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Argument: Case-by-case approach is superior to ICC in crises

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John R. Bolton, Under Secretary for Arms Control and International Security. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002 - it is by no means clear that "justice" as defined by the Court and Prosecutor is always consistent with the attainable political resolution of serious political and military disputes. It may be, or it may not be. Human conflict teaches that, much to the dismay of moralists and legal theoreticians, mortal policy makers often must make tradeoffs among inconsistent objectives. This can be a painful and unpleasant realization, confronting us as it does with the irritating facts of human complexity, contradiction, and imperfection [...] Accumulated experience strongly favors a case-by-case approach, politically and legally, rather than the inevitable resort to adjudication. Circumstances differ, and circumstances matter. Atrocities, whether in international wars or in domestic contexts, are by definition uniquely horrible in their own times and places.

For precisely that reason, so too are their resolutions unique. When the time arrives to consider the crimes, that time usually coincides with events of enormous social and political significance: negotiation of a peace treaty, restoration of a "legitimate" political regime, or a similar milestone. At such momentous times, the crucial issues typically transcend those of administering justice to those who committed heinous crimes during the preceding turbulence. The pivotal questions are clearly political, not legal: How shall the formerly warring parties live with each other in the future? What efforts shall be taken to expunge the causes of the previous inhumanity? Can the truth of what actually happened be established so that succeeding generations do not make the same mistakes?

One alternative to the ICC is the kind of Truth and Reconciliation Commission created in South Africa. In the aftermath of apartheid, the new government faced the difficult task of establishing and legitimizing truly democratic governmental institutions while dealing simultaneously with earlier crimes. One option was widespread prosecutions against the perpetrators of human rights abuses, but the new government chose a different model. Under the Commission’s charter, alleged offenders came before it and confessed past misdeeds. Assuming they confessed truthfully, the Commission in effect pardoned them from prosecution.

This approach was intended to make public more of the truth of the apartheid regime in the most credible fashion, to elicit admissions of guilt, and then to permit society to move ahead without the prolonged opening of old wounds that trials, appeals, and endless recriminations might bring.

I do not argue that the South African approach should be followed everywhere, or even necessarily that it was correct for South Africa. But it is certainly fair to conclude that that approach is radically different from the ICC, which operates through vindication, punishment, and retribution.

It may be that, in some disputes, neither retribution nor complete truth-telling is the desired outcome. In many former Communist countries, citizens are still wrestling with the handling of secret police activities of the now-defunct regimes. So extensive was the informing, spying, and compromising in some societies that a tacit decision was made that the complete opening of secret police and Communist Party files will either not occur, or will happen with exquisite slowness over a very long period. In effect, these societies have chosen "amnesia" because it is simply too difficult for them to sort out relative degrees of past wrongs, and because of their desire to move ahead.

One need not agree with these decisions to respect the complexity of the moral and political problems they address. Only those completely certain of their own moral standing, and utterly confident in their ability to judge the conduct of others in excruciating circumstances can reject the amnesia alternative out of hand. Invariably insisting on international adjudication is not necessarily preferable to a course that the parties to a dispute might themselves agree upon. Indeed, with a permanent ICC, one can predict that one or more disputants might well invoke its jurisdiction at a selfishly opportune moment, and thus, ironically, make an ultimate settlement of their dispute more complicated or less likely.

Another alternative, of course, is for the parties themselves to try their own alleged war criminals. Indeed, there are substantial arguments that the fullest cathartic impact of the prosecutorial approach to war crimes occurs when the responsible population itself comes to grips with its past and administers appropriate justice. The Rome Statute pays lip service to the doctrine of "complementarity," or deference to national judicial systems, but this is simply an assertion, unproven and untested. It is within national judicial systems where the international effort should be to encourage the warring parties to resolve questions of criminality as part of a comprehensive solution to their disagreements. Removing key elements of the dispute to a distant forum, especially the emotional and contentious issues of war crimes and crimes against humanity, undercuts the very progress that these peoples, victims and perpetrators alike, must make if they are ever to live peacefully together.

In the absence of the means or political will to address grave violations, the United States has supported the establishment and operation of ad hoc tribunals such as those in Yugoslavia and Rwanda. Unlike the ICC, these are created and overseen by the UN Security Council, under a UN Charter to which virtually all nations have agreed.

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