So let’s bracket, at the outset, whether the ICC successfully provided retributive justice in the one guilty verdict so far, or even presume its success in any future ones, and then proceed to apply the political framework. In the main part of my talk, I want to consider the political environment for assessing the ICC’s meaning so far, considering possible ends and outcomes in connection with the larger political landscape.
One place to start—I’m a historian; I can’t help it—is with (1) the historical intentions of the ICC’s political creators. Humanity didn’t create it; some people with beliefs and ideologies and agendas did. The court, as you know, originated as a relatively idiosyncratic and peripheral idea, was crafted so as to become (like any treaty) compatible with state interests, and proceeds like all enterprises of legal politics in an ambience of extralegal politics. It’s textbook that, after a shadowy era of incubation in obscure legal and non-governmental circles, it was the creation of certain so-called like-minded states. And crucially, it was the product of an interregnum period in world history between previous bipolarity and future multipolarity. Clearly, the shame of Rwanda, in the era of Holocaust memory, motivated action. But I think the political context of origins is much more interesting than this conventional account suggests.
The history is complicated, but suffice it to say here that some of the so-called like-minded states appear to have viewed the ICC as a device to achieve much-needed UN Charter reform by other means. And perhaps that was an intelligible project at a moment when American unipolarity seemed a lasting framework within which to seek counterhegemonic balance. But since 9/11, and the war on terror, the geopolitical setting that gave rise to the ICC is increasingly a distant memory. And so it is interesting, though not dispositive, to compare the lived reality of the ICC to what it was supposed to achieve. In particular, it’s now clearer that the ICC is much more a creature of the international hierarchy of power than a disturber of it. More on that in a bit. The political origins of the court aren’t in any sense dispositive in the judgment, simply because they were historically salient; but they do remind us that because the inception was political we need to decide whether we can support the court with the same agenda as existed at the start.
Next I’d mention (2) the politics of identifying atrocity as the worst sort of evil, subordinating or postponing aggression as the crime of crimes in the tradition of the Nuremberg trials that actually occurred in history rather than in our recently crafted promotional and distorting memory. I’m probably in the minority in my view that Nuremberg and in fact international law generally from the late nineteenth century to Vietnam had it right in prioritizing war prevention rather than atrocity prevention (the first entails the second but the reverse isn’t true). So I won’t take up here the political costs of making atrocity our primary concern, but it is a choice and suffice it to say the price for it may be considerable.
Very interesting to scholars chiefly outside law these days is (3) the politics of state ratification of the Rome statute, what is called “commitment” in the scholarly jargon. Our premier analyst, Beth Simmons, argues that for weak states “credible commitments” explain ratification patterns, meaning that for them ratification is a desire to signal how much they would like to avoid atrocity even when they are least likely to do so. The picture here is that the Rome statute is an aspirational stepping stone for those states that would like international law, somewhat like Alcoholics Anonymous, to help them keep a promise to themselves they might waver about on their own. But in fact, in the rival account by Terence Chapman and Stephen Chaudoin shows, it’s democracies without recent conflict, rather than states seeking help in controlling addictive violence, that have signed up to the treaty regime with most alacrity and in greatest numbers. These scholars focus, instead, on how strong the correlation is between undemocratic and powerful states and non-participation. That means, in brief, that the ICC may be a treaty regime for states least likely to commit atrocity in the first place. And this so-called participation problem may be incurable.
When we look beyond commitment to how the ICC actually is working, I bring no news in focusing our attention on (4) the unexpected politics of self-referral and (5) the fascinating politics of Security Council uses of the institution—for these politics account for nearly all of the controversial jurisdictional selection so far. (The CAR, the DRC, Uganda, and now Mali self-referred; Darfur and Libya were referred.) In particular, there is no way to talk about the famous African selectivity of the court, and whether it’s merely a problem of optics a new face and potentially a new prosecution strategy might overcome, without delving in detail into self- and Security Council referral. For lack of time, let me just stick to a few remarks about each main source of the court’s cases.
A particular sort of state self-refers, which is ubiquitous in Africa and is now starting to be regularly called the “extraverted” state. This isn’t extroversion with an “o,” implying that some states are wallflowers and others gregarious; rather, it’s extraversion with an “a,” implying sovereign elites who use weakening of state sovereignty as a strategic tool of empowerment. Briefly, the idea is that one strategy of local control that elites whose states are low in the hierarchy of power deploy is to outsource governance to external actors, originally in a colonial situation and now in a post-colonial one in which great powers still loom large but international institutions do too.
Given the fact that all self-referrals to the court have been intended and have led to lopsided attention to the atrocities of non-state actors, the idea that credible commitments motivate the elites of self-referring states at the stage of compliance rather than commitment is completely implausible. Now obviously, Article 14(1)’s language of “situation” is intended to short-circuit the strategy of accusing your enemies without opening yourselves to scrutiny. But as law professor Tom Ginsburg puts it, it’s true all the same that many state elites are still “trying to make a strong commitment to prosecute, without necessarily committing to beingprosecuted.” So far, the actual unfolding of the court’s work seems to follow from choices to internationalize domestic conflict on the theory that doing so will help stabilize power or stigmatize or even eliminate opposition.
Now, I think the usual versions of the thesis that “the ICC is pro-Western” or “neo-colonial” (or whatever) are too unsophisticated, and I have considerable sympathy for new prosecutor Fatou Bensouda’s recent insistence that the ICC serves the victims, none of whom have much concern for impregnable sovereignty. But we must still account for the sorts of state whose victims get international justice and what kind of justice it is.
If anything, the politics of Security Council referral are more demanding of a political optic on the ICC than the self-referral phenomenon. All I want to say about this is that for good or ill the history of Security Council referral indicates that international justice has gotten caught up in very sobering ways in great power politics—when it comes to those referrals that have issued and, far more revealingly, those that haven’t. Perhaps this result was inevitable, even clearly anticipated, but not by everyone, and certainly not promotional dreamers, who are more loathe to confront this feature of the ICC than any other. Nor is selectivity the only issue. The use of Security Council resolutions that include provisions for exemptions of external actors from jurisdictional grants, start dates to invited scrutiny, etc.—all of this most familiar in, though not restricted to, UN Security Council Resolution 1970—shows the great power politics of justice in action. Obviously there’s a great deal to say about this, and specifically about how experience has allowed warming engagement by the United States towards the court it once treated as a mistake without redeeming features.
Penultimately on my list, there is (6) the politics of apprehension, which unlike the local constable in the domestic scene depends on messy international politics up to and including the force of arms, as in the Côte d’Ivoire arrest or our own country’s military assistance to seek Joseph Kony of the Lord’s Resistance Army. What this means, among other things, is that we can credit international criminal law for only a piece of the traditional legal end of incapacitation, a result that other political and geopolitical forces predominate in causing.
Finally, there is (7) the politics of trial and adjudication. No one would want to imply, in sketching the political landscape of the ICC, that politics is just something that happens up to the point where the adjudicative process begins, after which law finally takes over. Given how few judgments there are so far, it’s the setting of adjudication, not adjudication itself, that demands our first scrutiny. But if the pre-trial action makes a revival of insight into the politics of law necessary, it could only be for the sake of applying that insight constantly and generally. (Recall that it was the adjudicative process, not its preliminaries or surround, thatthe breakthrough to realist insight in twentieth-century legal thought was about.)