The International Criminal Court and Power Politics

The recent appearance on Lawfare of my American University colleague David Bosco (in the roundtable on US Navy operations in the South China Sea) prompts His Serenity to fix his lapse in failing to mark Bosco's outstanding 2014 book, Rough Justice: The International Criminal Court in a World of Power Politics (Oxford UP 2014).

His Serenity is particularly chagrined, because he regards Rough Justice as the best and certainly the most clear-eyed assessment of the ICC offered to date. Anne-Marie Slaughter is quite correct in her book jacket praise that "David Bosco has produced the first balanced and sophisticated assessment" of the ICC's first decade; likewise Jack Goldsmith in his praise for the book calls it the "most realistic and insightful book ever written on the ICC."

What sets Rough Justice apart from the many, many academic tomes on the ICC and international criminal law and tribunals is its straight-up willingness to examine the ICC as a political as well as legal institution, and a legal institution that exists within the world of great power politics. We can be more specific, and blunt, than that, however. What sets Rough Justice apart from nearly all the academic competition is that it does not engage in "Whig history." It does not give an account of the ICC that has a teleology built in from the beginning, an end-point about the inevitable, historically necessary triumph of the institution as part of a general triumph of liberal internationalism, global governance, or global constitutionalism.

Given (in my view at least) the less and less propitious circumstances for global constitutionalism amidst the increasing jostling of the great powers, such a realistic, rigorous analysis as Bosco's can only be of help to an ICC seeking to steer its way in a world that is increasingly competitive rather than cooperative. Strategists on behalf of the court will not learn much, after all, from accounts of the ICC pre-committed to announcing its success as an institution of global governance; on the contrary, they would learn considerably more by considering the conditions that would signify the ICC's failure.

The court came about in large part through two animating political visions in ascension in the hopeful days of the 1990s - first, that it would nestle in the warmth of an emerging global order in which it would play the judicial role for adjudicating individual culpability; and, second, still more politically reaching, that as a judicial body armed, so to speak, with the sword of universal justice and the shield of truth, it would be a vanguard institution in establishing that new global order. Whatever the merits of those visions fifteen or twenty years ago now, neither frankly has much to do with the world in which the ICC exists today and is likely remain the environment in which it exists over the next several decades.

Those are my views, of course; what conclusions does Rough Justice reach? It's a complex picture, Bosco says, for the ICC and the broader project of international justice:

Supportive states and international civil society actors have invested considerable time and resources in the court. The legalist perspective that they have often championed demands that legal considerations trump political ones. That orientation has difficulty accepting the outcome of a politically constrained court. From this perspective, evidence that political power is even indirectly influencing the court's work should be damaging to the institution. There are signs that the court has already begun to experience that damage. The backlash in many African capitals after President Bashir's indictment marked the beginning of an ongoing challenge to the court's legitimacy ... It will not be surprising if the world is willing to tolerate an international justice system constrained by major-power interests ... Double standards are deeply rooted in existing global governance structures, and the new court appears more likely to reflect those than to alter them .... The court's first decade suggests that it may be possible to design international institutions around power - but not to escape it.