Tiphaine Dickson

This article is a response to a call for a study of international criminal law as an economic phenomenon, going beyond addressing administrability, commensurability, and interpersonal comparison of utility, band instead focusing on problems of institutional choice. This approach differs from the typical methods of normative and descriptive scholarship of international criminal law. An institution like the International Criminal Court can be usefully examined as an international public good, and as such offering little incentives for states such as the United States of America to join as they can enjoy benefits without costs. This article examines the economic basis for the US non-participation in the ICC and grapples with future prospectives.

This paper examines Judith Shklar’s Legalism in light of the paradox that emerges clearly from a law-based approach to international crises that ought to be evaluated on the basis of whether the judicial initiative—the cases examined are primarily drawn from ad hoc UN Security Council tribunals—promote, in Shklar’s words, “decent politics.” The question of whether this notion is exclusively related to liberalism, and whether it may run contrary to the role of defense counsel in such trials—deeply anchored in the liberal tradition of the protection of individual liberty, and yet confronted to the politics of international criminal law and international relations, however theorized—is fundamental, as “decent politics” compete with the legalistic imperatives of the defense, and the liberal foundation of the legal systems from which UN trials have emerged. Legalism provides a theoretical thread to examine the emergence of international criminal trials as well as the relation between the universality of law and history and the politics of memory, which figure prominently as political phenomena in these trials, but which may run contrary to the liberalism inherent in the legalist form.