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On the Poverty, Rise, and Demise of International Criminal Law Portland State University PDXScholar Dissertations and Theses Dissertations and Theses Winter 3-4-2016 On the Poverty, Rise, and Demise of International Criminal Law Tiphaine Dickson Portland State University Follow this and additional works at: https://pdxscholar.library.pdx.edu/open_access_etds Part of the History Commons, International Law Commons, and the International Relations Commons Let us know how access to this document benefits ou.y Recommended Citation Dickson, Tiphaine, "On the Poverty, Rise, and Demise of International Criminal Law" (2016). Dissertations and Theses. Paper 2707. https://doi.org/10.15760/etd.2703 This Dissertation is brought to you for free and open access. It has been accepted for inclusion in Dissertations and Theses by an authorized administrator of PDXScholar. Please contact us if we can make this document more accessible: [email protected]. On the Poverty, Rise, and Demise of International Criminal Law by Tiphaine Dickson A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Public Affairs and Policy Dissertation Committee: David Kinsella, Chair Birol Yesilada Christopher Shortell Victoria Belco Portland State University 2016 Abstract This dissertation in four essays critically examines the emergence of international criminal courts: their international political underpinnings, context, and the impact of their political production in relation to liberal legalism, liberal political theory, and history. The essays conceive of international criminal legal bodies both as political projects at their inception and as institutions that deny their own political provenance. The work is primarily one of political theory at the intersection of history, international relations, international criminal law, and the politics of memory. The first essay questions Nuremberg’s legacy on the United States’ exceptionalist view of international law and its deviant practice, while the second essay explores the relationship between exploding inequality and the triumph of the human rights movement as well as the costs of international prosecutions to the detriment of transformative politics. The third essay explores the relationship between history and international criminal courts, as well as the limits of their engagement, while the fourth examines the idea of legalism—rule following as a moral ethos—in the context of real political trials. i Pour Papa et pour Georges Rutaganda ii Acknowledgments I wish to thank my committee members for their unwavering and unobtrusive intellectual support over the years. I have benefitted tremendously from the rigorous expectations Dr. Birol Yeşilada, but also from his unfailing kindness. He rekindled the flame of my passion for political economy. Dr. Christopher Shortell’s pragmatism, humor and common sense helped me to avoid flights of intellectual fancy that would have made this dissertation impossible to complete. I am grateful for the discovery of Dr. Victoria Belco, a kindred spirit and veteran of the defense bar: she helped remind me that injustice is not limited to international tribunals, and opened a window into the magnificent self-reflexive craft of history. Dr. David Kinsella, my committee’s chair, was an early champion of my work, providing me with the opportunity to develop and teach unconventional courses, and at all times treating me with often surprising collegial respect. Thank you to Dr. Melody Rose for her salutary mentorship and support in this program when it was needed the most. Dr. Melchior Mbonimpa, a.k.a. “tonton” has played an essential role in the maintenance of my intellectual sanity and confidence, and has filled the huge gap left by my father’s passing. Phil Taylor, principal investigator in the Rutaganda case, shaped my thinking about the trials and tribulations of international criminal justice, and has kept me engaged—often over my objections—with the plight of the people who suffer the most from its carelessness and cruelty. iii I am grateful for the intellectual mentors whose books have left a lasting mark on my thinking about what it means to be a scholar: Raul Hilberg, Judith Shklar, Hans Morgenthau, and Franz Neumann. I thank my late father, Robert Dickson, for his trust, his love, and his support for my endeavors even though his paternal instincts often thought better of them. Thanks to my children, Zoé, Mateia, Nikola, and Devon for their encouragement and for generally putting up with this project for so long. Thank you, Nona, for your patience. Хвала Бако и Деко на свему! Thank you to Agence France Presse for its erroneous wire story that prompted Dr. Aleksandar Jokić, then assistant professor of philosophy at Portland State University, to write me an email bravely attempting to correct a point in an article that I had written. Our conversation has been ongoing ever since. Sasha, my intellectual and life partner, has shown unflagging support for my work and boundless confidence in me. This dissertation would not exist without him. iv Table of Contents Abstract . i Dedication . ii Acknowledgements . iii List of Figures . vii Introduction . 