The Oxford Handbook of International Criminal Law 9780198825203, 019882520X

Moving away from conventional approaches to the study of the subject, the Oxford Handbook of International Criminal Law

121 44 4MB

English Pages 911 Year 2020

Table of contents :
Cover
The Oxford Handbook of INTERNATIONALCRIMINAL LAW
Copyright
Acknowledgements
Table of Contents
Table of Cases
Table of Primary Legislation
Table of International Treaties and Conventions
List of Contributors
Introduction
Actors
Spaces
Rationales
Crimes
Modalities
Narratives
Anxieties
Boundaries
Future(s)
Section I: ACTORS
Chapter 1: An Empirical Analysis of International Criminal Law: The Perception and Experience
I. Introduction
II. Listening to the Accused as a Vector of Knowledge
A. Epistemological Approach
B. Methodology
III. Positioning of Those Tried: A Structural Interrelation
A. A Gap Between Expectations and Reality
B. Violence and Unfairness of the Procedure
C. A Politicized and ‘Outgroup’ Justice
D. The Role Assigned to the Defendant
IV. Conclusion
Chapter 2: Defence Perspectives on Fairness and Efficiency at the International Criminal Court
I. Introduction
II. The Rise of Managerial Judging at International Criminal Courts
III. Defence Views on Fairness and Efficiency at the ICC
A. Survey Method
B. Survey Findings
1. Judicial Managerialism
2. Defence Investigative Resources
3. Prosecutorial Disclosure
4. Confirmation of Charges
IV. The Future of Managerial Judging and Procedural Fairness in International Criminal Procedure
Chapter 3: Neither Here nor There: The Position of the Defence in International Criminal Tribunals
I. Introduction: The Symbolic Inclusion of the Defence
II. The Foundational Balancing Away of the Defence
A. Customary Law as a Vehicle for Moral Condemnation
B. Interpreting International Criminal Law and the Fight against Impunity
C. The Ultimate Balancing Away on the Basis of Moral Condemnation
III. The Procedural Balancing Away of the Defence
A. The Participation of Victims
B. Evidentiary Standards
C. Expeditiousness
IV. The Institutional Balancing Away of the Defence
V. The Systemic Balancing Away of the Defence
VI. Concluding Thoughts: Working on the Periphery as Defence Counsel
Chapter 4: The Creation of an Ad Hoc Elite: And the Value of International Criminal Law Expertise on a Global Market
I. Introduction
II. Theory, Method, and Data
III. The Advent of the ICL Elite
IV. The Creation of a Group and its Symbolic Capital
V. The Value of the ICL Elite on a Broader Market
VI. Conclusion
Chapter 5: Teachings of Publicists and the Reinvention of the Sources Doctrine in International Criminal Law
I. Introduction
II. Publicists in Public International Law
A. Publicists and Gap-Filling in International Law
B. Publicists as a Subsidiary Source of Law
III. Publicists at the International Criminal Court
A. Application and Hierarchy of Sources in ICL
B. The Role of Scholarship in the Jurisprudence on Modes of Liability
IV. The Reliance on Doctrine
A. Scholars and the Dogmatik
B. Scholars and their relationship to international criminal law
V. Conclusion
Section II: SPACES
Chapter 6: Legitimacy in War and Punishment The Security Council and the ICC
I. Introduction
II. Moral Expressivism, Standing to Blame, and Institutional Legitimacy
III. The Legitimacy Problem in International Criminal Justice
IV. Legitimate Illegality and Legal Illegitimacy
V. The Path Forward
Chapter 7: Africa and International Criminal Law
I. Introduction
II. Versailles, 1919: ‘resist[ing] with impunity’
A. Re-telling Versailles, 1919
B. Presence, Absence, and ‘Re-presentation’ at Versailles
III. Nuremberg, 1945: Colonialism, Genocide, and European Crimes
A. ‘Nurnberg was colonial’
B. A ‘dark, abiding, signing . . . presence’
C. Threads: Race, Empire, and Affective Regimes
IV. The Cold War era: Late colonial violence, Biafra, and apartheid
A. Re-telling ‘The Cold War Era’
B. Late Colonial Violence
C. The Biafran war, the Postcolonial World Order and the ‘Image[s] of Africa’
D. African States, Apartheid, and the (almost) International Criminal Court
V. The 1990s: The Era of (Anti-)Impunity
A. April 1994
B. A Present Absence, Almost: Apartheid (and Rwanda) at Rome, 1998
VI. Concluding Remarks
Chapter 8: On Regional Criminal Courts as Representatives of Political Communities: The Special Case of the African Criminal Court
I. Introduction
II. The Social Function of Criminal Law
III. From International to Regional Criminal Law Enforcement: A Step Forward?
IV. The Prospects of an African Criminal Court
V. Some Final Reflections
Section III: RATIONALES
Chapter 9: Taking Internationalism Seriously: Why International Criminal Law Matters
I. Introduction
II. Evaluating the Traditional Rationales of International Criminal Law
III. Robust Internationalism as a Constitutive Component of International Criminal Law
A. The ICC
B. The Ad Hoc Tribunals
C. Universal Jurisdiction
D. Hybrid Tribunals
IV. Taking Internationalism Seriously: The Case for Robust Internationalism
V. Conclusion
Chapter 10: Impunities
I. Introduction
II. Impunity in Text and Discourse
A. Enabling Instruments
B. A Sampling of Press Releases and Public Statements
C. Punishment, Peace, and Transition
III. Impunity and Selectivity
IV. Reimaging Punishment
V. Conclusion
Chapter 11: Courting Failure: When Are International Criminal Courts Likely to be Believed by Local Audiences?
I. Introduction
II. Factors Predictive of Failure
A. Objective and Subjective Limitations on the Processing of Information About Atrocities
B. Towards Generalization
C. A Predictive Hypothesis
III. Nuremberg and Tokyo
IV. Rwanda
V. Sierra Leone and Cambodia
VI. Conclusion
Section IV: CRIMES
Chapter 12: ‘What is An International Crime?’
The nature of international crimes
The obligation to criminalize
Specificity and uniformity
Direct Prohibition
The uses of ICL
Conclusion
Chapter 13: A Theory of International Crimes: Conceptual and Normative Issues
I. Introduction
II. What Is an International Crime?
III. What Makes a Given Conduct an International Crime?
IV. Conclusion
Chapter 14: From Aggression to Atrocity Rethinking the History of International Criminal Law
I. Introduction
II. War Prevention as International Law’s Fondest Hope
III. Nuremberg as an Aggression Trial
IV. The Cold War: Definition, Critique, and Decline
V. Conclusions
Chapter 15: Enslavement as a Crime against Humanity: Some Doctrinal, Historical, and Theoretical Considerations
I. Introduction and Background
II. Doctrinal Underpinnings, ‘Humans’ and ‘Persons’
III. Historical Sources: Roman Law’s Enduring Influence
IV. Theoretical Framework: Natural Life and Political Life
V. Conclusion
Section V: MODALITIES
Chapter 16: A Criminological Approach to the ICC’s Control Theory
I. Introduction
II. International Crimes: A Different Type of Criminality?
A. The Political and Ideological Context
B. The Organizational and Social Context
C. The (Social-)Psychological Context
D. Conclusion
III. Perpetrators of International Crimes
IV. The ICC and the Concept of Individual Criminal Responsibility
A. The Difference between Principals and Accessories
B. Commission via Organizational Control?
C. Shortcomings of the Control Theory and How to Repair Them
V. Conclusion
Chapter 17: The Two Cultures of International Criminal Law
I. Introduction
II. Expansionism in International Criminal Law
III. The ‘Franconian’ Culture of International Criminal Law: Sources-Based Expansionism
IV. The Roman culture of international criminal law: hermeneutic expansionism
V. Concluding Remarks: Cultural Transformation and the Contradictory Beliefs of International Criminal Lawyers
Chapter 18: Immunity and Impunity
I. Introduction
II. Immunity and Responsibility
III. Combatant Immunity and Official Immunity
IV. Conclusion
Chapter 19: Epistemological Controversies and Evaluation of Evidence in International Criminal Trials
I. Introduction
II. Intuitive Holistic Approach v. Deconstruction
III. Is the Standard of Proof for Conviction Subjective or Objective?
IV. Mathematical Methods in Evaluating Evidence
V. Criticism Against the Beyond Reasonable Doubt Standard
VI. Is Fact-Finding at the International Level Possible? The Turn to Empirical Legal Scholarship
VII. Conclusions
Chapter 20: The Right to Truth in International Criminal Law
I. Introduction
II. Background: The Right to Truth at the Crossroads between International Human Rights Law and International Criminal Law
III. The Right to Truth at the ICC
A. Truth and the International Criminal Trial
B. Victims’ ‘Personal Interests’ and the Determination of Guilt or Innocence
C. New Charges Against the Accused
D. Right of Victims to Introduce Evidence
E. Victims’ Obligation to Disclose Exonerating Evidence
IV. Reflection
Chapter 21: From Machinery to Motivation: The Lost Legacy of Criminal Organizations Liability
I. Introduction
II. The Origin of Criminal Organizations Liability
III. The Practice of Criminal Organizations Liability
IV. Criminal Organizations in Contemporary International Criminal Law
V. Organization as Machinery, Organization as Motivator
VI. Conclusion: An Alternate Reality for Criminal Organizations
Section VI: NARRATIVES
Chapter 22: Historical Reasoning and Judicial Historiography in International Criminal Trials
I. The Flesh of History: Jurisprudence and Historiography
II. Legal Infrastructures: Storytelling after the Second World War
III. Judicial Historiography: The Nuremberg Paradigm
IV. The Twisted Road to The Hague
V. Conclusion: The Interdisciplinary Pitfalls of Transitional Trials
Chapter 23: Criminal/Enemy
I. Introduction
II. Enemies but not Criminals
III. Criminals but not Enemies
IV. Enemies into Criminals: Criminalizing Aggression
V. Deconstructing the Criminal/Enemy Dyad
Chapter 24: The Enemy of All Humanity
I. Introduction
II. The Strange Career of the Hostis Generis Humani
A. Pirates
B. Privateers
C. Terror tactics and unbridled aggression
D. Slave trading
E. The Eichmann trial
F. Torture and other core crimes
III. An Alternative Genealogy
IV. Analyzing the Hostis Generis Humani
Chapter 25: Moving Images: Modes of Representation and Images of Victimhood in Audio-Visual Productions
I. Introduction
II. Representation in Documentary Film
A. Attracting Audiences and Representing Reality
B. Combining Presentation and Representation
III. The Representation of Victims in Documentary Film
A. Ideal Victims
B. Alternative Messages
C. The Bureaucratic Victim
IV. Conclusion
Section VII: ANXIETIES
Chapter 26: International Criminal Tribunal Backlash
I. Introduction
II. International Criminal Tribunals: Opposition (and Backlash)
III. Defining Backlash
IV. A Theory-Informed Approach to International Criminal Tribunal Backlash
V. South Africa and the International Criminal Court: Archetypal Backlash
A. Background
B. Choosing Africa: A Pluralist Approach
VI. Serbia and the ICTY: Persistent Backlash
A. Background
B. ‘It is an incredible situation. We always have a problem with Serbia. Always’
VII. Lebanon and the Special Tribunal: Absent Backlash
A. Background
B. Lebanon and the STL: reassuringly undemanding
VIII. Conclusion
Chapter 27: The Crises and Critiques of International Criminal Justice
I. ‘You and Whose Army?’: International Criminal Law’s Curse
II. Of Crises and Critiques
A. Crisis, Again?
B. Critical Turn
C. What Crisis Does
III. Legitimacy Skirmishes and Mediatory Spaces
A. What Critics Want
B. The Mainstream Strikes Back
C. Diagnosis
IV. Legitimacy as Crisis Management
Chapter 28: Hangman’s Perspective: Three Genres of Critique following Eichmann
I. Introduction
II. Hannah Arendt: The Rule of Law
III. Shoshana Felman: Catharsis
IV. Netalie Braun: Sacrifice
V. Outer Circles of Harm
VI. Conclusion
Chapter 29: Inequality of Arms Reversed?: Defendants in the Battle for Political Legitimacy
I. Courts as Communicative Institutions
II. Equality of Arms Reversed
A. Defiant Defendants
B. Prosecutors
C. Political Contexts of Courts
III. Legitimacy is Multi-Faceted, Contingent, and Fluid
IV. Resonant Prosecution Discourses
V. Defendant Tamed by the Process
VI. Conclusion
Section VIII: BOUNDARIES
Chapter 30: International Criminal Law and the Subordination of Emancipation: The Question of Legal Hierarchy in Transitional Justice
I. Introduction
II. Transitional Justice Hierarchy in Action: Sudan Referral
III. Conceptual Background and Legal Origins: Legal Accountability and Social Emancipation
A. The Rise of Transitional Justice
B. Rights-based Transitional Justice: Accountability vs Emancipation?
IV. Legal Hegemony of International Criminal Law in International Transitional Justice
A. Darfur Referral Revisited
B. Accountability as an Unassailable Norm
C. Victims’ Rights Subordinated
V. Abandon Rights? The Power of Human Rights in Transitional Justice
VI. What Does This Critique Tell Us?
Chapter 31: International Criminal Justice and Humanitarianism
I. Introduction
II. International Criminal Justice Against Humanitarianism
III. International Criminal Justice And Humanitarianism
A. Politics and Power
B. Accountability to Constituencies
IV. International Criminal Justice as a Form of Humanitarianism
A. Humanitarianism at the ICC
B. Legal Humanitarians
V. Conclusion
Chapter 32: International Criminal Law and Culture
I. Introduction
II. International Criminal Law’s Encounter of Cultural Difference
III. ICL Courts and other Culturally-Informed Post-Conflict Justice Processes: Competing Conceptions of Justice
A. Culturally-Informed Justice Processes as Alternatives or Supplements to ICL Trials
B. The Risk of Marginalizing Alternative Justice Conceptions and Processes
IV. Norm Construction and Trial Participation: Domestic Legal Cultures as ICL Resource
A. Hybridization of the ICL Legal System and Domestic Legal Cultures
B. Culture Clashes and Adaptation Obstacles among ICL Legal Actors
V. The Multicultural ICL Trial: Cross-Cultural Communication Challenges and Culture-specific Evidence
A. The Difficulties of Ensuring Accurate Linguistic Translation
B. ICL Courts’ Treatment of Culture-specific Arguments
VI. Conclusion: Operational, Legitimacy, and Representational Challenges
Chapter 33: The Core Crimes of International Criminal Law
I. Introduction
II. Defining Core Crimes
A. Ambiguities in Distinguishing Core Crimes and Treaty Crimes
B. Ambiguities in Defining Core Crimes as International Crimes
III. Continuities ‘from Nuremberg to Rome’
IV. Discontinuities ‘from Nuremberg to Rome’
V. Biases of the Core Crimes
A. Civilization Bias
B. Political-Economic Bias
C. Aesthetical Bias
VI. Conclusion
Chapter 34: Transnational Crimes
I. Introduction: What Are Transnational Crimes?
II. A Conjoined History
III. The Problem of Definition
A. Defining International Crimes
B. Transnational Crime
1. The Sources Thesis
2. The Private Actor Thesis
IV. Crimes at the Boundary: Piracy and Torture
A. Piracy
B. Torture
V. Conclusions
A. Crimes in Search of an International Tribunal?
B. The Public/Private Divide
C. Contextual Elements and Seriousness
D. Final Thoughts
Chapter 35: The Unity of International Criminal Law: A Socio-Legal View
I. Introduction
II. International Criminal Law and the Politics of Fragmentation
A. Between Inflation and Rarefication
B. Ideational Approaches and the Quest to Define ‘Truly’ International Crimes
C. Critical Approaches: Rarefication as Reorganization of the Field
III. The Problem with Fragmentation
A. Doctrinally Weak
B. Jurisprudentially Suspicious
C. Criminologically Dubious
IV. Towards A Unified Research Agenda
A. Refocusing on the Internationalization of Crime Control Instead of the Criminalization of International Law
B. Thinking Globally and Transversally
C. Reconfiguring Theory
V. Conclusion
Section IX: FUTURE(S)
Chapter 36: International Criminal Law: The Next Hundred Years
Anniversary Waltz
Reformist Hope
Critical Affinity
Unfriendly Scepticism
Perimeter Defence
Index

Recommend Papers

The Oxford Handbook of International Criminal Law 9780192558893, 9780198825203, 0192558897

In the past twenty years, international criminal law has become one of the main areas of international legal scholarship

99 85 2MB Read more

The Oxford Handbook of Criminal Law 9780199673599, 0199673594

This book deals with various aspects of criminal law, including its relationship to a wide range of disciplines such as

119 89 10MB Read more

The Oxford Handbook of Criminal Law 9780191654602, 9780199673599, 0191654604

The Oxford Handbook of Criminal Law reflects the continued transformation of criminal law into a global discipline, prov

116 68 2MB Read more

The Oxford Handbook of International Tax Law 9780192897688, 0192897683

International Tax Law is at a turning point. Increased tax transparency, the tackling of Base Erosion and Profit Shiftin

113 85 95MB Read more

The Oxford Handbook of International Environmental Law 9780192589033, 9780198849155, 0192589032

The second edition of this leading reference work provides a comprehensive discussion of the dynamic and important field

104 40 4MB Read more

The Oxford Handbook of Jurisdiction in International Law 019878614X, 9780198786146

The Oxford Handbook of Jurisdiction in International Law provides an authoritative and comprehensive analysis of the con

627 24 5MB Read more

The Oxford Handbook of International Investment Law 9780199231386, 0199231389

This work offers a comprehensive account of the current state and likely future developments of international investment

100 42 6MB Read more

The Oxford Handbook of International Trade Law (2e) 9780192868381, 0192868381

The Oxford Handbook of International Trade Law offers extensive analysis and critique on the principles of modern intern

112 28 62MB Read more

The Oxford Handbook of International Tax Law 9780192652348, 9780192897688, 0192652346

International Tax Law is at a turning point. Increased tax transparency, the tackling of Base Erosion and Profit Shiftin

112 85 3MB Read more

The Oxford Handbook of International Refugee Law 9780198848639, 0198848633

This Handbook draws together leading and emerging scholars to provide a comprehensive critical analysis of international

118 32 10MB Read more

The Oxford Handbook of International Criminal Law
9780198825203, 019882520X

Author / Uploaded
Darryl Robinson

0 0 0
Like this paper and download? You can publish your own PDF file online for free in a few minutes! Sign Up

File loading please wait...

Citation preview

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

t h e ox f o r d h a n d b o o k o f

I N T E R NAT IONA L CR I M I NA L L AW

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

The Oxford Handbook of

INTERNATIONAL CRIMINAL LAW Edited by

Kevin Jon Heller, Frédéric Mégret, Sarah MH Nouwen, Jens David Ohlin, and

Darryl Robinson

1

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

1 Great Clarendon Street, Oxford, ox2 6dp, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © the several contributors 2020 The moral rights of the authors have been asserted First Edition published in 2020 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2020932403 ISBN 978–0–19–882520–3 Printed and bound by CPI Group (UK) Ltd, Croydon, cr0 4yy Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

Acknowledgements

When it comes to acknowledging key people in the creation of the book, we should start at the beginning. Merel Alstein, OUP’s law editor, came up with the idea for this Handbook, persuaded us that we could make it interesting, and then handed it over to us. From beginning to end, she struck the perfect balance between encouragement and laissez faire. Thanks to Frédéric Mégret’s Canada Research Chair, we were all able to convene in Montreal in May 2014 to develop the core ideas around which to organize the book and together dream up our ideal list of contributors. The contributors then produced inspiring first drafts and tolerated line-by-line comments from five editors who did not always (or even usually) speak with the same voice. We thank them for their ideas, for their constructive engagement with all our suggestions—often not just once, but also on second and third drafts—and for the beautiful chapters that together make this book. And we thank them most of all for their patience: it has taken several years to get all of the chapters together and, as always with edited collections, the first contributors (led by Harmen van der Wilt) had to wait for the last. The fact that the chapters eventually ended up in a Handbook with a (we hope) somewhat consistent style is largely thanks to Frédéric Bertrand, who has patiently and rigorously copyedited all the chapters, generously funded by Frédéric Mégret’s Canadian Partnership for International Justice (SSHRC) grant. February 2020

Kevin Jon Heller Frédéric Mégret Sarah MH Nouwen Jens David Ohlin Darryl Robinson

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

Table of Contents

Table of Casesxi Table of Primary Legislationxxi Table of International Treaties and Conventionsxxv List of Contributorsxxix

Introduction1

SE C T ION I AC TOR S 1. An Empirical Analysis of International Criminal Law: The Perception and Experience of the Accused

21

Marie-Sophie Devresse and Damien Scalia

2. Defence Perspectives on Fairness and Efficiency at the International Criminal Court

39

Jenia Iontcheva Turner

3. Neither Here Nor There: The Position of the Defence in International Criminal Tribunals

67

Dov Jacobs

4. The Creation of an Ad Hoc Elite and the Value of International Criminal Law Expertise on a Global Market

89

Mikkel Jarle Christensen

5. Teachings of Publicists and the Reinvention of the Sources Doctrine in International Criminal Law

106

Neha Jain

SE C T ION I I SPAC E S 6. Legitimacy in War and Punishment: The Security Council and the ICC Tom Dannenbaum

129

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

viii table of contents

7. Africa and International Criminal Law

154

Christopher Gevers

8. On Regional Criminal Courts as Representatives of Political Communities: The Special Case of the African Criminal Court

194

Harmen van der Wilt

SE C T ION I I I R AT IONA L E S 9. Taking Internationalism Seriously: Why International Criminal Law Matters215 Miriam Gur-Arye and Alon Harel

1 0. Impunities

238

Mark A. Drumbl

11. Courting Failure: When Are International Criminal Courts Likely to be Believed by Local Audiences?

261

Marko Milanović

SE C T ION I V C R I M E S 12. ‘What is an International Crime?’

293

Alexander K.A. Greenawalt

13. A Theory of International Crimes: Conceptual and Normative Issues

317

Alejandro Chehtman

14. From Aggression to Atrocity: Rethinking the History of International Criminal Law

341

Samuel Moyn

15. Enslavement as a Crime against Humanity: Some Doctrinal, Historical, and Theoretical Considerations

361

Edwin Bikundo

SE C T ION V M ODA L I T I E S 16. A Criminological Approach to the ICC’s Control Theory Alette Smeulers

379

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

table of contents ix

17. The Two Cultures of International Criminal Law

400

Jean d’Aspremont

18. Immunity and Impunity

423

Adil Ahmad Haque

19. Epistemological Controversies and Evaluation of Evidence in International Criminal Trials

450

Mark Klamberg

20. The Right to Truth in International Criminal Law

473

Leora Bilsky

21. From Machinery to Motivation: The Lost Legacy of Criminal Organizations Liability

494

Saira Mohamed

SE C T ION V I NA R R AT I V E S 22. Historical Reasoning and Judicial Historiography in International Criminal Trials

519

Kim Christian Priemel

2 3. Criminal/Enemy

540

Lawrence Douglas

24. The Enemy of All Humanity

558

David Luban

25. Moving Images: Modes of Representation and Images of Victimhood in Audio-Visual Productions

583

Sofia Stolk and Wouter Werner

SE C T ION V I I A N X I E T I E S 26. International Criminal Tribunal Backlash

601

Henry Lovat

27. The Crises and Critiques of International Criminal Justice

626

Sergey Vasiliev

28. Hangman’s Perspective: Three Genres of Critique following Eichmann652 Itamar Mann

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

x table of contents

29. Inequality of Arms Reversed? Defendants in the Battle for Political Legitimacy678 Marlies Glasius and Tim Meijers

SE C T ION V I I I B OU N DA R I E S 30. International Criminal Law and the Subordination of Emancipation: The Question of Legal Hierarchy in Transitional Justice

699

Laurel E. Fletcher

31. International Criminal Justice and Humanitarianism

719

Sara Kendall and Sarah MH Nouwen

32. International Criminal Law and Culture

748

Cheah W.L.

33. The Core Crimes of International Criminal Law

768

Christine Schwöbel-Patel

3 4. Transnational Crimes

791

Douglas Guilfoyle

35. The Unity of International Criminal Law: A Socio-Legal View

811

Frédéric Mégret

SE C T ION I X F U T U R E ( S ) 36. International Criminal Law: The Next Hundred Years

841

Gerry Simpson

Index

851

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

Table of Cases

I N TER NAT IONA L CR I M I NA L COU RTS A N D T R I BU NA L S International Court of Justice (ICJ) Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Preliminary Objections, [2007] ICJ Rep 582 �� 113 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, [2007] ICJ Rep 43�� 113 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment, [2002] ICJ Rep 3, 26 (Arrest Warrant Case)��431, 434–6 Democratic Republic of Congo v Belgium, Judgment of 14 February 2002, [2002] ICJ Rep 3��325 Fisheries (United Kingdom v Norway), Merits, Judgment, [1951] ICJ Rep 145��123 Gabčíkovo-Nagymaros Project (Hungary v Slovakia), Judgment, [1997] ICJ Rep 7�� 113 Germany v Italy: (Greece Intervening), Judgment, [2012] ICJ Rep 99��438 Lotus Case (France v Turkey) (1927), PCIJ (Ser A) No 10 ��803 Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, [2010] ICJ Rep 14�� 113 South west Africa Cases, Second Phase, Judgment, [1966] ICJ Rep 6 �� 169 Temple of Preah Vihear (Cambodia v Thailand), Provisional Measures Order of 18 July 2011, Separate Opinion of Judge Trindade, [2011] ICJ Rep 566, Sections II–X ��123 International Criminal Court (ICC) Prosecutor v Abu Garda (Corrigendum of the Decision on the Confirmation of Charges) ICC-02/05–02/09, (8 February 2010) (Pre-Trial Chamber I)��116 Prosecutor v Ahmad al Faqi Al Mahdi (Judgment and Sentence) ICC-01/12–01/15, (27 September 2016) (Trial Chamber VIII) ��789 Prosecutor v Al Bashir (Judgment in the Jordan Referral re Al-Bashir Appeal), ICC-02/05–01/09, (6 May 2019) (Appeals Chamber)��130, 420 Prosecutor v Al Mahdi (Judgment and Sentence) ICC-01/12–01/15–171 (27 September 2016) (Trial Chamber VIII) �� 48, 335 Prosecutor v Banda and Jerbo (Corrigendum of the Decision on the Confirmation of Charges) ICC-02/05–03/09, (7 March 2011) ��116 Prosecutor v Bemba Gombo – see below in chronological order Prosecutor v Bemba (Decision on the Evidence Disclosure System and Setting a Timetable for Disclosure Between the Parties) ICC-01/05–01/08–55 (31 July 2008) (Pre-Trial Chamber III)�� 58, 61, 65 Prosecutor v Jean-Pierre Bemba Gombo (Decision on the Disclosure of Evidence by the Defence) ICC-01/05–01/08–31 (5 December 2008) (Pre-Trial Chamber III) �� 40

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

xii table of cases Prosecutor v Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) ICC-01/05–01/08–424 (15 June 2009)( Pre-Trial Chamber II) �� 57, 420 Prosecutor v Bemba Gombo (Decision on Directions on the Conduct of Proceedings) ICC-01/05–01/08–1023, (19 November 2010) (Trial Chamber III)��79 Prosecutor v Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) ICC-01/05-01/08-424, (15 June 2009)��335 Prosecutor v Bemba (Judgment), ICC-01/05–01/08, (21 March 2016) (ICC, Trials Chamber) �� 244, 335, 462 Prosecutor v Jean-Pierre Bemba Gombo (Observations Relevant to Reparations) ICC-01/05-01/08-3457, (13 October 2016) (Trial Chamber III)��746 Prosecutor v Bemba Gombo (Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo Against Trial Chamber III’s ‘Judgment Pursuant to Article 74 of the Statute’) ICC-01/05-01/08-3636-Red, (8 June 2018) (Appeals Chamber)�� 335, 462, 487 Prosecutor v Bemba Gombo (Judgment on theAappeal of Mr Jean-Pierre Bemba Gombo Against Trial Chamber III’s ‘Judgment Pursuant to Article 74 of the Statute’), Concurring Separate Opinion of Judge Eboe-Osuji, ICC-01/05–01/083636-Anx3, (14 June 2018)��77 Prosecutor v Chui [2012] ICC 18 December 2012 ��380, 392, 394, 398 Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Decision on the Confirmation of Charges Pursuant to Article 61(7) (a) and (b) of the Rome Statute, Dissenting Opinion by Judge Hans-Peter Kaul) ICC–01/09–02/11, (23 January 2012) (Pre-Trial Chamber II)�� 313, 420 Prosecutor v Gbagbo and Blé Goudé, (Version publique expurgée des ‘observations de la Défense présentées à la suite de l’ordonnance de la Chambre’ on the further conduct of the proceedings » du 9 février 2018 (ICC-02/11–01/15–1124) » (ICC-02/11–01/15-1157-Conf)), ICC-02/11–01/15, (2 May 2018) (Trial Chamber I)�� 81 Katanga – see below in chronological order Prosecutor v Katanga and Ngudjolo (Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules), ICC-01/04–01/07, (25 April 2008) �� 451 Prosecutor v Katanga & Chui (Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case) ICC-01/04– 01/07–474 (13 May 2008) (Pre-Trial Chamber I)�� 481 Prosecutor v Katanga and Ngudjolo Chui (Decision on the Confirmation of Charges) ICC-01/04–01/07, (30 September 2008)��115, 117, 118, 120, 395, 417, 506 Prosecutor v Katanga (Defence for Germain Katanga’s Additional Observations on Victims’ Participation and scope thereof) Defence, ICC-01/04–01/07–1618 (10 November 2009) ��489 Prosecutor v Katanga & Ngudjolo, (Decision on the Modalities of Victim Participation at Trial) ICC-01/04–01/07-1788-tENG (22 January 2010) (Trial Chamber II) �� 483, 490 Prosecutor v Katanga & Chui (Transcript of Oral Order) ICC-01/04–01/07-T-341ENG (18 June 2012) (Trial Chamber II) �� 51, 80

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

table of cases xiii Prosecutor v Katanga & Chui (Decision on the Implementation of Regulation 55 of the Regulations of the Court and Severing the Charges against the Accused Persons) ICC-01/04–01/07-3319-tENG/FRA (21 November 2012) Dissenting Opinion of Judge van den Wyngaert (Trial Chamber II)�� 486 Prosecutor v Katanga (Judgment Pursuant to article 74 of the Statute) ICC-01/04– 01/07, (7 March 2014)��73, 380, 393, 418, 451, 453, 466 Prosecutor v Kenyatta (Notice of Withdrawal of the Charges Against Uhuru Muigai Kenyatta) Office of the Prosecutor, ICC-01/09–02/11–983 (5 December 2014)��59 Lubanga – see below in chronological order Prosecutor v Lubanga (Decision on the Final System of Disclosure and the Establishment of a Time-Table) ICC-01/04–01/06–102 (15 May 2006) (Pre-Trial Chamber I)��54, 60, 61, 392 Prosecutor v Lubanga (Judgment on the Appeal of Mr Thomas Lubanga Dyilo Against the Decision on the Defence Challenge to the Jurisdiction of the Court Pursuant to Article 19 (2) (a) of the Statute of 3 October 2006) ICC-01/04–01/06 (OA4), (14 December 2006) (Appeals Chamber)�� 417 Prosecutor v Lubanga (Decision on the Confirmation of Charges) ICC-01/04– 01/06, (26 January 2007) (Pre-Trial Chamber I)�� 115–120 Prosecutor v Thomas Lubanga Dyilo (Decision on the Confirmation of Charges) ICC-01/04–01/06, (29 January 2007) (ICC, Pre-Trial Chamber I)�� 763 Prosecutor v Lubanga (Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/105/06 Concerning the ‘Directions and Decision of the Appeals Chamber’ of 2 February 2007)) ICC-01/04–01/06–925 (13 June 2007) (Appeals Chamber)��482, 486, 505 Prosecutor v Lubanga (Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial) ICC-01/04–01/06, (30 November 2007)�� 417 Prosecutor v Lubanga (Decision on Victims’ Participation) Trial Chamber I, ICC-01/04-01/06-1119 (18 January 2008) ��487 Prosecutor v Thomas Lubanga Dyilo (Decision on the Consequences of Nondisclosure of Exculpatory Materials Covered by Article 54(3)(e) Agreements) ICC-01/04–01/06 (13 June 2008) (Trial Chamber I)��49 Prosecutor v Lubanga Dyilo (Judgment on the appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008) ICC-01/04-01/06-1432 (11 July 2008) Partly Dissenting opinion of Judge GM Pikis (Appeals Chamber)��483 Prosecutor v Lubanga (Transcript) ICC-01/04–01/06-T-107 (26 January 2009) 34–35 (Trial Chamber I) ��584 Prosecutor v Lubanga Dyilo (Joint Application of the Legal Representatives of the Victims for the Implementation of the Procedure under Regulation 55 of the Regulations of the Court), ICC-01/04-01/06-1891-tENG (22 May 2009) (Trial Chamber I)��484 Prosecutor v Thomas Lubanga Dyilo (Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009��74, 484 Prosecutor v Lubanga (Decision Reviewing the Registry’s Decision on Legal Assistance for Mr Lubanga), ICC-01/04–01/06–2800 (30 August 2011) (Trial Chamber I)��51

