The Limits of Idealism Author(s): Jack Goldsmith and Stephen D. Krasner Source: Daedalus, Vol. 132, No.

1, On International Justice (Winter, 2003), pp. 47-63 Published by: The MIT Press on behalf of American Academy of Arts & Sciences Stable URL: http://www.jstor.org/stable/20027822 Accessed: 16/07/2010 15:19
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Jack Goldsmith

& Stephen D. Krasner The limits of idealism

In 1939 E. H. Carr published amodern to become classic

what was on interna

tional relations, The Twenty Years Crisis, 1919 -1939. Carr has usually been seen as a defender of realism and a debunker of was his much but idealism, thinking more subtle. He believed that power and Jack Goldsmith is a professor of law at theUniver sity of Chicago. He has written widely inpublic in ternational law and U.S. foreign relations law. This essaywas completed before he took a leave of
absence to serve as special counsel to the General

interest the bread and butter of real - were ism the primary determinants of state behavior. But he also believed that and their nations were motivat peoples ed by normative values and aspirations, not merely by a desire to marshal power and defend material cluded interests. Carr con that "Utopia and reality are thus the two facets of political science. Sound be found only where both have their

political thought and sound political life

will
place."

Counsel of theU.S. Department

of Defense.

Stephen D. Krasner isGraham H. Stuart Profes sor of International Relations at Stanford Univer sity.A Fellow of theAmerican Academy since 1991, he has written widely in a variety of areas, addressing issues of market failure and distribu tional conflict in international political economy, and the historical practices of sovereignty especial lywith regard to domestic autonomy and non intervention.His books include "Defending the National Interest" (1978), "Structural Conflict: The Third World Against Global Liberalism" (1985), and "Sovereignty: Organized Hypocrisyf> (1999)' The views expressed in this article are those of the authors and do not reflect the official policy or po sition of the Department of Defense or theU.S.
government.

For Carr the problem of the interwar idealism it years was not international idealism self, but rather international run amuck. At the core of the interna tional idealism he criticized was the as that right-minded human sumption on abstract norma beings could agree to guide national behav tive principles once un ior, and that these principles, in international derstood and embodied law, would influence nations to act with interna By his account, discounted other factors, of power interests. and

greater justice. tional idealism including economic

the distribution and political

Carr famously argued that such ideal ism was self-defeating. Some nations, such as Germany, failed to comply with the principles of reason embodied by the and similar institu League of Nations and instead to compet tions, appealed

dalus

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47

Jack Goldsmith &

Stephen Krasner on D.

to jus of law and morality ing principles their self-interested and tify rapacious acts. Other nations, such as Britain and France, too heavily on the paper of international law, and not guarantees on a of power and in analysis clear-eyed terest (both their own and Germany's), to secure international Carr at harmony. relied tributed

not just on normative but principles, also on when and how they should be applied. itminimizes considerations Second, of power, and assumes that norms of can substitute behavior for na right tional
ests.

international

justice

capabilities it neglects a

and material

inter

crisis the growing international in 1939 (his book was sent to the printer in July of that year) to the idealistic in ternational institutions that were sup a second world war im posed to make possible. The kind of idealism that Carr under to international stood to be so damaging in interwar years and the peace stability is again informing many aspects of inter in politics. Three developments the rise of universal particular jurisdic tion, the creation of a new International national Criminal renewed idealism. Court, for humanitarian and recurring intervention demands reflect a

Third, offers

political prudence rather than a deontological ethics.

: it

consequentialist

Fourth, it consistently slights of democratic accountability. Our claim is not national

the value

in inter that idealism or inher is irrelevant politics Carr, we believe ently harmful. With a that normative ideals can provide hope an emotional a for progress, appeal, and we But for international action. ground also agree with Carr that ideals can be pursued effectively only if decisionmak ers are alert to the distribution of power, national interests, and the consequences of their policies. The lesson Carr teaches is that when is not tempered by idealism to these factors, the best can attention ration the enemy of the good, the enemy of progress. and aspi

commitment

to international

of these institutions Supporters to and policies tend believe that justice is it is isolated from poli best served when national tics and power. Only institutions by insulating and practice inter from

become

the bargaining and compromise that characterize political decision-making, and from the domestic political pressure to which politicians must always be alert, can justice be fully realized. On this view, institutions and principles that the influence of power better achieve justice than those in which pow er an important role ;and decisions plays made by unaccountable actors, especial are more ly judges, likely to be just than leaders re decisions made by political to their electorates. sponsible We believe the new international ide alism flaws: the Utopian premise First, it assumes can be reached, that a global consensus
48 D dalus Winter

l Universal is the power of a jurisdiction court to try foreign citizens, domestic for cer officials, including government tain egregious crimes com international

minimize

in the world. This au anywhere on the idea that hu is thority premised man are an affront to all violations rights and thus may be punished humanity mitted regardless of the defendants' or the nationality place of the crime. aims to strengthen Universal jurisdiction international human rights law by mar domestic shaling politically independent courts to enforce that law. The classic anywhere, modern example is the Pinochet case, in

suffers

from four fundamental

2003

which

to extradite Pi Spain attempted nochet from England (where he was un to stand trial in dergoing back surgery) Spain for torture and related interna in tional crimes he allegedly committed Chile. (The extradition request original ly charged Pinochet with crimes against as well, but these were Spaniards charges thus the deemed inadmissible, making case one of 'pure' universal jurisdiction.)

tional ciples

impunity universal by extending ju countability as as risdiction broadly possible. The Princeton reflect con Principles ventional

In short, aim to replace law.

