177Luisa Giannini; Roberto Vilchez Yamato; Claudia Alvarenga Marconi
Rev. Carta Inter., Belo Horizonte, v. 14, n. 1, 2019, p. 177-201
Ruling through the International Criminal
Court’s rules: legalized hegemony, sovereign
(in)equality, and the Al Bashir Case
Governando por meio das regras do Tribunal Penal
Internacional: hegemonia legalizada,
(des)igualdade soberana e o Caso Al Bashir
DOI: 10.21530/ci.v14n1.2019.841
Luisa Giannini
Roberto Vilchez Yamato
Claudia Alvarenga Marconi
This article investigates sovereign (in)equality as a phenomenon that is manifested in the
different levels of international institutions. The analysis is developed from the process against
Omar Al Bashir, Sudan’s President-in-Office, at the International Criminal Court. Considering
that norms and rules have a social role in the multiple relations existing between agents and
structures, that is, they transform relations in the international system, the article investigates
1 We would like to thank Professors João Pontes Nogueira and Stefano Guzzini for reading and commenting on
previous versions of this paper. We are also grateful to Nicholas Onuf whose teachings and work have immensely
influenced this article. This study was financed in part by the Coordenação de Aperfeiçoamento de Pessoal de
Nível Superior – Brasil (CAPES) – Finance Code 001.
2 Doutoranda e Mestre pelo Instituto de Relações Internacionais da Pontifícia Universidade Católica do Rio de
Janeiro (IRI/PUC-Rio). Professora da graduação do IRI/PUC-Rio. Pesquisadora e Coordenadora da linha de
pesquisa em tribunais penais internacionais do Núcleo de Estudos em Tribunais Internacionais (NETI-USP).
3 Professor do Instituto de Relações Internacionais da Pontifícia Universidade Católica do Rio de Janeiro (IRI/PUC-Rio).
Doutorando em Direito, Birkbeck, University of London. Doutor em Relações Internacionais pelo IRI/PUC-Rio.
Mestre em Ciências Sociais/Relações Internacionais pela Pontifícia Universidade Católica de São Paulo. Mestre
em Direitos Humanos pela London School of Economics and Political Science.
4 Bacharel em Relações Internacionais pela Universidade Estadual Paulista Júlio de Mesquita Filho (2005).
Mestre (2009) e Doutora (2013) em Ciência Política pela USP. É professora do curso de Graduação em Relações
Internacionais e Tutora do Programa de Educação Tutorial de Relações Internacionais (PET-RI), com a temática
dos direitos humanos e violência, na Pontifícia Universidade Católica de São Paulo (PUC-SP).
Artigo submetido em 20/08/2018 e aprovado em 06/02/2019.
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the dispositions and principles present within the scope of the International Criminal Court
that authorize a discrimination between States. This distinction implies the imposition of
international rules for some actors and the maintenance of certain sovereign prerogatives
for others. More specifically, international criminal justice is characterized by selectivity
in judgments, as some countries are given certain authority over the regime. In this sense,
it is argued that the sovereign (in)equality that is present in international criminal law is
simultaneously a manifestation and condition of possibility for the hierarchy in the social,
and therefore institutional normative, and political architecture of the international system.
It is argued that the presence of this sovereign (in)equality can be identified at the different
levels of the institutions of international society, insofar as they influence one another.
Keywords: International Criminal Court; Al Bashir Case; Norms; United Nations Security
Council; Sovereign (In)equality.
Este artigo investiga a (des)igualdade soberana como um fenômeno que se manifesta nos
diferentes níveis de instituições internacionais. A análise é desenvolvida a partir do estudo
do processo contra Omar Al Bashir, presidente em exercício do Sudão, no Tribunal Penal
Internacional. Considerando que normas e regras possuem um papel social nas múltiplas
relações existentes em meio a agentes e a estruturas, ou seja, elas transformam as relações
no sistema internacional, o artigo investiga as disposições e princípios presentes no âmbito
do Tribunal Penal Internacional, que autorizam uma discriminação entre os Estados. Essa
distinção implica a imposição de regras internacionais para alguns atores e a manutenção
de certas prerrogativas soberanas para outros. Mais especificamente, a justiça internacional
penal é caracterizada pela seletividade nos julgamentos, uma vez que é conferida a alguns
países certa autoridade sobre o regime. Nesse sentido, defende-se que a (des)igualdade
soberana que está presente no direito internacional penal é, simultaneamente, manifestação
e condição de possibilidade da hierarquia na arquitetura social, e portanto normativa
institucional, e política do sistema internacional. Argumenta-se, assim, que a presença
dessa (des)igualdade soberana pode ser identificada nos diferentes níveis das instituições
da sociedade internacional, na medida em que elas influenciam umas às outras.
Palavras-chave: Tribunal Penal Internacional; Caso Al Bashir; Normas; Conselho de Segurança
das Nações Unidas; (Des)igualdade Soberana.
179Luisa Giannini; Roberto Vilchez Yamato; Claudia Alvarenga Marconi
Rev. Carta Inter., Belo Horizonte, v. 14, n. 1, 2019, p. 177-201
During the drafting process of the Rome Statute of the International Criminal
Court (ICC), there was a tension between two principles: sovereign autonomy
and inequality (SIMPSON, 2004). One of the important topics discussed at the
Plenipotentiary Conference in 1998 concerned the role of major powers in the
functioning of the ICC. It was intended that the Court’s jurisdiction could be
triggered in two ways: the first, through a self-referral by sovereign states that
autonomously ratified the Rome Statute; and, the second, following the referral
of a case by the United Nations Security Council (UNSC). There was, however, a
concern that this second triggering mechanism would establish a power prerogative
of certain states over the regime of international criminal law. This aspect marks
all institutional building enterprise and negotiation internationally, especially
because it is intimately connected to a consequent increase in the production of
unequal international orders while establishing international institutions and not
undermining them as some enthusiasts would advocate.
In the final document of the Rome Statute, Article 13(b) established that
the UNSC would have the power to refer cases to the Court due to its authority
on matters relating to Chapter VII of the UN Charter. This section of the Charter
famously establishes that it is for the UNSC to determine “the existence of any
threat to peace, breach of peace or act of aggression” and, in such situations, it
must take appropriate measures in order to “maintain or re-establish peace and
security” (UNITED NATIONS, 1945, art. 39). Mirroring UN Charter’s article 2(6),
the prerogative of the UNSC under Article 13(b) authorizes the initiation of a
procedure by the ICC against any UN member-State – even if it is a non-signatory
country of the Rome Statute. In other words, it makes possible for the UNSC to
go beyond the sovereign prerogative of States – in voluntarily binding themselves
to a treaty (or not) – by giving it the authority to ground universal jurisdiction,
and, hence, internationally trumping the non-signatory State’s sovereign will and
decision to – not – ratify the Rome Statute.
