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.

David Bosco has written a wonderful book. Rough Justice reveals past events, distant and less so, that will be entirely new to even seasoned experts in international criminal justice. Where readers are familiar with the controversies he addresses, Rough Justice provides far greater detail than most were aware of. All of this information is masterfully put together in an elegant narrative, and couched within a conceptual framework that helps orient thinking about the relationship between the International Criminal Court (ICC) and Great Powers. The book will, no doubt, be read and reread by broad audiences as this ambitious experiment with supranational criminal justice unfolds over the coming decades.

At the same time, his book will likely serve as a convenient proxy for the criticisms of all those who hoped international criminal justice might be other than it is presently. In this vein, my reaction is more a complaint against the institution he describes than his treatment of it.

To my mind, there are all sorts of reasons to celebrate the arrival of the ICC, and much need to think creatively about strategies for overcoming its obvious shortcomings. I am particularly concerned by the double standards in enforcement Bosco seizes upon, and the injustice(s) these entail. Unlike other critics, I also believe that incremental acculturation is possible, whereby national courts come to take up the slack where the ICC’s power peters out. In other words, I believe that to some extent, critics of the ICC need to take Kathryn Sikkink’s “justice cascade” more seriously, and look to national systems to produce more of the distributive equality they seek. The ICC plays an important part in this cultural shift, such that its efficacy cannot be measured by referencing the impact or politics of its own trials alone. I am, for example, currently writing about the Blackwater trial that took place in Washington D.C. this past summer, in part because I intuit that, culturally speaking, this highly improbable case cannot be neatly separated from the massive rise of criminal accountability for wartime atrocity over the past two decades.

This said, the Blackwater trial does point to something highly regressive about the brand of international criminal justice on offer in the ICC’s own courtrooms. For all the reasons to celebrate the great leap forward in supranational criminal accountability over the past years, there is something strikingly backwards in all this progress too, which does not register in Bosco’s excellent book. The responsibility of businesspeople for atrocity was front and center at Nuremberg, but mysteriously, it has vanished since.

To begin, let me dispel the common misperception that companies are necessarily passive auxiliaries in bloodletting that is not of their making. In 1932, the chairman of the chemical company IG Farben allegedly paid a substantial bribe to have Hitler installed as Chancellor. Even the Nuremberg judgment itself indicates “in November 1932 a petition, signed by leading industrialists and financiers, had been presented to President Hindenburg, calling upon him to entrust the Chancellorship to Hitler.” Even before the end of the war, the Allies were adamant that if there were trials, international criminal responsibility would reach out and touch businesspeople, too: attempts at a second Nuremberg trial for just “industrialists” were only narrowly defeated. When these trials took place within zonal trials, a relatively large number of businesspeople were tried and convicted for pillaging natural resources and complicity in atrocities.

Why not now? There is a veritable flood of information about corporate implication in the very African atrocities the ICC is focused on. Security Council appointed panels of experts have documented connections between commercial actors and atrocities in modern African conflicts over which the ICC enjoys jurisdiction, NGOs like Global Witness and Human Rights Watch have mounted detailed investigations into legally comparable corporate war crimes in the very regions ICC defendants come from, Hollywood makes movies like “Blood Diamonds” and “Lord of War” to bring these realities to a wider public, all range of academics point to the perversity of the Resource Curse, the Alien Tort Statute cases against corporations nearly fall over entirely leaving quasi-total corporate impunity globally, the UN Special Representative on Business and Human Rights describes international criminal law as “[b]y far the most consequential legal development” in the field of business and human rights, but the ICC rests idle.

In fairness, Moreno-Ocampo did issue warnings about the serious possibility of these sorts of cases during his time as the ICC’s Prosecutor. In 2003, he reported that “there is general concern that the atrocities allegedly committed in [the DRC] may be fuelled by the exploitation of natural resources and the arms trade, which are enabled through the international banking system.” Later he reiterated that “various reports have pointed to links between the activities of some African, European, and Middle Eastern companies and the atrocities taking place in the Democratic Republic of Congo… Their activities allegedly include gold mining, the illegal exploitation of oil, and the arms trade.” The statement then cautioned that “[t]he Office of the Prosecutor is establishing whether investigations and prosecutions on the financial side of the alleged atrocities are being carried out in the relevant countries.” In a conference I organized in The Hague in 2010 together with Larissa van den Herik and the Open Society Justice Initiative, Moreno-Ocampo again expressed a desire to move these cases forward.

