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John Yoo parties like it's 1998

In the Wall Street Journal, former Bush administration lawyer John Yoo reviews recent books by David Scheffer and William Shawcross and in so doing showcases his views on the international justice movement. It's a frustrating read. Yoo offers up a fairly conventional conservative take on the international justice movement. He sees it as deeply misguided, dangerously unchecked, and quite likely to be anti-American. Stopping atrocities, he insists, is fundamentally the business of soldiers with guns (probably American soldiers) not lawyers. Anyone who has read John Bolton's numerous critiques of the International Criminal Court knows the basic arguments.

They're not all bad arguments of course. In the face of ongoing mass atrocities, there's no doubt that intervention will be essential. Anyone who argues that indictments alone will do the trick is delusional.  But very few people argue that (and some of the ICC's most ardent supporters are also loud proponents of the "responsibility to protect" doctrine).  The question is not whether international justice mechanisms obviate the need for force but whether they can, on the margins, tilt the incentives of those in power and help provide a modicum of justice in the aftermath.

Perhaps the most frustrating element of Yoo's jeremiad is that it's written as if the last decade of the ICC's existence did not occur. Save for a stray reference to Libya, this piece could have appeared in 1998, when everyone was hotly debating the merits of an ICC. Yoo has nothing to say about the ICC's investigations and indictments of the LRA's top killers, the bloody regime in Khartoum, or the rampaging militia leaders in eastern Congo. Would he rather that those investigations had not happened? Nor does he acknowledge that, contrary to the fears of conservatives, the court has not stepped on the toes of  major powers, including the United States. The ICC has never opened a formal investigation into Iraq or Afghanistan. It has temporized on Palestine. In short, this is not the court that Bolton and Yoo feared.

There's no doubt that the battle over the ICC in the late 1990s was a heady time for national security conservatives. But at some point soon they are going to have to stop reliving the glory days and start reckoning with the work of an institution that exists and has a real record to be debated.

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