Justice Lite

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

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).
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