Anti-Climacus

In keeping with this week's surprisingly research-related theme, I'd like to quibble with something Norm Geras says:

Some international law sceptics may want to go further and say that so selective an approach to the range of possible ICC prosecutions vitiates the impartial rule of law. How much of a step forward can it be therefore? But an imperfect legal system may be better than the absence of all law, and selective prosecution better than no prosecutions at all. Superior to a situation where every type of arbitrariness by states against their citizens is possible with impunity is an imperfect, emergent rule of law, such as one hopes might be progressively strengthened and made more fair and consistent over time.

At various times I have adopted a version of this view, but I've come to the conclusion that it is generally mistaken. The problem is Geras' argument, widely shared, that humanitarian intervention can only have really lasting legitimacy if it is woven into the fabric of international law and institutions. (They may have a kind of pseudo-legitimacy of the 'illegal but justifiable' kind, but, as is the case with Geras here, the assumption is always that this serves as a way-station, awkward but necessary, to the desired end point, which is the integration of the practice into the rule of law.) The argument is additionally problematic because it plays into the very tension Geras is attempting to avoid. If one thinks that there is an imperfect practice of HI that is acceptable for temporary purposes, then one opens oneself up to both the skeptical objection that one is vitiating the rule of law and the utopian objection that one hasn't gone far enough.

Better, I would argue, to recognize that a human rights crisis will always be an exceptional case in international politics. Those crises will always fall through the cracks because they are, in an important way, sui generis. One must look at the particulars of the situation and respond to those. The strictures of rule of law, therefore, will not be much help: general rules are important for all sorts of reasons, but these cases by definition stand outside the general rules.