‘The court ought to be in control of that’: Producing victimhood at the International Criminal Court

Abstract

Critical victimology has increasingly interrogated how International Criminal Courts (ICCs) construct and instrumentalise victimhood. Scholars such as McEvoy, Schwöbel-Patel and Killean have shown that victimhood in international criminal justice becomes narrow, symbolic, and strategically deployed to support institutional legitimacy. However, while these critiques are well developed theoretically, and some studies have examined institutional practices, few have explored how these dynamics are understood and enacted by practitioners themselves. As such, these critiques largely focus on what victimhood becomes, rather than how and why such constructions take shape within institutions like the ICC. This article addresses that gap by bringing in the perspectives of ICC practitioners, whose day-to-day decisions shape who is recognised as a victim. These perspectives reveal the interpretive and discretionary practices through which legal frameworks are operationalised, connecting structural critiques to the agency of institutional actors. The article argues that this discretion functions not only as a coping mechanism under constraint, but as a professionalised technique of legitimacy production. Drawing on interview data and case law analysis, the article shows how practitioners selectively interpret and apply legal frameworks, shaping victim inclusion around charges and procedural manageability. In doing so, they produce a system in which symbolic inclusion coexists with systemic exclusion. This analysis traces how discretionary practices rationalise and reproduce the institutional logic of symbolic inclusion and procedural exclusion, sustaining the Court’s legitimacy while limiting its accountability to victims. The article contributes an empirically grounded account of how international criminal justice co-produces recognition and exclusion, revealing the internal logics that render narrow constructions of victimhood institutionally rational and durable.