The Controversy over Territorial State Referrals and Reflections on ICL Discourse

Abstract

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