5 The activation of a third-party jurisdiction – meaning that the Court could initiate an investigation over situations
involving states that are not party to the Rome Statute – deserves to be mentioned as a complement of our
argument. Morris (2000) argues, for instance, that the activation of the powers of ICC towards nationals of
States that are not party to the Rome Statute has to do with two main patterns: “There will be cases involving
strictly a determination of individual culpability and cases that will focus on the lawfulness of the official acts
of states” (MORRIS, 2000, p. 364). This typology allows us to point to the fact that Sudan, our case study,
lies in this second category of cases in which States do not opt, at any time, to have their nationals under the
individual criminal accountability regime established by the Court.
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Considering the UNSC’s institutional architecture and (great) power
composition, and, most specially (or exceptionally), the position occupied therein
by the five (extra)sovereign states with permanent seats and veto powers, the ICC’s
jurisdictional (infra)structures institutionally express an – (un)equal – order and
ordering (LINDAHL, 2013). While some States are structurally (self-)immunizable,
the rest – signatories or not to the Rome treaty – are subjectable, that is, not
(self-)immunizable to the ad hoc (or exceptional) universal jurisdiction of (the
UNSC through) the ICC. This legal-political, institutional arrangement reflects, we
argue, what Simpson (2004) calls “legalized hegemony,” that is, a condition in
which the privileges of certain states are not only legitimized, but also legalized
through legal rules and institutions such as the UN Charter and the UN, and the
Rome Statute and the ICC.
The UNSC made use of this “hegemonic imperative” for the first time in
its referral of the Darfur case to the ICC. After the UNSC referral and the ICCs
preliminary investigations, the ICC issued in 2009 an international arrest warrant
against Omar Al Bashir, the acting Head of the Sudanese sovereign state. Al Bashir
was the first acting Head of State to be indicted by the ICC (and through the
UNSC). This case points to two controversial issues in the ICC regime. The first
concerns the UNSC’s authority to refer or defer a case from the ICC’s jurisdiction.
The second regards the capacity of the UNSC to waive an acting head of state’s
The case against Al Bashir at the ICC is relevant and essential because
it points not only to disputes within the framework of international criminal law,
but also to constitutive tensions or aporias of the modern international order
more broadly. In this case, questions about the power of the UNSC to submit a
non-signatory state to the Court’s jurisdiction and the prerogative to remove the
immunity of an incumbent head of state touches upon the sovereign (in)equality
between the state actors in this international regime.
It is meaningful the fact that the Al Bashir Case has already been set as a
precedent for a subsequent situation in Libya, involving the referral of Mr. Muammar
al-Gadaffi by the same UNSC to the Office of the Prosecutor (OTP) at ICC’s
headquarters. As a sort of path-dependent trajectory, Libya is also not a State
Party to the Rome Statute and Muammar al-Gadaffi was also a serving head of
state when targeted by the Court.
6 If the state has signed the Rome Statute, the Court itself has the capacity to overthrow the immunity of the Head
of State. According to Article 27(1) and 27(2) that official capacity is irrelevant when it comes to the individual
criminal accountability established the Court and consent to the Rome Statute formally affirms this irrelevance
of official capacity.
181Luisa Giannini; Roberto Vilchez Yamato; Claudia Alvarenga Marconi
Rev. Carta Inter., Belo Horizonte, v. 14, n. 1, 2019, p. 177-201
From this, it is understood that the political matters of the Al Bashir Case
are associated not only with the more immediate issues of the regime, but also
with the fundamental institutions and the political-legal order and ordering of
international society. In order to establish such a relationship, the model of
hierarchy of international institutions developed by Christian Reus-Smit (1999),
which divides international institutions into three groups, is used as a theoretical
framework. In general, the hierarchy to which the author refers recognizes
the constitutional structure as the deepest level of values that constitute the
international society. It conditions the fundamental institutions that, in turn,
influence specific regimes. A study of the sovereign inequality manifested in the
ICC regime is therefore necessary. The same goes to its manifestations in two
other instances: the fundamental institutions and constitutional structure of the
international order. Through the study of the Al Bashir Case, this paper questions
the legalized hegemony crystallized in the rules of the ICC’s institutional framework.
In addition to the specific problems of the institutions, these controversies present
in international criminal law point to other more fundamental questions of
international relations, in the sense that it shows how justice can be used as a
mechanism for ordering the international society.
If this is true, there would not be necessary to deal with the ICC framework
in terms of a permanent trade-off between order and justice, sovereignty and (the
enforcement of) human rights (YAMATO, 2014). For justice would be subordinated
to the interests of those who claim the responsibility for the maintenance
of international society and its (or their) ‘law and order’: the great powers.
Agreeing with Cui and Buzan (2016, p. 183), who have recently affirmed, “We are
particularly interested in uncovering whether and how particular conditions in
international systems/societies facilitate or obstruct the operation of GPM [Great
Power Management]”, our contribution does not maintain ICC as a judicialized
international institution that entails a universal justice and constrains international
order, but as a secondary institution that kept a primary international society
institution untouched, that is: the great power management.
7 The concepts of primary and secondary institutions are connected to an English School theoretical tradition of
IR (see, for instance, BULL, 2002; BUZAN, 2004; HOLSTI, 2004). While the former are connected to patterned
international behaviours of states, the latter are a deliberate choice of states which design these formal institutions
in a coherent manner, since they would allow for the maintenance and even naturalization of previously installed
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In this sense, the Al Bashir Case is important because it raises questions
about the authority exercised by the five permanent UNSC members and their
capacity to act on issues concerning international criminal law. Cases such as
these, which point to problematic issues in the structure of international criminal
law, allow for discussions about the very foundations underlying international
society. In this sense, it can be seen that broader problems, often identified with
the architecture of international relations, such as inequality among states, are also
manifested in specific structures, such as the international criminal justice system.
