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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

Abstract

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.

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Copyright © Carnegie Council for Ethics in International Affairs 2006

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References

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56 See Bass, Stay the Hand of Vengeance, pp. 20–28.

57 Shklar, Legalism, p. 111.

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65 See Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (Oxford: Oxford University Press, 2000), pp. 208–57.

66 See David Rieff, “Court of Dreams,” New Republic, September 7, 1998, p. 17.

67 This was the conclusion of Report of the International Commission of Inquiry to the United Nations Secretary General, January 25, 2005. On Resolution 1593, which referred the Darfur case to the ICC, see Bruce Zagaris, “UN Security Council Makes 1st Referral to ICC in Darfur Case,” International Enforcement Law Reporter 21, no. 6 (2005).

68 Human Rights Watch, “UN: Pass Resolution to Refer Darfur to ICC,” Human Rights News, March 25, 2005; available at hrw.org/english/docs/2005/03/25/sudan10371.htm.

69 Peter S. Goodman, “China Invests Heavily in Sudan's Oil Industry,” Washington Post, December 23, 2004, p. A1.

70 See Warren Hoge, “U.N. Council Approves Penalties in Darfur,” New York Times, March 30, 2005, p. A6. See also “Mild Rebukes for Darfur's Killers,” Economist, April 2, 2005, pp. 41–42; and Reeves, Eric, “Genocide by Attrition,” Dissent 52,no. 1 (2005), pp.21–25CrossRefGoogle Scholar.

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83 Ibid., p. 228.

84 Ibid., pp. 236–37.

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86 Bass, Stay the Hand of Vengeance, p. 245.

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88 Human Rights Watch, “Taylor Indictment Advances Justice,” Human Rights News, June 4, 2003; available at http://www.hrw.org/press/2003/06/westafrica060403.htm.

89 See Williams and Scharf, Peace with Justice? pp. 206–208.

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91 For contrasting views of the severity of Russian war crimes, see Matthew Evangelista, The Chechen Wars: Will Russia Go the Way of the Soviet Union? (Washington, D.C.: Brookings Institution Press, 2002), pp. 139–72; and Anatol Lieven, “Chechnya and the Laws of War,” in Dmitri V. Trenin, Aleksei V. Malashenko, and Anatol Lieven, eds., Russia's Restless Frontier: The Chechnya Factor in Post-Soviet Russia (Washington, D.C.: Carnegie Endowment for International Peace, 2004), pp. 209–24.

92 Rachel Denber, “‘Glad to Be Deceived’: The International Community and Chechnya,” Human Rights Watch World Report 2004; available at http://www.hrw.org/wr2k4/7.htm. The report characterizes some Russian military actions as war crimes, but advocates the use of economic and diplomatic pressure, not prosecution.

93 See Glenn Kessler, “North Korea Seeks to Exclude U.S. Official from Talks,” Washington Post, August 4, 2003, p. A10; and Peter Slevin, “Arms Control Hard-Liner Won't Attend Sessions on North Korea,” Washington Post, August 13, 2003, p. A20.

94 See Amnesty International, “Belgian Court Has Jurisdiction in Sharon Case to Investigate 1982 Sabra and Chatila Killings,” May 1, 2001; available at web.amnesty.org/library/Index/ENGIOR530012002?open&of=ENG-2D2. In contrast, Wedgwood, Ruth,in “Justice and Sovereignty: Implications of the International Criminal Court,” UCLA Journal of International Law and Foreign Affairs 8,no. 1 (2003),p.54Google Scholar, suggests that Sharon's responsibility is political rather than criminal.

95 See David A. Bell, “Leopold's Ghost,” New Republic, September 10, 2001, p. 16.

96 See Anthony Dworkin, “The Killing of Sheikh Yassin: Murder or Lawful Act of War?” Crimes of War Project, March 30, 2004; available at http://www.crimesofwar.org/onnews/news-yassin.html.

97 Contrast Human Rights Watch, “Erased in a Moment: Suicide Bombing Attacks against Israeli Civilians,” October 2002, pp. 139–40, available at http://www.hrw.org/reports/2002/isrl-pa/, with Greg Myre, “Israel's Case against Arafat,” New York Times, September 21, 2003, p. A5.

98 Orakhelashvili, Alexander, “Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),” American Journal of International Law 96,no. 3 (2002), pp.677–84.CrossRefGoogle Scholar

99 See Marlise Simons, “Sharon Faces Belgian Trial after Term Ends,” New York Times, February 13, 2003, p. A12.

100 Speech by Reed Brody, Institute of International Humanitarian Law, San Remo, Italy, July 11, 2002. Also see Philippe Sands, “After Pinochet: The Role of National Courts,” in Philippe Sands, ed., From Nuremberg to The Hague: The Future of International Criminal Justice (Cambridge: Cambridge University Press, 2003), pp. 103–108.

101 “International Court of Justice: Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium),” International Legal Materials, May 2002, p. 549.

102 Louis Henkin, How Nations Behave: Law and Foreign Policy (New York: Columbia University Press, 1979), p. 1. Henkin notes that the “progress report” for faith in this progression has been “discouraging,” and that “force, diplomacy, and law do not represent discrete stages in international history” (p. 2).

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.

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