When people imagine global justice, most often they picture a courtroom, and in some ways the image is very old. According to the Hebrew Bible, God’s rule requires that the judges man the gates of civilization; at the climax of Aeschylus’ Oresteia, Athens abandons the vengeful justice of the old gods for the civic accountability of courts. Despite these ancient sources, however, today’s dream is also radically new. Where courts once palliated fears that our unbridled actions would have terrible consequences unless governed by law, they now foster hopes for the compensation of wrongs suffered by people in faraway lands. Created a decade ago, the International Criminal Court (ICC) enjoys the highest possible jurisdiction to enforce global morality, a step beyond the nation-state toward truly universal justice.
Advocates of the judicial vision of global justice say they are out to “end impunity,” but their recent prominence follows from more than pristine hope. The rise of international criminal accountability has occurred alongside the eclipse of prior schemes of global justice, which promoted not retributive punishment but social renovation to achieve liberty and equality. This aspiration had old roots too. The dream of collective redemption pulsed through prophetic Judaism, and in The Republic Plato announced a vision of justice that prizes not merely the avoidance of tyranny but achieving the good life for society.
This agenda—a constructive rather than merely corrective one—became common in modern states when democratic norms and economic circumstances made hierarchy intolerable and social transformation feasible. As global humanity sought the freedom modern times promised, the dream of social renewal also became internationalized beyond tribe, city and state. This occurred long before anybody called for the establishment of an international criminal court. During the cold war competition between welfarist and communist visions of democracy, the dream of social renewal was at the fore; now it has mostly vanished at home and abroad. At best, what remains are minor remedies for the amelioration of the worst sort of suffering. Meanwhile, judges and courts have become our fixation. How has international criminal justice ascended so quickly, and so high, even as social justice is increasingly marginalized, undermined from within at home and worsened through the victory of the free market on the world stage?
In The Slave Trade and the Origins of International Human Rights Law, Jenny Martinez doesn’t address this question, offering instead an interesting account of how international courts were invented to mitigate the Atlantic slave trade. These “mixed commissions,” created by Great Britain with various treaty partners and in operation mainly from the 1820s through the 1840s, are a minor episode in the history of anti-slavery. Yet Martinez, concluding that they have been unfairly excluded from what she calls “the international human rights law narrative,” has decided to put them center stage.
Her description of how the mixed commissions worked is excellent. Britain’s prohibition of the slave trade in 1807 applied only to its own country’s ships. During the next few years, as its war with Napoleon raged, Britain began seizing vessels flying enemy flags to ascertain if they were carrying slaves; if so, they released the slaves, auctioned the ship and awarded part of the proceeds to the captor as a finder’s fee, rules that had long been part of international custom. But with Napoleon’s fall and the war’s end, it became much more legally dubious to stop, search and capture ships.
Britain renewed its enforcement of abolition on the high seas by signing bilateral treaties with various powers whose vessels sailed the Atlantic. The treaties held that both sides could search ships for slaves and remove offenders to special international courts, where judges typically released the slaves and awarded the ship as a finder’s fee. France never entered the system of bilateral treaties, and the United States did so only during its Civil War, exceptions that created considerable loopholes: by flying French or American colors, any ship could transport slaves with impunity. All the same, the treaty arrangements led many Africans otherwise destined for New World slavery to be released, chiefly in the British colony of Sierra Leone. Over time, the courts, which also operated in Havana and elsewhere, tried the cases of 600 captured vessels and released 80,000 human beings from chattel slavery. Judged against the vast reach and volume of the slave trade, the attempt to interdict it through international courts was negligible. And many slaves died during the weeks or months it could take to sail captured ships to court. But for those 80,000 human beings, the interdiction made all the difference in the world.