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Why the International Criminal Court Must Pretend to Ignore Politics

Published online by Cambridge University Press:  10 April 2012

Michael J. Struett
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Extract

Since the International Criminal Court (ICC) prosecutes crimes of mass violence that are inherently political in nature, its actions will inevitably have political consequences about which the prosecutor and judges should be as well informed as possible. As some of the other contributors to this roundtable note, the ICC's actions and inactions may even have life-and-death consequences in the real world. It is ethically irresponsible for the ICC's officers to ignore those concerns. At the same time, the court's moral and legal authority derives entirely from its claim that it applies universal rules wherever it has jurisdiction. In order for the International Criminal Court to build legitimacy over time, it must both act and be seen to act in a neutral way that transcends political pressures. Rule-of-law courts do not derive their authority from their ability to command the use of force. Nor do they have the legitimacy of elected political officials who act as the representatives of a political community. The legitimacy of courts is a function of their claim to uphold universal rules of law that the community has chosen to adopt, regardless of whether doing so is popular or even prudent in a particular case with particular constituencies. Consequently, court officers in their formal actions—including prosecutorial requests for investigations, issuing arrest warrants, and filing charges, as well as in the judges' decisions on those questions—should always ground the rationale for their decisions in the pretense that they act only to uphold the law and without regard for political considerations.

Type
Roundtable: The Political Ethics of the International Criminal Court
Information
Ethics & International Affairs , Volume 26 , Issue 1 , Spring 2012 , pp. 83 - 92
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2012

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References

NOTES

1 My view of law is based on Kratochwil's analysis of law as a form of pragmatic reasoning that exists alongside justifications for actions based on purely utilitarian goals and moral reasoning but cannot be reduced to either. See Kratochwil, Friedrich, Rules, Norms, and Decisions (Cambridge: Cambridge University Press, 1989), pp. 210–48CrossRefGoogle Scholar.

2 Moreover, observers of the court should not expect them to acknowledge such political elements to their thinking, unless it is off the record or long after the fact.

3 Lang, Anthony F. Jr., Punishment, Justice and International Relations: Ethics and Order After the Cold War (London: Routledge, 2008), pp. 131–32Google Scholar.

4 Habermas, Jürgen, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. Rehg, William (Cambridge, Mass.: MIT Press, 1996), pp. 229–37Google Scholar.

5 The phrase “judicial absolutism” is used by George Friedman in “Libya and the Problem with The Hague,” STRATFOR, July 11, 2011; http://www.stratfor.com/weekly/20110711-libya-and-problem-hague.

6 Nettelfield, Lara, Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal's Impact in a Postwar State (Cambridge: Cambridge University Press, 2010)Google Scholar.

7 Osiel, Mark, Mass Atrocity, Collective Memory, and the Law (New Brunswick, N.J.: Transaction Publishers, 2000)Google Scholar.

8 Ibid.

9 Staub, ErvinThe Roots of Evil: The Origins of Genocide and Other Group Violence (Cambridge: Cambridge University Press, 1989), p. 31Google Scholar.

10 Roht-Arriaza, Naomi, “The Multiple Prosecutions of Augusto Pinochet,” in Lutz, Ellen and Reiger, Caitlin, eds., Prosecuting Heads of State (Cambridge: Cambridge University Press, 2009), pp. 77–94CrossRefGoogle Scholar.

11 Pion-Berlin, David, “To Prosecute or to Pardon? Human Rights Decisions in the Latin American Southern Cone,” in Kritz, Neil J., ed., Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Vol. 1: General Considerations (Washington, D.C.: United States Institute of Peace Press, 1995)Google Scholar.

12 See the Rome Statute for the International Criminal Court, art. 53.

13 On the court's decisions to open investigations and issue indictments, see Nouwen, Sarah and Werner, Wouter, “Doing Justice to the Political: The International Criminal Court in Uganda and Sudan,” European Journal of International Law 21, no. 4 (November 2010), pp. 941–65CrossRefGoogle Scholar.

14 Ibid., p. 963.

15 See Williams, Paul and Scharf, Michael, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia (Lanham, Md.: Rowman and Littlefield, 2002)Google Scholar; Hazan, Pierre, Justice in a Time of War: The True Story Behind the International Criminal Tribunal for the Former Yugoslavia (College Station, Tex.: Texas A&M University Press, 2004)Google Scholar; and Hagan, John, Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal (Chicago: University of Chicago Press, 2003)CrossRefGoogle Scholar.

16 Nettelfield, Courting Democracy, pp. 200–202.