However, these are not a mere expression of a global phenomenon. The more
specific international institutional practices and arrangements are embedded in a
context of mutual constitution in which, in addition to reproducing a hierarchical
logic that is manifested in the structure of international society, they also allow
this structure to be maintained and reproduced. From this arises the need for
problematization of the normative-institutional apparatus within which these
situations are inserted.
In order to analyse these problems, we can also draw on Nicholas Onuf’s
proposal to think of social arrangements as indissociably related to the (re)
production of three conditions of rule: hierarchy, hegemony, and heteronomy.
Hence, the theoretical positioning adopted is, in some sense, plural, seeking to
depart from the thought of Reus-Smit and Onuf, with influences of certain critical
readings not only from International Relations, but also from International Law.
In this sense, this paper seeks to establish a dialogue between the International
Relations and International Law literatures, especially because it seeks to
study the institutions of international law and international criminal law. Such
interdisciplinary enterprise allows raising questions concerning international
institutions that would otherwise not be possible.
Moreover, it is worth saying that there are different positions in the literature
on the implementation of interdisciplinarity between International Law and
International Relations. It includes debates on whether or not it is possible to
establish a relationship between the two disciplines, the problems and advantages
of adopting an interdisciplinary methodology, the boundaries established in each
discipline, and the constant (re)definition of each discipline’s identities that result
from these efforts (LEANDER; WERNER, 2016; YAMATO; HOFFMANN, 2018).
Therefore, this paper seeks to engage with the critical literature of International
Law and International Relations in order to analyse the problem of sovereign (in)
equality in the regime of international criminal law and its relationship with the
183Luisa Giannini; Roberto Vilchez Yamato; Claudia Alvarenga Marconi
Rev. Carta Inter., Belo Horizonte, v. 14, n. 1, 2019, p. 177-201
architecture of international society.
For this, we begin with the conceptual basis
of the paper, with the formulations of Christian Reus-Smit and Nicholas Onuf about
the working of rules and institutions in international society. Then, we go into the
case study,
explaining the most important aspects of the Al Bashir Case that help
to point out the manifestation of sovereign inequality in the ICC’s regime. In the
following section, we focus on the literature that point this problem – sovereign
inequality –exemplified by the case in the previous section. Finally, we draw our
concluding notes, pointing to how the sovereign inequality highlighted in the
Al Bashir Case can be seen, at the same time, as a manifestation and a condition
of possibility of a phenomenon that is entrenched in the social architecture of
international society.
From international rules to the ruling of the international
Christian Reus-Smit (1999) draws a distinction between the institutions
that compose the international order in three sets, which would be, from top to
bottom, respectively: specific regimes; fundamental institutions; and constitutional
structures. These institutions would be hierarchically ordered, in a way that a
higher level would be influenced by that which represents its basis.
At the first level, are regimes dealing with specific areas. Under this category
are the arrangements of rules built directly by the actors. The specific regimes are
based on fundamental institutions which, in turn, are “the elementary rules of
practice that states formulate to solve the coordination and collaboration problems
associated with coexistence under anarchy” (REUS-SMIT, 1999, p. 14). They make
up what Reus-Smit (1999) calls the “basic framework” for cooperation between
states. Their existence is fundamental so that the regimes can be established,
because they are the fundamental institutions. These institutions, unlike specific
regimes, are not altered simply by a change in actor’s interests and they transcend
8 This paper is heavily influenced by certain critical literature in both fields of International Relations and
International Law, even though it does no engages directly with it. The paper pays significantly attention to an
IR literature, but we have been paying attention specially to TWAIL scholars and critical readings of International
Law, such as Martti Koskenniemi. In particular, see Koskenniemi (2011), mainly chapter 7, which speaks directly
with the topic addressed in this paper.
9 Although we work with a case study, as was highlighted in a comment by one of the anonymous referees –
which we are very grateful for – it is important to clarify that this article follows a more theoretical-interpretive
line of argument instead of an empirical one.
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changes in the balance of power in the international system. In the society of
states, we can identify a series of fundamental institutions, among them diplomacy,
international (criminal) law, multilateralism etc.
Finally, the basis is the constitutional structure, which influence the nature
of fundamental institutions. These are “foundational institutions,” the deepest
socio-normative level (REUS-SMIT, 1999). They represent
[C]oherent ensembles of intersubjective beliefs, principles, and norms
that perform two functions in ordering international societies: they define
what constitutes a legitimate actor, entitles to all the rights and privileges
of statehood; and they define the basic parameters of rightful state action
(REUS-SMIT, 1999, p. 30).
Constitutional structures, therefore, are so named because they incorporate
the basic principles that, in turn, will produce and shape practices within
international society. Thus, they restrict actors’ actions by establishing guidelines
for conduct. Three normative components allow constitutional structures to play
this role: (1) a hegemonic idea about the moral purpose of the state; (2) the ordering
principle of sovereignty; and (3) a rule of procedural justice (REUS-SMIT, 1999).
These elements operate in a way that the moral purpose represents the
central part of this normative complex, since it provides the basis to justify the
other components. The moral purpose of the state represents the reason to ensure
the ordering of political life in communities that have autonomy in relation to
the others and a centralized authority. It is characterized as moral by the fact
that it establishes rules from a conception of what would be the best form of
organization for political units. In addition, the existence of a hegemonic notion
of a moral purpose of the state does not mean that this is the only one, but that
this belief was socially approved to dictate the political principles of political life.
This foundation establishes the rules of entry and for institutional practices. The
ordering principle defines how the differentiation of units will be made. In the
society of states, it is the principle of sovereignty that plays this role. However,
it must be pointed out that the claims of sovereign authority in international
society can take various forms. The norms of procedural justice are the last
element that composes this complex. They determine the proper conduct taken
by legitimate actors. However, they do not prescribe principles, just precepts
about what would be right or fair behaviour within the international environment
(REUS-SMIT, 1999).
185Luisa Giannini; Roberto Vilchez Yamato; Claudia Alvarenga Marconi
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However, this model is only partially of use in this paper. Reus-Smit (1999)
attributes to the constitutional structure the function of conditioning the other
international institutions. In this sense, he establishes a hierarchy between
them according to their character of influence and consolidates the normative
foundations of international society in the constitutional structure, attributing to
it a character of foundational institution of the international order. His reading is,
however, restricted, since it does not consider the social character of norms and
rules in international society. The key to this understanding lies in the idea that
these are neither situated in the agents nor in the structure.
