The International Criminal Court: The New Leviathan?
Margaret Martin of Western University in Canada
G.02, 34 Tyndall's Park Road
The static model of international law relies on familiar notions of sovereignty and consent: international law enjoys legitimacy precisely because states have consented to be bound by it. Not only does this model fail to account for the dynamism and complexity of international law, it also places too much weight on the bare notion of consent. Recall that the famous contract theorists, like Thomas Hobbes, do not simply tell us that the act of consent legitimizes the state, rather the aim is to explain the conditions that make consent rational. For Hobbes, attaining security is paramount: the legitimacy of law stems from its ability to relieve us from the conditions that exacerbate human vulnerability. I will argue that any account of the legitimacy of international law, specifically International Criminal Law (ICL), must not lose sight of the basic need for security.
If the work of ICL jeopardizes the security of vulnerable populations, such as the victims, the moral authority of this institution should be questioned. In the domestic context, such worries rarely arise as the often stated goals of criminal law, such as deterrence and retribution, tend to work in concert with the over-arching goal of peace. Conversely, in the international context, these stated ends of ICL are often not mutually reinforcing thus difficult choices must be made. I will argue that the decision to pursue justice over peace in situations when they collide robs ICL of its moral force precisely because of the foundational nature of the human need for security. Instead of realizing its promise of a better world, I will argue that many of the ICC's current practices are underpinned by a dystopian vision of a future world order.