by Kingsley Chiedu Moghalu. Stanford CA: Stanford University Press, 2008. 240pp. Paperback. $24.95. ISBN: 9780804759717.
Reviewed by Mark A. Drumbl, School of Law, Washington and Lee University. Email: drumblm [at] wlu.edu.
In GLOBAL JUSTICE: THE POLITICS OF WAR CRIMES TRIALS, Kingsley Chiedu Moghalu posits that international criminal courts and tribunals “are more instruments of political engineering than impartial justice for war crimes” (p.75). Moghalu draws from his legal experience with the International Criminal Tribunal for Rwanda (ICTR) and with the United Nations generally. He links his experience to the theoretical framework of the English School of international relations in support of his conclusion that “[t]he politics of war crimes trials are all around us. And it is major league” (p.2). In a concise and well-written forward, Pierre-Richard Prosper, a former ICTR lawyer who subsequently served as the US Ambassador-at-Large for War Crimes Issues in the Bush Administration, lauds Moghalu’s “realist perspective” and the “provocative conclusions” he draws therefrom (p.x).
GLOBAL JUSTICE: THE POLITICS OF WAR CRIMES TRIALS begins with a survey of the English School, in particular the work of Hedley Bull. Moghalu questions the scope of liberalism’s influence in the creation of international war crimes tribunals. He recognizes that “liberal ethics” play some role, but underscores how states’ unpredictable primordial self-interest, as posited by Hedley Bull in THE ANARCHICAL SOCIETY, is a major catalyst (pp.8-10). Chapter 2 follows with an assessment of the thorny question whether to prosecute or pardon serious human rights abusers. This Chapter unpacks the legacy of the Tokyo and Nuremberg trials and heralds the Nuremberg trials as “perhaps the most important postwar factor that shaped a democratic and prosperous [West] Germany” (p.39). Chapter 3 picks up the Balkans as a regional case study and focuses on Slobodan Milošević’s indictment by the International Criminal Tribunal for the Former Yugoslavia (ICTY). Moghalu concludes that “[i]n his death, Milošević snatched himself from the jaws of justice” (p.75). Chapter 4 turns to the phenomenon of universal jurisdiction, namely when national courts claim jurisdiction over core international crimes committed abroad owing to the fact these crimes constitute violations of peremptory international norms that any court anywhere can redress. GLOBAL JUSTICE then returns to the case-study approach, with Chapter 5 devoted to Sierra Leone. This Chapter criticizes the work of the Special Court for Sierra Leone (SCSL), an internationalized tribunal created by treaty between the United Nations and the government of Sierra Leone. Chapter 6 addresses the politics of the International Criminal Court (ICC), including US opposition to the ICC and the quest to develop a definition of the crime of aggression. Chapter 7 explores [*664] another national case-study: Iraq. The Iraqi High Tribunal is not an international institution, and hence differs from the ICC, ICTR, ICTY, and SCSL. Chapter 8 concludes with the observation that international justice does not represent the “end of history” (a phrase which Moghalu properly attributes to Francis Fukuyama (1992) and transplants from the different context in which Fukuyama was writing).
GLOBAL JUSTICE’s greatest strength is its impressive “insider’s” account of the background and politics of the prosecutions at the international criminal tribunals. The book sets out the gritty hydraulics of the process of institution-building, the generation of indictments, and the volatile task of bringing suspects into custody. Moghalu’s integration of the theoretical insights of the English School complements the work of US public choice/rational choice academic lawyers, such as Eric Posner and Jack Goldsmith, who examine the role of state self-interest in the formation of international law generally, including international criminal law. Another of the book’s strengths is its dissection of “legalism” as a “Western ideal that those countries have sought to impose on countries of other political or historical cultures” (p.14). In underscoring the importance of the local to the actuation of justice, Moghalu reminds us of the limits of international criminal law and the reality that powerful states may evade its grasp, meaning that only tragedies occurring in weak states or committed by nationals of weak states become the subject-matter of international judicialization. In this regard, GLOBAL JUSTICE clarifies that the internationalization of justice for war crimes differs from the globalization of justice, both as a matter of procedure and as a matter of substance (p.172). Finally, Moghalu’s work charts the tension between the promotion of order in international society and the pursuit of justice. Insofar as foreign national courts acting unilaterally through claims of universality are more disruptive to international order than the ICC, Moghalu is more skeptical of the former than the latter.
The scholarship of the English School is complex. As such, its application to contemporary international justice institutions is far from straight-forward. On the one hand, international criminal prosecutions may upend the idea of a sovereign society of states with immune state representatives and thereby threaten disorder. On the other hand, with the creation of the ICC (along with ad hoc tribunals through Security Council resolutions), the international society of states apparently has reasoned that impunity for serious human rights abuses itself constitutes a threat to order. In light of the anemic actuation of prevention in international politics, the most realistic response to this perceived disorder may be retributive criminal sanction. International criminal prosecutions, however flawed, may be intended to serve the interests of international order.
