Law produces discourses and establishes discursive power in societies. Analysing how law is shaped and developed will bring to the surface particular power structures embedded in legal texts and practices. The history of international law with respect to the protection of human rights and humanitarian law seems to follow a progressive line gradually encompassing a larger quantity of acts to be recognized as international crimes. Nevertheless, the very challenge against the “soft” or “moralistic” nature of humanitarian law and international criminal law norms and rules does not arise from the recent extension of scope and depth of the both. The establishment of a permanent international criminal court –the ICC, with unprecedented jurisdiction, is what really challenges the foregoing debate on the nature and power of international law. It is not only the criminalization of certain acts in international law but also the evolution of a permanent international criminal court holding various forms of power enabling sanctioning, prosecuting and punishing such acts that might be claimed to fill the gap of a judiciary that evokes critical discussions. In this framework, questioning whether law has the potential and capacity to act as an arbiter between political realities and moral ideal carries us to another terrain holding that law with its discursive “power” does not exclude “morality”. Just the contrary, it is this very “morality” with its particularity which gives international criminal law its “power”, albeit with another understanding on “power”. A Foucauldian discourse analysis on the particular discourse of the ICC contributes to our understanding of novel techniques and procedures of global governmentality.
