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It is as if the advocates of the court have all concluded that history is at an end, or at least that they can interrupt history's tragic march and replace it with international legal norms and the moral convictions of human rights activists, international lawyers, and humanitarian aid workers. Were there really such a thing as the international community, such assumptions might be warranted. But, as anyone who has been in a place like Rwandaóor watched how decisions are made at the U.N., NATO, or the European Unionóknows, the international community does not exist. What exist, for better or worse, are tribes, peoples, nation-states, and international alliances. It's rank wishful thinking to pretend otherwise.

Law proceeds out of civilizational change; it can never prefigure it. Nor can it be expected to do for the people of Rwanda, or Bosnia, or Sudan what they cannot do for themselves. Some, of course, argue that, in places where ordinary people can do nothing to resist their oppressors, only some form of protectorate imposed by a supranational organization like the U.N. can help them. This may be so. Certainly, it is difficult to imagine a place like Cambodia recovering without some period of benign external rule. But so long as world government, or, for that matter, the more modest goal of U.N. protectorates in so-called failed states, is not in the offing, instituting the International Criminal Court amounts to trying to construct an international legal structure for an international political structure that does not yet exist.

The view of the civilizing process as a top-down one, imperial in nature, may be effective in certain contexts. But, in the case of a court with, literally, global reach, it is one that fundamentally evades the question of the court's legitimacy. The presumption is of a consensus that does not exist. (Even the judicial norms the court will use will have to be cobbled out of various legal systems whose assumptions are, in crucial ways, very different from one another.) But laws work when legal bodies are deemed legitimate by those over whom they have authority. If the civil rights movement was successful in the United States, this was in large measure because most American citizens, including those in the South, accepted that the decisions of American courts were binding, whatever their private feelings. And even then troops had to be sent to certain places to enforce the law.

Advocates of the court will argue that to oppose the court is to surrender to despair. Leaving aside the fact that there are times when it is right and proper to despair, the issue is not one of forswearing hope for a better world. It is one of not fostering false, illusory hope. To some extent, even the court's strongest proponents know this. Aryeh Neier in the preface to his new book, War Crimes, concludes that 'the heart says civilized men and women with respect for the rule of law cannot permit [crimes like those that occurred in Bosnia] to happen again. The mind, sadly, sends a different message.' Knowing this, Neier still believes in the court. He may be letting his heart get the better of his headótrying to do something, anything, rather than sit idly by and watch the next Karadzic, the next Interhamwe militia, start a murderous assault.

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