Between negotiation and legitimation: The international criminal court and the political use of sovereignty challenges

Abstract

In contemporary international politics, states face numerous challenges to their sovereignty, especially in the realm of human rights. We argue that rather than simply fight back when sovereignty is challenged, states sometimes instrumentalize sovereignty challenges in pursuit of their own domestic and international political agendas. We identify two key ways that governments frame sovereignty challenges to use in these pursuits, what we call negotiation and legitimation strategies, and outline the conditions under which states may choose to employ these strategies. In order to evaluate our argument, we present a case study of Colombia’s interactions with the International Criminal Court over the course of the ICC’s seventeen-year preliminary examination. Drawing on evidence gathered from ICC records and media archives from the Colombian executive, we show first that the ICC continually challenged Colombian sovereignty by threatening to intervene, especially during the peace negotiations with the FARC. Rather than fight back against the sovereignty challenge or instrumentalize the Court to punish enemies, we also show that three successive Colombian administrations used this challenge to frame debates around contentious domestic human rights policies.

Acknowledgments

The authors would like to thank Courtney Hillebrecht, Geneva Cole, Andres Uribe, the panelists from the International Criminal Court at 20 panel at the 2022 International Studies Association Annual Convention, and two anonymous reviewers for their valuable feedback on this article. They would also like to thank Eunsil Choi for her work as a research assistant on this project.

Notes

1 Once elected, Kenyatta and Ruto pursued more explicit forms of resistance to the ICC, first by undermining the Court from within (Hillebrecht & Straus, 2017) and then by fighting back and actively obstructing the Court’s work (Ba, 2020).

2 We draw inferences about legitimation strategies using evidence of local context and explicit state behavior, but do not attempt to infer intent. That is, states may actively attempt to draw attention away from the source of criticisms, but they may also simply try to highlight their existing successes. For audiences who receive these signals, these intentions are indistinguishable. As such, we avoid making any assumptions about the intent of the legitimation strategy.

3 The three Colombian administrations, in order, are Alvaro Uribe, Juan Manuel Santos, and Ivan Duque. The three Chief Prosecutors, in order, have been Luis Moreno-Ocampo, Fatou Bensouda, and Karim Khan.

4 Reports describe the OTP’s preliminary examination activities—meetings with counterparts, discussions with victims, and OTP analyses of both admissibility and complementarity considerations—in each of the situations under the OTP’s consideration. They are issued at the end of each calendar year, and have been made public every year since 2011. We also use material from the secondary literature.

5 We also attempted to access the archives of the Ministry of Defense, but the archives were unavailable. A search of the Ministry of Justice archives yielded no relevant results.

6 The ICC’s online archive can be accessed at https://www.icc-cpi.int/resource-library/.

7 Online archives can regularly change, with new documents being added and old documents being moved or removed. Furthermore, the digital nature of these archives allows for constant reorganization, meaning that the process for accessing documents can change often.

8 The FARC, paramilitaries, and military are all considered to be responsible for the commission of sexual and gender-based violence, though this is particularly true for the FARC and paramilitaries (ABColombia, 2013).

9 Colombia ratified the Rome Statute and made its reservation pursuant to Article 124 just days before Uribe took office (Tabak, 2008). However, Uribe and his predecessor, Pastrana, had come to an agreement to make this reservation prior to the presidential transition, and the administration, the Congress, and the military itself all publicly addressed how Rome Statute ratification affected the conduct of the war and more importantly, prospects for peace with various armed groups (Schneider & Taborda Ocampo, 2011; Urueña, 2017).

10 The agreement failed to pass the national plebiscite by a narrow margin of 49.8% to 50.2%.

11 Searches of the presidential speech archives and presidential press releases since he took office yielded no results which explicitly mention the ICC from 2018 to 2021.

12 Even as the OTP suggested it would take the next step towards closing its preliminary examination, it noted that it was conditional on the continuation of certain conditions, including that Colombian authorities impose appropriate sanctions on those found responsible for abuses (Office of the Prosecutor, 2019).

13 The Venezuelan immigration crisis reached a new level of urgency in 2018, with millions of Venezuelans fleeing the country, many ending up in Colombia.

Additional information

Notes on contributors

Genevieve Bates

Genevieve Bates is an Assistant Professor of Political Science at the University of British Columbia and a Post-doctoral Fellow at the Watson Institute for International and Public Affairs at Brown University. She received her PhD in political science from the University of Chicago. Her work focuses on transitional justice and human rights.

Shauna N. Gillooly

Shauna N. Gillooly is a post-doctoral research fellow at the Global Research Institute at the College of William & Mary. She received her PhD in political science from the University of California, Irvine. Her work focuses on peace and conflict studies, with particular emphasis on political violence.