Granted, in some of their actions international criminal tribunals bend the law at the behest of politics. The ICTY Chief Prosecutor’s decision not to pursue charges of war crimes against the NATO states that bombed the Federal Republic of Yugoslavia could be read, as Moghalu does, to represent the politics of international justice (p.75). The ICTR [*665] Appeals Chamber’s decision to reconsider and reverse the dismissal of charges against Jean-Bosco Barayagwiza clearly was animated by pressure from the Rwandan government. Yet, there are also plenty of situations where legalistic renditions of due process trump the enormous political pressure to prosecute and convict. For example, in June 2008, ICC Trial Chamber I stayed the trial of Congolese militia leader Thomas Lubanga, who is accused of the conscription, recruitment, or use of child soldiers, because of the Prosecutor’s failure to disclose confidential, and potentially exculpatory, evidence to the defense and to the bench. Trial Chamber I held: “This is an international criminal court, with the sole purpose of trying those charged with the ‘most serious crimes of concern to the international community as a whole’ and the judges are enjoined, in discharging this important role, to ensure that the accused receives a fair trial” (at paragraph 91 of the judgment). Trial Chamber I has ordered Lubanga’s release, although this order is suspended until the Prosecutor’s appeal is adjudicated. What is more, international courts have not shied away from acquitting suspects in the face of significant political pressure to the contrary.
Moghalu’s experience is personal, anecdotal, or acquired from a perusal of secondary sources. Accordingly, although Moghalu describes his work as “an empirical review” (p.171), GLOBAL JUSTICE lacks the rigor, original qualitative research, or quantitative method that other political scientists, such as Victor Peskin (2008), Lara Nettelfield (2008), or Scott Straus (2006) fruitfully bring to the table in their recent scholarship.
There is good reason to express skepticism about international criminal law’s ability to attain the ambitious objectives it has ascribed to itself (Drumbl 2007). These objectives include deterrence, retribution, reconciliation, truth-telling, and narration of historical tragedy. In this regard, the arguments advanced in GLOBAL JUSTICE are appealing. To some degree, the shortfall between judicial output and justificatory aspiration arises from the fact that international criminal lawyers may have oversold the quality of the product they are delivering. That said, to claim – as GLOBAL JUSTICE does – that international criminal lawyers ever viewed international courts and tribunals, in particular the ICC, as the “end of history” is a strawman (pp.xii-xiii, 126).
Moghalu writes: “I set out in this book to interpret the phenomenon of war crimes trials and tribunals in international law and politics from the perspective not of liberal legalism, which is the conventional wisdom, but through that of a pluralist international society of states” (p.171). Any thorough understanding of the coming into force of contemporary international criminal tribunals and courts, however, also must include the role of non-governmental organizations, interest groups, victims, and networks of expert activists. Non-governmental organizations were extremely active in the creation of the ICC. They catalyzed the criminalization of certain conduct, such as sexual violence during armed conflict, and in the practice of the ad hocs successfully encouraged international prosecutors to file charges and international judges to issue convictions. [*666]
Moreover, international courts are not unitary actors. Not only are there differences among the various courts and tribunals inter se, there are also major tensions within each institution. Judges do not necessarily share the same interests as the prosecutors, for example, and often find themselves on different sides of issues. This intra-institutional tension reflects the interplay between the application of law and the force of realpolitik. For example, a fracture line emerges within the ICC regarding the role that victims should play in the administration of justice in the Democratic Republic of the Congo, with the judges preferring a more robust interpretation of the Rome Statute’s provision of victim involvement than the Office of the Prosecutor.
A state-centric analysis rooted in sovereignty does not fully assess the influence of non-state actors in the cascading process of law-making, nor of internal actors within institutions. Furthermore, binary analysis that views international law and state sovereignty in opposition one to the other in a zero-sum game fails to recognize the synergistic, transnational, constructivist, and expressive manner in which politics and law can conspire to establish norms.
Notwithstanding these limitations, GLOBAL JUSTICE: THE POLITICS OF WAR CRIMES TRIALS is a valuable book that reminds us of the importance of politics in the creation and implementation of international criminal law. GLOBAL JUSTICE also helpfully elucidates the need to incorporate the local into the justice matrix. As international criminal courts continue with their work and become a permanent part of the fabric of international relations, questions of how to improve their effectiveness become increasingly important. Meaningfully anchoring international proscriptions into local contexts is a daunting challenge.
Bull, Hedley. 1977. THE ANARCHICAL SOCIETY: A STUDY OF ORDER IN WORLD POLITICS. New York: Palgrave McMillan.
Drumbl, Mark. 2007. ATROCITY, PUNISHMENT, AND INTERNATIONAL LAW. Cambridge: Cambridge University Press.
Fukuyama, Francis. 1992. THE END OF HISTORY AND THE LAST MAN. New York: Free Press.
Nettlefield, Lara. 2008 (forthcoming). COURTING DEMOCRACY: THE HAGUE TRIBUNAL’S EFFECTS (unpublished manuscript, under consideration with publishers).
Peskin, Victor. 2008. INTERNATIONAL JUSTICE IN RWANDA AND THE BALKANS: VIRTUAL TRIALS AND THE STRUGGLE FOR STATE COOPERATION. Cambridge: Cambridge University Press.
Straus, Scott. 2006. THE ORDER OF GENOCIDE: RACE, POWER, AND WAR IN RWANDA. Ithica: Cornell University Press. [*667]
PROSECUTOR v. LUBANGA, Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008 (Trial Chamber I, June 16, 2008), available at http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-1401-ENG.pdf
© Copyright 2008 by the author, Mark A. Drumbl.