The Perils of Global Legalism

International courts have appeared in the news lately. The public seems vaguely aware of their existence and in some quarters there seems to be an expectation that they can try various bad guys around the world for their crimes. For some people, this means members of the Bush administration or Israeli generals; for others, this means dictators and human-rights abusers in Sudan, Iran, and North Korea.

My book discusses the history of international adjudication and its prospects for today. The bottom line is that although states have successfully relied on courts to resolve disputes from time to time in narrow circumstances, there is little reason to think that they will support a court that seeks to take on the hardest problems of international justice.

The Nobel Prize awarded to Barack Obama has crystallized doubts about how much progress his administration has really made over the Bush administration, which was widely perceived as an international scofflaw and bully. Obama has pledged to close Guantanamo Bay and has abjured torture, but it has adopted most of the Bush administration’s other counter-terror policies and the legal theories that underlay them.

Obama has expanded the war in Afghanistan and advanced it into Pakistan without congressional or UN authorization, and he has continued the policy of detaining people without charging them and launching targeted assassinations, policies which are also in tension with domestic and international law.

Rather than being disappointed with Obama, one might rethink the criticism of the Bush administration. In the anarchical international environment, legalistic thinking can easily to be taken too far. It is better to evaluate Obama’s policies in terms of international politics and morality; their lawfulness will always be, to a large extent, in the eyes of the beholder.