Justice Lite

A war crimes court Hitler would've loved


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Among most of those who have been horrified by genocide in Rwanda, ethnic cleansing in Bosnia, and all the other crimes of war since the end of the Cold War, an ironclad consensus seems to have developed that the International Criminal Court is the best, and perhaps only, hope for bringing the architects of such horrors to account. Thus, while the court that was created by a treaty signed in Rome on July 17 did not meet its proponents' highest expectations, the fact of its creation is being hailed as a great victory for humanity.

'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.