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

xiv table of cases Prosecutor v Lubanga (Judgment Pursuant to Article 74 of the Statute, Separate Opinion of Judge Fulford) ICC-01/04–01/06, (14 March 2012) ��120, 243, 331, 398, 419, 452, 759 Prosecutor v Lubanga [2014] ICC 14 March 2014��380 Prosecutor v Ngudjolo Chui (Judgment Pursuant to Article 74 of the Statute, Concurring Opinion of Judge Christine Van den Wyngaert) ICC-01/04–02/12, (8 December 2012) (Trial Chamber II)��119, 120, 419, 420 Prosecutor v Ntaganda (Reasons for Review of Registrar’s Decision on Defence Resources) ICC-01/04–02/06–389 (29 October 2014) (Trial Chamber VI)��51 Prosecutor v Omar Hassan Ahmad Al Bashir (Judgment on the Appeal of the Prosecutor Against the ‘Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’) ICC-02/05–01/09, (3 February 2010) (ICC-02/05–01/09, (3 February 2010) (Appeals Chamber)�� 466 Prosecutor v Ongwen (Judgment on the appeal of the Prosecutor Against the decision of Pre-Trial Chamber II entitled ‘Decision Setting the Regime for Evidence Disclosure and Other Related Matters’) ICC-02/04–01/15–251 (17 June 2015) (Appeals Chamber)��54 Ruto - see below in chronological order Prosecutor v Ruto et al (Decision Setting the Regime for Evidence Disclosure and Other Related Matters) ICC-01/09–01/11–44 (06 April 2011) (Pre-Trial Chamber II) ��54 Prosecutor v Ruto, Kosgey and Sang (Decision of the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/09–01/11, (23 January 2012) (Pre-Trial Chamber II)�� 116, 124, 331, 418 Prosecutor v Ruto and Sang (Transcript of Opening Statement) ICC-01/09– 01/11-T-27 (10 September 2013) (Trial Chamber V)��584 Prosecutor v Ruto (Appeals Judgment on Prosecutor’s Application for Witness Summonses and Request for State Party Cooperation) ICC-01/09–01/11–1598, (2014)��152 Prosecutor v Ruto & Sang (Public Redacted Version of: Decision on Defence Applications for Judgments of Acquittal) ICC-01/09–01/11 (5 April 2016) (Trial Chamber V) ��59, 488 Prosecutor v William Samoei Ruto and Joshua Arap Sang (Decision on the Requests Regarding Reparations) ICC-01/09–01/11–2038 (1 July 2016) (Trial Chamber V) ��488 Prosecutor v Saif Al-Islam Gadaffi & Abdullah Al-Senussi (Decision on the Admissibility of the Case Against Abdullah Al-Senussi) ICC-01/11–01/11, (11 October 2013) (Pre-Trial Chamber I)��60, 146, 305 East Timorese Special Panel for Serious Crimes (SPSC) Prosecutor v Carlos Soares Carmona (Judgment) Case No.03 C.G.2000, (8 March 2001–25 April 2001) (UN-ETTA Dist. Ct. Dili, SPSC, Trial Chamber) ��765

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

table of cases xv International Military Tribunal (Nuremberg) Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg 14 November 1945–1 October 1948, vol II (International Military Tribunal 1947)��136, 142, 143, 401, 410, 494–515, 578, 779 Special Tribunal for Lebanon (STL) Prosecutor v Ayyash and others (Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging) STL-11–01/I, (16 February 2011)��69, 73 International Criminal Tribunal for Rwanda (ICTR) Prosecutor v Akayesu (Judgment) ICTR- 96-4-T, (2 September 1998) (Trial Chamber I)�� 413, 484 Prosecutor v Akayesu (Judgment) ICTR-96-4-A, (1 June 2001)��331 Prosecutor v Gacumbitsi (Judgment) ICTR-2001-64-A, (7 July 2006) (Separate Opinion of Judge Schomburg) (Appeals Chamber)��118 Prosecutor v Bagaragaza (Decision on Rule 11bis Appeal) ICTR-05-86-AR11bis, (30 August 2006) (Appeals Chamber))��229 Prosecutor v Gacumbitsi (Judgment) ICTR-2001-64-A, (7 July 2006) (Separate Opinion of Judge Schomburg) (Appeals Chamber) ��118 Prosecutor v Nchamihigo (Judgment), ICTR-2001-63-A, (18 March 2010)�� 452 Prosecutor v Ngirabatware (Judgement), ICTR-99–54, (20 December 2012)�� 452 Prosecutor v Nsengimana (Judgment), ICTR-01-69-T, (17 November 2009) (Trial Chamber)�� 466 Prosecutor v Nyiramasuhuko and others (Decision in the Matter of Proceedings under Rule 15bis(D)) ICTR-98-42-T, (15 July 2003) (Trial Chamber II)�� 80 Prosecutor v Rutaganda (Judgment and Sentence), ICTR-96–3, (6 December 1999) (Trial Chamber I)��132 Special Court for Sierra Leone (SCSL) Prosecutor v Charles Ghankay Taylor (Trial Transcript) SCSL-2003-01-PT, (13 July 2009) 24294 (Trial Chamber II ��682, 691 Prosecutor v Issa Hassan Sesay, Morris Kallon, Augustine Gbao (Judgment) SCSL-04-15-T, (2 March 2009) (Trial Chamber)��119 Prosecutor v Kallon and Kamara (Decision on Challenge to Jurisdiction: Lomé Accord Amnesty) SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E), (13 March 2004)��321 Prosecutor v Kondewa (Allieu) (Judgment) SCSL-04-14-T, (2 August 2007) (Trial Chamber I)��764 Prosecutor v Monina Fofana and Allieu Kondewa (Judgment) SCSL-04-14-T, (2 August 2007) (Trial Chamber I)��764 Prosecutor v Norman and others (Decision on Presentation of Witness Testimony on Moyamba Crime Base) SCSL-04-14-T, (1 March 2005) (Trial Chamber)�� 80 Prosecutor v Sam Hinga Norman (Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment)) SCSL-2004-14-AR72(E), (31 May 2004) (Appeals Chamber)�� 763

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

xvi table of cases International Criminal Tribunal for the Former Yugoslavia (ICTR) Prosecutor v Aleksovski (Judgment) IT-95–14/1 (24 March 2000) (Appeals Chamber) �� 222, 409 Prosecutor v Blaškić (Judgment), IT-95-14-A, (29 July 2004) (Appeals Chamber) �� 134 Prosecutor v Brđanin (Judgment) IT-99-36-T, (1 September 2004) (Trial Chamber II)�� 337 Prosecutor v Delalić et al (Judgment), IT-96-21-A, (20 February 2001) (Appeals Chamber) ��132 Prosecutor v Erdemović (Judgment) IT-96-22-A (7 October 1997), Joint Separate Opinion of Judge McDonald and Judge Vohrah (ICTY, Appeals Chamber) �� 223, 230, 303, 304, 309, 388, 413 Prosecutor v Furundžija (Judgment) IT-95–17/1-T, (10 December 1998) (Trial Chamber)��301, 303, 413 Prosecutor v Galić (Separate and Partially Dissenting Opinion of Judge Nieto Navia), IT-98-29-T, (5 December 2003) (Trial Chamber) ��463 Prosecutor v Gotovina et al (Judgment), IT-06–90, (15 April 2011) (Trial Chamber) �� 466 Prosecutor v Hadžihasanović et al. (Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility) IT-01-47-AR72, (16 July 2003) (Appeals Chamber)�� 409 Prosecutor v Hadžihasanović and Kubura (Judgment) IT-01-47-T, (15 March 2006) �� 412 Prosecutor v Haradinaj et al (Judgment) IT-04-84-T, (3 April 2008) (Trial Chamber I)�� 33 Prosecutor v Jelisić (Judgment) IT-95-10-T, (14 December 1999) (Trial Chamber)��416, 509 Prosecutor v Karadžić (Radovan) IT-95–5/18 (Trial Transcript) IT-95–5/18, (29 August 2008: 1 March 2010)�� 681, 683, 684, 693, 694 Prosecutor v Krajišnik (Judgment), IT-00-39-A, (17 March 2009) (Appeals Chamber.)�� 452 Prosecutor v Krnojelac (Judgment) IT-97–25, (15 March 2002) (Trial Chamber II) ��369 Prosecutor v Kunarac et al. (Judgment) IT-96-23-T & IT-96–21/1-T, (22 February 2001) (Trial Chamber)��301, 369, 370, 806 Prosecutor v Kupreškić and others (Judgment) IT-95-16-T, (14 January 2000) (Trial Chamber)�� 71, 411, 416 Prosecutor v Kupreškić et al. (Judgment), IT-95-16-A, (23 October 2001) (Appeals Chamber)��451, 452, 455 Prosecutor v Martić (Judgment), IT-95-11-A, (8 October 2008) (Appeals Chamber)�� 452 Prosecutor v Milosevic (Dissenting Opinion of Judge David Hunt) IT-0254-AR73.4 (21 October 2003) (Appeals Chamber) �� 40, 44 Prosecutor v Milošević (Reasons for Decision on Assignment of Defence Counsel) IT-02-54-T, (22 September 2004) (Trial Chamber)�� 759 Prosecutor v Milošević (Decision on the Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel) IT-02-54-AR73.7, (1 November 2004) (Appeals Chamber)�� 759 Prosecutor v Milutinović et al. (Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction—Joint Criminal Enterprise) IT-99-37-AR72, (21 May 2003) (Appeals Chamber)�� 409, 505 Prosecutor v Mrkšić et al. (Judgment), IT-95–13/l-A, (5 May 2009) (Appeals Chamber.)�� 466

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

table of cases xvii Prosecutor v Mucić and others (Judgment) IT-96-21-T, (16 November 1998) (Trial Chamber)��75, 806 Prosecutor v Muthaura, Kenyatta and Ali (Decision of the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/09–02/11, (23 January 2012) (Pre-Trial Chamber II)�� 115, 117 Prosecutor v Naletilić and Martinović (Judgment) IT-98–34, (31 March 2003) (Trial Chamber)��370 Prosecutor v Simić et al. (Decision on the Prosecutor’s Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness) IT-95-9-PT, (27 July 1999) (Trial Chamber)�� 412 Prosecutor v Simić et al. (Judgement) IT-95-9-T, (17 October 2003) (Trial Chamber II)�� 505 Prosecutor v Stakić (Trial Judgment) IT-97-24-T, (31 July 2003) (Trial Chamber II)�� 118, 505 Prosecutor v Tadić (Duško) (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT-4–1, (2 October 1995) (Appeals Chamber)�� 71, 72, 75, 137, 141, 297, 303, 411 Prosecutor v Dusko Tadić (Opinion and Judgment), IT-94–1, (7 May 1997) (Trial Chamber)��451, 455 Prosecutor v Tadić (Judgment) IT-94-1-A, (15 July 1999) (Appeals Chamber.)�� 115, 298, 309, 412 Prosecutor v Vasiljević (Judgment) IT-98-32-T, (29 November 2002) (Trial Chamber II)�� 409 Prosecutor v Zoran Kupreškić et al. (Judgment) IT-95-16-T, (14 January 2000)��119 OT H ER COU RTS A N D J U R ISDIC T IONS European Court of Justice (ECJ) Advocaten voor de Wereld VZW v Leden van de Ministerraad (C-303/05) [2007] ECR I-03633��203 Commission v Hellenic Republic [1989] ECR 2965 (68/88)�� 204 Israel Academic Center et al v Minister of Finance translation [2009] HCJ 2605/05 (Israel Sup Ct)�� 233 A-G of the Government of Israel v Eichmann (1962), Crim Appeal 336/61, 36 Intl L Rep 277, 298–300 (Israel Sup Ct) Eichmann ��139, 226, 227, 326, 569, 570, 652–677 State of Israel v Demjanjuk, Crim case 373/86 (District Ct of Jerusalem) (April 1988), revised Crim Appeal 347/88 (Israel Sup Ct, 29 July 1993)��226 South Africa Azanian Peoples’ Organization (AZAPO) and Others v President of the Republic of South Africa and Others 1996 (4) SA 672 (CC) (25 July 1996)�� 185, 476 Democratic Alliance v Minister of International Relations and Cooperation and Others (83145/2016) [2017] ZAGPPHC 53; 2017 (3) SA 212 (GP); [2017] 2 All SA 123 (GP); 2017 (1) SACR 623 (GP)�� 129 S v Basson 2005 (1) SA 171 (CC)��185 S v Basson 2007 (3) SA 582 (CC) ��185

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

xviii table of cases Spain Public Prosecutor’s Office, de Lois (Graciela) (intervening) and ors (intervening) v Manzorro (Adolfo), Final Appeal Judgment, Case No 16/2005, Aranzadi JUR 2005/132318, ILDC 136 (ES 2005), 19th April 2005, Criminal Chamber�� 419 Sweden Public Prosecutor (on behalf of Behram (Hussein) and ors) v Arklöf (Jackie), Judgment, Case No B 4084–04, ILDC 633 (SE 2006), 18th December 2006, Sweden�� 419 United Kingdom Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet (No 3) [1999] UKHL 17, [1999] 2 WLR 827 �� 226, 571, 800, 805 R v Smith [2000] UKHL 49, [2001] 1 AC 146, [2000] 4 All ER 289, [2000] 3 WLR 654��454 Somerset v Stewart (1772), 98 ER 499 (KB) �� 372 United States of America Filártiga v Peña-Irala, 630 F2d 876 (2d Cir. 1980)�� 362, 571, 804 Schooner Exchange v McFaddon, 11 US 116 (1812) ��445 United States v Furlong, 18 US (5 Wheat) 184 (1820)�� 334 US v von Leeb et al (High Command Case), US Military Tribunal�� 804–5 United States v Smith, 18 US (5 Wheat) 153 (1820)��226 United States v Yunis, 924 F2d 1086 (DC Cir 1991)�� 327 H UM A N R IGH TS COU RTS European Court of Human Rights Aksoy v Turkey, App no 21987/93, 18 December 1996��475 Al Nashiri v Poland, App no 28761/11, 24 July 2014��475 Association ‘21 December 1989’ and others v Romania, App no 33810/07, 24 May 2011 ��475 El-Masri v the Former Yugoslav Republic of Macedonia, App no 39630/09, 13 December 2012��475 Hugh Jordan v UK�� 481, 485 Husayn (Abu Zubaydah) v Poland, App no 7511/13, 24 July 2014 ��475 Kurt v Turkey, App no 24276/94, 25 May 1998��475 MC v Bulgaria (2003), App no 39272/98, (2005) 40 EHRR 20��299–301 Nasr and Ghali v Italy App no 44883/09, 23 February 2016)��475 Osman and Osman v United Kingdom (1998), App no 23452/94, Case No 87/1997/871/1083, ECHR 245 1998-VIII, [1998] ECHR 101, (2000) 29 EHRR 245��299 Inter-America Court of Human Rights 19 Merchants v Colombia (Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No 109 (5 July 2004)��476 Almohacid-Arellano et al v Chile �� 481, 485

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

table of cases xix Bámaca Velásquez v Guatemala (Merits) Inter-American Court of Human Rights Series C No 70 (25 November 2000)��476, 481, 485 Barrios Altos v Peru (2001), Judgment of March 14, 2001 (Merits), Inter-Am Ct HR (Ser C) No 75 �� 317, 481, 485 Bueno Alves v Argentina, Judgment of 11 May 2007 (Merits, Reparations and Costs) Inter-Am Ct HR (Ser C) No 164 ��321 Bulacio v Argentina, Judgment of 18 September 2003 (Merits, Reparations and Costs), Inter-Am Ct HR (Ser C) No. 100��318 Goiburú et al v Paraguay (Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No 153 (22 September 2006)��476 González Medina and Family v Dominican Republic (Preliminary Objections, Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No 240 (27 February 2012)��476 Gelman v Uruguay (2011), Judgment of 24 February 2011 (Merits and Reparations), Inter-Am Ct HR (Ser C) No. 22��317 Ignacio Ellacuría et al (Case 10.488) (22 December 1999) IACHR, Report No. 136/99��476 La Cantuta v Perú (Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No 162 (29 November 2006)��476 Mapiripán Massacre v Colombia��485 Masacre de Mapmpân v Colombia �� 481 Velasquez Rodriguez v Honduras (1988), Judgment, Inter-Am Ct HR (Ser C) No 4��299

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

Table of Primary Legislation

L EGISL AT ION OF I N TER NAT IONA L CR I M I NA L COU RTS A N D TR IBU NA L S Statute of International Court of Justice Art 38�� 108 Art 38(1)��108, 109, 114 Art 38(1)(d)��109, 110 International Criminal Court Rome Statute 1998 ��53, 69, 83, 107, 150, 230, 248, 259, 360, 362, 405, 495, 534, 706, 714, 760 Preamble��180, 181, 220, 222, 224, 243, 437 Art 1��220 Art 1(b) ��224 Art 1(c)�� 225 Art 3��368 Art 4(1) ��224 Art 5�� 222, 768, 773 Art 5(1)��224 Art 6��73, 223, 298, 302, 485 Arts 6–8��381 Art 7�� 73, 124, 223, 297, 298, 302, 331, 369, 416, 485 Art 7(1)�� 331, 368, 420 Art 7(1)(c)��376, 799 Art 7(1)(f)��799 Art 7(1)(g)�� 376 Art 7(1)(k)��420 Art 7(2)(a)��331, 805 Art 8�� 73, 297, 298, 302, 307, 485 Art 8(2)(a)(ii)�� 799, 806 Art 8(2)(b)(xxii)��376, 799 Art 8(2)(c)(i)�� 799, 806 Art 8(2)(e)�� 297 Art 8(2)(e)(vi)��376, 799 Art 8(2)(e)(vii)��420 Art 8bis(1)�� 307, 804

Art 10��304 Art 12�� 144 Art 12(2)��138 Art 12(3)��144, 152 Art 13(a)�� 144 Art 13(b)�� 140, 188 Art 13(c)�� 144 Art 14��138 Art 15�� 124, 138, 801 Art 16�� 188 Art 17�� 78, 220, 225, 755 Art 17(1)��304 Art 17(1)(d)�� 315, 336 Art 21��107, 114, 416, 417, 418 Art 21(a)��224 Art 21(1)��114, 125 Art 21(1)(c) �� 120 Art 21(2)�� 114, 124 Art 22�� 125, 408, 419 Art 22(1)��420 Art 22(2) ��120, 420 Art 23�� 408 Art 25�� 72, 73, 380, 392, 394, 485 Art 25(3)��119, 391, 392, 394 Art 25(3)(a)�� 117 Art 25(3)(c)�� 303 Art 25(3)(d)�� 115, 303 Art 25(3)(f)�� 302 Art 27�� 211 Art 27(2) �� 326 Art 28�� 73, 485 Art 29��321, 326 Art 30(3) �� 302 Art 31(1)(d)�� 303 Art 33(2)�� 383 Art 34�� 81 Art 53(1)(c) �� 151 Art 53(2)(c)�� 151 Art 53(3)(b)�� 151

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

xxii table of primary legislation Art 54(3)(e)��49 Art 61(7)(a)�� 115, 331, 418, 420 Art 61(7)(b)�� 115, 331, 418, 420 Art 61(9) �� 73 Art 67��78 Art 67(1)(b)��49 Art 67(2) ��451 Art 68�� 491 Art 68(3) �� 63, 78, 79, 480, 482 Art 68(5) �� 55 Art 69�� 491 Art 69(3)�� 483, 485–488, 489 Art 74��73, 392, 420 Art 75�� 714 Art 75(2) ��62, 488 Art 79�� 714 Art 82(1)(d)�� 60 Arts 86–111��152 Art 89�� 210 Art 93�� 210 Art 98��143 Art 98(1) �� 140 Regulations of the Court 2004 reg 55 ��57, 73, 74, 483, 484, 485 reg 55(1)��484 reg 55(2)�� 74, 483 reg 55(2)�� 61 reg 77(4)(b)��766, 767 reg 83(3)��51 reg 83(4)��51 Rules of Procedure and Evidence 2013 (RPE) r 77��451 r 81(2)–(5)�� 55 r 82�� 55 r 20�� 81 r 69�� 480 r 73(4)��724 r 73(6)�� 725 Statute of the Special Tribunal for Lebanon 2007 (STL) Art 17��78 Statute of the Permanent Court of International Justice (PCIJ)�� 109 Statute of the International Criminal Tribunal for Rwanda (ICTR)��113, 297, 495

Art 1�� 225 Art 3�� 302 Art 6(1) ��26 Art 6(2)�� 303 Art 6(3) �� 26, 303 Art 6(4)�� 303 Art 8(2) �� 225 Art 12(2)��136 Statute of the Special Court for Sierra Leone (SCSL) Art 1(2)�� 142 Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY)�� 113, 369, 495, 503 Art 3��369 Art 5��302, 368, 369 Art 7(1)�� 26, 391 Art 7(2) �� 303 Art 7(3) �� 26, 303 Art 7(4) �� 303 Art 8(2) �� 225 OT H ER COU RTS A N D J U R ISDIC T IONS Africa Statute of the African Court of Justice and Human Rights �� 196 Argentina Constitution Art 18�� 326 Belgium Code of Criminal Procedure Art 342�� 455 Denmark Criminal Code s 896�� 455 France Code de Procédure Pénale Art 353��456 Germany Criminal Procedure Code

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

table of primary legislation xxiii Art 261�� 455 Penal Code s 2��68 Greece Code of Criminal Procedure Art 177�� 455 Italy Code of Criminal Procedure (Codice di Procedura Penale) Art 188�� 455 Art 533�� 457 Art 533(1)��456 People’s Republic of China Criminal Procedure Law Art 53�� 457

Art 55�� 457 Portugal Art 177 �� 455 South Africa National Unity and Reconciliation Act, 34 of 1995 Preamble�� 753 Spain Code of Criminal Procedure Art 741�� 455 United States of America Restatement (Third) Foreign Relations Law of the United States § 702�� 712

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

Table of International Treaties and Conventions

African Charter on Democracy, Elections and Governance Art 23��208 African Charter on Human and Peoples’ Rights 1981 �� 774 African Union Convention on Preventing and Combating Corruption 2003208 Art 4��207 Art 6��207 American Convention on Human Rights 1969�� 774 Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa 1991��207, 208, 247 Charter of the International Military Tribunal 1945 (IMT Statute or London Charter)��296 Art 1�� 142 Art 6�� 142, 226 Art 6(c) �� 301 Art 7�� 303 Art 8�� 303 Art 9�� 499, 501 Art 10��499 Art 12��499 Charter of the International Tribunal for the Far East 1946 (IMTFE Charter)�� 296, 499 Art 1�� 142 Art 5�� 142 Art 5(c) �� 302 Art 6��499 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity 1968�� 169, 176, 321

Covenant of the League of Nations 1919 Art 22��160 Convention on the Prevention and Punishment of the Crime of Genocide 1948 (Genocide Convention)�� 177, 297, 328, 354, 537, 773, 796, 801, 809 Art 1��297, 311, 437 Art II �� 420, 809 Art IV�� 437 Art VI�� 798, 801 Art VII�� 801 Convention for the Prevention and Punishment of Terrorism 1937 Art 10��794 Convention Relating to the Status of Refugees 1951 (Refugee Convention)�� 371 Convention on the Suppression and Punishment of the Crime of Apartheid 1973��780 Convention for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf 1988�� 793 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988�� 793 Convention for the Suppression of Unlawful Seizure of Aircraft 1970793 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (Torture Convention)��312, 773 Art 1(1)�� 806 European Convention for the Protection of Human Rights and Fundamental Freedoms 1950��408, 774 Art 2�� 475

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

xxvi table of international treaties and conventions Art 3�� 300, 301, 475 Art 5�� 301, 475 Art 7�� 301 Art 8��300 Art 9�� 301 Art 10�� 475 Art 12�� 301 Art 17�� 301 Protocol 11�� 408 Protocol 14 �� 408 European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes�� 176, 321 Geneva Conventions 1949��308, 436, 534, 796 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field�� 801 Art 49�� 437 Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea�� 801 Art 50�� 437 Geneva Convention III relative to the Treatment of Prisoners of War�� 801 Art 129�� 437 Geneva Convention IV relative to the Protection of Civilian Persons in Time of War�� 308, 801 Art 146�� 437 Art 149��308 Additional Protocol I��207 Art 1(1)��331 Art 47 ��207 Art 57(2)��428 Art 85(1) Art 85(5)��428 Additional Protocol II Art 1(1)��802 Geneva Convention on the High Sea 1958�� 801

Hague Convention on the Customs of War on Land 1899�� 71 Inter-American Convention on Forced Disappearance of Persons 1994 (Belem do Para Convention)��321 International Covenant on Civil and Political Rights 1966 (ICCPR)��301, 327, 362, 408 Art 8��372, 373 Art 16�� 362, 372 International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR)�� 362 Art 6�� 373 Art 11(1)�� 362, 370 International Convention for the Suppression of the Financing of Terrorism 1999 Art 2(1)(b)��794 International Convention on the Suppression and Punishment of the Crime of Apartheid 1973 (Apartheid Convention)��176–8, 182 Art IV(b)�� 184 Art V ��177 International Convention against the Taking of Hostages 1979�� 793 International Opium Convention 1912��780 Malabo Protocol��494 Art 28A ��205 Art 28B ��205 Art 28D��205 Art 28E��207 Art 28G��207 Art 28H��207 Art 28H(1)(b)��207 Art 28I��207 Art 28L��208 Art 46A�� 211 Art 46H��209 Nuremberg Charter Art 6�� 567 Organisation of African Unity (OAU) Convention for the Elimination of Mercenarism in Africa 1977��207

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

table of international treaties and conventions xxvii Organisation of African Unity (OAU) Convention on the Prevention and Combating of Terrorism 1999��206 Art 1��206 Protocol Against the Illegal Exploitation of Natural Resources (International Conference on the Great Lakes Region 2006��208 Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition 2001�� 793 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children�� 793 Art 3(a) ��206 Protocol against the Smuggling of Migrants by Land, Sea and Air�� 793 Single Convention on Narcotic Drugs 1961 ��780 Single Convention on Psychotropic Substances 1971 ��780 Slavery Convention 1926 Art 1(1)�� 362, 366 Slavery Convention 1956 Art 7�� 365 Treaty on the Functioning of the European Union Art 83��202 Art 86�� 203 Art 86(2)��203, 204 Art 86(4)��204 Treaty of Lisbon 2007 ��202 United Nations Charter��427

Chapter VII��152, 225, 244, 309 Art 39�� 354 Art 41�� 140 Art 51�� 354 United Nations Covenants on Human Rights 1966�� 774 United Nations Convention against Corruption 2003��207 United Nations Convention on the Law of the Sea, 1982�� 801 Art 101�� 563 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988��206, 780, 781 United Nations Convention on the Law of the Sea 1994�� 772 Art 101��206 United Nations Convention against Transnational Organized Crime 2000 ��206, 793 United Nations Declaration on Friendly Relations 1970 �� 774 Universal Declaration of Human Rights��297, 364, 408 Art 6�� 372 Art 11(2)�� 327 Vienna Convention on the Law of Treaties 1969 Art 31(1)��366 Vienna Convention on the Law of Treaties 1986 Art 31�� 72, 418 Art 31(1)�� 120, 366 Art 32�� 418 Art 53��325

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

List of Contributors

Edwin Bikundo, Senior Lecturer, Griffith Law School Leora Bilsky, Benno Gitter Chair in Human Rights and Holocaust Research, Tel Aviv University Faculty of Law, and Director of the Minerva Center for Human Rights, Tel Aviv University Cheah W.L., Assistant Professor, Faculty of Law, National University of Singapore Alejandro Chehtman, Professor of Law, Universidad Torcuato Di Tella Law School Mikkel Jarle Christensen, Professor WSR, Danish National Research Foundation Centre of Excellence for International Courts (iCourts), Faculty of Law, University of Copenhagen Tom Dannenbaum, Assistant Professor of International Law, Tufts University Jean d’Aspremont, Professor of International Law, Sciences Po Law School and University of Manchester Marie-Sophie Devresse, Professor, Interdisciplinary Research Centre on Deviance and Penality, UCLouvain Lawrence Douglas, James J. Grosfeld Professor of Law, Jurisprudence, and Social Thought, Amherst College Mark A. Drumbl, Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute, Washington and Lee University Laurel E. Fletcher, Clinical Professor of Law, Berkeley Law, University of California, Berkeley Christopher Gevers, Lecturer, School of Law, University of KwaZulu-Natal Marlies Glasius, Professor of International Relations, University of Amsterdam Alexander K.A. Greenawalt, Professor of Law, Elisabeth Haub School of Law, Pace University Douglas Guilfoyle, Associate Professor of International and Security Law, School of Humanities and Social Sciences, University of New South Wales Canberra Miriam Gur-Arye, Judge Basil E. Wunsh Professor of Criminal Law, Faculty of Law, Hebrew University of Jerusalem

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

xxx list of contributors Adil Ahmad Haque, Professor of Law and Judge Jon O. Newman Scholar, Rutgers Law School Alon Harel, Phillip and Estelle Mizock Chair in Administrative and Criminal Law, Faculty of Law, Hebrew University of Jerusalem Kevin Jon Heller, Associate Professor of Public International Law, University of Amsterdam, and Professor of Law, Australian National University Dov Jacobs, Assistant Professor, Grotius Centre for International Legal Studies, Leiden University Neha Jain, Professor of Public International Law, European University Institute, and Associate Professor of Law, University of Minnesota Law School Sara Kendall, Senior Lecturer in International Law, University of Kent Mark Klamberg, Professor of International Law, Stockholm University Henry Lovat, Lord Kelvin Adam Smith Research Fellow, School of Law, University of Glasgow David Luban, University Professor in Law and Philosophy, Georgetown University, and Distinguished Chair in Ethics, Stockdale Center for Ethical Leadership, United States Naval Academy Itamar Mann, Senior Lecturer, University of Haifa, Faculty of Law Frédéric Mégret, is Professor of Law and a William Dawson Scholar at McGill University Tim Meijers, University Lecturer, Institute for Philosophy, Leiden University Marko Milanović, Professor of Public International Law, University of Nottingham, and Professorial Research Fellow, Deakin Law School Saira Mohamed, Professor of Law, Berkeley Law, University of California, Berkeley Samuel Moyn, Henry R. Luce Professor of Jurisprudence, Yale Law School, and Professor of History, Yale University Sarah MH Nouwen, is Reader in International Law and Deputy Director of the Lauterpacht Centre for International Law at the University of Cambridge, and Fellow of Pembroke College, Cambridge Jens David Ohlin, Vice Dean and Professor of Law, Cornell Law School Kim Christian Priemel, Professor of Contemporary European History, Department of Archaeology, Conservation, and History, University of Oslo Darryl Robinson, Associate Professor, Faculty of Law, Queens University (Canada) Damien Scalia, Professor, Centre de Recherches en Droit Pénal, Law and Criminologie Faculty, Université Libre de Bruxelles

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

list of contributors xxxi Christine Schwöbel-Patel, Associate Professor, School of Law, University of Warwick Gerry Simpson, Professor of International Law, London School of Economics Alette Smeulers, Professor of Criminal Law and Criminology of International Crimes, University of Groningen Sofia Stolk, Postdoctoral Researcher in International Law, Asser Institute/University of Amsterdam Jenia Iontcheva Turner, Amy Abboud Ware Centennial Professor in Criminal Law and Robert G. Storey Distinguished Faculty Fellow, SMU Dedman School of Law Sergey Vasiliev, Assistant Professor of International, Transnational, and Comparative Criminal Law, Faculty of Law, University of Amsterdam, and Fellow, Amsterdam Center for International Law Wouter Werner, Professor of International Law, Vrije Universiteit, Amsterdam, and Extraordinary Professor of International Law, University of Curacao Harmen van der Wilt, Professor of International Criminal Law, Faculty of Law, University of Amsterdam

OUP CORRECTED PROOF – FINAL, 02/07/2020, SPi

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

I n troduction Kevin Jon Heller, Frédéric Mégret, Sarah MH Nouwen, Jens David Ohlin, and Darryl Robinson

The fortunes of international criminal law (ICL) come and go. It is at times hard to keep track of the many developments in this amorphous and continuously evolving field. On some level, ICL is merely a technique for criminalizing the violation of certain norms and may not have much of a comprehensive project of its own. Indeed, over time ICL has been associated with a variety of substantive projects: fighting terrorism, protecting peace, punishing atrocities, and so on. It is impossible, moreover, to discuss ICL without discussing international criminal justice more generally, which encompasses a dizzying array of institutions and initiatives. At the same time, the last 30 years have been marked by an evident ‘normalization’ of the discipline from its earlier and perhaps more ‘heroic’ age. Where previous scholars had to make do with the legacy of Nuremberg and Tokyo and a motley of international offences, the discipline has now developed more of a sense of its origin and its destin ation. It has benefitted considerably from the creation and operation of international criminal tribunals that have provided ample opportunity to dissect previously undis cussed, and perhaps even unimagined, questions. Its social relevance has become more entrenched, its modes of intervention more familiar. Innumerable graduate pro grammes, journals, conferences, and monographs have been dedicated to its study. Although ICL has edged ever further towards completeness, tremendous disagree ment persists about not just the discipline’s norms, but even its very founding assump tions. The growing implementation of ICL has hardly been the simple and mechanical enforcement of uncontroversial norms that may once have been anticipated. Rather, that implementation has generated countless dilemmas of its own. In fact, one might even argue that the status of ICL has become more uncertain following, and perhaps as a result of, the proliferation of opportunities—international and domestic—to enforce its normative promise through liberal-legal judicial mechanisms. In addition, the