1 Poverty . 7 Rise . 9 Demise . 16 Essay 1: Reason’s Tribute to Power: International Criminal Law and International Relations . 19 Flushed With Victory and Stung With Injury . 19 Exceptionalism and its Discontents . 21 Stay the Hand of Vengeance? . 26 Flushed With Victory . 30 Stung With Injury . 35 Power and Law: Pessimism of the Intellect, Optimism of the Will . 45 We, the People and the World: American Liberalism’s Troubled Relationship with International Law . 61 Sovereignty . 65 Humanitarian Intervention . 67 The Problem of Legalism . 73 Essay 2: The Costs of International Criminal Law . 75 Towards Demise . 78 The Politics of Human Rights . 86 Holocaust Memory in America . 94 Neoliberalism, Human Rights, and International Criminal Law . 101 (A) Economics and Inequality in American Intellectual History . 104 (B) Powerless Companions and Neoliberal Stooges . 109 (C) Crafting a Via Media: Reckless Opportunists . 112 (D) Schindler’s Social Darwinism . 119 Essay 3: “The World’s Court of Justice”: A Historiography of War Crimes Prosecutions . 129 The Gavel of History . 129 Law in History . 131 History in Law . 135 A Brief History of the ICTY . 137 Trying History . 143 The Political Quality of History in International War Crimes Trials . 160 History in International Relations and Academic International Criminal Law . 174 v The Dangers of Obiter Dicta . 181 Essay 4: Shklar’s Legalism and the Liberal Paradox . 184 Legalism’s Interdisciplinary Promise . .184 Shklar and the Nouveaux Legalists . 195 Legalism in the Trenches . 204 Legalism and the Emergence of International Criminal Law . 217 Legalism, International Politics, and the Politics of Memory . 222 Epilogue: A Salutary Demise . 228 Bibliography . 233 vi List of Figures Figure 1: Unions and Shared Prosperity . 88 vii Introduction “To persons of a more skeptical turn of mind, honest criticism is not a form of destructiveness. On the contrary, it is the natural form of intellectual discourse, seen as a shared enterprise of argument and counter-argument.”1 The four essays that follow critically examine the emergence of international criminal courts: their international political underpinnings, context, and the impact of their political production in relation to liberal legalism, liberal political theory, and history. The essays conceive of international criminal legal bodies both as political projects at their inception (at least) and as institutions that deny their own political provenance. The work is one of political theory at the intersection of international relations, international criminal law, history, and the politics of memory that explores the political nature and effects of these prosecutions in their historical context. Political theory can, and perhaps indeed it should, provide unsettling insights into and mount uncomfortable challenges against conventional wisdom. These essays certainly reflect the disposition of a skeptic, and do not hesitate to critically examine entrenched ideas, ideologies, and in some cases, dogma contained in the academic—as well as judicial, middlebrow and activist— production in international criminal law and what I argue are its necessary corollaries, human rights, international relations and the new and perplexing conduct of war. These themes are obviously quite broad, but if any overarching 1 Judith Shklar, Legalism : Law, Morals, and Political Trials, (Boston : Harvard University Press, 1986), 222. 1 strands can be found in these essays it is first a concern for epistemic integrity, as well as an examination across broader issues with the way the concept of justice is understood, deployed, argued, and the validity of those facts employed to support it. Justice is one of those capacious and bedeviling political concepts, debated from (at least as far as the Western World is concerned) classical antiquity to the current time, without any resolution of the main controversies anywhere in sight. These essays will not flatter themselves with any claim to originality where the definition of justice is concerned. Rather, they question what actually existing international justice is, what it does, and how it does it, and critically examine what is meant when the concept is used as part of a political claim. Is justice a procedural matter, like the establishment of Western-style legalist war crimes tribunals in the wake of Word War II; is it economic justice;
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