Since the International Criminal Court (ICC) prosecutes crimes of mass violence that are inherently political in nature, its actions will inevitably have political consequences about which the prosecutor and judges should be as well informed as possible. As some of the other contributors to this roundtable note, the ICC's actions and inactions may even have life-and-death consequences in the real world. It is ethically irresponsible for the ICC's officers to ignore those concerns. At the same time, the court's moral and legal authority derives entirely from its claim that it applies universal rules wherever it has jurisdiction. (1) In order for the International Criminal Court to build legitimacy over time, it must both act and be seen to act in a neutral way that transcends political pressures. Rule-of-law courts do not derive their authority from their ability to command the use of force. Nor do they have the legitimacy of elected political officials who act as the representatives of a political community. The legitimacy of courts is a function of their claim to uphold universal rules of law that the community has chosen to adopt, regardless of whether doing so is popular or even prudent in a particular case with particular constituencies. Consequently, court officers in their formal actions--including prosecutorial requests for investigations, issuing arrest warrants, and filing charges, as well as in the judges' decisions on those questions--should always ground the rationale for their decisions in the pretense that they act only to uphold the law and without regard for political considerations.
Nevertheless, there is some scope for ICC decision-makers to consider the immediate practical consequences of their actions for nonlegal reasons. Court officers should use that discretion as wisely and sparingly as they can. For example, states may often be reluctant to expend the resources necessary to effectively stop ongoing crimes of mass violence. Because the court has to rely on states to enforce its decisions, pragmatic concerns may justify delays in issuing warrants. They should not, however, admit that these political considerations play a part in their decision-making. (2) Acknowledging that political factors shape the court's actions may encourage negative behavior by parties that could be subject to its jurisdiction, and it could undermine the long-term legitimacy of the court itself. If political leaders who are guilty of serious international law crimes know that they will be treated more leniently if they can threaten more victims, and thereby trade the protection of those would-be victims for some form of amnesty or judicial leniency, then they will have every incentive to increase their commission of serious international law crimes. In a world of practical moral considerations, this is at least as great a risk as the possibility of indicted international criminals prolonging peace negotiations in order to avoid their own pending arrest and trial.
If the ICC's officers acknowledge that there are nonlegal reasons why they depart from the central mission of the court, they run the risk of jeopardizing the gradual acceptance of the norm that committing serious international law crimes is no longer an acceptable political strategy and that such crimes always ought to result in punishment for the perpetrators. This larger goal may have long-run benefits that are difficult to estimate in any short-term cost-benefit analysis. The goal of a world where the use of mass violence is substantially constrained by law is certainly worth pursuing, even if we assume it will be a long road to approach that ideal.
The normative view presented here starts with the assumption that law and legal institutions are constitutive of our larger political and social environments. Anthony Lang has argued convincingly that punishment is essential for the construction of norms that shape the international political environment. (3) If the global community fails to punish the most serious crimes under international law, this suggests a lack of seriousness about respecting the rules of the international legal system in general. Precisely because mass atrocities have not been routinely punished in the past, it is essential that the ICC be as consistent as possible in pursuing the worst offenders. I assume that some will still escape the judicial process, at least for a period of time. The International Criminal Tribunal for the former Yugoslavia, like other international tribunals of the last two decades, has often faced delays in bringing the accused to justice because of pragmatic political concerns and an unwillingness by states to move quickly on arrests. But as the arrest of Ratko Mladic in 2011 shows, avoiding capture for a long time does not ensure impunity as long as court officers remain tireless in their efforts to push for arrests and for transfers to international tribunals or other legitimate courts. This is one of the reasons it is so important that court officials never acknowledge the role of political factors in shaping their pursuit of justice; that is, to acknowledge that political factors can lead to delays exposes courts to the charge that they provide uneven justice, and that some perpetrators may escape justice altogether by playing their political cards...