Funferal

NYT, Posner, on ICJ and ICC

One of the difficulties with blogging, to my mind, is figuring out when to post on a topic. Take, for instance, this Op-Ed piece on International Justice from the New York Times. I virulently disagree with Posner’s conclusions, and believe his arguments – such as they are – are seriously flawed.
However, is this sufficient to justify blogging about it? There are many times when I’ve drafted, or started drafting, a response to some news item or piece of punditry, only to decide not to publish it. Sometimes, of course, this is because I’ve been unable to bring myself to complete it in a timely fashion. On other occasions, though, I wonder whether it is worthwhile to respond to an item, or better to just ignore it – whether to respond is to grant worth.
And so it was with this story. The piece sparked no major debate that I saw, and there is nothing particularly novel or shocking in what is said. I was tempted to just close the window, and forget about it. And yet…
And yet there is something frightening about the very ordinariness of Posner’s comments. He claims that the International Court of Justice is a failed institution, and provides as evidence the fact that the ICJ ruled that it did not have jurisdiction to determine whether “Serbia and Montenegro had a valid legal claim against NATO countries that participated in the intervention in Kosovo in 1999.” From this he concludes that the International Criminal Court (ICC) should provide “major power immunity” in order to court American support. Without this, he does not believe we can have international justice – but with it, of course, it is not justice.
Posner claims that:

With its broad mandate to enforce ambiguous laws in a world that is overflowing with war criminals, the criminal court’s prosecutor and judges have enormous discretion to pick defendants for maximum political effect.

But if this is so, isn’t it better that the ICC acts as a counter to the (im)balance of global power, rather than to further bolster the already powerful?