International Law Imperialism vs. Proceduralism

My op-ed on the African Union and the International Criminal Court at the Georgetown Journal of International Affairs (also a good takes at EJIL:Talk and Dov Jacobs):

Let us distinguish between the broad currents in international legal thought – what I would call international law “proceduralists” versus “imperialists.” International law has traditionally been procedural–what counts is following the rules. If the rules enjoy respect, international law is considered a success. From this perspective, it would not matter whether the thirty-four African members of the Court quit or stay in. The Rome Statute provides rules for both entry and withdrawal, and thus doing the latter is value-neutral.

Yet, the ICC is the product of a different intellectual current. More specifically, it is a product of international law imperialism. This approach wants to increase the scope, power and prestige of international law and its institutions. It promotes the creation of more treaties, universal membership for treaties, and more international legal bodies exercising powers that previously would have been exercised by sovereign authorities, irrespective of whether the rules and institutions might not work well at first. Unlike proceduralists, imperialists think international law is on the whole a good in itself, capable of making the world a better place. Supporters of this current therefore proudly count the number of member states in the ICC—122 member states as of now—to demonstrate the global acceptance of the institution.

This number may still be cited after Addis Ababa and could lead some to consider the outcome of the summit a success for international law. Thus, Addis Ababa shows where the proceduralist and imperialist visions diverge. Imperialists may be relieved by the outcome of the summit, but proceduralists may consider it a defeat.

The ICC’s membership roll represents an increasingly hollow statistic. For one, the Great Powers of the world (i.e. the United States and China) have not joined, nor have massive and populous nations like Russia and India or nations currently involved in conflict (such as many Arab States or Israel). The latest decision by the AU further illustrates a fundamental disagreement brewing regarding the validity of the Court’s mission.

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