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.
Martinez’s description of this victory is more useful than her analysis of it. A Stanford law professor who helped argue Rumsfeld v. Padilla before the Supreme Court, Martinez hopes to bolster contemporary human rights law by claiming that it was formed in the battle against slavery and consequently has already made a great difference to the world. With her single-minded focus, Martinez ends up telling an uplifting story with many blind spots. For example, she admits to being unsure why countries with much to gain from maintaining the trade were motivated to sign bilateral treaties with Britain. She also ignores Britain’s motivations, simply assuming that pure benevolence led it to establish the international courts.
As New York University historian Lauren Benton has shown, however, the British government shouldered this costly interdiction effort in order to cement its imperial control of the oceans. The same was true of the separate attempts by several nations to declare slavers enemies of mankind and thus, like pirate ships, open to boarding and capture even outside the system of bilateral treaties. (Martinez supplements her account of the mixed commissions with coverage of this tactic.) That the British Empire proved open to humanitarian voices at home was not so much a case of power bending to morality as of morality bending to power. Humanity provided the warrant for what one observer acidly called “war in disguise,” when the policing of the seas was crucial, in an age of rival empires.
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As if writing history were a game of connect the dots, Martinez soon leaves the nineteenth century behind, struggling to show that mixed commissions inspired later activism in international law. Her attempt to prove this proposition betrays the flimsiness of her evidence. Martinez insightfully claims that the attack on the slave trade was the first instance in which international law allowed for the protection of noncitizens abroad, though it did not pioneer accountability for individual slavers (except through the loss of their ships and property). But sometimes inspiring precedents are forgotten, and the fact that Martinez needed to excavate this one undermines her case for its legacy as a well-worn “bridge to the future.”
Martinez’s book is part of a larger trend among historians to reclaim abolition for the sake of today’s human rights agenda in all its controversial specifics. Nobody doubts that abolition was a good cause and restored the humanity of those it helped [see Eric Foner, “Inhuman Bondage,” August 29/September 5, 2011]. But there is still an essential debate to have about whether the fight against slavery undergirds the principles and actions of today’s international human rights regimes and movements. Just as abolitionists almost never used the idea of rights, activated as they were by Christianity, humanitarianism or other ideologies, nobody in the nineteenth century ever proposed a larger international plan to try criminals. And as much as everyone admires abolitionism, it is equally clear that the cause immediately served many political enterprises, manumission being just one.
Most of all, abolition burnished Britain’s moral credentials as it gobbled up foreign territory after establishing mastery of the seas. The legacy of abolition in international law was primarily a colonialist one, as with the Berlin treaty of 1885, when the great powers carved up Africa among themselves. The heartstrings were tugged by promises of humanitarian campaigns, with the treaty’s European signatories vowing to “watch over the preservation of the native tribes, and to care for the improvement of the conditions of their moral and material well-being, and to help in suppressing slavery, and especially the Slave Trade.” W.E.H. Lecky famously called abolition “among the three or four perfectly virtuous pages comprised in the history of nations,” and Martinez similarly needs it to be an unqualified good in order to trade on its legacy. She writes in passing that colonialism remains “controversial” but doesn’t say anything else about it. Even more disturbing, she says the lesson of her history is that international law, great power and military force should be “mutually beneficial,” which she sees as especially relevant as America faces its last chance to export humanitarianism as its ascendancy wanes, as Britain’s once did.
Even as Martinez fails to mention that British abolitionists rarely resorted to international courts, she only grudgingly admits that slaves freed by abolitionist efforts, especially in Cuba, lived out their lives in penurious circumstances and often forced labor. Such ambiguous consequences of emancipation once caused its students to worry about whether it would lead to new versions of unfreedom. Yet it is also true that after the end of chattel slavery, abolition could prompt novel insights into how oppression and subjugation still burdened humanity, sometimes in unsuspected forms. That Martinez is the first to think that the legacy of abolition is the campaign for international human rights courts does not cast a shadow on her predecessors; instead, it’s proof that partisans of justice—many galvanized by abolition—were pursuing other dreams, causes and mechanisms until yesterday.