"

the Princeton with

Prinac-

The limits ?fldeallsm

wisdom among idealists about the shape and direction that internation al law should take. The Principles will likely influence future universal jurisdic

The House tional Pinochet

of Lords

ruled

that interna

to extradite law required England to Spain for these crimes, but of Great Britain eventu the government sent Pinochet back to Chile after ally that he was unfit to stand

determining trial.1

tion prosecutions, because national courts interpreting international law give to the views scholars deference of special and jurists. In our view, however, the are an unfortunate Princeton Principles that exemplifies the new development idealism's failure to take seriously the nature of international norms, the importance of prudence, and the of abuse exacerbated possibility by the contested absence of democratic criminal accountability. law is extraordi

The Princeton of Universal Principles a document drafted Jurisdiction, by lead ing scholars and jurists from around the are a statement world,2 comprehensive of the nature and scope of universal ju risdiction. The Principles extend univer to piracy, slavery, war sal jurisdiction crimes crimes, against peace, crimes and torture. against humanity, genocide, or They specify that "national judicial on universal gans may rely jurisdiction even if their national does not legislation it." for provide They strip all specifically defendants sitting heads of including state - of any official immunities. And in maintain amnesties that particu they inconsistent lar "are generally states to provide of obligation bility
i Regina

International

everyone agrees narily vague. Virtually that genocide and torture and crimes against crimes. humanity But when are international we attend to the de these crimes, can

tails of what and of when

acts constitute these crimes there

be tried by courts, and little definitive

properly ismuch dispute Consider guidance. : three of many examples the most clearly defined of in Among is torture, which the Torture Convention defines to include any act inflicted by a public official "by severe pain or which suffering, wheth or mental, er is intentionally physical to obtain infor inflicted on a person" mation, punish, or intimidate.3 Am International claims that the nesty ternational crimes United when States violates this principle its police use stun guns, pepper sprays, and restraint chairs, and when
and Other Torture Against or or Treatment Degrading art. 1.

with

the accounta interna

Pino

for serious
v. Bow

crimes

under

Street Magistrate,

Ex Parte

chet, 2WLR 827 (HL) (1999).

2 The seven drafting jurists committee from of comprised and universities, were the Principles and scholars jurists by the United Kingdom, was

American

at which the meeting was attended adopted from Canada, Ghana, China, and tional ciation, included

as well as the United and Turkey States, of the Interna former presidents of Justice, Court Bar Asso the American and Tokyo University.

3 "Convention Cruel, Inhuman

Punishment,"

dalus Winter 2003 49

Jack Goldsmith &

Stephen Krasner on D.

its prison officials use solitary confine ment and related maximum security detention The United techniques.4 States disagrees tices are legitimate tute torture within ; it believes these prac not consti and do

When violated

the United

allies bombed

and its NATO in 1999, they Yugoslavia the UN Charter's prohibition States

international justice

Torture

of the the meaning There is no defin Convention. itive source or judicial decision that can resolve this Under disagreement. any national jurisdiction, court could try these U.S. officials if it, like Amnesty and many International these police rights groups, viewed as torture. practices juris the de from

on the use of force against sovereign in the absence of Security nations Council authorization. Under the NATO officials Principles, to be universal might subject jurisdic " tion prosecutions for crimes against Princeton in peace." But they might not; many ternational there is a lawyers believe to the customary exception developing UN Charter interventions. for certain humanitarian In addition, Amnesty International and an independent have conclud group of law professors NATO ed that countries committed "serious when vilian violations of the laws of war" ci they purposefully destroyed as a sta television targets (such tion and electricity grids) and when from no lower than fifteen at the in The

universal

other human

A crucial diction fendant

in any universal iswhether prosecution issue has an official immunity international

under law. prosecution The existence and scope of these im as munities ju they apply to universal are contested risdiction prosecutions and unsettled. The House of Lords in international law to lift Pino terpreted a as chet's immunity former head of recently, the International inter Court of Justice (icj) interpreted national law to hold that the Congolese was immune from a foreign minister in universal prosecution jurisdiction war crimes for and Belgium alleged he commit against humanity ted in his country.5 The ICJ decision has no precedential effect technically case it decided. So the the beyond from a uni scope of official immunity versal remains prosecution jurisdiction an open Under universal question. ju court gets to each national risdiction, the proper scope for itself. crimes state. More

they killed civilians by dropping

bombs thousand feet.6 The prosecutor Criminal Tribunal International

these allegations Hague investigated and concluded, after much internal that they did not warrant wrangling, Under a regime of uni prosecution.7 a court in any na versal jurisdiction, tion of the world could prosecute NATO leaders and military members and decide whether stitute such actions con inter humanitarian acceptable vention or criminal acts. Because the content

human

of international so contested, courts is law rights in good universal exercising jurisdiction

determine

4 Amnesty
York : Amnesty

International, Rights for All (New

International, 1999), v. chaps. 3-5.

faith are likely to interpret and enforce this law in ways that affected groups will view as unconvincing, and self-serving,
6 Amnesty Report at <http ://www.amnesty.

5 Democratic ment of

Republic 14 February

of Congo Belgium, judg at available 2002, :// <http h tm >.

org/ailib/intcam/kosovo/docs/natorep_all. doo.

www.icjcij.org/icjwww/idocket/iCOBE/icobe judgment/icobe_ijudgment_toc.

7 <http

://www.

un.org/icty

/pressreal/

natoo6i300.htm>.

