Nomos and Narrative in International Criminal Justice: Creating the International Criminal Court

This article grounds contemporary contestations over the International Criminal Court (ICC) in the constitutive moment of the 1990s, when the Court was a global idea that took shape around a set of key concepts and related understandings of world order. It studies the positions communicated by 129 states during the negotiations of ICC establishment, applying Robert Cover’s narrative law and its pluralist notion of legal meaning to a systematic content analysis. Contrary to the founding ‘epic’ of ICC creation, which centres on the Like-Minded Group and its Others, the analysis identifies two competing and fairly coherent visions for the ICC: A compulsory and a consensual vision. Both aim to build an effective and independent Court, but understand these terms differently and consequently envisage different ICC regimes. The consensual vision has rarely been analysed, but is typically portrayed as the scattered ideas of an undecided majority. Given the Court’s profound lack of universality, however, it is useful to revisit the ideas that animated a large share of international society.