Leave the ICC Alooooone

Yesterday’s New York Times ran an article by Lydia Polgreen, in which she claims that the uprisings of the Arab Spring, and the corresponding atrocities committed by the region’s autocrats as they clung to power, have revealed “crucial flaws” in the International Criminal Court’s setup: namely, that the ICC cannot try the leaders of Yemen, Bahrain, Syria, and other non-member states, unless the U.N. Security Council first refers the matter to the court.

Before going further, I’d like to give credit where credit is due: Polgreen does correctly identify the mechanisms by which the court can obtain jurisdiction over the case, which is a distinct improvement over some of the NYT’s past coverage.

However, this story is an example of how the Court’s own supporters often set it up for failure, by expecting it to accomplish tasks that are beyond its competence.

The ICC is a court of limited jurisdiction. Adhering to those jurisdictional limits is not optional, or a sign of weakness. The court is not able to try cases from non-member states without a UNSC referral, but it’s also not able to invent the flying car, turn water into wine, or develop an un-chippable nail polish. Failing to achieve those things shouldn’t be a cause for disappointment, because there was never any reason to believe they would happen.

Seriously, guys: this is how the rule of law works. We set up institutions, give them limited power and a set of rules by which to wield it, and we don’t let them do more than that. If they try to do more, we smack them with a rolled-up newspaper and say “NO! BAD INSTITUTION! GO BACK TO YOUR JURISDICTION” until they learn. The ICC isn’t Dirty Harry, or the Machine Gun Preacher, or that new Tom Cruise character who apparently “doesn’t care about the law,” and “only cares about what’s right.” The ICC cares about what’s right. But like all functional courts, when push comes to shove, it has to say that “the law” beats “what’s right.” The court can’t go about arresting and prosecuting people outside its jurisdiction, no matter how appealing that might sound, because that would be an activity more commonly known as “kidnapping.”

We don’t call this a “disappointment,” we call it a “cornerstone of the rule of law.” People who want something else should hire Tom Cruise.

Amanda Taub

2 Comments

  1. Of course the ICC (or any other body, international or canine as the case may be) should not stray outside its set bounds, i.e. its jurisdiction or the fence, respectively. However, where exactly we should place this bounds is not outside the realm of what can be discussed and, occasionally, adjusted. After all, borderlines, of jurisdictions as much as of properties, have been known to have been adjusted.

  2. Michael – I agree with you for the most part. But it seems to me like the article suggests that the court should have universal jurisdiction. I’d imagine that, if asked, Lydia Polgreen (the author) would say that this should be achieved through an amendment to the treaty. So in that sense, I think Amanda’s criticism is unfair.

    I think the bigger rule of law question comes from the idea that the Court can have jurisdiction over the citizens of country X when X hasn’t ratified the treaty i.e. an international-rule-of-law issue. (Of course, this can happen now if the SC says so but that comes from ratifying the UN Charter).

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