In the face of past and continuing debate about the meaning of abolition for future campaigns for justice, Martinez simply assumes it is self-evident that those who admire it should pursue international human rights law in its current forms. But that doesn’t follow in the slightest. Just as a better way to study the past is to understand it in its complexity, it is more convincing to argue a present cause by first determining its political meaning today. Conjuring up a long-ago experiment to buck up the project of international human rights, Martinez risks obscuring the conditions under which the cause of international criminal justice suddenly became so appealing and international courts currently operate. Among other things, for instance, Martinez’s stirring story of how Africans were freed thanks to international law might leave you surprised to learn that the International Criminal Court, which came into being in 2002 in a completely new context, so far has indicted only Africans.
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In The Justice Cascade, Kathryn Sikkink, a prominent political scientist at the University of Minnesota, offers a somewhat more persuasive historical argument for understanding the ascendancy of international courts. She makes the essential point that these tribunals couldn’t have existed without domestic courts. In particular, during the interregnum between the Nuremberg trials and the establishment of international courts in the 1990s to try Bosnian and Rwandan war criminals, it was local judiciaries that led the charge to hold vile former political leaders accountable.
Sikkink has written one of the most useful books available about the rise of international criminal accountability. She begins by linking its emergence to what Samuel Huntington called, in a celebrated phrase, the “third wave” of democracy, for it was Greece and Portugal that first made use of domestic courts to try former military leaders after their 1974 revolutions. Nations in Latin America soon did the same, first in Argentina after 1983, when Raúl Alfonsín turned to the courts to help move his country beyond its own dictatorial experience. It was in Argentina’s courts that Luis Moreno-Ocampo, who would become the first chief prosecutor at the ICC, cut his teeth.
Sikkink’s argument hits a snag when she philosophizes about what made this venture so influential in the world, first in Latin America and then globally. Calling on the rebarbative political science theory of “norm diffusion,” Sikkink hopes to show that people in local social movements affect actions on the world stage, which is surely true. But like Martinez, Sikkink ignores the darker reasons why morality can shine forth, and why some moralities succeed in attracting powerful backing while others do not. Strangely, she treats power as something that can only deter justice; she says nothing about how power determines which vision of justice prevails.
Her argument is seriously marred because she passes over the cessation of cold war hostilities as the major reason many more states were willing to flirt with the project of holding leaders to account. She acknowledges that, much like the Nuremberg trials before them, the Greek and Portuguese prosecutions had little to no impact on the formation of a transnational judicial agenda. If a movement for international justice began only in the very last years of the cold war and led to the establishment of the ICC after the cold war had ended, it was due not so much to “democratization” as to geopolitical change.
In Latin America not least, there had been many different movements for justice throughout the cold war, and the network of lawyers collaborating with “like-minded states,” which Sikkink lauds for pushing the prosecutorial mission, was only one among others. In fact, it was a latecomer to a very specific geopolitical situation. Telling the story of her own career and contacts in engaging set pieces about legal advocacy, Sikkink says she is interested in how norms travel between global and local levels but nowhere admits that the enterprise of building accountability was driven by elites cooperating across such lines. And the key fact about this set of actors is that—along with human rights movements in general—they achieved their appeal and their access to power in novel circumstances.
The destruction of the Latin American left, along with the fall of its counterrevolutionary enemies, was the context in which “transitional justice” became a substitute idealism for many trying to invigorate new democratic regimes in the final years of the cold war and immediately after. Most of all, the end of the cold war made some dreams illusory and others plausible far beyond Latin America. Sikkink’s “cascade” metaphor for understanding the accountability trend obscures these facts.
I am not sure it is a credit to justice to describe it as spreading in the same way that—in the Malcolm Gladwell anecdote Sikkink says she is drawing on—Hush Puppies went from being uncool to ultra chic. More important, the metaphor of a cascade suppresses the human insight and opportunity involved in pursuing justice. Humans are not water: with our ideologies and interests, norms spread among us because of choice and circumstance. Sikkink admits to having doubts about her scheme when she insists that “diffuse” is an active verb in her lexicon. Besides failing to note that elites drove the project of spreading the goal of accountability, she doesn’t see that elites were able to make their project stick only when other schemes of justice—ones that had previously been more aspirational and more popular—had been made unavailable or unexciting. One stream seemed major only as earlier torrents evaporated or were dammed up. Elite networks surely mattered, but only in a story about great-power conflict and shifting ideology.