The failure to make good on these promises, and their absence from Bosco’s otherwise wonderful text, leaves something of an elephant in the room.

One does not need to travel all the way to Afghanistan or Georgia to observe the political double standards Bosco sees animating the ICC’s operation in action. At the same time that the ICC has indicted Omar Al-Bashir and Jean-Pierre Bemba with pillaging other types of property from Sudan and the Central African Republic, it has turned a blind eye to the mountain of evidence that foreign companies were responsible for precisely the same war crime in the same region, with far worse consequences for local populations. In private conversations with ICC prosecutors, they either claim that they wish to focus on “just the basics” or that “these sorts of cases will be exceptionally difficult to prove.” With respect to the former, I am not convinced that the “basics” preclude addressing one of the means or motivations for terrible bloodshed. As for the latter, I have to doubt the veracity of the claim, partly because Dutch prosecutors, who have brought these cases, report that acquiring actionable evidence against businesses is often easier than in regular cases involving political or military leaders.

As I point out in a separate blog with the ICTJ today, trying these sorts of trials may actually make the Prosecutor’s explanation for her unique focus on Africa more plausible. Presently, the Court justifies its singular geographical focus by citing the number of victims involved in African conflicts. In philosophy-speak, however, the underlying argument is unsound—it assumes that only Africans are responsible for atrocities in Africa. That assumption is patently false. Aside from overlooking the tremendous variety of sources I reference above, it also plays down the long history of foreign corporations plundering African resources that dates to colonialism and the equally longstanding tradition of supplying weaponry to African conflicts without question. Even leaving these two sectors to a side momentarily, what of the history of offending by private military in Africa, à la Blackwater in Iraq more recently? If the prosecutor investigates foreign businesspeople implicated in African atrocities, she could correct for the fallacious assumption in her office’s poor explanation, distance her institution from the history of colonialism, and partially diffuse the African Union’s critique of the ICC without focusing on alternative geographies.

Her response would become: “when western nationals are implicated in atrocities of this magnitude in Africa, we hold them responsible, too.”

This brings us full circle, back to national trials. By even gesturing at the possibility of these sorts of cases, Bensouda could alert states and their publics to the need to prosecute their own businesspeople in national courts, in appropriate cases. In so doing, she would be nurturing the cultural shift I point to at the outset; gently instigating a kind of “justice cascade” for a set of actors that have proven spectacularly successful in insulating themselves from modern international criminal law. These are not small peripheral issues, they are often important factors in reproducing atrocity, have powerful symbolic resonance, and therefore go to the heart of international criminal justice’s legitimacy. Thus, I would have been all the more enamored with David Bosco’s excellent book if it had also announced the elephant in the room, observed the curiously regressive character of contemporary international criminal justice on this score, and contributed to shifting public opinion regarding commerce, atrocity and accountability.

David Tolbert has served as president of the International Center for Transitional Justice since 2010. Previously he served as registrar (assistant secretary-general) of the Special Tribunal for Lebanon and prior to that was assistant secretary-general and special expert to the United Nations secretary-general on United Nations Assistance to the Khmer Rouge Trials. From 2004 to 2008, Mr. Tolbert served as deputy chief prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY).

David Bosco’s Rough Justice: The International Criminal Court in a World of Power Politics is certainly an interesting and sometimes riveting read, even to someone who knows the story well. He clearly had considerable access to the principal actors, both internal and external, in the continuing drama around the International Criminal Court (ICC) as well as the trials and tribulations of the ICC’s early years.

As a matter of analysis, I find quite useful Bosco’s conceptual framework for examining the development of the ICC’s relationships with key state powers. In particular, his description of the United States’ up-and-down (or rather down-and-up) approach to the ICC fits well with his framework of, e.g., marginalization, control, acceptance. While Bosco devotes much of the book to the signaling between the ICC (primarily the ICC Prosecutor) and the United States, he does address the Court’s relationships with the other permanent members of the UN Security Council (P5) and other key states to good effect. Thus, on its own terms, the book contributes to our understanding of the relationships – missteps, mistakes and all – and the political dynamics between the Court (primarily the Prosecutor) and key states, mainly the US, and how current accommodations were reached.

