The Controversy over Territorial State Referrals and Reflections on ICL Discourse

Journal of International Criminal Justice, Vol. 9, pp. 355-384, 2011

30 Pages Posted: 16 Jul 2010 Last revised: 29 Oct 2011

See all articles by Darryl Robinson

Darryl Robinson

Queen's University - Faculty of Law

Date Written: July 14, 2010


This article carefully examines some of the prominent critiques concerning territorial state referrals, in order to test and refine the arguments and thereby advance debate. Despite wide acceptance of the drafting history claim that such referrals were not contemplated by drafters, the drafting history expressly shows the opposite. Concerns about the potential for political manipulation are significant, but this concern relates to an intractable tensions inherent to all international justice efforts, regardless of trigger mechanism. The concern about 'selective externalization' of prosecutions is compelling; it is argued however that both the legal implications and normative implications are more subtle and multi-faceted than is commonly assumed. A space must be created for thoughtful examination of plausible models of the Court's operation.

The article also ventures some preliminary observations about international criminal law (ICL) discourse in general, with the aim of inviting reflections that may strengthen debate. One observation is that although discourse focuses on points of disagreement, it is also a vehicle through which the interpretive community implicitly absorbs assumptions that limit and shape legal debate. For example, the widely shared but incorrect belief that territorial state referrals were 'not contemplated' by the Statute drafters has eclipsed the actual history and has framed and influenced the present legal debate concerning the supposed 'innovation'.

A related observation concerns the prospect of assuming a single vision or model of the Court and allowing that model to dictate interpretation. Such arguments are easily supported by invocations of 'drafters intent': the proposition 'I did not expect this' is articulated as 'the drafters did not want this'. However, this article recommends skepticism about portrayals of the drafters as having a monolithic vision. Multiple plausible models are compatible with the Statute, and open-minded assessment of the merits and implications of each is needed. Such models may include, for example, an 'antagonistic' model, a 'catalyst' model, a 'reverse cooperation' model and a 'facility' model.

Keywords: International Criminal Court, international criminal law, jurisdiction, complementarity, admissibility, trigger mechanisms, self-referral, territorial state, drafters intent, drafting history, interpretation, creative interpretation, cooperation, independence

JEL Classification: K14, K19

Suggested Citation

Robinson, Darryl, The Controversy over Territorial State Referrals and Reflections on ICL Discourse (July 14, 2010). Journal of International Criminal Justice, Vol. 9, pp. 355-384, 2011, Available at SSRN:

Darryl Robinson (Contact Author)

Queen's University - Faculty of Law ( email )

Macdonald Hall
Kingston, Ontario K7L 3N6 K7L3N6

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