If so, and not least when it comes to Latin America, Sikkink should have begun with the premise that the “justice cascade” of international criminal accountability was in the first instance a narrowing of the potential meanings of justice. Its goal was not to change society from top to bottom but to punish those who—as in the case of the Chilean general, Augusto Pinochet—had risen to power to eliminate the possibility of social reform.
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Examining the practical difference prosecutions make, Sikkink honestly acknowledges that the jury is still out on whether individual criminal accountability improves the world, even if just to prevent the sorts of abuses for which courts put individuals on trial. Then she turns to an even tougher question: whether the most powerful nation in the world, the United States, can remain permanently outside the practices of retroactive justice that Sikkink sees as increasing around the globe.
In one sense, the answer is obvious. The United States hasn’t ratified the treaty forming the ICC, so its leaders cannot be prosecuted by it. Nevertheless, Sikkink contends that because the US government is party to an array of international legal instruments (notably the Convention Against Torture, of which she gives a useful account), lawyers in the George W. Bush administration felt compelled to consider potential international accountability for the mistreatment of detainees. Most notoriously, John Yoo offered up “torture memos” explaining that the prohibition of torture by various international treaties applied to some practices but not others. The documents were abhorrent. But as Sikkink observes, had all the president’s men not feared punishment under future circumstances, they wouldn’t have defined torture down, or granted CIA requests for cards to get out of jail free.
Converting what might seem like an objection to her case into an argument for it, Sikkink’s account of the torture memos is ingenious and probably right; but it doesn’t then follow that American power is under significant threat from international law, or that Bush is going to be put on trial anytime soon. Recently Amnesty International asked Canada to arrest and try him during a planned visit there, but Canadian officials dismissed the request as a stunt. Though more than a trickle, the calls for international criminal accountability for human rights abuses will remain unworthy of full enthusiasm so long as the powerful remain high and dry, as Sikkink should have more clearly acknowledged. Not having recognized America’s cold war victory as the geopolitical context for the rise of one vision of justice as opposed to others, Sikkink can’t fully reckon with the coincidence that America has been left out of that very trend so far.
All the same, while the least promising fact about Martinez’s account of mixed commissions is that the greatest power in the world ran them, it is to Sikkink’s credit that she is more openly nervous about the glaring difficulty of international criminal tribunals: originally promoted by lesser nations, the ICC has become a forum for accusing their leaders alone. Sikkink’s prediction that one day the United States will be flooded with calls for international justice is wildly optimistic, and her focus on regions other than Africa leaves the politics of international criminal law unclear, given that it is most concentrated and most enigmatic on that continent.
If the remote and recent past of international criminal justice is too complicated to narrate as a fairy tale, its current and future possibilities are ultimately hazy. International courts may not be a mirage, but one thing is clear. They emerged as an oasis because people had stopped searching for a promised land where the fight for equity involves more than litigating past crime. Many people who in modern times have answered to the name liberal or progressive, far from preferring courts as agents of change, have fought in public for the elimination of unfair divisions of wealth and power. These have been the ultimate causes of misery at home, as well as in a self-evidently unjust international order. Indicting, trying and convicting fallen despots, though a highly political act domestically or across borders, can undoubtedly serve justice. But it is not wrong to ask how much, and at what cost to other battles for justice.
Sikkink says forthrightly that the “cascade” to which she refers leaves aside justice in some larger and reconstructive sense, suggesting simply that it has become increasingly legitimate—though not inevitable—for individual statesmen to be put on trial to right atrocious wrongs of state. But a different tradition will have to be rediscovered if justice is to move from overcoming crimes of the past to debating plans for the future, whether they involve a better state or a defensible global order.
It is here that the rise of the international court in the idealistic imagination is particularly significant, for it is obvious that strong and wealthy nations are never going to legally mandate their own loss of superiority and money—and no court will dare call them enemies of mankind for not doing so. For her part, Martinez permits herself to dream for a moment when she suggests that her story might someday help us see that the powerless and poor of the world need our help just as the slaves once did. Then she checks herself: “To be sure, few if any of these problems are susceptible to resolution by international courts.” True enough, but then the reason to study their past and present ought to be not just to register their heroic possibilities but also to acknowledge their humbling limitations.