The mixed claims commissions, which had a degree of autonomy from the agendas of the states that imposed them, produced a rich and extensive body of case law on state responsibility for rebels. The practice of the commissions to enforce claims based in contract greatly increased the scope of state responsibility for rebels, in a way that reduced the risks for foreign nationals of doing business in Latin America and insulated commercial relations from political instability; the arbitral practice had a politics, even if it did not necessarily or straightforwardly reflect the context of the commissions’ establishment. The commissions engaged with a number of important international legal rules and principles: the general principle of non-responsibility for rebels, with exceptions for successful rebels, rebels who establish de facto authority and negligence in failing to protect against rebels. The exceptions to non-responsibility, particularly the duty of protection, would end up being more important than the rule. At the same time, the practice of the commissions was at times contradictory and ambiguous, providing only the shakiest foundation for future obligations.

This brings these findings together and considers what this tells us about the role of archives in international criminal justice and international politics. This reveals a complex picture where the principles and strategies that underpinned knowledge production within the ICTR’s archive shifted over time, from a form of restorative justice to a more strictly retributive model. This also meant a shift from more far-reaching records of violence produced under the witnesses’ influence to a more legalistic record of violence. Over time, the archive, then, less closely reflected the needs and priorities of those affected by the genocide and arguably also produced a more conservative vision of the international community. The chapter also examines the extent to which these dynamics are an inevitable part of international criminal justice,. as a liberal tool of international governance, in part by examining the ICC. This argues that whilst there is little to suggest international criminal justice must necessarily act with such a reductionist view of its function, that these issues continue to underpin current practices of international courts.

The first moves to develop rules of state responsibility for rebels were made by Latin American international lawyers who sought to resist intervention on the basis of enforcing revolutionary damage claims. Later, Anglo-American international lawyers sought to reconcile rules from the arbitral practice, rules that often justified intervention and reinforced the legal impact of intervention. This was something that took a lot of interpretive work given how inconsistent and unstable the practice was. This dynamic of resistance and development – a battle over the meaning and authority of the arbitral practice – drove the emergence of state responsibility for rebels as a flourishing, if disputed, sub-field of international law.While nearly all the various positions made responsibility for rebels the exception rather than the rule, Latin American international lawyers tended towards narrow exceptions defined by reference to national treatment. Anglo-Americans, in contrast, based expansive exceptions on an international standard of alien protection. These debates can be understood as a struggle over the internationalisation of protection against rebels, structured around questions of whether the standard of protection against rebels owed by states to aliens was nationally or internationally determined and whether it was domestic or international authority that adjudicated such standard.

Chapter 6 undertakes a detailed study of the jurisdictional provisions that govern the crime of aggression (Articles 15bis and 15ter). In contrast to the ICC’s ordinary jurisdictional regime, the provisions allow States Parties to shield their nationals, and entirely insulate the nationals of non-States Parties, from prosecution, except in the case of Security Council referral. The chapter considers the legality of this regime. It then examines the different interpretations of the jurisdictional provisions offered by States and commentators, and the effect of the resolution under which the ICC Assembly of States Parties (ASP) activated the Court’s jurisdiction in 2017. Based on a detailed examination of the jurisdictional provisions, relevant ICC ASP resolutions, and the governing amendment provision, the chapter sets out exactly who is subject to the ICC’s jurisdiction. It also examines the requirements of opt-out declarations, the role of Security Council determinations as to the existence of an act of aggression, the expected operation of the Pre-Trial Division filter, and the effect of a Security Council referral.

Chapter 2 makes the case for looking at state sovereignty as a social construction rather than as a definitional absolute. In other words, it argues that “sovereignty” does not have a specific meaning, defined by law or concept and static over time. Rather, it is a practice, and the content of sovereignty as a practice changes over time. The chapter reviews various ways in which sovereignty is understood in international relations, and the analytical utility and limitations of using the concept in these ways. It discusses the Peace of Westphalia in this context, since “Westphalian sovereignty” is a sufficiently common trope in international relations theory that it cannot be ignored (this discussion reappears in various places throughout the book), and argues that the Peace actually has fairly little to do with the contemporary practice of state soveriegnty. It also briefly discusses methodology, and how understanding sovereignty as a social construct can address questions of both power in and change of sovereignty in ways that conceptualizing sovereignty as a definitional absolute cannot.