Nicholas Onuf’s (1998a, 1998b, 2002, 2013a, 2013b, 2016) reading allows us
to escape from the foundational character present in Reus-Smit’s formulation,
through an understanding of the international as a social order. In this conception,
the rules receive the status of a third element that lies amidst agents and structure.
From this place, rules participate in the process of constitution of both, while it
is also constructed in the process. Thus, “[t]hrough rules people constitute the
multiple structures of society, and societies constitute people the agents” (ONUF,
1998b, p. 172), that is, the definition of agents by rules is made in relation to
institutional arrangements and the same applies to institutions, which are defined
by the rules in relation to agents. Many institutions play the role of agents, made
possible by their rules.
With this understanding, it cannot be said that the conditioning of other
institutions happens in only one sense, as proposed by Reus-Smit’s scheme. As
much as there are rules that have a distinct status, such as the ability to give some
actors the power to introduce or end certain rules, Onuf’s approach does not have
a hierarchically superior rule structure. The author’s reading points to a scenario
in which the most important rules would not be crystallized in a structure, but
would be determined by the agents themselves in the process of interaction.
In addition to helping to overcome some problems in Reus-Smit’s approach to
international institutions, Onuf’s reading also makes it possible to understand the
manifestation of sovereign inequality in the rules and institutions of international
society. For Onuf, “[e]very society is saturated in rules” (ONUF, 2016, p. 4) and
“where there are rules (and thus institutions) there is rule – a condition where
agents use rules to exercise control and obtain advantages over other agents”
(ONUF, 1998a, p. 63).
Rules, once they allow this unequal political and social interaction, possibly
result in three conditions of rule, classified according to their function. The
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hegemonic rule would correspond to the use of assertive discourses that inform
the state of something and determine the agent’s action in relation to it. A second
form would be the hierarchy, which is associated with rules of direction, that is,
imperative norms in which orders are implicit and results in its obedience and
acceptance. Finally, the third type of rule is heteronomy, which is associated
with the notion of an absence of (absolute, complete) autonomy. This form of
rule is related to the rules of commitment which are carried out in the form of an
agreement (ONUF, 1998b, 2013b; NOGUEIRA; MESSARI, 2005).
Even though agents are constituted from these forms of rule, they also
participate in their constitution, since they have the capacity to act and change
their social reality. Thereby, taking social arrangements as constituted from social
relations allows us to understand the process of co-constitution between agents-
society-rules. From this, we can understand that the analysis of social relations
should take rules as its departing point.
Onuf’s formulation of rules allows us to overcome the problem identified
in Reus-Smit’s model of crystallization of the meta-values of the constitutional
With the concept of rules, Onuf doesn’t admit anything as previously
determined and provides instruments endogenous to his own theoretical
contribution to analyse the diversity of social events. In this sense, the
permanent construction and reconstruction of social life in general – and
of international relations in particular – opens the door, indefinitely, for
transformation, change or continuity. The world is truly ‘a world that we
make’ (NOGUEIRA; MESSARI, 2005, p. 174, our translation
Moreover, with this conception, it becomes possible to account for the
presence of sovereign inequality in the institutions of international society. Once
it is understood that the power arrangement in the system has an impact on
the formulation of new rules, this model allows us to study the phenomenon of
sovereign inequality, and even legalized hegemony, a situation in which great
powers use their position of superiority in resources to transform privileges – often
already existing – into norms.
10 Translated from the original: Com o conceito de regras, Onuf não admite nada como previamente determinado
e providencia instrumentos endógenos à sua própria contribuição teórica para analisar a diversidade dos
eventos sociais. Nesse sentido, a permanente construção e reconstrução da vida social em geral – e das relações
internacionais em particular – abre a porta, de maneira indeterminada, para a transformação, a mudança ou
continuidade. O mundo é verdadeiramente ‘um mundo que nós fazemos.
187Luisa Giannini; Roberto Vilchez Yamato; Claudia Alvarenga Marconi
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The Al Bashir Case: (re)reading the relationship between the
ICC and the UNSC
The Al Bashir Case is revealing as it was the first case of the ICC in which
its jurisdiction was based on article 13 of the Rome Statute – and, as previously
stated, served as precedent for the Libyan situation. In other words, the UNSC
made unprecedented use of its prerogative under Chapter VII of the United Nations’
Charter to initiate an investigation by the ICC. This case points to a central problem
that is present in different spheres of international relations: the existence of rules
that affirm sovereign inequality. The term describes the condition of a society of
states in which some of them, in addition to their sovereign prerogatives, enjoy
exclusive rights. From this privileged position, they have the capacity to restrict
the sovereign rights of other states (SIMPSON, 2004).
The Al Bashir Case
began as of Security Council Resolution 1593 and is held
by some authors as a milestone for international justice, for being the first time the
UNSC triggered its jurisdiction over the ICC (BÖCKENFÖRD, 2010). However, the
authority conferred on the UNSC by the Rome Statute is still a controversial topic,
since the independence of the Court is considered to be an important institutional
aspect that distinguishes ICC from its predecessor courts.
Since the establishment of the Al Bashir Case at the ICC, two arrest warrants
have been issued against the acting head of state: the first on 4 March 2009
and the second on 3 February 2010.
The first warrant was sent to all States
Parties to the ICC and to UNSC members who are not signatories to the Statute
11 In the face of continued reports of massive human rights violations in the Darfur region, UNSC Resolution 1564
of 18 September 2004, made the following requests: (1) that an international commission be established by the
UNSC to investigate allegations of violations of international humanitarian and human rights law in Darfur; (2)
to ascertain whether acts of genocide had been perpetrated; and (3) that the perpetrators of these violations
were identified in order to be held accountable (UNITED NATIONS SECURITY COUNCIL, 2004, para. 12).
In accordance with Resolution 1564, the then UN Secretary General, Kofi Annan, established the International
Commission of Inquiry on Darfur (ICID). The ICID report, which visited the country at the end of 2004, alluded
to the practices employed by the Janjaweed militias, the Sudanese government and, to a lesser extent, by the
rebels who, according to the rapporteurs, constituted crimes against humanity and war crimes (INTERNATIONAL
COMMISSION OF INQUIRY ON DARFUR, 2005; OETTE, 2010, p. 374). In addition, it was stated that there were
no indications of genocide, although acts of individuals with intent to genocide have been identified. Finally,
the document further recommended that the UNSC refer the case to the ICC (OETTE, 2010, p. 347).