While Bosco tells this story well, his framework and approach have their limits. The support of major powers for an international body, such as the ICC, particularly one that has the capability to touch state power so directly, is important perhaps even a sine qua non to the success of such a body. Nonetheless, for the ICC to make a longer-term difference, it will need to rely on the soft power of its own credibility, legitimacy and respect. These qualities go well beyond state diplomacy or being in the good graces of the great powers. In some (if not many) ways the involvement and association with, much less the accommodation of, great powers can have a counteractive effect, as the Court may be portrayed by its enemies as a tool of the great powers or, more generally, of the West (or the western powers). Even though it is a smear, the rhetoric that the Court is acting as a cat’s paw for western powers in the case of Kenya and beyond has clearly been effective. Thus, today the challenge facing the Court is less about acceptance by the great powers and more about finding ways to strengthen and build its credibility and legitimacy. Ultimately, a judicial institution must have credibility and legitimacy, or perhaps more colloquially – respect, to carry out its job effectively. This means not only being seen as independent of political control but also developing credibility with those affected by its judgments—above all, victims and affected communities—and international civil society, including scholars, academics and journalists.

The question then is how does the Court build the credibility and legitimacy it needs to do its job more effectively and make a difference in a world full of atrocities? In this respect, there ought to be both short- and long-term strategies. With regard to the latter, there are some pertinent examples of courts and tribunals that have recovered from initial difficulties and self-inflicted wounds and examples of some that arguably have gone the other way. The International Court of Justice lost considerable credibility, and even went some years without any cases, following its mishandling (to put it politely) of the Southwest Africa/Namibia cases; but it subsequently recovered and now has a full docket. On the national level, the US Supreme Court went badly off the rails a number of times with decisions such as the Dred Scott case and Plessy v. Ferguson but re-established its reputation in the area of civil rights with Brown v. Board of Education, among other notable cases. Arguably, the International Criminal Tribunal for the former Yugoslavia (ICTY) has gone in the opposite direction, establishing a significant amount of credibility with its handling of a number of earlier cases, including Tadić, only to run amok with its controversial and questionable decisions in Gotovina and Persić (in the latter with contradictory decisions from the ICTY Appeals Court on the same substantive issue).

If we examine these and other examples closely, it is clear that the qualities and abilities of the judges are key to establishing the credibility of a judicial institution. Indeed, one can argue that the great courts have competent and often great judges. Bosco himself alludes to the barriers to having a stronger group of judges when he notes ICC judges who came to office through apparent horse-trading, with limited (and in one case no) judicial qualifications or training; there are other cases of woefully underqualified judges being elected primarily because they come from important countries. Another area of contention that has hampered the ICC is procuring intelligence information. While these disputes are no doubt complex, they could have been addressed with a bit more judicial creativity (the ICTY’s Rule 70 approach comes to mind) in a manner that would contribute more strongly to the cause of justice.

Bosco notes a number of issues that plagued the Office of the Prosecutor. One was the propriety of using intermediaries in cases investigated in the Democratic Republic of the Congo, which led to serious questions about the collection of evidence. A second was the lack of a tracking team for locating fugitives, which had proved very useful at the ICTY. A third was not putting senior trial lawyers in charge of investigations (apparently this recently has changed), which at the ad hoc tribunals considerably strengthened investigations and indictments, an area where the ICC has struggled. These were all elements that either undermined confidence in the Office of the Prosecutor or, arguably, hampered its efficiency.

The Registry also has a number of practices and inefficiencies that are so widely recognized that the current and relatively new Registrar undertook a significant project, a ‘ReVision’ (of the Registry), the title of which speaks for itself.

One can identify other elements of ICC practices ripe for reform and change, as reflected in an extensive and probing recent report by a group of experts. There are no magic bullets, but steps can be taken to increase the credibility of the institution as whole.

So, while Bosco is right in asserting that the practice of high politics is an important and essential part of the ICC and that its leaders, particularly the Prosecutor, need to manage those relationships (particularly the signaling that goes back and forth), this is not enough for the Court to begin to fulfill its mandate and deliver on its promise. In my view, this is the key point: it is one thing to be credible to governments, but another to move beyond concerns about the P-5 and other important powers to demonstrate credibility to victims and affected communities and ultimately to build credibility among the international public.

