A Court on the Rocks? Responding to the Rough Justice Reviews

David Bosco is Assistant Professor at American University’s School of International service and a contributing editor at Foreign Policy magazine. He is author of Rough Justice and Five to Rule Them All: The UN Security Council and the Making of the Modern World.

I am grateful for the opportunity to respond to the reviews of Rough Justice that James Stewart has so skillfully assembled. The reviewers bring to their task a daunting level of knowledge, experience and insight, and I will endeavor to respond as thoughtfully as they have commented. As I read them, the reviews tended to fall into two broad categories. Several discussed the evidence that I presented of “mutual accommodation” between major powers and the court and focused on what this says about the court’s trajectory. Others argued incisively that my focus on the relationship between the major powers and the court ignored important facets of the institution’s performance. I will address these broad critiques in turn.

Alex Whiting, Sarah Nouwen, David Tolbert, Aryeh Neier, and Judge Goldstone mostly agree with the picture of the court’s first decade that I have presented, but they differ markedly on the importance and implications of the mutual accommodation. Whiting and Nouwen are perhaps furthest apart. For Whiting, it is not surprising that the court would take into account geopolitical realities as it selects situations to investigate. While acknowledging concerns about the propriety of doing so, he notes that a prosecutor who ignores strategic realities “risks spending precious resources on efforts that will fail, exposing the fragility and weakness of the institution and…potentially undermining its legitimacy.” A wise prosecutor, he suggests, really has no choice but to strike a balance between pragmatism and principle. Nouwen sees the prosecutor’s choices in a much darker light. “If one considers equality before the law as an element of justice, then the current practice [of avoiding clashes with major powers] may do more harm than good.” Unless the ICC deviates from its path, her analysis suggests, the whole project may be tainted.

For all their differences, I think these commenters all acknowledge that the court’s success will depend on much more than its standing with major powers. As Tolbert argues, maintaining good relations with powerful states “is not enough for the Court to begin to fulfil its mandate and deliver on its promise.” I agree with this point; my focus on the relationship between these powers and the courts should not obscure the reality that the court’s legitimacy and, ultimately, its effectiveness are impacted by many other factors. Some of these factors can clearly come into tension. Nouwen is no doubt correct that a too-accommodating relationship with the powerful could sap the court’s reputation elsewhere. I end up more sanguine than she does, although perhaps not for encouraging reasons. I believe the international community has a fairly high tolerance for double standards in multilateral architecture. The failure of the Kenyan-led bid to incite a large-scale African withdrawal from the court suggests that states are unlikely to abandon the institution even when they are seriously dissatisfied with aspects of its performance.

The question that I ended the book with, and which these commenters have insightfully elaborated on, is where the court now stands. Is it navigating successfully through a turbulent atmosphere or is it on a dangerous course? In thinking about the complex trajectory of this fragile new court, we are not entirely without historical guidance. Tolbert and Judge Goldstone appropriately urge consideration of how other international—and even national—courts have maneuvered through similar pressures. The ICC may be a unique creation, but other judicial institutions have encountered similar dilemmas. Many of the commenters are far better equipped than I to assess the lessons of the ICTY for the ICC. But as I see it, the ICTY is a mostly encouraging precedent. As Neier points out, it too struggled for relevance in its early years and at various points appeared to be slow, inefficient, and toothless. But the tribunal has concluded with a very impressive record of convictions against individuals from all sides of the Balkans wars. The ICTY’s failure to seriously investigate charges against NATO does not undermine its record. As Goldstone points out, there were legitimate grounds for its prosecutor not to pursue any cases against the NATO countries related to the Kosovo conflict. Carla del Ponte noted that her enquiry into NATO conduct brought her to “the edge of the political universe in which the tribunal was allowed to function.” But acknowledging that reality does not imply that there were serious crimes by NATO left unprosecuted. Over time, the ICTY managed to generate substantial political support. While the relevant major powers—the leading European states and the United States—waxed and waned in their enthusiasm for the project, they ultimately exerted considerable pressure on Bosnia, Croatia, Serbia, and Kosovo to comply with its rulings and to deliver those indicted. I think the ICC would be quite pleased if it could move onto the ICTY’s trajectory.

The lessons of the International Court of Justice are more complex. As Tolbert reminds us, that court has endured up and downs since it began operating after the Second World War. But he argues that it has recovered from some earlier missteps and “now has a full docket.” This is too quick a conclusion; the ICJ is also peripheral to most major disputes and has not played the role its founders intended. Many of its contentious cases involve situations in which states have already decided that they want a dispute resolved. What’s more, very few of its cases involve major powers. Of the permanent Security Council members, only Britain accepts ICJ compulsory jurisdiction (and with a raft of caveats). France withdrew from the court’s jurisdiction after the court ruled that its nuclear testing was illegal. The United States followed suit after Nicaragua sued it in the mid-1980s. As Eric Posner has argued, the major powers have decided not to use the court proactively. China has never been involved in a contentious case before the court. Fewer and fewer international treaties provide for ICJ jurisdiction. One could then sketch a much gloomier picture of the ICJ than Tolbert does: it can be seen as an international court that dared to challenge the powerful and has, largely as a result, been relegated to the margins of world politics. I don’t contend that this is the only way of seeing the ICJ, but I believe its current position is less robust than Tolbert suggests.

