Reading Adam Smith’s book now, after the intense debates around the ICC’s arrest warrant for Sudanese President Omer al-Bashir, provokes a deep sadness at how impoverished the discussion of international judicial proceedings is when it comes time for policy prescriptions. This does not need to be the case. There have been volumes written about how to introduce judicial or other mechanisms into societies struggling with violence — beginning in their contemporary form in South America, then traveling to South Africa and then growing exponentially since the ad hoc tribunals came into existence in the early 1990s. With addition models for courts and other transitional mechanisms, the discussion has evolved and grown.

Many of the most salient points that Smith raises have been addressed in other works as well, and yet, as the discussion of the Bashir arrest warrant reveals, the richness of this discussion has not penetrated the practice of power politics. Why has the policy discussion of judicial mechanisms been carried out largely without reference to the critical reviews of current practice?

There are three major reasons: First, there is a division between the advocacy world and research into post-conflict societies. The knowledge created by in-depth research into past experiments with international justice rarely gets circulated beyond the case-specific experts (see, for example, the fabulous work done by Harvey Weinstein and Laurel Fletcher on Bosnia).

Second, the judicial model of response happens to be a good fit for the international community’s attention span when it comes to places in crisis. There is a clarity and delimitation of engagement in judicial proceedings that matches the level of commitment and attention the international community is willing to bestow on any particular crisis. In places that are too often already marginalized, with complex political and social dynamics, and historical significances that create head-spinning tapestries of meaning for today, judicial proceedings offer a standardized formula.

Finally and perhaps most central, there is a view among the most influential human rights advocates that the international judicial system is weak and that debates – generally dismissed as ill-founded — further handicap this infant tool. As Aryeh Neier has stated:

“… the court has no means of its own to arrest anyone in Sudan, much less a head of state who commands the country’s armed forces. Nor is there any prospect that someone else will intervene in Sudan to make an arrest. While the ICC’s chief prosecutor, Luis Moreno-Ocampo, expresses confidence that Bashir will be brought to justice, it is unclear how this will happen. But it could.

“Despite the ICC’s seeming powerlessness, many governments’ leaders are engaged in strenuous efforts to block the indictment. They do not seem concerned that the charges are unfair; rather, they appear to be demonstrating solidarity with a fellow head of state.”

Neier’s comments contain some truth, but they also obscure a few points. Criticism of the international system is not necessarily grounded in protection for human rights abusers. That argument is the proverbial blow to the knees to legitimate concerns with the international system. Further, the Court is described as weak compared to the other forces at play in power politics – which is true — but not when compared to other potential justice mechanisms or other visions of how the international human rights community might use its platform to protect the emergence of unique solutions to specific crises. The human rights world has put many eggs in this ICC basket and is engaged in protecting the institution so that it might join the legions of the powerful on the international stage. This may be the best strategy for building an international criminal justice system, but it reveals an accommodation with power designed to create a new institution, rather than solidarity with people at risk as the overriding priority.

Two distinct positions are emerging on the purpose of international judicial proceedings. There is a camp of judicial absolutists who argue that international judicial proceedings are a perfectible, universally valuable tool. In their minds, judicial proceedings are an end unto themselves (the performance of a judicial proceeding, however it might be challenged in any of its particular forms, as midwife to the realization of just societies). In the latter camp, which I’ll call material realists, are those who view judicial proceedings as only one part of a larger landscape of competing social, political and economic interests that support just solutions for human rights abuses. For this camp, the ultimate arbiter is the society where conflict has occurred or is occurring.

Adam Smith’s book rehearses many of the arguments posited by these two camps as well as some offered by various nationalist perspectives. He dismisses the nationalist arguments that are based on a desire to warp the historical record or are aimed solely at self-preservation. He offers a thorough practical critique of the various courts’ performances that is relevant for both the judicial purists and the moderate critics. In the end, he applauds the capacity within the international system, but posits that all the goals (short of the contention of justice for justice’s sake) of holding trials are better served by domestic proceedings: “a concerted focus on the domestic arena may make recurrence””and a return to “˜hell’ – that much rarer. It does not quite reach “˜never again,’ but it hopefully can move us away from “˜again and again'” (p. 344). To strengthen its argument, the book might have addressed critiques of national procedures, like Lars Waldorf’s insightful and informed analysis of the Rwandan gacaca process. The task at hand isn’t to romanticize national processes as a cure for romanticized international processes, but to view each frankly for what it can and cannot achieve. This is the honest discussion that has been obscured in policy debates.

But Smith is right to draw out the ways that absolutists have dominated the policy field on these issues. At one critical moment, Smith hones in on the central philosophical difference between the absolutists and realists that perhaps best explains how this domination has altered the role judicial proceedings in (post) conflict societies. He describes how the core rationale for the Yugoslav court changed:

“…it was not to ask what was the problem that the tribunal solved, but rather where was the problem it solved. On this there was widespread agreement, and this was unaffected by realities on the ground in the Balkans or anywhere else crimes took place. There was an accord that any problem that existed did so on an international plane…It was as though the crimes themselves had been perpetrated on the international plane, rather than in the destroyed homes, torched businesses, and decimated places of worship in the Balkans” (pp. 81–82).

