Power and Principle: The Politics of International Criminal Courts

POWER AND PRINCIPLE

The Politics of International Criminal Courts

CHRISTOPHER RUDOLPH

CORNELL UNIVERSITY PRESS

ITHACA AND LONDON

For Jack

Reach for the stars!

CONTENTS

List of Tables and Figures

Acknowledgments

Prologue

Introduction

1. Power and Principle from Nuremberg to The Hague

2. Nested Interests and the Institutional Design of the International Criminal Court

3. Explaining the Outliers

4. Power, Principle, and Pragmatism in Prosecutorial Strategy

Conclusion

Notes

References

Index

TABLES AND FIGURES

Tables

1.1. The Nuremberg Principles

1.2. Some possible violations of the Nuremberg Principles during the Cold War

2.1. Predicted design preferences for an International Criminal Court

2.2. Factors affecting support for ICC design independent of UNSC nest

4.1. Level of P3 strategic interests related to specific situations

4.2. Investigation type for situations deemed the most grave

4.3. Marginal effects after probit

4.4. Cox Proportional Hazard Model results

Figures

1.1. Russian GDP (PPP), 1989–96

1.2. GDP of the PRC, 1980–89

1.3. ICTY Budget, 1994–99

2.1. Typology of regime complexity

3.1. UK and LMG design win sets at the Rome Conference

4.1. Effect of increases in gravity on probability of formal investigation

4.2. Effect of increases in strategic interests on probability of formal investigation

4.3. Gravity of situations under investigation by the ICC

4.4. Effect of increases in strategic interest on probability that the ICC does not open a formal investigation

4.5. Average weeks between preliminary and formal investigation

ACKNOWLEDGMENTS

This project began when I was a fellow at the Niehaus Center for Globalization and Governance at Princeton University in 2006–7. Many thanks to Helen Milner and the Executive Committee for giving me the opportunity to spend a wonderful year at the center.

I am indebted to many people for their contributions to this project. Thanks to Ken Abbott, Karen Alter, Boaz Atzili, Debbi Avant, Gary Bass, Cherif Bassiouni, David Bosco, Jeff Colgan, Meg DeGuzman, Kelly Greenhill, Joe Grieco, Emilie Hafner-Burton, Austin Hart, Courtney Hillebrecht, Miles Kahler, Robert Keohane, Yonatan Lupu, Jim Meernik, Luis Moreno Ocampo, Nick Onuf, Eric Posner, Rachel Sullivan Robinson, Wayne Sandholtz, Ben Schiff, Mike Schroeder, Anne-Marie Slaughter, Duncan Snidal, Jelena Subotic, Felicity Vabulas, David Victor, Erik Voeten, Celeste Wallander, and Alex Wendt.

Thanks also to Daniella Restrepo, Tetyana Sydorenko, Kate Tennis, and Brandon Brockmyer for research assistance and to Assen Assenov, Jess Chen, and George Panterov for technical assistance.

I am very grateful for the support Roger Haydon has given me and for his sage guidance during the publication process. I also wish to thank the anonymous reviewers for their insightful and very constructive comments on the manuscript.

As always, my greatest thanks go to my wife, Lori, for her love, support, and encouragement. I am indeed a very lucky man to share this life with such a special person.

PROLOGUE

Civilians have composed half of all war-related deaths over the past three centuries.¹ In the twentieth century, more than 170 million people—men, women, and children—have been shot, beaten, tortured, knifed, burned, starved, frozen, crushed, or worked to death; buried alive, hung, bombed, or killed in any of the myriad ways governments have inflicted death on unarmed helpless citizens and foreigners.² When civilian war casualties are combined with those targeted by their own governments, the number rises to nearly 360 million people.³ For those who experience or witness atrocities, shock and grief are often followed by an urgent cry for justice, a primal anguish born of human tragedy. During what some have called the century of genocide, the global hue and cry for justice continued to grow …

INTRODUCTION

The Light of Justice

The dawn of peace must begin with the light of justice.

