The global political arena is surrounded by international institutions which fulfill different roles and have varying degrees of independence and influence. However, they are not relevant in every international situation as in the case of harmonious situations, where the interests of states are entirely coincident, nor where states’ interests are fully incompatible. Their relevance exists when states have some compatible and some conflicting interests. The relationship between states and international institutions is driven by a transfer of sovereignty from the former to the latter to achieve a common purpose.
David Bosco’s book, Rough Justice, effectively reveals the manner in which a relevant institution like the International Criminal Court struggles to be independent of the influence of a powerful state. The UN and the ECHR provide two other relevant examples of this relationship of interdependence between major powers and institutions.
The ICC is a good example of an international institution in charge of a considerable portion of authority. Bosco states that “The investigation and prosecution of individuals, particularly senior military, political, and security officials, is a sensitive function even for countries with strong and stable domestic institutions. In the context of internal or external conflict, that sensitivity increases markedly. More than a hundred states have given an international body the ultimate say over whether these individuals should be prosecuted.”
After abandoning the project in July 1998, the ICC was created. The intention was not only the construction of a tribunal with the aim of punishing excesses during times of conflict, but included broader concepts that involved the prevention of international human rights abuses and the establishment of the rule of law against the rule of force. According to Bosco the ICC was also intended to be a means for the limitation of the power of several influential states through binding law. Bosco writes, “Five decades after Nuremberg, the most powerful states were losing their grip on the mechanisms of international justice.”
An interesting case that outlines the role of the court in international politics is the arrest of the former Chilean president Augusto Pinochet in October 1998, only a few months after the end of the Rome Conference. Pinochet was arrested for the crimes committed during his governorship of Chile from 1973 to 1990. The court applied an infrequently used doctrine which asserts that any state has the right to persecute individuals who have committed serious crimes anywhere in the world. In fact, this principle was previously invoked only to pursue pirates or hijackers operating in the spaces between national jurisdictions. According to Bosco, “The Pinochet prosecution was a much more dramatic gambit, and it set off a diplomatic firestorm.”
The clash of the realities of power politics with the process of achieving international justice is the court’s most pressing aim. Theoretically, the court should avoid being affected by the political influence of powerful states. However, the current international scenario in which the court operates is turbulent and power matters; therefore it is inevitable that the ICC is partially dependent on major powers’ influence. On one hand, the court’s work does not require any formal political input or the approval of countries. It also has the potential to challenge the prerogatives of the powerful states. On the other hand, the court is, like all other international organizations, dependent on state resources. According to Bosco, in the end these influential states and the court were forced to develop a mutual accommodation of each other’s interests, to avoid a failure determined by a possible clash between political power and international justice.
States, however, do not always have a positive inclination towards the court. In fact, the different behavior patterns of powerful states towards the ICC are divided into three alternative strategies according to Bosco. Marginalization, which can be active or passive, consists of control or acceptance. The first strategy is the most common way for the major powers who have not joined the court to ensure a weak and irrelevant relationship with the institution, minimizing the risk of losing their independence. As a matter of fact, an institution out of a powerful state’s control can be inconvenient and even dangerous. Accordingly, the state can decide to obstruct the institution actively by delegitimizing it or through limiting its reach; this would be an active marginalization. They can also choose a less aggressive approach called passive marginalization. For instance, they can merely avoid support and deployment of resources to the institution.
The second strategy seeks to guide and control the court preventing its interference with important state interests. The best way to exercise control over the court is the implicit threat of abandonment of membership if the court does not follow the state’s guideline. Furthermore, for non-members, the most likely mechanism to control the ICC is through the UN Security Council. The Council can use its referral power to express its will and to grant the court additional jurisdictional reach.
The third tactic, acceptance, describes the behavior of states that decide to join the court regardless of whether they can control it. They choose to support the court, evaluating that there would be more benefits than costs of doing so, according to Bosco.