50 D

dalus

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2003

discriminatory. prosecution resentment it can also

A universal can do more among

jurisdiction than provoke groups unrest or ;

the affected domestic

provoke international conflict. Until recently, was universal Belgium considering juris diction charges against both Ariel Sha ron and Yassar Arafat for human rights violations each allegedly committed in re East. (Such a prosecution the Middle mains a Belgian both, are war criminals will not likely in the Middle East. It is dampen discord to worse much more matters make likely by legitimizing both sides. views of extremists on a A decision by possibility.8) court that Sharon or Arafat, or

no real connection and they have whose interests they are poorly positioned to assess. Because relevant con cannot hold courts exercising stituencies whom universal jurisdiction accountable will for invari than the negative consequences courts the themselves ings, of their rul

The limits ?*l ea lsm

and prudent ably be less disciplined would otherwise be the case. The courts

inability of universal jurisdiction to consider the consequences of a in their actions is affected countries

threat to amnesties, reconcili particular and similar ations, truth commissions, that can successfully facilitate programs transitional Modern internation justice. as al idealists tend to see these programs a In fact, rejection of accountability. such programs often contain elements of individual accountability. More impor are best viewed as tantly, these programs that sacrifice arrangements prudential some benefits - such as of punishment the guilty and restoration of the respect and integrity of victims for the sake of other values, including the minimization of human suffering, closure, a stable peace, and the like. In recent years, am nesties have been an important compo nent in several settlements of peaceful ones in bloody civil conflicts, including Chile, Haiti, Sierra Leone, and South Af
rica.

of universal Proponents jurisdiction claim that these leaders should be held accountable for their international crimes, no matter what the conse a quences. This argument presupposes consensus on the nature of the interna tional crimes we have just questioned. The argument also overlooks the possi a that universal prose bility jurisdiction cution may cause more harm than the to address. original crime it purports courts and prose jurisdiction cutors possess neither the competence nor the incentive to fully consider these harms. They are doubly unaccountable in the sense that they are relatively unac to their own government countable (to the extent that they are politically inde unac and they are completely pendent), to the citizens of the nation countable whose fate they are ruling upon. It doesn't matter that they act with benev Universal olent may
8 The thrown diction

Scharf correctly notes, a of rejection amnesty and an insistence on criminal "can prolong prosecutions ... conflict, more deaths, de in resulting and human suffering."9 Con struction, As Michael sider the Truth cess and Reconciliation Under in South Africa. pro the Prince

intent. What do something

matters

is that they that harms people to

Sharon against that universal in abstentia was juris were

prosecution original out on the grounds criminal prosecutions

ton Principles, this process would not a universal prose preclude jurisdiction cution, in a court outside South Africa,
9 Michael the Scharf, of Cornell "The Amnesty International Exception Criminal 32 (3) to

prohibited under Belgian law. The Belgium Par

liament law is currently to permit such considering prosecutions. amending that

Jurisdiction

the

Court,"

International

Law Journal

(1999): 507

dalus

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51

Jack i"1

1 rl

'-fit C

??^tmir\ btepnen D. Krasner on

international

of Apartheid-era This insistence

officials. governmental on individual accounta

justice

bility at any cost could have terrible ef South African 1 fects on the still-fragile . , . .,. A , , . And itmight have pre reconciliation. the reconciliation (or altogether at least made it even more rocky) had been widely prac universal jurisdiction ticed in the 1990s. In this way, universal cluded political jurisdiction to peace to already difficult transitions even more and democracy difficult. The inability of universal jurisdiction prosecutors guishes consequences them to weigh the judiciously of their actions distin can make solutions

The discussion thus far has proceeded on the optimistic that na assumption tions will apply universal jurisdiction in good faith. But there is no principles reason to believe this will be true. It is not only the House Belgian courts universal Corrupt jurisdiction. that lack political independence well. And many tives to engage nations will in politically of Lords and the that can prosecute under courts can as incen

have

motivated

prosecutions. jurisdiction on The Princeton Principles rely legal norms to such prosecutions. preclude a "state shall exercise They insist that universal in good faith," and jurisdiction add that a "state and its judicial organs due process shall observe international

universal

prosecutors, tance of democratic the enforcement mestic

from purely domestic and attests to the impor in accountability law. In a do of criminal at least in the United

prosecution, to is accountable States, the prosecutor in which she serves in the community the sense that she is either elected (as in states) or (as in the federal sys many and subject to removal tem) appointed As a result, in decid elected officials. by a to prosecute and how whether ing a will often domestic crime, prosecutor of the consequences take into account for community the prosecution health, Inmany instances safety, and morale.10 of the adverse community consequences a an individual for accountable holding to forgo past crime can lead prosecutors or to strike a fa deal plea prosecution, course of vorable to the accused. (And the also dampens accountability political that this discretionary likelihood process will be abused.) Because universal juris diction affected take place outside prosecutions universal communities, jurisdic lack the tion courts and prosecutors or the institutional incentive, capacity, to consider
?o See

the independence norms, including... " of the judiciary. The and impartiality is reliance on legal norms in this context The fail unconvincing. Principles wholly a nation with bad-faith why a universal to motives prosecute jurisdic care about such due tion crime would that, in process principles principles are in event, any opportu manipulable nistic ways. to consider lo date, the costs of universal jurisdic - at tion have not been obvious least in States and Europe because the United most universal prosecutions jurisdiction alliance have been brought by Atlantic in weak coun nations against offenders tries. But there is no reason to think this pattern will continue. The rate of univer has in sal jurisdiction prosecutions creased in recent years. And, as their po tential and scope become clear, as hu man to pressure rights groups continue to bring such prosecutions, nations and as weaker countries realize that univer

such tradeoffs.
"Third-Party 80 Law Review

Interests

K. Brown, Darryl generally in Criminal Law," Texas

(6) (2002): 1383.

52 D dalus Winter 2003

can be a tool for creating sal jurisdiction on the international mischief political stage, especially against more powerful will in such countries, prosecutions

crease.

