Preservation and its limits (ICC, pt. 6)


A final approach is available that tends to postpone the difficult calculus of political judgment, and I’ll call it preservation. People who recognize the severe limitations of promoting and professionalizing nevertheless strategically defer, during an initial period of institution-building, what political analysis is supposed to be about: critical distance for the sake of judgment of outcomes in context. On the preservative view, the ICC is a fledgling cause that needs to be sheltered from the ordinary conditions of inquiry. It is threatened, indeed, precisely because its ultimate implications are supposed to be so threatening to the world of power.

If you are a preserver, you make the promotional or professional move, but for strategic reasons rather than out of deep conviction. And actually it turns out that many of those who at first seem promoters or professionals turn out be preservers (esoterically as it were) when you push them. In private conversation, they will say that it is only by talking as if the ICC were a suprapolitical breakthrough or an already normalized professional field that it can become institutionally stable. Similarly, many people claim—at least in the hallway—that ICC actors like the ex-prosecutor are self-conscious political actors concerned above all with the institutional viability of the court, even though they constantly say things like Luis Moreno Ocampo did last year: “I apply the law without political considerations.”

In our world, it is the preservative view that seems most precarious after the first ten years of the court’s existence. The difficulty the preserver faces is straightforward: it’s not really clear how long the clock runs on the strategy. Perhaps some of the obvious threats to the court’s long-term viability—its budgetary woes, perhaps above all, and the logistical imperatives that have led to so protracted and complicated processes that the court has a single (almost) unreadably long opinion to convict to show for itself in ten years—are worth speaking about quietly, since in the scheme of things they are subject to imaginable institutional fixes. Alterations in prosecutorial strategy and casebuilding, prompted by the Lubanga trial with itscontroversies over intermediary witnesses, or its verdict if you’re dissatisfied with it, or (even more) by the recent acquittal of Mathieu Ngudjolo, fall into the same category.

But the same just isn’t true of the far more glaring worry that probably and properly haunts the preserver more, for it ruins the calculation of short-run tradeoff for long-term gain on which the preservative gambit is based. After all, it seems as if—unlike a domestic criminal regime, which long ago achieved at least some functional systemic autonomy, or at least the generally shared belief in such autonomy—the work of the ICC will never become fundamentally detached from the great power politics that seem set to continue on the international stage. A dilatory strategy simply will not erase that reality, as if passing time and institutional momentum on their own will do the trick.

In fact, the first ten years, especially in Security Council action, suggests that the clock has run out on preservative approach, whose representatives—unless they really believe that promotion and professionalism are sufficient—should move more hastily to some sort of political defense of the institution. The preservative approach is usually premised on the notion that the danger international criminal law poses to the greatest and most unbridled power in the world means keeping the threat surreptitious while it builds to full strength. But if you conclude that the ICC has so far chiefly been threatening only to some elites in some weak states, and not without utility for elites in both strong and weak states, then it is unclear why sheltering the court would make sense.

In response to the recent Palestine commotion, a leading international criminal law scholar whom I admire, Kevin Heller, stepped out from his usual professionalism, making his preservative agenda exoteric. “[I]t would be suicidal,” he wrote, “for the ICC to wade into the most politicized conflict in history—virtually guaranteeing that the United States would revert to its previous hostility and that all of the Court’s other work would be ignored by the media and the international community. The Court’s long-term legitimacy is more important than any individual investigation, no matter how deserving of investigation a situation might be.” The specific judgment might be intelligible, though it does leave open the problem of why only this conflict is “politicized” enough to present excessive risks for the court. What does it tell us about the world that others aren’t? Even bracketing that concern, the preserver has to be asked: if you’re sheltering the court only insofar as you do nothing to irritate the truly powerful, what you are sheltering it from?


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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).