For a political theory of the International Criminal Court (ICC, pt. 2)


When asked whether the French Revolution had succeeded, a recent Chinese premier is said to have responded that, after two centuries, it’s still far too soon to tell. That makes it rather unwise to draw any sort of balance sheet on the International Criminal Court at this early stage. Anyway, for the ICC—for the French Revolution for that matter—time isn’t the main difficulty. There is also the thorny matter of what criteria to apply to the assessment in the first place.

It is comparatively simple to grant success with respect to retributive justice in the court’s one conviction so far—except that so many people feel that Thomas Lubanga is not paying his debt either for all of his crimes (for example, sex crimes) or, with his fourteen-year sentence, even for those for which he was found guilty. But let’s note and set aside that criticism, on the grounds that success at meting out retributive justice is success at hurdling a low bar anyway. It has always been clear that more is at stake in the ICC’s work that would allow or force us to ask about other and broader outcomes, both for better and for worse.

We simply don’t know about whether the ICC goes further, first of all with respect to other internal criteria of criminal law, like specific deterrence (especially when politicians are accused in the course of a war), general deterrence, or expressive pedagogy. And much more important, we don’t know what external purposes international criminal law serves and how well—and we also need to take account of purposes it might serve unwittingly. The chief reason is that, compared to the instrumentalist inquiry into contexts, purposes, and outcomes I will lay out as clearly as I can, other ways of talking about international criminal law continue to predominate, and I want to focus as much on them in my half-hour as on the ultimately political calculus of how to assess this new institution.

And yet that political calculus is all that matters. Sooner or later, one question has pride of place: does the ICC make a difference? In spite of how pressing that question is, there are three other and prior and still more familiar discourses that hamper what ought to be the main inquiry. For the sake of alliteration, call them the promotional, professionalizing, and preservative approaches in contrast to the political one. They stick with reverential praise for the epoch-making novelty of the court, in the case of promotion; the essential but often autistic task of rule-interpretation and doctrine-mongering, in the case of the professionalism; and tactical sheltering of the court from the ordinary conditions of inquiry and judgment on the ground that it needs time and space to build strength and relevance, in the case of preservation.

To grasp why, notwithstanding those other approaches, the politics of the court ultimately matters most, start out with two theorists. Hannah Arendt tells us the point of international criminal law is retribution, and the only question to ask, whether it is served. “The purpose of a trial,” Arendt finished Eichmann in Jerusalem, “is to render justice and nothing else.” Really? That’s it? Around the same time, Judith Shklar wrote a sadly neglected book on international criminal law that I would prefer to follow. Besides observing that justice is perennially contested, she insisted on what I’m calling external criteria, and the importance of inquiring into whether they are fulfilled.

These are political trials, since law is just politics by other means, and glaringly so in the international realm; and so ultimately we have to keep our eyes as analysts on what they are supposed to do overall and how well they do it. Now, Shklar didn’t entirely dismiss formal and especially procedural legality. But for her, the main difference between Andrei Vyshinski (the Soviet prosecutor who staged the Moscow purge trials but also pitched in at the Nuremberg trials) and some other likeable prosecutor you might have in mind is not that the one was a showman and the other a lawyer. Rather, the difference is that one had bad political causes and the other good. But that means we have to speak much more about what makes a cause good in a specific political context and how good it really is. The beginning of wisdom about the ICC, in short, is to acknowledge that it’s a political enterprise, and moreover never an autonomous one, for it intersects other extant political agendas, especially great power politics, in incredibly complex ways.


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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).