Enthusiasm recent

for universal

juris

diction might dampen in light of the

on immunity for the minister. If not, we Congolese foreign conse expect that the many adverse we have quences of universal jurisdiction discussed will become more apparent. icj's ruling

about what guidance rules require. After these fundamental of crimes against listing other examples humanity, final one as a the ICC treaty describes a acts simi "other inhumane of

little concrete

The limits ?fldeahsm

lar character causing great intentionally or serious or to suffering, injury to body or mental a crimi health." Such physical nal prohibition would almost certainly be void for vagueness under U.S. law. To take another example, the ICC in of prohibitions under the of "war crimes," heading including or se "willfully causing great suffering, rious injury to body or health" of civil or ene ians, and "destroying seizing the de my's property unless... imperatively manded of war." The by the necessities is obviously of these scope prohibitions to it is but uncertain, easy imagine them NATO to actions in Kosovo being applied and U.S. actions in Afghanistan. The ICC of many treaty is chock-full similarly criminal prohi vague and indeterminate bitions. One ticularly reason troublesome these vague norms are par is that the ICC and court are unaccountable cludes dozens

2 In July of 2002, international idealists : a realized the creation long-held dream Criminal Court (ice) of an International over crimes with jurisdiction genocide, war crimes, and, po against humanity, tentially, the crime of aggression.11 In some respects, the ICC is an im provement regime of universal courts. The ICC national jurisdiction by is a centralized Its treaty de institution. the international crimes within its over a

fines

It also rejects universal ju jurisdiction. instead a nexus to risdiction, requiring the territory or persons of a treaty signa
tory.

And yet the ICC has most of the other and flaws of universal characteristics norms are too Its still much jurisdiction. a to and contested open-ended permit consensus on it behavior; proscribed it considerations of power; suppresses it lacks democratic and accountability; cannot reliably balance benefits legal its a jurisdiction. rely on deal contested international law great norms, and they leave the ICC great in For example, terpretive flexibility. But these definitions "crimes prisonment of physical mental against humanity" or other severe deprivation of funda liberty in violation " rules of international law. Un international
charter is available

costs. against possible political The ICC defines the crimes within

prosecutor or elected to any democratic institution official. The ICC prosecutor is, to be sure, of elected by a secret ballot by amajority the signatory nations, each of which gets a an electoral sys single vote. But such tem is problematic because, among oth er of ICC ratifi things, the vast majority ers are weak nations that are never seri ac in international ously involved police no to con tions and thus have incentive sider the costs of zealous prosecutions.12 Even more the prosecutor importantly, can initiate and prosecu investigations tions on his own, or at the suggestion of or UN the all any signatory nation
12 As Andorra, of November Antigua Austria, 15, 2002, and Barbuda, Belgium, Belize, ICC ratifiers Argentina, Benin, Brazil, were Aus :

include

"im

fortunately,
il The ice's

law provides
at <http :// ; all this document.

www.un.org/law/icc/statute/romefra.htm> come from quotes subsequent

tralia, Bosnia

Bolivia, Bui

and Herzigovina,

Botswana,

dalus

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53

without Jack review, or the threat of review, Goldsmith & are actors. His prosecutions by political D. Stephen to review and the trial Krasner by legal subject on courts of the ICC, but these appellate international to courts are similarly unaccountable
justice

institution. any democratic means that This lack of accountability the ICC presents many of the dangers of is re Its structure universal jurisdiction. similar markably U.S. Independent to the much-maligned statute. By Counsel at the price independence

serious treaty insists that "the most to the international crimes of concern as awhole must not go un community and their effective prosecution punished must be ensured." Here again we see com modern international idealism's mitment at to individual accountability amnesties the expense of national and reconciliation. other forms of political The ICC theoretically the prose permits cutor to decline to investigate when reasons to believe there are "substantial that an investigation would not serve the interests rests with no reason of justice." But the final call who there is the prosecutor,

guaranteeing it invites question of political control, able and even politically motivated pros ecutions. tional are not likely to pro on the ice's behavior, vide real checks inter for the ICC itself is the ultimate norms. Experiences with of these preter tri international the more accountable bunals shown in The Hague and Rwanda have courts will not that international Legal limitations restrictions and defini

to think has the perspective, or incentives to make this information, decision wisely. (When Richard Gold

first pros stone, the Yugoslav Tribunal's about ecutor, was asked if he "worr[ied] to the Bosnian peace the consequences process of indicting Radovan Karadzic he responded that and Ratko Mladic," the indictment "was really done as, if exercise_ you like, as an academic Because our was clear."13) duty It is true that the ICC treaty requires a case if it is the court to dismiss already in national under investigation court, or unable "unless the State is unwilling

be bound

by the letter of their governing it re rules when justice as they conceive can ICC jurisdiction quires otherwise. to be expand. expected only In addition, the ICC, like a universal ju risdiction court, lacks the institutional capacity to identify and balance properly on of a prosecution the consequences

potentially
garia,

affected

groups.

The

ICC

Cambodia,

Columbia, public, Democratic Republic bouti, land, Dominica, France,

Re African Central Canada, Costa Rica, Croatia, Cyprus, of Congo, Denmark, Dji Ecuador, Estonia, Fiji, Iceland, Liechten (FYR), Mali, Mongolia, Nigeria, Fin Gha Ire Gambia, Hungary, Latvia, Lesotho, Macedonia

to genuinely carry out the investigation or But the ICC has the final prosecution." inves word on what counts as a genuine tigation whether on its of perception are the domestic proceedings "inconsistent with an intent to bring the based

Gabon, Honduras, Jordan,

Germany,

na, Greece, land, stein, Marshall Namibia, Norway, Italy,

Luxembourg, Islands, Nauru, Panama,

Malawi, New

Mauritius, Zealand, Niger,

tugal, Romania, Sierra Leone, Spain, Sweden,

Por Peru, Poland, Paraguay, San Marino, Samoa, Senegal, South Africa, Slovenia, Slovakia, Switzerland, the Tajikistan, and Toba Trinidad

to justice," a provision person concerned the of double jeop that opens possibility decides that a ardy if the prosecutor or is conviction national investigation too lenient and therefore not genuine. It is natural its charter diction.
13 Gary (Princeton, 2000), 6-7. Bass, N.J. Stay the Hand :Princeton of Vengeance University Press,

to expect the ICC to interpret in ways that support its juris

Netherlands, go, Uganda, of Tanzania, slavia.

