Sovereignty as Responsibility at the International Criminal Court: The Frontiers of International Judicial Intervention

in Human Rights and Power in Times of Globalisation
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This chapter enquires into the increasingly popular idea of sovereignty as responsibility, focusing on its institutionalisation in the framework of the International Criminal Court (icc). The claim that a new norm of sovereignty as responsibility is on the rise is commonly framed within normative parameters. Conversely, here it is assumed that norms (and their critical potential) must be subjected to the constraint of ‘ought implies can’, and the main aim is precisely to map how environmental and operational conditions enable or limit normative change. Operating at the intersection between normative international political theory and the politics of international criminal law, the analysis unfolds in three major steps: it revises the theoretical foundations of the debate; it explores how the system set up by the icc Statute bears upon the Court’s prosecutorial policy and its outcomes; it determines how the latter feed back to the norm of sovereignty as responsibility. The chapter concludes that the icc Statute is built on a basic tension – between ‘sovereignty-limiting’ rationale and ‘sovereignty-based’ operation. Such tension reflects the persistence of the state as the primary site of political authority and agency, and leaves the icc ill-equipped to break with a notorious pattern of hyper-protected macro-sovereignty. Yet, the chapter contends that the desirability of a further move to political hierarchy should be considered in light of the relationship that arguably connects any forms of agency to power and the permanent possibility of its irresponsible exercise.

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