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

2 Kevin Jon Heller ET al. increased specialization of the discipline has meant that some of its meaning has often been lost in the minutiae of technique. Where are the discipline’s grand narratives? In this context, it could be argued that ICL has emerged as both strong and weak. Strong because it is now clear that the discipline has a certain staying power. Beyond this or that contingent crisis, the multiplication of international criminal tribunals and domestic trials applying principles of ICL confirm a sense that criminal prosecution has become an indispensable tool of order and justice in the international community. But also weak, because ICL can be a challenging and even tenuous proposition in a deeply divided and pluralistic international environment. This duality has triggered a perhaps unusual degree of soul-searching and investiga tion about the field that reflects both the hopes invested in it and the anxieties it tends to generate. Is ICL what it claims to be? Is it true to its own self-proclaimed principles? Does it achieve what it was created to do? Indeed, ICL is as much a discipline as it is a social field and a terrain of scientific and theoretical inquiry. Some study the intricate workings of ICL from a doctrinal point of view, seeking to minimize incoherence and grasp the field as a logical totality; others investigate the actual impacts of international criminal tribunals using sophisticated tools of empirical analysis; still others treat inter national criminal justice as a philosophical and ethical proposition. Some studies engage each other; others pass each other in the dark. But all tend to become a part of that which they claim to discuss. That could also be the future of the chapters in this Handbook. It is conceived as a guide to the state of the art in ICL research. It does not aim to be exhaustive, but it does seek to cover most of the broad dilemmas that have become characteristic of the discip line. The editors have invited authors to avoid the standard fare of contemporary doctri nal debates. Instead, the contributions take a ‘step back’ and critically examine prevailing practices, orthodoxies, and received wisdoms. The aim is to shed new light on a muchdebated field by equipping readers with different ways of thinking about ICL. As a result, this book showcases a diversity of perspectives on the field. The chapters bring to bear empirical, critical, sociological, criminological, historical, and philosophical approaches. In doing so, they demonstrate the different methodologies, styles, sensibilities, and pre occupations of ICL as a discipline. In structuring the Handbook, the editors have sought to avoid reproducing ICL’s existing categories of understanding (substantive/procedural law, international crim inal tribunals/domestic courts, etc). Instead, we have organized the contributions according to a conceptual vocabulary that seeks to describe and analyze ICL as a system always in flux, of contested provenance, and facing an uncertain future. The resulting sections are titled: Actors, Spaces, Rationales, Crimes, Modalities, Narratives, Anxieties, Boundaries, and Future(s). Throughout the volume, one encounters various shared assumptions, concerns, and issues. Here we highlight three enduring controversies that have marred the discipline’s self-understanding and that have given rise to as many lines of questioning: controversies over hierarchy, over equality, and over consistency.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Introduction 3 ICL has increasingly raised issues of hierarchy. The very nature of ICL is to create a hierarchy between the norms it backs and all other norms, the latter of which are presumed not to have an (internationally) penal character. But do norms of ICL always trump ‘ordinary’ norms of international law, as in the case of immunities? Issues of hierarchy can be found within ICL itself between its ‘core’ crimes and those presumed to lie at its periphery; in the relationship between international criminal tribunals themselves (is the ICC a primus inter pares or merely one among many international criminal juris dictions?); and between international criminal tribunals and domestic courts (issues of complementarity and primacy). Questions of hierarchy also emerge in the practice of international criminal justice, such as in the tension between the rights of the defence and the rights of victims, or between the pursuit of justice and the pursuit of peace. ICL also increasingly raises questions of equality that are at least partly in tension with the vertical thrust of hierarchy. How should ICL treat like cases alike? To what extent is international criminal justice the repository of ideological presuppositions that lead it to emphasize the importance of some harm or some evil at the expense of others? Certain hierarchical criteria (e.g., the relative gravity of crimes) inevitably provide the basis for claims that less grave instances of crime are being treated with too much severity— and vice versa. Negotiating this distributive dimension has become the stock and trade of international criminal tribunals, which constantly have to deal with allegations that their choices reflect some a priori bias. Finally, ICL raises intractable questions of authority in a context where its impact on certain constituencies is real and dramatic. Although ICL seems to presuppose consen sus in its very definition, that consensus is prone to crumble as soon as one seeks to implement it. What seems agreeable from a distance often looks uglier when the hard political costs for various actors are computed from up close. Who, in such conditions, gets to establish international criminal tribunals? How are international criminal cases constructed—and by whom? Who exercises prosecutorial discretion? Who speaks for international criminal justice? For victims? And why would states, victims, or even defendants decide to defer to certain institutional actors and not others? Turning now to the book’s nine sections, we provide short descriptions of the chapters within them.

Actors The five chapters in this section focus on actors that have played a central yet often underappreciated role in the creation and development of ICL: defendants, defence attorneys, scholars, and officials at international tribunals and NGOs focused on ICL. The chapters are not content to simply provide a formal description of those roles or dispassionately explain how they have evolved over time. Instead, each critically inter rogates the position of those actors in relation to the discipline of ICL as a whole.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

4 Kevin Jon Heller ET al. Three of the chapters focus specifically on the role of the defence. Marie-Sophie Devresse and Damien Scalia open the section with an empirical study of how individ uals who have been defendants at the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) perceived and understood the trial process. Breaking with those who resist taking seriously the lived experience of individuals accused of being responsible for terrible acts, the authors insist that even the most des pised génocidaire can contribute to knowledge production about international criminal justice. Devresse and Scalia’s conclusions, which are based on an analysis of 60 inter views, are enlightening and often counterintuitive. They find, for example, that a defend ant’s acceptance of the legitimacy of their trial generally depends far more on whether the defendant believes the process treated them fairly than on pragmatic considerations such as the outcome of the trial and the severity of any resulting sentence. Unfortunately, most defendants felt estranged from the trial process on account of its symbolic ‘violence’ toward them (such as the judge reading the charges during their initial court appearance) and the passive position it necessarily assigns them during the trial. Jenia Iontcheva Turner’s chapter focuses on the attorneys who represent defendants. On the basis of interviews with 18 defence attorneys at the ICC, nearly all of whom had extensive experience at other international tribunals, she assesses whether the rise of ‘managerial judging’—greater judicial control over the conduct of trials in the name of ‘efficiency’, such as limiting the number of defence witnesses and the length of cross- examination—has adversely affected defence perceptions of the fairness of trials. Again illustrating the importance of empirically studying ICL, Turner’s conclusions are as sur prising as Devresse and Scalia’s. Perhaps surprisingly, most defence attorneys do not believe that judges at the ICC have undermined the fairness of trials through their man agerialism. In the majority’s view, the problem with the judges is not excessive emphasis on efficiency but unwarranted deference to the prosecution on a variety of issues, such as failing to demand adequate disclosure or not sufficiently questioning the adequacy of evidence during the confirmation of charges. Turner thus concludes that, to promote defence perceptions of fairness, limiting managerial judging is less important than pro moting equality of arms through, for example, greater legal aid and greater skepticism toward the prosecution’s case prior to trial. Dov Jacobs’ chapter, which is based on his experience with ICL as both a scholar and defence attorney, is more self-consciously polemical. Jacobs argues that international tribunals minimize the need to accurately determine the defendant’s guilt by routinely ‘balancing away’ defence rights vis-a-vis other values that are deemed more important, such as ‘combating impunity’ or acknowledging the suffering of the victims. He identi fies four different types of such balancing: foundational, procedural, institutional, and systemic. Foundational balancing concerns the (mis)use of the sources of international law, such as the tendency of international tribunals to rely on teleological interpretation of their enabling statutes to widen the sphere of criminal responsibility. Procedural balancing primarily involves de-emphasizing the importance of defence rights by

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Introduction 5 elevating the (assumed) rights of other actors in the system, such as the prosecution’s right to a fair trial. Institutional balancing relates to the structural position of the defence at international tribunals, which is almost always peripheral by comparison to the prosecution, as well as the general tendency of tribunals to starve the defence of funds in order to better serve the needs of victims. And systemic balancing focuses on how the collective nature of international crimes requires international tribunals to rely on substantive doctrines—such as joint criminal enterprise or indirect co-perpetration— that make it more difficult to accurately assess the criminal responsibility of individual defendants. Those four types of balancing, Jacobs suggests, relegate defendants to the margins of the trial process, significantly increasing the likelihood of unjust verdicts. Mikkel Jarle Christensen’s chapter returns us to the empirical study of ICL by focusing on a key actor whose centrality has gone largely unnoticed: the ‘new professional elite within and around the international criminal courts’, understood as individuals who have accumulated so much symbolic capital within ICL that they function as a shaper of the discipline itself. Based on nearly 120 interviews and 255 CVs, Christensen care fully traces the evolution of the new professional elite from three different starting points: the international judiciary, particularly the ICTY; leadership of NGOs dedi cated to international criminal justice, such as the Coalition for the International Criminal Court and Human Rights Watch; and academia. What his genealogy reveals is that, whatever their starting point, professional elites generally achieved their status through a similar three-step process: they obtained senior positions within international-criminal-law-related institutions in the early 1990s, when ICL was a relatively new field; they used the symbolic capital that came with their senior posi tions to build influence within the field of ICL as a whole, often by moving into and through multiple high-level roles; and eventually they accumulated so much symbolic capital across institutions that they came to be seen as ‘founding fathers’ of ICL. Whereas Christensen’s chapter only touches on scholars, Neha Jain puts them front and centre, asking what the outsized role ‘publicists’ have played at the ICC says about the methodological coherence of the field and, more generally, about public inter national law’s formal relegation of the ‘teachings of the most highly qualified publi cists’ to a subsidiary status. She explores those questions through the lens of the court’s decision to reject joint criminal enterprise as a mode of liability in favour of indirect perpetration and co-perpetration, both of which are profoundly indebted to the work of Claus Roxin, a prominent German criminal law theorist. For Jain, the ICC’s overt reliance on Roxin and German criminal law scholarship more generally indicates that the Court is much less interested in the formal sources of international law than the ICTY and ICTR, neither of which ever relied to any great degree on legal scholarship. Indeed, she suggests that—at least in practice—the work of publicists is the most important ‘source’ of law at the ICC, assuming pride of place even over rules that can be derived through normal principles of treaty interpretation. That valorization of scholarship, Jain suggests, is best explained sociologically instead of doctrinally—as

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

6 Kevin Jon Heller ET al. reflecting the critical role publicists played in drafting the Rome Statute and continue to play (to invoke Christensen) as key members of ICL’s ‘new professional elite’.

Spaces The chapters in this section examine different facets of the political geographies of ICL. Tom Dannenbaum’s chapter considers a prominent North-South issue: the problem of the privileged position of the permanent members of the Security Council. Security Council referrals are a legally sufficient basis for ICC action under the Rome Statute and the UN Charter. But there is a moral legitimacy challenge to such referrals, given that the permanent members can refer situations and yet veto any referrals of their own actions—even those members that have rejected ICC ratification. Dannenbaum argues that this double standard undermines the ICC’s moral standing to judge and explains why this criticism undermines the ICC but not the ad hoc tribunals, which are even more dependent on the Security Council. His prescriptions are that the ICC should be vested with universal jurisdiction, that Security Council referrals should be removed from the Statute, or, more modestly, that the Prosecutor should decline all Security Council referrals under the ‘interests of justice’ test. Christopher Gevers also powerfully dissects the North-South dimensions of ICL. He shows that all sides in current debates about Africa and the ICC rely on a foreshortened understanding of the history of Africa and ICL, because Africans have been present since the beginning of the ICL project in 1919, including as producers of ICL. For example, Africans pressed for recognition of the crime of apartheid even in the face of entrenched reflexes of ignoring apartheid and the crimes of colonial powers in Africa. Gevers also explores the different ways both images of ‘Africa’ and understandings of ‘Europe’ have been represented in ICL. The absence of prosecution for apartheid and colonial crimes, as well as the silence regarding apartheid in the historiography of ICL, tell a less triumphant story of ICL. A richer account would thus place current critiques of ICL’s problematic relationship with Africa into a longer history. Like Tom Dannenbaum, Harmen van der Wilt focuses on the question of moral standing: on whose behalf does a criminal court purport to act? He examines the jus tification for a regional criminal court, namely the proposed Criminal Chamber within the African Court of Justice and Human and Peoples’ Rights. He draws on Durkheim’s concept of the social function of criminal law and Duff ’s idea of the requisite ‘political community’ on whose behalf a penal institution speaks to argue that a region can constitute a political community capable of being protected by crim inal law and represented by a regional criminal court. The Malabo Protocol, which establishes the Criminal Chamber, includes not only the standard ‘core crimes’ but a range of other crimes as well. Van der Wilt argues that these are crimes that signifi cantly affect Africans and African states, making it appropriate to create a regional institution in an attempt to counter them.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Introduction 7

Rationales The chapters in the Rationales section focus on the raison d’être for international criminal justice. But instead of simply rehashing old rationales, these chapters problem atize the common concepts and buzzwords so often deployed to both explain and justify the resort to criminal prosecution. To start, Miriam Gur-Arye and Alon Harel focus on why ICL matters, and in so doing generate a distinctive philosophical vision for the pro ject of international criminal justice. Specifically, Gur-Arye and Harel reject the notion that ICL is simply a gap-filler for ineffective penal institutions at the domestic level. So much of the literature is characterized by an assumption, buttressed by the ICC’s complementarity principle, that international tribunals simply spring into action to resolve the lacunae in domestic legal processes when armed conflict or other disruptions dismantle traditional institutions for criminal enforcement. In contrast, Gur-Arye and Harel argue that the ‘goods of ICL and the values it promotes can only be provided by international entities’. In that respect, international justice is not a second-best alterna tive to domestic justice but is, rather, necessarily international because international institutions are specifically designed to redress wrongs that harm the interests of the international community as a whole. Mark Drumbl takes a different tack for answering the same fundamental question: why does international criminal justice exist to punish perpetrators of international crimes? So much of the traditional discourse focuses on the concept of impunity, and Drumbl fixes his critical gaze on that oft-repeated but rarely scrutinized concept. According to Drumbl, impunity in a broad sense means freedom from ‘harmful conse quences, recrimination, reparations, shame, or sanction’. Consequently, compared with traditional accounts, Drumbl argues for a much more capacious understanding of poena, which might give societies—particularly those faced with a recent history of mass atrocity—a greater set of options and allow them to move beyond incarceration as the only form of punishment. In the end, Drumbl retains the concept of impunity as his central focus, but it is a redrawn and re-envisioned notion of impunity that will chal lenge the preconceptions of many international criminal lawyers. The chapters by Drumbl as well as Gur-Arye and Harel both teach us that inter national punishment stands at the crossroads of the individual and the collective. On the one hand, the object of punishment is an individual; but on the other hand, that punishment is often assumed to accomplish something for the collective. That tension is explored in depth by Marko Milanović, who asks whether international tribunals are capable of healing a traumatized society. In that sense, it is not enough that a tribunal punish the guilty, it must also produce a social awakening concerning the community’s own culpability for the wrongdoing. Drawing on his empirical evaluation of the social response to the work of the ICTY, Milanović questions whether this can occur. At least in the case of the ICTY—otherwise regarded as one of the most successful international tribunals—the work of the tribunal has been shockingly ineffective because some sec tors of the public simply refuse to accept the conclusions that the tribunal has drawn.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

8 Kevin Jon Heller ET al. Milanović then broadens this conclusion into a general theory: that the work of a tribunal will be viewed positively by the local population unless the tribunal is a threat to local elites who have the power to shape public opinion against it.

Crimes The first two chapters in this section, by Alejandro Chehtman and Alexander Greenawalt, both seek to illuminate the theory of what constitutes an international crime. As they note, the question is not merely theoretical but has concrete conse quences: characterization as an international crime enables extra-territorial prosecu tion, including through universal jurisdiction and by international tribunals, and potentially has other effects on the availability of statutes of limitations, the defence of superior orders, immunities, and amnesties. Greenawalt surveys problems with most available explanations of the theory under lying international crimes and suggests a pluralist account. He notes that contemporary law seems to be more about protecting humans than about international order or inter state regulation per se. He suggests the focus on mass atrocities, along with other limita tions (such as admissibility), is a means of managing scarce resources to prioritize the gravest crimes as a fallback when states are ineffective. Beyond these general outlines, there is no hard and fast line because, in a pluralistic system, international crimes demand a continuum of responses (prosecution, preventive action). Different applica tions can warrant a different way of understanding a given crime. Chehtman argues that international criminalization has to be justified before the affected political community. He concludes that the most significant feature of inter national crimes is that they allow extra-territorial jurisdiction. Accordingly, international crimes must warrant conferring upon extra-territorial authorities the power to punish. ICL should thus not encompass isolated acts, as some have argued; instead, a substantial level of gravity is needed to justify extra-territorial jurisdiction. Chehtman argues that ICL contributes to the well-being of individuals by declaring that they are the bearers of fundamental legal rights and that those rights will be protected by authorities. ICL complements domestic justice systems by providing individuals a benefit that domestic criminal justice systems cannot provide on their own. Samuel Moyn argues that although the Nuremberg proceedings were heavily focused on the crime of aggression, ICL’s emphasis has shifted dramatically: since the reinven tion of ICL in 1990s, it has foregrounded atrocity. ICL is often presented as following a smooth trajectory, but actually there was a reversal or massive shift from a priority on aggression to its near exclusion. The focus on atrocity—and the aspiration to make war ‘clean’—may humanize war rather than stigmatize it, and perhaps even enable war instead of limit it. Moyn suggests, as an explanatory hypothesis, that Nuremberg took place during a ‘passing window of plausibility’: the USA has generally opposed the crim inal prohibition of aggression, either because such a system might demand US intervention

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Introduction 9 or because it might pass judgment on US interventions. Circumstances aligned to allow the Nuremberg proceedings, after which ICL stalled again, and the switch to an atrocity focus helped fill the resulting void. Edwin Bikundo delves into one specific crime, enslavement as a crime against humanity. He argues that the law has drawn heavily on civil and political rights, neglect ing economic, social, and cultural ones. The law surrounding slavery has drawn on some basic contrasts: notably separating the concept of ‘human’ (a human being) from ‘per son’ (a bearer of legal personality and rights). Another distinction is between ‘status’ and ‘condition’. The law has tended to focus on status, i.e., legal non-recognition of person hood, which has affinities with civil and political rights. The law has given much less attention to ‘condition’, which looks at the person’s material conditions in fact, and which has affinities with economic and social rights. A re-imagined law better encom passing economic and social rights would be more ideologically neutral, more in keep ing with human rights law, and more in keeping with the lived experiences of African would-be migrants. Recognition in law is not enough; one must also look at the material conditions of life, the deprivation of which enables enslavement.

Modalities The section on modalities focuses on doctrines and concepts that are part of the methodology of international criminal justice. These include not just modes of liability as part of the substantive criminal law doctrine, but also other conceptual methodolo gies used by institutions of international justice. The chapter by Alette Smeulers tackles the Control Theory of Perpetration, a German-inspired mode of participation that is applied only by the ICC. The control the ory, developed by the German scholar Claus Roxin, provides a doctrinal apparatus for distinguishing between principal perpetrators and mere accomplices. Instead of defin ing the principal perpetrator as the individual who performs the actus reus of the offence, or who has the mens rea for the offence, the control theory states that he or she who controls the crime is the principal perpetrator even if that person uses another individual, or even an organization, to carry out the crime. Although much ink has been spilt in the scholarly literature regarding the doctrinal details of this mode of liability, Smeulers has a far broader question to ask: Does the control theory as applied by today’s ICC (or by other courts that have adopted it) accord with the social reality of how atro cities are committed? In other words, she is not asking whether the control theory is good criminal law theory, but rather whether the control theory is good sociological criminology. Jean d’Aspremont takes a step back and looks more globally at the methodologies used by international criminal justice, particularly its tendency towards expansionism: including more actors, more situations, and more offences under its umbrella. D’Aspremont does more than simply tell the story of this expansion; he also systematizes

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

10 Kevin Jon Heller ET al. it. He argues that international criminal justice’s expansionism has taken two important forms. The first wave involved a sources-based expansionism, characterized by the field’s desire to expand its influence by increasing the number of legal sources—treaty, custom, general principles—that could be sources of ICL. But when that process was largely complete, the passage of the Rome Statute of the ICC heralded a new, hermen eutic form of expansionism, this one based on interpretation rather than on adding new sources of law. While the hermeneutic expansion is less overt and less recognized than the first wave, its consequences are still dramatic. Adil Haque focuses on the relationship between immunity and impunity. Specifically, Haque traces the arguments made by Hans Kelsen that international principles of immunity protect individuals from prosecution for acts done in their official capacity. Given international criminal justice’s mandate to target the most culpable perpetrators of international crimes, who are often government leaders, the question of official immunity is the major roadblock to eliminating impunity. However, Kelsen even extended this view to regular soldiers acting on official government orders. Although this position is seemingly out of step with mainstream doctrine that assumes that lawful combatants can be prosecuted for violating jus in bello, Haque deftly demonstrates that Kelsen’s radical views nonetheless continue to linger today in the margins of the field. The chapter by Mark Klamberg deals with the epistemological challenges posed by the evaluation of evidence in international trials. Unlike common-law juries, who are insulated from evidence deemed by a judge to be potentially irrelevant or prejudicial, international judges have access to all evidence in order to fulfil their role as fact-finders. Klamberg suggests how judges should undertake that fact-finding obligation, especially with reference to an ‘alternative hypothesis’ standard of decision for evaluating the mas sive amounts of evidence presented at trial. Given the high-profile collapse of several recent cases at the ICC due to lack of evidence presented at trial, Klamberg’s chapter is notable for bringing back standards of decision and other evidentiary issues to the centre of the discussion. Evidence is about more than arriving at convictions or acquittals; it is also neces sary for securing the truth, though that goal is a highly contested one for international criminal justice. Leora Bilsky asks whether victims have a ‘right’ to the truth, and if they do, whether international trials are the appropriate vehicle for vindicating that right. Many have argued for a limited role for international criminal trials, one focused exclusively on the fate of individual defendants, while others seek to subordinate criminal trials to larger, historiographic goals of constructing a definitive record of atrocities and other violations. Bilsky reframes these debates around the concept of ‘victim rights’, which are all the rage in the field, especially since the Rome Statute pro vides a privileged place for victims in the procedural mechanics of the ICC. Bilsky concludes that these developments, combined with the role of human rights law, has ushered in an ‘emerging truth regime’. Finally, Saira Mohamed details the consequences of the lost history of ‘criminal organizations’ as a distinct mode of liability. At Nuremberg, certain Nazi organizations were judged to be ‘criminal’ organizations by virtue of the role that they played in the

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Introduction 11 execution of the Holocaust. One rationale for these declarations was to facilitate mass trials—and convictions—based purely on mere membership in these criminal organ izations. Mohamed details how the law treated the ‘cogs’ of these ‘machines’ as an important part of the story of the Holocaust. But the mass trials never occurred and the notion of ‘criminal organizations’ was largely swept aside by other developments. Nonetheless, notions of organizational criminality emerged, in different ways, in other doctrines and modes of participation which dominate the field today. Mohamed asks provocative questions about what the field would look like today if ‘criminal organiza tions’ had not been eliminated as a doctrinal category. How might today’s international criminal justice make use of the doctrinal concept? Would doing so have the benefit of recognizing the crucial role that organizations play in mass atrocity?

Narratives This section focuses on the narratives produced by international criminal justice. One way in which international criminal justice produces narratives is through trials. Exploring the overlaps and differences between historical reasoning and judicial his toriography, Kim Priemel argues that historians and international criminal lawyers share more ground than they usually acknowledge. Not only are both professions in what Raoul Hillberg has labelled the ‘truth business’, they also share methodologies. In contrast to the many scholars who have argued that lawyers, unlike historians, focus on judgment rather than historiography, Priemel takes the reader from Nuremberg to the ICC to show that judicial proceedings have been a major site for the development of both micro- and macro-level histories, sometimes problematically so. Moving the book from how trials produce historical narratives to how the emergence of a certain body of law itself changes dominant narratives, Lawrence Douglas argues that the development of the international law of aggression has served to destabilize a dominant narrative, namely that of the distinction between criminal and enemy. Going all the way back to Hobbes—and also discussing Kant, Grotius, de Vattel, Schmitt, and Arendt—Douglas shows that the criminal/enemy dyad was central to the Western legal tradition for many centuries. He then argues that the emergence of the international law on aggression has upended that binary, affecting the boundaries between war and policing, and between the jus ad bellum and the jus in bello. David Luban also engages with narratives around enmity produced by inter national law, but he focuses on crimes against humanity rather than aggression. Analyzing the notion of ‘enemy of humanity’, Luban traces it back to tyrants rather than, as per the dominant narrative, pirates. Like Douglas in the chapter before him, Luban engages with Schmitt’s predictions as to what it means to label someone an enemy. He argues that as long as the enemy is considered a criminal rather than an outlaw, and is treated in accord with humane law, the metaphor of enemy of humanity is not problematic. Luban then turns to the concept of humanity in the notion of

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

12 Kevin Jon Heller ET al. enemy of humanity, arguing that this term does not describe an existing phenomenon, but a normative ideal, and that this ideal lies at the very basis of ICL. Having explored how trials and legal concepts produce or change narratives, the section then turns to Sofia Stolk and Wouter Werner’s analysis of how audio-visual representations of the work of international criminal tribunals create narratives around victims. Stolk and Werner highlight one important aspect of those narratives (as with discourse in general): they do not merely reflect and represent, they also create. More specifically, victims and victimhood are not pre-given categories, but are instead constituted via acts of representation, including audio-visual ones. Viewing this material through the lens of a typology of modes of representation in documentary film theory, Stolk and Werner argue that audio-visual productions have created differ ent types of victims: whereas advocacy documentaries have produced ‘ideal’ victims, critical documentaries ‘argumentative victims’, and observatory documentaries ‘translated victims’, audio-visual materials produced by the ICC itself have presented ‘bureaucratized victims’.

Anxieties The section explores various anxieties about international criminal justice. Henry Lovat explores the phenomenon of backlash against international criminal tribunals, defining backlash as ‘intense and sustained government disapproval of tribunal conduct, accom panied by aggressive steps to resist such conduct and to remove its legal force’. Drawing on international relations theories, he analyzes drivers and inhibitors to backlash against international criminal tribunals, specifically the ICC, the ICTY, and the Special Tribunal for Lebanon. He identifies several factors relevant for explaining tribunal backlash: domestic politics and the preferences and interests of powerful elites; external actors, particularly engaged regional and great powers; and transnational social pressure. Whereas Lovat focuses on backlash against international criminal tribunals, Sergey Vasiliev explores the notion that international criminal justice is in ‘crisis’. Although the language of crisis suggests an occasional, temporary, exceptional moment, Vasiliev argues that the project of international criminal justice has essentially been in crisis since its emergence. International criminal tribunals, he contends, have never been able to cleanse their ‘original sin’: despite the aspiration to transcend state power and state sovereignty, they remain heavily dependent on it. The more finessed the doctrine, the more professional the practitioners, and the more numerous its institutions–the more evident is the field’s inability to challenge power inequalities and address structural injustices. Against this background, Vasiliev assesses how ‘the mainstream’ responds to the critiques and whether it does so persuasively. Concluding that critical international criminal lawyers and mainstream international criminal lawyers seldom converse and think together, he ends with a call for a critical sensibility of the mainstream, facilitating a transformation of institutional politics as a result of which the ICC would no longer be afraid of itself.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Introduction 13 Taking Eichmann as his object of study, Itamar Mann subjects international criminal trials to three types of critique. First, adopting the perspective of the rule of law, he engages with Hannah Arendt’s writing on the Eichmann trial to argue that international criminal trials are constantly suspected of becoming ‘show trials’. Secondly, turning to Shoshana Felman’s work, he identifies a genre of critique according to which inter national criminal justice is premised on an experience of catharsis, in which the trauma of atrocity’s victims is alleviated (constituting a post-atrocity political community). Finally, he analyzes a 2010 film that shows the trauma of the man who executed Eichmann to show the unacknowledged risks of wielding the violence of criminal just ice. Based on this ‘hangman’s perspective’, he suggests assessing international criminal trials in light of questions about the transnational allocation of such risks and about pre existing inequalities—economic, ethnic, and other—that determine the roles different people will end up playing in trials. A common critique of international criminal justice, most famously made by Martti Koskenniemi, is that international criminal trials, when faced with high-profile and charismatic defendants, are basically doomed: either they silence the defendant’s polit ical rhetoric and become show trials, or they let the defendant speak of the bias and inconsistencies in their institutional set-up, thus equally imperiling their legitimacy. In their chapter, Marlies Glasius and Tim Meijers argue that this dilemma produces a com municative advantage for ‘defiant defendants’, which they label ‘inequality of arms reversed’. However, in their view, international criminal courts are not doomed by this reverse inequality: the communicative outcomes of international criminal trials remain contingent. For instance, prosecutors can make arguments that are politically and cul turally attuned to local audiences. Moreover, the procedure of the trial can influence the defendant’s attitude. Glasius and Meijers argue in conclusion that it is possible for pro secutors and judges to acknowledge the political dimension of international criminal processes without turning them into show trials. Indeed, they argue, it is desirable for judges and prosecutors to confront the politics of the defendant head on.

