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Home > Resources > Ethics & International Affairs Journal > Volume 20.1 (Spring 2006) > Articles |
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Compromising Justice: Why the Bush Administration and the NGOs Are Both Wrong about the ICC [Abstract]
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April 24, 2006
The critics of the ICC in the Bush administration and its supporters within the
human rights community have one thing in common: they assume that the ICC can
evolve into a powerful institution independent of states, either to constrain
American power or to act on a duty to prosecute to end impunity for
perpetrators. Both overestimate the ability of the court to pursue a legalism
divorced from power realities. The former attribute to the court powers it is
unlikely to exercise, particularly if the United States remains outside the
treaty. This is due, in part, to the safeguards within the Rome Statute, but
more importantly, to the court’s dependence on sovereign cooperation, which will
lead it to place a high premium on cultivating the good will of the most
powerful states. The latter overestimate the degree to which courts by
themselves can deter atrocities. The ICC’s effectiveness in any particular case
will therefore be dependent on the political consensus of those actors capable
of wielding power in that area. They also underestimate the need to compromise
justice—at least, prosecutorial justice—in cases in which bargaining and
compromise are the central means of facilitating transitions from armed conflict
or dictatorship, and in cases in which the strength of the perpetrators and the
limits of one’s power would make legal proceedings either futile or
counterproductive to other interests and values. Hence, decisions to prosecute
must first be subjected to a test of political prudence, and then take place
according to due process and the rule of law.
To read or purchase the full text of this article, click here.
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The Carnegie Council's flagship publication, Ethics & International Affairs is an interdisciplinary resource for scholars, students, and policy analysts concerned with the moral dimensions of global issues. The journal covers global justice, civil society, democratization, international law, intervention, sanctions, and related topics.
SUBSCRIPTIONS
To subscribe to Ethics & International Affairs, or to purchase individual issues and articles, go to Blackwell Publishing.
RESPONSES
The Editors welcome responses to Features and Essays published in Ethics & International
Affairs. To be considered for publication, responses should be no longer than one
thousand words, including endnotes (which
should be kept to a minimum). Responses
are not peer-reviewed, and are published at
the Editors' discretion. All responses are
subject to editing for length and style. In the
event of any questions or substantive editing,
the response will be returned to the author
for final approval prior to publication.
Responses are published online, alongside
the article they address.
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