The UNSC accepted the recommendation of ICID, in accordance with its prerogative based on article 13 of the
Rome Statute, and indicated that the case of Darfur should be investigated by the Office of the Prosecutor (OTP)
of the ICC, through Resolution 1593, on 31 March 2005.
12 Despite the issuance of arrest warrants, Omar Al Bashir remains at large, since he did not surrender – and was
neither arrested nor surrendered – to the Court.
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of the Court (AKANDE, 2009a, 2009b). Although the request for the arrest and
surrender of Al Bashir was addressed to each of the States mentioned, Resolution
1593 made a request for States and regional organizations to cooperate with the
Court’s requests (UNITED NATIONS SECURITY COUNCIL, 2005). In face of this
situation, the Sudanese government refuses to cooperate with the ICC. Officials
in the country claim that the Sudanese judicial system has already dealt with
the crimes committed on its territory against the civilian population.
On the
basis of the principle of complementarity,
provided for in the Rome Statute,
this would remove the competence of the ICC –, which means, therefore, that it
is not necessary for the case to be addressed in international bodies. In addition,
Sudan claims that it has no obligation to the ICC since it is not a State Party to
the Court’s constitutive instrument (OETTE, 2010).
The Sudanese President, since the issuance of the first arrest warrant by the
ICC, has carried out more than 60 official trips. Among the countries that have
received Al Bashir, there are members and non-members of the ICC. In many
13 In response to the indictment of Darfur's situation with the ICC, the Sudanese government established the
Special Criminal Court for Darfur (SCCD) in June 2005. However, the defendants brought to SCCD were few
and far from the country’s high political leadership. In addition, crimes covered by internal trials were restricted,
and cases of common offenses committed in isolated incidents were often brought to court (OETTE, 2010, p. 347).
14 The principle of complementarity regulates the relationship between domestic and international criminal
jurisdictions. It is provided for in the Rome Statute both in its tenth preambular paragraph and in Article 1. In
the latter, it is defined that the jurisdiction of the ICC “shall be complementary to national criminal jurisdictions”
(ROME STATUTE, 1998, art. 1). This means that the Court functions as a supplementary mechanism and
should not overlap with investigations and prosecutions of domestic crimes as long as they are in accordance
with international law. The ICC must therefore operate in a way that complements those judgments, being an
additional concurrent jurisdictional layer that can intervene if and when domestic jurisdictions fail to bring
genuinely to justice those suspected of having committed genocide, crimes against humanity, war crimes
and – once the ICC may exercise its jurisdiction in this respect – the crimes of aggression” (NERLICH, 2009, p.
346, emphasis in original). In theory, the ICC should give priority to the trial in a national forum, as established
in article 17 (1) of the Rome Statute. It establishes that the Court must render inadmissible to try a case before
the ICC in the following situations: (1) whether the case is being investigated or judged by the State that has
jurisdiction over it (ROME STATUTE, 1998). However, in order to be considered inadmissible, there should be
tried in the domestic proceedings the same individuals and crimes as in the ICC situation/case (PTC, 2006, para.
31). Moreover, it is possible that a case is admissible to the ICC once it considers that it is not being genuinely
investigated and tried by the State; (2) if the State having jurisdiction over the case decides, after investigation,
not to judge the individual, unless it is considered that the decision was taken by the inability or unwillingness
of the State to judge; (3) if the individual has already been tried for the conduct for which he is accused in the
complaint (ROME STATUTE, 1998, article 17). However, the principle non bis in idem – which establishes that
an individual will not be tried more than once for the same fact – will not be applied, as stated in article 20
(3) of the Rome Statute, in cases in which the domestic trial happened “for the purpose of shielding the person
concerned from criminal responsibility for crimes within the jurisdiction of the Court” or when the proceeding
is not considered impartial or independent in accordance with the rules of international law, so that there is
no intention to bring the individual tried the Justice; and (4) if the seriousness of the case does not justify
interference by the ICC, even in the absence of a domestic proceeding (ROME STATUTE, 1998, art. 17).
189Luisa Giannini; Roberto Vilchez Yamato; Claudia Alvarenga Marconi
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cases, the failure to surrender Al Bashir to the Court resulted from a deliberate
choice of those States.
With regard to the Rome Statute signatories that received the Sudanese
President – as Chad, Djibouti, Malawi, Kenya, DRC and South Africa, for example –
the Court requested the presence of their representatives, demanding explanations
for non-cooperation in prison and handing over Al Bashir to the ICC (CRYER,
2015). Nevertheless, no concrete action was taken by the ICC against those States.
This has to do with the fact that only the Assembly of States Parties of the ICC
(ASP) and the UNSC (in cases initiated by UNSC resolutions) have the power to
implement decisions in the event of non-compliance with arrest warrants.
In July 2009, at a regular meeting of the African States Parties to the Rome
Statute of the International Criminal Court, which took place within the framework
of the African Union (AU), members expressed great concern about the implications
of the arrest warrant issued by PTC against Omar Al Bashir for the ongoing peace
process in the country (AFRICAN UNION, 2009, para. 2). The Decision called for
a number of issues to be discussed at the ASP meeting in Kampala, Uganda, in
May 2010, of which the most relevant were: (1) the existence of Articles 13 and
16 in the Rome Statute, which provides the UNSC with the ability to initiate or
discontinue cases at the ICC; (2) a need for clarification by the Court the question
of immunities of officers whose States are not parties to the Rome Statute; and
(3) the implications of the practical application of articles 27 and 98 of the Rome
Statute (AFRICAN UNION, 2009, para. 8).
In addition, the Decision expressed the frustration of African States with the
fact that the request of the AU to the UNSC – asking it to defer proceedings against
Omar Al Bashir in the ICC – in line with the prerogative conferred on that body
by article 16 of Rome Statute – had not been even heard. The request was thus
reiterated. Lastly, the most striking aspect in the decision of the African States
Parties to the Rome Statute was the request for its signatories to not cooperate
with the ICC regarding the Al Bashir Case – a possibility provided for in article
98 of the Rome Statute (AFRICAN UNION, 2009, para. 9 and 10).
This situation led to the debate regarding the obligation to arrest Al Bashir
when in the territory of a state party of the ICC, considering his status as head
of state and the consequent prerogative of immunity based on international law.