As the ICTY judges wrote in their judgment of Drazen Erdemovic, a crime against humanity can foremost be understood as a crime where humanity is the victim:

…crimes against humanity also transcend the individual because when the individual is assaulted, humanity comes under attack and is negated. It is therefore the concept of humanity as victim which essentially characterizes crimes against humanity. (Erdemovic judgement, para 28).

The point at which victims lose their individuality, subsumed within a weak conceptualization of “humanity” that is tied to the international community and the tribunal as its voice, marks the philosophical divergence whereby the abstraction of “international justice” parts ways with the afflicted populations. But abstractions – even those of justice or humanity – are deconstructed by material reality. Two examples:

In the summer of 1996 the tribunal hired a team of forensic anthropologist to exhume a series of mass graves several of which were related to Srebrenica. Srebrenica served as one of the few hold-outs in Bosnia’s east where Muslims could escape Bosnian Serb’s ethnic cleansing assaults. When it fell, just a year before the exhumations would take place, the Bosnian Serbs killed some 8,000 people, mostly men and boys. In exhuming these bodies, the tribunal only needed to know that they were Muslim, from Srebrenica, and killed in a systematic way. So the bodies would be exhumed and examined only for the purposes of evidence. The families would not witness the work, nor were their demands to learn the fate of their loved ones served by it. For the families, there weren’t “bodies” in those mass graves, there were spouses, parents, children whom they prayed and hoped against all signs were still alive. In November 1996, the tribunal’s forensic team finished up their work and the bodies were stored away in a makeshift morgue.

The exhumations in Bosnia might never have occurred if the tribunal had not needed forensic evidence, thereby framing the bodies within judicial meaning. Then again, without the evidence collection operation by the tribunal, the bodies might have been easier to identify – as it was, the Serbs dug up the bodies with bulldozers and moved them sometimes more than once, to avoid detection by tribunal investigators. These moves created the horrifying quandary for later identification efforts – DNA methodologies could identify a single bone, but how much of a body do you need to assemble before returning it to a family for burial? Regardless, the work begun by the ICTY teams was handed over to an international commission and now is run by a national commission on missing persons. They have done remarkable work returning the bodies, as material objects, to social and personal significance. Should this be considered a triumph of international justice? It started something it could not finish. How do we classify this?

In a tiny cluster of one-room cement houses in Rwanda, a woman lay dying of AIDS. She had testified at the ICTR about being brutally gang raped during the genocide. That violence was also how she contracted HIV. The man she testified against was receiving full medical treatment in UN holding cell while she painfully wasted away in a small hillside community. The drugs that might have prolonged her life and the healthy regime to sustain their effects were simply beyond her financial capacity. Outside the house, her young son shyly greeted visitors; he was born after the genocide and looked healthy, but what would life hold for him?

In Rwanda, there is an astonishing challenge to the concept of justice when the international system collides with the poverty of victims. How – except in the most mundane confusion of the concept of justice with the tool of judicial proceedings – can one arrive upon the scene of the dying victim, still dying ten years later, and not think justice would demand that she deserves the rights afforded her perpetrator in an international holding cell? In this situation there was no escape – he was convicted and she died. I do not know what happened to the son, whose inheritance likely included only HIV and poverty. Is this justice?

And wouldn’t it be surprising to the people of Darfur to discover that if the ICC follows the ICTR’s example ,(1) the costs to mount trials of three Sudanese government officials is equal to a full third of funds being discussed as a compensation for the millions affected by violence in Darfur? Clearly these funds are not simply available and awaiting distribution for any relevant cause, nor should the international community’s coffers be tapped to compensate for the Sudanese government’s assaults against its civilians, but it does demonstrate a basic economic inequality at play when the international and national collide.

The greatest problem is not whether international judicial proceedings – or for that matter national proceedings – make significant contributions to societies in conflict or emerging from conflict. They can. The challenge, as Adam Smith well-documents, is that the expense, profile, and absolutist nature of demands for judicial proceedings fundamentally diminish the space for conceptualizing nuanced response to specific situations, for discussion of competing political exigencies, and for a local conversation about the future of a society at risk. Judicial institutions, like all institutions, follow a self-sustaining logic at some point. They are institutions designed to hold individuals criminally responsible. This is good. But they are not designed to nor do they accomplish the many other priorities that victims, in particular, but also afflicted societies writ large need to address. At a certain point, and most particularly when the more absolutist arguments win the day, judicial proceedings part ways with the concern with justice.

Smith’s argument supporting national proceedings bears witness to this reality. In many ways that is why the ICC statute included emphasis on complementarity. The Court should only become active when national institutions fail. But the core tension between international mechanisms and local realities is not magically cured with this procedural safeguard. The conversation amongst those who truly care for just resolutions needs to be foremost grounded in justice, not in institutional protectionism or the abstraction of justice for justice’s sake. For too long, the courts have been treated as weak, undersupported heroes on the international scene (and in some ways they are), but they are also institutions that need critique in order to remain true to their cause.

The international community has enough blunt instruments (even be they “for good”) that cite the interests of, but then abandon the most afflicted populations. “Justice” as a concept and in practice need not be one of these.

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(1) The ICTR is projected to have cost $1.4 billion by the time it finished its work; the ICTY comes in at $2 billion, Smith, 182–183. Others have divided this out to come to roughly $30 million per verdict, see Mark Drumbl, Atrocity, Punishment and International Law (Cambridge: Cambridge University Press, 2007), p. 95.