The Politics of International Criminal Justice 4. Conclusion By taking (more or less) seriously the overarching presence of politics above the workings of international criminal justice and following that hypothesis through, the books reviewed in this essay tread the terrain of what is generally the `repressed' part of the legal narrative. Indeed, the mere suggestion that there is a `politics' of international criminal justice already runs counter to the larger part of international criminal justice's own efforts at self-presentation, as a principally technical-instrumental-oriented enterprise. The move is a welcome and long-overdue one that has the potential to renew interdisciplinary dialogue and raises a number of questions much in need of being raised. If international criminal tribunals have acquired much of the independence that the books reviewed claim they have, then the question deserves to be asked again with the benefit of hindsight: why would states have created institutions that they cannot control and which might even turn against them? Is this a vindication of liberal theory either in its purposive (liberal states willingly dish out bits of their sovereignty for the higher collective good) or providential (liberal states dish out bits of their sovereignty for reasons of liberally constructed interest, but in doing so end up creating a globally optimal result) variants? Or is the argument substantially complicated by factors that are not clearly amenable to liberalism's categories? Arguments can be found both ways, but it would seem that at the very least a thorough mix of liberal legalism and realist interest is what characterizes the emergence and consolidation of international criminal justice towards the end of the twentieth century. Indeed, all attempts at prioritizing one over the other seem destined to fail, as the excluded paradigm comes back to haunt the dominant account. Even after they have been thoroughly hybridised, however, these traditionally state-centred paradigms may miss the more central point that international criminal tribunals are also more generally about the fundamental disruption of many categories of both international law and international relations: the emergence of an ubiquitous civil society, the rise of the media, or the reduction of the political to the management of emotions. There would even seem to be a case for treating the emergence of international criminal justice as a test case of the importance of the conjectural, the stochastic, in international relations. International relations theory, because of its interest-driven and purpose-oriented concept of action, is prone to radically discount the importance of chance and mistakes as determinants of state behaviour. But the history of international criminal justice seems to be littered with instances of misunderstandings or miscalculations, from the typographical error in a telegram sent to Robert Lansing confusing `inhuman treatment of Americans by Turks' with that of Armenians (Bass), to Under-Secretary of State Eagleburger's bizarre outburst urging the creation of an international criminal tribunal long before this became US policy (Hazan, pp. 60-62; Bass, pp. 213-214). It is unlikely, for example, that NATO members at the Security Council anticipated that by loosely granting the ICTY jurisdiction over the whole Yugoslav territory, they would expose themselves a few years later to the Tribunal's jurisdiction. Russia and China's evolving attitudes towards the Tribunal as it shifted its attention from Croatia and Bosnia to Kosovo, show that they had not foreseen much of the Tribunal's potential for development. Especially in circumstances of radical change with limited visibility and perhaps just a little fin de siE8cle ebriety, then, states may perhaps sometimes simply miss the odd curve in their conduct of foreign affairs. These mistakes may in due course trigger chain processes which are very much unintended and whose distant results they could not possibly foresee. This is what might be called the `liberal trap' theory, and it is one which, under various guises, finds several defenders in the books reviewed. Hazan, for example, sees `the emergence of justice in international relations' as resulting from a `chaotic process, which escaped at the last moment the proponents of realpolitik' (p. 185). From a purely interest-oriented point of view, the creation of international criminal tribunals was not a bad bet: appease public opinion while not committing precious political and military resources to what promised to be an intractable problem. But the growth of international criminal tribunals into something that is respectably independent, as the theory goes, is simply something that the sovereign demiurge did not see coming. The theory's particular way of merging interest and the common good will surely prove irresistible to many readers, while it will appear almost too good to be true for others. It nonetheless remains one of the most curious lessons of the books reviewed that if liberal states do end up engendering a liberal world based on international criminal justice, they may well have done so largely by accident, despite their better opinion and occasionally for profoundly illiberal or at least a-liberal reasons. Beyond the question of how the international order ever stumbled into international criminal justice in the first place, one of the other interesting claims to surface from these books is the one made particularly by Robertson and Hazan around the essential irreversibility of international criminal justice under the conditions of a liberal order. Robertson repeatedly points to the `optimistic fact' that `[j]ustice, once there is a procedure for delivery, is prone to have its own momentum' (p. 449). This is perhaps the crucial argument in sustaining a progressist narrative in that it projects the image of a potentially endless and linear improvement. The argument works particularly well in the context of the ICTY to explain the potency of threats by the Prosecutor to disclose instances of insufficient cooperation by states. Again, one reason why such threats of disclosure work at all is that a war crimes policy is something that is very difficult to step back from in full view of public opinion. As Bass puts it, Albright's increasingly vocal stands in favour of the Tribunal `would make it harder for America to retreat from her pledges without embarrassment' (p. 264). By the time Louise Arbour put governments before the fait accompli of Milosevic's indictment, those who had rhetorically supported the creation of the Tribunal `could hardly back out' (Hazan, p. 234). What remains to be seen, however, is how far international criminal justice's `own momentum' will take it, and in particular whether it can