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Moral hazard and humanitarian law: The International Criminal Court and the limits of legalism.

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Thomas W. Smith

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This article considers the limits of law in addressing large-scale human rights disasters. Focusing on the International Criminal Court, or ICC, the article suggests that conceiving of international justice in terms of retribution and accountability diminishes the idea of justice-as-rescue. It is relatively painless for states to endorse a Hague tribunal established by international treaty and cloaked in the mantle of law. It is much harder to seek immediate justice by intervening to prevent or stop atrocities. Trials and interventions are not mutually exclusive, but there are a number of reasons – a preference for law over coercion, public opinion tilting away from intervention and toward tribunals, growing skepticism about armed intervention, UN caution, member-state wariness, and possibly the ICC’s own ban on aggression – to believe that decision-makers may opt for legal remedies rather than risk intervention. The article underscores the challenges of grounding humanitarian duty in either law or ethics, but calls for further development of a political framework for intervention in order to balance the pursuit of international justice.


Abstract only. Full-text article is available only through licensed access provided by the publisher. Published in International Politics, 39, 175-192.




Kluwer Academic Publishers

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Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

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