We theorists of international law like to pose venturesome, vitalizing questions, sweeping in scope: What would an ideal system of international criminal law look like, for instance, relieved of today’s geostrategic constraints? How might we lend some conceptual coherence to such a program, flesh out its normative details? What kind of world would be required for such a program to become possible, even intelligible? How should we imagine the workings of such a hypothetical world?
If we allow ourselves to descend beneath the clouds for a moment, we may also ask: Precisely how far from that ideal world do we currently reside? How might we realistically begin to construct its preconditions, by which concrete steps? We might further approach the process social-scientifically, identifying the forces which would set it in motion, hypothesizing the coalition-composition that could advance it and, when unavoidable, devise its prudent tactical retreat. Among the available accounts of global change and theories of institutional design, which of these might give us a better lever on the process, help nudge it along? These are laudable questions, especially the later, more “reality-based,” reflecting at least a bow toward “non-ideal theory,” in that philosopher’s condescending term of art.
All such questions succumb, however, not merely to a generous dash of wishful thinking (a common academic foible) but to what borders on self-flattering indulgence. The more essential questions we need to ask these days are less “inspiring,” and less ennobling of those who must pose them: What would have to change, in the very near future, for international criminal law to survive at all, in any moderately acceptable form, so that the other, “grander” questions would merit so much of our attention? How might this more modest sort of change come about? What conjunction of social forces and coalition partners might seek it? By what stratagems? At what odds? Against whom, countering with which tactics? How might we theorize this humbler, boring sort of change, in guarded hopes of gingerly facilitating it? In more jurisprudential terms, we should ponder: on what assumptions about international law and about how the world works, or might proximately be made to work, would there be any basis for a reasonable belief that international criminal law, and the International Criminal Court (ICC) in particular, will succeed, even survive, in any meaningful sense of these words?
In sorrow, I cast this gauntlet, because I believe that it currently presents the essential challenge for any serious inquiry into the present and future condition of international criminal law. No one has raised it, as best I can tell, much less answered it. By “raised it,” I mean as a question for reflective jurisprudence, not merely Realpolitik—for high intellect, not low cunning. Or are we jurisprudes simply too squeamish, too prudish for such vulgar, plebeian stuff?
Most readers may have already scoffed heartily at everything so far said, and stop right here. You will observe that international criminal law has made and continues to make great strides, unimaginable scarcely twenty-five years ago. All such progress, you will add, inevitably trips at times, over this momentary miscalculation, that occasional prosecutorial peccadillo.
The problem is far graver. As matters stand, international criminal law is unlikely to endure as anything more than the intermittent occasion for staging splashy, eye-catching degradation rituals, feel-good spectacles of goodwill towards men. To judge anything a failure, one must of course have some definition of success. For most international institutions, the prevailing standard—voiced with a rueful shrug—is extremely modest: is this institution “better than nothing”? By that measure, virtually no such institution could ever fail, it would seem. It may shuffle along dejectedly, satisfying nobody, yet never shutter its doors, if only because it has become too innocuous to elicit indignation, draw anyone’s acute antagonism. One could easily enumerate a dozen such international institutions.
Yet to many on whom its success depends, the ICC no longer satisfies even this meek measure of acceptability, still less the higher hopes its creation so recently, passionately kindled throughout the world. This would not be fatal if, more than we might wish to acknowledge, the future of international criminal law, as an expanding “institution,” did not still hinge chiefly on the fate of this one Court. Its future is not simply uncertain, as all observers readily acknowledge, but profoundly discouraging. In fact, it now appears that the Court will not assume a form sufficiently satisfactory to its essential constituencies.
It is true that 123 sovereign states—the considerable majority—have ratified the ICC’s Rome Statute. Many have begun to incorporate its provisions into their domestic law. Yet as with other human rights treaties, even states with the worst human rights records take these pro forma steps, simply to qualify for development assistance and trading concessions from foreign donors. We should therefore not read much into these events, heartening on their face. For that matter, Western donors have shown themselves equivocal about insisting on domestic prosecution of certain international crimes. The European Union, for instance, quickly abandoned any thought of sponsoring domestic penal investigations, by states seeking membership, of communist-era international offenses, choosing instead to fund far less ambitious efforts to encourage official remembrance of such crimes.
To be sure, efforts to “domesticate” international criminal law are now a central scholarly preoccupation and the practical focus of many conscientious people at painstaking work within national legislatures, or seeking to influence such institutions from without. These initiatives give comfort to many that the future of international criminal law lies chiefly in municipal enforcement. This is not simply because the ICC can realistically pursue only the smallest fraction of meritorious cases. More important still is that states should ‘take ownership’ in holding their criminal rulers accountable to global legal standards.
Many believe that as national courts take the wheel, the ICC can in fact slowly move to the back seat. The principal role of its Chief Prosecutor will then be to privately cajole and occasionally importune a country’s rulers, gently pressing for more assertive domestic prosecution, insinuating that the ICC might otherwise formally intercede. This is an appealing speculation, though it remains precisely that. If it plays out as projected, the Court’s demurral from higher-profile activity would then count, paradoxically, as evidence of its very success. The first Chief Prosecutor proclaimed his commitment to this very scenario, his anticipation of an institution so self-effacing as to be almost self-erasing.
Only very rarely, however, will states conscientiously prosecute their own citizens for international crimes, much less the citizens of more powerful states. When states prosecute at all, their case selection will be indefensibly partisan, rendering the entire enterprise ethically insupportable by contemporary standards, higher than ever before. More often, potential defendants will retain the political power to crush any such serious effort entirely.
Exceptions arise in circumstances vanishingly scarce: where perpetrators are overthrown in what amounts to a revolution (e.g., Portugal, 1975; Romania, 1989) or when they suffer crushing military defeat, the sort permitting the 1945 trials at Nuremberg, Tokyo, and Paris (Pétain and Laval), and at Buenos Aires in 1983. Sympathizers of prospective defendants will otherwise continue to exercise sufficient influence to threaten social upheaval if perpetrators and accessories to their crimes do not receive impunity, formally or tacitly.
Thus, in Latin America, ousted dictators and their loyal underlings enjoyed effective amnesty for some thirty years after their crimes: Pinochet, Contreras, Bordaberry, Conrado Álvarez, Ríos Mont, Videla (his 2007 conviction), etc. . . . The legal bases for their eventual prosecution existed all along. In fact, it was upon these same doctrinal grounds that their amnesties were ultimately held unconstitutional or inconsistent with the Inter-American Convention on Human Rights. Justice so long delayed, so thoroughly at the mercy of shifting geopolitical winds, may not quite sink to the level of justice entirely denied. Yet justice of this peculiarly “procrastinated” sort nevertheless remains deeply at odds with any defensible account of “the rule of law.”
