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Power vs. principle in international courts

By Kaitie Catania

Christopher Rudolph standing and presenting at a panel discussion.

According to UNICEF, at least 650 children were killed in the Syrian Civil War in 2016. In 1994, an estimated 800,000 Rwandans were killed in 100 days. During World War II, an estimated 6 million Jews were killed in the Holocaust. To bring justice to these victims, the world looks toward institutions such as the International Criminal Court (ICC) and other international ad-hoc courts to prosecute individuals that commit acts of genocides, crimes against humanity, and war crimes worldwide.

Established in 2002 as a permanent international court to try these kinds of cases, the ICC is lauded by many as a victory that upholds human rights principles. However, Professor Christopher Rudolph says many critics view the ICC as irrelevant or vulnerable to power and politics of the court’s participating countries. The gray area in between those competing beliefs is the subject of Rudolph’s new book, Power and Principle: The Politics of International Criminal Courts, which makes the case that neither side is right nor wrong; but rather they are interlaced in the courts’ functionality and trials.

“The book is about really unpacking the less obvious ways that power permeates the [court and judicial] processes, including providing opportunities by which more principled politics could take place,” says Rudolph.

He explores the history and cases that international courts have tried over the years to show that states are motivated and influenced by unique power struggles and humanitarian principles that shape both cases and the courts themselves. In an era when gross human rights violations occur daily around the world, Rudolph offers a better understanding of the implications and role of the courts today.

“Clearly, human rights ideals have been not only taken in by people around the world, but also have diffused globally to such a degree that when these [crimes] happen, there is enough hue and cry to not just sit around and watch, but to do something,” he says.

Using Tiananmen Square Massacre as an example, Rudolph explains that China was seen in a negative global light after the 1989 incident occurred that left several hundred Chinese demonstrators dead at the hands of government troops. Rudolph says this atrocity happened around the same time that China sought to improve its economic standing, gain entry into the World Trade Organization, and increase its global trade with Western countries.

“For the Chinese, human rights became a problem for this broader agenda, and they needed to do damage control,” he says. Shortly after, in 1993, China was given the option to weigh in on the creation of the International Criminal Tribunal for the former Yugoslavia (ITCY), an ad-hoc court designed to try perpetrators of the serious crimes that occurred during the Yugoslav Wars.

“This represented an opportunity—not just with words, but with deeds—to do something that looked supportive of human rights and for accountability and justice at a time when they looked like they weren’t for any of those things,” explains Rudolph. China voted to establish the ITCY.

“It was a relatively cheap way to try to re-ingratiate themselves into Western liberal countries in order to get back on track. For China, principles of human rights weren’t the driving factor in their decision to establish the ITCY.”

Filling the theory void

In addition to examining world events and ad-hoc courts through time—from the Nuremberg Trials of the 1940s, which tried members of the Nazi Party and Germans associated with crimes against humanity that took place during the Holocaust, all the way to today’s humanitarian crisis in Syria—Rudolph’s book also tests and develops various theories about international criminal courts to further highlight how intertwined principles and politics are in these courts.

“There’s this vast gulf between the legal approach to international law and the political approach,” he says. “One of the things that is in relatively short supply in literature dealing with international law is that it is generally heavily dominated by legal scholarship that is not theory-oriented, in a sense of explaining why X changes have this effect on Y.”

While Rudolph’s work provides a new perspective in literature about international law and international courts, he is hopeful that it may offer new insights on policy and pragmatic responses to today’s complex international affairs and human rights crises: “What role should proponents of accountability and justice play in these early stages when horrible things are happening? What’s the more important priority: the justice or the stabilization?”