—KOFI ANNAN

Idealists argue that international society is witnessing a profound transformation. They suggest that the rise of international criminal courts over the past half century is not only evidence of the growing power of norms concerning human rights and principles of justice, but that such institutions may usher in an entirely new era of world politics. At a ceremony marking the birth of the International Criminal Court (ICC), Hans Corell, the United Nations (UN) Undersecretary for Legal Affairs declared, A page in the history of humankind is being turned.¹ Although some of the hyperbole used by the court’s most ardent and idealistic supporters may be salesmanship, it nonetheless suggests that there was widespread belief that the new institution represented a significant change in international politics: political and military leaders will no longer be able to victimize the innocent with impunity. They will now personally be held to account for their crimes in a court of law. Scholars have suggested that this shift toward individual accountability represents a significant transfer of authority from sovereign states to international institutions.² More broadly, proponents have lauded the rise of international criminal courts as a turning point in international politics, a stunning victory of principles over the realpolitik that characterize the Westphalian era. As one scholar put it, The creation of the ICC denotes a pivotal historical moment in the development of international society.³

Scholars have used different terms to describe this transformation. For example, Gary Bass refers to a growing trend toward ideal-based legalism.⁴ Similarly, Kathryn Sikkink suggests that the growing legitimacy of the norm of individual criminal accountability and an increase in prosecutions based on that norm are indicative of the emergence of a justice cascade.⁵ Along the same lines, Ben Schiff uses the metaphor of a river of justice to capture this sense of the inevitable shift toward a more Kantian rule-based order in international politics. He writes, The river of justice widened from the inflow of norms as people broadened their conceptions of what it is to be human and to be civilized. They shaped their identities around consensus over an expanding set of normative conceptions. The currents included people’s rights against sovereigns, the ethic of accountability, and the social responsibilities of both retributive and restorative justice.⁶ For many, the ICC is a high point in a long process of global transformation toward a more principled order in international society.

Advocates of this view point to several seminal moments in this process. The first was the creation of the International Military Tribunal held in Nuremberg at the end of World War II. Though the victors of war have often tried the vanquished, the Nuremberg trials were notable for at least two reasons: first, they held the perpetrators of wartime atrocities to account for their crimes; and second, they afforded defendants the rights of due process that reflected contemporary standards of jurisprudence. A second key moment came in 1993 when the United Nations Security Council (UNSC) established the International Criminal Tribunal for the Former Yugoslavia (ICTY).⁷ In contrast with prevailing legal norms regarding war crimes, this court affirmed the principle that international accountability was not limited only to those whose crimes are committed in the context of interstate war but applies equally in situations of intrastate conflicts.⁸ Moreover, it also applies to situations where the government commits atrocities against its own people. In the case of Dusko Tadic, the court defended its jurisdiction over atrocities committed during internal conflicts by ruling that the distinction between interstate wars and civil wars is losing its value as far as human beings are concerned.⁹ The ICTY ensured that those guilty of these crimes could no longer hide behind the shield of Westphalian sovereignty. Moreover, the arrest and trial of Serbian leader Slobodan Milosevic suggested that justice finally would be brought to the highest echelons of political power. As reflected in the headlines at the time of his arrest, world leaders hailed the arrest and trial of Milosevic as the end of a turbulent era.¹⁰ Scholars added that the arrest was an amazing triumph for the human rights movement.¹¹

Some critics argued that although the ICTY (and the International Criminal Tribunal for Rwanda [ICTR] that soon followed) was a significant step in the advancement of the application of international law, it still suffered from a degree of victor’s justice because it was established by the powerful states of the UN Security Council. Thus, the creation of the International Criminal Court represents the third seminal moment in the growth of the international criminal justice regime. Under the terms of the Rome Statute, the ICC could independently investigate crimes, produce arrest warrants, and try defendants accused of the most heinous international crimes, including war crimes, crimes against humanity, genocide, and aggression.¹² Moreover, in contrast to the ad hoc tribunals that preceded it, the ICC is a permanent addition to the panoply of global governance institutions. Though there was much celebration among human rights activists when the ICC became operational in July 2002, significant questions remained regarding whether the court would succeed. Though the Rome Statute was able to gain the sixty ratifications necessary to establish the court, the majority of the world’s nations had not yet joined the ICC and some of the most powerful actively opposed it.¹³

