The Actorness of the International Criminal Court

The end of the Cold War not only marked a change of paradigm for the realm of international relations, but likewise spawned a development commonly referred to as the proliferation of international courts and tribunals. This transformative process – during which not only the sheer number of international adjudicative structures increased, but these institutions also turned into new social actors in the international domain (Sands 2016) – has thus affected almost every sub-discipline of contemporary international law, including human rights, trade or investment. One of the regimes most palpably affected by these sweeping developments, has been international criminal justice: ranging from the ad-hoc Tribunals of the 1990s towards the International Criminal Court, the phenomenon of proliferation has (albeit belatedly) coincided with increasing resistance and backlash against those institutions’ general legitimacy and authority. This notwithstanding, these international adjudicative bodies constitute rather innovative fora for taking common action in the fight against impunity for the most atrocious international crimes and, correspondingly, both state and non-state actors have increasingly referred to these institutions and thus acknowledged their genuine jurisdiction. While it is thus possible to retrace a changing attitude towards these international adjudicative bodies, the question remains what effectively determines this “actorness” qualities, i.e. ‘the degree to which an entity qualifies as an international actor’ (Drieskens 2017: 1537): which preconditions must therefore be met before we may consider an international (criminal) court or tribunal to rise to the level of becoming a genuine actor within the international arena, thus excelling a simple principle-agent dichotomy, in which the respective judicial body merely serves at the behest of its governing entities? Beyond that, what ramifications does this entail for the (future) tectonics of international law and international relations, respectively, and what lessons may be drawn from a more in-depth analysis of these international adjudicative bodies’ assumed actorness qualities? The present paper – situated in the broader context of an interdisciplinary PhD project – thus attempts to elucidate on the above-raised questions by (1) introducing and unfolding the actorness model as originally established by authors such as Cosgrove/Twittchet or Sjösted in the context of European integration studies, (2) adapting it for the study of international criminal courts and tribunals and applying this modified sympathy of actorness to the example of the International Criminal Court as well as (3) contemplating contingent ramifications for the future grid system of international relations, including notions such as complementarity or multilevel global governance.