The Controversy over Territorial State Referrals and Reflections on ICL Discourse

Abstract

This article examines some of the prominent critiques concerning territorial state referrals to the ICC (also known as 'self-referrals'), in order to test and refine the arguments. Despite wide acceptance of the drafting history claim that such referrals were not contemplated in the negotiation of the Statute, the records expressly show the opposite. Critiques about the potential for political manipulation are significant, but reflect a tension inherent to all international criminal justice efforts, regardless of trigger mechanism. The concern about 'selective externalization' of prosecutions is compelling; however, the legal and normative implications are more subtle and multi-faceted than is commonly assumed. The article also ventures some preliminary observations about international criminal law (ICL) discourse in general. One observation is that although discourse focuses on points of disagreement, the interpretive community also implicitly absorbs assumptions that limit and shape legal debate. For example, the widespread but incorrect assumption that territorial state referrals were 'not contemplated' by the drafters has eclipsed the actual drafting history, and has framed 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. Multiple plausible models are compatible with the Statute, and open-minded assessment of the merits and implications of each is needed. Such models of the Court may include, for example, an 'antagonistic' model, a 'catalyst' model, a 'reverse cooperation' model and a 'facility' model.