Law, Justice, and Expediency in Global Politics: Achievements and Limitations

I. Introduction

Highly complex and evolving developments of the late twentieth and early twenty-first centuries have added new complexities to the nature of the relationship between ethics, politics, and law. More positively, the rise of international human rights, facilitated by the emancipatory potential of the digital world paired with information technology, has fundamentally altered the political and legal landscape in the modern period. Yet, on the negative side, the question of precisely how to deal with a legacy of abuse in societies undergoing a transition from authoritarian to democratic regimes poses vexing dilemmas. One such dilemma concerns the issue of a "truth for justice" trade-off, raising the critical question of whether to press for accountability prior to or after amnesty has been adopted by legislation, effectively establishing—one way or the other—individual judicial accountability for past human rights violations in emerging or fragile democracies.

Beyond adopting a diverse variety of legal, political, and moral approaches, one central theme in all three books catches the reader's attention; it is impossible to avoid agonizing choices when trying to reconcile legal, moral, and policy tensions. While David Boucher argues that partial limits on criminal prosecution would be the price of stability, Mark Freeman takes on the pragmatic task of balancing the demands of law, justice, and effectiveness, especially when dealing with the question of under what conditions amnesties should override considerations of justice. By contrast, Cath Collins places the issue of accountability in post-transitional societies at the heart of her analysis. While examining the role of the domestic actors, strategies, and courts in holding perpetrators of war accountable, Collins assigns a higher priority to accountability and justice than to truth-telling and amnesty. The intent of this review is to discern similarities and differences between and among these three perspectives with an eye toward demonstrating the achievements and limitations of international human rights law and international criminal law.

II. The Place of Ethics in International Relations

In The Limits of Ethics in International Relations, David Boucher notes that since the 1990s, a juridical revolution of sorts has transpired. In this regard, Boucher refers to a category of the fundamental rights, known as the law of armed conflict, which are generally described as humanitarian rights and subsumed under international humanitarian law, as those rights have their sources in customary law. These rights initially assumed great importance in the Nuremberg Tribunals and the Tokyo Tribunals. More recently, their protection rose to prominence at the ad hoc tribunals for Rwanda and the former Yugoslavia, as well as in the Rome Statute of the International Criminal Court (ICC). Boucher argues that these humanitarian norms are viewed as rights, duties, and obligations that have the recognition of the international community and are thus warranted on the ground that they contribute to the common good of international society.¹ Boucher rightly points out that the ICC represents a significant curb on state sovereignty, despite the fact that "complementarity" was the price that signatories demanded. This means that the ICC will act only if domestic courts are unwilling or unable to do so. It is apt to note that the ICC's prosecutor has the independent authority to initiate his/her own cases.²

The Rome Statute of the ICC has also marked a milestone in the degree to which human rights and humanitarian rights under international law have become more sensitive to gender issues. The significance of these tribunals is that rape and sexual assaults came to be part of their jurisdiction. The ad hoc tribunals and the ICC have extended their description of the term genocide to include gender-specific acts, such as systematic rape, especially in times of war...