A war crimes court Hitler would've loved
'For the first time in human history, those committing war crimes, crimes against humanity, or the ultimate crime, genocide, [will] have to reckon seriously with the possibility that they [will] be brought before the international bar to face truth, be held accountable, and serve justice,' declared Aryeh Neier, president of the Soros Foundation and its Open Society Institute and one of the animating spirits behind creation of the court. Neier and distinguished organizations such as Human Rights Watch and Doctors Without Borders argue that the court, whatever its limitations (above all, that it will not have jurisdiction over war crimes committed in internal armed conflicts by states that have not signed the treaty), is an invaluable first step toward what Le Monde called 'the prevention of conflicts through judicial dissuasion.'
Given the impressive experience and undeniable goodwill of the court's advocates, critics need to proceed with great caution. Nonetheless, it is anything but clear that the current enthusiasm for the ICC is warranted. Indeed, it may very well be the wrong answer to the moral and political challenges posed by the world of genocide and ethnic cleansing in which we find ourselves. Far from ushering in a new era of certain punishment for war criminals, it may prove to be an exemplary case of good intentions gone awry and lead to less respect for international law rather than more.
The first set of objections is practical. As designed by the treaty drafters in Rome, the court is probably too weak to bring wrongdoers to justice. Indeed, since most of the greatest crimes committed in contemporary wars go on during internal conflicts outside the purview of the Rome treaty, it is not clear what abuses the court actually will address. It would not have had jurisdiction over Saddam Hussein's war against the Kurds, Pol Pot's reign of terror, or the Rwandan genocide of 1994.
To the extent that such horrors can be prevented, they will be stopped by the use of force by outside powers, which, in practical terms, usually means the United States. This brings us to the second pragmatic objection: The court is just strong enough to impinge upon the sovereignty of individual states and thus will further inflame isolationist and, above all, anti-multilateralist feeling in the United States?both in the U.S. military and in the public.
Proponents of the court wager that the long-term benefits (they would say necessity) of taking this first step far outweigh the meager practical results that can be expected from the court as it is now constituted. But, after Bosnia and Rwanda, it may well be that more idealistic initiatives are exactly what we don't need?that, in fact, initiatives should be judged by the actions they are likely to engender in the here and now, not by the better world they may, in some indeterminate future, help to usher in. In the absence of a world government, or of a United Nations army, such strong action, of course, can be undertaken only by states. Utopianism can be a fine thing, but not if it is based on a misperception of the world as it actually exists. And that misperception seems to have bedazzled the decent people who have campaigned for the court.
The deeper argument that didn't quite take place before the Rome treaty was signed would have revolved around the relation of law and politics. Advocates of the court never really ask what law can honestly be expected to accomplish in what is still very much a lawless world, no matter how many nations have signed up for how many international covenants and conventions. People today rightly mock the 1928 Kellogg-Briand pact, which, among its other provisions, 'outlawed' war. If the idea that the likes of Ratko Mladic will really be dissuaded by the existence of a court in The Hague is not equally preposterous, then surely the advocates of the court must meet the burden of proving that the world has changed in fundamental ways since 1928. The experience of the past 60 years should be enough to demonstrate that they can do no such thing. What was needed in the 1930s was not pacifism but a war against fascism. What will be needed to stop the next Bosnia or the next Rwanda will be force, not the prospect that, somewhere down the line, the criminals may find themselves indicted for war crimes. Imagining otherwise is like supposing that street thugs will decide not to commit a mugging or a rape because of the distant possibility they may go to jail.
There is something hubristic about the effort to graft a system of international law onto the tragedies of faraway peoples. I say faraway because, of course, none of the main nations backing the International CourtóU.S. anxieties to the contrary notwithstandingóreally imagines that its own citizens will ever stand in the dock. Would an international legal system have been the right response to the American Civil War, to use an obvious example? And, if the answer is that Sherman's war crimes in Georgia were of secondary importance to the need to break the will of the Confederacy, then why should the same defense not be available to the Rwandan Patriotic Front, which committed war crimes in a just war against its genocidal enemies?
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.
In reality, it is the court that is the counsel of despair. Its rationale derives from the hope that, somehow, the law can rescue us from situations in which politics and statecraft have failed. But the law can never do this, and this time will be no exception. With the best intentions in the world, we are establishing one more institution that, like the United Nations, is sure to be unable to meet the high hopes that attended its creation. This is bound to createóas the U.N. itself has doneónot hope, but disillusion.
David Rieff is the author ofSlaughterhouse: Bosnia and the Failure of the West(Simon and Schuster, 1995). From The New Republic (Sept. 7, 1998). Subscriptions: $59.94/yr. (48 issues) from Box 37298, Boone, IA 50037-0298.