Boundaries The section on boundaries seeks to highlight the constant process of renegotiation of differences between and within fields and sub-fields. ICL intersects with many other fields, sometimes to the point of being hard to distinguish from them. At the same time, other fields can either carry an explicit and implicit critique of ICL and some of its short comings or be the repository of crucial lessons learned for international criminal justice. Defining its autonomy but also drawing on the energy of those fields, then, is a key chal lenge of the discipline, one that helps it construct a sense of external boundaries against what are perceived to be different and incompatible approaches. This section envisages how this criss-crossing of competing logics has and will continue to shape ICL and just ice, and how both accepting and challenging the boundaries of the discipline may help energize thinking about it.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

14 Kevin Jon Heller ET al. Laurel Fletcher opens the section with a critique of ICL from the point of view of t ransitional justice, deploring the former’s increasingly hegemonic role in relation to the latter. International criminal ‘legalism’, she argues, ‘diverts attention from broader, emancipatory, social justice goals to address rights of victims or the structural, systemic dimensions that fueled mass violence’. Fletcher points out that the goals of transitional justice have always been framed more broadly, whereas ICL’s own goals are, at least nominally, much narrower (punishing individuals) and somewhat detached from their social finality. Yet for all its limitations, ICL does continue to command a high degree of authority, even within the field of transitional justice itself. This is in no small part because transitional justice is grounded in a rights-based approach that is itself commit ted to accountability. Fletcher then tests this argument by looking at the Darfur crisis, leaving little doubt that the Security Council selectively read the Commission of Inquiry’s broad recommendations to implement only the individual criminal responsi bility element. It is notable that transitional justice once had a much broader remit, but is increasingly conceived as dependent on and at best a by-product of international criminal prosecutions. The emphasis is on the international rule of law and vindicating the interests of humanity, at the expense of victims. Should transitional justice emanci pate itself from ICL altogether, even if that means de-emphasizing the rights element in its discourse? Fletcher ends with a note of skepticism about the power of legalism, beyond its undeniable contribution to upholding the rule of law, to formulate an eman cipatory social project. Sara Kendall and Sarah M H Nouwen reflect on the interaction between international criminal justice and ‘humanitarianism’, a neglected question despite the obvious overlap between the fields. They argue that ICL could draw on some of the older debates that have arisen in humanitarianism. Drawing on the work of Didier Fassin, they highlight the degree to which humanitarianism has already gone through many of the same debates that international criminal justice is currently going through. To be sure, on one level the logic of humanitarianism is quite distinct from that of international criminal justice and may even come in tension with it; both ‘govern’ in distinct ways, and according to ‘differ ent temporalities, objectives, values and logic’; indeed, humanitarians may be wary of the taking of sides evident in ICL. But these differences may be more superficial than real. For example, both are committed to an apolitical stance, a problematic assumption given the fragility of their ‘universalist’ standpoint. Indeed, some humanitarian organizations have recognized the limitations of a pure apolitical model in a context where they are con stantly at risk anyhow of being instrumentalized by their political promoters. In terms of constituency, the emphasis on ‘victims’ or ‘humanity’ is also subtly belied by the reliance on the state and international criminal justice’s neglect of how donor interests shape it. Indeed, over time, international criminal justice is increasingly associated with its own form of humanitarianism. The chapter suggests that international criminal justice should learn some lessons from its sister-field, and in particular those of accountability to its claimed beneficiaries, of unintended consequences, and of reflexivity. Wui Ling Cheah deals with quite a different and possibly broader tension, that which exists between ICL and ‘culture’. Operating in societies where the very meaning of

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Introduction 15 unishment is contested, international criminal justice is often faced with a cultural p challenge that endangers its legitimacy. At several levels, it ‘exerts a marginalizing or exclusionary effect on the culturally dissimilar, while constructing certain understand ings of cultural difference’. The universalism of international criminal justice is hardly ever taken for granted by the actors that confront it, particularly in a context where just ice itself appears to be cultural. At the same time, culture is contested, and local forms of justice may be challenged as merely reflecting certain groups’ agendas. Complementarity provides both an avenue for experimenting with distinct forms of justice and potentially a constraint on how far this can be done. Yet international criminal justice itself is no stranger to pluralism and has tended to draw on a variety of legal cultures for its own constitution through the development of hybrid forms (in tribunals, in procedure). This mixing of traditions is not without its critique and often ends up occurring on the terms set by the dominant party. Finally, international criminal tribunals’ encounter with audiences coming from a variety of cultures suggests a potential for confusion and mis understanding. If nothing else, tribunals have rejected cultural arguments and even been dismissive that the imposition of international criminal justice could be moder ated by cultural tropes. This suggests that it will be difficult for international criminal justice to move to a position where cultural diversity is not seen as a threat. Finally, Christine Schwöbel-Patel, Douglas Guilfoyle, and Frédéric Mégret reflect on the internal structuration of the ICL field, and the extent to which it constantly pro duces narratives about its own meaning. These are often based on a subtle hierarchy between international crimes, notably ‘core crimes’ and various transnational crimes. Schwöbel-Patel emphasizes the political and distributive costs of emphasizing the former (‘the most serious crimes of concern to the international community’) at the expense of latter. This is a relatively new development and, seen in its historical context, it reveals remarkable discontinuities in particular in relation to the Nuremberg prece dent. In fact, there is much disagreement about what might constitute the distin guishing mark of core crimes compared to the others. Schwöbel-Patel argues that the dichotomy suggests a series of biases—civilizational (institutionalizing a North-South opposition), political-economic (benefiting powerful states, imposing costs on weak ones), and aesthetic (setting in motion a ‘politics of distraction’ that emphasizes ‘spec tacular’ crime)—that have led to transnational criminal law being considered an entirely separate discipline. Examining the emblematic fate of drug trafficking, she ponders how that came to be seen as a non-core offence and why the discipline feels so little compul sion to explain such a move. That drug trafficking was once seriously considered as an ICC crime and is arguably not so different in its doctrinal structure suggests that powerful forces are at work in the background. Focusing on transnational crimes, Douglas Guilfoyle notes that these were long part of the ICL canon. It is only late in the discipline’s history that they became conceived as belonging to a distinct discipline that covers an eclectic mix whose distinguishing fea ture is not always evident. For example, most transnational crimes do not actually require a cross-border element. If no unifying feature for transnational crimes can be found, Guilfoyle argues, then it may be just as hard to find a distinguishing feature

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

16 Kevin Jon Heller ET al. between such crimes and so-called core crimes. Like Schwöbel-Patel, Guilfoyle revisits the history of ICL, but he focuses more on the origin of the distinction in the Draft Code of Crimes Against the Peace and Security of Mankind. This distinction, which became quite influential, foregrounded crimes under general international law and crimes of international concern as two separate categories. Guilfoyle shares Schwöbel-Patel’s skepticism about the distinction, noting the ‘question begging’ charac ter of defining international crimes on the basis of an implicitly accepted notion of what international crimes are. The notion that true international crimes are ‘directly crim inalized’, or that they affect ‘fundamental values of the international community’, or that they involve the use of ‘public power’, while transnational crimes involve ‘prohibited conduct across borders’, or crimes ‘established by multilateral conventions’, and the exer cise of ‘private power’ cannot conceal that all these distinctions are hardly full proof on their own terms and, at any rate, more of an artefact of history than the outcome of some overarching criminal law theory. Guilfoyle then highlights the crimes of piracy and torture as two examples of offences that seem to resist classification in either of those categories. This is not to say that the attempt at drawing distinctions is fruitless—in fact, it sustains relevant conversations about, for example, the intrinsic character of gravity of various crimes in relation to each other. But it does point to an irreducible element of faith (where Schwöbel-Patel highlighted ideology) in any act of prioritization. Finally, Frédéric Mégret suggests that maybe we need to rethink, on both doctrinal and political grounds, the distinction between core and transnational criminal law with a view to recovering a sense of the discipline’s lost unity. In agreement with both Schwöbel-Patel and Guilfoyle on the basic diagnosis, but extending it to international criminal justice more generally, Mégret identifies a tendency towards fragmentation and rarefication that has led both core crimes and the operation of international crim inal tribunals to monopolize attention and increasingly be identified with ‘ICL’. He sug gests that, in addition to having a weak doctrinal basis, that distinction is theoretically and criminologically dubious, and probably manifests a series of professional agendas more than anything else. Mégret argues that the time may have come to recover at least a unified research agenda when it comes to ICL, one that rediscovers the extent to which supranational and transnational criminal law are at the very least joined at the hip. This involves better conceptualizing how the defining phenomenon of ICL is not only the criminalization of certain international law prohibitions, but also the ascendancy of certain ideas about crime control globally, as well as the degree to which both core crimes and transnational crimes rely on a common criminal corpus and conceptual baggage. Mégret ends with a call for renewed engagement with a sort of meta-theory of ICL, one that would make more sense of the relations between its diverse constituent parts.

Future(s) This Handbook concludes with a capstone contribution from Gerry Simpson, in which he maps out some of the broader conversations between the chapters. As he notes,

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Introduction 17 the Handbook demonstrates the quite dissonant moods about the health and future of ICL. The field is in many ways in an era of decay, backlash, recession, and anti-climax. And yet there remains a burgeoning popular interest and a flourishing and illuminating academic literature. Perhaps it helps to distinguish ICL as an institutional activity from ICL as an intellectual project. Simpson identifies three different registers among the contributions in this volume: reformist hope, unfriendly skepticism, and—wavering between the two—critical affinity. He also outlines some of the lines of response from supporters, although he does not find the main lines of defence particularly convincing. And so the conversation continues.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Section I

AC TOR S

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

chapter 1

A n Em pir ica l A na lysis of I n ter nationa l Cr i m i na l L aw The Perception and Experience of the Accused Marie-Sophie Devresse1 AND Damien Scalia2

I. Introduction While the ad hoc international criminal tribunals are closing their doors after 25 years of operation and the International Criminal Court (ICC) has regularly been subjected to criticisms (both political and legal), few empirical studies have been carried out on and with the principal stakeholders of international criminal law. Scholars have mainly focused on the technical aspects of international criminal law, on its legitimacy, and on its philosophy. While these approaches are crucial in order to analyze international criminal justice, they seem too narrow to provide an analysis or an appraisal of justice as a whole. On the one hand, legalistic approaches have a restricted objective, limited to constitutive texts (i.e., statutes of international criminal tribunals) and case law, but excluding their functioning, their social impact, their interpretation by local populations, as well as their localization on the political

1 Professor of Criminology, UCLouvain/CRID&P—[email protected] 2 Professor of Criminal Law, Université libre de Bruxelles—[email protected]

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

22 Marie-Sophie Devresse and Damien Scalia and economic map. On the other hand, legitimacy is such a polysemic term3 that it might be seen as an aporetic, circular, and empty concept.4 This chapter is therefore based on the hypothesis that an empirical approach could open a window into a renewed analysis of international criminal justice, focusing on its social impact and concrete significance. It is true that there have been some empirical studies on international criminal law, but they have been carried out mostly on justice professionals,5 on victims of international crimes, or on populations who have experi enced war,6 as opposed to perpetrators. When studies take into consideration those prosecuted, it is not as ‘accused before the court’ but as perpetrators. For example, various studies have examined the normative and socio-political conditions of collective violence: the interindividual or intergroup factors facilitating the perpetration of crimes;7 historical factors explaining mass crimes;8 and perceptions of justice of ordin ary offenders.9 However, very few scholars have questioned what it really means to be involved in an international justice process, to be accused of the worst crimes, and to have to appear before judges. As a result, the judicial positioning of those prosecuted arouses very little interest among researchers, even though one might think it could help to better understand the functioning of the criminal justice process. The approach we use for this study intends to fill this gap. Our aim is to analyze inter national criminal law through the prism of one of the main actors of criminal proceedings: the person who has been tried (i.e., in our research study, after the end of the trial). Our approach proceeds on the assumption that such individuals have ‘something to say’ 3 Antonio Cassese, ‘The Legitimacy of International Criminal Tribunals and the Current Prospects of International Criminal Justice’ (2012) 25(2) Leiden J of Intl L 491; Frédéric Lordon, ‘La légitimité n’existe pas. Éléments pour une théorie des institutions’ (2007) 53 Cahiers d’économie politique 135 (hereafter Lordon, La légitimité n’existe pas); Tullio Trèves, ‘Aspects of Legitimacy of Decisions of International Courts and Tribunals’ in Rudiger Wolfrum and Volker Röben (eds), Legitimacy in International Law (Springer 2008). 4 Lordon, La légitimité n’existe pas (n 3) 150–53. 5 See not. Niguel Eltringham, Genocide Never Sleeps, Living Law at the ICTR, (CUP, 2019); Philip Caine, ‘The International Criminal Tribunal for former Yugoslavia: Planners and Instigators or Foot Soldiers?’ (2009) 11(3) Intl J of Police Science and Management 345; John R Cencich, ‘International Criminal Investigations of Genocide and Crimes Against Humanity: A War Crimes Investigator’s Perspective’ (2009) 11(2) Intl Crim Justice Rev 175; Elisabeth Claverie, ‘La Violence, le procès, et la Justification, Scènes d’audience au TPIY’ in Retour sur De la Justification, Actes—Colloque de Cerisy (Economica 2009); Pierre-Yves Condé, ‘Quatre témoignages sur la justice pénale internationale : entre ordre public international et politiques de justice’ (2004) 3 Droit et société 567. 6 Guy Elcheroth and Dario Spini, ‘Public support for the prosecution of human rights violations in the former Yugoslavia’ (2009) 15(2) Peace and Conflict: Journal of Peace Psychology 189; Sanja Kutnjak and John Hagan, ‘Victims’ Perceptions of the ICTY Justice’ (Paper presented at the annual meeting of the Law and Society Association, Montréal, Canada, 27 May 2008). 7 Christopher Browning, Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland (Harper-Collins Publishers 1992). 8 Harald Welzer, Les exécuteurs. Des hommes normaux aux meurtriers de masse (Gallimard 2007). 9 Jonathan Jackson and Tom Tyler, ‘Future challenges in the study of legitimacy and criminal justice’ in Justice Tankeba and Alison Liebling (eds), Legitimacy and Criminal Justice: An International Exploration (OUP 2013) 83; Tom Tyler, Why People Obey the Law: Procedural Justice, Legitimacy and Compliance (Yale UP 1990).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

An Empirical Analysis of International Criminal Law 23 on the institution that has tried them, and that the account of their experience should enable us to better understand how international criminal tribunals work. Indeed, their actual experience of the judicial system ‘does not only provide information on these persons’ paths, representations, failures and practices; it also provides information on the functioning of the penal system, what needs to be fixed and which are the blind spots’.10 In addition, by interviewing persons who have been tried by international criminal tribunals, we can better assess the impact of the tribunals beyond the trial. With this assumption in mind, we developed a specific approach for the analysis and understanding of international criminal justice (an approach that complements the other approaches for this field of study), which we named the Respondents’ approach.11 In the second part of this chapter, we present some epistemological milestones that support our approach and introduce the methodological choices that have guided our research (II). In the third part, we present some of the results of our study (III). As will be seen, these question the effectiveness and the impact of international criminal justice.

II. Listening to the Accused as a Vector of Knowledge A. Epistemological Approach An epistemological introduction appears necessary to support our approach and perspective. First of all, it is worth bearing in mind that the point of view and the experi ences of social actors have not always been recognized in the construction of scientific knowledge, and that such recognition is still controversial in some academic circles. Alongside quantitative studies with an objectivist vocation (that had hitherto domin ated the field of sociology), qualitative research came to prominence in the 1920s when empirical research emerged and led to new data-collecting methods, such as observation and interviews. Following the work of renowned US scholars W. T. Thomas, G. H. Mead or H. Garfinkel, sociological research began to take into account ‘the point of view of actors, their experience, the sense that they give to their behaviour, the manner in which they apprehend their environment, the way in which they occupy the institutions which support or manage them’.12 In this sense, subjectivity and partiality were no longer seen as a bias in research, but as an opportunity to produce substantial

10 Dan Kaminski and Michel Kokoreff (eds), Sociologie pénale. Système et expérience: pour Claude Faugeron (Eres 2004) 12. 11 Marie-Sophie Devresse and Damien Scalia, ‘Hearing Tried People in International Criminal Justice: Sympathy for the Devil?’ (2016) 16(5) Intl Crim L Rev 796 (hereafter Devresse and Scalia, Hearing Tried People). 12 ibid 818.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

24 Marie-Sophie Devresse and Damien Scalia data. That material, when rigorously analyzed, can tell us a great deal about society and provide knowledge about institutions. In the same vein, how to consider the person on trial has long been controversial and still polarizes in academic work. The lawyer generally views the individual as someone who is either accused, condemned, guilty, or innocent, not as someone who can as such tell us anything interesting. By contrast, the critical criminologist or empirical researcher will see ‘a person brought to justice’ as someone who, through this very experience, has something to say about justice itself. No longer the passive object of positivist research, the defendant can be seen as an active player in the production of knowledge regarding the construction of social reality. We propose, therefore, an analytical model that wishes to distance itself from objective conceptions of social reality by defending the idea, supported by P. Berger and T. Luckmann, that this reality is the product of a permanent construct and ‘is characterized by intersubjectivity which refers to the coexistence of multiple realities’,13 like the reality of our respondents, as much as ours.14 However, if this view has gained ground and is now commonly recognized in social sciences, considering the experience of the accused still elicits substantial resistance in research on the trial and judicial institutions, resistance that comes mostly from lawyers. Whilst there is by now no difficulty in taking into account what a judge, a prosecutor, an attorney, or a victim may say in the context of research studies on trial, meeting with those accused of crimes—a fortiori some of the greatest crimes—to listen to her/his appraisal of the administration of justice is still viewed with scepticism, even frowned upon. Seen perforce by some academic commentators or reviewers of our work15 as liars, manipulators, or as always trying to justify themselves, said ‘perpetrators’ are not regarded as capable of reporting credible information about criminal justice. This is not a revelation; H. Becker analyzed this attitude a long time ago, stating that ‘credibility and the right to be heard are differentially distributed through the rank of the [social] system’.16 Criminal justice is not beyond a pyramidal distribution of power, and we very much tend to find the person accused of a crime as sitting at the bottom of the ‘hierarchy of credibility’.17 Indeed, we found that people charged with ‘genocide’ are located even lower, whether they were previously powerful individuals or not. The type of research proposed in this chapter is premised on the necessity to overcome this controversy and to embrace, instead, a more open approach. The crux of this approach is that we do not characterize the people we meet on the basis of the crimes for which they are tried.18 We just see them as individuals who have something to say about the justice process and we avoid framing their conduct at the outset within legal 13 Pieter Berger and Thomas Luckmann, The Social Construction of Reality: A Treatise in the Sociology of Knowledge (Anchor Books 1966) 23–5. 14 Devresse and Scalia, Hearing Tried People (n 11) 824. 15 About the context and the statement of these perceptions, see Devresse and Scalia, Hearing Tried People (n 11). 16 Howard S Becker, ‘Whose Side Are We On?’ (1967) 14(3) Social Problems 241. 17 Howard S Becker, Sociological Work: Method and Substance (Aldine 1970) 127. 18 It is important to highlight that—in order to conduct our research study—we met individuals after definitive condemnation of acquittal. That being said, the Respondents’ approach could be applied to people during trial.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

An Empirical Analysis of International Criminal Law 25 categories. This is an approach, in other words, that re-empowers the accused for scientific purposes. Although the latter are typically seen as having been very ‘active’ in relation to their criminal acts, they are often assigned a very passive role in the course of criminal proceedings. Furthermore, the various meanings of the term ‘respondent’ offer a particularly interesting and multidimensional perspective. First, because criminal justice asks the defendants to respond to certain allegations, to explain themselves about their activities, this is precisely why we are and should be interested in their experience. Second, we met with people who often chose to respond to our requests and to answer our questions indicating a willingness to contribute, in their own way, to knowledge-construction about international criminal justice. In this context, the words of respondents raise many questions and highlight issues that otherwise might not have been brought to light such as the ‘rise and fall’ effect of an arrest, the sensation of being the ‘fall guy’ of episodes of criminality, the ‘violence’ of the judicial system, etc.

B. Methodology In terms of methodology, our findings are based on two qualitative studies that were carried out successively.19 About 60 semi-structured individual interviews were conducted in the course of these two studies, with an interpreter when necessary. When possible, the place of the interview was chosen by the respondents; however, for most of them, having been convicted, it had to be the prison in which they were serving their sentences. To our knowledge, the interviews conducted have not been placed under audio surveillance nor have they been visually monitored. The topic of the international criminal proceedings in their entirety (from the moment of arrest to the serving of the sentence), and questions about the rights and procedures relating to each individual case were addressed with the respondents. The interviews lasted from 60 to 270 minutes and, with the consent of the respondents, the majority of them were recorded. All of them were then transcribed verbatim and analyzed. Our analysis was mainly based on coding procedures taken from the grounded theory approach,20 with the aim of describing structures and consistencies, and to elaborate hypotheses built on observed reality.21 In other words, it is a matter of progressively interpreting empirical findings using various techniques of data reduction, organization, and conceptualization. This is ‘an iterative approach of progressive theorization of a phenomenon’.22 For ethical reasons, the anonymity of the respondents was guaranteed. 19 The first study has been carried out by Damien Scalia and Mrs Mina Rauschenbach, doctor of social psychology. The second study is carried out in cooperation with the author and Professor M-S Devresse from the Catholic University of Louvain. 20 Barney Glaser and Anselm Strauss, The Discovery of Grounded Theory: Strategies for Qualitative Research (Transaction 2006). 21 Anne Laperrière, ‘La théorisation ancrée (grounded theory): démarche analytique et comparaison avec d’autres approches apparentées’ in Jean Poupart and others (eds), La recherché qualitative, Enjeux épistémologiques et méthodologiques (Gaëtan Morin 1997). 22 Pierre Paillé, ‘L’analyse par théorisation ancrée’ (1994) 23 Cahiers de recherche sociologique 147.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

26 Marie-Sophie Devresse and Damien Scalia In terms of the people we met, we should mention that, whereas the International Criminal Tribunal for the former Yugoslavia (ICTY) has judged individuals coming from all sides of the conflict that devastated the former Yugoslavia, the International Criminal Tribunal for Rwanda (ICTR) has judged only Hutus accused of having played a part in the 1994 genocide. As a result, the participants of our study of the ICTY came only from some horizons (Bosnians, and Serbs from Serbia or Bosnia), whilst for the ICTR we met only with individuals of Hutu origin.23 In both contexts, those we met were political leaders (at a national, regional, or local level), high-ranking officers, heads of administration, as well as individuals active in the field, such as combatants and civilians. Some having intermediate positions within the military hierarchy also participated in the research. Considering the small number of women brought before the international criminal justice system (and our dependence on their motivation to meet us), only men were interviewed. Among these men, nine participants had been acquitted, whereas the others had been condemned under command responsibility, for participation in a ‘joint criminal enterprise’, or for having directly committed (or been an accomplice to)24 crimes against humanity, war crimes, and genocide. Finally, it is important to highlight that, as required in many qualitative research studies, the sampling of our respondents is not representative but follows a diversification principle (i.e., in terms of institutions, crimes, forms of responsibility) and pursues a saturation goal, two standards that allow production of general results.25 In this type of qualitative study, we do not aim at representativeness (which would have little meaning for such a limited audience). It is more important to have a sample that contains a great diversity of profiles, so as to include a very broad spectrum of experienced situations. As said before, we were also constrained by acceptance on the part of those solicited.

III. Positioning of Those Tried: A Structural Interrelation In recounting their experiences, those convicted by the International Criminal Tribunals expressed overwhelmingly paradoxical feelings: they acknowledged having 23 Participants present themselves as such. 24 The forms of responsibility are mentioned in Articles 7(1), 7(3) and 6(1), 6(3) respectively from the ICTY and ICTR Statutes. See Statute of the International Criminal Tribunal for the Former Yugoslavia, UNSC Res 827, UNSCOR, 48th Sess, 3217th Mtg, UN Doc S/RES/827 (25 May 1993); Statute of the International Criminal Tribunal for Rwanda, UNSC Res 955, UNSCOR, 49th Sess, 3453rd Mtg, UN Doc S/RES/955, (8 November 1994). 25 Alvaro Pires, ‘De quelques enjeux épistémologiques d’une méthodologie générale pour les sciences sociales’, in Jean Poupart and others (eds), La recherché qualitative, Enjeux épistémologiques et méthodologiques (Gaëtan Morin 1997).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

An Empirical Analysis of International Criminal Law 27 been in the trial, but felt totally outside of what was going on in the justice process. They often said that they did not understand what was really happening and that they felt like the prosecutor or the judges were talking to someone else. This perception of being an alien to a judicial process may not be obvious for those who felt they had an informed knowledge of what criminal justice entails. In many cases, at one time or another, those interviewed had held a position of high political responsibility and frequently told us, as we started our interviews, that they had expectations about the judicial process. It is thus essential to highlight the reasons for this sense of rejection, particularly because one of our most significant findings is that criticism was equally strong among the convicted and the acquitted, even though one could have expected the latter to show greater satisfaction in a system that ruled in their favour. This part will therefore cover four points. First of all, there is a difference between the respondents’ expectations and the reality they experienced (A). Furthermore, the participants explained how they experienced the procedure as ‘violent’ (actually and symbolically) (B); and saw themselves as being confronted with a politicized and external justice (C). Last, we will explore how the role that is assigned to them within the criminal procedure is related to the radical rejection of the figure they embody (D).

A. A Gap Between Expectations and Reality From Aristotle to Rawls, numerous theorists have shown that there is no unified conception of justice. It thus seemed promising as a starting point to examine what our interviewees’ initial concept of justice was. We noticed a significant individual positioning in relation to international criminal justice. By this we mean a conception of justice that pre-existed their prosecution and that seemed to have led them to expect a better performance than what they experienced. This conception mainly pertains to ‘moralhumanist’ referents. When the participants expressed how they perceived justice before being directly brought to it, they referred to some moral values and conceptions of justice that were relatively well constructed. They expressed beliefs in higher principles of justice, a justice that must be beyond reproach and that aims to establish the truth. One of the participants explained, ‘I thought the tribunal was a high-level international institution that was going to fight for the truth, and I thought I would be able to explain and prove my truth in the court’.26 Another one spoke of an institution created at the ‘highest legal level’. One of them even compared international judges to ‘gods’, referring to a belief that justice is above men and rules for the ‘Just’. Their expectations of international justice were thus set very high and were well elaborated. This justice is considered even more important in light of the chaotic context that brought the respondents to the tribunals. Yet, this representation of international criminal justice (partly related to the prestige granted to the international criminal justice system itself and the decorum that comes 26 In order to highlight the respondents’ discourses, we use italics here unlike the other quotations.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

28 Marie-Sophie Devresse and Damien Scalia with it) clashed violently with the reality of the accused as they experienced it, leading these initial expectations to be bitterly disappointed. This reality has been described in very negative terms: ‘It was not a very fair court, when it handled my case . . . I found that very unfair from the Tribunal’. Again: ‘What I found very unfair from the Tribunal is that you had to wait for a year, a year and a half, and nothing happened, the trial did not begin’. Another one added: ‘I have to accept this as something that came directly from hell’. This disappointment induced a heavy sense of rejection by the criminal justice system and its professionals. This observation confirms the hypotheses of studies carried out at a national level, namely by J.D. Casper,27 that show that the gap between expectations and experienced reality constitutes a fundamental component of the negative evaluation of justice. That being said, what are the specific details related to the experience of those tried that create such a sense of rejection?

B. Violence and Unfairness of the Procedure The people we interviewed, whether condemned or acquitted, invariably felt the experi ence of the international criminal trial, and its preliminary proceedings and developments were extremely difficult to deal with, ranging from tough to traumatizing. The fact that even the acquitted shared this feeling shows that there is no need to be convicted to strongly experience the harshness of the intervention of justice.28 An interviewee tried by the ICTY chose his words carefully in response to our question, ‘how did you experience the court from the inside?’ He answered with this strong statement, ‘I can answer you with one word: horrible. And I can answer you with many other words’. That being said, the range of experiences appears quite wide, even if physical violence is rare. Specifically, there are reports of ‘degradation ceremonies’, analyzed by H. Garfinkel as a ‘communicative work direct to transforming an individual’s total identity into an identity lower in the group’s scheme of social type’.29 According to H. Garfinkel, the purpose of these ceremonies is shaming that person for (supposedly) violating norms, rules, or laws, and to inflict punishment by taking away his/her rights and privileges. Thus, a convicted Bosnian told us of the conditions of his transfer to The Hague: After two days in a basement, I was transferred to the central jail in X. I had visits from many stakeholders, they told that I have to go to The Hague, and I just went along with it. I expected that I would go some normal way, but one evening, around 6 o’clock, 27 Jonathan D Casper, Criminal Courts: The Defendant’s Perspective (US Department of Justice, Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, 1978); Jonathan D Casper, ‘Having Their Day in Court: Defendant Evaluations of the Fairness of Their Treatment’ (1978) 12 Law and Society Rev 237. 28 See e.g., Christian-Nils Robert, L’Impératif sacrificiel. Justice pénale: au-delà de l’innocence et de la culpabilité (Editions d’en bas 1986) (hereafter Robert, L’Impératif sacrificiel). 29 Harold Garfinkel, ‘Conditions of Successful Degradation Ceremonies’ (1956) 61(5) American J of Sociology 420.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

An Empirical Analysis of International Criminal Law 29 I was tricked and pulled out of the cell where I was, under the excuse that the jail administrator summoned me for a conversation. Since I was wearing shorts when I was brought out of my apartment and I had some kind of yellow t-shirt and they did not allow for any other clothes to be brought in the jail from home, dressed like that in shorts and t-shirt and in my slippers, I was transferred to The Hague. It was June, it was warm, but . . . It was difficult, especially when we landed in Amsterdam, when some 3–5 officials from the UN received me, they were nicely dressed, and I looked like a homeless person.

This unfolding of violence that is part of ‘degradation ceremonies’ directly reflects the spectacular dimension that has been associated with international criminal justice from its beginning. However, this violence is symbolic most of the time and appears throughout the entire criminal proceeding. Participants even mention ‘horror’ or use terms like ‘terrible’, ‘stressful’, ‘frustrating’, to describe various moments they experienced during the judicial process. Here the acquitted points out how most steps of the process (arrest, indictment, detention, trial, and so on) have represented hurtful moments, which generated anxiety and very negative emotions (loss of autonomy; feelings of helplessness; separation from their families; unbearable selfimage; failure to understand the judicial process, its functioning, and its effects; feelings of not being understood; contempt from the judicial staff; feelings of betrayal from relatives; etc.). One moment stands out as more violent than the others: the moment they became aware of the charges against them. It is often described as a moment of dismay: When I read the first indictment, I could not believe it . . . that such men could exist and, let alone the fact that it was me. Maybe only in some American movie, with lots of murders, in situation that didn’t exist. I then realized that I was supposed to be a man who eats live people. I am sitting in my cell and thinking to myself, who am I? And that was my understanding of the indictment.

As described to us, this distressing, unbearable moment was felt as fundamentally unfair, both by the acquitted and the convicted, particularly in relation to the use of symbolically heavy words (‘genocide’, ‘massacres’, ‘mass violence’, etc.) that were difficult for respondents to comprehend and to accept. We will come back later to the situation that confronts the prosecuted with the collective crimes he is charged with. Beyond this symbolic violence, throughout our interviews the prosecuted insisted on explaining to us how they were confronted with what they described as an unfair, inequitable, and sometimes ‘absurd’ process. Here again, the acquitted—by both tribunals—told their stories in an equally negative way, as if the outcome of the trial had no impact on their perception of it. The participants thus described procedures they still did not understand, or during which they felt they had not been able to express themselves or been listened to. They highlighted what they saw as the ‘lies’ of the prosecution and the witnesses, the length and difficulty of the trial, and claimed that the prosecution witnesses were prepared and paid a high price in order to accuse them.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

30 Marie-Sophie Devresse and Damien Scalia These accounts confirm studies carried out at a national level that show that the erception of justice depends more on the fairness of the procedure (or the perception p of it) than its final outcome.30 People consider their trial to be satisfying and fair if they feel they had the occasion to fully explain themselves and their points of view, whether these points of view were then followed by the judges or not. Thus, in many cases, the satisfaction of the defendants does not depend solely on the severity (or lenience) of the sanction; rather, criminal proceedings matter more than the outcome, and the accused, even those convicted, may be satisfied by the process as they experienced it. However, satisfaction with the fairness of proceedings was clearly absent for those convicted persons we interviewed. Moreover, this negative perception related to every step of the process.

C. A Politicized and ‘Outgroup’ Justice Another recurring feature in the accounts of those tried by international criminal jurisdictions is what they perceive as its politicized character and the external influences it is subjected to. First of all, participants describe a justice owned by ‘others’, that means by people external to the context in which the crimes were committed. They confirm here the theory of Pierre Hazan who has written about international criminal justice as an ‘off-ground’31 justice. This distance, which separates the ‘judges’ from the accused, appears at every step of the criminal proceedings: during the arrest (they are rarely arrested by compatriots—and often in a foreign country), during the trial (judges come from various countries, sometimes very distant ones), and when serving their sentences (which is enforced in the States that have agreed to host those convicted by international jurisdictions). Referring to the ICTR, one of the participants explains: They created the tribunal and they brought foreign people. Foreigners who are not driven by this principle of justice . . . foreigners who know nothing, nothing of the Rwandan psychology. When a Tutsi speaks to me . . . if s/he tells me a story, and then tells it to you, do not be mistaken, you won’t perceive this story the same as I will . . . and in the tribunal cases, us, Rwandan people, are judged by foreigners whom I call blind people who know nothing inherent to the context . . . . You might apply the rules, but you cannot understand.

Another interviewee compares the ICTR with national mechanisms, reckoning that in Rwanda ‘there has been the “Gacaca” tribunals, in which everything was addressed’ 30 Tomas Ståhl, Jan-Willem Van Prooijen, and Riël Vermunt, ‘On the psychology of procedural just ice: Reactions to procedures of ingroup vs. outgroup authorities’ (2004) 34 European Journal of Social Psychology 173 (hereafter Ståhl, Van Prooijen, and Vermunt, On the psychology of procedural justice). 31 Pierre Hazan, La justice face à la guerre (Stock 2000) 240.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

An Empirical Analysis of International Criminal Law 31 (unlike in the international tribunal).32 The ability to recognize oneself in one’s judges, of being placed among one’s own, seems particularly important for the accused. Thus, the reducing of the distance operated by the Gacaca in the justice process appears as a strong element of its legitimacy. In a similar vein, the account of a confrontation with a ‘foreign justice’ (namely, a just ice external to their group—as the Arusha or the The Hague tribunals are seen by those prosecuted by them), is reminiscent of the studies carried out by T. Ståhl, J.W. Prooijen, and R. Vermunt on the perception and the experience of outgroup justice v. ingroup justice. These writers have shown that, when confronted with an ‘outgroup’ justice, people may be more afflicted by the procedural justice than when confronted with an ‘ingroup’ justice.33 In international criminal law, this is a significant issue because procedural justice seemed essential for the people we interviewed. International criminal justice appeared to them as a foreign justice: it was administered thousands of kilometres away, in a country that was neither the perpetrators’ nor the victims’, nor the country in which the alleged crimes were committed.34 It is even more striking that, in the research that was carried out at a national level, those who were convicted domestically did not express a feeling of otherness, and frequently mentioned the idea of ‘being in debt to society’, recognizing being part of the group who judged them and belonging to a community to whom they were accountable.35 Moreover, all participants mentioned the idea of a politicized justice. First of all, they felt the international criminal tribunals were mainly established for political purposes and were influenced or even led by their war enemies. As such, people tried by the ICTY considered that, because of their own origins, the composition of the tribunal was not favourable to them. Here are some examples of their accounts mentioning this point: I cannot say that the Tribunal in its whole has done bad things, but I only say that the people who constituted the appeal chamber have done bad things. In my opinion, it is the result of the Croatian propaganda and of the pressure from the Croatian state.

