
whose identity is assumed given and ¬xed, and who are responsive largely if not solely to
material interests that are stipulated by assumption. The two bodies of theory do differ on
the extent to which they believe institutions (and by extension institutionalization) play a
signi¬cant role in international relations. . . . But they are alike in depicting institutions in
strictly instrumental terms, useful (or not) in the pursuit of individual and typically material
interests.™™ For a much more detailed discussion of social constructivism and international
relations theory, refer to Wendt, Social Theory of International Politics (1999).
8 Building the International Criminal Court

could lead to different conclusions. For example, under anarchy, relative
material advantage is vital for self-preservation. Were people to conceptu-
alize the world not as an anarchic, state-centric environment but as an
ecologically and ethically shaped, human-centered environment, perhaps
relative material advantage (power and money) would be less compelling to
foreign policy decision makers than environmental preservation or uplifting
human dignity. Constructivism expands the realm of apparent free will, as
against realism™s determinism and neoliberal institutionalism™s tepid opti-
mism. However, constructivism™s vulnerability lies in the dif¬culty of
changing people™s conceptions of themselves (identities) on a scale massive
enough to move away from the standard framework and the lack of any
logic that would indicate what (if any) evolution in consciousness is most
likely. Identity shifts can, after all, move in humane or inhumane directions.
Constructivists argue that international institutions embody normative
commitments that denote personal, national, and global identities.13 Iden-
tities are malleable; thus, changing identities could be a source of system
change (that is, of the system as well as within the system). In one historical
example, people in many countries decided that basing a government on
formal racial discrimination was inhumane and uncivilized. Their leaders
found it either politically advantageous or morally compelling (or both) to
adopt this stand domestically and in their foreign policies (although there
was no apparent material advantage in doing so). The resulting global anti-
apartheid movement ultimately helped force the minority South African
government to negotiate transition to majority rule.14
Similarly, as government leaders became convinced in the late 1980s and
during the 1990s that passivity in the face of genocide, crimes against
humanity, and war crimes was incompatible with their identities (perhaps
as compelled by civil society groups, international lawyers, and public
pressures arising from ongoing con¬‚icts), they sought action (or at least the
appearance of action) against those crimes. The United Nations Security
Council established the International Criminal Tribunals for the Former
Yugoslavia and Rwanda (ICTY, ICTR), and a few years later negotiators
considering a Statute for the ICC agreed on an organizational form for the
institutionalized criminalization of these core international crimes. For
constructivists, creation of the ICC could demonstrate a change of the

Identity includes the conception of what it is to be human or to be civilized. Ruggie, op cit.,
4, says constructivism ˜˜attributes to ideational factors, including culture, norms, and ideas,
social ef¬cacy over and above any functional utility they may have, including a role in
shaping the way in which actors de¬ne their identity and interests in the ¬rst place.™™
Klotz, Norms in International Relations: The Struggle against Apartheid (1995).

system in the sense that collectively, without clear relative advantage and
for apparently nonmaterial reasons, states committed themselves to coop-
erate within an international organization established to prosecute collec-
tively proscribed acts whose prosecution had previously been considered
(if at all) on an ad hoc, war-by-war basis. Although historically realism
came ¬rst, then neoliberal institutionalism, and last, constructivism, they
are useful in explaining the ICC in a different order. The constructivists
explain development of the consensus on which the Court is based; the
realists explain states™ compulsions to protect sovereignty and to seek relative
advantage; the liberal institutionalists explore how the ICC embodies states™
cooperative efforts to improve absolute welfare. In the balance of the book,
the theories will appear in this logical, rather than historical, order.


The ICC faces a set of challenges that ¬‚ow from its nature as an interna-
tional treaty-based judicial organization with a broad membership and wide
mandate. These challenges were built into it in the process of negotiating its
creation; they create dilemmas that its of¬cials must manage.

Judicial“Political Dilemma
The ICC was created as a judicial institution to prosecute individuals
accused of heinous international crimes. But these are crimes that occur in
contexts of violent international and internal con¬‚icts in which the political
stakes drive people to extreme behavior. Thus, the ICC is a judicial orga-
nization operating in the most political of environments. Court of¬cials
insist that, as a judicial institution, the Court cannot gear its actions
according to what will win it political favor (although they are happy for
nongovernmental organizations to advocate it as a cause or for members of
the ASP to encourage other countries to join), and they must make decisions
on purely judicial grounds. The Court™s actions, however, have political
rami¬cations for states and for actors within states, and will inevitably be
interpreted politically,15 and the distinction between judicial and political
grounds is not always clear. The Court seeks to build legitimacy, hence
support, by acting transparently and on purely judicial grounds. However,

I use ˜˜political™™ here to refer to choices that are made according to calculations of
advantage in the allocation of power or resources by self-seeking actors, as opposed to
strictly ˜˜judicial-legal™™ choices made according to principles of law. It can be argued
that legal decisions too are political in nature “ having power effects and being based on
principles capable of being interpreted according to decision makers™ subjective preferences.
10 Building the International Criminal Court

much of its activity is necessarily con¬dential, and as in any organization,
some amount of its decision making will be the product of negotiation and
bureaucratic con¬‚ict. Given the charged environment in which the ICC
operates, the limits of openness, the vague boundary between political and
legal judgment, and the compulsions of organization behavior, it cannot be
purely judicial, and it will be interpreted politically even as it strives so to

Structural“Administrative Dilemma
The ICC™s organizational structure seeks to replicate in one organization the
independent responsibilities and powers usually allocated to separate leg-
islatures, ministries, and courts in domestic systems. An architecture
designed to create judicial neutrality and prosecutorial independence,
however, is not an optimal design for administrative ef¬ciency and coor-
dination. The Court™s objectives of administrative ef¬ciency cut against its
objectives of judicial insularity and prosectorial independence.

The Broad Mandate Dilemma: Retributive
and Restorative Justice
The Statute creates mechanisms of traditional (retributive) and newer
(restorative) justice,16 but the emphasis between the two remains in ¬‚ux,
and the mechanisms for the second are particularly sketchy. There is strong
pressure on the Court to embrace the broadest range of both retributive and
restorative justice activities, but the more broadly the mandate is pursued, the
more dif¬cult it will be to ful¬ll. The very innovative qualities that made the
Statute achievable and attractive also constitute threats to the organization™s

Civil- and Common-Law Heritage
The Statute and rules combine common-law and civil-law traditions.17 The
Court™s Prosecutor is patterned on a common-law model, following from

˜˜Retributive justice™™ refers to arrest, trial, and sentencing of suspects; ˜˜restorative justice™™
refers to bringing victims back into society as full members and reconciling parties in
con¬‚ict. This is explained further in Chapter 1.
Common law, civil law: Two major patterns of judicial structure have developed in the
Western legal tradition. In common-law systems, identi¬ed with Anglo-American


. 3
( 54 .)