Sarah Nouwen is a lecturer in law at the University of Cambridge, Deputy Director of the Lauterpacht Centre for International Law and fellow of Pembroke College. She is the author of Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (Cambridge University Press, 2013)

David Bosco’s Rough Justice: The International Criminal Court in a World of Power Politics is not just fluently written and rich in original interview materials. It also makes an important argument: the relationship between the International Criminal Court (ICC) and the world’s most powerful states has been one of mutual accommodation. In Bosco’s terminology, major powers may not have ‘marginalised’ the Court (or, in the case of the United States: it has shifted away from doing so), but they do to some extent ‘control’ the Court. They do so as members of the Security Council, shaping the Court’s docket by referring situations to the Court without providing additional funding, thereby absorbing the Court’s capacity for the situations they consider warranting investigations; through signalling their preferences and dislikes in informal meetings with ICC officials; and by providing information and other forms of assistance in situations where they are happy with ICC involvement, and withholding it where they are not. The ICC, for its part, does not take direct instructions from the major powers, but has internalised their wishes in its decision-making processes, particularly when deciding whether to open an investigation. It has not challenged the ways in which the Security Council has attempted to shape the Court’s jurisdiction, even where resolutions tried to exclude people from the Court’s personal jurisdiction, and it has not opened investigations in situations where the major powers would object. As a result of this mutual accommodation, the major powers have not merely tolerated the Court but, in some specific instances, even actively supported it.

The argument is important even if not surprising. To anyone who has observed the actions of the ICC over the past ten years it seems evident that the Office of the Prosecutor (OTP) has opened investigations only where the major powers have given a ‘no-objection’ indication (eight African states), while it has taken no action beyond a ‘preliminary examination’ where the major powers have great interests (for instance, Afghanistan, Colombia, Georgia, and now, Palestine). It also comes as no surprise to scholars participating in conferences during which diplomats representing the major powers (in fact, mostly the US) signal to ICC judges on the front row of the same audience how the ICC should act—posing rhetorical questions that require no answer from the academic panel, but follow-up in practice. It comes as no surprise to attendants of the annual Assembly of States Parties, where the US, not a state party, has a bigger representation than many a state party. And it comes as no surprise to those who frequent diplomatic receptions in The Hague, where ICC officials mingle freely with European and US representatives.

The argument is important because of the way in which Bosco makes it. First, it is common for this argument to be made by observers, only to be contested by Court officials who insist that the current distribution of ICC activities around the world is the result of the pure application of law. Having extensively interviewed ICC officials and major-power representatives, Bosco, however, deploys his interview material in such a way that it is almost as if the officials themselves are making his argument for him. In the interviews, some court officials seem to express a sense of pride in their political savviness and satisfaction with their ability to placate the United States. As Bosco also points out, they often stress, in the same breath, their legal independence as well as their political usefulness. In this sense, the book reads as an inadvertent ‘coming out’ of a court that reveals its political nature to a world that had known all along.

Secondly, Bosco’s book sheds light on the various ways in which this mutual accommodation takes place and shows its nuances. For instance, he distinguishes between the Prosecutor’s great-power sensitive attitude in opening investigations and the bolder approach in selecting cases within those situations. More nuances could be explored — for example, to what extent does his argument apply only to the OTP and to what extent also to the judges? And does his entire argument apply to all nine states that he considers major powers (the P5 + Japan, Germany, Brazil and India)? Has the Court been as deferential to, for instance, Brazil as to the US?

The implications of this important argument are mostly left to the reader to surmise. Bosco seems to end on both a realistic and an optimistic note. Realistic in the sense that he concludes that the Court is more likely to reflect the double standards of existing global governance structures than to alter them. Optimistic in that he argues that other international justice initiatives (among which the post-WWII tribunals and the courts for the former Yugoslavia and Rwanda) were similarly constrained, and yet were celebrated and served as inspiration for the ICC. He concludes that it would therefore ‘not be surprising if the world is willing to tolerate an international justice system constrained by major-power interests’.

There is reason to pause here. Were these tribunals truly celebrated, universally? One could argue that it was not their success, but their major shortcoming — selective justice — that served as inspiration for the creation of a permanent international criminal court with potentially global jurisdiction. Many non-major-power states signed up to the ICC precisely because of its promise of equality before the law: this international institution might be able to do what less powerful states could not do individually, namely hold the more powerful states, through their individuals, to account. Hence the insistence of many developing countries that the Court’s jurisdiction included the crime of aggression, a crime characteristically committed by the more powerful vis-à-vis the less powerful. The other side of Bosco’s argument that major powers control an international court is thus that smaller powers, in particular developing countries, have suffered yet another disillusionment in the emancipatory potential of international law (for other examples of international law’s boomeranging against those states taken by its promise of equality, see Sundhya Pahuja’s “Decolonising International Law”).

