An irony of contemporary intellectual discourse is that the sharpest critique of the international human rights movement - or at least the critique of its foundational myths - is found these days in the sternly progressive pages of The Nation and in the hands of an un-penitent man of the Left. Samuel Moyn, a Columbia University historian, is author of the marvelous The Last Utopia: Human Rights in History (reviewed here at Lawfare by Alice Diana Beauheim), offers in The Nation of March 19, 2012 a review of Jenny S. Martinez, The Slave Trade and the Origins of International Human Rights Law, and Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics.
Calling on the rebarbative political science theory of “norm diffusion,” Sikkink hopes to show that people in local social movements affect actions on the world stage, which is surely true. But like [Jenny] Martinez, Sikkink ignores the darker reasons why morality can shine forth, and why some moralities succeed in attracting powerful backing while others do not. Strangely, she treats power as something that can only deter justice; she says nothing about how power determines which vision of justice prevails.
Her argument is seriously marred because she passes over the cessation of cold war hostilities .... [i]f a movement for international justice began only in the very last years of the cold war and led to the establishment of the ICC after the cold war had ended, it was due not so much to “democratization” as to geopolitical change. In Latin America not least, there had been many different movements for justice throughout the cold war, and the network of lawyers collaborating with “like-minded states,” which Sikkink lauds for pushing the prosecutorial mission, was only one among others. In fact, it was a latecomer to a very specific geopolitical situation ....
If the remote and recent past of international criminal justice is too complicated to narrate as a fairy tale, its current and future possibilities are ultimately hazy. International courts may not be a mirage, but one thing is clear. They emerged as an oasis because people had stopped searching for a promised land where the fight for equity involves more than litigating past crime. Many people who in modern times have answered to the name liberal or progressive, far from preferring courts as agents of change, have fought in public for the elimination of unfair divisions of wealth and power. These have been the ultimate causes of misery at home, as well as in a self-evidently unjust international order. Indicting, trying and convicting fallen despots, though a highly political act domestically or across borders, can undoubtedly serve justice. But it is not wrong to ask how much, and at what cost to other battles for justice.