Explaining the International Criminal Court: A ‘Practice Test’ for Rationalist and Constructivist Approaches

Abstract

Unlike other articles on the International Criminal Court (ICC) that focus on the question of the court’s future effectiveness, this article seeks to explain the creation of the court and its institutional design as established in its statute. It applies theoretical arguments from the rationalist and constructivist literature on international institutions to the ICC case; and demonstrates how both theoretical perspectives can be combined in different ways. The ICC’s establishment can be explained with rationalist arguments focusing on cooperation problems and transaction cost, yet a constructivist view can ‘deepen’ the argument by explaining the perception of problems, and provide an alternative argument focusing on legitimacy concerns. Regarding institutional design, rationalist theory helps identify a tradeoff between a weak court backed by the US and a strong court without US support; a complementary constructivist approach can explain why states opted for the latter.