At a mere fifteen years, Fujimori was the unluckiest of the bunch, due heavily to his role in a bribery scandal, unrelated to atrocity crimes, followed by his ill-considered choice of Japan, a law-respecting country, for foreign sanctuary. The eventual prosecution of all these men, by then mostly dottering octogenarians, had to await the slow consolidation of constitutional democracy. That is a polite way of saying: long enough to ensure that nobody of any consequence would strenuously object, perhaps only a dozen wizened denizens of some upscale Bariloche nursing home, overlooking lovely Lake Nahuel Huapi.
Even when finally begun, these prosecutions were only fitfully successful, and chiefly when focused more on charges of financial corruption (always indefensible, in voters’ eyes) than atrocities (sometimes so, depending on whose terrorists, ours or theirs, get the garrote). With an eye to such considerations, prosecutors in the Arab world, following their region’s recent “Spring,” prominently included charges for misuse of public funds when indicting former Egyptian President Hosni Mubarak and former Tunisian President Zine al-Abidine Ben Ali.
In Albania, new democratic rulers after 1989 took this “populist” tack to its heights when trying communist former elites and family members of dictator Enver Hoxha. The legal charges most resonant in the public mind, observers report, were those for the curious ‘offenses’—unknown to international or domestic law—of taking expensive trips abroad and “eating well” while most citizens lacked basic foodstuffs. Public clamor for prosecuting crimes against humanity, which there encompassed the summary execution and torture of thousands, was decidedly weaker, perhaps because so many people had themselves indirectly collaborated in repressive governance over several decades. Scarcely any, however, had enjoyed sumptuous repasts on fancy foreign junkets.
It’s understandable that national prosecutors would shrewdly track such public sentiment in constructing their allegations. In so doing, they find no support, however, from international criminal law. That enterprise concentrates upon the evils of large-scale violence, and mass atrocity in particular. It does not concern itself with such practices, indubitably reprehensible, as the theft of official resources, nepotism in hiring, or the offer and acceptance of bribes. The ICC lacks jurisdiction over such wrongs and so cannot exert pressure on member states to pursue them.
This leaves a national attorney general to prosecute the domestic and merely economic offense of embezzlement, for instance, where the far graver, international wrong of genocide might more accurately capture the moral magnitude of a defendant’s wrongs. A homespun American analogy might be to the 1931 trial of gangster Al Capone for tax fraud. The discreditable practice of ensuring a miscreant’s conviction through gross “undercharging” is raised to its ne plus ultra as law now finally addresses the far more systematic massacre of far more people, for motives far more sinister, over a far wider geography, for far longer periods of time, than a Chicago racketeer could remotely have contemplated in his wildest imaginings.
Some of those Latin American dictators, notably Pinochet and Fujimori, successfully suppressed widespread insurrectionary violence and restored economic order, enhancing national prosperity in many ways. These genuine accomplishments earned them the sympathy, if not always the enduring political support, of very many people, and not only “the bourgeoisie,” as social science of the time would have it. These respected leaders therefore retained significant public sympathies for many years after they and their immediate progeny within the party system could no longer sustain winning electoral coalitions. When we speak of their continuing “power” after leaving office, and how this deferred their day of reckoning, it is therefore wrong to suggest, as human rights activists do, that such power emanates chiefly from the barrel of a gun.
It is also highly condescending to their millions of former supporters—avowedly right-of-center (no crime there, to my knowledge)—for us to characterize them merely as morally obtuse “spoilers” of true justice, and the electoral constraints their votes impose on criminal prosecution as impersonally, antiseptically “structural” (Sikkink’s terms). We might more accurately and fairly describe these fellow flesh-and-blood human beings as acting on the basis of principles sincerely held, upon their moral conscience, often rooted in life-long religious belief, however misguided we cosmopolitan cognoscenti may regard their benighted views.
Argentina’s ambitious 1983 junta prosecution might first seem an exception to the rule that national prosecutors must bide their time for decades, till the far-off day when their country so radically transfigures itself as to be unrecognizably the same place where mass atrocities could ever conceivably have occurred. In taking that courageous step, however, President Raúl Alfonsín fatefully miscalculated that the military’s defeat in the recent Falklands/Malvinas war would leave its officers too demoralized to stage a coup d’état, or its equivalent. His grave underestimation of their likely wrath quickly turned his bold foray into a short-lived folly, ensuring that no one else—ever, anywhere—would try quite that again. The closest would be Serbian Prime Minister Zoran Djindjic, who extradited Slobodan Milosevic to The Hague—and paid for it with his life, having been assassinated not long thereafter. In Russia, when state Duma member Galina Starovoytova repeatedly called for the removal of high-ranking former communists from public office, she met a similar fate. And when Croatian courts recently sought to prosecute a handful of fellow Croatians (all small fry)—twenty years after the events—the valiant judges, prosecutors, and even journalists reporting on the trial regularly confronted death threats.
In all but a handful of exceptional circumstances sketched below, the duration between mass atrocities and their domestic judicial punishment has been vastly longer. These delays seriously compromise that very endeavor, by rendering it less a matter of law-enforcement, strictly speaking, than of “transitional justice,” broadly construed. The process of transitional justice is designed to extend over a considerably longer period and hence cannot fairly be judged from a short-range perspective. Transitional justice is importantly different in this respect from the goals and methods of criminal justice, for which “prompt disposition” by “speedy trial” has always been, on all accounts, a defining feature, and increasingly a right of victims no less than the accused. Many national constitutions and several human rights treaties link the requirement of expeditious criminal proceedings to more obvious “rule of law” virtues, notably due process. Social activists and political scientists do sometimes speak loosely of “transitional justice trials.” But this is to conflate two social practices which are, though perhaps equally valuable, sufficiently distinct in nature to require evaluation by separate standards. In this sense, the two are not genuinely, as many claim, “inextricably intertwined.”
It would be reassuring if one could reply at this point that the incidence of mass atrocity throughout the world has greatly declined in recent years, as is certainly true within Latin America, to the extent that all such grave international crimes simply occurred so long ago that any prosecutions today would necessarily take place only a generation or two thereafter. This is not the case, alas, to put it mildly. One need only allude in passing to recent or ongoing wars and intense civil strife in Sri Lanka, the Democratic Republic of the Congo, Uganda, Syria, Sudan, India (Gujurat), for instance. Examples could easily be multiplied ad nauseam, an expression one here employs with a certain unfortunate literalness.
