Friday, July 03, 2009

Of Law and War

Noting that no less than 30 African nations have officially repudiated their treaty obligations under the ICC in order to protect genocidaire Sudanese President Omar al-Bashir, Chicago international law expert Eric Posner writes:
It is increasingly clear that the ICC, like every utopian international institution that preceded it, will not accomplish its mission—to bring international justice to places like Sudan where a genocide is taking place. It is rapidly being downgraded to a development institution, one that can provide legal and judicial capacity to states that request its help in battles with insurgencies, such as Uganda and the Central African Republic.

However, Posner notes, the full fury of international law has been raining down upon Israel. Posner's advice to Israel is simple: the law doesn't matter, it's the politics. Change your behavior, do better diplomacy, or take vacations elsewhere.

I think this goes hand-in-hand with my observations about the heavily political nature of the international legal regime. Because the very norms themselves are being crafted in the midst of salient political conflicts, it is unsurprising that these norms will systematically be bent to advance the interest of locally powerful actors, i.e., those most in the position to influence the development of the law. The international legal regime is less a tool of law than it is a tool of lawfare. It is an open question whether any legal system can "escape" from political influences, but it is beyond dispute that the international legal system (for reasons any good realist could explain) is hopelessly entangled with them. It is fair to say, indeed, that there is no international law outside of international politics.

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