Cultivating the International Criminal Court’s Legitimacy and the Use of Constructivism to Prepare for Head-of-State Aggression Prosecutions
The Past, Present, and Future of the International Criminal Court, International Nuremberg Principles Academy (2019)
27 Pages Posted: 11 Jan 2019
Date Written: January 2, 2019
There is cause to celebrate activation of the Court’s power to prosecute the crime of aggression. At the same time, prosecuting the leadership crime of aggression could be seen as further opening Pandora’s Box regarding one of the Court’s most difficult chapters: Head-of-State or Head-of-Government (HOS) prosecutions. To avoid this result, this period between activation and the first HOS prosecution should be treated as a strategic opportunity to cultivate the Court’s legitimacy and to develop a normative framework to maintain it. Indeed, it will take a powerful Court, imbued with unquestioned legitimacy, to pursue HOS aggression cases, especially when the aggressor state and her leaders are likely to argue that the use of force was not aggression but the lawful act of a sovereign State exercising one of its most fundamental rights.
Keywords: International Criminal Court, ICC, legitimacy, aggression, constructivism, Head of State prosecutions, international criminal law
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