The Council and the Court: Law and Politics in the Rise of the International Criminal Court

By Kaye, David; Raustiala, Kal | Texas Law Review, March 1, 2016 | Go to article overview

The Council and the Court: Law and Politics in the Rise of the International Criminal Court


Kaye, David, Raustiala, Kal, Texas Law Review


The Council and the Court: Law and Politics in the Rise of the International Criminal Court ROUGH JUSTICE: THE INTERNATIONAL CRIMINAL COURT IN A WORLD OF POWER POLITICS. By David Bosco. New York, NY: Oxford University Press, 2014. 312 pages. $31.95.

It is the rare international crisis today that does not receive the attention-or at least a demand for the attention-of the International Criminal Court (ICC). Name a conflict, and one is bound to find a coalition of states, nongovernmental organizations, and activists calling for ICC investigation, even where jurisdiction may be unavailing. From 2014 to early 2016, such conflicts have occurred in Afghanistan,1 the Central African Republic,2 Georgia,3 Iraq,4 Mali,5 North Korea,6 Palestine,7 Syria,8 and Ukraine,9 to name a handful among many others. Each situation presents a charged dynamic, in which the promoters of the rule of law seem pitted against the powers of global politics. The Syria situation in particular is marked by clear violations of international humanitarian law across the spectrum of participants during years in which hundreds of thousands have lost their lives, leading to competing calls for justice and rejections of such a process within the United Nations Security Council. President Omar alBashir of Sudan, subject to an ICC arrest warrant for his alleged role in atrocities in the Darfur region, escaped arrest with the assistance of authorities in South Africa in mid-2015. His assisted escape called attention to the refusal of some ICC member-states to support the Court in a case the Security Council referred to it years earlier.10 The ICC, in a historically short period of time, has become the central player in a contemporary battle over the place of justice in international politics.

In Rough Justice: The International Criminal Court in a World of Power Politics, David Bosco ably documents both the long history of international justice efforts and the surprisingly rapid rise of the ICC.11 At its heart, Rough Justice tells a story suffused with the deep tensions between peace and justice, politics and law, and power and norms. The push and pull between these antinomies is of course not new. And it is not uncommon for power, politics, and the desire for peace to override law, norms, and the quest for justice-especially on the international plane, where mechanisms of justice have for decades, if not centuries, been more aspiration than reality.12 Yet the long and uncertain search for international justice and accountability for terrible crimes has taken on an entirely new tenor in the era of the ICC. Bosco notes that, as the first standing international criminal court in history, the ICC "represents a remarkable transfer of authority from sovereign states to an international institution."13

The birth of the ICC represents the climax of the groundbreaking development of international criminal law that began after the end of the Cold War, about which we say more below.14 The ICC is, for some at least, a stirring symbol of justice and law. But the Court was not born, nor does it reside, in a political vacuum. Its most important political interlocutor is the United Nations Security Council. The Council has long been seen as the apex of the international order, but it is also a body in which politics and power are paramount. The Council has the authority to compel or authorize everything from economic sanctions (as in the case of Iran's nuclear program) to outright invasions of sovereign states (as in Iraq over two decades ago).15 Its ambit is the peace and security of the entire world. And it has been continuously operating, sometimes more and sometimes less effectively, since 1945. The fledgling ICC has consequently had to find a way to live and partner with the Council, acknowledging and leveraging the Council's power while charting its own independent course. This is an innately challenging task. And it has been made even harder by the fact that three of the five permanent members of the Security Council-Russia, China, and the United States-have declined to join the ICC and at various times have expressed views ranging from benign neglect to active hostility. …

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