The International Criminal Court, Sitting Heads of State Prosecutions, and the Paradox of the Balance of Power

Abstract Compliance with international law is commonly accepted as strengthening inter--state relationships and, therefore, consolidating inter-state politics. This article argues that, in certain circumstances, hostility to international law can be regarded as indicative of shifts in the balance of power that undermine the enforcement of injunctions of international law. These, it will be shown, need to be addressed through inter-state dialogue. To sustain the argument proposed, the article focuses, from an international relations perspective, on the resistance to the practice of prosecuting sitting Heads of State by the International Criminal Court (ICC). The prosecution of a sitting Head of State is considered in this article as the poster--child of liberal institutionalism. The track record of the ICC in this domain is worrying: out of 3 situations (Omar al Bashir in Sudan; Uhuru Kenyatta in Kenya; and Muammar Gaddafi in Libya) the Court was unable to finalize a single one. Following theoretical plexuses derived from the English School of international relations, and particularly Hedley Bull’s “Paradox of the Balance of Power”, the article draws attention to the case of Gaddafi in Libya and to the international debate on the potential prosecution of Bashar al Assad in Syria. This is done to show that the transition between the two is exemplificative of a paradoxical dynamic: international law is more efficient in situations of balance of power; but violations of international law are, in specific cases, necessary to rectify it. Ultimately, the article argues, more attention should be dedicated to the resistance to the prosecutions of sitting Heads of State to understand the implications that this might have for the balance of power, and in the construction of a truly pluralist international society based on inter-state dialogue.