Abstract
The present article discusses the “peace versus justice” dilemma in international criminal justice through the lenses of the respective legal (and political) theories of Judith Shklar and Hannah Arendt—two thinkers who have recently been described as theorists of international criminal law. The article claims that in interventions carried out by the International Criminal Court (ICC), there is an ever-present potentiality for the “peace versus justice” dilemma to occur. Unfortunately, there is no abstract solution to this problem, insofar as ICC interventions will in some cases be conducive while in others, they will be deleterious to peace. If a tension between peace and justice arises in a particular case, the article asserts, the former must be prioritised over the latter. Such a prioritisation, however, requires a vision of the ICC as a flexible actor of world politics which is situated at the intersection of law, ethics and politics, rather than a strictly legalistic view of the court. Ultimately, then, the present article seeks to probe whether the legal and political theories of Shklar and Arendt—in isolation, but ultimately also in combination—support such a flexible vision of the ICC.
Highlights
In 2011, David Luban published an article in which he portrays Hannah Arendt as a Btheorist of International Criminal Law^
Samuel Moyn wrote about the political theorist Judith Shklar that she may have Banticipated the most productive way of looking at the institution, since she was the rare thinker to offer a serious account of international criminal justice as a deeply and inescapably political enterprise^
It is a testament to the fact that the International Criminal Court (ICC) has been established to intervene in ongoing conflicts, as a tool of conflict resolution (Cryer 2012, 174–179). This intended role of the Court, as its architects knew well, gives rise to the problem that in some cases, the legal prosecution and punishment of perpetrators will serve as a catalyst rather than as a restraint for conflict and violence; the fact, that its architects refused to squander the ICC’s potential as a powerful tool of conflict resolution perpetuates the Bpeace versus justice^ dilemma as the central conundrum of modern international criminal law
Summary
In 2011, David Luban published an article in which he portrays Hannah Arendt as a Btheorist of International Criminal Law^. The purpose of this article is to put this claim to the test and, more precisely, to compare the potential of both political theorists’ accounts of international criminal law with regard to the so-called peace versus justice dilemma.. The dilemma, in other words, constitutes an ever-present potentiality in international judicial interventions by the ICC This makes it inevitable to take a stance on the Bpriority question^: I maintain that if a tension between peace and justice arises in a particular case, the former must be prioritised over the latter. Such a prioritisation, requires a vision of the ICC as a flexible actor of world politics which is situated at the intersection of law, ethics and politics. While Shklar’s analysis of the instrumental role of law and her interpretation of legalism as a flexible ideology chimes perfectly with this vision, Arendt’s rather conventional notion of the purpose of international criminal law and tribunals, at least at first glance, seems to be incompatible with it; eventually, though, Arendt’s highly perceptive conception of Bcrimes against humanity^ provides strong support for such an Banti-legalistic^ vision of the ICC
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