The ICC is the product of gradual normative changes in world politics since World War II. Since the founding of the United Nations, traditional practices of sovereign immunity have been challenged by a principle of individual criminal liability for the worst violations of morality and international legal prohibitions.
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. 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.
While pretending that political factors are irrelevant may appear dishonest, and therefore unethical, forcing the court to pretend to rely on exclusively legal reasons for its actions actually ensures its future integrity as an institution guided by positive international law.
In this essay I outline three possible negative consequences that could, if they constitute preponderant outcomes, indicate that the court is failing to serve an ethical end. These are: (3) the court’s operations are creating moral hazard, (1) they are creating false expectations, or (2) they are promoting the shifting of responsibilities from the UN Security Council or other international organizations in ways that outweigh the court’s positive accomplishments.
This essay makes a consequentialist case against the strict separation of law from politics, particularly in situations of ongoing political violence. In part, this is because the ICC lacks enforcement capabilities comparable to those in domestic legal systems.