In particular, the ICC necessarily contemplates, like other systems of criminal justice, lodging substantial discretion in a prosecutor. A domestic prosecutor--himself elected or appointed by an elected leader--faces constraints that make it easier for the public to monitor his conduct. Moreover, his performance naturally interests the public whose happiness is acutely affected by their local crime rate.

In contrast, the lack of effective constraints on an international prosecutor is striking. While governments would appoint him through consensus, he would be accountable to no particular official. Because his docket would consist of cases that, for all their moral importance, would not be likely to affect the crime rates in many jurisdictions, he will come under less popular scrutiny. Nevertheless, ethnic and ideological interest groups will intensely focus on the symbolic value of prosecutions in the areas over which the court has been given jurisdiction.

In this way, the ICC may become a threat to the very rule of law its advocates want to inculcate in the international order. Its multilateral structure is not amenable to the control by the encompassing interest of citizens in the nations that are a party to it. It is surprising that enthusiasm for an international criminal prosecutor continues unabated in many quarters of the United States when we have become disillusioned with our own institution of the independent counsel. The lack of accountability and risk to neutral principles that an international criminal prosecutor poses are very similar to those created by the office of independent counsel, except this time the potential scope of abuse is global.

Concern about empowering a global prosecutor does not mean that the world legal order should not find innovative means to prosecute such crimes as genocide. Particular international tribunals, like the Rwanda tribunals, established for particular crimes in nations that lack democratic and accountable governments, can deter some of the worst crimes without creating an open-ended mechanism more subject to abuse. The touchstone here, as elsewhere, should be the creation of international structures that preserve accountability.

Generating International Law

Beyond addressing the substantive shape of international rules, classical liberalism offers guidance on how best to create them. There are, broadly speaking, two ways of generating international rules. One is through express global agreements among the nations of the world. Another is through customary international law. Customary international law consists of rules that courts, international or domestic, or "publicists"--that is, international law professors--create based on their own assessment of what are widespread state practices.

The differences between these ways of generating international law may at first seem technical. But placed in a more general political context, they capture two very different views of the sources of political legitimacy--roughly corresponding to those now prevalent in the United States and "Old Europe." Creating international law through global treaties like the GATT suggests that contracts reached through express bargaining among nation-states will constitute the international order. Under this paradigm, solutions to international problems are particularistic with roots in the political legitimacy of sovereign nations. Government officials give assent to the written terms by which their people will be bound. The United States, with its view that the nation-state is still key to international relations, inclines to this view.

In contrast, modern customary international law depends on inferences about state behavior that jurists and publicists make. Moreover, because the principles it generates are not embedded in the context of actual agreements, customary international law has a tendency toward generating principles that become independent of context. In short, customary law can become a kind of ersatz natural law. Europe, which has a less happy history of the nation-state, not surprisingly has a preference for a method of international-rule generation less rooted in sovereignty.

The debate about how to generate international law is also a debate about the centralization and the accountability of power--key issues for classical liberalism. Agreement to specific terms by a large number of nations--increasingly nations with representative forms of government--provides some, albeit not conclusive, indication that the treaty is beneficent. In contrast, customary international law provides far less firm evidence of consensus, because professional and judicial elites rather than sovereign states have substantial influence in framing such rules. Because there is as yet no global demos--no disciplined political structure for measuring global sentiment--those who want to fashion rules outside of the treaty context will necessarily have to make decisions with relatively little democratic input. They will be making discretionary decisions, more than occasionally relying on themselves as the prophets of international virtue.

In the increasingly democratic modern world, multilateral treaties have several advantages in representing the consensus of the peoples of the world and limiting the discretion of unaccountable elites. The first advantage of global international agreements over customary international law is the precision of a written text. This clarity is important. If a large number of nations with representative governments reaches a consensus, the agreement has a certain presumption of beneficence. Of course, a residue of ambiguity infects all written texts, but at least there is something in writing, in contrast to customary international law, which generates no text. Thus, the scope of customary principles is often less clear and more subject to manipulation.

Second, multilateral treaties provide assurance that states have actually agreed upon their requirements as obligatory under international law. In contrast, it is difficult to tell whether states have accepted a rule of customary international law. Customary law principles are traditionally created only when states both widely follow a practice and widely accept it as law. But substantial debate exists over what can constitute evidence of state practice. For instance, some scholars suggest that only acts of states can constitute state practice, while others suggest that statements, like un resolutions, can also be evidence of state practice.

Furthermore, it has always been understood that the ubiquity of a state practice does not necessarily mean nations are engaging in a practice because they believe it is law. Accordingly, scholars frequently debate whether a practice reflects a sense of national obligation or merely prudence or some other motive. This kind of uncertainty also offers room for elites to shape the rules to their liking. Happily, such uncertainty does not exist with multilateral agreements, because by signing them nations show what provisions they accept as international obligations.

Third, treaties reduce what economists would call the "agency costs" of international lawmaking--the difficulty of making sure that the rules to which rulers agree reflect the interests of their citizens. In the growing number of states that have representative forms of government, the representative branch must ratify the treaty, thus providing better assurance that the agreement reflects popular consensus. In contrast, bureaucrats and judges, rather than officials accountable to voters, determine the content of customary international law.

Worse still, those responsible for determining the content of customary international law are in fact radically unrepresentative. Law professors--the modern publicists responsible for the development of customary international law--are predominantly from the developed rather than developing world. Second, even within their own nations, law professors, like intellectuals generally, have distinctly unrepresentative views--very often to the left of the society as a whole. In the United States, for instance, Democratic-leaning law professors outnumber Republican-leaning law professors by about five to one.

The combination of these two biases can be quite powerful. Because academics come from countries that are already wealthy, they profit less from growth than the average global citizen, who may be more willing to take some risks to better his relatively low standard of living. Because academics lean to the left side of the political spectrum they are also less sympathetic to entrepreneurial ideas. Thus, modern customary international law rules are likely to have built-in biases against free markets and other classical liberal ideas. For instance, many scholars have tried to argue that customary international law contains something called the precautionary principle--a rule that prohibits the introduction of new technology unless all risks from the technology can be ruled out. This principle obviously would have more appeal to those who are already well off than to those for whom new technology may be life saving. It also represents a departure from the cost-benefit analysis that the United States for the most part applies to its own domestic regulations, further suggesting that principle does not reflect the practice of the democratic nations.

The problem of unrepresentativeness affects other groups with power to create customary international law. International Court of Justice judges are always lawyers and share the characteristic biases of the legal class generally--an interest in "fair" process, rather than economic growth. Moreover, institutionally they possess a vested interest in expanding the power of international law, which is likely to mean a bias in favor of finding evidence of widespread acceptance of a practice among states even when one does not exist.

Some have conceded that treaties should have priority over customary law when the two conflict, but suggest that customary international law still plays a useful role in generating new rules in addition to treaties. But in the modern world, customary law can achieve little new that treaties cannot do better. In the past, when it was difficult for officials of nations to meet because of information and transportation costs, it was sometimes useful for scholars and courts to hypothesize what rules all nations would agree to, if their representatives had the opportunity to meet and deliberate. But with jet planes and the Internet, no such barriers prevent any set of nations from reaching agreement.

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