Amrita Kapur’s posted reply to Ken Anderson’s “The Rise of International Criminal Law” and myself makes a series of nuanced points, many of which I appreciate. I am unsure how deep our disagreements actually run, but because some of her language indicates an affinity for views of which I am critical, I will take the opportunity to expose some areas of sharp disagreement – if not actually between myself and Kapur, then surely between myself and others who highly tout the project of international criminal justice.
Kapur’s post acknowledges that “trials are inherently flawed as a process to achieve the noble purposes ascribed to the ICJ project.” She nonetheless insists that justice “must surely include, if not focus on, justice for the wronged parties, the victims, and the society that must build peace and reconciliation.” This statement is open to varying interpretations, but to sharpen the discussion, I will provisionally interpret it to make two typical assertions with which I take issue: first, that an authoritative condemnation of perpetrators is an essential element of post-conflict efforts to reaffirm the dignity of victims; and second, that peace and reconciliation are necessarily predicated on – and therefore, perhaps, should be held hostage to – the authoritative triumph of a particular moral judgment about the acts of conflict participants.
If one has in one’s mind’s eye morally unambiguous conflicts, where one side used atrocious means in the service of a manifestly evil end, both of these assertions seem plausible. Insofar as the ICL project limits its ambitions to such circumstances – and there are enough of these to keep us busy – it has my full support. But many armed conflicts involve, on one or both sides, informed persons of good faith and sound reason who endorse the use of ruthless methods for what they regard as an indispensable greater good. Ruthless acts have often been committed, not because of a “culture of impunity,” but because actors (and their constituencies) believed, non-pathologically, that presumptively wrongful acts were justified in the effort to avert what they regarded as a morally worse overall outcome. (I regard the Israeli-Palestinian conflict as quintessential in this regard, but even the question of which conflicts fall into this category turns on one’s political attitudes.)
Among the conclusions that follow from this observation is that the potential target list for the ICL project is too rich. The problem is not simply the danger that the typically-hoped-for expansion of domestic-court invocation of universal jurisdiction will produce frivolous prosecutions or legally unjustified convictions. Fully sound cases could, in principle, be brought against a very wide range of actors, and yet in practice, prosecutions will almost always be reserved for the politically unpopular and strategically uninfluential. Read the rest of this entry…