On 30 April I participated in a seminar at Chatham House on renovating international governance institutions sponsored by Open Society Foundations. It was a fascinating discussion spanning international finance, health, democracy and human rights. I had the pleasure of leading a discussion on the international criminal court. Strikingly, in much discussion of global governance institutions the question of international enforceability is rarely tabled. Debate is often foregrounded in an emphasis on cooperation and aligning interests over enforcement action in the face of trenchant resistance to transnational regulatory goals. In part, this reflects a prevailing ‘common sense’ position which privileges applying a problem-solving pragmatism to the global governance problematique.
However, compliance action (note: not solely reliant upon inter-state enforcement) remains a crucial component of the global governance landscape. This is particularly true in the realm of human rights regulatory governance. Unlike security or trade, human rights regulation in principle does not privilege the interests of the authorising principal (state parties), but rather the individuals at risk of abuse by those same principals or their allies. The ICC is an extraordinary development in regulatory human rights governance. However, the challenge of human rights regulation raises the spectre of ‘principal moral hazard’, whereby the effective functioning of the Court is reliant upon the cooperation of those who stand to gain least from an effective global human rights watchdog. Nevertheless, notwithstanding conflicting interests among its architects, the ICC – and in particular the Office of the Prosecutor – is not a paper tiger.
Over the course of the discussion, the ICC emerged as a deeply challenged institution. However, it was agreed that it is important not to underestimate the positive impact of ICC action in its 12 years of operation. It is impossible to take the politics out of ICC design or operation. A mandate to pursue global justice on behalf of the most politically disadvantaged groups in society is a deeply challenging policy goal. As such, advocates for reform must be attentive to the political environment and give the Court the tools to navigate this landscape as effectively as possible. A detailed policy brief on strengthening the ICC published by UCL Global Governance Institute can be downloaded here.