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Copyright (c) 2017 American University International Law Review
American University International Law Review

ARTICLE: From Law versus Politics to Law in Politics: A Pragmatist Assessment of the ICC's Impact


American University International Law Review

32 Am. U. Int'l L. Rev. 645


Geoff Dancy and Florencia Montal*


If the International Criminal Court (ICC or "Court") does not transform political and social realities on the ground, then why bother? This question, repeatedly offered by those disenchanted by the Court's work, 1 is part of a pedigreed critique of international law, harking back to legal realist broadsides against natural law and positivist approaches a century ago. 2 It is not enough that law is moral, the argument goes, it must also perform in a way that is measurably good or positively transformative. The outlook that international law should be judged based on its impact is almost hegemonic today, at least in the United States. 3 One variant of this outlook, the political realist critique, is particularly resonant. In this article, we begin by tracing how this critique is applied to the ICC. Political realists toggle seamlessly between arguing that the Court is unnecessarily political, and arguing that the ICC should be more politically engaged.

We then spend the bulk of the article constructing a pragmatist response to this challenge. Accepting that the ICC is inevitably political, we move toward a measured assessment of its impact. We extensively analyze both qualitative and quantitative data on the relationship between the ICC and two outcomes: the prevention of conflict and domestic legal change. Ultimately, we determine that the ICC is almost undoubtedly associated with improved conditions in the world, but this is not yet due to its general capacity to successfully intervene in states. Instead, the ICC has ...
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