After states, before humanity? The meta-politics of legality and the International Criminal Court in Iraq, Afghanistan, and Palestine

This article was written by Janis Grzybowski and Filipe dos Reis
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Janis Grzybowski and Filipe dos Reis discuss the key arguments from their new Review of International Studies (RIS) article. If you'd like to know more you can read the full article here - After states, before humanity? The meta-politics of legality and the International Criminal Court in Iraq, Afghanistan, and Palestine.


Ever since its inception, the International Criminal Court (ICC or Court) has been in the spotlight of debates about the increasing role of international jurisprudence in world politics. It has been hailed as an important step forward in bringing an end to impunity for international crimes, but it has also met with persistent criticism from different sides, whether for being too legalistic or too political, for remaining too closely in sync with state sovereignty and the confines of the state system or overstretching too much in its move towards an international law of ‘humanity’. Yet, as we highlight in this contribution, the boundaries between law and politics and between the domestic and the international sphere are neither pregiven and stable nor irrelevant to the Court’s actions, interpretations, and decisions. They are, instead, continuously and contingently invoked, contested, and redrawn, including by the ICC itself, and they have important consequences for the decisions made by various bodies of the Court. We refer to the Court’s own drawing of these boundaries as meta-politics of legality.

We illustrate the significance of this dimension by revisiting the Court decisions in three recent high-profile and controversial situations. These notably include the decisions to not open an investigation into alleged crimes committed by British armed forces in Iraq, to investigate the conduct of US forces – alongside that of Taliban and former government forces – in Afghanistan, and to probe and confirm its own jurisdiction to investigate potential crimes perpetrated by Israeli authorities – as well as Palestinian groups – in the West Bank, East Jerusalem, and the Gaza strip. In contrast to the long-standing criticism that the ICC has been a ‘European Court of African Affairs’, these cases concern alleged crimes of – ‘Western’ – great powers, reflecting the project of then-Prosecutor Fatou Bensouda of turning the ICC into a ‘global’ court. Going beyond the ‘usual suspects’, but again provoking endorsement, outrage, and rejection, these three decisions shed new light on the Court’s difficult position at the boundaries of (international) law and politics, and its meta-politics of re-drawing them. 

From (de-)judicialization to the meta-politics of legality

The promise of international criminal justice in general and of the ICC specifically to incrementally supplant the traditional prerogatives of sovereign states by ending impunity for international crimes has been much discussed among scholars in international law and International Relations (IR) alike. This debate also reflects the larger question of how (international) law and politics relate to each other.

Traditional legalist positions see in the proliferation of international (criminal) law a ‘seismic shift’ which transforms the international into a sphere of legality and justice, opposed to one of politics. Realist accounts, in turn, see politics all the way down and warn that international criminal trials and tribunals are no move towards legality but instead instances of politics in disguise and notably of ‘victor’s justice’. Both positions, namely that taming world politics through international (criminal) law is possible (the legalistic view) or impossible (the realist view), seem to stand in clear opposition. However, both assume that one can clearly demarcate law from politics, and that one ultimately dominates the other. Similar dynamics are very much present in recent debates about the ‘(de)judicialization’ of international affairs. This research program speaks to a liberal tradition in IR, which has long argued that international organizations and institutions would contribute to a rules-based international order that could tame or overcome the primacy of power politics. Judicialization, therefore, suggests not only a quantitative accumulation of ‘more law’, but also a qualitative transformation of international affairs through judicial institutions. At the same time, the growing role of courts has been met with an apparent ‘backlash’, ‘de-judicialization’, and renewed ‘politicization’, leaving its ultimate success uncertain. Either way, (international) law and politics still appear as distinct spheres, despite their complex empirical entanglements.

By contrast, within sociological and critical-legal perspectives, legality as a social field and practice is not regarded as the opposite of politics, but as political in its own specific way. Sociological perspectives in the Bourdieusian tradition focus on how the ‘transnational field of criminal justice’ demarcates itself from and competes with other fields, highlighting the struggle for status and power between different groups within the field, from human rights advocacy groups to international law scholars through to the judiciary at the ICC. As such, the legal field is imbued with politics, but politics articulated in terms of law and thus the style, rationalities, and technicalities of the legal profession. In contrast to these sociological explanations of court politics, critical legal perspectives mainly highlight, and keep open, their contingency. Much like sociological perspectives, critical legal studies emphasize the expertise of international lawyers in crafting legal arguments in an inevitably political way, but without transgressing the occasionally thin line between judicial lawmaking and judicial activism. That is, the politics of international law remains tied to the logic of legality and operates within flexible but professionally limited ‘bounds of sense’. Despite the differences between sociological and critical legal approaches, both regard politics and legality as entangled. International law is defined by the specific type of politics that operates by means of legality.

