Saving the International Justice Regime: Beyond Backlash against International Courts

| October 11, 2022
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Saving the International Justice Regime: Beyond Backlash against International Courts, Courtney Hillebrecht (Cambridge, U.K.: Cambridge University Press, 2021), 200 pp., cloth $84.99, paperback $29.99, eBook $24.99.

In Saving the International Justice Regime: Beyond Backlash against International Courts, Courtney Hillebrecht provides answers to important questions related to the backlash politics of international justice: What is backlash and what forms does it take, and why do states and elites engage in backlash against international human rights and courts? To address these questions, the book weaves together literatures and concepts from international law, human rights, political science, and international relations to provide a multidimensional theoretical framework of backlash politics. Hillebrecht provides a formal definition, typology, and conceptual framework of backlash politics against the international justice regime and proposes guidelines to save it, while also laying the groundwork for further empirical and case studies.

Since the end of World War II, the rising judicialization of global politics has been concomitant with backlash against the international justice regime. Most recently, the International Criminal Court (ICC) has become the most prominent target of such backlash, but it is hardly the only international judicial system that has come under fire. Indeed, Hillebrecht examines backlash politics across two legal regimes (the international human rights and international criminal regimes); three court systems (the European and inter-American human rights systems and the ICC); and across three continents and a dozen countries.

For Hillebrecht, backlash can be defined as a systematic effort to undermine the institutional capacity and norms on which the legitimacy of international regimes are based. Backlash is, however, more nuanced than a wholesale rejection of the liberal democratic order (pp. 19–24). The operationalization of backlash politics comprises four different manifestations of states’ actions: (1) withdrawal from courts and judicial institutions; (2) advancing alternate or substitute justice mechanisms; (3) imposing financial or bureaucratic constraints on courts; and (4) posing doctrinal challenges to the normative principles of the international justice regimes (pp. 25–32).

Different states and elites, however, engage in different kinds of backlash politics. Using a wealth of empirical cases, Hillebrecht argues that supporters of the international justice system would opt for exerting the “subtler” forms of backlash against international courts, such as imposing bureaucratic and budgetary constraints on the courts. Such states, Hillebrecht writes, which are “central to the operation of the international justice regime and . . . cannot . . . fully reject the tribunals[,] will engage in bureaucratic, budgetary, and legal methods of restricting the tribunals’ work and circumscribing the tribunals’ authority” (p. 57). Those states would also couch their subtler forms of backlash in a language of “reform,” “strengthen[ing],” or “improv[ing]” the courts (p. 114). The ICC, for instance, has been at the center of such restriction efforts, through a zero-growth budget model imposed by “steward states” (pp. 128–31). On the other hand, the “louder” forms of backlash, such as withdrawing from or working to supplant tribunals, are the purview of the states and political elites that are not the core supporters of the international justice regime (p. 57).

The book’s theoretical framework outlined in chapter 2 posits that backlash politics can be explained by four main factors; the first of which is the tribunals’ dependency on states. Second, there are fundamental normative schisms within international human rights and criminal courts that cluster around individual vs. collective rights, political vs. socioeconomic rights, and immunity vs. accountability (pp. 44–47). The third factor involves international courts and human rights having “domestic distributional” consequences, the most obvious of which being that international courts’ intervention in a state can create domestic winners and losers in the political sphere. Finally, the states’ likelihood to engage in future violence may lead them to use backlash politics “to blind these watchdogs” (p. 53). Chapters 3 and 4 offer empirical cases of withdrawals from international courts and states’ attempts to replace or supplant international justice mechanisms, such as the African Union’s proposed alternative to the ICC, which Hillebrecht refers to as “a smokescreen of accountability” (p. 100). The subtler forms of backlash politics, such as bureaucratic and budgetary restrictions, are expounded upon in chapter 5, while chapter 6 discusses the doctrinal challenges to international justice regimes.

The final chapter of the book provides guidelines and recommendations on how to save the international justice regime. Hillebrecht urges the stakeholders, supporters, and the tribunals themselves to better manage public opinion “by engaging in targeted and effective self-marketing campaigns”; to improve the rule of law and functioning of tribunals; and to “[reaffirm] the fundamental norm(s) of criminal accountability and human rights” (p. 159). One is left wondering, however, whether simply “flipping the narrative” (p. 160) can help the international justice regime overcome its structural flaws and limitations. For instance, Hillebrecht contends that the ICC’s Office of the Prosecutor (OTP) ought to “[improve] transparency with case selection” (p. 171). Yet, it is not just a matter of explaining or justifying the rationale behind the selectivity; rather, it is the very biases of the selection itself that are the problem. Explanations and narratives can only get the OTP and ICC writ large so far, especially in light of the recent decision not to pursue investigations against British soldiers in Iraq and deprioritizing investigations against U.S. personnel in Afghanistan.

Moreover, the stakeholders and supporters of the international justice regime have themselves time and again proven to be self-serving and biased in the kind of international justice regime that they are willing to support (compare, for instance, the backlash against the ICC in the Palestine situation—coming from “supporters” of the court and the overwhelming eagerness to assist the court in investigating the war in Ukraine). As Hillebrecht mentions, there is a “[hint] at a larger and worrisome trend of traditionally supportive states’ backtracking on their commitments to international justice” (p. 172). This probably invites a more nuanced use of the labels “stakeholders,” “supporters,” “critics,” “skeptics,” and “detractors” of the international justice regime.

Saving the International Justice Regime concludes with an emphatic dictum that “law is preferable to war[,]” and suggests that law “is the only path towards preserving and protecting human rights, human dignity, and world peace” (p. 181). Inspired by the words of Ben Ferencz, Hillebrecht presents international human rights and criminal law as “a plea of humanity against the threat of violence”(p. 181). But if there is merit to states engaging in pushback politics against the international justice regime, it may be that doing so allows for a reformulation and redefinition of international criminal law. Indeed, backlash against international courts could expose the limitations and flaws of the current international justice regime and potentially help the international community move from merely sanctifying law to actually delivering justice.

—Oumar Ba

Oumar Ba is an assistant professor of international relations at Cornell University. He is the author of States of Justice: The Politics of the International Criminal Court (2020).

To access a PDF of this review, please visit Cambridge Core.

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Category: Book Review, Issue 36.3

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