Chapter 4 - Between Independence and Pragmatism

Summary

Chapter 2 provided an illustration of narratives presenting different issues concerning disagreements between the critics and supporters of the Court. Chapter 3 examined the administration of prosecutorial justice focusing on decisions that are within the prosecutorial discretion. This chapter is concerned with raising some issues necessary to consider if there was indeed a desire to have a real dialogue, and examines whether it is possible to resolve the existing disagreements. In other words, is it possible for the Court to create a perception that it is beyond the influence of the powerful states? The reason is simple: perception is very important. As Thakur notes ‘[t]he sense of justice, fairness and equity is deeply ingrained in human beings (…). One of the most powerful refrains in any society is “That's not fair”, leading individuals to resist and disobey and groups to rebel and revolt ’.

However, the most critical challenge is that it is very difficult to know who is being referred to whenever people suggest a dialogue between the Court and the AU. It is unclear whether it is a dialogue between the AU and the ICC Prosecutor and/or other ICC officials, or if it is a discussion that is supposed to happen within the Assembly of States Parties (ASP), the legislative body of the Court. Or, to suggest other options, whether it should be a dialogue organised between the AU and the ICC supporters, especially with the Coalition for the ICC, or whether it should be between the AU and the United Nations Security Council (UNSC), or the Security Council with the Court. What about a conversation between the AU and ‘northern’ powers and possibly powerful individual actors within the global networks capable of influencing the Court? In other words, do we really agree on who represents the Court on all those issues that are raised? Or as Bolton noted, the Court and the Prosecutor are indeed 'simply “out there” in the international system ’.