From watchdog to workhorse: Explaining the emergence of the ICC's burden-sharing policy as an example of creeping cosmopolitanism

Abstract

Though it was initially presumed that the primary role of the International Criminal Court (ICC) would be a residual one of monitoring and ensuring the fulfilment by the State of its obligations under the Rome Statute, it has over time moved towards a more activist "burden-sharing" role. Here, the Office of the Prosecutor initiates prosecutions of the leaders who bear the most responsibility for the most egregious crimes and encourages national prosecutions for the lower-ranking perpetrators. Since at least 2006, the Prosecutor has committed to a formal policy of inviting and welcoming voluntary referrals as a first step in triggering the jurisdiction of the Court. The judges on theCourt have approved these referrals, while the broader academic and activist communities welcomed this more vertical relationship with national jurisdictions and, significantly, have provided the intellectual justifications for it. Burden-sharing, a concept unmentioned at the RomeConference establishing the ICC, is presented as an unproblematic, natural and organic emanation from the Statute. This article argues that this development was not in fact inevitable or mandated by the Rome Statute. It was chosen, and in justifying this choice, familiar modes of cosmopolitan-constitutionalist treaty interpretation fundamentally premised on the field's virtue and indispensability have operated to enable a Court established as a residual watchdog to become a workhorse in individual situations by assuming the preponderance of responsibility for combating impunity. The sense of cosmopolitan identity has grown gradually through individuals advocating for a cosmopolitan approach within whatever cracks and fissures have appeared in the Statist system of international law. One of the reasons for the hope placed in international criminal law is its possibility to exploit these cracks and fissures. International courts and tribunals present a particularly unique opportunity for change as they are answerable to their underlying legal texts and enjoy substantial autonomy from States. Once organizations or individuals have a foot in the door, theymay seek to push the field in a direction whichmay not necessarily contribute to the immediate mandate of the relevant institutions as envisioned by their creators, but which will build towards establishing the cosmopolitan community. © The Author 2014.