The fourth key stage in the process of institutionalization involved two separate events, each one signaling that the ICC has emerged as a functioning court. The first came on January 26, 2009, when the ICC opened its first case against Thomas Lubanga Dyilo, a Congolese warlord who served as leader of the Union of Congolese Patriots (UCP). In addition to committing crimes against humanity, Lubanga was accused of enlisting some thirty thousand children to serve as soldiers in the conflict.¹⁴ The second came just over a month later, on March 4, when the Office of the Prosecutor (OTP) issued an arrest warrant for Omar al-Bashir, president of Sudan.¹⁵ Bashir was accused of war crimes, crimes against humanity, and genocide in the ongoing conflict in Darfur.¹⁶ Not only was the court up and running but it clearly showed its intent to hold the most powerful perpetrators accountable for their crimes.¹⁷ As of 2015, the ICC has 123 states parties to the statute, is in the process of investigating crimes committed in nineteen situations around the world, and is adjudicating thirty-six active cases.¹⁸

If these events are indeed harbingers of a fundamental change in international order from one rooted in the rule of force to one rooted in the rule of law, their implications are profound and far-reaching.¹⁹ Yet this wave of optimism still faces some grim realities. On February 3, 2015, a video began circulating on the Internet. The video depicted Lt. Moaz al-Kasabeh, a Jordanian pilot captured in December 2014 by the Islamic States of Iraq and Syria (ISIS), escorted at gunpoint to a steel cage. Dressed in an orange jumpsuit, the lone man is locked in the cage then doused with liquid. Moments later his captors set Kasabeh ablaze.²⁰ Less than two weeks later, another video emerged. The video depicts over a dozen Egyptian Coptic Christians dressed in orange jumpsuits kneeling on a Libyan beach, their hands cuffed behind them. Behind each prisoner stands an ISIS jihadist dressed in black. On cue, the prisoners are forced to the ground and beheaded en masse.²¹

Proponents may attribute the continued prevalence of brutality to the fact that international justice remains a work in progress. However, these events raise significant questions regarding the notion of an unstoppable river of justice moving international society toward a fundamental transformation. It strongly suggests that while much has been written about international criminal courts, important questions remain unanswered about their origins, form, and function. This book seeks to address three questions: (1) What factors drove the creation of international criminal courts? (2) Why did they take the specific form that they did, and who either supported or opposed such institutional designs? (3) How can we account for the behavior of the International Criminal Court? The answers to these questions may not only help us better understand the factors that shaped the emergence of international criminal courts but may also suggest the broader implications of their presence in international society.

Given what is at stake for international humanitarian law, it should thus come as no surprise that international criminal tribunals have garnered so much scholarly attention in such a relatively short period of time. Most of the available literature on international criminal courts focuses on the constitutional structure of tribunals, their practice, and their jurisprudence.²² However, the questions posed here beg for the use of theoretical frameworks capable of identifying the most influential factors shaping outcomes. Theory prompts us to carefully define assumptions and key concepts, and to clearly articulate how these elements relate to each other. Sound theorizing requires that relevant causal mechanisms are well-specified and falsifiable, and that hypotheses generated yield unambiguous predictions.²³ This book develops and employs two types of international relations (IR) theory: mid-level theory and general theory. Mid-level theory focuses on narrowly defined phenomena.²⁴ In this case, its use is largely limited to explaining outcomes specific to international criminal courts. General theory encompasses broad classes of phenomena rather than variables specific to a narrowly defined domain.²⁵ The advantage is that developing such theory may not only be useful to explain outcomes related to the ICC or even a group of international criminal tribunals but to other international institutions more generally.

