The prevention of widespread harm in the contemporary world is obviously a difficult practical and moral matter. Effective strategies for achieving preven- tion often seem unavailing, given that violence may take place in areas where state authority is either complicit or ineffective. The question for our purposes is how the ICC as currently structured fits into this context. If it is viewed in terms of ideal justice, the fit is, we have argued, uneasy. The question this raises, however, is whether the best response is simply to continue to recognize that the fit is uneasy or, alternatively, to change or abandon the ICC’s structure.
In this final section, we sketch out the context for this discussion, and suggest that the current approach should be caution: caution in use of the ICC, in hopes for what it can achieve, and in any belief that ICC justice is likely to contribute to an overall reduction in the burden of violence in the world today.
The other traditional options that have been employed to halt mass violence have, at best, a troubled record of effectiveness. These options come in two broad categories: sanctions or military intervention. Sanctions are usually the preferred option, at least in the early stages of mass violence, as a means to end the violence without extending the loss of life to interventionist forces of other countries. Sanctions often include the imposition of restrictions on trade, travel, financial transactions, and investment on the offending state. The working assumption is that sanctions will not be lifted until the harm ends, unless the sanctions are judged to cause additional harm without reducing the mass violence. One challenge of sanctions is their effectiveness – which may depend on the offending state’s reliance on foreign resources and the willingness of the world community to adhere to the sanctions regime. Another challenge is the distribution of burdens that may result from sanctions, if members of the population in general are less able to protect themselves from the effects of shortages than are elites who are complicit in the policies giving rise to the sanctions in the first place.
Military intervention is the other main option that may be undertaken either independently or in conjunction with sanctions. Military intervention
International Criminal Courts, the Rule of Law, and Prevention of Harm 69 may follow the imposition of sanctions, if the sanctions are judged not to be working. Military intervention may be undertaken by a neighboring state, an association of nearby states, a defensive alliance such as the North Atlantic Treaty Organization (NATO), the UN, a superpower, or some combination of these forces. The problem of deploying troops is that it may be belated for it is not predictable when military intervention will be undertaken or whether it will lead to greater violence.
In contrast, the ICC was established fairly recently. Its operation depends to a large extent on whether a sanctions regime or a military intervention has led to the capture of persons accused of mass violence. The ICC may allow us to focus on the crimes of a few individuals, but to capture such individuals usually requires extreme pressure on a nation’s population. For example, the ICC Prosecutor, Luis Moreno-Ocampo, has expressed enormous frustration about the inability of the ICC to arrest and prosecute any of those individuals accused of crimes against humanity in Darfur.31It took significant investigative efforts – and the accused’s trip to Belgium – for the arrest in May2008of Jean-Pierre Bemba, who is accused of crimes against humanity in the Central African Republic.32It is difficult to sort out whether sanctions, military intervention, or the quality of internal politics constrains mass violence. The hope is that, in conjunction with other strategies, the ICC may help deter the violence, but whether this will actually happen remains unclear.
Moreover, cooperation or encouragement of ICC involvement may itself be a politicized process. Adam Branch, for example, has argued that ICC intervention in the Ugandan case may have served the Ugandan government’s interventionist interests and prolonged conflict in Acholiland.33 Branch doc- uments concerns that the Ugandan government’s decision to refer alleged crimes of the Lord’s Resistance Army (LRA) to the ICC sought to advance its interests in entrenched power and to deflect attention from the Ugandan government’s own activities. Instead of furthering peace, Branch contends, the ICC’s intervention took place over the protests of Acholi peace activists and may have made it more difficult to encourage cessation of hostilities by the LRA. Calling on the ICC enabled the Ugandan government to gain legitimacy and depoliticized the Acholi victims, according to Branch.
31“ICC Prosecutor: Darfur Is a Huge Crime Scene.” See http://www.icc-cpi.int/press/
pressreleases/375.html (accessed June12,2008).
