Understanding the Determinants of ICC Involvement: Legal Mandate and Power Politics

Abstract What explains the initiation and escalation of International Criminal Court (ICC) involvement in a situation? In light of growing charges of bias against the court, understanding the determinants of ICC involvement is critically important. Building upon research on bounded discretion at international courts, we argue that two potentially competing forces influence the court. While prioritizing impartiality should lead the court to target perpetrators of the gravest violations of human rights in states with domestic impunity, prioritizing powerful states’ interests suggests that the court may avoid involvement in powerful states and those with close ties to powerful countries. We test these arguments using original data on ICC involvement and a novel estimator that accounts for the sequential nature of ICC activity. We find that the court acts more in accordance with the legal mandate when initiating preliminary examinations, but power politics play a more dominant role at the formal investigation stage. These findings have several implications for academic and policy work on both the ICC and international courts more generally.