Timor-Leste, United

United Republic Kingdom, and Yugo Venezuela, Uruguay,

54 D

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the most troubling element of Xerhaps to the U.N. Se the ICC is its relationship States argued The Council. United curity on that the ICC should prosecute only the basis of referrals from the Security Council. U.S. proposal would inject ICC drafters rejected the on the that it grounds international power politics to prosecute, into the decision whether The

believe made

that the threat of prosecution by the international tribunal in The Hague

The limits ?*l ea lsm

it practically for NATO impossible to reach an early deal with Milosevic, the war and the suf thereby lengthening in in the summer of the Balkans fering often

1999. The best strategy for stability on context and contingent depends litical factors

and would give each of the Big Five pow ers a veto over any prosecution. The and the drafters viewed power politics, use of Security Council opportunistic ac as an to individual obstacle vetoes, human under international countability ICC in its final form does permit to delay a prosecu the Security Council terms. tion for twelve-month renewable But this just means that an ICC case can go forward so long as a single permanent vetoes a resolution of delay. member And even if the Security Council votes to it (as it did when a twelve UN peacekeepers granted in from prosecution month immunity commentators July of 200214), many the ICC has the power to engage believe delay in 'judicial review' of the Security Coun to disregard its decision. cil and possibly There are at least two problems with from this attempt to eliminate power politics the enforcement of international law and to subvert the recogni in incorporated an ICC initiative rights The law.

po to a that are not reducible no reason to think rule of law. There is unaccountable that a politically prosecu tor and court will make such difficult, even as calls wisely, context-specific to do so. had the discretion suming they results from what The second problem as a chasm Carr would have described between nents theory and practice. Propo of the ICC believe that itmay, the words of Human Rights Watch's Roth, iswishful out not scribed in

Kenneth

"save many lives."15 This Even if the ICC turns thinking. the disruptive effects de and even if it is somehow

to have above,

able to prosecute low-level human rights to see how the ICC can it hard is abusers, or even affect, persons stop, responsible for large-scale human rights abuses. is The main reason for this conclusion that the ICC can only prosecute persons it can get custody over. The Milosovics, Mullah Omars, and Pol Pots of the tend to hide behind na world, however, are hard to tional borders, where they the most notorious reach. Moreover, hu man rights abusers have been motivated own sense of mission and jus their by as sav tice. They have seen themselves iors, not sinners. They have been deter to cling to power and they be mined lieve, as all leaders with amission do, in their that they can reshape the world own image. If they have not been de in terred by the threat of U.S. military are to worry tervention, they unlikely much about an ICC that lacks any real
15 "The Court the US Doesn't 19 November Want," 1998. The New

criminal

tion of national

power the UN Security Council. The first paral lels a problem with universal jurisdic tion : the ICC could initiate prosecutions

that aggravate bloody political conflicts in the and prolong political instability the possibili affected regions. Relatedly, ties for compromise that exist in a politi environment cal guided by prudential are constricted when politi calculation cal deliberation independent
14 Sec. Coun.

must

compete

with Many

an

judicial process.
Res. 1422.

York Review

of Books,

dalus

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55

& thatmust dePend on itsmembers, ?fephTnD are to whose decisions Krasner

uncertain, on
international justice

Jack

enforcement

mechanism

of its own

and

arrest

United a party

and surrender
rri

suspects.

the United Nations that "the States does not intend to become " to the treaty. In August of 2002, Bush signed the American President a Protection Act (aspa), Servicemen's notified statute

us to the U.S. refusal to par brings ICC. There are many rea in the ticipate sons for the U.S. stance, most notably lhis the perception disproportionate policing that the United States's share of international

that enjoyed broad bipartisan called the support. ASPA is sometimes Invasion Act it authorizes because Hague to use all necessary means the president to release U.S. officials from ICC captivi aid to some na ty. It also bars military tions that support the ICC, and it re to certify the president be immune will peacekeepers quires
prosecution.

it to a exposes responsibilities risk of politically moti disproportionate vated charges being brought before the
ICC.

that U.S. from ICC

Itmay seem odd that an institution that will have little effect on rogue hu so concern man the rights abusers could But world's U.S. troops, greatest power. unlike rogue government officials, do not hide behind national borders. Hun dreds of them are deployed around the globe, making them poten to and easy grab bring to The tially of thousands States is trying to (The United this danger by signing bilateral in which the signatories agreements

U.S. because

to the ICC is important opposition U.S. military and financial back

of ing have been crucial to the operation ad hoc international tribunals. criminal Consider how Milosevic wound up in Itwas not the gravitational The Hague. norms that pull of international brought States him there. Rather, the United enormous and mili wielded diplomatic tary power to oust him from office, and some $50 to withhold then threatened in aid to the successor million regime in over Milosevic it until turned Yugoslavia episode teaches ICC al lesson. The simply cannot, out U.S. support, fulfill its dream prosecuting big-time ers who hide behind This United human national to the Yugoslav The Milosevic tribunal. a gener with of

Hague. counter

of the agree not to surrender nationals to other the ICC.) is brought Even if no U.S. defendant before the ice, it can still cause mischief for the United forum ment for official States by being a public criticism and judg

actions. For all of U.S. military these reasons, the ICCwill more likely the activities

rights abus borders.

of the generally but militarily human-rights-protecting States than rogue state ac active United affect hide behind walls of sovereign in areas) and care lit (or ty ungoverned and inter tle about world public opinion national legitimacy. to the ICC trea his opposition Despite Clinton ty, President signed it in 2001, he left before office, so that the just in ongo States could participate United InMay of 2002, how ing negotiations. ever, the Bush administration officially
56 D dalus Winter 2003

iswhy the ICC's alienation of the States may actually hinder rather

tors who

than enhance human rights enforce ment. We have already seen this effect on and ad hoc internation peacekeeping al tribunals. And of course the ICCwill most when action not likely chill U.S. military central U.S. strategic interests are at stake (as in Afghanistan), but rather in situations humanitarian (like Rwanda the strategic and perhaps Kosovo) where action are low, and benefits of military of prosecu thus even a low probability

tion weighs more heavily. In this way, increase rather the ICCmay ironically than decrease impunity for human rights atrocities. The establishment of an ICC that is

