Nullum crimen sine lege and related doctrines that limit extraterritorial jurisdiction and confer immunity ratione materiae are not inconvenient obstacles to be circumvented, but crucial safeguards to be respected. These doctrines respond to the reality that the international community remains beset by serious moral disagreement, both about what count as just ends and about which harsh measures those ends might justify in circumstances of high-stakes political conflict. In such a world, in which very few hands are truly clean, unilateral invocations of universal principles must be viewed skeptically, and associated exercises of power treated guardedly. Prosecutions undertaken in the name of the international community must establish a requisite social, and not merely a moral, basis for condemning acts - including acknowledged human rights violations - as crimes, and for holding their state-authorized perpetrators as subject to individual penal responsibility.
An over-assertive approach to international criminal justice, to be pursued unilaterally in domestic justice systems, is troubling because it risks undermining what is arguably most valuable about international law. International law provides a framework for accommodation among the non-like-minded, and a normative basis for mobilizing broad opposition to the self-righteous violence of the powerful (even as it licenses uses of force where there is genuinely no reasonable alternative). Penal processes aim to identify villains, consequently to exclude them as bearers of recognized authority, and thus as partners in negotiation and accommodation. Appropriate though such outcomes are in an important subset of circumstances, it is dangerous to distract from the deeper truth that peace means peace with others as they are, not as we might like for them to be. One must seek peace, not always with the gentle, but often with the ruthless. A repudiation of that truth risks setting in motion, willy-nilly, a new ruthlessness to end all ruthlessness.
Brad R. Roth,
Coming to Terms with Ruthlessness: Sovereign Equality, Global Pluralism, and the Limits of International Criminal Justice,
8 Santa Clara J. Int'l L.
Available at: http://digitalcommons.law.scu.edu/scujil/vol8/iss1/10