On March 4, 2009, the Pre-Trial Chamber of the International Criminal Court (ICC, or “Court”) issued an arrest warrant for the president of Sudan, Omar-al-Bashir. Hailed by most human rights groups as a victory for justice, the arrest warrant has since led to concern that the ICC's action will further destabilize the region. Whether or not we agree with the ICC's action, it is clear that it now plays a central, if not commanding, role in ensuring that the worst perpetrators of gross human rights abuses are held to account for their crimes. And yet, as these two books under review emphasize, the Court faces considerable odds in effectively prosecuting perpetrators of the crime of genocide, crimes against humanity, and war crimes. This is because its effectiveness at bringing defendants to The Hague, holding trials, and punishing the perpetrators of these crimes still depends on state cooperation. This uncomfortable fact of realpolitik should, if anything, call attention to the ongoing challenges posed by politicized justice (or the state's manipulation of the international legal process to serve its domestic political ends) and to the study of the politics of the ICC.

Benjamin Schiff's Building the International Criminal Court is a comprehensive account of the politics of the Court. Schiff argues that the Court faces challenges from both within and without (United States, China, and referral states), and that the tensions between the prerogatives of the Office of the Prosecutor and the Judiciary (Pre-Trial Chamber) have already exposed the Court's relatively fragile decision-making process. Even more volatile and less transparent are the tensions between territorial states and the ICC chief prosecutor in the context of the so-called First Situations: namely, Uganda, the Democratic Republic of the Congo, the Sudan, and the Central African Republic. In Uganda, for instance, these tensions encompass the often conflicting demands of three parties: the ICC, the Ugandan government, and the rebel faction, the Lord's Resistance Army (LRA). Schiff's analysis of the ICC's arrest warrants for the four rebel leaders of the LRA illustrates these tensions in fine detail. Tightly woven and highly cogent, his discussion is an impressive dissection of the political tensions that have called into question the ICC's own role in administering justice. One might take some issue with the word “dilemma” (p. 211) to describe the problem of trying the LRA rebels at the national level, since there is little sign that the Uganda government's implementation of a national war crimes court will ever convince ICC officials of the need to drop the arrest warrants. But this is a rather minor (and somewhat moot) point in what is a seamless and comprehensive analysis of the “First Situations.” Indeed, Schiff's book is the most engaging, accurate account of the ICC available: a rare gem in the growing literature on the ICC, and one, I imagine, that will serve the needs of scholars, practitioners, and laypersons alike for some time to come.

Michael Struett's account of the politics of the ICC, by comparison, is a sophisticated exegesis of the discursive dimensions of the Court, one that focuses principally on the design of the Court. Struett's central claim is that the discursive properties of the Court's construction (e.g., rational argumentation and moral persuasion) are crucial to an understanding of the versatility of the ICC's design, operations, and legitimacy. As a key component, participation by nongovernmental organizations facilitated this discursive process by incorporating a variety of progressive issues into the meetings and debates at the Rome Conference (and beyond). Struett's claims will undoubtedly attract attention from political scientists interested in the politics of the ICC. And his detailed account of the role of NGOs in constructing the Court provides a useful set of tools for explaining the substantive impact of NGO participation. Yet, his analysis is weakened by some peculiar formulations. Struett, for instance, claims that “the relatively disinterested nature of NGOs allowed them to contribute to discourse in a way that was morally resonant; consequently, they were influential” (p. 23). But I doubt that many commentators would agree with the assertion that NGOs are disinterested, since an NGO's passionate commitment and devotion to a cause often arises from a strong degree of self-interest. Still, in The Politics of Constructing the International Criminal Court, Struett does a decent job in describing the central features of complementarity, the central organizing principle of the ICC.

Both authors, usurprisingly, devote considerable time to fleshing out the procedural aspects and normative connotations of this principle. Complementarity in the ICC Statute holds that parties are entitled to investigate and prosecute perpetrators of gross human rights abuses, but that if the Court determines that the state is not conducting its investigation and/or prosecutorial proceedings in a genuine manner, it can launch its own investigation. What is perhaps most intriguing from a political perspective is the emergence of seemingly dual complementarities in the ICC Statute. Negative complementarity, for instance, stresses the punitive actions and compulsory procedures of the Court (retributive justice), while positive complementarity involves judicial assistance and outreach to the national judiciaries and affected society (restorative justice). Positive complementarity occurs when “the Court,” as Schiff writes, “communicates its concerns about crimes [and] establishes legal and judicial training and cooperation mechanisms to bolster a weak justice system” (pp. 116–17). His analysis of these distinct forms of complementarity underscores an important, emergent debate about the normativity of positive complementarity. Carsten Stahn, a noted legal scholar, has suggested that positive complementarity provides a unique practical moral vision of the Court (“Complementarity: A Tale of Two Notions.” Criminal Law Forum 19 [2008]: 87–113). If this is true, then the proceduralist moral dimensions of this principle (e.g., Victims Trust Fund, or the rights of victims, and the ICC's outreach program) can only point to the need for more normative theory to complement strict legal analyses and to address the ethical and political challenges facing the Court.

Situating the Court's design, actions, and dynamics within normative and international relations theory is one of the important strengths of both books. The theoretical analysis of Struett's book is arguably more advanced and sophisticated than Schiff's. Struett is clearly at his best with dissecting the discursive dimensions of legitimacy for the Court, including his examination of the theories of Jürgen Habermas, Friedrich Kratochwil, and Thomas Risse. Schiff's analysis, while perhaps more theoretically modest, effectively applies ideas of the three central paradigmatic approaches in international relations—realism, neoliberalism, and constructivism. Still, it would have been interesting to see him extend his discussion to a fourth theoretical approach, such as realist-based cosmopolitanism, in order to further explicate some of the normative implications of positive complementarity and legitimacy.

In Struett's book, legitimacy figures prominently as a constitutive concept of the politics and development of the Court. In his concluding chapter, Struett argues that rational argumentation and dialogue enhance the prospects for bolstering the Court's legitimacy. Such legitimacy, he claims, is needed to overcome the absence of a reliable enforcement mechanism. Overall, he makes a rather compelling and well-researched case for linking discursivity to the reflexive elements of “the principle of permanence of the ICC Statute” (p. 158). But his analysis also contains flaws. One is its reliance on the theories of Habermas, whose attempt to situate communicative action at the core of the emancipatory project is by no means without critics. The central problem with Habermas's theory is that it remains unclear if reasoned argumentation and moral persuasion can resolve the effects that arise from the asymmetries of power in international politics (or between states and ICC authorities). Rather than exploring some of these problems and relating them to the unique, untested dynamics of accountability of the ICC, Struett seems to accept Habermas's argument at face value. In addition, some of the ambiguities of Habermas's writing also mark Struett's analysis, as when, for example, he states that “the contribution of NGO participation helped the discourse approximate communicative rationality” (p. 42).

There is, finally, the issue of the tension between peace and justice that inevitably arises in discussions of the ICC's attempts to perform its mission. Diplomats like Alex de Waal, for example, denounce ICC indictments of sitting political leaders, such as the aforementioned Sudanese President al-Bashir, as a sign of reckless disregard for regional peace and security. In response, human rights organizations argue that there is no distinction between peace and justice when it comes to stopping genocide. Clearly, the ICC's actions are bound to trigger political effects, which will require difficult trade-offs between justice and peace. Both of these books are welcome contributions to discussions of this issue. Whether or not the Court will succeed in promoting global security by deterring would-be perpetrators of gross human rights abuse is an open question. What is clear is that international criminal courts are important innovations, and that they are likely to play an important role in international law and international politics.