When internal armed conflicts end in stalemate, like those of Central America in the 1980s, opposing belligerents always quickly compromise, discovering that they must bury the hatchet some place other than into each other. This is indispensable, they conclude, if their respective adherents, numbering in the many thousands and often party to vast crimes, are soon to live again cheek by jowl, their leaders alternating electorally in power, with increasing congeniality. In explicit pactos, each side—reluctantly yet invariably—agreed to refrain from prosecuting the other’s undoubted international crimes. Hence the notable absence of atrocity trials in postwar El Salvador, Nicaragua or Guatemala. These are small countries where nonetheless hundreds of thousands of people were killed, tortured, or violently displaced, by both military dictatorships and guerrilla insurgencies alike. There was no shortage of raw material, as it were, for far-reaching efforts to establish the individual criminal liability of many people for near-genocidal violence on a nationwide scale.
Yet even in ensuing years, as earnest talk of human rights permeated political discourse throughout the region, mass murderers confidently strolled the broad avenues, dined publicly in luxury, without fear that history’s ghosts, so recently “disappeared,” might return to tap them on the shoulder. As elsewhere in Latin America, even former revolutionaries, responsible for no few deaths themselves, managed to “reintegrarse” (the now-accepted term), at times even winning high electoral office with wide public support, as in Uruguay.
These “devil’s bargains” between murderous archenemies and their many followers are today squarely inconsistent with international law. The ICC Statute demands domestic prosecution, within a reasonable time period, of those most responsible for “grave” international crimes. It would therefore now be impossible to end apartheid in the way so successfully effected in 1994. Back then, white officials could concede state control to blacks in exchange for assurances they would not suffer prosecution. Both sides to the deal fully understood that racial “reconciliation”—a smooth transition to majority rule, without civil war—would not otherwise be possible. It was enough for Mandela that white oppressors formally acknowledge the forensic “truth” of their crimes against humanity.
This does not mean, however, that reconciling foes will suddenly find such compromises any less pragmatically indispensable for ending devastating civil wars than in the recent past—in fact, throughout recorded history. To their dismay, Uganda’s rulers learned this lesson when, upon entering into peace negotiations with the Lord’s Resistance Army, they sought dismissal of ICC indictments against that organization’s homicidally psychopathic leaders. The Court’s Chief Prosecutor correctly replied that, once formally initiated, such proceedings must follow their own course; it is irrelevant that Uganda itself first “referred” these matters to the tribunal, where they remain pending. One could say, I suppose, that the resulting problem arose precisely from the Court’s very efficacy in “getting its way” to some extent, not from the failure to legitimately establish itself in the first place, my concern here. Yet this sort of “success” also calls into question the Court’s purchase on political reality, and thereby too the likelihood that it will earn and warrant a stature sufficient to render it a respected player in world affairs.
In Central and Eastern Europe, unprincipled bargains have been no less important than in Central and parts of South America, even if no one would describe new rulers as devils. Foreign observers first thought that the dissidents assuming power in 1989 displayed great magnanimity in declining to prosecute departing communist leadership for crimes against humanity, to exercise their considerable new power to this lawful end. Only a generation thereafter did we learn their power to have been much weaker than then appeared, all but precluding that possibility. For the files retained by former security service personnel, records secretly saved from destruction, later revealed that many leading dissidents—notably in Poland and East Germany, but elsewhere too—had materially collaborated with the prior regime. This meant that any prosecutions of communist crimes would have ensured immediate retaliation through public disclosures about this compromising, unsavory past of history’s sudden heroes, with the reins of state just within their grasp. The quid pro quo in these several cases was simple: no prosecutions, no embarrassing revelations. Such national experiences therefore resembled the Central American “stalemate” situations just described, for here too gestures of “forgiveness” masked realities of de facto impotence.
Trials of surviving, middle-echelon communist apparatchiks thus became politically possible, or were at least tentatively placed upon the table, only many years thereafter, as the dissident generation itself retired from high office. By that point, however, few voters cared, since most had not suffered their parents’ horrors. Thus there is today little public support for prosecution, as departing party leaders probably calculated all along. Such support is consistently strongest when political parties of the right and center-right win office, and weak when “post-communists” (i.e., former communists, now often social democrats) win it back. (Throughout Latin America, it’s the reverse: only the Left favors prosecution of military “dirty warriors” from the 1970s, while the Right proclaims a national need to “forgive and forget.”) From Poland to Lithuania, as electoral results swing back and forth, elite enthusiasm for prosecution waxes and wanes. And in countries where little change at all occurred in the composition of political elites (Russia, Belarus, and Armenia, for instance, to say nothing of Central Asia), trials for communist-era wrongs have never remotely been contemplated. In this respect, the post-communist experience follows the template of post-WWII Europe, where Cold War Realpolitik quickly shut down further, post-Nuremberg trials of Nazis and their high-level national collaborators, with the election of left-leaning parties periodically, passingly restoring that possibility to the political and legal agenda. In short, post-communist Europe offers no exception to the generalization that trials for mass atrocity remain entirely contingent on decisive shifts in political power, and that such shifts must be all but revolutionary to sustain any serious progress toward this end over the many years necessary to attain it.
Even with a successful revolution or humiliating military defeat, serious prosecution of international crime has been and will remain transparently an expression, in that sorry refrain, of “victor’s justice.” It will concentrate, often entirely, on those unceremoniously defenestrated from high office. Having generally attained power through violent means, their successors (e.g., the Tutsi Rwandan Patriotic Front) will have been responsible for major international crimes as well, albeit sometimes of lesser scale. Since they vanquished their antagonists on the battlefield or seized power successfully, however, they will not suffer even mild sanction, much less the gallows. Mandatory loyalty to close comrades in arms, to longstanding buddies in the ideological (and often real battlefield) trenches, demands no less. Whether it’s one or both sides that commit mass atrocities, a rough bullet-point summary would therefore run: if power is seriously skewed, the powerful will prosecute the powerless. And when power is evenly split, no one will be prosecuted at all. All else is commentary. Only if victors somehow manage to abide by international criminal law while their enemies did not (an improbable, probably unprecedented scenario) could equal protection stand a chance; and even in that event there remains the strong possibility of procedural irregularities favoring the prosecution, raising serious due process concerns.
Here lies the domestic future of international criminal law, little different from its past. As this becomes increasingly clear, much of the world will regretfully conclude that we’re scarcely better off with than without it. For the flagrant hypocrisy required to indulge so reprehensible a system quickly begins to outweigh its limited benefits. Even an international legal system not entirely unfamiliar with a modicum of hypocrisy, shall we say, still acknowledges certain outer limits on just how much of this rampant vice pertinent parties will ultimately brook. Over the last generation, the goalposts have decidedly shifted in this regard, decisively so with respect to matters involving the uncontroversial core, at least, of international human rights. This is largely because the social composition of the parties now deemed “pertinent” has, through its significant enlargement, implicitly altered and upgraded the standards for evaluating an institution’s performance.
