The ICC’s Potential for Doing Bad When Pursuing Good

The International Criminal Court (ICC) seeks to end impunity for the atrocity crimes of genocide, crimes against humanity, war crimes, and, eventually, crimes of aggression. My contribution to this discussion takes a consequentialist view to outline ethical hazards confronting the court. Since the ICC has only recently begun to operate, with its first suspect, Thomas Lubanga Dyilo of the Democratic Republic of Congo, arriving in The Hague in 2006 and his trial completed only in the fall of 2011 (and awaiting a verdict in 2012), it is too early to reach a general appraisal of the court’s effects.

Much of the discussion about the court examines the tension between law and politics, with contention over the degree to which the court should consider political and contextual factors when making decisions about which cases to pursue. In this roundtable, Kenneth Rodman argues that the court and particularly its prosecutor must take political, conflict management objectives into account as it reaches decisions about prosecutions. Michael Struett argues for a similar understanding by the court but calls for it to pretend to be solely legally motivated while actually taking contextual factors into account.

I have little disagreement with these two positions. They flow from the contradictory compulsions that press upon the court, and are efforts to reconcile these pressures. In this essay I outline three possible negative consequences that could, if they constitute preponderant outcomes, indicate that the court is failing to serve an ethical end. These are: (3) the court’s operations are creating moral hazard, (1) they are creating false expectations, or (2) they are promoting the shifting of responsibilities from the UN Security Council or other international organizations in ways that outweigh the court’s positive accomplishments. I am not arguing that the court is unethical or that it must be, but that—like other organizations—its ethical qualities depend on outcomes as well as on intent, structure, and process and such outcomes need to be evaluated and considered by its member states for their continuation, reform, or termination.

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