International justice: responding to my critics

Last week, I accused international justice advocates of not being willing to grapple with the possibility that International Criminal Court investigations can have negative consequences, notably encouraging indicted leaders to fight to the last rather than sliding into exile. I got some aggressive pushback, along two lines:

First, Alana Tiemessen pointed out that I was hopelessly imprecise about the target of my accusation. She argues correctly that the international justice movement includes all sorts of people making all sorts of arguments–some consequentialist, some principle-based, some a mix. She’s obviously right here. I had in mind groups like Human Rights Watch and the other human rights groups most active in pushing for the ICC and supporting it, but I should have been much more clear about the diversity of views out there.

Second, Kevin Jon Heller at Opinio Juris took me to task for not backing up the assertion that the ICC investigation may have hardened Gaddafi’s resolve to stay in power:

[Bosco] offers no such evidence, just speculation about the ICC making it “much less attractive” for Gaddafi to step down and about other — unnamed — “possible negative consequences” of international criminal justice.  At the same time, Bosco is perfectly happy himself to avoid grappling with possible positive consequences, such as his own possibility that the fighting would have been worse in Libya but for the ICC investigation. I have no idea whether Gaddafi’s atrocities would be worse without the ICC.  But I do know that the ICC’s investigation has had some actual positive consequences, in contrast to Bosco’s possible negative ones.

Heller goes on to cite some information from other quarters suggesting that the threat of ICC indictment may be helping to peel off some of Gaddafi’s inner circle. But as one of Heller’s commenters points out, the suggestion that the ICC is encouraging defections within Gaddafi’s ranks is just as speculative as the notion that the court is encouraging Gaddafi to stay in power rather than slinking into exile. Pace Heller, I’ve got no problem thinking about the positive consequences of ICC investigations.  My beef with groups like Human Rights Watch is that they never seem to acknowledge that negative consequences are even a possibility. 

In the end, I think the most honest argument for the ICC is the following:

1) As a matter of principle, it is right to investigate and punish those who have committed heinous crimes;

2) We don’t know what the consequences will be in every situation of pursuing justice. This will depend on a myriad of factors, including the psychological makeup of national leaders, that we cannot possibly assess in real-time. Pursuing justice in the midst of a conflict may in fact serve as a disincentive for certain blood-stained leaders to stand aside. In certain cases, international justice could spark local resentment and even threaten fragile political compromises. But in the aggregate, we believe that the consequences of pursuing justice will be for the best. A credible international justice system will eventually serve as a modest deterrent and will provide means other than violence for responding to atrocities.