Recent history offers abundant evidence for these dispiriting conclusions. A handful of examples must suffice. Witness, for instance, the prosecution only of Hutus within Rwanda’s domestic courts, a template earlier established even at the UN-managed International Criminal Tribunal for Rwanda. This lamentable pattern reappears throughout successor states of the former Yugoslavia, where the absolute number of atrocity trials in recent years would deceptively suggest substantial progress. Even the meticulous evenhandedness of prosecutors at the International Criminal Tribunal for the former Yugoslavia convinced very few within the country’s successor states, as social surveys consistently find.
Saddam Hussein’s trial scarcely requires mention here. So powerfully animated was it by Shiite ire toward Sunni former overlords that one might more accurately describe the defendant’s ensuing “execution” as in vivo mutilation and desecration. In the aftermath of America’s response to the 9/11 attacks, federal prosecutors have declined to investigate civilian leaders, military officers, private contractors, or government lawyers likely liable for “cruel, inhuman and degrading treatment,” perhaps also torture (on certain definitions). Nor was there ever any serious likelihood that this would occur. These are nonetheless international offenses under treaties the U.S. has (with qualifications) ratified and domestically incorporated, committing itself to their prosecution.
So much for those ballyhooed “bandwagon effects,” that much-touted “justice cascade,” gaining breathless momentum from each national triumph to the next, flowing effortlessly with irresistible force of gravity, opening out into a resplendent blue sea of global justice and pan-human harmony.
Domestic authorities admittedly now face certain international pressures to comply with “emergent global norms,” as we rather wistfully call them, including those requiring domestic prosecution of grave international crimes. This is especially so in countries where authorities enjoy limited freedom from Western arm-twisting. Yet even there, recent studies indicate that national officials, from Sri Lanka and Uganda to Peru and Sudan, develop novel “weapons of the weak,” “repertoires of resistance” against such external scrutiny of their professed commitment to criminal and civil justice for atrocity victims. There occurs an intricate tacking back and forth between foreign “interference” and ingenious local stratagems of recalcitrance or dissimulation, i.e., the mere appearance of compliance with international expectations.
Scholars describe these twists and turns—first forward, then backward, sideways for a time perhaps, then forward again—as “recursivity.” This social-scientific mouthful should not lure us into supposing, however, that with every step to the rear there will likely (much less necessarily) ensue a longer step to the fore. Evidence suggests sadly otherwise. There appears no serious indication of cumulative advance, no self-sustaining momentum. In fact, if there has been any discernible direction of movement, it would seem to be not linear, even zigzag, but almost circular. So suggest, at least, the few careful empirical studies of this evolving “historical process,” as it’s generously described.
Only close scrutiny by a strong ICC could prevent this recurrent backsliding, these execrably one-sided domestic prosecutions and travesties of procedural justice. Vigorous oversight of this sort would require, however, a robust reading, exercise, probably even a formal statutory augmentation of the Court’s “complementarity” powers, allowing it to seize jurisdiction whenever a member state reveals itself “unwilling or unable” to prosecute defendants evenhandedly and with due procedural protections. The world must otherwise stoically resign itself again to that faintly familiar form of vengeance against history’s unlucky losers: for all this amounts, as we specialists privately whisper, to an elegant updating—more jurisprudentially refined, of course, at our able hands—of that still-revered, postwar “high-grade lynching party,” quietly so acknowledged by every close student of the Nuremburg trial.
The recurrent practice of lopsidedly partisan, procedurally deficient prosecution (bordering arguably, at times, on persecution) should not strike us as extraordinary, even particularly unusual. For it has never been “the rule of law,” but rather “rule by law”—prejudiced, irregular judicial proceedings—by which dishonorable rulers across the world have historically despatched their adversaries from the field of political conflict. The ICC will be unable to prevent these vast derelictions of equal protection, which the world increasingly finds insufferable. The Court’s powers have proven, and will remain, severely limited, in ways and for reasons I now delineate.
None of the world’s major military powers or regional power-brokers—not the U.S., Russia, China, Iran, North Korea, India, Pakistan, Indonesia, Israel, or Syria—has ratified the Rome Statue. Nor does any of them show any serious likelihood of doing so. States enjoying greatest military prowess, those most likely to employ unlawful force against other sovereigns, will therefore remain beyond the Court’s effective jurisdiction. Some are very populous: the considerable majority of the world’s inhabitants thus remains beyond the Court’s authority. Their leaders ask: why should we, the high and mighty (rightly too), voluntarily humble ourselves so abjectly at the feet of the second-rate, for whom our best interests and noblest ideals matter not a smidgeon? In response, we international lawyers and theorists can only solemnly, steadfastly insist: “But it is your duty to respect the international community’s legitimate claims upon you!”
It is true that two of the five permanent members of the Security Council (the P-5)—notably, the least powerful (France and Britain)—have signed up to the Court. The U.S., however, clearly will not do so within the relevant time horizon, explained below. Not only all Republicans, but virtually all Democratic Congressional leaders sincerely believe that America’s rightful place in the world—as the sole, active defender of liberty beyond its shores—is “exceptional.” The country must therefore never subject itself to the rules rightly constraining lesser powers.
China and Russia are still more unlikely to ratify, and without scruple at professing such elevated rationales or rationalizations. The U.S. now occasionally cooperates with the ICC on this or that, but only for immediate purposes. Such behavior is transparently opportunistic, evincing no genuine commitment to the Court as a standing institution. In allowing itself to be strategically exploited in this fashion, albeit unavoidably, the Court compromises its own precarious moral standing with key constituencies. Statesmen from weaker states have taken note, raising an eyebrow at first, then with growing apprehension.
If they maintain even a single friend among the P-5 (as Syria has in both Russia and China), leaders of these states, too, shall enjoy impunity for international crimes. The UN Security Council will take no serious action against them, either through direct ICC referral or a force-authorization (Art. 42) indirectly aimed at enabling their prosecution. China and Russia have learned from the Libya intervention that Western forces cannot be trusted to hew to formal terms of UN mandates, but will employ limited authorizations to advance more ambitious agendas, expanding their geopolitical sphere of influence. Council members from the Global South intensely share this concern. They are acutely sensitive to any effort by a P-5 power, acting from mixed motives (at best), to throw its military weight around—while selectively professing “responsibility to protect” atrocity’s always sympathetic victims—by seizing and securing for ICC prosecution longstanding nemeses (e.g., Muammar Gaddafi), hopefully to be captured through such interventions.
