Here's a little conundrum I've been wondering about lately. The conventional wisdom on Iraq—or at least the CW we Bush-bashers find, ahem, rather convenient—is that Paul Bremer's rapid "de-Baathification" was a big fat mistake. The U.S. purged too many high-level and mid-level Baathists, disbanded the Army much too quickly, and basically filled the ranks of the insurgency with pissed-off former management. Right? Right.

Okay, but now consider an institution like the International Criminal Court, which is also rather convenient for us Bush-bashers to love. But look, if the ICC was the primary and most commonly-used structure for trying former war criminals, its rigid rules probably would have led to a similar purge of a huge number of high- and mid-level Baathists, along with prosecution of hordes of Iraqi army officers (which would have led to the same utter lack of competent Iraqi Security Forces we see today.) Perhaps.

Or heck, take a better example: After Japan surrendered in 1945, the American occupation under MacArthur decided it didn't really want to prosecute that many high-level Japanese officials—only a select few truly rotten apples—because all those dastardly politicians and military officers and planners were actually needed to run Japan. So the U.S. and ten other nations set up a very ad hoc tribunal, held the Tokyo trials for a scant 28 Japanese war criminals, and dispatched a swift victor's justice. And they didn't really go much further. (Look at how many bad guys they let off scot free!) Looking at the ICC's charter, you could argue that the overseers of the Tokyo trials were indeed "unwilling or unable to genuinely carry out the investigation or prosecution," at which point the ICC would have had to step in. But the Tokyo trials worked because the U.S. was unwilling to go all the way.

My point, I guess, is that oftentimes there are sound pragmatic reasons not to punish defeated states too thoroughly and to forgive violations of international law, and when that happens, the crude practice of "victor's justice" and ad hoc tribunals can get the job done pretty well. Strict rules for war crimes prosecution, on the other hand, can be somewhat inflexible, ill-suited to the realities of war and peace. Again, I think. Note that this isn't the usual criticism of the ICC, that it would restrain American might (I don't think it would), but rather than it would hinder the ability for post-conflict reconciliation. Sometimes forgiveness is the way to go.

Admittedly, I've glossed over a lot of details about the ICC and war crimes tribunals, mainly because I'm somewhat ignorant, so this could all be quite wrong. But it's still, worth thinking about. My vague, vague, vague sense is that it's hard to make a principled case for the ICC that would actually reflect the reality of international relations. Nevertheless, it seems a fully-functioning ICC would provide for a nice tool to adjudicate certain conflicts, and the court would sit alongside a lot of other, more haphazard and ad hoc tools that would also be used just as frequently. But it's still a good tool! One of the benefits of the ICC, for instance, is that it would have an already-established infrastructure, so it would cost less to do your run-of-the-mill prosecutions (don't need to set up a brand new court each time). But more flexibility seems necessary, unless I'm misinterpreting something, which is possible.

(Also, there's a strong counter-argument here. If leaders of the future knew that they were more likely to be prosecuted under a strict and inflexible ICC regime, they would be less likely to violate international law in the first place. So you swap the benefit of forgiveness for the benefit of deterrence. Something tells me we had a similar debate to this a few weeks ago, over bankruptcy laws… Personally, I think deterrence is overrated—and also, the strict threat of prosecution may make many war criminals more reluctant to surrender, as was the case with Serbia, no?)