A third practice more directly aimed at or is humanitariprevention mitigation an intervention. interven humanitarian Technically, tion in the absence of Security Council authorization And until violates the UN Charter. international recently, many in idealists have viewed humanitarian on the tervention with suspicion ground that nations often use humanitarian in as a cover for an tervention unjustified invasion of another country. But today

The limits ?*l ea lsm

to the world's most power unacceptable ful nation (and also to other large and nations, powerful including Russia, Chi a and India) represents na, Indonesia, of the League of Na folly reminiscent a similar fate. The tions, and portends international idealists who rejected U.S. for Security Council demands control over ICC to aimed prosecutions decouple the enforcement of international crimi politics. They the justice under law" of international hu equal application man na rights law to weak and powerful a are tions alike. Both aims fantasy wanted "equal of the interwar ide strongly reminiscent alism that Carr so effectively and pre a full In criticized. sciently demanding loaf of neutral justice rather than a half loaf of justice that accords with the in that can enforce it, and of nations in creating an institution that relies on norms removed from con legal wholly terests siderations ists may the protection of power, international ideal diminish rather than enhance of human rights. nal law from international

international idealists are arguing many a to act to that states have responsibility or catas humanitarian prevent rectify or not of whether trophes regardless or their material security interests are at risk. Typical of this trend is a report issued in 2001 by the International Commis sion on Intervention and State Sover toPro eignty entitled The Responsibility was tect.16 The Commission supported a secretariat housed in Canada's De by of Foreign Affairs and Interna partment tional Trade and was composed of a co group of international personages a former for by Gareth Evans, minister of and Mo Australia, eign an hamed Sahnoun, Algerian diplomat and special advisor to the UN secretary general. The report argues that each na chaired tion has an international responsibility to avoid or mitigate humanitarian disas ters that could result either from con scious policy effectiveness lamities. with or from indifference in the face of natural or in ca

3 alone, many hundreds of people have died in the In Balkans, central Africa, Afghanistan, some be donesia, Haiti, and elsewhere, fore our eyes on CNN. Humanitarian di of thousands is the most of which genocide are not pretty appalling, things. No rea sonable person would argue that they sasters, should simply be ignored. iswhat to do about The question jurisdiction to redress and designed can be made to work - to rights abuses. and the ICC In the last decade

rests first This responsibility the domestic but if government, to act that government fails then other states and international organizations a responsibility to protect.
on Intervention

have
i6 and

International State

Commission

them. Universal are institutions if deterrence prevent

such gross human

The Responsibility to Pro Sovereignty, tect :Report on In Commission of the International : Interna tervention and State Sovereignty (Ottawa tional Development Research Centre, 2001).

dalus

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57

The Commission Goldsmith &

Stephen Krasner on D.

international justice

Secretary-General the assertion, aim to undermine ments, UN in the Charter, that the prin explicit external precludes ciple of sovereignty that Their report contends intervention. as individuals resides with sovereignty well as states. The major purpose of gov ernment is protecting individual rights ; to fails if a government pro manifestly for in tect these rights by engaging, or ethnic stance, in widespread killing an obligation have others then cleansing, and the re to intervene. Sovereignty con are to protect mutually sponsibility not stitutive, contradictory, principles. indi fail to protect States that massively viduals within their own borders are not au their sovereign exercising properly cannot claim that therefore and thority is illegitimate.17 intervention external No his understand regardless of would of international affairs, argue ing concerns should carry that humanitarian no weight in decisions about interven nations is whether tion. The hard issue or to have an obligation responsibility reasons intervene for humanitarian Jo one,
alone.

members, echoing state Kofi Annan's

of support not generated any wellspring in the advanced domestic among publics that possess democracies industrialized to make a difference. the military muscle ex and Japan have been Germany overseas to in engage tremely reluctant forces for of their military deployment or otherwise. any purpose, humanitarian state has made a sus No major European in to humanitarian tained commitment tervention. European Indeed, countries no combination has the military a serious military of ca

in to conduct pability of any kind outside of Eu tervention to make rope, and none appears willing that would commitments the budgetary make pean such interventions forces do have in peacekeeping Euro possible. to the ability partici but operations, for losses can be

pate even here limited.

the tolerance

for instance, which Belgium, in had several hundred troops deployed cri at of the the Rwanda 1994 beginning them after ten of its sol sis, withdrew diers were killed by Hutu militia. The extreme caution with which American in have engaged presidents interventions humanitarian suggests that they are walking that they believe con on very thin ice when they cannot to material activities tie their vincingly interests that the voting public can un ad derstand. To be sure, the Clinton undertook humanitarian interventions and Kosovo. in Somalia, Haiti, Bosnia, But the last two were overt

that nations are obliged The argument to intervene ignores, or, at best, mini in ad that electorates fact the mizes, have democracies vanced industrialized trea to and blood reluctant been expend catastro sure to deal with humanitarian in not affect their material phes that do of thou the hundreds terests. Despite sands of deaths abuses caused by human rights the past decade, despite during of such deaths in the last the millions humanitarian
Commission, R. Tes?n, No.

ministration

NATO and ly tied to the viability of even here the and American security, on air States relied United high-altitude the chances for attacks that minimized American In Somalia, Clinton States after eigh the United teen soldiers were killed. He did not act an estimated in Rwanda where eight - a deci thousand people died hundred casualties. extricated sion that caused litical problem. him no discernible po

century,

intervention

has

17 International to Protect, Humanitarian

8 ;Fernando

The Responsibility for "The Case Law and

Intervention,"

Public

Paper Legal Theory Working of Law, State University College 2001, p. 2-3. 58 D dalus Winter 2003