This is not to deny that weaker states themselves brilliantly manipulate the Court as well. African leaders have done so through savvy “self-referral” of alleged crimes by their partisan competitors, often military antagonists in inter-tribal civil wars. These prospective defendants almost certainly have plenty of blood on their hands, to be sure. Yet, because they enjoy strong national constituencies, it’s often impossible to prosecute them domestically without risking substantial social upheaval, potentially genocidal, and not just a brief Putsch by elite military officers, often nearly bloodless, the sort long so common across Latin America. It’s far easier to strap them firmly into a seat on a KLM jet bound for The Hague. In this way, the Court threatens to become the hapless, distant dumping ground for political rivals, every despot’s convenient new instrument for their more convenient, effective elimination. With this particular turn in the Court’s direction (entirely unanticipated by its founders), its legitimacy suffers no less within the developed West than among most of “the rest.”
Early hopes for the Court were not based on simple, naïve faith in one’s fellow man, of course, in the dream that his innate goodwill would someday, somehow, “out” and transcend his darker side. The argument that the Court could succeed rested on its likely ability to shame the world into action by regularly presenting its leaders with unequivocal evidence that a particular person committed particular atrocities at a particular place and time, causing great anguish to a particular set of identifiable victims. “Real persons,” not nations, commit and suffer atrocities, on this view. And once the world sees this, in the palpable facts that only a judicial proceeding can satisfactorily establish, it will no longer stand aside. Disentangling the fate of blameworthy individuals from that of blameless societies would, in this way, induce support for the Court among the world’s peoples.
And yet, the felt experience of shared destiny, of a natural entwining between one’s people and oneself—whether as national leader or simple citizen—could never really be undone so simply. It would require a good deal more than simply drawing so crisp and convenient a conceptual distinction, in hopes that people everywhere would then recognize how neatly their self-interests tallied with it. Throughout human history, of course, the subjective enmeshing of self and society has assumed variable contours—geographical, genealogical, doctrinal—following lines of tribe, clan, and sect.
Yet over the nineteenth and twentieth centuries, it was nationalism that became the most influential form of collective self-understanding. So it remains today, while jostling alongside still older, tribal identities in Africa, clan-based patron/client networks within the Arab world, and Muslim/Hindu divisions in India. These collective identities continue to exert a personal appeal and carry a political weight that philosophical liberals and the international lawyers they’ve long inspired habitually underestimate. To illustrate, last year Kenyan citizens saw fit to elect as President an individual indicted by the ICC for crimes against humanity involving the deaths of some 1,300 people; in the consciences of his fellow Kikuyu voters, at least, tribal loyalties overrode all claims of international law.
For us to expect that world leaders would punctiliously honor so ahistorical a distinction—between monadic individual and his “external” social encumbrances—required, in effect, that they “imagine there’s no countries” (or civilizations, ummas, pan-African solidarities, etc.), neither others’ nor their own. In relation to international criminal law, it would require that they ratify, prosecute, and extradite accordingly, adhering scrupulously to the universalistic normative criteria these treaties embody, indifferent to their particularistic human attachments, to the social bond, whether ascribed or freely embraced.
It was precisely these very countries, however, on whose strong, abiding support the Court’s success would always depend. When they fail to join or cooperate with it, its capacity to perform its assigned responsibilities soon dissolves. As that point approaches, no measure of neutral professionalism or impeccable legal expertise at the Court itself (there’s plenty) will save it. These professional virtues are undoubtedly essential to the institution’s efficacy and legitimacy. But their application requires a steady stream of meritorious cases reaching it from parts far and wide, North and South, not wildly distorted by disparities of wealth and power, by sharp lines of friend and foe.
To summarize, domestic prosecutions (within any reasonable period after relevant crimes) have proven virtually impossible, and mounting evidence strongly suggests that this will continue to be the case. When conducted shortly after the crimes, domestic trials have everywhere been deeply discriminatory, in ways now intolerable to much of the world. They are objectionable, in fact, to anyone unwilling to turn a blind eye, in ways that global media and online social networking no longer easily permit, in any event. All around, the “human rights revolution” has considerably raised expectations in this regard. Nonetheless, statesmen who commit international crimes while enjoying much military power will continue to elude international prosecution. Only leaders of weak states lacking a P-5 ally risk this fate, for only they are vulnerable to “humanitarian intervention” aimed at securing their custody.
National rulers throughout the Global South, especially in Africa, correctly perceive that the ICC will concentrate upon them almost exclusively (“almost” may charitably concede too much). They are coming to view the Court as they would a United Nations lacking the General Assembly. They therefore ask themselves: if the big boys won’t play by the new rules—avowedly designed to protect the powerless from the powerful—why should we, who have already too long suffered their indignities and iniquities? These statesmen begin to withdraw cooperation with the Court, a process well underway, reflected in their increasingly militant public criticism, their threats of withdrawal, and their open refusal to honor its writ.
Their continued support for the Court remains crucial, for its efficacy demands consistent compliance with its orders, notably including those requiring extradition of Sudanese President Omar Hassan Al-Bashir. Instead, he is extravagantly, unabashedly fêted across the region by its other heads of state. This behavior amounts to willfully provocative nose-thumbing at a still-esteemed embodiment of the international community. (A better metaphor might involve a different digit.) In alarmed response, we international lawyers and academics can again only soberly intone: “But it is your duty to respect the rightful norms, the legal expectations of the global community!”
The Western world here accuses African rulers of bad faith, in their newfound objections to a worthy institution they not long ago warmly welcomed. True, their own “rule of law” credentials are not exactly, one could magnanimously say, overwhelming. It is also true that the international crimes their continent has witnessed far surpass in number of victims and sheer wanton viciousness (if not, perhaps, in all other indicia of legal gravity) those experienced anywhere else during the same period.
Yet the leaders of these luckless lands plausibly respond that they now publicly repudiate one another’s atrocities—sometimes, at least. Thus the Arab League has condemned the butchery of his people by Syrian president Bashar Al-Assad. The League even invited Western airpower into Libyan airspace, as Gaddafi bombed large gatherings of peaceful civilian protesters, to establish no-flight zones. Statesmen from the Global South have also shown ample good faith, they will insist, in according the Court over a decade to demonstrate its capacity for impartiality. This test of its bona fides is entirely reasonable and appropriate, they will add. The Court has clearly failed it. Nor has the Court displayed any serious recent evidence of likelihood to become more even-handed in its future docket.
Heads of state throughout the southern hemisphere of course acknowledge that the Court operates under geostrategic constraints. But these “unfortunate limitations” on its effective writ no longer evoke quiescent sighs, grudging acknowledgments of inevitability, from many new leaders of countries poor and powerless. Global demands for a truly evenhanded criminal justice—and angers aroused at its denial—cannot today be as readily deflected, with a patronizing diplomatic savoir-faire, as in even the recent postcolonial past.