As mentioned previously, initial theorizing about the origins and design of international criminal courts has produced an emergent conventional wisdom in the literature.²⁶ Put simply, it explains these outcomes as primarily the product of growing human rights norms cultivated by norm entrepreneurs and unprecedented levels of grassroots civil society activism across the globe. Constructivist explanations that focus primarily on principles and norms are often presented in contrast to those that might emphasize the role of power. The predominant critique is pretty straightforward: because commitment to the Rome Statute cannot be seen as contributing to a state’s material power or its strategic interests, many scholars argue that the creation of the ICC is evidence of the limits of any power-based theory.²⁷

With regard to the question of the factors that shape the operation of the ICC, there is no well-developed theoretical literature to date. Of course, given the court’s brief history of existence, it is only now that the court has established a sufficient track record on which one could begin to theorize about patterns of behavior. Given that the ICC was specifically designed to divorce power from principle by making the notion of equality under the law a cornerstone of the court, one might expect (or perhaps hope) that politics and political power would have little influence on the process of adjudication. Yet, a growing number of critics have charged that the ICC is little more than a pawn of powerful Western nations used to forward a political agenda against African nations.²⁸ These critics point to the fact that, to date, formal investigations and trials have only been established for cases drawn from African nations. From this perspective, power politics largely determines outcomes related to the operation of the court.

The empirical evidence presented in this book will show that both perspectives are extreme. The role of idealpolitik in the formation and design of international criminal courts is frequently overstated, as is the argument that the function of the ICC is dominated by realpolitik. Rather, the politics of international criminal courts plays out at the intersection of power and principle. Power politics play a significantly more important role in the creation and design of international criminal courts than is generally acknowledged in the literature, yet does not dominate the behavior of the ICC as some have asserted.

This book makes two principal arguments. First, it argues that the creation and design of international criminal courts are frequently as much a product of actors’ interests regarding political power and influence as they are the product of norms of justice and the power of principled ideals.²⁹ International criminal courts have significant implications for state power, and preferences regarding institutional design may be strongly influenced by them.³⁰ These, in turn, influence whether an actor will support or oppose the creation of a court based on a given design. Second, the book argues that power politics can influence the behavior of international criminal tribunals, even those designed to be the most insulated from them, as is the case with the ICC. For the ICC, this has less to do with direct coercion by member states than it does on the weakness of the new court and its dependence on state cooperation. This dependence prompts the Office of the Prosecutor to internalize the preferences of states—including nonmembers of the court—whose cooperation is important for the court to fulfill its mission. The result is a prosecutorial strategy that takes a more pragmatic approach even as it maintains commitment to the principle of responding to the gravest violations of international humanitarian law. This book is intended to complement the existing literature by showing the interplay between power and principle in the politics of international criminal courts.

In explicating the political dynamics in which international criminal courts exist, the book does not propose a monocausal explanation of outcomes or argue for the superiority of a particular theoretical paradigm. Rather, it employs a more eclectic analytical approach.³¹ This analytic eclecticism is reflected in the book’s structure, style, and method. First, the book examines three distinct facets in the process of institutionalization: formation, design, and operation. Each of these facets is unique, although there is some overlap between them. For example, support or opposition to the creation of a new court is a function of design because this enables actors to determine the relative gains and costs associated with it.³² Moreover, operation is influenced by design as well because institutional procedures are spelled out in the instruments of design. Given the high degrees of precision associated with international courts relative to other international institutions, the degree of this overlap between operation and design is likely to be more much more significant in legal institutions.³³ Formation, design, and operation are each addressed independently in the book’s chapters, though these overlaps are acknowledged throughout. Thus, rather than having a single theoretical argument that is tested across a set of empirical chapters to follow, the book offers unique theoretical frameworks specific to each facet. Moreover, because each facet of institutionalization has generated its own specific literature, these are reviewed separately in each chapter rather than collectively in a single literature review chapter as is common in social science research. The second type of eclecticism reflected in the book involves epistemological style. The theoretical frameworks offered to explain outcomes all share a common emphasis on the role of power politics, but do so by combining specific elements drawn from the realist tradition in IR with other new or existing theoretical approaches.³⁴ These include regime complex theory and two-level game frameworks, as well as a new theory of internalization applied to the calculation of egoistic institutional interests. Lastly, the book’s analytical approach is also eclectic with regard to method. Rather than employing one method of analysis, the book employs both quantitative and qualitative approaches at multiple levels of analysis. These include historical process tracing, textual analysis, nonlinear regression analysis, and event history regression analysis. Data used in these analyses are drawn from the creation of several original data sets, archival records, elite interviews, as well as an array of secondary sources.

