Power politics managed to control the direction of the International Criminal Court in its 1st decade, but whether that dynamic will persist over the long haul remains to be seen: so concludes David Bosco in his superb book, Rough Justice: The International Criminal Court in a World of Power Politics (Oxford University Press 2014).
Bosco is an Assistant Professor of International Politics at American University in Washington, D.C., so it’s no surprise that Rough Justice theorizes a range of ways that relevant players might have behaved in the wake of the 1998 adoption by 120 states of the ICC’s Rome Statute. Of interest to him is the response of powerful states – in particular, the 5 permanent members of the U.N. Security Council – when confronted with the ICC, an institution whose formal rules give considerable power to weak states. Bosco posits that the major powers could have taken, to greater or lesser degrees, any of three paths:
- Marginalization, aimed to “ensure that the court remains weak and ultimately fades into irrelevance.” (p. 13)
- Control, not only “to keep the court within its mandate but also to ensure that the court does not interfere with important state political or diplomatic interests.” (p. 15)
- Acceptance, an embrace of the court likely brought on by pressure from other states and nongovernmental organizations, as well as the court’s own cultivation of a deservedly good reputation. (p. 16)
In the end, Bosco determines that marginalizing tactics by the court’s most vocal early opponent, the United States, fell short of their goal. But then, Bosco argues, the U.S. government and some other states succeeded in exercising control, by means including narrowly defined Security Council referrals and “informal signaling” of state preferences. (Some of my writings on issues Bosco raises may be found here, here, and here.) Looking at how actors within the ICC responded, Bosco finds that Prosecutor Luis Moreno-Ocampo took a “strategic” approach to his choice of situations. And Bosco asks whether Prosecutor Fatou Bensouda, who took over in 2012, will “chart a dramatically different course.” (pp. 181-87) (By way of beginning an answer, the new Prosecutor has revisited some policies subject to Bosco’s critique; reversing a 2006 decision by her predecessor (p. 119), for example, Bensouda reopened a preliminary investigation into allegations of abuse during the 2003-08 period of war in Iraq.)
These theoretical chapters bookend an outstanding chronology of the ICC’s origins and early years. Even close followers of post-Cold War efforts at international criminal justice will learn from Bosco’s concise, well-told, and exhaustively researched account.