Viewed darkly, then, the ICC is caught between two unpalatable options. It can continue with its pattern of marked caution (particularly as regards situation selection) and risk losing support in much of the world. Or it can throw caution to the wind and risk confrontations with powerful states that may leave the institution crippled and humiliated. Is there a viable third path? Can the court carefully but firmly move into areas outside of the major-power comfort zone? The prosecutor will soon have the opportunity to test its boundaries. As Neier points out, the mutual accommodation I described in the book is being tested in new ways. The Palestine situation is now on the prosecutor’s plate, and she will soon face the very difficult choice of whether to open a full investigation there. Meanwhile, there are signs that the prosecutor’s temporizing regarding the Afghanistan and Georgia situations may soon end. In the OTP’s last report on the status of preliminary examinations, it sent strong signals that it is moving toward a decision point in both situations. It is conceivable, therefore, that the prosecutor may soon have investigations open in at least two of these countries.

These investigations could put the OTP in the kind of faceoff with major powers that it has to this point avoided. There is some preliminary evidence that the ICC is holding its own in some early skirmishes with major powers. The OTP reopened a preliminary examination of British conduct in Iraq, and in so doing it forced the UK authorities to examine much more thoroughly its national accountability procedures. And as I’ve reported in Foreign Policy, the prosecutor’s office and the United States are engaged in a quiet dialogue about U.S. detention practices in Afghanistan. In both cases, it is possible to argue that the court is having an impact on the practices of powerful states. As Whiting points out, the degree of attention and concern that the court’s work generates in even major capitals suggest the court’s relevance, not obscurity. If the ICC is encouraging more thorough accountability in even powerful governments, that would be a notable achievement, and a boost for the vision of “positive complementarity.”

But encouraging national accountability won’t always be the endgame. And the looming choices that face the prosecutor bring us back to the question of whether it is wise and appropriate for the prosecutor and the court to factor geopolitics into its decisionmaking. As Whiting correctly points out, I do not directly address in the book the normative question of whether the prosecutor should act strategically. I saw the book’s purpose as analyzing and describing rather than prescribing. But I do think the court’s best interests are served by beginning to push out of the zone in which it has been operating. The prosecutor’s decision to delay an Afghanistan investigation as long as she has is particularly difficult to defend. Temporizing too long on opening a full investigation in Palestine would also invite accusations of politically-induced timidity.

Kamari Maxine Clarke and James Stewart are less interested in the ICC’s dilemma of managing relations with powerful states than in what is missing from my account of the court. Both see deeper realities mostly untouched by the narrative in Rough Justice. For Clarke, the specter of neocolonialism hangs over the court. She points out that many developing states joined the court in circumstances that, if not coercive, at least limited their options. Clarke is no doubt correct that the decisions of what to criminalize involves political and ethical choices, and I did not mean to suggest otherwise. She gently chides me for not addressing more directly the backlash in parts of Africa against the court. In part, this criticism dovetails with Nouwen’s point that in cultivating relations with major powers (and, above all, the United States), the court may itself serve to reinforce existing power disparities. In part, this criticism is fair. I certainly could have spent more time addressing the consequences of the mutual accommodation process I describe. But both in my descriptions of the Rome Conference dynamics and the Kampala debates on aggression, I do highlight the tension between those who saw the court in large part as a restraint on the powerful and those who envisioned it mainly as an instrument for dealing with weak and failing states. As I see it, my focus on understanding and documenting major-power relations with the court—with all the embedded hypocrisies—facilitates rather than impedes the perspective that Clarke offers.

Stewart’s concern about perspective missing from the book is more specific: the ICC’s failure to pursue evidence of crimes by economic players. I have no doubt that economic interests—including foreign economic interests—are important in many situations that the court has investigated. I am less certain than Stewart that these cases could be easily prosecuted but also acknowledge limits to my expertise in this area. Given the crimes provided for in the Rome Statute, it seems significantly more straightforward to prosecute a militia commander for war crimes than, say, to pursue officials from a company involved in extracting coltan from the region. The record of the ad hoc tribunals that has shaped case law on international criminal responsibility also pushes the ICC toward the responsibility of military and political leaders and away from that of economic actors. Whether or not recent caselaw on complicity will work their way into ICC charging decisions remains to be seen.

But my decision not to focus on these possible crimes ultimately did not rest on an assessment of their legal viability. My admittedly narrow focus was on the relationship between major powers and the court, and I worked largely on the basis of what court officials and those diplomats identified as key issues in the relationship. The many individuals that I interviewed for the book simply did not identify these potential economic cases as being a central part of the story. I saw no evidence, for example, that the prosecutor was pressured not to pursue cases against foreign business interests or that major powers were concerned about the court moving in this direction. In short, I do not deny that the dynamic Stewart presents is an important one. But it was a story that fell outside the scope of my project.