Tempers are on shorter fuse among the wretched of the earth (or, more precisely, their often despotic rulers). The Court cannot realistically expect to establish its credibility in this vital respect within the period of time many such leaders have implicitly granted it. They believe that a form of criminal justice so morally compromised as the one yet on offer from the ICC, so transparently biased against them, is not, in fact, materially “better than nothing.” They arrive at this reluctant conclusion through a gradual recognition that the Court has failed, and will very likely continue to fail, at honoring its most basic promises, whether one assesses its paltry delivery on these in terms lofty or earthy, normative or pragmatic.
Today, the de facto measure of success for international criminal law requires that those bearing greatest responsibility for the gravest offenses be rigorously investigated and, when evidence so indicates, prosecuted in accordance with basic due process; this requires that courts treat history’s violent winners no differently from its losers. Anything falling significantly short of this must count as a failure. It matters little that, from the standpoint of the philosophers’ “ideal theory,” this standard should always have pertained. What does matter is that those actually shouldering the burdens of a steeply slanted justice increasingly regard it as tantamount to no justice at all, indeed, as an aggravation of injustices longstanding. What’s still in it for us, they’ll plausibly ponder?
The ICC differs here from the International Court of Justice (ICJ), which has continued to stumble along for decades without anyone’s keen attention, eliciting no one’s consistent ire. After all, apart from the immediate parties to a given case, who much cares about the ICJ? There are a couple of exceptions, of course, but it’s no accident that they’re the only two or three ICJ cases of which you’ve even heard. That tribunal, however, does not impose criminal liability (and lengthy imprisonment) for mass atrocity. Only such cataclysmic wrongs stir the deepest moral sentiments and political passions, not only among victims. These responses—increasingly intense and widespread, it’s fair to say—decidedly include a commitment to some passable measure of evenhandedness, loosely formulated in terms of equal protection of the laws, among prospective defendants from all lands, potent and penniless.
The world therefore holds the ICC to higher standards than the ICJ, because so much more is at stake in its cases than monetary damages, levied formally against a mere abstraction (the great state of “Albania”), in practice against and spread among millions of future taxpayers. When the ICC, through its dubious docket and skewed membership, transgresses its own exacting moral standards, it places its legitimacy more squarely on the line—with hurdles higher and harder to clear—than when the ICJ displays its predictable “irregularities,” long quietly indulged by all but a few nitpicking academicians.
The ICJ’s assertion of jurisdiction in a given matter is also less coercive and, for that reason, less politically charged. A sovereign submits to the Court’s authority chiefly when its rulers so choose, which means that they do not feel the “defense of vital interests,” national or otherwise, so keenly imperiled as when they face their own, very personal, criminal indictment before the ICC. Defendants can also more easily evade ICJ judgments against them than at the ICC, where the accused will chafe uncomfortably incarcerated throughout the proceedings, and often many years thereafter. These last two differences between the Courts may admittedly make states more willing to employ the ICJ in resolving their disputes, but only at considerable cost to the seriousness with which anyone takes the institution.
In short, the ICC aspires to far more than the ICJ. The world judges its achievements accordingly. For the Court to descend to the pedestrian stature of an ICJ—with discrete dispute resolution and mere survival the measures of its success—would thus amount to failure. The ICC needn’t follow the League of Nations and its Permanent Court of International Justice into formal dissolution, in other words, for history to count its legacy as little more than an evanescent if fervent prayer. Thus, in speaking of its “demise,” I mean only that, as with international criminal law more generally, the Court will at best become a marginal, periodic sideshow to the world’s response (or, more often, non-response) to mass atrocity. The institution will therefore become all but an embarrassment, and not only when evaluated by the exaggerated expectations accompanying its birth.
There are six ways to challenge what I’ve said thus far.
First, one might observe that, in apparently raising the bar far above “better than nothing,” we have all come to expect too much, virtually ensuring a finding of failure. It would be more accurate, though, to say that we have simply reassessed the meaning of “better”—more sensibly, seriously and defensibly, in light of prevailing moral sensibilities, substantially revised over the preceding quarter-century by the international law (and more diffuse rhetorical notions) of human rights. On this watershed development, there will be no turning back. We might even say this, with some confidence, simply as a matter of the constraints imposed by real-life politics, i.e., irrespective of the more direct, free-standing sway of the normative principles themselves.
Second, some will protest that we must look to the long term, a radiant if far horizon. It took nearly thirty years before the European Court of Human Rights and European Court of Justice could find their way to ruling against any of the Continent’s most powerful states. Yet Germany, France, and the UK now need the rest of Europe far more than Iran or Russia needs Trinidad and Tobago, or any four dozen Trinidads and Tobagos. Britain’s incentives to “play well with others” are much greater when non-cooperation with neighbors raises its costs far above benefits. In any event, without a satisfactory short term for the ICC, it can have no long term. And in light of the temporal constraints I’ve discussed, it’s already too late in the day to confidently proclaim that it’s all too early to tell.
Third, it is true that a few Western European states have occasionally asserted “universal jurisdiction” to prosecute noncitizens accused of international crime, chiefly relating to their conduct in Rwanda and the former Yugoslavia. In one highly unusual case, an Italian judge even issued arrest warrants for over 140 Latin American former officials, charging them with murder. All the victims were Italian citizens, however. The judge’s step was therefore in this respect uncontroversial under even the most conservative interpretations of public international law. Because of the close link between the prosecuting country and the victims’ nationality, this was not actually an exercise of “universal” jurisdiction at all. And in very few episodes of mass atrocity do a nontrivial number of victims hold the citizenship of a foreign country that’s interested in prosecuting. Among identifiable Italian victims throughout all relevant parts of Latin America, for instance, there were apparently twenty-five.
In Spain, virtually no other judges ultimately followed the tempting lead of Baltasar Garzón Real, who similarly sought arrest of several high-ranking Latin Americans, again invoking victim nationality as the basis for extraterritorial jurisdiction. He then found himself suspended from all judicial activity, on grounds that many observers considered a pretext. Other judges understandably succumbed much sooner to the strong professional incentives against such unconventional judicial behavior. “Activism” of this sort, in these “civil law” countries, has long been still more controversial than even in Britain and most of its former “common law” colonies. For that matter, the efforts of these two exceptional trial judges proved largely fruitless, blocked by myriad political forces, foreign and domestic, executive and appellate judicial. Apart from these few vain attempts, the number of hesitant European gestures in the direction of atrocity prosecutions via extraterritorial jurisdiction has been minuscule and concern the very small-fry. The true exercise of a genuinely “universal” jurisdiction, though long mandatory “on the books” for grave war crimes, simply does not, in real life, exist.