Another explains: I say that, regarding my situation, the people who wrote the indictment, have been influenced by lobbies, they have their own interests . . . my conclusion was that they needed to create some balance, you know, between both sides . . . When I speak of sides, I mean the Serbian and Bosnian sides . . . so my feeling was that they wanted to feed this Serbian lobby, the lobbyists, and to satisfy them: I needed to be designed as the one who slaughtered the Serbian people. 32 The ‘Gacaca’ are made up of people elected for their good reputation and honesty. The defendants do not have a lawyer, but all the villagers can participate and intervene. 33 Ståhl, Van Prooijen, and Vermunt, On the psychology of procedural justice (n 30). 34 For more details: Damien Scalia, ‘Expérience de justice internationale pénale: perception de dom ination par d’anciens dominants’ (2015) HS Revue québécoise de droit international 15. 35 Marie-Sophie Devresse, Usagers de drogues et justice pénale. Constructions et expériences (De Boeck-Larcier 2006) 241–54.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

32 Marie-Sophie Devresse and Damien Scalia Or again: ‘The ICTY and the prosecution do not make an indictment for justice purposes, but rather for political purposes’. Those who were tried by the ICTR produced identical accounts, based on the fact that no leader from the Rwandan Patriotic Front (against which they fought from 1990 to 1994 and that is today in power in Rwanda) has been judged by the ICTR. They therefore not only denounced a justice influenced by Rwandan state power, but also the fact that none of their former enemy had been judged: [At the beginning], it was the government who made the list of people to be arrested. . . . And when Rwanda took hold of the ICTR, because at one moment, they took hold of the ICTR . . . I say it took hold, because when Barayagwiza was released and then Rwanda said no! So from that moment, Rwanda took hold of the ICTR.

Another explains that: ‘It is like the judges received orders from somewhere; it is a political tribunal’; or, ‘[t]he judges became active combatants of the RPF. . . it is a shame that such an institution became’. For the people we interviewed, these points of view are the result of a difference in the way their cases were being handled by international tribunals, depending on the origin of the defendant. International criminal law appeared to be a criminal law owned by the enemy. These criticisms reflect some of those we can find in the literature,36 even at times written by judges themselves: it is the suspicion of victor’s justice, a justice administered by the people who won the war.37 International criminal law is seen as a continu ation of war, a new weapon on a new battlefield. Indeed, some authors have even argued—speaking about the ICTR, ICC, or international criminal law in general—that only those who are defeated in the conflict (the former enemy) must be accountable before international criminal jurisdictions. For example, F. Muñoz Conde claims that international criminal law ‘[does] not simply try to punish the offenders, but also to fight against its [own] enemies’.38 International criminal law thus becomes a weapon for use after victory—a weapon that further destroys those who are already ‘down’. This point of view reminds us of the work of G. Jakobs in On the Theory of Enemy Criminal Law39 that has proved influential.40 Quoting Jakobs, Muñoz Conde writes that judicial

36 Thierry Cruvellier, Le Tribunal des vaincus, Un Nuremberg pour le Rwanda (Calmann-Lévy 2006). 37 Radhabinod Pal, ‘Dissenting opinion’ in C F Rüter and Bernard Victor Aloysius Röling (eds), International Military Tribunal for the Far East, The Tokyo Judgment, 29 April 1946–12 November 1948, vol I (APA-University Press Amsterdam 1977). 38 Francisco Muñoz Conde, ‘Le droit pénal international est-il un “droit pénal de l’ennemi”?’ (2009) 1 Revue de science criminelle et de droit pénal comparé 19 (hereafter Muñoz Conde, Le droit pénal international). 39 Gunter Jakobs, ‘Aux limites de l’orientation par le droit: le droit pénal de l’ennemi’ (2009) 1 Revue de science criminelle et de droit pénal comparé 7. 40 Jean-François Dreuille, ‘Le droit pénal de l’ennemi : éléments pour une discussion’ (2013) Jurisprudence 149 ; Geneviève Giudicelli-Delage, ‘Droit pénal de la dangerosité – Droit pénal de l’ennemi’ (2010) 1 Revue de science criminelle et de droit pénal compare 69.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

An Empirical Analysis of International Criminal Law 33 logic mirrors the logic of war, ‘it is above all essential to defeat the other, and law is a means used to finish the enemy’.41 Moreover, some people we interviewed condemned what they viewed as a very peculiar political and legal system that was imposed by Western countries on the rest of the world. They mainly highlighted two arguments: the fact that no leader or national from developed countries has yet been judged by an international body and the fact that these tribunals are precisely controlled by developed countries. Joining here a third-world or anti-colonialist interpretation of international criminal law,42 people (tried by the ICTY here) thus explained: Great powers like China, Russia, or the United States agree without signing. They do not wish to be submitted to this. That is how the ICTY works. It is a partisan vision. Serbia started a procedure against NATO for similar and even far worse crimes than the one I was charged with, the ones committed in Kosovo. A commission has been established for this purpose and has repeated the allegations against NATO. It is the bombing of a bridge because of a situation 1000 km away that was Kosovo, and civilians have been targeted. 33.000 tons of explosive material have been used in Serbia by NATO and the damages are estimated at 97 billion.

Or again: ‘That is why I have an impression that what went on there is not law, is not a decision based on law, but it is some kind of a game by strong political forces that form the tribunal’. It is interesting that those tried by the ICTR gave broadly identical accounts: I cannot say this is a case of racism, because among the judges, there are African people, there are black people at the ICTR. Some people may think it is the motive, but I say that it is not . . . it is more likely pressure from the Rwandan government and its allies.

Or: The ICTs are only accountable to the people who pay them. Whereas national justice, even if there are some violations, is accountable to the people, they administer justice on behalf of the people. If you are a judge and you are neutral, everything is fine, but if you are partial . . . … The outcome, because, the outcome in the end, we understand that they are political rulings, those are tribunals manipulated by powerful countries. Why do the Americans not want their citizens to be judged by international tribunals? . . . because they know!43 41 Muñoz Conde, Le droit pénal international (n 38) 22 (emphasis added). 42 Christopher Gevers, ‘International Criminal Law and Individualism: An African Perspective’ in Christine Schwöbel (ed), Critical Approaches to International Criminal Law: An Introduction (Routledge 2014) (see also other contributions in this book). 43 We should note here that, despite the criticisms, some people tried by the ICTR feel an inter national tribunal is better than national jurisdictions ‘under the authority of the power’. In this view, we

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

34 Marie-Sophie Devresse and Damien Scalia This criticism also mirrors several criticisms raised against international (criminal) law coming from African States, the African Union, and scholars. Indeed, when the ICC issued warrants against state leaders from Sudan and Kenya, the African Union denounced it as a ‘racist’ court and called on States not to cooperate with it.44 However, it is also interesting that this criticism quite specifically focused on lobbies and pressure from States rather than being rooted in a broader critique of imperialism and colonialism.

D. The Role Assigned to the Defendant As can be seen, those tried by international criminal tribunals have presented us with various pitfalls relating to international criminal justice and have outlined the issues they have been confronted with throughout the proceedings. Beyond this experience, the analysis of these accounts allows us to highlight the frequently used rhetoric of scapegoating. This section will highlight that rhetoric although it will not enumerate all of the ways in which sacrificial rituals occur (we previously referred to the degradation ceremonies of H. Garfinkel, which reflect in another way the sacrificial rites of R. Girard), or present in any detail the theory of sacrifice, something that has already been done elsewhere.45 Nor do we intend to present all the participants as victims of international criminal justice. We merely aim to point out that at a given moment of the process, people ceased to be able to experience the criminal proceeding in a way other than by positioning themselves as ‘scapegoats’—condemned for others, or for crimes committed by others or collectively. Beyond that point, the question of innocence or guilt appears almost secondary. The ‘scapegoat’ role endorsed in the trial suddenly takes precedence over reality. Everything happens as if that role operated at a distance from any truth.46 This caused a rejection of the actions and facts established by the judicial system and thus a rejection of allegations of responsibility. Ironically, the defendants are often accused of having resorted to scapegoating themselves. This feeling of being a scapegoat appears equally among those convicted and acquitted. Thus, some of the participants do not hesitate to present themselves as victims, not of the conflict but of the judicial process: ‘The death of an innocent person does not justify see that geographic proximity is no longer sufficient to define the in-group as in national criminal justice. The definitions of allies and enemies in the war sometimes take over all other considerations about propinquity. 44 ‘South Africa Reverses Decision on Arrest of Sudan’s Al Bashir’ Sudan Tribute (30 July 2009) accessed 7 September 2018. On the ICC and Africa, see e.g., Jacques B Mbokani, ‘La Cour pénale internationale: une cour contre les Africains ou une cour attentive à la souffrance des victimes africaines?’ (2014) 26(2) Revue Québécoise de Droit International 47. 45 See e.g., David Tait, ‘Popular Sovereignty and the Justice Process: Towards a Comparative Methodology for Observing Courtroom Rituals’ (2001) 4(2) Contemporary Justice Rev 201; Edwin Bikundo, ‘The International Criminal Court and Africa: Exemplary Justice’ (2012) 23 Law and Critique 21 (hereafter Bikundo, The International Criminal Court and Africa). 46 Robert, L’Impératif sacrificiel (n 28).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

An Empirical Analysis of International Criminal Law 35 the lynching of other innocent people by the justice. . . . I am first a victim of the conflict in Rwanda, and then a victim of the United Nations’. Another said: ‘We were so much demonized that even as acquitted . . . some countries are hesitant over receiving us’. This feeling of being a scapegoat appears at two levels. It first relates to the criminal proceedings: those tried feel they are in a position of weakness in the courtroom, dom inated by the judges, guilty from the outset, prevented from speaking, and not listened to. More relevant is the importance that respondents place on the global or international context of the proceedings: participants feel their sentence is the consequence of current international relations and power struggles (as we previously mentioned). Thus, the feeling of being a scapegoat is even more significant when it comes to the political process: a process that, if we follow R. Girard, has experienced a serious crisis and in the face of which it is necessary47 to find rites that allow it to rebuild itself through sacrifice. Thus, the criminal trial, in the context of armed conflict, is the means to a catharsis in which the defendant (and the convicted even more) plays an essential role in a sacrificial game that enables the reconstruction of social relationships between former enemies. Having played this role, defendants point out how this position was the cause of tensions. One tension is due to the opposition between the collective dimension of the crimes and individual responsibility. This is a fundamental issue that the doctrine of international criminal justice has long sought to address,48 one that questions the tension inherent in bringing individuals to justice for crimes committed in the context of collective conflicts. We do not intend to delve into the reasons that led to the implementation of certain judicial mechanisms, such as individual responsibility for mass crimes.49 The point here is merely to highlight the impact this responsibility seems to have on individuals convicted for these crimes. It is precisely because of this tension that those tried by international criminal justice invoke the scapegoat metaphor when speaking of their cases. For example, those tried by the ICTR constantly reminded us that not all of the perpetrators had been judged and that it would be impossible anyway. On the other hand, some people we met were really convinced, despite any plausibility, that there were quotas set in the lawsuits, (‘x% of Serbians, x% of Bosnians had to be prosecuted’) and that they were part of this ratio.

47 René Girard, Le bouc émissaire (Grasset 1982); Bikundo, The International Criminal Court and Africa (n 45). 48 Frédéric Mégret, ‘Les angles mort de la responsabilité pénale individuelle en droit international’ (2013) 71(2) Revue interdisciplinaire d’études juridiques 83 (hereafter Mégret, Les angles mort); Karine Wurtz, ‘La responsabilité du génocidaire: entre responsabilité individuelle et responsabilité collective’ (2006) 39(2) Criminologie 59; Françoise Digneffe, ‘Crimes de masses et responsabilité individuelle’ (2005) Champ pénal/Penal field, XXXIVe Congrès français de criminologie, Responsabilité/ Irresponsabilité Pénale accessed 5 September 2018. 49 See Mégret, Les angles mort (n 48); Élisabeth Claverie, ‘Mettre en cause la légitimité de la violence d’État’ (2012) 78 Quaderni 67 (in that regard, E. Claverie highlights that it is ‘difficult, or even absurd . . . to describe a genocide, war crimes . . ., “crimes against humanity” . . . through the sum of unrelated individual decisions with no coordination’ at 76).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

36 Marie-Sophie Devresse and Damien Scalia Moreover, this hegemonic individual responsibility50 explicitly refers to the ‘sacrificial imperative’ as described by R. Girard51 in which, in order to rebuild the society after a major crisis, it is essential that the ‘expiatory’ victim52 brings about unanimity against her/him.53 From the point of view of the defendants we met, this is what happens in international criminal law and paradoxically, by not recognizing the actions for which they were brought to justice, they in fine perfectly fulfilled their role and complied with the judicial process. Indeed, among the 51 convicted participants, only two of them explicitly mentioned and recognized a direct responsibility for the actions for which they were sentenced. In fact, through their experience, those convicted by international criminal jurisdictions point out that they find themselves in an impossible position. The violence and the politicization of the process lead them to take a position ‘outside the system’ even as they are required to take part in the trial as insiders. Violence and politicization are factors that bring them to their downfall as ‘expiatory’ victims too. Summoned to speak on their individual behalf about issues they perceived and experi enced as collective ones, they reject any individual responsibility and, in fact, any responsibility ‘as an individual’. Our research thus helps to understand how the individual positioning of the accused is closely linked to institutional categorization, to judicial expectations, but also to the constraints induced by the procedure. This is especially the case when the court refuses to fully recognize the impact of a collective dynamic or a hierarchy on the individual’s choice. Being unable to assert the complexity of their situ ation in the collective context of war during the trial, they end up simply denying all responsibility. In so doing, they in a way further reinforce the very image that is being produced about them. They are monsters who recognize nothing, an ideal enemy that will help to federate everyone against him and thus recreate community. This analysis raises questions. How can we expect the expression of a real recognition of responsibility in a context that, as we have seen, mirrors the war logic or, at least, is experienced as a form of war logic? As explained by F. Digneffe, ‘[T]he ways of perceiving and recognizing—or not—our own responsibility appear only in the context of a relatively “free” world, out of pressure and with no worries about possible implications’.54 Again and again, those we met kept repeating that their words, within the crim inal trial framework, were restricted by the high stakes of their situations and were in no way free. It is possible, then, that the logic of the trial actually makes it harder if not impossible for defendants to come to terms with their responsibility, as the case may be. Further questions that arise at the conclusion of this analysis are therefore: whether the 50 Mégret, Les angles mort (n 48) 98. 51 Robert, L’Impératif sacrificiel (n 28). 52 Larry Cata Backer, ‘The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment’ (2003) 21(3) Penn State Intl L Rev 509. See also Damien Scalia, Du principe de légalité en droit international penal (Bruylant 2011). 53 Robert, L’Impératif sacrificiel (n 28) 140. 54 Françoise Digneffe, ‘Attribution de responsabilité et sentiment vécu de responsabilité—Réflexions sur les contours de la responsabilité pénale à propos du genocide au Rwanda’, in Françoise Digneffe and Thierry Moreau (eds), La responsabilité et la responsabilisation dans la justice pénale (De Boeck-Larcier 2006) 418.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

An Empirical Analysis of International Criminal Law 37 international criminal trial does not lead, in itself, to this contrarian positioning of the defendants (in particular the non-recognition of the alleged responsibilities)? At what cost to both criminal and transitional justice? And whether the trial is not speaking directly to everyone except the very person facing charges.

IV. Conclusion International criminal justice, analyzed from various points of view, has hitherto rarely been addressed from the experience of the ones who encounter it as defendants, whether they were convicted or acquitted. Indeed, the stigmatization that is inherent to every criminal proceeding seems to reach its climax when it concerns people accused of the ‘most serious’ crimes, to the point that it appears nearly subversive to listen to them speak of something other than their crimes and to consider them as a source of know ledge about the trial itself. At the start of this analysis, we aimed first to recognize a status of real stakeholder, of ‘active respondent’ (in the various meanings of the term), to those brought to justice, rather than seeing them only as ‘perpetrators’. From this internal point of view, we then aimed to better understand the functioning of international justice as it has recently been implemented, how it is perceived, and the way it impacts the people who were indicted by it. Through our empirical research, we were then able to highlight several details specific to international criminal justice, details that distinguish it from criminal justice administered at a national level. We will review two of them in our conclusion. The first refers to the way the very idea of justice is defended by these tribunals. Our respondents, far from considering themselves as being ignorant in terms of justice, proved themselves to be open to the idea of a trial. Several of their expectations, however, were not met in the process. The second and more significant element is that their disappointment does not relate to the outcome of the trial (condemnation or acquittal) but rather focuses on details specific to the criminal proceedings, specifically on the symbolic and real violence that seems inherent to numerous facets of the trial, as well as the passive position necessarily held by the defendant. Indeed such criminal proceedings work on the basis of two principles: (a) the ‘outside feeling’ of the defendant and the continuous emphasis on his/her otherness, as well as (b) the predominance of a dynamic of conflict all along the process. If these two principles are common to all repressive processes, they gain a special meaning in a transitional environment. Indeed, there is much to the idea that the crim inal trial represents the extension of war: the experience of physical or symbolical violence, the war rhetoric of the trial, the staged confrontation, the reference to the monstrosity of alleged crimes and the radical otherness, the concealment of the collect ive stake behind the individual accusation, the manifestation of power, the antagonistic dimension of the process, etc. Translated into a subjective experience, this extension tends to imprison those brought to international criminal justice following a war,

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

38 Marie-Sophie Devresse and Damien Scalia constantly underlining the influence of political structures over the process, as well as the inability of defendants to feel as if they belong to the world that judges them. In this context, the reference by our respondents to the notion of scapegoating casts the defendants as victims. Though this reversal of roles may be strange for the system of international justice, it may actually be intrinsic to the very functioning of the judicial bodies. This way of presenting themselves, however disturbing, complies not only with the role and real position assigned to them throughout the trial, but also with the very aim of this justice, namely to rebuild a collective ground by rejecting the singular individual. The notion of responsibility so valued by criminal lawyers cannot, in these conditions, limit itself to confront in the void the accused to material evidence with no guarantee of reaching the core of the moral responsibility and producing awareness. It thus seems, upon completion of this study, that if international criminal justice aims to reach the heart of its target and wants to take into account those tried as human beings, it needs to more significantly extract itself from a frame of a justice that sees it as merely a continu ation of war.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

chapter 2

Defence Perspecti v es on Fa ir n e ss a n d Efficiency at th e I n ter nationa l Cr imi na l Cou rt Jenia Iontcheva Turner1

I. Introduction International criminal courts pursue a host of ambitious goals through their proceedings—to establish the truth about the crimes alleged, to end impunity for serious international crimes, and to model respect for human rights in their proceedings. Yet while these lofty principles are prominently referenced in the courts’ founding documents and in case law, in practice, a less majestic goal—resolving cases efficiently—soon becomes central in the administration of international criminal justice. As donors and court administrators take stock of the hefty expense tabs of international trials, they begin to place demands on judges, prosecutors, and defence attorneys to do more with fewer resources. 1 Amy Abboud Ware Centennial Professor in Criminal Law, SMU Dedman School of Law. I thank the survey participants for sharing their observations and to Esteban Peralta Losilla and the Counsel Support Section at the ICC for distributing the survey on my behalf. Thanks also to Meg deGuzman, Megan Fairlie, Ken Gallant, Chris Jenks, Stephen Smith Cody, and participants in the University of Oslo PluriCourts conference on ‘Strengthening the Validity of International Criminal Tribunals’, the 2016 Annual Meeting of the Southeast Association of Law Schools, and the 2016 ASIL International Criminal Law Interest Group Workshop for their comments. Finally, I am grateful to the SMU Law Faculty Excellence Fund for financial support and to Teresa Poonsuwan and Brooke Olsen for research assistance. Please note that the survey was conducted in early 2016, and the chapter was finalized in late 2016, so they do not reflect subsequent developments at the Court.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

40 Jenia Iontcheva Turner Efficiency is an important goal for international criminal courts for a number of reasons. It ensures defendants’ right to a speedy trial, promotes victims’ interest in closure, conserves limited resources, and helps provide justice in as many cases as possible. Yet as the brief history of modern international criminal procedure has shown, an unrelenting pursuit of efficiency can interfere with other values of the process, such as the protection of individual rights and the search for truth.2 This tradeoff was first observed at the International Criminal Tribunal for the former Yugoslavia (ICTY). Under pressure by donors to speed up proceedings and cut costs in the 2000s, ICTY judges introduced various ‘managerial’ reforms, which limited oral evidence in favour of written statements, restricted the parties’ time for examining witnesses, discouraged interlocutory appeals, and failed to provide sufficient time and resources for defence investigations.3 Scholars and even some ICTY judges found that these procedural reforms at times gave undue priority to judicial economy over fairness, equality of arms, and a thorough exploration of the facts.4 More recently, judges at the International Criminal Court (ICC) have likewise begun introducing reforms aimed at improving the efficiency of the Court.5 To expedite proceedings, they have restrained certain prosecutorial actions, such as overbroad charging documents and phased investigations, that are seen as contributing to delays.6 Some have also taken an interventionist approach to disclosure, requiring prosecutors to provide early and broad disclosure and even to submit in-depth analysis charts explaining the relevance of documents disclosed.7 A few judges have also demanded that both

2 Sergey Vasiliev, ‘The Structure and Management of International Criminal Trials’ 18 (Guest Lecture, ICC Office of the Prosecutor, The Hague, 26 March 2015) (hereafter Vasiliev, Structure and Management). 3 Geert-Jan Alexander Knoops, ‘The Dichotomy Between Judicial Economy and Equality of Arms Within International and Internationalized Criminal Trials: A Defense Perspective’ (2005) 28 Fordham Intl LJ 1566, 1589 (hereafter Knoops, Dichotomy); Maximo Langer, ‘The Rise of Managerial Judging in International Criminal Law’ (2004) 53 Am J Comp L 835, 874 (hereafter Langer, Rise of Managerial Judging); Vasiliev, Structure and Management (n 2) 18; Richard Vogler, ‘Making International Criminal Procedure Work: From Theory to Practice’ in Ralph J. Henham and Mark Findlay (eds), Exploring the Boundaries of International Criminal Justice (Ashgate 2011) 105, 110. 4 Prosecutor v. Milosevic (Dissenting Opinion of Judge David Hunt) ICTY Appeals Chamber, IT-0254-AR73.4 (21 October 2003) [20]–[22]; Patricia M. Wald, ‘To “Establish Incredible Events by Credible Evidence”: The Use of Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings’ (2001) 42 Harvard Intl L J 535, 550–52 (hereafter Wald, Establish Incredible Events); Langer, Rise of Managerial Judging (n 3) 903–04; Knoops, Dichotomy (n 3) 1590. 5 Hans-Peter Kaul, ‘Construction Site for More Justice: The International Criminal Court After Two Years’ (2005) 2 Am J Intl L 370, 376; Vasiliev, Structure and Management (n 2) 13–4. 6 See, e.g., Hans-Peter Kaul, ‘The ICC of the Future’ (2012) 45 Studies in Transnational Legal Policy 99, 110–11 (hereafter Kaul, ICC of the Future); War Crimes Research Office, Expediting Proceedings at the International Criminal Court (2011) 8–10 (hereafter WCRO Expediting Proceedings Report). 7 See Johan D. van der Vyver, ‘Time Is of the Essence: The In-Depth Analysis Chart in Proceedings Before the International Criminal Court’ (2012) 48 Crim L Bull Art I (hereafter Van der Vyver, Time Is of the Essence); Prosecutor v. Jean-Pierre Bemba Gombo (Decision on the Disclosure of Evidence by the Defence) Pre-Trial Chamber III, ICC-01/05–01/08–31 (5 December 2008) [9]–[10].

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Defence Perspectives on Fairness and Efficiency 41 parties submit to them all documents exchanged during disclosure, to give them the information necessary to manage the pre-trial process more efficiently. It remains an open question whether judicial managerialism has also circumscribed defence activities. A few defence attorneys have commented on their experiences with certain aspects of ICC procedure, such as the confirmation of charges and disclosure.8 But no one has examined systematically how judges’ procedural decisions have affected the defence. Has judicial managerialism limited defence opportunities to present and examine witnesses, to review disclosure, or to file interlocutory appeals? Have cost concerns led to restrictions on defence investigations? Have chambers urged defence attorneys to disclose their case early on or settle any aspects of the case with the prosecution? To begin an exploration of these questions, I surveyed ICC defence attorneys about their views on the court’s procedures. The survey asked broad questions about the fairness and expeditiousness of ICC proceedings, as well as more targeted questions about the use of managerial techniques by judges and the effect of these techniques on the defence. Responses to the survey showed that, at least at present, defence attorneys do not perceive judicial managerialism as an impediment to adequate representation at the ICC. While respondents complained about insufficient financial and institutional support for defence work, they tended to place responsibility for these decisions on the Registry and States Parties, not on judges.9 Respondents did express concerns about certain judicial decisions on disclosure, charging, interlocutory appeals, and victim participation.10 But for the most part, defence attorneys did not believe that an emphasis on efficiency drove the results in these decisions. Rather, they thought that judges failed to give sufficient weight to defendants’ rights and deferred too much to victims’ interests. While academic writings on managerial judging have tended to assume that the practice undercuts defence rights in international criminal procedure, survey responses suggest a more complex dynamic. Certain judicial efforts to expedite proceedings— demanding earlier disclosure, filtering out charges more aggressively, and restricting victim participation—could favour defence rights. To this end, international criminal defence attorneys could leverage the emphasis on expeditiousness to advocate for greater judicial regulation of prosecutorial activities.

8 See, e.g., Natacha Fauveau-Ivanovic, ‘Quelle réalité pour les droits de la défense au sein de la Cour pénale internationale?’ (2014) 5 Revue des droits de l’homme 2 (hereafter Fauveau-Ivanovic, Quelle réalité); Karim A.A Khan and Caroline Buisman, ‘Sitting on Evidence? Systemic Failings in the ICC Disclosure Regime—Time for Reform’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (OUP 2015) 1029 (hereafter Khan and Buisman, Sitting on Evidence?); Karim A.A. Khan and Anand A. Shah, ‘Defensive Practices: Representing Clients Before the International Criminal Court’ (2013) 76 L & Contemporary Problems 191 (hereafter Khan and Shah, Defensive Practices). 9 See infra Part III.B.2. 10 See infra Part III.B.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

42 Jenia Iontcheva Turner

II. The Rise of Managerial Judging at International Criminal Courts The concept of managerial judging was first used by American scholars to describe trends in U.S. civil procedure.11 In the late 1970s, US judges took on a more activist stance in civil cases and were ‘not only adjudicating the merits of issues presented to them by litigants, but also . . . meeting with parties in chambers to encourage settlement of disputes and to supervise case preparation’.12 Before too long, scholars observed similar trends in criminal cases.13 Maximo Langer was the first to apply the term ‘managerial judging’ to describe procedural reforms at international criminal courts.14 Langer describes managerial judging as a practice under which ‘the court, with the parties’ assistance, wields [procedure as a device] to expedite process’.15 Unlike traditionally passive adversarial judges: [T]he managerial court gets information about the case very early in the process in order to actively pressure the parties to reach factual and legal agreements and accelerate their pre-trial investigations and trial cases. But unlike the court of the inquisitorial system that actively investigates the truth, the managerial court is active to make sure that the parties do not delay proceedings.16

Since Langer first coined the term, other scholars also observed that international judges have used procedural measures to streamline proceedings in international criminal cases.17 Although most discussions of this trend have focused on the ICTY and ICTR, Vasiliev has noted that managerial judging has spilled over into other international criminal courts as well.18

11 Robert F. Peckham, ‘The Federal Judge as a Case Manager: The New Role in Guiding a Case from Filing to Disposition’ (1981) 69 California L Rev 770, 770; Judith Resnik, ‘Managerial Judges’ (1982) 96 Harvard L Rev 374, 374–80 (hereafter Resnik, Managerial Judges); William W. Schwarzer, ‘Managing Civil Litigation: The Trial Judge’s Role’ (1978) 61 Judicature 400, 401–02. 12 Resnik, Managerial Judges (n 11) 376–77. 13 See, e.g., Nancy J. King and Ronald F. Wright, ‘The Invisible Revolution in Plea Bargaining: Managerial Judging and Judicial Participation in Negotiations’ (2016) 95 Texas L Rev 325; Jenny McEwan, ‘From Adversarialism to Managerialism: Criminal Justice in Transition’ (2011) 31 Legal Studies 519, 522 (hereafter McEwan, Adversarialism to Managerialism); New Zealand Law Commission, Criminal PreTrial Processes: Justice Through Efficiency (2005) accessed 17 October 2019; P Johnson and MF Latham, ‘Criminal Trial Case Management: Why Bother?’ (2011) accessed 17 December 2016. 14 Langer, Rise of Managerial Judging (n 3) 836. 15 ibid 836. 16 ibid. 17 See, e.g., Nancy Amoury Combs, ‘Legitimizing International Criminal Justice: The Importance of Process Control’ (2012) 33 Michigan J Intl L 321, 359 (hereafter Combs, Legitimizing); Vasiliev, Structure and Management (n 2) 10–11; Wald, Establish Incredible Events (n 4) 549. 18 Vasiliev, Structure and Management (n 2) 12; see also Fauveau-Ivanovic, Quelle réalité (n 8) 2, 7.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Defence Perspectives on Fairness and Efficiency 43 At the ICTY and ICTR, judges pursued efficiency through a wide range of procedures. Status conferences ‘streamlined the proceedings and armed the Trial Chambers with information, enabling them to exercise greater control over their cases’.19 Judges also ‘establish[ed] a work plan that sets forth the parties’ obligations and the dates upon which they must be met’.20 Critically, judges demanded early and broad disclosure of evidence to equip the parties and the Court with the information necessary to resolve the case more swiftly. To curb lengthy indictments and lengthy trials, judges also ‘invite[d] the Prosecutor to reduce the number of counts charged and the number of crime sites or incidents comprised within the charges’.21 At trial, judges restricted the number of witnesses called and the time allowed for examination and cross-examination.22 Judges also tried to accelerate the process by permitting more liberal use of written evidence.23 Throughout the process, they also used formal and informal rewards and sanctions to encourage the parties to agree on as many issues as possible and even to negotiate the outcome of the case.24 Finally, judges limited the opportunity to appeal preliminary issues as a way to move cases along.25 In recent years, the Assembly of States Parties at the ICC has placed similar pressure on judges to streamline the process.26 Judges themselves have taken proactive measures to expedite the proceedings. They have closely regulated disclosure among the parties,27 required the prosecution (and sometimes the defence) to produce summaries of evidence to be disclosed and charts indicating the relationship between each piece of evidence and the charges,28 and rejected or reshaped a number of charges.29 Some chambers have even attempted to regulate the timing of prosecutorial investigations.30 As judges have become increasingly active in managing the proceedings with an aim to speeding up the resolution of cases, it is worth examining what the effects of this managerialism have been. 19 Combs, Legitimizing (n 17) 330; Langer, Rise of Managerial Judging (n 3) 888. 20 Combs, Legitimizing (n 17) 330; Langer, Rise of Managerial Judging (n 3) 888. 21 Vasiliev, Structure and Management (n 2) 11. 22 Combs, Legitimizing (n 17) 330; Langer, Rise of Managerial Judging (n 3) 889. 23 Langer, Rise of Managerial Judging (n 3) 899–900. 24 ibid 892–93, 898–99. 25 ibid 901–02. 26 See Sergey Vasiliev, ‘The Structure and Management of International Criminal Trials’ (Guest Lecture, ICC Office of the Prosecutor, The Hague, 26 March 2015); See, e.g., ‘ASP 14: How can ICC trials be more efficient?’ (Coalition for the ICC, 24 November 2015) accessed 17 October 2019 (noting that the Assembly of States Parties has created special working groups to examine how to streamline the criminal process). 27 Alex Whiting, ‘Disclosure Challenges at the International Criminal Court’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (OUP 2015) 1007, 1027–28 (hereafter Whiting, ‘Disclosure Challenges at the ICC’). 28 Van der Vyver, Time Is of the Essence (n 7) 48. 29 War Crimes Research Office, The Confirmation of Charges Process at the International Criminal Court: A Critical Assessment and Recommendations for Change (2015) 44 (WCRO Confirmation of Charges Report). 30 Alex Whiting, ‘Dynamic Investigative Practice at the International Criminal Court’ (2013) 76 Law & Contemporary Problems 163, 167 (hereafter Whiting, ‘Dynamic Investigative Practice’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

44 Jenia Iontcheva Turner In previous assessments of managerial judging at the international criminal courts, commentators have argued that it has tended to impair the fairness of the trial and the search for truth. Langer noted that ‘judicial activism may have created problems of impartiality, and the use of written statements has probably worsened the truth-determination ability of ICTY trials’.31 Knoops likewise asserted that the ad hoc tribunals’ emphasis on efficiency disproportionately burdened the defence and undermined equality of arms.32 Similarly, Vasiliev observed a potential conflict between managerial judging and defence interests: In general, the defence has no apparent incentives to expedite the process, as opposed to delaying it. In most scenarios, it will opt for a ‘contest-everything’ tactic, which helps divert the adversary’s resources from the core issues of personal responsibility and linkage evidence to the investigation and presentation of crime-base evidence.33

Even some ICTY judges themselves have denounced specific managerial practices as inconsistent with procedural fairness.34 Only rarely and in passing do commentators note that, in some cases, ‘shorter proceedings may benefit the defendant’35 and that managerial judging could also cut into prosecutorial independence.36 As the ICC begins its experiment with managerial judging, it is worth reviewing whether previous assessments of the practice apply to the new Court as well.

