The International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) established a number of precedents in international criminal law, as detailed by Darryl Robinson and Gillian MacNeil.1 They also set the template for the International Criminal Court (ICC) and other tribunals as to how politics can both empower and constrain international prosecution and determine its potential contribution to peace.The lesson of the ICTY is that international criminal law can assist peace processes in an ongoing way if powerful states and international institutions complement it with coercive political strategies to weaken regimes or militias led by criminal spoilers to the point where their cooperation is not needed tonegotiate and maintain a peace settlement.The lesson of the ICTR is that the impact of international criminal law on consolidating peace is dependent upon the political agenda of the state on whose territory the crimes oc-curred and whose cooperation is needed for effective prosecution.Therefore, the contribution of prosecution to peace depends on whether the law is embedded in national and international political com-mitments that go beyond compliance with formal legal obligations and over which a tribunal has limited influence.

The traditional realist paradigm holds that the sovereign nation-state is the principal political and legal unit in the world community. Reflecting this tradition, most studies of economic sanctions are state-centered. They assume that states exercise control over their national corporations to deny economic resources to other states. Within this framework, nongovernmental human rights organizations become involved only as interest groups, lobbying governments to regulate or ban private economic activity with designated malefactor. These groups, however, are generally unable to persuade states to mandate disinvestment from or socially responsible behavior within repressive regimes. As a result, they redirect their energies away from the central authorities and toward corporations-directly pressuring them through boycotts and shareholder activism-and local governments-persuading them to condition municipal contracts on human rights criteria.

This essay examines the degree to which these nonstate actors can provide an alternative center of authority to that of the state in imposing human rights accountability on corporate conduct abroad. The first section explains the logic of nonstate sanctions and establishes criteria against which one can judge their challenge to realism. The second section assesses the successes and limitations of the anti-apartheid movement, which is viewed as the role model for such efforts. The third and final section contrasts the South African case with recent campaigns against corporate investment in Burma and Nigeria. These cases have been chosen because most grassroots organizations have pressed for corporate withdrawal rather than for more socially responsible business practices. Each represents an attempt by citizens' groups to impose sanctions against repressive regimes beyond those enacted by governments.

Is it ethical for the prosecutor at the International Criminal Court (ICC) to consider political factors, such as peace processes, in selecting situations to investigate or cases to prosecute? During the early years of the court, a number of documents and statements from the Office of the Prosecutor (OTP) suggested that there were occasions when it was. Two OTP policy papers issued in 2003 recommended that the prosecutor assess “all circumstances prevailing in the country or region concerned, including the nature and stage of the conflict and any intervention by the international community,” and whether prosecution might “exacerbate or otherwise destabilize a conflict situation.” In the same spirit, the ICC's chief prosecutor, Luis Moreno-Ocampo, referred to his decision-making as a “dialogue between many actors” with a “strategic dimension . . . [that] involves all stakeholders.” This language suggested a process of consultation and coordination with local and international actors involved in conflict resolution to adapt international criminal justice to on-the-ground political realities.

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.

The argument against factoring peace processes into the discretion of the ICC Prosecutor is based on the premise that international law can be decontextualized from international politics and that in doing so will have superior consequences in terms of deterring atrocity and in consolidating peace. This view is at odds with the history of international criminal tribunals and the cases currently under review by the ICC. Those episodes demonstrate that the effectiveness of international criminal justice and its impact on peace are shaped and constrained by the political strategies of conflict resolution used by states and intergovernmental organizations to end criminal violence. Hence the Prosecutor should construe his discretion broadly to take account of the political context in which international criminal law has to operate.

One of the lessons drawn by many scholars from the 1982 U.S. sanctions against the Soviet-European gas pipeline was that the decline of American hegemony and the global spread of American business placed the overseas networks of U.S. multinational corporations beyond the control of the U.S. government for the purposes of economic sanctions. Through systematically examining three subsequent sanctions efforts (Nicaragua, Libya, and South Africa), this study qualifies the generalizability of this “lesson.” In none of the cases was the United States willing to incur alliance costs through applying extraterritorial controls, nor was it able to persuade American firms to substitute public preferences for private ones. Nonetheless, in each case, the U.S. government influenced corporate decision making by augmenting corporate perceptions of risk so that prudent business stategies reinforced diplomatic preferences.