Even Belgium, the arguable “outlier” in this respect, has in practice seriously pursued scarcely a handful of defendants, entirely from former European colonies, especially its own, adding new offense to historic injury in places it ruthlessly pillaged. In any event, domestic political forces within that country, fearful of prejudicing its foreign commercial relations, quickly pushed back, reigning in its jurisdictional statute. The ICJ’s 2002 rejection of Belgium’s earlier, more capacious enactment helped prompt this retrenchment of extraterritorial reach. The country’s current legislation is little different from that of other Western European states, who virtually never employ it, notwithstanding their longstanding obligations under the First Geneva Convention of 1949 (Art. 49). All these sparse European experiments therefore amount to an almost imperceptible drop in the bucket of human misery still ensuing from mass atrocity across the world. There is nothing to warrant any anticipation that they will grow to more than a trickle.
Fourth, critics will observe that many national prosecutions for war crimes have occurred beneath the radar, their judgments officially sealed, in fear of political repercussions from public disclosure. This is true. One archivist counts the immediate post-World War II trials alone in the tens of thousands. It may well be that, through the ubiquitous “availability heuristic,” we unduly slight these national experiences—lesser-known than the splashy public castings-off of haughty elites (once gloriously enthroned, now ignominiously defrocked)—when theorizing the broader state of affairs.
Most of these war criminals were tried, however, only under domestic legal codes. Also, these proceedings often concerned individual soldiers at the lowest echelons, frequently freelance “rogues.” Such trials further reflected the perennial pattern of victors’ one-sidedness in choice of defendants, in countries whose own and allied forces had contemporaneously engaged in much the same misconduct. This considerable historical experience therefore ultimately confirms, the archivist concedes, that “humanitarian crimes will only be prosecuted . . . if it is politically opportune.” That little qualification bars us from characterizing these thousands of summary convictions as powerful evidence of the field’s vitality. Their procedural slovenliness and prosecutorial partiality sit uneasily, at best, with any credible conception of the rule of law, i.e., any such conception to which a contemporary international criminal law could possibly subscribe. For that matter, these numerous if hasty trials also took place long ago, with no serious follow-up during later armed conflicts, as best we can tell. The communists did little better than the capitalists, and not only in matters of procedure. In postwar Lithuania, Poland, and East Germany, those who murdered anti-Nazi partisans were always prosecuted for treason to the nation and collaboration with the enemy, never for war crimes. This reflected the nationalist animus of such proceedings, their unconcern with settled international law of the time.
There is little sign, moreover, that the conspicuous procedural deficiencies of post-WWII proceedings show much sign of diminishing over time. In places like East Timor, for instance, a handful of lowly cannon fodder—their crimes clearly authorized from above—simply offered convenient, expendable scapegoats for more genuine crimes of bigger fish, when the international community demanded, in exchange for aid and trade, that “something must be done.” Still less can we count the local gacaca trials of doleful Hutu villagers as a tally in the triumphant ledgers of international criminal justice. These were murder prosecutions, under domestic law, lacking the most elemental due process required by the International Covenant on Civil and Political Rights (ICCPR). And it is no coincidence that—notwithstanding their leaders’ own considerable war crimes—not a single Tutsi, the now-ruling tribe, can be counted among those convicted (some 60,000) or nominally awaiting trial (nearly 800,000), many of the latter long languishing in the most miserable of pre-trial incarcerations.
Fifth, some will maintain that, though international criminal law will succeed only if it soon demonstrates its relative efficacy and impartiality, this body of law exercises its influence in subtler, more circuitous ways than here considered. If taken seriously, this claim encounters methodological obstacles which its proponents rarely acknowledge and never address. When challenged on this, champions of international criminal justice insouciantly announce that no plodding positivism could ever hope to register law’s elusive reverberations, discoverable only serendipitously, at best.
Yet when so much is at stake, hard questions of causation are too important to be finessed by merely batting the burden of proof back across a badminton net. Even with respect to the ICCPR, for which there’s much greater experience, bold assertions about its salutary effects skate on thin methodological ice where, as in most countries, the people clearly inspired by it act chiefly upon vague notions of what, they suppose, this complex treaty (and its domestic legislative incorporation) must surely contain. Social activists simply, shrewdly invoke its aura, not the document itself, more as rhetorical fuel for political mobilization than as the doctrinal basis for litigation. The same may one day be said, to its credit, of international criminal law as well, though this too, for the moment, is pure speculation.
Law’s skeptics sometimes also play epistemologically fast and loose here. They will claim, for instance, that whatever progress international criminal law may have made in recent years is due only to infusion from international human rights law, whose flourishing no one doubts. It’s rights law, not criminal law per se, that’s gaining ground. The impact of one formal body of doctrine upon another, however, does not concern me here, for that is a matter of legality “on the books.” This is not where law gains true traction upon social life—or, to continue the streetwise metaphor, where the rubber hits the road.
It may nonetheless be at least slightly relevant that the Inter-American Court of Human Rights now regularly compels states, found civilly liable for lethal rights abuse, to initiate investigations under their domestic criminal law against the high-ranking officials likely responsible. Yet the Court has no authority under its statute to apply international criminal law directly; the justices allude to it only parenthetically, at times, for purposes of overriding statutes of limitations in civil cases concerning “forced disappearance,” for that practice is frequently also a crime against humanity. It would therefore be incorrect to suggest that, in these undoubtedly momentous judgments, echoing sonorously across the region, this particular body of law confidently demonstrates its efficacy, whether to politically relevant constituencies or anyone else.
It does nonetheless warrant mention that the law of human rights undoubtedly discourages atrocities in other, more important ways than in how it may, very modestly, influence the interpretation of international criminal and humanitarian law. Thus, for instance, the incidence of torture somewhat declines within states which ratify the Convention Against Torture, if only in new, transitional democracies, as Simmons’s data suggests. Yet when one fills in the empirical details and teases out the causal mechanisms, one finds that the criminal prosecution of any actual torturers occupies virtually no place in the story (though the Convention expressly requires that states prosecute the offense).
Even so, one could plausibly respond: Might not the mere formal possibility of prosecution, pursuant to that international duty, have at least somewhat contributed to the decline in torture? If so, might the same not also prove true of international criminal law—burgeoning no less, it would seem, and only much more recently?
This strikes me as less a reasoned empirical argument, inviting similar response, than a bald, axiomatic assertion about how the world simply just must really “be,” about the speaker’s ontological presuppositions. Such casual, confident affirmations of law’s unobtrusive efficacy—assertions avowedly “factual” on their face—might still better, and a bit more generously, be characterized as a profession of faith, undoubtedly sincere. Yet leading states do not customarily wager hundreds of millions of dollars on what they regard as a leap of faith. Hence the growing suspicions in important quarters that forces decidedly less spiritual may be powerfully at work, calculations far more material. Yet at this point, both sides to the discussion—their speculations immune from empirical disconfirmation—have discarded all real pretense to causal explanation. Enthusiasts of international criminal law and skeptics alike then comfortably content themselves with a smattering of convenient, cherry-picked anecdotes.