III. Defence Views on Fairness and Efficiency at the ICC A. Survey Method At present, we know little about the impact that managerial practices might have on defence representation at the ICC. To begin gathering information on this question, I conducted an online survey of ICC defence attorneys in May–June 2016. The survey consisted of 23 questions, which were estimated to take 10–15 minutes to answer. The questions were in English, but French-speaking attorneys were encouraged to respond in French. To promote participation, the survey was confidential and did

31 ibid 908 n 370. 32 Knoops, Dichotomy (n 3) 1580. 33 Vasiliev, Structure and Management (n 2) 18. 34 Milosevic (Dissenting Opinion of Judge Hunt) (n 4) [20]–[22]; Wald, Establish Incredible Events (n 4) 550–52. 35 Langer, Rise of Managerial Judging (n 3) 908 n 370. 36 Vasiliev, Structure and Management (n 2) 18.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Defence Perspectives on Fairness and Efficiency 45 not ask for the participants’ names or nationalities.37 No other incentives were provided for participation. Based on ICC filings and a research of public records, I identified and emailed 53 attorneys who had practised at the ICC, and I requested their participation in the study.38 In addition, the Counsel Support Section (CSS) at the Registry agreed to send the solicitation on my behalf. This solicitation went out to 69 practising ICC counsel and associate counsel who had intervened at the ICC, yielding a few additional responses.39 In total, 82 attorneys received a solicitation either directly from me or from the CSS. Of those 82 attorneys, 18 substantially completed the survey,40 which represents a response rate of 22 per cent. Because the sample was not random, selection bias may have affected the survey results. This survey should be viewed as a preliminary examination of defence views at the ICC and should be supplemented by follow-up studies. The 18 survey respondents have diverse legal backgrounds and levels of experience. Twelve have practised in a common-law/adversarial jurisdiction, five in a civil-law/ inquisitorial jurisdiction, and one in a mixed system.41 All but one had at least five years of experience in international criminal law, and 11 had over 15 years of experience. Five had worked at the ICTY, 13 at the ICTR, and 2–4 at each of the Special Court for Sierra Leone (SCSL), Extraordinary Chambers in the Courts of Cambodia (ECCC), and the Special Tribunal for Lebanon (STL). Just under half of the respondents had practised international criminal law in different capacities, as prosecutors, judges, legal officers, academics, or victim representatives. Most respondents had handled one or two cases at the ICC, but a few had handled three or more. A large majority had handled matters at the pre-trial stage, a smaller majority had done so at trial, and just over a third had handled matters on appeal. Roughly 91 per cent of respondents had recent experience representing clients at the ICC (from 2014 until present), but a majority had also defended ICC cases as early as 2003–11.

B. Survey Findings 1. Judicial Managerialism On the whole, respondents did not believe that the ICC had adopted a managerial approach to procedure or sacrificed fairness for efficiency. However, a large majority of 37 Respondents were given the option to provide their name and email to be contacted for further information. A few respondents provided their contact information, which has been kept confidential. 38 Forty of the recipients were primary or associate counsel, and 13 recipients were ad hoc or duty counsel, legal consultants, or legal assistants. 39 Most of these recipients had already received a solicitation from me because the Registry list and my list overlapped to a great degree. 40 Some questions in the tables reproduced here have less than 18 responses because some respondents skipped one or more questions. 41 The results thus somewhat overrepresent English-speaking, common-law attorneys and may not fully reflect the distinct perspectives of Francophone and civil-law attorneys.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

46 Jenia Iontcheva Turner the respondents expressed other concerns about equality of arms and procedural fairness at the Court. Respondents complained that the Court—particularly the Registry, under pressure by the States Parties—failed to provide the defence with sufficient resources and institutional support to allow for adequate investigation and trial preparation. Respondents also expressed concerns about certain judicial approaches to disclosure, the confirmation of charges, victim participation, and interlocutory appeals. One of the first substantive questions in the survey asked respondents to select one or more labels that best describe the procedural system at the ICC. The results are reproduced in Table 2.1 below. Notably, only two respondents chose ‘managerial/ efficiency-driven’ as an appropriate label. Most picked ‘a mix of adversarial and inquisitorial’ as the most fitting description. The second most popular label, chosen by more than half of respondents, was ‘victim-oriented’. The survey next asked defence attorneys to indicate whether they had experienced certain procedural actions that unduly limited defence rights or interests.42 The most common restrictions reported were limits on the ability to investigate (56 per cent), limits on the ability to adequately review evidence disclosed by the prosecution (65 per cent), and limits on the ability to file interlocutory appeals (60 per cent). The survey also asked respondents to compare ICC procedures to those at other international criminal courts (to the extent that respondents had the relevant experience or knowledge). A majority of respondents thought that the ICC imposed the

Table 2.1 Defence Categorization of ICC Procedural System Adversarial

Inquisitorial A mix of adversarial and inquisitorial Managerial/ Efficiency-driven Victim-oriented Other (Please explain) 0

42 See Table 2.2.

2

4

6

8

10

12

14

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Defence Perspectives on Fairness and Efficiency 47

Table 2.2 Defence Experiences of Procedural Restrictions by the Court Question

Yes

No

Total

Unduly limited your client’s right to make a statement (Please explain if you wish.)

24%

4 76%

13 17

Unduly limited your ability to investigate on behalf of your client (Please explain if you wish.)

56%

10 44%

8 18

Unduly limited your ability to present defence witnesses (Please explain if you wish.)

29%

4 71%

10 14

Unduly limited your ability to question adverse witnesses (Please explain if you wish.)

33%

5 66%

10 15

Unduly limited your ability to adequately review evidence disclosed by the prosecution (apart from legitimate redactions for witness protection) (Please explain if you wish.)

65%

11 35%

6 17

Unduly limited your ability to file an interlocutory appeal (Please explain if you wish.)

60%

9 40%

6 15

Rejected a motion as ‘frivolous’ or ‘baseless’? (Please explain if you wish.)

40%

6 60%

9 15

Described a tactic you have taken in the course of your representation as a ‘delay tactic’? (Please explain if you wish.)

36%

5 64%

9 14

restrictions mentioned above more frequently than did other courts, yet most thought that the pace of ICC proceedings was either about the same or slower than that of the ICTY and ICTR.43 When asked to compare procedural fairness of the ICC and other international criminal courts, views were mixed. For example, one-third of respondents noted that ICC and ICTY were equally procedurally fair, one-fifth thought the ICC was less fair than the ICTY, and nearly half could not make a determination. In comparing ICC and ICTR procedures, about 18 per cent thought that the ICC was fairer, while 24 per cent thought the ICTR was fairer, and another 24 per cent thought the two courts were similar in fairness.44 In short, whatever the effects of judicial managerialism, according to respondents, they did not seem to render the ICC less fair than its predecessors. In response to a question about judicial activism, 64 per cent of defence respondents stated that ICC judges are as active as they should be. Only one respondent thought judges should be less active, and four respondents believed that judges should be more active. The lack of complaint about judicial intervention is particularly striking given that close to two-thirds of respondents hail from adversarial systems, where judges remain passive in criminal cases. 43 A couple of respondents did, however, believe that ICC proceedings were faster than the STL and SCSL. 44 Roughly 35% of respondents said they did not know which court was fairer.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

48 Jenia Iontcheva Turner As some of the open-ended responses explained, judicial activism could be good or bad, depending on how it is used: This is not an easy question as each court appears to have different approaches. Some are unduly active, while some much less so. . . . Again, the Confirmation Hearings are an odd animal and one may have thought the court would be more active—i.e. imaginative and investigative—but it is really a rubber stamp if there is a suggestion of adequate evidence being present. Having said that, in the Ruto /Kenyatta cases four suspects were not confirmed [sic]. So not a complete waste of time.45 Passivity or activism of the judges depends on the system of the proceeding (adversarial-passive or inquisitorial-active). An active judge in an adversarial system is not acceptable and vice versa. You have to choose and ICC does not choose! That is the problem.46 No problem if good judges are active, but it really is problematic if bad judges think they should actively manage all types of things.47

Another measure frequently mentioned as a feature of managerialism is an effort by judges to encourage the parties to enter into factual stipulations or to negotiate the charges or sentence.48 At the ICC, judges do not appear to have attempted to encourage the prosecution and defence to settle cases or stipulate to facts,49 nor have they demanded overly broad disclosure by the defence—a feature of managerialism that is often used to encourage negotiations and expedite the proceedings.50 Finally, most respondents agreed with the proposition that judges should take steps to expedite the process at the ICC. A majority (62 per cent) of respondents were open to the idea of judges promoting negotiations between the parties about the sentence or the charges. Most were also open to judges taking other measures—such as filtering out unwarranted charges at the confirmation stages, issuing judgments more quickly, and ensuring earlier and broader disclosure—to speed up proceedings.51 In short, defence attorneys do not believe that judges have been unduly interventionist or have sacrificed defence rights for the sake of efficiency. A review of ICC decisions that use the terms ‘efficiency’, ‘judicial economy’, and ‘expeditious’ confirms that so far, judges have not allowed concerns about expeditiousness to undermine defence rights. There appears to be no correlation between the use of one of these terms and a decision 45 Respondent # 10. 46 Respondent # 15. 47 Respondent # 18. 48 Langer, Rise of Managerial Judging (n 3) 879; McEwan, Adversarialism to Managerialism (n 13) 525. 49 None of the respondents indicated that this was already happening, even though the survey included a question whether judges should be promoting such negotiations. The Court accepted its first admission of guilt in Al Mahdi in 2016, but this remains an exceptional case. Prosecutor v. Al Mahdi (Judgment and Sentence) Trial Chamber VIII, ICC-01/12–01/15–171 (27 September 2016). No evidence suggests that judges encouraged an admission of guilt or otherwise participated in the negotiations in Al Mahdi. Alex Whiting, ‘The Significance of the ICC’s First Guilty Plea,’ (Just Security, 23 August 2016) accessed 30 March 2019. 50 Langer, Rise of Managerial Judging (n 3) 897; McEwan, Adversarialism to Managerialism (n 13) 523. 51 58% said that judges should take other measures to expedite proceedings, while 42% said that judges should not do so.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Defence Perspectives on Fairness and Efficiency 49 against the defence.52 Finally, Chambers have largely refrained from using certain terms, such as ‘frivolous’ and ‘delay tactic’, to describe defence actions.53 This is also consistent with defence perceptions that judges are not using informal sanctions to prod the parties to speed up the process.

2. Defence Investigative Resources

Although respondents did not believe that judicial management of the proceedings has negatively affected defence representation at the ICC, they did complain about the underfunding of the defence as a result of cost concerns. Like the international criminal tribunals and hybrid courts that preceded it, the ICC is in principle committed to ensuring equality of arms between defence and prosecution. Like its predecessors, however, it has interpreted equality of arms to mean procedural equality, not equality of resources.54 The parties are to be placed in ‘a procedurally equal position to make their case during the whole course of the trial’.55 The right to a fair trial further requires that defendants receive ‘adequate’ time and facilities to prepare a defence.56 If the defence is deprived of essential investigative resources or access to evidence, this may render the proceedings fundamentally unfair and warrant a stay of the proceedings.57 Most defence respondents stated that the ICC had at times unduly limited their ability to investigate and that the Court had not provided them with sufficient resources to represent clients. As a few open-ended responses indicated and an independent review of court records confirms, these restrictions were imposed primarily by the Registry and not by Chambers.58

52 Out of a random sample of 34 decisions reviewed, a concern for expediting the proceedings was material to the outcome of 11 decisions. In five of these decisions, this concern favoured the defence, in four decisions, it favoured the prosecution, and in two decisions, it favoured both the prosecution and the defence (as against the victim’s representatives). 53 Judges never used the term ‘delay tactic’ and used ‘frivolous’ quite rarely, roughly 40 times. 54 See Charles C. Jalloh and Amy DiBella, ‘Equality of Arms in International Criminal Law: Continuing Challenges’ (2013) in William A. Schabas, Yvonne McDermott, and Niamh Hayes (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate 2013) 251, 253 (hereafter Jalloh and DiBella, Equality of Arms). 55 International Bar Association, Fairness at the International Criminal Court (19 fn 9, 2011) (quoting Stefania Negri, ‘The Principle of “Equality of Arms” and the Evolving Law of International Criminal Procedure’ (2005) 5 Intl Crim L Rev 513, 513). 56 Rome Statute 1998, art 67(1)(b). 57 See Prosecutor v. Thomas Lubanga Dyilo (Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008) Trial Chamber I, ICC-01/04–01/06 (13 June 2008) [77]–[80], [91]. 58 See, e.g., Respondent # 10 (‘In the Reg 55 proceedings the Registry did not grant permission to investigate -i.e. pay for investigations - until the Court itself had decided the issue that would make such investigations necessary. I can’t say the Court - i.e. Trial Chamber - limited me.’). It is possible, therefore, that the number of attorneys who believe they did not have sufficient resources to investigate may be higher. Some attorneys may have answered ‘no’ to the question whether ‘the Court’ limited their ability to investigate because they interpreted the term to include only the chambers.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

50 Jenia Iontcheva Turner

Table 2.3 Has the ICC generally provided you with sufficient resources to adequately represent your client? Yes (Please explain if you wish.)

No (Please explain if you wish.) Sometimes (Please explain if you wish.) 0

1

2

3

4

5

6

7

8

Open-ended responses elaborated on the types of resource restrictions imposed. While only one respondent criticized the level of remuneration for attorneys under the legal aid system,59 several complained that the Registry does not allocate sufficient staffing resources to meet the demands of complex cases. To provide context for this criticism, it is worth examining briefly the ICC’s legal aid scheme. Before trial and during appeal, legal aid presumptively allocates funds for three defence team members: principal counsel, a legal assistant, and a case manager.60 During trial, the defence team also receives funds for an additional ‘associate’ counsel.61 The Registry may allocate additional staffing resources if the complexity of the case warrants it.62 A few respondents complained, however, that the Registry did not always approve funds for the staff needed to help with case preparation.63 As one respondent 59 But see Respondent # 9 (translated from French). For a public statement criticizing the level of ayment, see David Hooper, ‘Response to the Discussion Paper “Review of the ICC Legal Aid System’ ” p (2012) 14 accessed 17 October 2019 (hereafter Hooper, Response). For a discussion of remuneration of counsel, see International Criminal Court, Assembly of States Parties, Registry’s Single Policy Document on the Court’s Legal Aid System (Twelfth Session, 2013) 11 accessed 17 October 2019 (hereafter Registry’s Single Policy Document). 60 Registry’s Single Policy Document (n 59) 10. 61 ibid 10. 62 ibid 15. 63 See Respondent # 10 (n 58); Respondent # 19 (stating that the Court ‘first rejected request for mission to question a witness, then rejected request to send full staff there’ and arguing that ‘more staff [are] needed’); Respondent # 23 (complaining that the Court ‘provid[ed] grossly inadequate resources to enable me conduct appropriate investigations’ and that ‘[t]he budgetary allocations are arbitrary, grossly inadequate and payments and reimbursement of expenses incurred by counsel are either not paid or paid after several months going to years, if ever’); Respondent # 6 (complaining of ‘lack of resources’ and ‘administrative red tape’); Respondent # 14 (‘Defence teams do not have as many logistical resources at various levels. They are not considered ICC staff so they do not receive the same benefits and protections as staff. . . . Those on legal aid have to make numerous continuing requests for funding which makes job security hard to guarantee.’). But cf Respondent # 10 (‘In practice whenever I asked for more (and I concede I was careful in my demands given the initial indication of there being little funding) I got it. I don’t think I was limited unduly by budget. But I could have been. In fact, it was almost as if we were designing the legal aid system. The scheme the ICC had put in place was wholly misplaced and it had to react to the practicalities that we were able to present.’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Defence Perspectives on Fairness and Efficiency 51 opined, ‘[I]nflexible, formal budgets with fixed sums do never properly reflect the needs of counsel and put them from the beginning in a[n] unfair and limited position’.64 Several defence motions challenging Registry decisions on legal aid highlight the concern about staffing needs.65 In Lubanga, Ntaganda, and Katanga, the defence challenged staffing allocations made by the Registry at different points in the proceedings. In Lubanga, after the defendant’s first counsel had to withdraw for health reasons, replacement counsel-to-be demanded that the Registrar increase staffing on the case before she would accept appointment. Although the Registrar eventually largely acquiesced to counsel’s demands, the dispute delayed the proceedings for months.66 The dispute resurfaced, however, after the Registry cut legal aid for the defence team for the period after closing arguments and before final judgment.67 Attorneys argued that the cutback violated Lubanga’s fair trial rights because the defence needed to maintain a legal team to help with an eventual appeal, should one be needed. The Trial Chamber agreed and overruled the Registry’s decision.68 Despite this decision in favour of Lubanga’s defence, the same dispute between the Registry and the defence arose again in Katanga after closing arguments, and the Trial Chamber stepped in to restore legal aid.69 In Ntaganda, counsel challenged the Registry’s refusal to allocate more than six months of salary for a second legal assistant to help at trial.70 The Chamber agreed with the defence that a second legal assistant should be funded for the duration of the trial. In reversing the Registry, the Chamber noted that the decision to deny funding was not supported by reasons and was inconsistent with the Registry’s stated legal aid policy.71 A number of survey respondents also voiced concerns that they did not receive sufficient support for field investigations. The Court’s legal aid system sets a budget for investigations at €73,006 per team, which is estimated to cover a total of about 90 days of field investigations.72 In addition, defence teams can be reimbursed for miscellaneous and travel expenses of up to €3,000 per month.73 Counsel may request additional resources, and the Registry will evaluate the request based on factors such as the number of charges filed in the case, the number of victims participating, and the number of additional witnesses called by the prosecution and the victims’ representatives.74 Yet respondents

64 Respondent # 22. 65 The defence can challenge Registry decisions pursuant to Regulation 83(4). 66 International Bar Association, Monitoring Report: International Criminal Court (2007) 17 accessed 17 October 2019. 67 Prosecutor v. Lubanga (Decision Reviewing the Registry’s Decision on Legal Assistance for Mr Lubanga) Trial Chamber I, ICC-01/04–01/06–2800 (30 August 2011) [13]. 68 Lubanga (n 67) [63]. 69 Prosecutor v. Katanga & Chui (Transcript of Oral Order) Trial Chamber II, ICC-01/04–01/07-T341-ENG (18 June 2012) [19]–[24]. 70 Prosecutor v. Ntaganda (Reasons for Review of Registrar’s Decision on Defence Resources) Trial Chamber VI, ICC-01/04–02/06–389 (29 October 2014) [13]–[17]. 71 Ntaganda (n 70) [43]. 72 Registry’s Single Policy Document (n 59) 11. 73 ibid 25. 74 ibid 11; Regulations of the Court 2004, reg 83(3).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

52 Jenia Iontcheva Turner noted that, in practice, support for investigations has been insufficient and unpredictable.75 Again, these limitations were imposed by the Registry, not the judges.76 These resource concerns have been echoed in public comments by defence attorneys. Reacting to a 23 per cent cut in the defence budget for 2015, for example, defence attorney Nick Kaufman complained that while the prosecution can plan its investigative activities in advance, ‘[t]he defence . . . has to request permission from the Registry for every procedural step’.77 He elaborated that: The institutionalised prejudice towards the defence exists and is ignored. By way of example, apart from the cost of a flight ticket and a basic living allowance, defence investigations are never funded in advance and mission expenses are reimbursed with a delay of several months. As a result, defence lawyers are forced to fund missions—including witness expenses, food and accommodation—out of their own pocket.78

Other attorneys have also gone on record to protest insufficient funding for defence investigations.79 Defence attorneys have noted that ICC funding falls below that provided by the ICTY and ICTR, even though ICC investigations tend to require greater financial and logistical support.80 For example, because of a prohibition on witness proofing at the ICC (which did not exist at the ICTY or ICTR), defence counsel have to interview any potential witnesses in the field.81 Furthermore: [ICC counsel], unlike its counterparts at the ad hoc and hybrid courts and tribunals, will not have the benefit of a large and experienced defence bar with extensive and broad substantive knowledge of the conflict in question and practical advice on planning and conducting investigations on the ground.82

For those reasons, ICC attorneys have argued that they need administrative and financial support even more than attorneys at the ad hoc international tribunals did.83 It is important to note that, in a few ICC cases, such as those concerning high-powered Kenyan officials, defendants were able to afford private counsel and bankroll thorough defence investigations. Furthermore, the Kenyan government not only did not stand in 75 Respondent # 10 (n 58); Respondent # 19 (n 63); Respondent # 23 (n 63); Respondent # 14 (n 63). 76 See, e.g., Respondent # 10 (n 58). 77 Sophie van Leeuwen, ‘ “Totally Unacceptable”: ICC Defence Counsel Budget Cuts Criticised’ (Justice Hub, 15 December 2014) accessed 30 March 2019. 78 ibid. 79 Hooper, Response (n 59) 13–17; ICC Office of Public Counsel for the Defence, Internal Memorandum from Xavier-Jean Keïta to Esteban Peralta Losilla, ‘OPCD Analysis/Response to Legal Aid Proposals’ (31 January 2012) 7–8 accessed O17 October 2019 (hereafter Keïta). 80 Hooper, Response (n 59) 13–17; Keïta (n 79) 7–8. 81 See Hooper, Response (n 59) 13–17; Keïta (n 79) 7. 82 Khan and Shah, Defensive Practices (n 8) 225. 83 ibid.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Defence Perspectives on Fairness and Efficiency 53 the way of defence activity, but likely facilitated it.84 The Kenyan cases, however, remain exceptional. Most ICC defence attorneys have not been able to count on either extensive resources or the support of domestic authorities. Academic commentary echoes survey responses about the challenges of defence investigations, noting the difficulties that international criminal defence attorneys face in obtaining access to the field or evidence from state authorities.85 Because the defence is not an official organ of the Court, it cannot benefit from established channels of mutual cooperation in criminal matters.86 More generally, international organizations, non-governmental organizations, and domestic authorities have not been as accommodating of defence requests for evidence as they have been of prosecution requests.87 The underfunding of defence investigations exacerbates these structural problems. Survey responses, as well as the Court’s own records, suggest that resource limitations on defence representation are largely the result of administrative, rather than judicial decisions. The Registry is under pressure from states parties to keep the legal aid budget under control, so it has taken decisions that, in defence attorneys’ views, have at times interfered with the defence’s ability to effectively prepare cases. Judges have often supported the defence in its efforts to maintain the staff and resources necessary for adequate representation.88 This may explain why survey comments about the inadequacy of investigative resources focused on the Registry and States Parties, rather than on judges.

3. Prosecutorial Disclosure Recognizing the investigative challenges that the defence faces in international criminal cases, the drafters of the Rome Statute charged the prosecution with investigating objectively.89 Prosecutors are supposed to seek out ‘incriminating and exonerating 84 See, e.g., Institute for War & Peace Reporting, ICC Kenya Probe, ‘Hampered by Intimidation’ (12 January 2012) accessed 17 October 2019. 85 Caroline Buisman, ‘The Prosecutor’s Obligation to Investigate Incriminating and Exonerating Circumstances Equally: Illusion or Reality?’ (2014) 27 Leiden J Intl L 205, 212–15 (hereafter Buisman, Prosecutor’s Obligation); Jacob Katz Cogan, ‘International Criminal Courts and Fair Trials: Difficulties and Prospects’ (2002) 27 Yale J Intl L 111, 131; Fauveau-Ivanovic, Quelle réalité (n 8) 2, 12; Maria Igorevna Fedorova, The Principle of Equality of Arms in International Criminal Proceedings (Volume 55, School of Human Rights Research Series 2012) 190, 205–09; Jalloh and DiBella, Equality of Arms (n 54) 264; Michael A. Newton, ‘Evolving Equality: The Development of the International Defense Bar’ (2011) 47 Stanford J Intl L 379, 388–90 (hereafter Newton, Evolving Equality). 86 IBA, Fairness at the International Criminal Court (n 55) 32. 87 See, e.g., Newton, Evolving Equality (n 85) 390 (noting that national authorities ‘have established detailed mechanisms for providing that information to the prosecution teams, but have often been far less forthcoming to defense investigators’). 88 International Bar Association, Counsel Matters at the International Criminal Court (2012) 25; see also notes 67–71 and accompanying text (describing instances in which ICC chambers reversed Registry decisions that denied resources to the defense). 89 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, UN Doc A/CONF.183/9 (in force 1 July 2002) (hereafter Rome Statute 1998), art 54(1)(a).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

54 Jenia Iontcheva Turner circumstances equally’ ‘in order to establish the truth’.90 A thorough and objective investigation by prosecutors is supposed to compensate to some degree for the difficulties that defence attorneys encounter in collecting evidence on their own. Yet defence attorneys have expressed skepticism that the ICC prosecutor is in a good position to investigate on the defence’s behalf.91 As Caroline Buisman, an ICC scholar and defence counsel, writes: ‘[I]t is perhaps over-idealistic to expect a prosecutor to search purposefully for information that is contrary to his or her perception of the facts and his or her case’.92 Moreover, since ‘the Prosecutor does not, as a rule, question the accused or otherwise have his or her account of events, it is questionable whether she can have a realistic basis for such an enquiry’.93 ICC prosecutors are further required to disclose promptly to the defence any exculpatory evidence that they have in their possession. Chambers have held that prosecutors must disclose ‘the bulk’ and in some cases, ‘the totality’ of exculpatory evidence before the confirmation of charges hearing.94 All exculpatory evidence must be disclosed ‘as soon as practicable’.95 The ICC has affirmed that disclosure of exculpatory evidence and evidence material to the defence is critical to ensuring a fair trial.96 Because disclosure is so central to ensuring a fair trial and a procedural balance between the parties, it has been the subject of multiple disputes at the Court.97 Not surprisingly, survey respondents highlighted disclosure as the area of greatest discontent. Almost two-thirds of respondents stated that the Court has unduly limited their ability to review disclosed evidence. In response to a subsequent question, 63 per cent of respondents stated that the Court had not demanded adequate disclosure from the prosecution, while another 19 per cent thought that the Court had only ‘sometimes’ demanded adequate disclosure. More specifically, respondents opined that the Court did not do enough to ensure that the prosecution disclosed evidence in a timely fashion. They complained of ‘late 90 ibid. This provision is influenced by the inquisitorial model, under which prosecutors are seen as neutral officials who investigate objectively and thoroughly, while the defence has a relatively passive role during investigations, focused on reviewing evidence gathered by the prosecution. Jenia I Turner, ‘Plea Bargaining and Disclosure in Germany and the United States: Comparative Lessons’ (2016) 57 William & Mary L Rev 1549, 1559. 91 Buisman, Prosecutor’s Obligation (n 85); see also Respondent # 15 (‘[La CPI] prétend confier au Procureur le soin de travailler à décharge ce qu’il s’abstient bien . . . . Soit on donne les moyens à la défense de faire un vrai travail de contre-enquête (en l’absence de juge d’instruction et de police, cela serait logique), soit on se retrouve dans une situation inéquitable vis-à-vis de la défense (ce qui est le cas).’). 92 Buisman, Prosecutor’s Obligation (n 85) 224. 93 ibid. 94 Prosecutor v. Lubanga (Decision on the Final System of Disclosure and the Establishment of a Time Table) Pre-Trial Chamber I, ICC-01/04–01/06–102 (15 May 2006) [124]–[133]. 95 Prosecutor v. Ruto et al (Decision Setting the Regime for Evidence Disclosure and Other Related Matters) Pre-Trial Chamber II, ICC-01/09–01/11–44 (06 April 2011) [6]. 96 Prosecutor v. Ongwen (Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber II entitled ‘Decision Setting the Regime for Evidence Disclosure and Other Related Matters’) Appeals Chamber, ICC-02/04–01/15–251 (17 June 2015) [40] (‘The Appeals Chamber has previously held that “the disclosure process is essential in ensuring the fairness of the proceedings and that the rights of the defence are respected, in particular the principle of equality of arms.” ’) (citations omitted). 97 Whiting, ‘Dynamic Investigative Practice’ (n 30) 166; Khan and Buisman (n 8) 1029.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Defence Perspectives on Fairness and Efficiency 55 disclosure’ and the ‘need to file numerous if not endless disclosure requests’.98 In the same vein, a respondent reported that ‘[t]he OTP served thousands of pages of evidence 14 days before the Preliminary Hearing as an attempt to prevent the Defence from conducting full analysis of their case. . . . The date of possession of the evidence showed it could have been served sooner’.99 Respondents further complained that the Court did not consistently sanction prosecutors for disclosure violations.100 Particularly because it is combined with insufficient staffing and investigation resources for the defence, late disclosure has reportedly frustrated defence efforts to prepare adequately for confirmation hearings and trials.101 One respondent explained that his or her defence team was able to review the disclosed evidence adequately only because the chamber delayed first the confirmation hearing and then the trial proceedings.102 This criticism echoes a complaint by defence attorneys at the ICTY: that by stretching out disclosure of evidence over time, the prosecution ‘puts the defence off-balance and makes it impossible to “develop and stick to a proper defence plan” ’.103 Independent observers of the Court concur that ‘the disclosure process is often rife with delays’.104 Another concern of respondents was that the Court authorized disproportionate and unnecessary redactions of disclosed documents. At the ICC, the prosecution can seek permission to redact information that would identify witnesses, their families, or others who might be placed at risk on account of the Court’s work.105 Disclosure may also be restricted to protect the integrity of ongoing investigations, national security information, or confidentiality agreements authorized under the Statute.106 While redactions and summaries of witness statements are permitted before confirmation to address such concerns, witness identities must be disclosed before trial.107 Defence attorneys believed that judges were overly deferential to the prosecution in authorizing redactions. As one respondent explained, ‘Witness protective measures 98 Respondent # 6; see also Respondent # 10 (‘Perhaps disclosure of the trial material should take place sooner—at present, e.g. in [], the trial witnesses were largely different to the Confirmation witnesses.’). 99 Respondent # 21. 100 Respondent # 23 (‘The Court most of the time accommodates the Prosecutor’s unreasonable disclosure violations. The Prosecutor has hardly ever been sanctioned except in very limited cases for its disclosure violations.’); Respondent # 14 (‘The duty to disclose exculpatory evidence is not as robustly enforced and it is usually up to the defence to demonstrate the need.’); see also Khan and Buisman, Sitting on Evidence? (n 8) 1033–34 (noting that that Chambers tend to excuse prosecutorial delay in providing disclosure). 101 Respondent # 19 (noting that the Court ‘did not provide us with necessary software to read prosecution evidence and failed to oblige the prosecution to present evidence in a different more accessible format’); Respondent # 21 (n 99); Respondent # 14 (‘Defence Counsel are not afforded enough time to conduct their own investigations and adequately review prosecution disclosures.’). 102 Respondent #10. 103 Jarinde Temminck Tuinstra, ‘Defending the Defenders: The Role of Defence Counsel in International Criminal Trials’ (2010) 8 J Intl Crim Just 463, 479 (quoting Stephane Bourgon, ‘Procedural Problems Hindering Expeditious and Fair Justice’ (2004) 2 J Intl Crim Just 526, 529). 104 Guénaël Mettraux et al., Expert Initiative Report on Promoting Effectiveness at the International Criminal Court (2014) 103 (hereafter Expert Initiative). 105 Rome Statute 1998, art 68(5); ICC RPE, rr 81(3), (4). 106 ICC RPE, rr 81(2)–(4), 82. 107 ICC RPE, r 81(5).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

56 Jenia Iontcheva Turner have a deleterious effect on disclosure—the Court inevitably? [sic] accepts what the prosecutor tells it as to the risks to its witnesses when in fact there is little or no risk at all. The Court is also unduly protective of intermediaries and of the sums provided to witnesses and intermediaries’.108 In public comments, too, defence attorneys have criticized the redactions process as ‘reflexive’, ‘unwieldy[,] and unmanageable’.109 Outside observers have likewise noted that the redactions process is time-consuming and unpredictable. Chambers have adopted different approaches to authorizing initial redactions and lifting redactions later in the process.110 As a result: The same evidence may be disclosed to the Defence multiple times with different degrees of redactions. Effectively, the Defence may be required to review the same material three times before the actual identity of the witness or other key information may be disclosed to the Defence and allows for full Defence investigations to take place at a very late stage in proceedings.111

This process overburdens the already thinly stretched defence teams. Survey responses were not conclusive as to the reason for the judges’ perceived failure to ensure prompt and comprehensive disclosure. No respondents suggested that the problem resulted from a focus on efficiency. Instead, some opined that judges gave undue deference to prosecutorial claims of exigency, whether in terms of the timing of disclosure or in terms of the necessary redactions.112 Academic commentary is divided on this question. Alex Whiting has argued that disclosure delays are the inevitable product of prosecuting complex international crimes involving massive documentary evidence and scores of vulnerable witnesses.113 Others have claimed that delays are fueled by inconsistent judicial approaches to disclosure.114 What is clear is that neither defence attorneys nor outside observers believe that the source of the disclosure problems is managerial judging. In fact, managerial judging is seen as a possible remedy for late and incomplete disclosure.115