endlessly bootstrap its way up to ever higher levels of norm enforcement. Here, there would seem to be a permanent risk of mistaking cause and consequence, under the spell of a mechanistic understanding of causality. In the dominant narrative, efforts by international criminal tribunals to impose a concept of the rule of law on the international order are systematically interpreted as the reason why states eventually seem to behave in ways that conform with that rule of law. The reasoning, however, might more realistically be inverted. It is states' prior decisions to give leeway to international criminal tribunals and to be moderately receptive to their demands which allows judges to voice discontent about perceived failures of compliance. Even when they have seemed to assail power politics, moreover, the judges have tended to do so in a way that can almost never be accused of being self-destructively oblivious to politics, so that it is never clear whether the Tribunal is determining political events or merely following and rubber-stamping them. The Karadzic/Mladic indictments are ambiguous in this respect. They tended to occur more or less at the time when the latter had ceased to be considered serious interlocutors by the state Department. Hence, in a way they fitted neatly into diplomatic calculus by opening the way for Dayton and what became known as the `Milosevic strategy'. Milosevic's indictment may have taken justice one step further, but here again it is clear that at least some diplomats at the time thought that Milosevic would have to go sooner or later. Louise Arbour's decision not to even seriously investigate allegations of NATO wrongdoing in Kosovo, conversely, whether it reflects a bona fide assessment of the relative lack of gravity of the offences involved, or a deeper willingness not to upset the Tribunal's promoters - stands as a painful reminder of the precariousness of international criminal justice's niche in international politics. Most importantly, it may well be that states only grant any leeway to tribunals when the stakes are low, so that the successes of the ICTY and the ICTR also reflect the relative de-rating of these issue-areas on the international exchequer. The debate is not merely theoretical: which option one chooses has fairly dramatic consequences for how one interprets the legacy of the ad hoc international criminal tribunals and, beyond that, the prospects for the ICC. If it is true that the international criminal tribunals somehow `prove' the feasibility of an independent international criminal justice system, as is the popular topos, then one would seem to have ample reason to be at least moderately optimistic about the Rome Statute. If, on the contrary, the work of the ad hoc tribunals merely goes to show that international criminal justice operates successfully only in conditions of low political intensity, then the ICC looks likely to accumulate improbable odds against itself. This is an important point for another reason. Many authors see the emergence of an ICC as a remedy to the selectivity associated with ad hoc tribunals. Hence, for most, the biggest problem is associated with the reluctance of powerful states (foremost among which is the United States) to join the ICC. None, however, considers the possibility that the ICC may eventually simply displace the problem of selectivity, transferring it from the `external' one of tribunal creation to the `internal' one of caseload selection. This is perhaps ultimately the most disappointing let-down, coming from those who sought to tackle the politics of international criminal justice: that they should fail to highlight more, behind the apparent move towards ever-greater resolution of problems, the profound elements of continuity that are likely to run between the ad hoc tribunals and the permanent ICC. When one has reviewed the authors' varying shades of arguments, what remains common to all is a certain style. Story-telling is the genre that comes most naturally to the authors as they set out to provide modernity with the kind of narratives on which it thrives. Clearly, the saga of international criminal justice with its (occasionally) intense courtroom drama and its (occasionally) larger-than-life characters, against the background of a thundering and bloody history, lends itself well to all forms of literary romanticization. None of the authors, at any rate, can incur the criticism of not having been fascinated by their topic. Notwithstanding this, it is at times as if some of the authors were overwhelmed by their material and lost track of their overall argument (when they have one) in a sea of anecdotes. Indeed, for some such as Ball, it is as if distilled story-telling were all there was to history, and as if that story itself were not in much need of being at least partially deconstructed. In ultimate analysis, therefore, one is still probably left without an overall theory of international criminal justice that is readable without being reductive, normative without being self-indulgent, and critical without being cynical. Bass has the ambition but, in hesitating between two genres (the work of political science and the historian's vulgarization), falls short of a comprehensive explanation; Hazan probably comes closest, but his investigative focus sometimes leads him to shun theoretical ambition. That the accumulation of behind-the-scenes stories, however well they may reflect on the authors' connections, does not make up for a rigorous theoretical framework should be obvious. Perhaps a more analytical or synthetic approach would have avoided some of the pitfalls of the kind of ingenuous historicism that story-telling only too often leads to. Now that a salvo of books has capitalized on the relative `novelty' of the topic, it is hoped that the next generation of studies on international criminal justice will take our understanding a step further. It is a phenomenon often remarked in courtrooms - not least those of international criminal tribunals - that different witnesses can tell the same story in different ways: nothing could be truer of that particular story. Yet the books reviewed also display a remarkable level of consensus on the fundamentals of international criminal justice. Hazan's enigmatic conclusion that `all justice is born from ambiguity' (p. 236) seems to manage to capture the fugitive realm of the possible. If nothing else, this worthy collection will be testimony to a pre-11 September mood of historical optimism.
	© 1990-2004 European Journal of International Law All comments and suggestions should be sent to webmaster This site is part of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European Law at the European University Institute. This file was last modified: Sunday, February 09, 2003 10:16PM