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Compromising Justice: Why the Bush Administration and the NGOs Are Both Wrong about the ICC

Published online by Cambridge University Press:  25 March 2011


The critics of the ICC in the Bush administration and its supporters within the human rights community have one thing in common: they assume that the ICC can evolve into a powerful institution independent of states, either to constrain American power or to act on a duty to prosecute to end impunity for perpetrators. Both overestimate the ability of the court to pursue a legalism divorced from power realities. The former attribute to the court powers it is unlikely to exercise, particularly if the United States remains outside the treaty. This is due, in part, to the safeguards within the Rome Statute, but more importantly, to the court's dependence on sovereign cooperation, which will lead it to place a high premium on cultivating the good will of the most powerful states. The latter overestimate the degree to which courts by themselves can deter atrocities. The ICC's effectiveness in any particular case will therefore be dependent on the political consensus of those actors capable of wielding power in that area. They also underestimate the need to compromise justice – at least, prosecutorial justice – in cases in which bargaining and compromise are the central means of facilitating transitions from armed conflict or dictatorship, and in cases in which the strength of the perpetrators and the limits of one's power would make legal proceedings either futile or counterproductive to other interests and values. Hence, decisions to prosecute must first be subjected to a test of political prudence, and then take place according to due process and the rule of law.

Copyright © Carnegie Council for Ethics in International Affairs 2006

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103 Harold Nicolson, Diplomacy (London: Oxford University Press, 1964), p. 24; emphasis added; see also George F. Kennan, American Diplomacy (Chicago: University of Chicago Press, 1951), ch. 6; and Hans Morgenthau, Politics Among Nations, pp. 15–16.

104 John Dower, Embracing Defeat: Japan in the Wake of World War II (New York: W. W. Norton, 1999), p. 465.

105 “Cover Letter and Excerpts of Justice Department Report on Klaus Barbie,” New York Times, August 17, 1983, p. A8.

106 See Max Weber, “Politics as a Vocation,” in H. H. Gerth and C. Wright Mills, eds., From Max Weber: Essays in Sociology (New York: Oxford University Press, 1958), pp. 120–28.

107 Ratner and Abrams, Accountability for Human Rights Atrocities, p. 278; and Akhavan, “Beyond Impunity,” p. 28.

108 Kennan's opposition to unconditional surrender informed his critique of legalism: “Whoever says there is a law must of course be indignant against the lawbreaker and . . . when such indignation spills over into military contest, it knows no bounds short of the reduction of the law-breaker to the point of complete submissiveness—namely, unconditional surrender. It is a curious thing, but it is true, that the legalist approach to world affairs, rooted as it is unquestionably in a desire to do away with war and violence, makes violence more enduring, more terrible, and more destructive.” See Kennan, American Diplomacy, p. 111. One could disagree with Kennan's judgment as to what was necessary for a just and stable postwar peace, but not with his assessment of the consequences that flow from such choice in terms of the kind of war that would have to be fought.

109 A persuasive proportionality case can be made for continued fighting in the Sierra Leone case, where pressure from the United States and the UN led to the withdrawal of a Nigerian-led West African force as part of the 1999 peace agreement. While there were serious accusations of abuse of civilians by the Nigerian forces, they did fight effectively against the RUF. Its withdrawal, and that of the Pretoria-based mercenary force Executive Outcomes following a 1996 agreement with the RUF, paved the way for mass atrocities against civilians. See Traub, “The Worst Place in the World,” pp. 62–63.