Power and Princi ple Power and Princi ple The Politics of International Criminal Courts Christopher Rudolph Cornell University Press Ithaca and London Copyright © 2017 by Cornell University All rights reserved. Except for brief quotations in a review, this book, or parts thereof, must not be reproduced in any form without permission in writing from the publisher. For information, address Cornell University Press, Sage House, 512 East State Street, Ithaca, New York 14850. First published 2017 by Cornell University Press Printed in the United States of Amer i ca Library of Congress Cataloging- in- Publication Data Names: Rudolph, Christopher, 1966– author. Title: Power and princi ple : the politics of international criminal courts / Christopher Rudolph. Description: Ithaca : Cornell University Press, [2017] | Includes bibliographical references and index. Identifiers: LCCN 2016037079 (print) | LCCN 2016037906 (ebook) | ISBN 9781501705526 (cloth : alk. paper) | ISBN 9781501708411 (epub/mobi) | ISBN 9781501708428 (pdf) Subjects: LCSH: International criminal courts— Political aspects. | International Criminal Court. Classification: LCC KZ7230 .R83 2017 (print) | LCC KZ7230 (ebook) | DDC 345/.01— dc23 LC rec ord available at https:// lccn . loc . gov / 2016037079 Cornell University Press strives to use environmentally responsible suppliers and materials to the fullest extent pos si ble in the publishing of its books. Such materials include vegetable-b ased, low- VOC inks and acid- free papers that are recycled, totally chlorine- free, or partly composed of nonwood fibers. For further information, visit our website at www . cornellpress . cornell . edu. Cover design: Richanna Patrick. For Jack Reach for the stars! Contents List of Tables and Figures ix Acknowl edgments xi Prologue xiv Introduction: The Light of Justice 1 1. Power and Princi ple from Nuremberg to The Hague 15 2. Nested Interests and the Institutional Design of the International Criminal Court 57 3. Explaining the Outliers: Domestic Politics and National Interests 89 4. Power, Princi ple, and Pragmatism in Prosecutorial Strategy 113 Conclusion: Between Power and Princi ple 144 viii Contents Notes 173 References 193 Index 215 Tables and Figures Tables 1.1. The Nuremberg Princi ples 34 1.2. Some pos si ble violations of the Nuremberg Princi ples during the Cold War 35 2.1. Predicted design preferences for an International Criminal Court 74 2.2. ­Factors affecting support for ICC design in de pen dent of UNSC nest 81 4.1. Level of P3 strategic interests related to specific situations 133 4.2. Investigation type for situations deemed the most grave 134 4.3. Marginal effects after probit 135 4.4. Cox Proportional Hazard Model results 139 x ­Tabe andiigure Figures 1.1. Rus sian GDP (PPP), 1989–96 44 1.2. GDP of the PRC, 1980–89 47 1.3. ICTY Bud get, 1994–99 53 2.1. Typology of regime complexity 64 3.1. UK and LMG design win sets at the Rome Conference 101 4.1. Effect of increases in gravity on probability of formal investigation 136 4.2. Effect of increases in strategic interests on probability of formal investigation 136 4.3. Gravity of situations under investigation by the ICC 137 4.4. Effect of increases in strategic interest on probability that the ICC does not open a formal investigation 138 4.5. Average weeks between preliminary and formal investigation 141 Acknowl edgments This proj ect began when I was a fellow at the Niehaus Center for Glo- balization and Governance at Prince ton University in 2006–7. Many thanks to Helen Milner and the Executive Committee for giving me the opportu- nity to spend a wonderful year at the center. I am indebted to many people for their contributions to this proj ect. 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, Court- ney Hille brecht, 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. xii Acknowl endiments I am very grateful for the support Roger Haydon has given me and for his sage guidance during the publication pro cess. 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. Power and Princi ple 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 Liiht of Justice The dawn of peace must begin with the light of justice. — Kofi Annan Idealists argue that international society is witnessing a profound trans- formation. 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 princi ples 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 his- tory 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 institu- tion represented a significant change in international politics: po liti cal and military leaders will no longer be able to victimize the innocent with impu- nity. They will now personally be held to account for their crimes in a court of law. Scholars have suggested that this shift toward individual account- ability represents a significant transfer of authority from sovereign states to international institutions.2 More broadly, proponents have lauded the rise of 2 Intronduction international criminal courts as a turning point in international politics, a stunning victory of princi ples over the realpolitik that characterize the West- phalian 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 dif fer ent 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 meta phor 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 aspeople 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 pro cess of global transformation toward a more principled order in international society. Advocates of this view point to several seminal moments in this pro cess. 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 of- ten tried the vanquished, the Nuremberg trials were notable for at least two reasons: first, they held the perpetrators of war time atrocities to account for their crimes; and second, they afforded defendants the rights of due pro cess that reflected con temporary standards of jurisprudence. A second key mo- ment came in 1993 when the United Nations Security Council (UNSC) es- tablished the International Criminal Tribunal for the Former Yugo slavia (ICTY).7 In contrast with prevailing legal norms regarding war crimes, this court affirmed the princi ple that international accountability was not lim- ited 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 be- ings are concerned.”9 The ICTY ensured that those guilty of these crimes The Liiht of Justice 3 could no longer hide behind the shield of Westphalian sovereignty. More- over, the arrest and trial of Serbian leader Slobodan Milosevic suggested that justice fi nally would be brought to the highest echelons of po liti cal power.