The question of Al Bashir’s immunity, which stems from his status as acting
head of state, is controversial. For the first time the ICC has a case against an acting
head of state. There are precedents of judgments of former heads of state who did
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not have immunity rights because they were nationals of Rome Statute member
countries, which implies the waiver of their immunities.
Before the question
of whether, under international law, incumbent heads of state would enjoy the
right to immunity from criminal jurisdiction and from orders of arrest in foreign
states, many authors consider that Al Bashir is entitled to absolute immunity,
even though he is accused of committing international crimes (AKANDE, 2009a).
The immunity of state officials was addressed in the ruling of the International
Court of Justice (ICJ) in the Case of the Arrest Warrant of 11 April 2000. In this
case, which concerned, however, an individual who exercised the position of
Minister of Foreign Affairs, the ICJ judged itself:
[U]nable to deduce […] that there exists under customary international
law any form of exception to the rule according immunity from criminal
jurisdiction and inviolability to incumbent Ministers for Foreign Affairs,
where they are suspected of having committed war crimes or crimes against
humanity (ICJ, 2002).
The ICJ understood that the mere issuance of the arrest warrant by Belgium
against an interim member of the Democratic Republic of Congo’s government
constituted a violation of international law’s customary rules concerning the
personal immunities enjoyed by foreign officials (author). The same reasoning can
be applied to heads of state. There are, however, some differences: the arrest warrant
against the Sudanese president was not issued by a foreign court and circulated
in an international environment. It comes from an international court, being an
international warrant for the arrest and surrender of Al Bashir (GAETA, 2009).
After arguing that the immunity of heads of state is an impediment to the
exercise of criminal jurisdiction by national courts, the ICJ sought to clarify the
issue with regard to international criminal courts, ruling that immunity does not
apply the same way. The ICJ decision referred to judgments in the International
Criminal Tribunal for the former Yugoslavia (ICTY), in the International Criminal
Tribunal for Rwanda (ICTR) and in the ICC. Regarding the ICC, it emphasized
Article 27(2) of the Rome Statute, according to which immunities recognized under
15 Even the trial of heads of state in other international criminal tribunals created after the 1990s is different,
since the ICC was created based on a treaty.
16 The issue of immunity of heads of state was also discussed in two other situations: in the Pinochet Case, before
the House of Lords, in the United Kingdom; and in the Belgium v. Senegal, at the ICJ. However, both cases
concerned trials of former heads of state before national courts, claiming universal jurisdiction due to the crimes
191Luisa Giannini; Roberto Vilchez Yamato; Claudia Alvarenga Marconi
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domestic or international law do not prevent the ICC from exercising jurisdiction
over an individual (ICJ, 2002). However, the ICJ’s assessment of immunity from
international criminal tribunals did not go further, as it was unnecessary for the sub
judice case. As a result, a number of questions remain regarding the observation
of the immunity of government officials before international criminal tribunals.
The ICJ’s assessment of the invalidity of immunities before international
criminal tribunals is widely criticized, mainly because it mentions the ICTY, the
ICTR and the ICC, without considering the differences between these courts. These
distinctions are central to the discussion of the (in)applicability of the principle of
immunity of heads of state. Although the ICTY and ICTR are international courts,
they are ad hoc tribunals, different from the ICC, which is a permanent court.
The two courts were created from UNSC resolutions, so they are vested with the
authority of a measure adopted under Chapter VII of the UN Charter. The ICC,
as explained above, was created on the basis of a treaty, so it is founded on the
direct consent of the contracting states.
This distinction is fundamental because it has an impact on the obligations of
states to execute the arrest and surrender warrants issued by those courts against
individuals who enjoy personal immunities based on international law (GAETA,
2009). When the ICTY and ICTR were created, the UNSC imposed obligations on
all UN members to cooperate with these tribunals (UNSC, 1993, 1994). Therefore,
although the ICTY Statute – or the UNSC Resolution establishing it – does not
contain provisions on the breach of immunity, the issuance of the arrest warrant
by the ICTY against Slobodan Milosević has been little questioned,
since it
is considered that the UNSC is able to remove the immunities of officials and
governments’ representatives of UN Member States by virtue of their acceptance
of Articles 25 and 103 of its Charter. In the case of the ICC, because it’s based
on a treaty, it cannot do the same, since the Vienna Convention on the Law of
Treaties states in article 34 that treaties cannot create obligations and rights to
third states without their consent (INTERNATIONAL LAW COMMISSION, 1969).
In that sense, the Court only has authority to require the execution of an arrest
warrant to its members.
The Al Bashir Case presents a difference from the situations referred to the
Court by states themselves or by the Office of the Prosecutor: the fact that Sudan
17 The questions raised indicate that the existence of jurisdiction does not imply absence of immunities, a position
that is in line with the decision of the ICJ in the Arrest Warrant Case (ICJ, 2002).
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is not part of the Rome Statute. This implies that Sudan has not waived its rights
to immunity. On the other hand, since the Al Bashir Case stems from a UNSC
resolution, it is argued that only the Security Council has authority to remove the
immunity from Al Bashir.
Although not a state party to the Rome Statute, Sudan would be obliged
to cooperate with the ICC because of Resolution 1593, which stated that “the
Government of Sudan and all other parties to the conflict in Darfur, shall cooperate
fully with and provide any necessary assistance to the Court and the Prosecutor
pursuant to this resolution” (UNSC, 2005). Resolution 1593, therefore, establishes
an explicit obligation under international law for Sudan, which includes the duty
to arrest and surrender any individual requested by the ICC. This case raises
questions about the violation of Sudan’s sovereign autonomy by a rule of the ICC,
which authorizes the UNSC to bind that state to the statutory provisions of the
Court, and consequently imposing obligations that were not adopted voluntarily.
In sum, the Al Bashir case is questioned in this article because of these traces
of sovereign inequality, not only found in the ICC, but also in other instances of
international society.
As noted, the Al Bashir Case raises the discussion about the prerogatives given
to some states by the Rome Statute over the ICC. By investing in large powers the
ability to initiate an investigation against a state – which may or may not be a
member of the Court – and to order that an investigation or trial under way in the
ICC be discontinued, the Rome Statute crystallizes the condition of a select group
of states as possessor of powers over the sovereignty of others. The signing of an
international treaty is considered an expression of the sovereign will/autonomy of
states. However, since this group – the five permanent members of the UNSC – has
an express authorization to submit any State – with the exception of themselves,
since the objection of one means the non-progress of the proposal – to that treaty,
there is a trail of hierarchy and inequality to be followed.