Thus, for instance, enthusiasts of the field among well-informed Israelis speculate that their country has apparently increased the investigation of alleged war crimes by its soldiers in fear that its national leaders may someday find themselves prosecuted abroad via the doctrine of “superior responsibility.” Prompted by similar apprehensions, perhaps, Israel’s official report examining its navy’s conduct during the Turkish flotilla incident recommended establishing an upgraded unit within the Israel Defense Forces for war crimes investigations (under another name, of course). Israel even hired the ICC’s own Special Adviser on international humanitarian law to serve among the foreign legal experts assessing the evidence and drafting that report, though the country clearly will not ratify the Court’s Statute within any foreseeable future. To direct that invigorated investigatory unit, top military leadership quickly appointed the IDF’s most distinguished legal officers, indicating the earnestness with which these matters are regarded.
Yet it must also be said that, among major military powers, Israel has long been unique in the extent to which humanitarian considerations pervasively infuse its national security discussion, both lay and lawyerly. It would hence be misguided to conclude, on the basis of mere scuttlebutt and elongated inferences, that international criminal law is now exercising a major subterranean impact on high-level decisionmaking “in the shadow” of the ICC.
Sixth and finally, those enslaved to a vulgar version of “legal realism” will say that what I have here described is fundamentally no different from law as usual. Legal justice is always inherently an instrument of political domination. In that sense, all justice is victors’ justice. True, but only trivially, because law’s ‘victors’ will very often be in the right; we criminalize embezzlement, for instance, which makes embezzlers into law’s ‘losers,’ I suppose.
Simple-minded realists will persist that “politics” permeates all aspects of the legal process, everywhere. Again true. But the word denotes a number of quite distinct phenomena. No one would deny that the democratic political process rightly influences the drafting and enactment of legislation, even if many also cavil over details about how best to design that process; and although some of these “details” are quite important, they raise issues over which perfectly reasonable people often differ. Similarly, few would seriously question that principles of political morality inevitably and legitimately influence a court’s deliberations in “hard cases,” where the law is indeterminate. And nobody doubts that when prosecutors exercise their inevitable discretion concerning whom to indict, they do so partly by assessing the relative normative significance, as they understand it, of the many possible cases—a large portion meritorious—crossing their cluttered desk. It is also true that prosecution of mass atrocities, under international law and consistently with due process, requires a particular constellation of political forces, present only perhaps within well-established constitutional democracies. But these may be the political conditions under which the “rule of law” is possible in the first place. These several quotidian influences of “politics” upon the law are uncontroversial. Only at the margins do they become contentious.
Radically discontinuous and far more problematic are circumstances in which every legal question is filtered unrelentingly through the logic of war, of unforgivable foes and unbetrayable friends, of who has won and who lost in some vast political struggle, often massively murderous, for control of the state or international system. This “logic” then wholly governs who will and won’t face prosecution, in the near (not distant) future, for the most reprehensible wrongs, through procedural devices biased profoundly against them, frequently ensuring their conviction, guaranteeing the most severe sanction, entailing many years of incarceration, sometimes death. This is not “law as usual.” Justice like this does not “stay the hand of vengeance” but becomes its more elegant, sophisticated instrument.
What I have described in the preceding uncomfortably parallels at key points this seeming caricature, in distinct respects and to varying degrees, of course, in the several places and periods assayed above. The correspondences are frequent enough, at least, to have already begun to call into serious question, in the minds of many on whom its future depends, the very institution of international criminal law—still inchoate, to some degree, yet no longer especially heartening. Many of its emergent contours and practices have, in important respects, come to approximate this repellant ideal type.
The foregoing analysis strongly suggests that, as our chief response to mass atrocities, the heroic, epic struggle for an international criminal law both effective and normatively acceptable is imminently approaching defeat. Its demise would render largely immaterial the sort of questions we legal scholars and theorists relish in posing to one another, about the ideal structure and normative content of such a system or the proper configuration of particular legal doctrines within it. The meaningful operation of any and all such rules ultimately depends upon their integration into an effective institutional system—in this case, a tolerably legitimate system of international criminal justice.
That system does not exist and, despite long years of hard work by many dedicated people (including good friends), shows little serious indication of coming into being within the limited time horizon which it must. In face of the evident obstacles here delineated, no one has really even sought to explain how, by what causal path, it might do so. This is unsurprising, given the difficulty of the task—indeed, its apparent impossibility. In short, there is presently no plausible picture of how the world works, no coherent account of how international law and its institutions come into and out of being, which could give us reason to believe that the ICC—and the larger institution of international criminal law whose fate it determines—will succeed in any nontrivial sense of the word.
Those invariably skeptical of global institutions will find this empirical conclusion almost too congenial, if for quite different reasons. The Left condemns such bodies as tractable tools of neo-imperial powers, the Right as the resentful expression of a Lilliputian rabble. Neither side to that perennial spat thinks much a better world could ever come of them. Yet, whatever one’s positive theory of international relations, no one should take any normative comfort in the impending collapse of what has undoubtedly been a commendable experiment, whose failure was not entirely obvious from the start, nor undeserving the effort.
I am pained to reach this conclusion and welcome its refutation, through some clear-eyed analysis and corollary plan for a realistic path out from the present dire impasse. In this faint hope, I am not alone, of course. But a grand meta-narrative about the “arc of justice,” a teleology of onward and upward, will not suffice. It will not do even as an invigorating inspiration to “try harder,” in anticipation of some grand jurisprudential placebo effect. Who today—who, that is, remotely familiar with nineteenth and twentieth-century history—would openly contend that political change displays any inherent logic, an undeviating progressive direction?
I recognize that mere pixels upon a computer screen cannot perfectly convey nuances of intended tone and underlying sentiment. I cannot expect to overcome all suspicion of simply taking perverse pleasure in sheer provocation. As best I may, let me nonetheless offer my assurance that no disingenuousness lurks beneath this straightforward invitation to show me wrong.
Mark Osiel holds the Aliber Family Chair at the University of Iowa, College of Law. He is the author of six books on legal responses to mass atrocity, and has served as the Director for International Criminal and Humanitarian Law at the T.M.C. Asser Institute, The Hague. For their responses to earlier drafts, he expresses his gratitude to Ken Anderson, Ziv Bohrer, Mark Drumbl, Paul Dubinsky, Alexandra Huneeus, Brad Roth, and members of the Iowa Legal Studies Workshop.