5 - ICC Legal Argumentation

Summary

In 2019, ICC Pre-Trial Chamber II decided not to open an investigation into potential Taliban and US crimes in Afghanistan on the grounds that it would not be in the ‘interests of justice’. In arriving at this conclusion, the judges relied upon management concerns about organisational sustainability and the proposed use of resources to justify their position. While heavily criticised by scholars at the time, the judges’ reasoning alludes to the pervasiveness of management ideas and reasoning throughout the court, even in the realm of legal argumentation. This chapter takes the Afghanistan decision as the starting point for a discussion on management’s relationship to core argumentative dilemmas comprising the ICC legal field. Whether in framing case selection as a matter of court capacity or fashioning past obstacles to victim participation as ‘lessons learnt’, management ideas and practices enact a flight from the dilemmas and complexities of ICC-style justice by experts, deferring critique and sustaining the institutional project of global justice.