We argue in our contribution for a third way to conceptualize and study the distinction, which is perfectly compatible with the sociological and critical-legal view but also takes the seemingly sharp opposition of traditional legal and realist – and more recent (de)judicialization perspectives – seriously. Taking our cue from an interdisciplinary body of critical and constructivist literature highlighting the performative effects of boundary-drawing through technical expertise, we draw attention to the meta-political use of the divisions between international law and politics by the Court itself. That is, the Court invokes sharp distinctions between politics and law, states and the international, but it does so flexibly, contingently, and with important consequences for the arguments it advances in any particular situation. It thus constructs ‘legal’ cases, excludes ‘politics’, defers to or relies on states and ‘domestic’ institutions, and applies ‘international’ rules. Politics, then, marks, for one, the seemingly substantial sphere that is opposed to law, as invoked in realist and legalist perspectives on (de-)judicialization; but political is also every decision by the Court about where these boundaries lie, a decision that is thus an instance of the politics of international law. The Court is, of course, no homogenous institution, and its different organs, such as the Office of the Prosecutor (OTP) as well as pre-trial, trial, and appeals chambers, might well disagree in certain cases. Yet they all routinely presume, invoke, and shift the lines between international law and politics, while speaking the vernacular of international criminal law. This tension also enables and constraints appeals to humanity and recourses to sovereign states.

The ICC’s meta-politics of legality in Afghanistan, Iraq, and Palestine

Our article reconstructs the meta-politics of legality in the recent decisions to (not) open full investigations into alleged international crimes committed in Afghanistan, Iraq, and Palestine. All three decisions concern the crucial question of whether a preliminary examination would turn into a proper investigation, in which case the ICC ‘owns’ the case and the Office of the Prosecutor (OTP) can use the Court’s full resources and eventually bring the case to trial. Moreover, in all three instances, the mobilization of technical legal concepts such as ‘complementarity’, ‘genuineness’, ‘interest of justice’, and ‘jurisdiction’ plays a decisive role.

In December 2020, following long preliminary examinations, the OTP decided to not open further investigations into the UK’s involvement in the Iraq War. The OTP justified the decision by stating that the principle of complementarity would apply. Complementarity is a technical notion crucial in delineating the jurisdiction between national courts and the ICC. Complementarity means that the ICC only takes action in a case if the domestic judiciary does not conduct proper investigations. While it seems to be an unproblematic ‘mechanism’ that is automatically ‘triggered’, the Rome Status links complementarity to the related concepts of ‘unable’, ‘unwilling’, and, ‘genuine’. While the OTP concluded that the UK would be ‘able’ to investigate alleged crimes, it also agreed that it was not ‘unwilling’ as it had established the investigative units Iraq Historic Allegations Team (IHAT) and Service Policy Legal Investigations (SPLI). However, these investigations remained inconclusive as not one single case was submitted for prosecution. Due to the absence of any convictions, the OTP evaluated whether the UK had investigated the allegations ‘genuinely’. It was the first time an organ of the ICC checked the previously unspecified and uncontested concept of ‘genuineness’. It is the technical competence of international lawyers to problematize such concepts and thereby open avenues for legal maneuvering. Despite this “mixed picture”, the OTP concluded that the domestic investigations fulfilled the criterion of ‘genuineness’, since the UK did not act in “bad faith” and, therefore, the situation remained “inadmissible in view of complementarity” – a decision, which has been contested as being “political” by several civil society groups.

While the interpretation of ‘genuineness’ played an important role in the UK/Iraq decision, it was the technical notion of ‘interest of justice’ in the Afghanistan situation. In this instance, the OTP decided to conduct in-depth investigations, under the oversight of a Pre-Trial Chamber (PTC) of the Court. However, the PTC denied further investigations by referring to the ‘interest of justice’, a notion that had been unproblematic so far. The PTC mobilized the ‘interest of justice’ to avoid a “[f]rivolous, ungrounded or otherwise predictably inconclusive investigations”, which would have bound “a significant amount of resource”. In response, the OTP impugned the decision before the ICC’s Appeals Chamber (AC), leading to a full turn-around. In March 2020, the AC decided unanimously that the PTC had “erred” in its previous decision and reversed it. In particular, it stated that the PTC “did not properly assess the interest of justice” and that its reading of the ‘interest of justice’ would politicize the Court.

Finally, another PTC confirmed in 2021 that the Court had jurisdiction in Palestine, which is a State Party to the Rome Statute, and that the OTP could open an investigation of alleged war crimes committed by Israeli authorities, Hamas, and other Palestinian groups in Palestine’s 1967 borders, including the West Bank, East Jerusalem, and the Gaza strip. This shows how the Court depends on, and actively reaffirms, the existence and delineation of states and their territories, here Israel and Palestine, in order to operate as a court of international criminal law. A Court ruling on its own jurisdiction is a case of self-authorization par excellence. While the PTC insisted on not treating the question of Palestinian statehood as such, its invocation of Palestine’s status in the General Assembly as well as its territory in accordance with its right to self-determination nevertheless implied the existence of a Palestinian state, at least functionally and for the purpose of the ICC. While apparently technical, the Court’s reasoning and its consideration of some sources rather than others equally showcase the politics of legal interpretation. By determining which entities possess state sovereignty and in which territory, in an effort to define its own jurisdiction over the ‘state’ of Palestine, the Court pursued its function as an international criminal court beyond the politics of sovereign states, and yet did so by drawing on the old binaries of politics and law and of states and the international.

While rich, complex, and contested in different ways, all three cases illustrate how the Court itself draws these contingent boundaries, while both appealing to humanity and resorting to states. It also sheds light on the authority of the Court that stems precisely from its location at these contested – and thus interpretable – intersections. As such, the meta-politics of legality also shed light on (de-)judicialization dynamics more generally. They highlight a specific dimension of the politics of legality and the predicament of international authority in a fragmented world society which, paradoxically, seems to both open spaces for change and reproduce its own constraints.

Want to know more? You can read the full article at DOI: https://doi.org/10.1017/S026021052300030X

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