LAUSR

Abstract This paper contends that despite it functioning as a catalyst, the ICC “Africa problem” did not start with the arrest warrant against al-Bashir. To fully comprehend the current legitimacy crisis we must understand the nature of the negotiation process that led to the adoption of the Rome Statute and its enduring impact. In particular, we must acknowledge the uneven ability of states to formulate and signify their preferences on the basis of their identity and interests during the negotiation process. Drawing from Wiener’s theory of contestation, the paper contends that the absence of meaningful engagement with issues germane to some ICC stakeholders before and during the Rome Conference facilitated the adoption of the Rome Statute, but also plausibly created difficulties for the Court in the long run. Specifically, it postponed unavoidable conflict over contentious issues and undermined the likelihood that specific stakeholders would develop a sense of ownership over the Statute.