32“ICC Arrest Jean-Pierre Bemba – Massive Sexual Crimes in Central African Republic Will Not Go Unpunished.” See http://www.icc-cpi.int/press/pressreleases/371.html (accessed June 12,2008).
33Adam Branch, “Uganda’s Civil War and the Politics of ICC Intervention,”21(2)Ethics&
International Affairs(2007),179–98.
70 Leslie P. Francis and John G. Francis Bickerton, Cunliffe, and Gourevitch suggest that the more we arrogate power to a global agency, the more we may diminish the importance of politics within states by shifting tough decisions to external decision makers that have limited powers and (because of their distant interest) generate local expectations that cannot be met.34If we focus on selective judicial intervention (say, in the aftermath of a civil war) that is driven by a commitment to bring individual justice, we may reinforce the need for recurring intervention that results in porous borders and erratic domestic politics. The larger goal should be how we foster nonlethal domestic democratic politics.
As a matter of partial compliance theory, the question is whether either the limits on the ICC or the use of the ICC itself can be defended in light of these political difficulties in achieving prevention. The rule-of-law limits restrict possible prosecutions, often leaving out known offenders for whom proof of linkage to particular criminal events is difficult to achieve. Sovereignty limits isolate atrocities outside the time and place restrictions of the ICC. If these limits support the thought that something is being done, while creating struc- tures of impunity, the limits would appear problematic in partial compliance contexts.
The world of the ICC is, by its own definition, the world of a criminal court with the standards and traditions of criminal justice – which is, as we understand it, a world of justly punishing individuals who have committed genocide, crimes against humanity, and violations of the laws of war. It is not clear to us, however, that traditional arguments for criminal law – that is, special or general deterrence – can be achieved. The conditions and opportunities that lead people to commit atrocities are often distant in time, in space, and in the probability of getting caught. Deterrence requires that courts move nimbly in bringing such individuals to trial. Rule-of-law limits may preclude this possibility.
In those states in which there has been intervention, we see criminal law as not only about justly punishing individuals who committed the crimes but also about giving voice, support, and recognition to the victims. In recent years, there has been increased interest in promoting confrontations between perpetrators and victims that can result in building the future by understanding the past. This interest is understandable, but it may not be sufficient if sustained attention is not given to the hard politics of negotiating what that future will look like. In short, prevention needs to embrace that groups and individuals
34Christopher Bickerton, Philip Cunliffe, and Alexander Gourevitch, eds.,Politics Without Sovereignty: A Critique of Contemporary International Relations(New York: UCL Press, 2007).
International Criminal Courts, the Rule of Law, and Prevention of Harm 71 in the country have the space, the encouragement, and the local imperative to find a political resolution.
To be sure, courts such as the ICC may be seen as serving functions other than general or special deterrence. The ICC may be viewed as a rhetorical device, expressing international condemnation of horrific events. Relatedly, it may serve as an example for domestic legal systems. In addition, the Rome Statute itself contemplates the establishment of a fund for victim compensa- tion, even when alleged perpetrators are not successfully brought to justice.35 Whether these functions contribute to the goal of harm prevention, or whether they are sufficient in themselves to justify the establishment of the ICC, are complex empirical and normative questions that we do not address here.
Ours is not an argument against the use of criminal courts to resolve the fate of the leaders who have caused such devastating harm. Rather, we question whether, when nonlocal courts are brought into the play, the attention shifts from the broader social, economic, and political context to that of the effort to bring to justice selected individuals who committed criminal acts. The underlying context in which these crimes took place may be postponed or ignored, thereby running the risk of recurring lethal conflicts. This is the risk of the ICC. If the ICC is not evaluated in partial compliance terms, this risk may be imperfectly understood. Evaluations of the ICC in purely ideal theory terms – such as that the ICC will “bring the guilty to justice” – are thus misguided and potentially misleading.
35Statute of Rome, Article79.
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