When the International Criminal Court (ICC) became operational in 2002, it was hailed by the human rights community for its ability to end impunity through the globalization of law. Conversely, it was opposed by the George W. Bush administration for its potential to criminalize the means through which the United States uses force abroad. Looking at this debate from the vantage point of 2015, neither the hopes of activists nor the fears of the U.S. government have been realized. To date, the ICC has limited its formal investigations to Africa and, further, to situations on that continent that do not impinge significantly on U.S. or other great power interests. But even in such environments the ICC has often been frustrated by domestic resistance and a lack of international support, most recently demonstrated by the suspension of its investigation in Darfur and the collapse of the trial of Kenyan president Uhuru Kenyatta.
David Bosco’s Rough Justice is the best account so far of the trajectory of the ICC from its optimistic origins to the more constrained court of today. Through extensive interviews with court officials, diplomats, and activists, the book examines the reciprocal relationship between international prosecutors and powerful states. In so doing, it makes a number of important contributions to our understanding of the relationship between global justice and international politics and to the explanatory power of realist and norm-based theories of compliance with international law. Written in an engaging and accessible style, the book should be of interest to the nonspecialist as well.
Bosco’s conceptual framework lays out a typology of strategies that states and prosecutors can adopt in interacting with each other. States can pursue a strategy of acceptance, identifying their interests with the legal and normative framework of the court. However, when judicial intervention can adversely affect their interests, states generally try to limit its scope. One means of doing so is through marginalization, where states either actively seek to weaken the court as an institution or passively deny it support. Another option is a strategy of control wherein states use the court’s dependence on their cooperation to steer the prosecutor toward investigations that support their interests or away from those that might interfere with them.
Prosecutors also have a range of choices in responding to states. At one end of the spectrum is an apolitical stance where prosecutors speak law to politics, even in the face of powerful opposition, in order to use the moral authority of the court to increase its autonomy. At the other extreme is a captured court that takes direction from those states on which it depends for its effectiveness. Bosco found that ICC prosecutors most often adopted two intermediate approaches: acting pragmatically, by initiating investigations only where state support was likely to make them successful; and acting strategically, by building relationships with states to persuade them that the court’s mandate supports their interests.
The primary focus of the book is the relationship between the United States and the ICC. U.S. opposition to the court had its origins in the decision at Rome to create a court whose institutional design limited direct control through the Security Council. As a result, the Clinton administration voted against the Rome Statute and the Bush administration pursued a strategy of active marginalization. The response of the ICC’s first chief prosecutor, Luis Moreno-Ocampo, was strategic and conciliatory, seeking to reassure the United States regarding the court’s agenda. Bosco makes a strong circumstantial case that Moreno- Ocampo backed this up by also acting pragmatically, declining to open formal investigations of alleged British war crimes in Iraq and in other situations that would have clashed with U.S. interests (for example, Gaza, Colombia, and Afghanistan). This pattern is also evident vis-à-vis other great powers, as suggested by the fact that the Office of the Prosecutor (OTP) has not moved from a preliminary examination to a formal investigation of the 2008 war between Russia and Georgia. As a consequence of this pragmatism, all of the ICC’s investigations have taken place in Africa, within what Bosco refers to as a “major-power comfort zone” (p. 173).
This strategy was successful insofar as the Bush administration abandoned active marginalization in early 2006, and even supported the ICC’s investigations in Sudan and northern Uganda, where prosecution dovetailed with U.S. foreign policy. The Obama administration accelerated that engagement, but its approach is better characterized as one of control rather than acceptance. First, it has viewed the ICC as an instrument directed at others rather than something potentially applied to itself. As a result, it has taken no steps toward joining the court and was successful in lobbying state parties to exclude nonparty states from the crime of aggression that was added to the court’s mandate at the ICC Review Conference in Kampala in 2010. Second, the Obama administration has embraced the court instrumentally, as demonstrated by its support for the Security Council referral of Libya to the ICC in order to support the uprising against Qaddafi by encouraging defections from his regime, as well as by its subsequent lobbying of the court to delay indictments in order to leave open the possibility of a negotiated exile for Qaddafi when it appeared that the war had turned into a stalemate.
Much of the evidence Bosco presents is consistent with a realist explanation of how powerful states have the ability to constrain international institutions. This can be seen in the OTP’s record in selecting cases that comport with major power interests rather than those that challenge them. It is also evident in the prosecutor’s deference to the Security Council when referrals have included provisions that violate the spirit of the Rome Statute by immunizing nonparty states and not providing additional funding for authorized investigations (the latter of which is viewed by Bosco as a means of controlling the court’s docket).
This is not to argue that the OTP has taken instructions from the major powers. Bosco documents two cases (Sudan and Libya) in which Moreno-Ocampo moved forward with applications for arrest warrants for heads of state despite direct encounters with American diplomats who questioned the wisdom of doing so. Nonetheless, these acts of independence took place within an existing political consensus and involved questions of political prudence rather than challenges to U.S. interests.
Some of the episodes in Rough Justice do provide evidence of how prosecutors and transnational advocacy networks have been able to mobilize the ICC’s normative power to increase its influence—for example, in blunting the Bush administration’s campaign against the court and in gaining U.S. and Chinese acquiescence to the Security Council’s Darfur referral. Similarly, an effort by the British and French to exchange a Security Council deferral of the Darfur investigation for Sudanese policy concessions on peacekeeping was aborted as the result of negative publicity after the plan was leaked to the press. One might infer from these cases that the prosecutors’ cautious approach understates the court’s potential normative influence. On the other hand, these successes have neither threatened major power interests nor, in the Darfur case, have they disabused the Sudanese government of the belief that it could continue to target civilians without consequence. As a result, Bosco concludes that “the norm cascade is real, but there are still powerful obstacles to the flow of impartial international justice” (p. 188).
Bosco’s thesis is empirical, but his findings raise a number of ethical questions. The most obvious is the ethics of a pragmatism that adapts to the interests of powerful states and of the selective justice that flows from doing so. Another is whether the contest between the law and politics is one between principle and power, in which the reader should have a rooting interest in the former. While politics may try to constrain the law for self-serving reasons, it can also reflect a broader range of interests and values that in some circumstances should compete with or even trump a duty to prosecute. For example, was the U.S. attempt to persuade Moreno-Ocampo to delay the issuance of the Qaddafi arrest warrant an exercise in pure expedience? Or was there a principled pragmatic case to leave open the prospects for exile in order to facilitate a less violent transition? After all, the exile provided to Liberian president Charles Taylor (which turned out to be temporary) was considered at the time a defeat for international justice, but it assisted a negotiated end to Liberia’s civil war and averted a final bloody battle over Monrovia.
While the strongest advocates of international criminal justice argue that the court needs to operate above politics, its decisions take place in a multifaceted political context that may require adapting not only to the interests of powerful states but also to international efforts to address violent conflicts. In such situations, political discretion may not only be the better part of valor but of ethics as well. Bosco does not directly take a position on these issues, but his book provides a window through which we can understand how prosecutors and diplomats have addressed them. That in itself is an important contribution to our engagement with the legal and political ethics of international criminal justice.
—KENNETH A. RODMAN
The author is the William R. Cotter Distinguished Teaching Professor of Government at Colby College.