The International Criminal Court and the Limits of Global Judicialization

Article excerpt

I. INTRODUCTION

The increased resort to international courts to deal with human rights violations has become a key fact of life in two regions of the world. In Europe and in Latin America, which have well-established and well-functioning regional human rights courts, indeed the ability of individuals to seek a remedy against their government has advanced very rapidly at the international level. It has also increased rapidly at the domestic level, though perhaps even faster at the international level than at the domestic level in the case of Latin America. It may well be easier to bring a claim against one's government in the Inter-American Court of Human Rights than it is in one's own domestic courts.

In light of these two precedents, one might think a fortiori that criminal law would be ripe for international judicialization. After all, criminal law is by its very nature applied by courts, more so than human rights law, which is applied by all sorts of components of governments, in all sorts of non-judicial ways. Thus, moving criminal law from the domestic level to the international level would seem an inevitable product of the internationalization of the judiciary.

My purpose today is to show that, in fact, the process is not inevitable and that the most notable accomplishment in this area, the International Criminal Court (ICC), is likely to have far less impact than both its supporters and its detractors would envisage. I will begin with a caveat: Like Professor Alvarez, I am not a judicial romantic. I think that international law is applied mostly outside of courts and will continue to be so applied. I believe that judicialization is fine, unless it diverts resources from equally important methods of enforcing the law, such as diplomacy, negotiation, and sanctions. Like Alvarez, I am also a product of the State Department Legal Adviser's Office, and I am ready to admit that that experience has affected my view about these things, because we were the evil diplomats who tried to negotiate side deals and keep things out of courts. I have also experienced firsthand the power of non-judicial methods when I worked for the High Commissioner on National Minorities of the Organization for Security and Cooperation in Europe (OSCE), who, in a very political setting, using soft law, has managed to make a big difference in addressing minority disputes in Central and Eastern Europe.

II. THE ICC AS AN ACCOMPLISHMENT

Like Professor Alvarez, I agree that certain positive developments must be seen before one starts to critique them and evaluate them. There have undoubtedly been major developments in the field of international criminalization.

The current International Criminal Court is not the first idea for an international criminal tribunal. In fact, in 1937, the League of Nations organized and concluded a Convention for the Creation of an International Criminal Court, but the Convention was ratified by only one state. The court never came into existence. The Nuremberg and Tokyo Tribunals were the product of a historically contingent flashpoint. They were, basically, the story of a relatively small number of states agreeing to prosecute the senior Axis leaders. There was no significant follow-up by the states involved with the creation of those courts to create a permanent international criminal court. The Geneva Conventions were drafted in the late 194Os to set the parameters of modern international humanitarian law, including by defining a set of war crimes. However, they did not discuss or contemplate an international criminal court. Rather, they required states to extradite or prosecute war criminals and prosecute them domestically.1 The 1948 Genocide Convention does contemplate an international criminal court, but it does not itself create one. In fact, there have been relatively few prosecutions for genocide at the domestic level. And the process of creating an international criminal court was moribund during the Cold War because neither side trusted the other to set up a court fair to its officials. …