The Case highlights precisely this issue. As the UNSC indicated that the ICC
should investigate the situation in Darfur, Sudan was subject to the standards
established by the Rome Statute. Provisions such as these establish differences
between state sovereignties: while some have their sovereign rights violated,
others not only maintain their prerogatives, but are also allowed to infringe upon
those of others. The Al Bashir Case thus exemplifies the expression of a legalized
193Luisa Giannini; Roberto Vilchez Yamato; Claudia Alvarenga Marconi
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It is worth mentioning that the UNSC process of negotiation around the issue
finished with the adoption of a resolution without any vote against it and eleven
states in favour. To some literature, extreme influential on the ICC functioning,
but that do not engage critically with our argument,
[...] the resolution was an international vote of confidence in the ICC. The
US, which had been campaigning against the ICC since its creation precisely
because of the Court’s potential jurisdiction over nationals of states not
parties to its Statute, had initially lobbied to other Security Council members
to refer the situation in Darfur to another jurisdiction, for instance a joint
African Union/United Nations Special Court for Darfur. But ultimately the US
and even China, Sudan’s largest trading partner, did not veto the Council’s
first referral to the ICC (NOUWEN, 2013, p. 248-249).
The veto power, being used or abstained by great powers, undoubtedly
manifests the crystallization of a legalized hegemony within the United Nations.
Nonetheless, the Al Bashir case makes evident that this transcends UN and both
disseminate and articulate hegemony beyond it. Under any hypothesis – using
or not the veto power – the Al Bashir case would be defined by the discretionary
power of great powers and not by equal sovereign power of states.
The Al Bashir Case, Sovereign (In)equality, and Ruling through Rules
The Al Bashir Case in the ICC, as shown, is inserted in a very controversial
context. The objective is not of investigating whether or not Al Bashir should
be tried for the perpetration of international core crimes. The work sought to
problematize the manifestation of sovereign inequality in the ICC, using the
case study to elucidate how this hierarchization of sovereignties is expressed in
the relationship between the Court and the UNSC. This section, then, builds on
discussions on how the relationship of mutual constitution between different levels
of institutions related to the ICC has an impact on the expression of sovereign
inequality in each of them. The Al Bashir Case provides the opening to begin
the discussion on the manifestation of sovereign inequality in the institutions of
international society. It points to an aspect around which various questions can
be posed: the authority of some states – the five permanent members of the UNSC
– under the ICC regime. While some have their sovereign capabilities preserved,
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others do not enjoy this privilege. There is a hierarchy in international society
that separates the great powers (and other developed states) from those whose
sovereignty is vulnerable to violations.
The key point of the manifestation of sovereign inequality in the Al Bashir
Case is in the subjugation of Sudan to the Rome Statute. In other words, once
a state is forced to comply with the norms of a treaty that it has not ratified, it
directly touches upon the principle of state sovereignty. Sudan neither signed nor
ratified the Statute of the Court. There are rules within the framework of norms
of international law, such as Article 34 of the Vienna Convention on the Law of
Treaties, which prohibits the creation of obligations by a treaty to a state that has
not given its consent – through ratification. However, the Statute of the Tribunal,
and other instruments such as the UN Charter, of which Sudan is a part, go in
another direction. According to these documents, the UNSC has the competence
to violate the sovereign prerogatives of a state.
This discussion points to the relationship between two types of institutions
of international society, the specific regimes and the fundamental institutions,
respectively the UNSC/ICC and international law/sovereignty/immunity of heads
of state. One sees, therefore, how sovereign inequality is implied in the relation
of mutual constitution. The establishment, by means of rules, of the relationship
between the UNSC and ICC regimes, in the same way as the use of these rules by
the Security Council to indicate a case to the Court – which, according to Onuf
(2013b) also changes the rule, once it strengthens it – provokes changes in other
fundamental institutions related to them. The adoption of a provision stating that
the UNSC can enforce the Rome Statute’s rules for a non-signatory state alters and
even manipulates the content of key institutions. In international law, this has
an impact because it creates variations on the rule in its framework, according to
which the creation, through a treaty, of obligations to third parties without their
consent is not allowed. In other words, state non-parties, which have not expressed
their agreement, are not subject to conventional rules that provide for obligations.
The circumstances of the case seem to show that the third-party obligations rule
has another meaning. The original notion that the third state must express its
agreement continues to prevail, except in situations in which the UNSC decides
to create obligations, submitting it to the ICC regime.
Regarding the principle of sovereignty, it is modified, gaining greater flexibility.
Sovereignty is (re)signified so that its preservation is tied to a series of conditions.
There is also a redefinition of who has the capacity to transgress this principle.
195Luisa Giannini; Roberto Vilchez Yamato; Claudia Alvarenga Marconi
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The same is true about the immunity of heads of state. Those who voluntarily
join the Rome Statute are considered to waive their immunity rights. In the case
of those who are not members of the Court, but which become states treated
as parties, it is considered that immunity is also lost. In this case, there is the
influence of another fundamental institution: human rights. Increased concern
about serious violations of human rights and the consequent growth of norms
dealing with these issues lead to changes in some principles. Once the superiority
of rules of that institution is established, the conflicting principles become more
flexible. Regarding the principle of immunity of heads of state, the ICJ decision
confirmed the existence of immunity of a government official before the jurisdiction
of a national court. However, it was affirmed that, in the case of an international
criminal court, that immunity is overturned. It was decided, therefore, that in
the event of a case involving the perpetration of grave human rights violations,
immunities will not be maintained, thereby bringing about a change in this
fundamental institution.
So far, with the Al Bashir Case, it was shown how there is a process of
interaction between specific regimes and fundamental institutions. In regimes,
place of the most basic practices, decisions, actions and speech acts represent
changes in the already existing fundamental institutions and, at the same time,
these institutions have certain rules that limit the scope of action of the actors.
Thus, the sovereign inequality affirmed in the Al Bashir Case, based on the rules
established by the Rome Statute, is also present in the fundamental institutions,
since these principles begin to express an unequal pattern, as is the case of
sovereignty, which is (re)understood to encompass the notion that there are
situations in which it can be violated.