39, Florida November

Com report of the International on Intervention mission and State Sov The ereignty recognizes sence of democratic tarian intervention. ab the problematic for humani support It suggests that

the budgetary cost and risk to personnel involved in any military action may in fact make it politically imperative for the in tervening state to be able to claim some degree of self-interest in the intervention, however might
or could,

conbeyond what stituents and/or interest groups will supis fatal to the inter port. This conclusion most we can ex ventionist The project. a is that when nation's pect strategic in terests dovetail with an inclination to altruism abroad much ward interven genuine humanitarian - as the United tion, itwill intervene States did in Bosnia, Haiti, and Kosovo. Once again, this means that interna tional justice will depend on the power and interest of nations, and will often re sult in uneven patterns of enforcement that critics deride

The limits ?*l ea lsn

its primary motive be. Apart from economic actually altruistic

interests, example, that take self-interest the understand for

strategic

able form of a concern to avoid refugee outflows, or a haven for drug producers
terrorists, hood.18 developing in one's neighbour

or

as Op hypocritical. are also what interventions portunistic concern give rise to the (not unjustified) inter so-called humanitarian that many are ruses for invasions motivat ventions ed in large part by strategic ends. A clear re would eyed analysis of interventions cases are alize that such mixed-motive the best we can hope for. The probably of mixed motives does not de presence tract from the fact that some such inter ventions might help local populations, as the Kosovo intervention arguably did. A, for the duty to intervene and prevent human suffering suffer from to the dem in addition another problem guments ocratic

The Commission

gap between to act to mitigate the moral obligation and the views humanitarian disasters, in Eu electorates held by democratic elec rope, Japan, and North America torates whose money would be spent sons and and whose could be daughters killed. This insist a fundamental support for those who problem to that nations should intervene absence of democratic

a here acknowledges its own prescriptions about

is

arrest human suffering in other nations. A basic tenet of the idealistic outlook for humanitari that underlies demands an intervention is that liberal democracy is the morally form of domes preferable In a democracy, tic governance.19 for must have national support eign policy to and be justified in terms acceptable means that the voting public. But this acts of cannot in leaders engage political
i8 International 36. : ed. : Commission, The Responsibility

even if deficit: they underplay, not of do they ignore, questions political Political prudence demands prudence. that foreign policy actions be judged in terms of their consequences, not their intentions. Information vention, the target country and the price of inter vention in money spent, lives lost, and - are other opportunities hard to forgone determine. the consequences Similarly, of intervention, the costs and including
New York Press, University of cosmopolitanism " : "the domes 1999) is ... liberal de

the cost of inter affecting the state of affairs in including

to Protect,

and Nationalism "Statism 19 Cf. Brian Barry, A Cosmopolitan in Global Justice, Critique," Ian Shapiro and Lea Brilmayer (New York

tic aspect mocracy.

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Jack Goldsmith &

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likelihood

international

political exist in the absence of interven would tion, are hard to know in advance. These factors make responsible vene, even the absence it all the more democratic if they were of domestic articles difficult for leaders willing to inter to ignore

a social and of constructing order superior to that which

justice

son to reject that state of the world that ismost consistent with the policy op tions they find most attractive. Ex ante efforts to assess systematically the costs and benefits of any interven tion are extraordinarily challenging. on the is happening What ground is rarely known with certainty. Even after the killing has begun, observers might a civil war not know whether they face or a mem to murder effort systematic bers of a particular ethnic group. Ameri can leaders Serbia thought that bombing with the cover would provide Milosovic to withdraw that he needed from Koso vo ; instead it led him to accelerate ef Even ardent forts at ethnic cleansing. intervention of humanitarian supporters must that there be some as recognize sessment cost for the in of reasonable to But it is usually difficult what such costs might be. How many foreign troops would have been killed if there had been a know beforehand to developments in quick reaction NATO soldiers Rwanda? How many would have been lost if an aggressive, air and ground than cautious, had been conducted against campaign be if the casualties Serbia? What would an effective force were external fighting to the Sudan? If a political deployed leader guesses wrong, what would be the for his ability to secure po implications litical support from his own electorate? rather JLinally, and perhaps most challenging of reconstruction. Just ly, is the question If in the stopping killing is not enough. the International Commission argues, there is an obliga tion to rebuild. Refugees must be al occurs, rights must be re respected; judicial systems must be must be demobi militaries constructed; lized. lowed to return; human tervention ter veners.

support. and awidely praised Power has been highly book, Samantha critical of American policy for failing to or react to the prevent genocidal policy in Rwanda. adopted by Hutu extremists In several Am She faults, among others, American bassador David Rawson for his failure to She the scale of the killings. anticipate us as Rawson "Most of follows: quotes awar broke out, itwould if that thought be quick, that these poor people didn't have the resources, war. sophisticated
the most economic

the means, I couldn't

means."20

a fight have known to in with

that they would Rawson

do each other

far from igno was, however, rant about Rwanda. He had grown up in mis the son of an American Burundi, sionary. He spoke the local language. He "have been could not, in Power's words, more intimate with the region, the cul ture, or the peril." Yet he totally missed what was about to occur. Power argues and others suffered from that Rawson what weakness." she calls "imaginative She also claims that "US officials who 'did not know' or 'did not fully appreci ate' usually chose not to."21 But itwould to and obvious be more straightforward must make that say always policymakers states of the guesses about alternative with limited information and time mation
20 York: 21

world

and absent

infor overwhelming to the contrary, there is no rea

Power, Books, A Problem 2002). "Genocide of Books, and America," 2002. from Hell (New

Samantha Basic

Samantha

The New

Power, York Review

14March

6o D

dalus

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2003

institutional requires creating to of which all the rele arrangements Success vant more local actors will adhere. This is some areas than in easily done in institu others. The highly developed the Euro tional structures of Europe

of suc support, probabilities more of harm the cess, danger doing the than good, and, most importantly, interests of the intervener. This material domestic once again will lead, at best, to selective selec justice. In international politics, tive justice is the best we can hope for.

