The “Poisoned Chalice” of International Justice

The Nuremberg trials, a series of military tribunals following Germany’s defeat in World War II, represent a landmark in international criminal law. The United States, France, Great Britain and the Soviet Union put the top political and military leaders of the Third Reich who were still alive on trial for the perpetration of unimaginable atrocities, or what would become known as crimes against humanity. (Adolf Hitler, Heinrich Himmler and Joseph Goebbels all “cheated the hangman.”)

In his opening statement at the trial of Hermann Göring, the former U.S. Supreme Court Justice Robert Jackson, then acting as a prosecutor in Nuremberg, reflected on the historic significance of the proceedings:

That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.

This is certainly a noble sentiment, but whether the military tribunals did, in fact, “stay the hand of vengeance” is, of course, subject to debate. Critics charge that the tribunals were merely an exercise in “victors’ justice.”

“I suppose if I had lost the war, I would have been tried as a war criminal,” remarked the U.S. General Curtis LeMay, who devised and oversaw the U.S. firebombing campaign of Japan that killed an estimated half a million people.

Nonetheless, the Nuremberg trials created a movement to establish a permanent international criminal court, an idea that did not gain a lot of traction during the Cold War but was resuscitated in the early 1990s. This was a unique period that saw a surge in enthusiasm for international institutions following the Cold War. This enthusiasm resulted in the establishment of the International Criminal Court (ICC) in 2002.

A decade later, the court has grown into an institution with hundreds of employees and a $100 million annual budget. It has launched 8 investigations and indicted dozens of people. In his new book, Rough Justice: The International Criminal Court in a World of Power Politics

,  American University Professor David Bosco takes stock of the ICC and its place in the world today. That is the subject of this week’s Specific Gravity interview with Jeff Schechtman, which you can listen to in the podcast below. 

Bosco tells Schechtman that the ICC carries many of the same burdens as the Nuremberg tribunals. To quote Justice Robert Jackson once again, “the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”

The ICC runs the risk of passing around a “poisoned chalice” in that the great powers, such as the U.S. and China, seem to want it both ways. The U.S., for instance, was a great champion of the court’s investigations of atrocities committed in Rwanda. But would the U.S. submit its own officials and soldiers to the authority of this court?

This double standard seriously undermines the credibility of the court in the eyes of the international community. After all, every ICC investigation that has taken place to date has involved an African country. What about Russia’s actions in Chechnya? What about China? What about U.S. drone strikes?

Bosco says that while the ICC was created in a unique context in the 1990s, global power politics have since reverted back to a more traditional form in the post-9/11 era. Competing great powers such as the U.S. and China use force in controversial ways. You get to act that way when you have power. In other words, the ICC might indict a sitting president in Africa, but what is the likelihood that it will indict Putin?

And so, is the ICC really worth its $100 million budget?

Bosco points out that this court is still in its infancy. Furthermore, the mechanics of international law make for very slow movement. In the meantime, the mere existence of this institution, Bosco points out, might just act as a deterrent, giving dictators and warlords pause. Conscience, it has been said, is the knowledge that someone is watching. 

Listen to the podcast here:

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