These rules, such as those conferring authority to the UNSC over the ICC, also
have an impact on the architecture of the international system. The crystallization
of such rules would result in the condition that Onuf (2013b) calls heteronomy
(which occurs in conjunction with the conditions of hierarchy and hegemony, but
their characteristics prevail). This condition is reached once there is a significant
set of commitment rules, which are standards that inform the actors of their rights
and duties (ONUF, 2013b). These rules, therefore, define certain prerogatives
of certain agents and guarantee for others that their rights will not be violated.
However, in this scheme, this reaffirmation for the actors of their autonomy is
nothing more than an illusion. Agents are never completely autonomous. Their
decisions are always linked to social reality.
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Under this condition of heteronomy is that much of the institutions of
international society are formed. More specifically in the situation of the ICC,
adherence to its constituent instrument, the Rome Statute, by ratification also
creates such an illusion. The establishment of an international criminal court
through a treaty, in contrast to the previous war crimes trials, was seen as a
reaffirmation of the sovereignty of states, since the Court would exercise its
jurisdiction only over those whom adhered to its statute. However, the idea of
state autonomy was contrasted by a provision of the Rome Statute that established
a mechanism through which the UNSC is given the capacity to indicate a case to
be investigated and tried by the ICC. Hence, as already mentioned, the Council
is empowered with the capacity to submit a state to a treaty to which it has not
bound itself by its will.
The sovereign inequality that manifests itself in the regime of the ICC, as it
has been emphasized, is not an isolated phenomenon. Although this institution
is not directly associated with the UN system, once it defines that the UNSC has
competence to act on all issues involving the theme of international peace and
security, the ICC regime becomes closely intertwined with it. Thus, sovereign
inequality in the UN is a condition for its expression in the ICC. And because
Sudan is a member of the UN Charter, it is under the authority of the UNSC. In
this sense, the Al Bashir case points to this phenomenon in both regimes in the
Court and the UN.
In this interaction of different levels of international institutions, there is a
second form of relationship – beyond the one among regimes and fundamental
institutions – between the fundamental institutions and the architecture of the
international system. The rules, insofar as they crystallize an inequality of resources
existing between states, begin to express the disparities of the system. They
establish a framework of legalized hegemony that gives the illusion that there is
autonomy/equality between states, but also constitute a series of prerogatives for
some. The establishment of such rules, marked by these two values – autonomy/
equality and sovereign inequality – such as those present in the Rome Statute
and the UN Charter, in turn, influence the architecture of the system. Thus,
there is a relationship between the three levels of institutions of international
society. Therefore, one can see that there is a clear relation between the sovereign
inequalities that are manifested in the different levels of institutions that compose
the international order. And rules are the central piece in this scheme, being the
ones responsible for producing the condition of heteronomy.
197Luisa Giannini; Roberto Vilchez Yamato; Claudia Alvarenga Marconi
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The present article sought to problematize a very common assumption in
International Relations: the idea that the anarchy that marks the architecture
of international society presupposes sovereign equality. From this assertion, it
was argued that there is a sovereign inequality in the international system that
is reproduced in the different institutional levels of that order. This hierarchy
between sovereignties is legitimized through rules that crystallize inequality in
the system. From this, the article sought to understand how this expression of
sovereign inequality in the regime of the ICC – through the Al Bashir Case – is
related to the manifestation of this phenomenon in other institutions.
The fact that the UNSC is empowered to carry out exceptional measures
in international society – such as interventions, or even the indication of a
non-member country to the ICC – denotes a hierarchy among states that grants
privileges to some and restricts capacities from others. The article, therefore,
questioned the idea of sovereign equality, seeking to understand how, through
the Al Bashir Case, the opposite can be verified. The case study paved the way
for the problematization of sovereign inequality in international institutions. From
this, we inquire about the interaction between the institutions that compose the
international society and the relation between the expression of inequality between
them and the architecture of the system.
The Al Bashir Case serves as an entrance to the discussion of sovereign
inequality in the institutions of international society. This Case marked the first
time that the UNSC made use of one of the two prerogatives granted by the Rome
Statute: that of requesting an investigation by the Court into a certain situation.
In this case, the UNSC did so through Resolution 1593, which established an
investigation into the situation in Darfur and held a reservation on the investigation
of individuals of other nationalities other than Sudanese. By referring the case to
the ICC, the UNSC submitted to an international treaty a state that had not ratified
it, thereby violating the sovereign prerogative of binding international treaties by
expressing its will. This relation between the ICC and the UNSC is considered
a manifestation of sovereign inequality since it authorizes great powers to have
interference over the regime of international criminal law. This hierarchy, as stated,
is expressed in the ability of the UNSC to violate the sovereign prerogatives of a
state through its subjection to a treaty to which it has not adhered.
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Based on this situation, the article analyses how the relationship between the
different levels of institutions of international society implies the manifestation
of sovereign inequality. With the creation – and use – of the norm that allows the
UNSC to interfere in the ICC regime, a relationship is also established between these
two specific regimes and the fundamental institutions related to them. Thus, the
sovereign inequality that is expressed in the first relation is transposed to the second
one, since it changes the actors’ understanding of these fundamental institutions.
The standard that defines the relationship between the ICC and the UNSC also
has an impact on the system architecture. As stated, the type of rules that prevails
in the international society has an impact on its structure. And, as pointed out,
the institutions of the international order are marked by ambiguity, so that they
affirm at the same time the autonomy between states and sovereign inequality. The
result of this type of rules, as stated by Onuf (2013b), is an environment marked
by heteronomy, which is considered by the author as the situation in which actors
believe they have autonomy but actually live in a hierarchical environment. In
this sense, the assertion in these institutions of principles that point in different
directions constitute international society as heteronomous.
This article, then, represents an effort of disputing the way anarchy in the
international system is portrayed. The contribution of the present research,
through a case study, to question the characterization of the international system
as anarchic and marked by sovereign equality, through the use of theoretical
conceptions explaining the interaction between institutions. While, on the one
hand, the study of the Al Bashir Case in the ICC raises the discussion over the
expressions of sovereign inequality in the international society, it also allows us
to witness the material expression in international relations of the theoretical
conceptions of the authors on whose ideas the present article was based. With
this, it was highlighted how the different levels of institutions of the international
society interact in terms of the expression of sovereign inequality. It has therefore
been shown that, just as the structure of society has an impact on fundamental
institutions and specific regimes, rules and norms are also participating in
their construction and, therefore, in the making of a legalized hegemony in the
international realm.
199Luisa Giannini; Roberto Vilchez Yamato; Claudia Alvarenga Marconi
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