The limits of idealism

for the Organization pean Community, in Europe, and Security and Cooperation to convention NATO offer alternatives for the Balkans. These al al sovereignty mi it easier to maintain ternatives make al nority rights and prevent conflict,22 even here the prospects for long though term success are uncertain. Other neigh such as ones in Africa and borhoods, central Asia, are less hospitable. Building in these ar stable and tolerant societies eas is an enormous and there challenge, a is no guarantee of success. Despite for intervention, clear security motive international support, and widespread the billions of dollars in assistance, American-led effort to reconstruct Af in inter still fail. It is all the such efforts

4 We

to be pessimis of three regimes universal the ICC, and (cer jurisdiction, in tain conceptions humanitarian of) tervention that aim to enforce interna have offered tic about the efficacy tional human not but to focus that may stitutions rather norms. Our point rights norms to criticize the themselves, attention result from is

reasons

on pathologies in the inadequate are embedded. in which they can damage institutions International

ghanistan might more difficult to sustain countries where ests of powerful engaged. The difficulty

than promote international ideals are if they with the inter incompatible ests of those states whose support is needed for their success. two successful and power of weddings the first as Consider

security and rich states are not

the direct

of assessing the costs and benefits of intervention and the ab sence of domestic support for purely hu actions do not rule out such manitarian activities. But these considerations do to pre suggest that it iswishful thinking sume that the responsibility to protect a central norm in state will become to en Any decision decision-making. must in intervention humanitarian gage take into account available resources,
22 Robert O. Keohane, "Political af Authority in Sovereignty," O. Keohane, eds., Institutions

ideals, interests, of the mod sociated with the beginning ern state system, and the second with its The treaties of transformation. possible

Westphalia
Years War

(1648) that ended the Thirty

are famous

the for embracing the the that determines prince principle religion of his territory. But the actual terms of the treaties limited the emper or's right to regulate religious practices

ter Intervention:

Gradations

in Jeff and Robert Holzgrefe : Humanitarian Intervention Principles, Press, Failure Harvard ernment,

the Holy Roman Empire. These to modern hu restrictions, analogous re some minority man rights, protected the mandated ligious practices, sharing of public offices in some cities with mixed populations, and most important within ly, altered the domestic structure of the Empire religious questions jority of Catholics ing separately institutional that by requiring be decided by ama vot and Protestants of

and Change (Cambridge :Cambridge University

forthcoming); and Nation MichaelIgnatieff, Building," "State unpublished, of Gov School

Kennedy University, 2002, passim.

in the diet and courts

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Jack Goldsmith &

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international justice

were the Empire.23 These protections norm not the because largely efficacious, leaders toleration motivated of religious in leader believed (in fact no European the Thirty this norm), but rather because Years War had shown that efforts to re in Germany press religious practices were could so volatile that they politically of the threaten the very existence Union is another exam

to yoke self-interest usually, possible to such a self-enforcing mechanism moral ideals. promote When native forced of which

in to

self-enforcement fails, the alter en is a system of selective justice one consequence the by powerful, is effective What

Empire. The European

the con ple. The Union has transformed tinent from one riven by war in the first half of the twentieth century to one in which war is unthinkable, at least among states. European member integration an aspira was motivated ideals, by by tion among a small number of leaders to bind the states of Europe into a peaceful web of relations from which they could not extricate element important of this integration was the cre ation of a human rights regime that fos in the do and tolerance tered democracy realm. But these ideals could themselves. An

for the immunity not has proved possible powerful. in international inter affairs is universal norms on national based justice legal in the absence of either self that operate or dominance. enforcement hegemonic that the norm This iswhy we believe that states ought to intervene militarily to mitigate humanitarian catastrophes in practice. will not become accepted to commit Persons motivated the abuses to gain from forgoing the have nothing to international abuse out of deference norms alone. And the leaders of demo to the cratic states or, perhaps more not be American will point, presidents able to secure port needed their states' rectly Universal the domestic to place sup political lives at risk when are not di

mestic

only them in inter be realized by grounding and by cre and political, ests, economic it possible that made ating institutions leaders to ensure that no for European nation had an incentive to defect.24 and the Euro that success The Peace of Westphalia are institutions

security at stake.

interests

and the ICC, in jurisdiction can matter, because contrast, they estab that rely on the lish judicial procedures and policing powers of nation authority The problem for enforcement. ar is not that such institutional we As be ineffectual. will rangements can af institutions these have suggested, fect the costs of political action, and can like the have a special impact on nations United States that are globally active and care about and interna public opinion here tional these more harm The legitimacy. institutions The problem with is that they can do al states

pean Union fully harnessed nations

the power and interest of to enforce moral ideals. These because each nation worked institutions

and had from the institution benefited an interest in complying with its terms. it is not always, or even Unfortunately,
23 See Stephen D. Krasner, International "Compromising 20 (3) (Win Security

Westphalia," ter 1995/1996). For

24 ests

a discussion

in the process Andrew Moravcsik,

of inter of the importance see of European integration : Social The Choice for Europe toMaas Press,

and State Power from Messina Purpose :Cornell tricht (Ithaca, N.Y. University 1998).

than good. as ICC and universal jurisdiction on human sume a consensus ide rights and expect als and their applicability, will follow. But no such that compliance consensus exists; non-national judicial will always be open to proceedings

62 D

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an that Milo ambiguity charges of bias, in his trial before the sovic has exploited International Former Criminal Tribunal for the that (an institution Yugoslavia avoids many of the pitfalls of the ICC ). sever The ICC and universal jurisdiction norm enforcement and the link between political One conse accountability. is that the in this of quence separation are in some stitutions and practically, circumstances from legally, discouraged

The limits of idealism

in assessments of costs and engaging benefits for that are often so important of human suffering. As a the prevention result, such institutions may worsen rather than alleviate human rights catas trophes.25
25 The Goodman, authors would like to thank Ryan Robert O. Keo Ignatieff, Eric Posner, and Adrian on earlier drafts

Michael

hane, Tracey Meares, for their comments Vermeule of this paper.

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