The International Criminal Court’s Provisional Authority to Coerce

The 1998 Rome Statute gives the International Criminal Court (ICC) a coercive title that is “complementary to national criminal jurisdictions.” The ICC may prosecute and punish individuals for committing genocide, crimes against humanity, war crimes, and, eventually, aggression, but only when states are genuinely unable or unwilling to do so. Indeed, the complementarity principle limits the ICC’s titular powers even relative to nonparty states sanctioned by the Security Council. If the Security Council refers a situation to the ICC (in a resolution based on Chapter VII of the UN Charter), as with Sudan (2005) and Libya (2011), the ICC does not thereby suddenly enjoy a primacy akin to that of the Yugoslav and Rwandan tribunals.

Drawing on Immanuel Kant’s political theory, I outline two reasons the ICC’s coercive authority matters for its practical and political success. First, for Kant, coercive authority rests on a noninstrumental criterion of success: the duty to establish and maintain a general system of rights. If this criterion is supreme, the ICC’s coercive authority has moral legitimacy if and when it effectively supports (or substitutes for) the default role of sovereign states in systematic rights vindication. Moreover, whether the ICC succeeds in a particular trial or in effectively wielding its authority to withstand and counter political resistance by states is a secondary, instrumental concern. Second, uncertainty and ambiguity about who possesses a final coercive authority can slow the pursuit of international justice, but it is not fatal to the noninstrumental quest for (re)establishing a sovereign state capable of systematic rights vindication.

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