The implications of Bosco’s cogent argument are thus potentially much grimmer than he suggests, and many could be mentioned. But let’s focus here on two, namely one related to what the Court cannot do and one concerning what type of justice the ICC actually does. The ICC was established as a permanent international criminal court, complementary to national criminal jurisdictions, to investigate and prosecute international crimes within its jurisdiction with a view to addressing impunity. Pursuant to the complementarity principle, the Court is meant to address impunity in those instances where a case is not being, or has not been, genuinely investigated or prosecuted at the domestic level. One of the key causes of impunity at the domestic level is the pervasiveness of patronage systems, namely systems in which governments obtain loyalty from powerful actors in exchange for arms, government positions, cash, security, and indeed, impunity. In such scenarios, the state is unwilling or unable to call perpetrators to account, leading to an absence of genuine proceedings, and thus to admissibility of cases before the ICC. However, as Bosco’s argument suggests, the ICC itself is also embedded in a de facto patronage network: to some extent it accepts impunity with respect to powers on whose cooperation it depends in order to achieve accountability for others. Consequently, it is not just states but sometimes also the Court that is inactive. However, there is no ‘court of final resort’ to back up ‘the court of last resort’. Some types of impunity thus appear beyond the reach of the Rome Statute.

If justice is interpreted to mean criminal accountability, then the fact that some people are shielded from such justice does not mean that others should or would therefore go scot-free, too (see also the ICTY in Čelebići, para. 618). On that view of justice, a Court subjected to major-power political constraints seems better than no Court: every bit of accountability is welcome. However, as soon as one adopts a more holistic conception of justice, the continued selective operations of the Court are more problematic. For instance, if one considers equality before the law as an element of justice, then the current practice may do more harm than good: material inequality among states leads to de facto inequality among individuals. Moreover, by cloaking that inequality in legal procedures and arguing that all the Court does is follow the law, the Court is effectively affirming material inequality among states, and transforming it into a juridically relevant fact, thus justifying a departure from the principle of equality and legitimising and further entrenching inequality (see, more elaborately, here). That inequality does not merely dictate who ends up in the Court’s detention centre and who does not. It also determines who intervenes where in the world under the legitimising cloak of international criminal justice. Bosco shows how an initially anti-ICC US Government favoured the Court’s intervention in northern Uganda because it provided a hook for more western military involvement in Africa. And the ICC bestows such military operations with legitimacy, sometimes even explicitly. For instance, an OTP official has stated:

“We have our shopping list ready of requests for assistance from the American government … The American government first has to lead on one particular issue: the arrest of sought war criminals. … We need … the operational support of countries like the U.S., to the DRC, to Uganda, to the Central African Republic, to assist them in mounting an operation to arrest [LRA leader Joseph Kony]. They have the will – so it’s a totally legitimate operation, politically, legally – but they need this kind of assistance. And the U.S. has to be the leader.”

Thus, as Adam Branch has observed, ‘the doctrine that some justice is better than no justice can end up not only making justice conform unapologetically to power, but also making justice an unaccountable tool of further violence and injustice’.

Another type of justice negatively affected by the practice of selective criminal accountability is that of distributive justice. As Frédéric Mégret has argued, international criminal justice distributes blame. While in a cosmopolitan vision it does so only among bare individuals, it is in practice also seen to distribute stigma among the communities to whom these individuals belong. With its current focus, the ICC distributes all the blame to Africa. In an attempt to justify this focus, Court officials have painted Africa as the heart of darkness. The OTP, for instance, has stated:

“About targeting Africa. There are 14 accused, all of them are Africans. There are more than 5 million African victims displaced, more than 40.000 African victims killed, thousands of African victims raped. Hundreds of thousands of African children transformed into killers and rapists. 100% of the victims are Africans. 100% of the accused are African.”

By conjuring this bleak image, the OTP not only explicitly justifies its Africa focus. It also implicitly exonerates the rest of the world. The fact that all the attention of the world’s only permanent International Criminal Court is usurped by Africa invariably suggests that the world’s worst crimes and worst criminals reside in and stem from that continent. Crimes committed on other continents, and the role of other actors in creating the conditions for African crimes, thus become officially invisible as a result of the ICC’s averted eye. Selective justice as a result of mutual accommodation between the ICC and major powers thus has unjust distributive effects.

In sum, David Bosco’s argument is more important than his book suggests. For its implication is not merely the obvious one that the ICC cannot overcome all power politics—it is also that in its genuine pursuit to do some justice, it can end up doing some injustice, too.