Why you should care
Because even a professor of international law says global courts are fragile. Long live the nation-state.
International law enforcement is an enticing idea.
There are real villains and real victims. But sometimes an international legal solution is worse than no solution. This is true of a number of popular proposals on the table today for supposedly bolstering our international legal order. Here’s what proponents of those ideas get wrong about international law.
Regulating abusive monetary and fiscal policies
It’s true: There’s no clear way to police governments manipulating their currencies or lying about the state of their finances. No laws or institutions (not even the WTO) offer a remedy — and the market rarely self-corrects. So it makes sense that many want to put global monetary policy under greater international oversight. Such proposals come from all sides: Americans complain about China’s undervalued currency, the Germans about the European Central Bank’s pledge to help bail out Greece.
But: International adjudication wouldn’t help. Here’s why: The European Central Bank and the IMF send signals to markets. Their intervention is designed to reassure investors, so that those investors will lend privately. International adjudication will make investors call into question the validity of these sensitive signals, exacerbating bankers’ and investors’ financial unease.
What courts do well is clarify and create certainty. They can answer questions like “Who owns a patent?” or “Who has legal rights over land that investors want to use?” What they can’t do is build faith in struggling markets. Let’s leave financial policy-making and signal-sending to economic and political institutions that can actually respond to market booms and busts.
A world human rights court
It’s true: There’s no international body adjudicating human rights violations in Asia and the Middle East. Nor is there one to remedy the weaknesses of Africa’s human rights system. Frustrated human rights advocates want a global legal solution.
But: Regional approaches to judicial oversight are a much better solution than a single supranational rights court. There’s much disagreement about which human rights should be protected. Traditional societies want to protect local practices — which may not cohere with the growing demands of women’s and children’s rights movements. Some nations in Africa or Latin America believe they should be allowed to prioritize their own development, making up for years of colonial injustices, over due process or property rights; not to mention the impossible task the court would hold of reconciling Islamic ideas of justice with Western ones.
Of course, relying on regional solutions means important human rights values may go unaddressed. Case in point: gay rights. Uganda and Nigeria have criminalized homosexual behavior, and Russia has made it illegal to advocate for homosexual rights. Russian laws are subject to European review, but it’s possible that African human rights bodies will cave to homophobia. Such a compromise may be a necessary evil to avoid further political backlash.
It’s true: Corruption is linked to sectarianism, electoral violence, stolen wealth — even the recent conflict in Ukraine. Often corrupt societies lack the independent and objective judiciaries. So, anti-corruption crusaders suggest, let the International Criminal Court (ICC) fix it.
But: Prosecuting corruption is hard. It usually requires an inside whistle-blower whom the court must later protect from retribution. The ICC can’t protect the people who testify; it also lacks an investigative and police force that can subpoena evidence and construct a winnable case. And whistle-blowers abroad haven’t done well, historically — remember Alexander Litvinenko, the former Russian spy poisoned while sipping tea in London?
Here’s some good news: This time, there are actual alternatives for addressing kleptocracy. It’s tough to spend tens of millions of dollars in a poor country. Which means stolen money ends up in Western banks and property. And there are ways to trace and capture these illegal money flows.
It’s true: The ICC can’t prosecute terrorists associated with al-Qaida or Boko Haram. Some legal scholars wish otherwise, arguing that terrorists are today’s pirates — global outlaws deserving international prosecution.
But: Again, the best — if imperfect — solution is to rely on national mechanisms. It’s easy to forget that even before 9/11, “terrorist” was too often a convenient label governments use to tar their enemies. One government’s terrorist is often another government’s freedom fighter. Enemies of great powers might find themselves more easily labeled terrorists while allies would escape such labels. International prosecutors could find themselves in the middle, trying to adjudicate if a political opponent rises to the label of a terrorist.
International criminal prosecution is about prosecuting the planners and perpetrators of war crimes and crimes against humanity. The global courts are not the place to bring to justice the conspirators of a coup or a revolution.
Here, too, an imperfect international alternative exists. The ICC can prosecute mass crimes of both state and non-state actors. Take Joseph Kony, recently indicted by the ICC, the military leader of the Lord’s Resistance Army that kidnapped children and turned them into soldiers to slaughter villages. Or the Mali government, which asked the ICC to investigate the terrorists who committed atrocities in its country; Nigeria could ask the ICC to prosecute leaders of Boko Haram.
The ICC must stay focused on prosecuting perpetrators of mass atrocities, rather than trying to decide who is and isn’t a terrorist. The tradeoff is that although governments can ask the ICC to prosecute non-state actors, state actors — such as Syria’s Bashar al-Assad — remain protected by powerful allies. Although far from perfect, this is necessary tradeoff to preserve what capability the ICC does have.
No more waiting for Superman
The victims of international legal violations face very real trauma and troubles — corruption, human rights violations, and crimes against humanity. But international courts are no Superman. Legal processes are slow, backward-looking, subject to manipulation, and fairly limited.
This isn’t the perspective of a cynic. Rather, it’s the voice of someone who believes that international courts can do good, but who doesn’t want already fragile international legal regimes to be undercut by ideals they can’t enforce. International rules set standards for human rights, the conduct of war, and the promotion of exchanges and trade. We need to build and support international legal mechanisms that can work, rather than overextending and undermining the green shoots of fragile international courts.