Concluding thoughts (ICC, pt. 7)


Let me conclude. In case I haven’t been clear, the political approach isn’t at all meant to undermine the enterprise or institution. True, it is analytically neutral (more so, certainly, than its three rivals). But if Judith Shklar was right, it could also provide the sole plausible and necessarily instrumental justification for the ICC, for it inquires into whether and how the institution makes the world more decent, especially insofar as it intersects other political agendas in interstate order and disorder. Promotion can’t countenance the disturbing possibility that it might not improve the world, and professionalism and preservation avoid the question, focused as they are on doctrinal tasks and strategic delay. Anyway, Mr. Ocampo himself, in spite of his legalism, sometimes offered openly political rationales for his work—in his frequent insistence all along that a just peace is the only kind that will last or, more narrowly, his targeting of election violence given the imperative to get the next election right, which he suggested on his visit to Kenya in 2010 that prosecution would abet.

This is the right spirit in which to approach goals, but there’s no obvious answer in advance about whether and how the ICC serves them or others. The balance sheet the political approach envisions requires a political theory of what people can expect of law in the world. Is it just retribution or something more? If the further goals are internal to criminal law, are there deterrent and expressive goals too? Or, more demandingly, are we entitled to insist on goals external to the criminal process? And our sheet requires a political science of evaluation and measurement. Are the goals, whatever they are, being served and how much?

For what little it’s worth, my own view is that the fact that the institution could provide retribution for its own sake (or even satisfy other criminal law aims) is not sufficient validation for its centrality to our contemporary moral and legal imagination. Given the multiple possible forms of justice, first you have to decide which ones are imaginable and feasible. Accountability itself had to be made imaginable and feasible, suggesting that other things could be too. Fatou Bensouda is absolutely right to say, in a stirring recent defense of the court, that the victims want accountability for perpetrators, in Africa just like everywhere else. But it is also true to say that they have their own political aspirations, from governmental stability to democratic participation to economic justice, including postcolonial land reform. Pursuing atrocity could be an initial and low, not an ultimate and high, aspiration.

The “justice cascade” of criminal accountability, as Kathryn Sikkink has now labeled it, began domestically, with our prosecutor cutting his teeth in Argentina before the trend went global in various nations and, with ad hoc tribunals and the ICC, on the international stage. In the beginning, accountability mechanisms were clearly tethered to external goals like so-called democratic transition, perhaps in virtue of their initiation by domestic actors who were their custodians. In that tradition, the politics of law might be open to criticism, but there was no doubt that criminal accountability was yoked to some more general political agenda. Yet even that much is typically not overt now that this form of justice has made its scalar leap to the international system. And so it is harder to discuss.

As of today, as a result, it’s just unclear the extent to which the ICC serves these or any larger ends—and if it doesn’t whether it interferes with any, or even advances bad ones in a geopolitical world of persisting and unjust hierarchical power. Only one thing is for sure: if the ICC is not connected to helping bring about a better political future in general for victims and non-victims, then there’s just a lot less to be said in its favor—though surely there is still a very great deal.


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About Samuel Moyn

Samuel Moyn is JHenry R. Luce Professor of Jurisprudence at Yale Law School and professor of history at Yale University. He has written several books in his fields of European intellectual history and human rights history, including The Last Utopia: Human Rights in History (Harvard, 2010), and edited or coedited a number of others. His most recent books are Christian Human Rights (Penn, 2015), based on Mellon Distinguished Lectures at the University of Pennsylvania in fall 2014, and Not Enough: Human Rights in an Unequal World (Harvard, 2018).