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What is the Point of International Criminal Justice?, 83 Chicago-Kent Law Review 329 (2008)

Abstract

The recent proliferation of international criminal courts has inspired human rights activists and votaries of international criminal justice to make triumphant gestures. Their jubilation is readily understandable, since these courts have added teeth-even if milk ones-to norms that outline internationally punishable conduct. As a result, the view that such attempts to enforce international criminal law are lubberly invasions by people in wigs and gowns into an area that should be left open to the play of political forces has been seriously called into question. Despite the justified glee of devotees of international justice, however, it would be wrong to close our eyes to the shortcomings of international criminal courts. Some of these shortcomings are, at present, inevitable. Because no cluster of effective supranational institutions yet exists to enforce international criminal law, the effective operation of international criminal courts must depend on the unstable reserve of political will, especially in world capitals. Without the cooperation and support of individual states, international courts are doomed to impotence: for example, they have no power to arrest, to compel the production of evidence, nor to enforce judgments. For these reasons alone, a rigorous system for the rule of law cannot at present be established; justice cannot meaningfully be administered without regard to the volatile and complex world of international politics. Powerful actors in the international arena are in position to ignore the demands of international courts, and the sword of justice tends to be used most against individuals from states that occupy a lowly place in the de facto existing hierarchy of states. Absent outside pressures by well-endowed nations, even weak states can defy the mandates of international courts with impunity.1 But some weaknesses of international criminal courts can be reduced, or eliminated, even in the present state of international relations. These curable weaknesses have many sources. An important one, to which the following pages will be devoted, springs from the array of goals international criminal courts have set for themselves.

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2008

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