The book is structured as follows. Chapter 1 presents a historiography of the period from 1945 to 1994 to explore the factors that affected the timing and shape of ad hoc international criminal tribunals. Much of the existing scholarship on the creation of these courts points to legal principles and norms as the primary reasons such courts came into being. In contrast to this prevailing view, this chapter shows how different elements of realpolitik motivated their creation. Once the decision to create a court was made, however, norm entrepreneurs had an opportunity to shape these institutions in ways that forwarded key principles of evolving international humanitarian law. The chapter begins by examining the creation of the International Military Tribunal (IMT) held in Nuremberg, Germany and the International Military Tribunal for the Far East (IMTFE) held in Tokyo, Japan at the close of World War II. The historical evidence makes clear that when considering options for dealing with their enemies at the end of the war, the Allied powers emphasized the role the tribunals could play in determining whether the Axis powers waged a war of aggression. Though the popular contemporary narrative regarding the IMT is that it was primarily a response to the horrors of the Holocaust and the crimes against humanity committed by the Nazis, the evidence suggests that this was not the initial rationale for creating the court. In short, the court’s initial purpose from the point of view of the Allied leadership was to prosecute the jus ad bellum (the right to war).³⁵ Unpacking this crucial distinction between the jus ad bellum and the jus in bello (war crimes) enables one to see that the IMT was the product the intersection between realpolitik and idealpolitik because it involves legitimizing the use of force in war. Once the decision to establish the court was made, norm entrepreneurs then shaped its jurisprudence, and ultimately, its legacy.

Chapter 1 goes on to show not only how Cold War realpolitik served to impair further development of an international atrocities regime for decades but also how interests in the form of power intersected with human rights principles to shape their reemergence on the international landscape in the early 1990s. Some scholars have suggested that domestic outcry over atrocities committed in the Balkans and Rwanda prompted the UN Security Council to create the ICTY and ICTR. Yet the empirical evidence only partially validates this view. Chapter 1 suggests that for liberal democratic members of the UN Security Council that created the tribunal, creating the ad hoc courts was a way to respond to these crises in a way that involved lower cost and less political risk than more assertive policy options—particularly military intervention. For illiberal members of the Security Council, the decision to support (or simply not veto) these courts was a tactical decision rooted in a broader grand strategy predicated on forging closer relations with the United States and members of the European Community. As was the case with the IMT, once created, these ad hoc tribunals served as a vehicle for norm entrepreneurs to further develop the tribunal regime in ways consistent with evolving notions of international human rights law. By systematically analyzing the ad hoc courts from Nuremberg to The Hague, chapter 1 shows how power and principle intertwined to forge the growing ad hoc tribunal regime.

Chapter 2 examines the creation of the International Criminal Court, emphasizing the politics of institutional design. Much of the current literature on the creation of the ICC argues that support or opposition to the court can be largely explained in terms of growing support for principles of international humanitarian law. This offers a parsimonious but overly simplified account of the politics surrounding the formation and design of the ICC. In contrast, chapter 2 shows that for many states, interests regarding human rights were not necessarily their only concern during the Rome Conference. For a number of states participating in the negotiations, interests were at least partially defined in terms of power, and these strongly shaped their preferences regarding the institutional design of the ICC. These power considerations were far from marginal. In fact, they brought to bear questions regarding the architecture of international order and its institutionalized hierarchies. During the Rome Conference negotiations, a battle was waged between states seeking to maintain their relative position in the global hierarchy and those attempting to restructure that hierarchy in part by creating a specific type of international criminal court. This struggle was waged by several of the world’s most powerful states and a coalition of dissatisfied powers engaged in a broader struggle to close the gap between the privileged and the marginalized in international society.

Chapter 2 explicates these dynamics by integrating two different strands of theoretical research. It combines insights from research that illustrate how power is vested in the creation and