As time passes, this framework will have to supersede the extraordinary predominance of what I will call promotionalism in the world at large and at meetings like this one. The promotional idea presents the creation of the ICC as a moral achievement in spite of andagainst politics—or at least political interests narrower than those of humanity as a whole. Historically, the promoter says, the court is the uncontroversial fulfillment of the long nurtured but long postponed demand to “end impunity” (though it turns out no one ever used that phrase in English until about 1986). For this reason, the details of its performance are subordinate to the fact that its role has been scripted at all.
Now to be fair, every institution and project will generate and require a promotional account of itself, probably since most people are followers and need a simplified creed in which to believe. And to be absolutely clear, the promotional view is tempting, especially in the earlygoing, because it has a lot going for it. The ICC is indeed an exceptionally surprising development, so humane in its explicit purposes as to make awestruck gratitude (or is it self-congratulation?) the natural response. No one can doubt that it is just for the ICC to hold evil men—and now an evil woman, Simone Gbagbo—to account for their atrocity crimes, which is indeed an essentially unprecedented development, even if it turns out to be only for the sake of the internal and narrow goal of retributive justice.
Whatever its truth and utility, however, promotion might now take up too much time, since ongoing institutions can’t rest content with celebrating their existence alone, and need to be judged for the specifics of their work. Consider the parallel of the domestic criminal law. Supposing I worried in some hypothetical society that the criminal law seemed a scandal of selective justice and racialized opprobrium. The promotional response that criminal law is better than doing nothing, though potentially true, would hardly be a compelling excuse. Similarly, Henry Hart once justified criminal law as an alternative to the generalized violence of vigilantism. It is reminiscent of Justice Robert Jackson’s famous claim in his opening statement at Nuremberg that the Allies had magnanimously but also prudentially chosen to “stay the hand of vengeance,” as if the sole alternative to law were violence. Yet even assuming the empirical truth of Hart’s or Jackson’s supposition about the inevitably worse consequences of not providing criminal accountability—which goes back to Aeschylus in our tradition—it’s simply mistaken to think that the specter of the blood-dimmed tide of vendetta could ever justify the specific form of justice our criminal law provides. Certainly not for long.
The main flaw of promotion, in other words, is that of all promotional discourses. It doesn’t tell us what the criteria of success or what our other options are. It wins whatever esteem we might give to the project and institution by creating the sense that the alternative to its program is doing nothing, with the often very explicit implication that those who have the audacity to doubt its value must be for lazy indolence—“standing idly by”—if not outright evil. But the alternative to doing something is never just doing nothing; there is always the possibility of doing something else. Put differently: international criminal law generally and the ICC in its current version promote just one possible vision of justice, and it is in competition not simply with injustice but with other imaginable and feasible approaches to justice. Thus, though rhetorically understandable for leaders and members of the court’s worldwide following, promotion is simply unpersuasive so long as we don’t know what kind of justice the court provides, how much, and with what opportunity costs.