4. Confirmation of Charges The survey did not directly ask defence attorneys to comment on the confirmation of charges process, but several respondents nonetheless raised the issue when asked about top procedural reforms they would like to see implemented at the ICC. The confirmation of charges is an adversarial proceeding on the basis of which the Pre-Trial Chamber decides whether ‘substantial grounds’ exist to believe that the person committed the crimes charged. The hearing is supposed to protect ‘against wrongful prosecution and 108 Respondent #10. 109 Khan and Shah, Defensive Practices (n 8) 208–9. 110 Expert Initiative (n 104) 113–5. 111 ibid 115. 112 Respondent # 14; Respondent # 10. 113 Whiting, ‘Dynamic Investigative Practice’ (n 30) 179–82. 114 Expert Initiative (n 104) 103; IBA, Fairness at the International Criminal Court (n 55) 24. 115 See, e.g., WCRO Expediting Proceedings Report (n 6) 61; Whiting, ‘Disclosure Challenges at the ICC’ (n 27) 1007.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Defence Perspectives on Fairness and Efficiency 57 ensur[e] judicial economy by allowing [sic] to distinguish between cases that should go to trial from those that should not’.116 Although the process is supposed to safeguard against unwarranted accusations, several defence attorneys criticized it as unfair and inefficient, at least as practised at present. Views on how the confirmation process should be reformed differed widely among defence attorneys, however, just as they do among academic commentators. Some attorneys argued that the confirmation process should be strengthened and that judges should be more rigorous in sifting out unwarranted charges.117 As one respondent explained: The threshold for the confirmation of charges is so low. This allows charges which should have been filtered and dismissed to be confirmed for trial. Due to the reluctance of Pre-trial Judges to grant leave for appeal of most confirmation decisions, the cases are sent for trial on very deficient and defective charges. The ICC Judges should be more active and rigorous during the confirmation process and during trial.118

Another respondent lamented the variable and unpredictable approaches to confirmation by different judges.119 He or she also criticized judges for refashioning charges at trial through Regulation 55, which allows trial judges to recharacterize the charges confirmed by pre-trial judges.120 The respondent opined that this practice renders the confirmation process ‘meaningless’ because ‘modes of liability litigated and not found as “charged” modes of liability in the CoC process are later noticed via Regulation 55’.121 While some respondents argued for a higher standard of proof at confirmation, others thought that the confirmation of charges procedure should be abolished altogether.122 One person suggested that introducing an investigative judge into the ICC system would offer the best solution to some of the investigative and confirmation difficulties: [The top three procedural reforms:] abolish the confirmation hearing; abolish the bifurcated (even tri-furcated) trials; creation of an investigative judge. I have long been in favour of the adversarial model for ICL, but the problems with investigations at the ICC are huge, witnesses are bribed, influenced from practically all sides. I am not confident the parties can address this and at trial it is too late (cp. Kenya case). An investigative judge, in some form, can bring in the deeply needed supervision of the investigations.123

116 Prosecutor v. Bemba (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) Pre-Trial Chamber II, ICC-01/05–01/08– 424 (15 June 2009) [28]. 117 See, e.g., Respondent # 21 (proposing greater judicial control over the Prosecutor as a needed procedural reform); Respondent # 23 (arguing that ICC should ‘streamline the Pre-trial proceedings and raise the threshold bar for confirmation of charges’). 118 Respondent # 23. 119 Respondent # 16. 120 Regulations of the Court 2004, reg 55. 121 Respondent # 16. 122 Respondent # 18. 123 Respondent # 18.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

58 Jenia Iontcheva Turner Another respondent suggested that involving the defence earlier in the process would help the accused prepare to dispute unsubstantiated charges more effectively. If ad hoc counsel were assigned as soon as a new situation is opened, counsel could ‘build up the nucleus of the Defence. . . case. If then a Case opens in a Situation, the ad hoc counsel will have to hand over their case files to the newly appointed counsel for the defence’.124 Such early appointment could help secure equality of arms.125 Outside commentators echo defence attorneys’ concerns about the inefficiency and unpredictability of the confirmation process. Although the confirmation process was originally envisaged by some as a means of expediting proceedings,126 it is now widely believed to have extended and encumbered trial preparation.127 It has taken the Court on average almost one year to reach a confirmation decision after the initial appearance of the accused.128 Likewise, trials have begun, on average, more than a year and a half after a confirmation decision has been handed down, suggesting that the pre-confirmation process has not effectively narrowed the issues and expedited the proceedings.129 A number of commentators have concluded that the confirmation process is too costly and time-consuming,130 and some have called for its abolition.131 The other concern expressed by respondents—about inconsistent approaches to confirmation—is also widely shared. Scholars have commented on the disagreements among judges about the purpose of the confirmation hearing, the standard of proof, the timing and scope of pre-confirmation disclosure, and the division of responsibilities between Pre-Trial and Trial Chambers.132 124 Respondent # 22. In the same vein, see Jens Dieckmann and Christina Kerll, ‘Representing the “General Interests of the Defence”: Boon or Bane?—A Stocktaking of the System of ad hoc Counsel at the ICC’ (2011) 11 Intl Crim L Rev 105, 134–35. 125 Respondent # 22. 126 See, e.g., Prosecutor v. Bemba (Decision on the Evidence Disclosure System and Setting a Timetable for Disclosure Between the Parties) Pre-Trial Chamber III, ICC-01/05–01/08–55 (31 July 2008) [15], [19]; Kai Ambos and Dennis Miller, ‘Structure and Function of the Confirmation Procedure Before the ICC from a Comparative Perspective’ (2007) 7 Intl Crim L Rev 335, 348. 127 See, e.g., Håkan Friman, ‘Trial Procedures—With a Particular Focus on the Relationship Between the Proceedings of the Pre-Trial and Trial Chambers’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (OUP 2015) 921, 930; Volker Nerlich, ‘The Confirmation of Charges Procedure at the International Criminal Court: Advance or Failure?’ (2012) 10 J Intl Crim Just 1339, 1354 (hereafter Nerlich, Confirmation of Charges Procedure); Expert Initiative (n 104) 93–95; WCRO Confirmation of Charges Report (n 29) 85–86. 128 See, e.g., Ignaz Stegmiller, ‘Confirmation of Charges, in The Law and Practice of the International Criminal Court’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (OUP 2015) 905 (hereafter Stegmiller, Confirmation of Charges); Expert Initiative (n 104) at 93. 129 Stegmiller, Confirmation of Charges (n 128) 905–06; Expert Initiative (n 104) 93. 130 Nerlich, Confirmation of Charges Procedure (n 127) 1354; Stegmiller, Confirmation of Charges (n 128) 906. 131 Christoph Safferling, International Criminal Procedure (OUP 2012) 343; William Schabas, International Criminal Court: A Commentary on the Rome Statute (OUP 2010) 735; Expert Initiative (n 104) 93–95, 100. 132 See, e.g., Triestino Mariniello, ‘Questioning the Standard of Proof: The Purpose of the ICC Confirmation of Charges Procedure’ (2015) 13 J Intl Crim Just 579, 580, 589, 595–96; Stegmiller, Confirmation of Charges (n 128) 897.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Defence Perspectives on Fairness and Efficiency 59 While there is broad consensus that Chambers employ inconsistent standards at confirmation and that the process is too lengthy, defence attorneys and other c ommentators tend to disagree on the question of whether judges have been sufficiently rigorous in filtering out charges. Whereas defence attorneys believe that judges are not sufficiently rigorous, other observers have concluded that the Pre-Trial Chambers have generally succeeded in disposing of unsupported charges at confirmation.133 In support of the latter view, commentators point out that as of May 2014, Chambers had confirmed charges against 12 suspects and declined to confirm charges against four suspects—this represents a 25 per cent declination rate, suggesting judicial rigour in reviewing the evidence.134 Furthermore, in two of the 12 cases in which charges were ultimately confirmed, the prosecution had to reconsider the initial charges filed or conduct further investigations, after judges suggested that they would not confirm the charges as originally filed.135 Pre-Trial Chambers have also reduced the temporal and territorial scope of charges in a number of cases.136 Yet some survey respondents focused instead on the Court’s failure to dispose of other arguably unmeritorious cases at confirmation137—the Ngudjolo case, which resulted in an acquittal; the cases against Ruto and Sang, which were terminated by the Trial Chamber for insufficient evidence;138 and the cases against Kenyatta and Muthaura, which were ultimately withdrawn by the Prosecutor for lack of evidence.139 These observers believe that the Court should be even stricter in its review of prosecutorial charging decisions. How one interprets these figures depends on one’s view of the Kenyan cases, which represent four of the five cases where charges were terminated or withdrawn after confirmation. The Prosecutor of the ICC has claimed that bribery and intimidation led witnesses in these cases to recant or to refuse to cooperate with the prosecution, which resulted in the ultimate termination or withdrawal of charges.140 By contrast, a number of defence attorneys believe that the prosecution failed to investigate and present to the Court credible evidence that the defendants were responsible for the crimes charged. In the end, whether or not one agrees with defence views on the effectiveness of the filtering mechanism at confirmation, it is important to take them into account as the Court considers whether and how to restructure this key stage of the proceedings.

133 Expert Initiative (n 104) 81; Nerlich, Confirmation of Charges Procedure (n 127) 1347–48. 134 Expert Initiative (n 104) 80. 135 ibid 80–81. 136 ibid 88. 137 See, e.g., Respondent # 23; see also Expert Initiative (n 104) 85. 138 Prosecutor v. Ruto & Sang (Public Redacted Version of: Decision on Defence Applications for Judgments of Acquittal) Trial Chamber V(A), ICC-01/09–01/11 (5 April 2016) [131] (reasons of Judge Fremr); [135] (reasons of Judge Eboe-Osuji). 139 Prosecutor v. Kenyatta (Notice of withdrawal of the charges against Uhuru Muigai Kenyatta) Office of the Prosecutor, ICC-01/09–02/11–983 (5 December 2014); Khan & Shah (n 8) 218–19; Respondent # 10. 140 See, e.g., Ruto & Sang [140]–[150] (reasons of Judge Eboe-Osuji) (noting that witness interference ‘impede[s] a neutral appreciation’ of the prosecution’s case).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

60 Jenia Iontcheva Turner

5. Interlocutory Appeals Another procedure that defence attorneys identified as needing reform concerns interlocutory appeals. Article 82(1)(d) of the Rome Statute provides that a party may appeal: A decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.141

In order to file an interlocutory appeal, a party must first obtain permission from the Pre-Trial or Trial Chamber that issued the impugned decision. Overall, respondents expressed dissatisfaction with the way the interlocutory appeal mechanism has operated at the ICC. A majority opined that Pre-Trial and Trial Chambers grant leave to file an interlocutory appeal too sparingly. As one attorney complained: The ICC procedure requires leave to appeal to be granted before an interlocutory appeal can be filed. All applications for leave to appeal were rejected. It did not matter whether the leave sought related to a fundamental fair trial violation as right of notice or significant defects in the form of the indictment.142

Several respondents therefore recommended reforms to the interlocutory appeal process. One suggested that parties should not need to request permission to appeal confirmation decisions.143 Others thought that the Appeals Chamber should decide whether to grant leave to appeal on interlocutory matters.144 More broadly, respondents thought the Court should grant authorization to appeal preliminary matters more frequently.145 A quick review of defence motions for leave to appeal shows that judges are in fact quite parsimonious when it comes to permitting interlocutory appeals. Out of 458 issues on which the defence sought leave to appeal, chambers granted leave for only 51 issues, yielding an average grant rate of 11 per cent.146 By contrast, chambers granted leave to the prosecution’s requests almost three and half times more often. Out of 90 issues for

141 Rome Statute 1998, art 82(1)(d). 142 Respondent # 23; see also Respondent # 18 (‘I think the leave to appeal, if necessary at all, should be decided by the A Ch. denying leave by the same TC or PTC will be easily experienced as unduly limiting appeal.’); Respondent # 21 (‘The Defence filed for leave to appeal against the Preliminary Hearing Decision and the Judge who had decided the issue also decided the leave to appeal which she rejected.’). 143 Respondent # 14. 144 Respondents ## 18, 21. 145 Respondents ## 7, 18, 23. 146 The grant rate differed widely from cases to case. In Lubanga, the defence sought leave to appeal a total of 55 issues, but judges granted the leave to appeal as to only 15 issues (yielding a grant rate of 27%). In Prosecutor v. Gaddafi and Al-Senussi, the Pre-Trial Chamber granted leave to appeal on only one out of seven issues raised by the defense, yielding a grant rate of 14%.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Defence Perspectives on Fairness and Efficiency 61 which the prosecution requested leave to appeal, chambers granted leave on 34 issues, yielding an average grant rate of 38 per cent.147 One cannot tell, simply based on these figures, whether the requests for leave to appeal by the prosecution and by the defence are equally meritorious. The defence filed almost 2.5 times more requests for interlocutory appeals than the prosecution; in those requests, defence attorneys raised on average five times more issues than did prosecutors.148 It is therefore possible that a greater percentage of defence motions failed to meet the criteria for interlocutory appeals. On the other hand, precisely because the defence tends to file more motions for interlocutory appeals, to the extent that the regime is not functioning properly, it affects the defence more frequently than the prosecution. Furthermore, some of the issues on which leave to appeal is denied, such as the confirmation of charges or the recharacterization of charges, affect the accused directly and significantly.149 Defence attorneys’ concern about the low rate of success of requests for interlocutory appeal is therefore understandable. Because Chambers grant leave for interlocutory appeals so rarely, a number of inconsistent decisions by Pre-Trial and Trial Chambers remain in place, reducing the predictability of ICC procedures. For that reason, it is not only defence attorneys, but also outside observers who have argued that leave to appeal should be granted more generously and that a separate chamber responsible for granting leave to appeal should be created.150 Respondents did not speculate what might drive the frequent rejections of requests for interlocutory appeals. Judges may not like having their procedural decisions reviewed on appeal, or they may simply believe that the defence is not raising meritorious issues. Judges may also be concerned that interlocutory appeals take up too much time. Scholars studying the ad hoc tribunals have argued that judges there restricted interlocutory appeals as a means of expediting proceedings.151 This may therefore be one area in which ICC judges, too, are limiting defence representation to promote efficiency.

147 Here, too, the grant rate varies significantly from case to case. In Lubanga, Chambers granted 63% of the prosecution’s requests for leave to appeal. 148 The defense filed 133 requests to file interlocutory appeal, while the prosecution filed 55 requests. 149 Stegmiller, Confirmation of Charges (n 128) 895; Prosecutor v. Bemba (Public Redacted Version of ‘Decision on “Defence Request for Leave to Appeal the Decision on the Temporary Suspension of the Proceedings Pursuant to Regulation 55(2) of the Regulations of the Court and Related Procedural Deadlines” ’ of 11 January 2013) Trial Chamber III, CC-01/05–01/08-2487-Red (16 January 2013) [33], [35]–[36]. 150 WCRO Expediting Proceedings Report (n 6) 52 (citing Christopher Staker, ‘Article 82: Appeal against decision of acquittal or conviction or against sentence’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (Nomos 1999) 1029, 1031); Expert Initiative (n 104) 163–64. 151 See, e.g., Maximo Langer and Joseph W. Doherty, ‘Managerial Judging Goes International, But Its Promise Remains Unfulfilled’ (2011) 36 Yale J Intl L 241, 250.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

62 Jenia Iontcheva Turner

6. Victim Participation Defence attorneys also expressed concerns about victim participation in ICC proceedings. In a departure from its predecessor international criminal courts, the ICC allows extensive victim participation at pre-trial and trial. This novel procedural framework reflects a reorientation away from a purely retributive model of justice toward a more restorative one.152 Acting through legal representatives, victims can take part during both pre-trial and trial proceedings, although most modes of participation require judicial permission. Victims’ legal representatives have been allowed to question defence witnesses at confirmation hearings, as long as victims’ personal interests would be affected by the testimony.153 At trial, victims have been permitted to make oral and written submissions, question witnesses, present and challenge evidence, and be heard as witnesses.154 If the accused is convicted, victims can also take part in the reparations proceedings.155 In part because the crimes adjudicated by the ICC have so many victims, the process of determining who qualifies as a victim participant has proven difficult, lengthy, and costly.156 Victim applications must be reviewed by the Registry, Chambers, and the parties, and identifying information must often be redacted.157 The process of redacting and reviewing the applications has consumed extensive resources. Commentators have criticized both the application process and the participation scheme for victims as inefficient, cumbersome, and costly.158 They have also argued that victim participation interferes with the accused’s right to a fair trial, for two principal reasons: 1) it taxes the already limited resources of defence counsel by requiring counsel to expend time reviewing victim applications and responding to victim submissions; and 2) it violates equality of arms by pitting the defence against multiple accusers.159 At this point, critiques of victim participation are so widespread that, as one commentator concluded, ‘alarmed accounts outweigh by far the more positive and hopeful ones’.160 It is therefore not surprising to find that a number of defence attorneys are also concerned about the practice. Roughly 27 per cent of respondents stated that victim 152 Sergey Vasiliev, ‘Victim Participation Revisited—What the ICC Is Learning About Itself ’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (OUP 2015) 1133, 1134–36 (hereafter Vasiliev, ‘Victim Participation Revisited’). 153 Christine Van den Wyngaert, ‘Victims Before International Criminal Courts: Some Views and Concerns of an ICC Trial Judge’ (2011) 44 Case Western Reserve J Intl L 475, 485 (hereafter Van den Wyngaert, ‘Victims Before International Criminal Courts’). 154 ibid 486; Vasiliev, ‘Victim Participation Revisited’ (n 152) 1133, 1164. 155 Rome Statute 1998, art 75(2). 156 Van den Wyngaert, ‘Victims Before International Criminal Courts’ (n 153) 481–82; Vasiliev, ‘Victim Participation Revisited’ (n 152) 1147–63. 157 Van den Wyngaert, ‘Victims Before International Criminal Courts’ (n 153) 481–82. 158 ibid; Vasiliev, ‘Victim Participation Revisited’ (n 152) 1138–43; Expert Initiative (n 104) 198. 159 Van den Wyngaert, ‘Victims Before International Criminal Courts’ (n 153) 495; Vasiliev, ‘Victim Participation Revisited’ (n 152) 1172; Expert Initiative (n 104) 181. 160 Vasiliev, ‘Victim Participation Revisited’ (n 152) 1139.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Defence Perspectives on Fairness and Efficiency 63 participation at the ICC violates the rights of the accused, and another 20 per cent believe that it does so ‘in some respects’. In open-ended responses, attorneys explained that the ICC has not managed victim participation properly and that victim participation exacerbates the imbalance between prosecutorial and defence resources: [M]y experience . . . is that it is a waste of time to have victims participating directly. Their contribution in the trial is slight—they merely echo the prosecution—and the resources spent on them would be better employed on the defence. Come reparations their role obviously increases. The whole victim issue is a mess in my view—and in the view of many of the judges.161 Victims’ intervention has been poorly managed. Victims counsel have often misconstrued their role as independent participants in the trial process to protect the rights of victims who deserve to have a voice in the determination of crimes perpetrated against them. Victims may be witnesses for the prosecution as well. That does not make victim counsel associates of the Prosecution in the trial proceedings. Unfortunately, victim counsel, and partisan NGO and Special interests purporting to act on behalf victims have often tainted the trial proceedings with the advancement of their activist agenda, making fair trial hard to attain.162 It has nearly reached a level of a third ‘party’ rather than expressing only views and concerns ‘where the personal interests of the victims are affected’ pursuant to Article 68(3). Meaningful participation has been lost to blanket participation.163

Other respondents also complained that the Court does not adequately test evidence of victim status or other allegations by victim participants: The representation for victims prevent[s] the case proceeding as a normal trial. In effect there are 2 prosecution counsel. The Judges can take into account victims’ wishes based upon no supporting evidence.164 Non-disclosure of details to verify if victims are authentic. No proper review of veracity of victim accounts and no action or prosecution has been undertaken against false claims. Use of intermediary organizations continues unsupervised.165

In a subsequent question, asking respondents to state the top three procedural reforms that the ICC ought to institute, three respondents suggested that the ICC should limit victim participation—for example, by not allowing victims to take part in the pre-confirmation stage or by limiting their participation to the reparation stage.166 Victim participation therefore appears to be an important reform priority among defence attorneys, just as it is among ICC commentators and judges.

161 Respondent # 10. 162 Respondent # 23. 163 Respondent # 16; see also Respondent # 14 (‘They usually work like a second prosecutor which impinges on the right to equality of arms.’). 164 Respondent # 21. 165 Respondent # 13. 166 Respondents ## 10, 14, 21.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

64 Jenia Iontcheva Turner

IV. The Future of Managerial Judging and Procedural Fairness in International Criminal Procedure Efficiency has become a common refrain in the administration of international criminal justice. Yet the survey of ICC defence attorneys suggests that, for the most part, judges have not elevated efficiency above other values in the criminal process. To the extent that a focus on efficiency has impaired defence representation, this has been primarily the result of administrative, not judicial decisions.167 While defence attorneys do not believe that judicial managerialism is threatening defence rights at the ICC, they express concern about other procedural decisions. In the defence’s view, judges have not done enough to filter out unsubstantiated charges, ensure prompt and comprehensive disclosure, permit interlocutory appeals, or limit victim participation. More broadly, defence attorneys believe that the Court could do more to provide equality of arms between the parties. Similar critiques have been made by academic commentators and international judges and are not idiosyncratic defence views. To address some of the problems identified by defence attorneys, international criminal courts need to ensure that sufficient resources for defence investigations and representation are made available. When it comes to the ICC, given the emphasis on cost-cutting across the Court, including in the prosecution and victim support sections, it is unlikely that legal aid would be increased significantly in the near future. Still, the main takeaway from the defence survey is that the ICC—and other international courts dealing with similar funding conundrums—could take other measures that help promote equality of arms between the parties while not consuming additional resources. In fact, many of the measures proposed by defence attorneys—filtering out weak charges more aggressively, ordering earlier and broader disclosure by the prosecution, and limiting victim participation—can be pursued consistently with an emphasis on efficiency. Consider first the idea that judges could do more to manage the confirmation process and filter out unsubstantiated charges. A number of commentators have put forth similar proposals to promote efficiency at the ICC. For example, two recent expert reports on expediting ICC proceedings advocated that chambers should ‘more actively seek to control and regulate the process of confirmation’.168 One of these reports also called on the prosecutor to ‘put in place a stricter and more critical reviewing process’.169 To allow for more effective judicial review of the charges, commentators have also urged the prosecution to develop a classification system for investigative paperwork.170 Some have 167 Defence attorneys did state that judges have unduly limited their ability to file interlocutory appeals, which is likely explained by efficiency concerns. 168 Expert Initiative (n 104) 95. 169 ibid 96. 170 ibid 10.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Defence Perspectives on Fairness and Efficiency 65 further opined that, to facilitate the review process and streamline proceedings, the prosecution should conclude investigations before the confirmation stage.171 If managerial judging takes this direction with respect to the confirmation process, it would place a heavier burden on the prosecution and benefit the defence, enhancing procedural equality between the parties.172 Another reform suggested by defence attorneys—reform of the disclosure process— could also help advance equality of arms while simultaneously enhancing efficiency. Broad prosecutorial disclosure can help to offset the limited investigative resources of the defence and ensure the fairness of the proceedings. It can also minimize disclosure disputes, which have been a key source of delay at the ICC and other international criminal courts. Commentators have argued that, to expedite proceedings, judges must push for earlier and broader disclosure and adopt uniform standards with respect to disclosure and redactions.173 Some have also argued that chambers should require the prosecution to identify how each piece of disclosed evidence relates to the charges. This would, in their view, ‘expedite proceedings and [] prepare properly for the confirmation hearing’, but also ‘ensure that the defence [is] prepared under satisfactory conditions’.174 Likewise, some experts have urged prosecutors to apply a liberal approach to disclosure and adopt a presumption of disclosing all documents, unless a good reason for withholding exists.175 How successfully the idea of liberal disclosure can be implemented at international criminal courts, however, is an open question. A main source of disclosure delay has been the difficulty of ensuring witness protection, which remains a vexing problem.176 In light of these challenges, an efficiency-oriented judge may choose to postpone ordering disclosure that is not strictly related to the confirmation of charges until after the confirmation hearing, so as to avoid the delays associated with redactions and other forms of witness protection.177 It is therefore possible to envision a managerial judge streamlining disclosure in a way that undercuts equality of arms. At this point, however, 171 See, e.g., Kaul, ICC of the Future (n 6) 111; Expert Initiative (n 104) 66; WCRO Expediting Proceedings Report (n 6) 17. 172 Because such measures may simply shift the burden to the prosecution, further study is needed to determine whether they will in fact advance the Court’s efficiency. It is also worth noting that reform of the confirmation process in the name of efficiency could take other shapes, which would not advance equality of arms. For example, judges could begin limiting the presentation of witnesses at confirmation and encourage the parties to rely more heavily on written evidence and summaries of evidence. Megan Fairlie, ‘The ICC Can Still Learn from the History of Written Witness Statements in International Criminal Trials . . . but Will It?’ (manuscript on file with author); Expert Initiative (n 104) 23. This would restrict the defence’s ability to challenge the prosecution’s evidence and contest the charges during confirmation. It would also delay disclosure of most evidence until after confirmation, leaving defence teams even less time to review it. 173 See, e.g., Expert Initiative (n 104) 15. 174 Van der Vyver, Time Is of the Essence (n 7) (citing Bemba (n 154) [72]). It remains highly disputed whether these in-depth analysis charts in fact advance efficiency. 175 Expert Initiative (n 104) 105. 176 WCRO Confirmation of Charges (n 29) 121; Whiting, ‘Dynamic Investigative Practice’ (n 30) 179–82. 177 cf WCRO Confirmation of Charges (n 29) 32.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

66 Jenia Iontcheva Turner most commentators tend to agree with the defence that more liberal disclosure at the ICC is both feasible and likely to expedite proceedings.178 Another area of concern to the defence is the broad interpretation of victim participation in ICC proceedings. Many defence attorneys dislike the current model of victim participation because it requires the defence to respond to multiple opponents at the same time and drains defence resources. Many also believe that victim participation has become too unwieldy and interferes with the right to an expeditious trial, and this is a concern shared by outside commentators and ICC judges. Here again, the proposals for limiting victim participation in the proceedings—for example, streamlining the victim application process, restricting the modes of victim participation, or more drastically, limiting victims’ involvement to just the reparations stage—may help bring the process closer to procedural parity between the defence and the prosecution, while also expediting the proceedings and reducing costs. In brief, when judges take measures to expedite proceedings at international criminal courts, a number of these measures could benefit the defence. Contrary to previous scholarly predictions, at least some forms of managerial justice could be reconciled with equality of arms. As the push for efficiency unfolds at the ICC, we are likely to see the prosecutor and the defence each advocating for judges to manage the proceedings in a fashion that does not impinge on their respective rights and interests.179 While standard theory predicts that the defence has the most to lose from a managerial approach to judging, the early experience of the ICC suggests that the picture is not so straightforward. Managerial judging, if coupled with a concern for equality of arms, can limit prosecutorial activity and aid the defence, while also ensuring an efficient process.

178 Expert Initiative (n 104) 105. 179 See John Jackson and Yassin M’Boge, ‘The Effect of Legal Culture on the Development of International Evidentiary Practice: From the “Robing Room” to the “Melting Pot” ’ (2013) 26 Leiden J Intl L 947, 965.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

chapter 3

N eith er H er e nor Th er e The Position of the Defence in International Criminal Tribunals Dov Jacobs1

‘She had a magic looking-glass, and she used to stand before it, and look in it, and say, ‘Looking glass upon the wall, who is fairest of us all?’ And the looking-glass would answer, ‘You are fairest of them all’. And she was contented, for she knew that the looking-glass spoke the truth’. Snow White and the Seven Dwarves, Grimm Brothers, 1812

I. Introduction: The Symbolic Inclusion of the Defence The Nuremberg Trial was premised on the idea that the crimes committed by the Nazis should be dealt with through law, in order to provide what was perceived as a civilized answer to the barbary that had been perpetrated.2 In his opening statement, the prosecutor, Robert Jackson, famously considered that:

1 Dr Dov Jacobs is an assistant Professor of International Law at Leiden University and Trial Lawyer at the International Criminal Court. All views expressed here represent solely the views of the author and not the institutions he works for. All my gratitude goes to the editors of this volume for their patience and crucial input into making this chapter readable. 2 This legal approach to war crimes was by no means shared unanimously by the Allies. While apparently the US was strongly in favour of fair trials, Churchill was in favour of summary executions and Stalin favoured trials as a useful tool for propaganda.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

68 Dov Jacobs The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.3

It is beyond the scope of this chapter to question the false link drawn by Jackson between law and reason, which clearly ignores the function of the law as an instrument of power. But it is interesting to note that this illusion of the political neutrality of law (and more particularly of international criminal law) has plagued international criminal justice since Nuremberg and has led a number of international tribunals to claim to function in an imaginary realm disconnected from the political realities in which they operate. What is interesting to note here for the purposes of this chapter is that this attachment to law implied, at least officially, an attachment to the rights of the accused. Indeed, in his opening statement at Nuremberg, Robert Jackson went on to explain: If these men are the first war leaders of a defeated nation to be prosecuted in the name of the law, they are also the first to be given a chance to plead for their lives in the name of the law. . . . Despite the fact that public opinion already condemns their acts, we agree that here they must be given a presumption of innocence, and we accept the burden of proving criminal acts and the responsibility of these defendants for their commission.4

For Robert Jackson, respect for the rights of the accused was all the more necessary in order to contrast with the practice during the Nazi regime itself: ‘But they do have a fair opportunity to defend themselves—a favor which these men, when in power, rarely extended to their fellow countrymen’.5 Indeed, denial of the principle of legality is a common feature of totalitarian regimes, and the Nazi regime was no exception, with the 1935 Penal Code providing for a person to be punished based on the fact that they would be ‘deserving of punishment according to the fundamental idea of a penal law and the sound perception of the people’.6 3 Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, vol 2 (International Military Tribunal 1947) 98ff, accessed 26 December 2018 (hereafter Jackson, IMT Opening Statement). 4 ibid 102. 5 ibid. 6 ‘Whoever commits an action which the law declares to be punishable or which is deserving of punishment according to the fundamental idea of a penal law and the sound perception of the people, shall be punished. If no determinable penal law is directly applicable to the action, it shall be punished according to the law, the basic idea of which fits it best’. Amendment to s 2 of the German Penal Code, enacted by the National Socialist regime in 1935. Translation by Lawrence Preuss (Lawrence Preuss, ‘Punishment by Analogy in National Socialist Penal Law’ (1935–1936) 26 Journal of the American Institute of Criminal Law and Criminology 847).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Neither Here nor There 69 Since Nuremberg, all other international tribunals have recognized, in principle, the importance of the respect for the rights of the defence. The statutes of these tribunals all formally recognize a series of rights for the defence. As for the principle of legality, while it was not explicitly enshrined in their statutes, it was considered that it should be applied. For example, the UN Secretary General Report on the creation of the ICTY claimed without any ambiguity that ‘the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law’.7 This pronouncement was followed by some recognition of the principle in the case law of the Tribunal.8 Similarly, the Appeals Chamber of the Special Tribunal for Lebanon noted that the principle of legality, which is in many ways the cornerstone for the protection of the rights of the defence, was to be considered as a jus cogens norm of international law.9 Finally, the Rome Statute for the International Criminal Court formally includes the principle of legality.10 It would therefore appear that from Nuremberg to Rome and beyond, there has been an increased recognition of the principle of legality by international criminal jurisdictions, or, to put it in the words of the late Antonio Cassese, first President of the ICTY, and arguably one of the founding fathers of international criminal law (ICL), ‘after the Second World War the doctrine of substantive justice . . . was gradually replaced by that of strict legality’.11 More generally, respect for the rights of the defence seems to be an accepted aspect of the work of international criminal tribunals. However, when analyzed in their globality, the practice of ICL and discourses surrounding this practice show that there is a constant ‘balancing away’12 of the rights of the defence. This ‘balancing away’ is made possible when one understands that respect for the rights of the accused is seen by many, not only as one of the objective of the international justice system, but as one amongst many means to ensure the legitimacy of the project. This has an obvious downside: the rights of the defence are being constantly balanced with other claimed objectives of international criminal justice upon which its legitimacy is also constructed, such as the fight against impunity or the recognition of the suffering of victims. This generally leads to the balancing away of the rights of the 7 Report of the UN Secretary-General Pursuant to Paragraph 2 of Security Council Res 808, UNSCOR, UN Doc S/25704 (1993) para 34. 8 For an overview of the relevant case law, see Kenneth S. Gallant, The Principle of Legality in International and Comparative Law (CUP 2009) 304–08. For examples of the, somewhat scant, specific reference to the strict construction of legal statutes, see William A. Schabas, ‘Interpreting the Statutes of the ad hoc tribunals’ in Lal Chand Vohrah and others (eds), Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (Kluwer Law International 2003) 847, 850. 9 Prosecutor v Ayyash and others (Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging) STL-11–01/I, (16 February 2011) (STL, Appeals Chamber) para 76 (hereafter Prosecutor v Ayyash (Appeal Decision on the Applicable Law)). 10 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, UN Doc A/CONF.183/9 (in force 1 July 2002), art 22 (hereafter Rome Statute 1998). 11 Antonio Cassese, International Criminal Law (2nd edn, OUP 2008) 40 (hereafter Cassese, ICL). 12 Mirjan Damaška, ‘Reflections on Fairness in International Criminal Justice’ (2012) 10(3) J of Intl Crim Justice 611, 615.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

70 Dov Jacobs defence on a number of levels that will be explored in the remainder of this chapter: the foundational balancing away (II), the procedural balancing away (III), the institutional balancing away (IV), and finally the systemic balancing away (V). This analysis will lead us to some concluding thoughts on the role of the defence in international criminal proceedings (VI).

II. The Foundational Balancing Away of the Defence The foundational balancing away of the defence in international criminal law operates more particularly in three ways: through customary law determination, through teleological interpretation, and through the taking into account of the moral condemnation of the conduct.

A. Customary Law as a Vehicle for Moral Condemnation The most common way that international tribunals have introduced moral consider ations in their reasoning is through the process of establishing the existence of customary rules of international criminal law.13 As is well known, one of the difficulties in determining the existence and the exact content of a customary norm is the fluctuating weight given to State practice and opinio juris. This is not a novel problem. The fact that international tribunals vary in their consideration of the importance of State practice and opinio juris has been widely discussed in the literature and explanations have been put forward to explain it. One popular explanation is that there is a moral sliding scale according to which the more morally charged the issue is, the more likely courts are susceptible to relying on opinio juris and ignore State practice to the contrary.14 A more accurate way of presenting this sliding scale is that it depends not on an objective moral dimension of the issue, but on the judge’s own subjective evaluation of its morality. This approach ultimately leads to the confusion between opinio juris and moral condemnation, and therefore to a conflation of moral condemnation and criminalization, to the point where one can hardly speak of a process of customary law formation and we 13 This part relies on work published by the author in Dov Jacobs, ‘International Criminal Law and Legal Positivism’ in Jean d’Aspremont and Jörg Kammerhofer (eds), International Legal Positivism in a Post-Modern World (CUP 2014) 451 (reprinted with permission) (hereafter Jacobs, ‘ICL and Legal Positivism’). 14 See Frederic L. Kirgis, ‘Custom on a Sliding Scale’ (1987) 81 American J of Intl L 146. And for a more recent conceptualization, Anthea Elizabeth Roberts, ‘Traditional and Modern Approaches to Customary International Law: A Reconciliation’ (2001) 95 American J of Intl L 757.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Neither Here nor There 71 are faced with a traditional natural law argument. While it is perfectly legitimate that moral considerations be considered when determining the coming into existence of a customary norm, as with any other legal norm, it is less legitimate for judges to substitute their own moral evaluation in their determination of the existence of a customary norm. Examples of this abound in the case law of international tribunals. In Tadic, the Appeals Chamber, when considering the application of prohibitions of certain means and methods of warfare to non-international armed conflicts, adopted the following reasoning: Indeed, elementary considerations of humanity and common sense make it preposterous that the use by States of weapons prohibited in armed conflicts between themselves be allowed when States try to put down rebellion by their own nationals on their own territory. What is inhumane, and consequently proscribed, in inter national wars, cannot but be inhumane and inadmissible in civil strife.15

This claim, as a basis for prohibition, is hardly reconcilable with any of the requirements of the customary law process. In the following paragraphs the Appeals Chamber gave only a handful of examples of alleged opinio juris, which mostly related to the reaction of the European Union and the US to the use of chemicals weapons against the Kurds in Iraq, and could not possibly be indicative of a general view of a sufficient number of States. The only example of State practice given is a 1972 Nigerian Supreme Court decision that related only to perfidy.16 This is undoubtedly a weak demonstration of the existence of a customary norm, but even this minimal effort is sometimes completely absent. For example, in Kupreskic, the Trial Chamber, found that the Martens Clause17 illustrated the fact that ‘principles of humanitarian law may emerge through a customary process under the pressure of the demands of humanity or the dictates of public conscience, even where State practice is scant or inconsistent’18 and then applied it to the question of reprisals against civilians. It should be noted that the Trial Chamber earlier rejected the direct application of the Martens Clause as a source of ICL.19 This practice of nominal adherence to traditional criteria of customary international law has been 15 Prosecutor v. Duško Tadić (Decision on the Defence motion for interlocutory appeal on jurisdiction) IT-94–1, (2 October 1995) (ICTY, Appeals Chamber) para 119 (hereafter Prosecutor v. Tadić (Appeal Decision on Jurisdiction)). 16 ibid 125. 17 This clause was introduced in the 1899 Hague Convention on the Customs of War on Land and states that: ‘Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience’. 18 Prosecutor v. Kupreškić and others (Judgment) IT-95-16-T, (14 January 2000) (ICTY, Trial Chamber) para 527. 19 ibid para 525.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

72 Dov Jacobs noted in the literature,20 and, as pointed out by Robert Cryer, this illustrates the fact that international tribunals, while adopting a natural law perspective, usually veil it in a positivist reasoning.21

B. Interpreting International Criminal Law and the Fight against Impunity Another way in which the defence is balanced out on a foundational level is by the use of a teleological interpretation of international criminal instruments through the lens of the ‘fight against impunity’, by referring to the traditional tool of the ‘object and purpose’ dimension of treaty interpretation under Article 31 of the Vienna Convention on the Law of Treaties. I have argued elsewhere why Article 31 of the Vienna Convention should be excluded altogether as an interpretative framework for the Rome Statute because, among other reasons, the Rome Statute provides in its Article 25 a lex specialis rule of interpretation.22 What is interesting to note here is that reference to the object and purpose of a statute creates particular difficulties in relation to the principle of legality. For many advocates of ICL, the rationale behind the creation and development of international criminal tribunals is to prosecute those responsible for those acts that shock the conscience of mankind, therefore putting an end to impunity. ICL illustrated, according the ICTY Appeals Chamber, the move from a sovereignty-based approach to international law to a human rights-based approach to international law.23 As a result, the philosophy of ICL is geared towards victims, as shown by the increased recognition of the rights of victims in international criminal tribunals.24 The case could therefore certainly be made that this ultimate ambition of ICL should be taken into account in the interpretation of the statutes, under the heading of ‘object and purpose’. However, this will necessarily contradict one of the core components of the principle of legality, that of strict construction. Indeed, simply put, while the claimed object and purpose of the Rome Statute might justify an expansive reading of the crimes within its jurisdiction, in order to protect more victims, the rule of strict interpretation on the contrary must be considered as requiring that the crimes be defined narrowly to protect the rights of the accused.25 While some might argue that the rule of strict interpretation should be seen as a last resort rule of interpretation, when all other rules 20 See e.g., Larissa van den Herik, ‘The Decline of Customary International Law as a Source of International Criminal Law’ in Curtis Bradley (ed), Custom’s Future: International Law in a Changing World (CUP 2016) accessed 26 December 2018. 21 Robert Cryer, ‘The Philosophy of International Criminal Law’ in Alexander Orakhelashvili (ed), Research Handbook on the Theory and History of International Law (E. Elgar 2011) 232, 250. 22 Jacobs, ‘ICL and Legal Positivism’ (n 13). 23 Prosecutor v Tadić (Appeal Decision on Jurisdiction) (n 15) 55. 24 Carsten Stahn, Hector Olasolo, and Kate Gibson, ‘Participation of Victims in Pre-Trial Proceedings of the ICC’ (2006) 4 J of Intl Crim Justice 219. 25 On this, see Darryl Robinson, ‘The Identity Crisis of International Criminal Law’ (2008) 21 Leiden J of Intl L 925.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Neither Here nor There 73 of interpretation fail, which would indeed be consistent with the way it is presented in the case law of international tribunals,26 I would argue that this approach is not consistent with the provision of the Rome Statute itself, which clearly puts forward the rule of strict interpretation as the primary and sole rule of interpretation. Beyond the question of the strict interpretation of the definition of criminal offences, there is often a balancing away of the interests of the defence in the practice of the tribunals in favour of other interests, such as the ‘fight against impunity’. An illustration can be given of this tension: the question of the recharacterization of facts at the ICC. The Rome Statute provides for a detailed framework on what the charges against an accused should contain and, more specifically, about what organ of the court has the responsibility to determine the legal qualification of the facts and how it might change them. In a nutshell, while there is some flexibility for changing the charges in the pre-trial phase, once the trial has started the only change that is possible is the withdrawal of a particular charge. At no point, either in the Rome Statute or the Rules of Procedure and Evidence, is there any mention of the possibility for judges to legally recharacterize the facts after commencement of trial.27 The legal framework is therefore clear: if the prosecutor charges a particular crime and fails to prove its constitutive elements, the accused should be acquitted, even if the evidence put forward might have proven the commission of another crime. However, the judges adopted a Regulation in the Regulations of the Court according to which: In its decision under article 74, the Chamber may change the legal characterization of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28, without exceeding the facts and circumstances described in the charges and any amendments to the charges.28

When this regulation was used for the first time in the Lubanga case and subsequently challenged by the defendant, the Appeals Chamber held that: Mr Lubanga Dyilo’s interpretation of article 61 (9) of the Statute bears the risk of acquittals that are merely the result of legal qualifications confirmed in the pre-trial phase that turn out to be incorrect, in particular based on the evidence presented at the trial. This would be contrary to the aim of the Statute to ‘put an end to impunity’ (fifth paragraph of the Preamble). The Appeals Chamber is of the view that a principal

26 See e.g., Prosecutor v. Ayyash (Appeal Decision on the Applicable Law) (n 9) para 32; Prosecutor v. Katanga (Judgment pursuant to article 74 of the Statute) ICC-01/04–01/07, (7 March 2014) (ICC, Trial Chamber II) para 53. 27 For a detailed account of this framework see Dov Jacobs, ‘A Shifting Scale of Power: Who is in Charge of the Charges at the International Criminal Court?’ in William A. Schabas, Niamh Hayes, and Yvonne McDermott (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate 2013) accessed 26 December 2018 (hereafter Jacobs, ‘Shifting Scale of Power’). 28 ICC, Regulations of the Court, adopted by the judges of the Court on 26 May 2004, 5th Plen Sess, ICC Official Documents ICC-BD/01-01-04, reg 55.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

74 Dov Jacobs purpose of Regulation 55 is to close accountability gaps,29 a purpose that is fully consistent with the Statute.30

This reasoning finds an echo in academic literature. For example, Gilbert Bitti, also a senior legal officer at the ICC, argues that it would be contrary to the primary goal of the court, namely to end impunity, if the Trial Chamber were not able to change the legal characterization of facts.31 The tension of the Appeals Chamber’s reasoning with perceived interests of the defence is obvious. Whereas the application of the statutory framework would lead to the acquittal of the defendant, the reference to the goal of ICL by the judges has been used as a justification to adopt a regulation that disfavours the accused. However, one can wonder whether such a broad teleological approach can be an adequate legal justification for a statutory provision. It could justify adopting any number of measures that would reduce ‘impunity gaps’ to the detriment of the rights of the accused, whether in the interpretation of crimes or the determination of the applicable procedural framework. The question, therefore, ought not to be whether a provision is in conformity with the objectives of the statute, but rather whether those objectives allow for its adoption. In this sense, it is unlikely that such a polymorphous and indeterminate notion as ‘the end of impunity’ can specifically justify the creation of any new legal provision.32

C. The Ultimate Balancing Away on the Basis of Moral Condemnation As noted previously, the Nuremberg trial was presented as a model for a legal (and therefore, in the eyes of Jackson, a reasonable) answer to the commission of mass atrocities, with a corresponding respect for the presumption of innocence and the rights of the defence. However, the reality of the Nuremberg trial showed that there was 29 The Appeals Chamber inserted here some reference to academic literature on the purpose of the challenged Regulation, which is rather surprising. Indeed, given the fact the Regulations of the Court were adopted by the judges themselves, you would expect that they would not need to resort to outside sources to determine the purpose of the regulation. 30 Prosecutor v. Thomas Lubanga Dyilo (Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled ‘Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court’) ICC-01/04–01/06 OA 15 OA 16, (8 December 2009) (ICC, Appeals Chamber) para 77. 31 Gilbert Bitti, ‘Two Bones of Contention Between Civil and Common Law: The Record of the Proceedings and the Treatment of Concursus Delictorum’ in Horst Fischer, Claus Kress, and Sascha Rolf Lüder (eds), International and National Prosecution of Crimes Under International Law (Spitz 2001) 272, 287. See also, Carsten Stahn, ‘Modification of the Legal Characterization of Facts in the ICC System: A Portrayal of Regulation 55’ (2005) 16 Crim L Forum 1, 3. 32 Jacobs, ‘Shifting Scale of Power’ (n 27) 205–22.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Neither Here nor There 75 an immediate balancing away of the defence on the basis of the moral condemnation attached to the gravity of the crimes committed, crimes which involved ‘moral as well as legal wrong’, to the point where their authors are set aside from humanity as a consequence.33 Indeed, Jackson insists on the fact that it is the accused ‘abnormal and inhuman conduct which brings them to this bar’, rather than the fact that ‘they yielded to the normal frailties of human beings’.34 The moral condemnation of the acts also found its way in the judgment itself, where the judges took a position on the principle of legality that negated its application: In the first place, it is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.35

Since then, international criminal law case law has often witnessed the further balan cing away of fundamental rules relating to the rights of the defence on the basis of the requirement of taking into account the moral condemnation surrounding international crimes. Examples abound, such as the seminal Tadić judgment previously mentioned above. Another example: in the Čelebići judgment, the Trial Chamber found: It could be postulated, therefore, that the principles of legality in international crim inal law are different from their related national legal systems with respect to their application and standards. They appear to be distinctive, in the obvious objective of maintaining a balance between the preservation of justice and fairness towards the accused and taking into account the preservation of world order.36

This is a perfect example of balancing away of the defence: how can the rights of the defence be any match to the ‘preservation of world order’? Moreover, this has a practical impact on the perception of the role of the defence in the proceedings: if the rights of the defence are to be balanced with the ‘preservation of world order’, it follows that a defendant (or his counsel) advocating for a better respect of the rights of the accused could automatically be perceived as going against world order. 33 Jackson, IMT Opening Statement (n 3) 102. 34 ibid. 35 Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, vol 22 (International Military Tribunal 1947) 462. Cassese has noted that ‘when dealing with ex post facto law, the IMT was rather reticent and indeed vague, as is apparent from, inter alia, the glaring discrepancy between the English and the French text of the judgment’ (Antonio Cassese, The Human Dimension of International Law (OUP 2008) 460), noting in the footnote that the French version of the judgment does not go as far as to claim that the maxim has no application at all. 36 Prosecutor v. Mucić and others (Judgment) IT-96-21-T, (16 November 1998) (ICTY, Trial Chamber) paras 403–05.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

76 Dov Jacobs Interestingly, the moral condemnation surrounding international crimes is such that scholars traditionally associated with a more or less classical positivist tradition of international legal theory have shown a willingness to move away from it when it comes to international prosecutions. For example, Hans Kelsen, commenting on the Nuremberg judgment, acknowledged that the Tribunal had created ex post facto law, but considered that the moral gravity of the acts of the accused allowed for the punishment nonetheless because ‘to punish those who were morally responsible for the international crime of the Second World War may certainly be considered as more important than to comply with the rather relative rule against ex post facto laws, open to so many exceptions’.37

III. The Procedural Balancing Away of the Defence The position of defence counsel within the daily procedural life of international tribunals will always be a difficult one. Indeed, while their primary function is to protect the interests of his client, this is done by keeping the institution in check. This applies both in relation to the prosecutor, which is an organ of the court, and in relation to the judges. Defence rights are a shield against the arbitrariness of judicial decision-making and mistakes in the prosecution case. As a result, the defence will always be seen as being in opposition to the institution, rather than as part of it. What is important to note is that the idea that the rights of the defence can be balanced with other identified interests also finds its way in procedural considerations. Indeed, there are two ways to approach procedure. The first way, which is rather radical, is to see the function of criminal procedure as having one sole purpose: that of ensuring that the trial is fair for the accused. Under this approach, the protection for the rights of the defence is the sole yardstick of determination of the adequacy of a procedural rule and of the evaluation of whether it is being applied correctly. Any other interest should therefore give way to the rights of the defence, in case of a contradiction or doubt. This approach, however, is far from dominant. The second way is to see procedure as ensuring that various (sometimes competing) interests, among which the rights of the defence are but one, are taken into account. Under this approach, the judges are constantly in the process of balancing interests. In practice, this is often done to the detriment of the accused. 37 Hans Kelsen, ‘Will The Judgment In The Nuremberg Trial Constitute A Precedent In International Law?’ (1947) 1(2) Intl L Q 153, 165. This statement is however less surprising in the context of Kelsen’s writings in the area of international law, more particularly ICL and peace, where he more readily made concessions on his usual approach to positivism. On this issue, see Andrea Gattini, ‘Kelsen’s Contribution to International Criminal Law’ (2004) 2 J of Intl Crim Justice 795; Danilo Zolo, ‘Hans Kelsen: International Peace through International Law’ (1998) 9 Eur J of Intl L 306.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Neither Here nor There 77 Indeed, this is due to the fact that procedure is often seen by outsiders—and sometimes even by insiders—as a cold bureaucratic framework meant to obscure the conduct of the trial. However, procedure is not a technicality. It is a societal normative and moral choice to protect the rights of the accused through a fair and equitable procedure. As noted by German scholar Rudolph Jhering: ‘Form is the sworn enemy of arbitrariness, the twin sister of liberty’.38 It should be noted more generally that one reason for the balancing away of the procedural rights of the defence is the increased recognition of equivalent fair trial rights to other protagonists of the trial, namely victims and the prosecutor.39 While there are serious conceptual doubts at extending individual human rights to institutional entities such as the prosecution, it is now commonly done in international tribunals. A recent illustration can be found in the Bemba appeals judgment, where the President of the ICC, in a separate opinion, found that: ‘Perhaps, it is also to be kept in mind, in this connection, that the right of fair trial is a neutral right enjoyed at the ICC by the defendants, the Prosecution and the victims’.40 It would be beyond the scope of this chapter to provide a systematic overview of international criminal procedure. However, it is noteworthy that the trend in international criminal justice, despite the particularities of the field,41 follows a trend that can be seen in many domestic systems, that of a transactional one that treats the criminal trial as if it were a civil one opposing equal parties to a cause, as illustrated by the above cited quote in the Bemba appeals judgment.42 This is particularly true given the increased consideration for victims’ rights that changes the dynamics of the procedure. Frédéric Mégret argues, in that respect, that because there is a call for ‘repression in the name of human rights’, human rights have ‘lost even more of [their] ability to firmly arbiter fundamental issues of procedure’.43 One could even argue that, symbolically, the problem goes even deeper than simple balancing. Indeed, while the rights of the defence are traditionally understood, as all human rights, as a vertical protection against the arbitrariness of the State, their exercise by the accused in a horizontalized criminal procedure is seen as being a protection directly against the victims and their right to justice. Presented in those terms, this is a debate the accused can obviously never win, because the raison d’être of his rights—protection against abuse of power or arbitrariness— is completely removed from the conversation. 38 As quoted by Frank Montag in ‘19th Annual Antitrust Symposium: Keynote Panel Discussion’ (2016) 23(5) George Mason L Rev 1107, 1110. 39 On this, see Yvonne McDermott, ‘Rights in Reverse: A Critical Analysis of Fair Trial Rights under International Criminal Law’ in William A. Schabas, Niamh Hayes, and Yvonne McDermott (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate 2013) 165. 40 Prosecutor v. Bemba Gombo (Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s ‘Judgment pursuant to Article 74 of the Statute’), Concurring Separate Opinion of Judge Eboe-Osuji, ICC-01/05–01/08-3636-Anx3, (14 June 2018) para 51. 41 Frédéric Mégret, ‘Beyond Fairness: Understanding the Determinants of International Criminal Procedure’ (2009) 14 UCLA J of Intl L and Foreign Affairs 37 (hereafter Mégret, ‘Beyond Fairness’). 42 On this, see e.g., George Fletcher, ‘A Transaction Theory of Crime’ (1985) 85 Columbia L Rev 921. 43 Mégret, ‘Beyond Fairness’ (n 41) 57.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

78 Dov Jacobs Three notable examples of the balancing away of the accused from a procedural perspective will be discussed here.

A. The Participation of Victims44 A significant change in international criminal tribunals has been the introduction of victim participation in the trial proceedings and victim reparations. This evolution that started at the ICC, was also followed at the Special Tribunal for Lebanon (STL), the Extraordinary Chambers in the Court of Cambodia (ECCC) and more recently the Kosovo Specialist Chambers.45 As such, there is no reason, a priori, to think that this development is a problem from the point of view of the defence. Indeed, the provisions on victim participation as framed in the founding documents of these tribunals tend to prioritize the rights of the defence over victim participation. For example, in the Rome Statute, Article 68(3) provides that: Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

Clearly, a choice was made not to refer to victims ‘rights’, as compared to the ‘rights’ of the accused in Article 67,46 and some safeguards are provided to circumscribe victim participation: it is at the judges’ discretion, when it is demonstrated by the victims that their personal interests are affected and most importantly, when such participation is not detrimental to the rights of the accused. Equivalent safeguards can be found in the statutes of the STL and the Kosovo Specialist Chambers. In practice, things at the ICC have turned out very differently. The case law has developed in a way that the legal representative of victims (LRV) has been authorized by 44 This part relies on part of the author’s already published chapter Dov Jacobs, ‘A Tale of Four Illusions’ in Colleen Rohan and Gentian Zyberi, Defense Perspectives on International Criminal Justice (CUP 2017) (reprinted with permission) (hereafter Jacobs, ‘Tale of Four Illusions’) 45 A lot has been written about these procedures. See e.g., Christine Chung, ‘Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?’ (2008) 6 Northwestern J of Intl Human Rights 459–545; Christine Van den Wyngaert, ‘Victims before International Criminal Courts: Some Views and Concerns of an ICC Trial Judge’ (2011) 44 Case Western Reserve J of Intl L 475; Cherif Bassiouni, ‘Victim’s rights and Participation in ICC Proceedings and in Emerging Customary International Law’ in Richard Steinberg (ed), Contemporary Issues Facing the International Criminal Court (Brill 2016) 233. 46 See contra the Statute of the Special Tribunal for Lebanon that, while reproducing verbatim the Rome Statute provision on victim participation (Article 17), includes it in a Part III entitled ‘Rights of Defendants and Victims’, suggesting that at the STL the rights of the defence and the rights of victims are on the same level. Statute of the Special Tribunal for Lebanon, UN Doc S/Res/1757(2007), Annex, accessed 12 October 2019.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Neither Here nor There 79 judges to participate in virtually every stage of the proceedings, from the situation phase to pre-trial, trial, and appeal. The LRV has been granted permission to give opinions in the context of fitness to stand trial and provisional release proceedings. Procedurally, victims have a right to examine witnesses, present their own witnesses and evidence, and they have sometimes been granted automatic access to all confidential material in the cases. Essentially, judges have rendered the conditions of Article 68(3) meaningless by considering that the personal interests of victims were affected simply by any outcome of any judicial decision—rather than looking for an autonomous interest that might be at play—that by definition creates a quasi-automatic right of participation. Victims have therefore de facto been upgraded to the level of a party to the proceedings. This changes dramatically the balance of the adversarial system because the defence is in most cases faced with a second ‘prosecutor’ (the LRV), which, in addition, sometimes does not agree with the actual prosecutor. This situation exists despite the fact that judges themselves have claimed that the LRV should not act as a second prosecutor.47 Interestingly, in the Internal Rules of the ECCC, there is an explicit recognition of the ‘prosecutorial’ role of the civil parties: ‘The purpose of Civil Party action before the ECCC is to: a) Participate in criminal proceedings against those responsible for crimes within the jurisdiction of the ECCC by supporting the prosecution’ (rule 23(1)). Practically, this means that the defence must systematically respond to filings from victims as well as the prosecutor because the LRV is allowed to present, in addition to ‘views and concerns’ as provided for in Article 68(3), actual legal argumentation that is often taken into account by the judges and needs to be addressed by the defence. This also means that if the prosecutor gets its legal argumentation wrong in a particular circumstance (which is not unheard of at the ICC), there is always the possibility that the LRV will provide the Chamber with substitute prosecutorial arguments; a process never envisioned by the Rome Statute. Victim participation in ICC proceedings as developed by the extensive and permissive case law of the court has clearly negatively affected the rights of the defence and the balance of the criminal proceedings against the accused.

B. Evidentiary Standards International crimes are committed in complex factual situations, often in a context of civil conflict. Evidence will either be inaccessible or investigators will be able to investigate only months, sometimes years, after the occurrence of the facts, when the material evidence will either have been contaminated or disappeared altogether. As a result, in those circumstances, the type of evidence that will be collected and put forward by the prosecutor will often not be of pristine quality, especially given the high evidentiary 47 Prosecutor v. Bemba Gombo (Decision on directions on the conduct of proceedings) ICC-01/05– 01/08–1023, (19 November 2010) (ICC, Trial Chamber III) (‘victims are participants rather than parties to the trial and shall not be considered as a support to the prosecution’ para 17).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

80 Dov Jacobs standard of proof beyond reasonable doubt. Faced with this situation, international judges are faced with a difficult policy choice: either they maintain strict rules on evidence, with the consequence of increasing the likelihood of acquittals; or they loosen the rules of evidence to take into account the reality faced by prosecutors trying to investigate international crimes. The latter solution has been favoured in international tribunals. Not only have rules of admissibility been historically low despite the procedure’s commitment to adversarialism, but both the type of evidence accepted to support a conviction and the standards applied to their evaluation have been very wide.48 In relation to forensic evidence, while practice has varied from Chamber to Chamber in various international tribunals, proof of injury of death has often been accepted based purely on testimony or NGO reports, without solid scientific evidence to back it up.

C. Expeditiousness It is unoriginal to say that international criminal trials are long and expensive. Each year, representatives of international courts must present solid arguments to donors to justify the budget of the institution. This financial pressure is a constant concern in the daily bureaucratic workings of international courts. As a consequence, while it is highly problematic, it is no surprise that this concern finds its way in the judicial arena itself. This is done through a loose use of the concept of ‘expeditiousness’. While this concept can be traditionally linked to the right of the accused to be tried without undue delay, judges have developed a notion of expeditiousness that goes beyond that in the context of the trial management function of the Chamber. As a result, expeditiousness, which is a right of the accused, has often been used to limit other rights of the accused. Such a situation arose repeatedly in all international tribunals, be it at the ICTR,49 the SCSL,50 or the ICC. In the Katanga case, Trial Chamber II considered that it was justified to limit the possibility for an accused to present admissibility challenges in order to protect the interests of said accused.51 The Gbagbo trial at the ICC provides a perfect 48 Megan A. Fairlie, ‘Due Process Erosion: The Diminution of Live Testimony at the ICTY’ (2003) 34 California Western Intl L J 47; Richard May and Marieke Wierda, International Criminal Evidence (Transnational Publishers 2002) 210–18; Patricia M. Wald, ‘To “Establish Incredible Events by Credible Evidence”: The Use of Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings’ (2001) 42 Harvard Intl L J 535; Peter Murphy, ‘No Free Lunch, No Free Proof: The Indiscriminate Admission of Evidence is a Serious Flaw in International Criminal Trials’ (2010) 8(2) J of Intl Crim Justice 539; Eugene O’Sullivan and Deirdre Montgomery, ‘The Erosion of the Right to Confrontation under the Cloak of Fairness at the ICTY’ (2010) 8 J of Intl Crim Justice 511. 49 See Prosecutor v. Nyiramasuhuko and others (Decision in the matter of proceedings under Rule 15bis(D)) ICTR-98-42-T, (15 July 2003) (ICTR, Trial Chamber II). 50 Prosecutor v. Norman and others (Decision on Presentation of Witness Testimony on Moyamba Crime Base) SCSL-04-14-T, (1 March 2005) (SCSL, Trial Chamber). 51 On this, see Dov Jacobs, ‘The Importance of Being Earnest: The Timeliness of the Challenge to Admissibility in Katanga’ (2010) 23(2) Leiden J of Intl L 331, 340.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Neither Here nor There 81 illustration of this tendency. In that trial, a number of practices have been justified by the Trial Chamber solely in order to expedite the proceedings: the use of video-links in lieu of live testimony in court,52 which do not allow for the same interaction with the witness; the admission of prior recorded testimony for about 40 per cent of prosecution witnesses—in some cases under rule 68(2)(b) without the witness even being crossexamined by the defence; the over-use of bar table motions—the prosecutor in that case has asked that about 70 per cent of his documentary evidence be introduced by bar table motions53—that means that the evidence will not have been tested in court through a witness. These decisions have undoubtedly sped up the proceedings, but to the detriment of fundamental defence rights, most notably the right of the defence to challenge the evidence in court.

IV. The Institutional Balancing Away of the Defence Historically, the defence has had very little institutional recognition in international tribunals. In Nuremberg, the lack of consideration and institutional independence for the defence was such that the prosecutor did not see any problem in proposing to both nominate defence counsel and call witnesses for them, as recalled by Telford Taylor.54 The situation has evolved since then, but remains inadequate. At the ad hoc tribunals, defence issues were dealt with by a sub-office of the Registry that was also in charge of detention matters.55 There was no mechanism by which the voice of the defence could be heard within the institution. The ICTY famously provided a small room to share among defence teams and it took years for the Tribunal to gradually integrate the defence in the various discussions. This only took place after defence counsel organized under an association, the ADC-ICTY (‘Association of Defence Counsel practicing before the ICTY’), which allowed its voice to be heard. At the ICC, the same path was followed. In the founding documents (Statute and Rules of Procedure and Evidence), there is no provision giving the defence a specific voice within the institution. While the statute recognizes the prosecution as an organ of the court,56 no such recognition is afforded to the defence. The Rules merely provide that defence matters are under the responsibility of the Registry.57 It is only in the 52 Prosecutor v. Gbagbo and Blé Goudé, (Version publique expurgée des « observations de la Défense présentées à la suite de l’ordonnance de la Chambre « on the further conduct of the proceedings » du 9 février 2018 (ICC-02/11–01/15–1124) » (ICC-02/11–01/15-1157-Conf)), ICC-02/11–01/15, (2 May 2018) (Gbagbo Defence Team, Trial Chamber I) para 86. 53 ibid para 91. 54 Telford Taylor, The Anatomy of the Nuremberg Trials (Knopf 1992) 144. 55 François Roux, La Parole est à la Défense (Indigène éditions 2016) 51 (hereafter Roux, La Parole). 56 Rome Statute (n 10) art 34. 57 ICC, Rules of Procedure and Evidence (2013) Rule 20, accessed 26 December 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

82 Dov Jacobs Regulations of the Registry that the creation of a defence office was provided for.58 The existence of this defence office does not however change the fact that the defence is not given the position that it would deserve in the institution. Financially, because the vast majority of accused are declared indigent, defence teams rely on legal aid in order to function. As a result, defence teams are dependent on another section of the Registry, the counsel support section, in order to obtain the funds necessary to adequately defend their client. It should be noted that the legal aid budget represents a tiny portion of the overall budget of the ICC. As noted in a report on legal aid commissioned by the ICC Registry, legal aid represents only 3.25 per cent of the total budget of the court and 10 per cent of the budget allocated to the prosecution in 2017.59 Of course, the prosecution is faced with different responsibilities that might justify that it benefits from a more considerable budget, such as the duty to conduct preliminary examinations, gather evidence, and prove its case beyond reasonable doubt. However, these different ‘functions’ of the prosecution and the defence do not justify such a disparity. Putting aside the fact that a sizeable portion of the prosecution budget is not devoted to the core functions of the Office of the Prosecutor (OTP), such as investigations, in practice, the defence should also be in a position to investigate and constitute teams capable of supporting the workload of a trial. The balancing away of the defence is a daily, practical reality at the ICC. The new ICC building is meant to be a monument to justice for the first permanent institution dealing with the prosecution of international crimes. Its five towers stand tall in the dunes north of The Hague, city of international justice. Within these six towers, two of them are devoted to the Prosecutor. The defence was awarded a single floor on the top of the last tower. As a consequence, office space is limited. It should be noted that initially, when the ICC moved to the new building, one proposal put forward by the Registry was that there would not be any closed offices for the defence teams but only shared open spaces, which raised obvious questions of confidentiality. Another proposal was that defence teams would only benefit from an office when in trial, showing an ignorance of the work done by the defence throughout a case, irrespective of whether hearings are ongoing or not. This daily balancing away can be seen in myriads of other little ways, from the exclusion of ICC mailing lists, to the impossibility for the defence to directly book a conference room to meet groups of visitors. In such a context, it is not difficult to conclude that the defence is constantly being balanced out institutionally. There is no easy solution to this problem. The model of the Special Tribunal for Lebanon, where the defence office is recognized as an organ of the court, is often put forward as a possible model for other tribunals.60 While it is possibly an improvement on what took place at other international tribunals, it is doubtful 58 On this, see Xavier-Jean Keita, Caroline Baugas, and Geraldine Danhoui, ‘Les droits de la défense et l’égalité des armes, sous le prisme d’une institution nouvelle, le Bureau du conseil public pour la défense’ (2008) 14 African YB of Intl L 145. 59 Richard Rodgers, ‘Assessment of the ICC’s Legal Aid System’ (Global Diligence LLP, 5 January 2017) para 12 accessed 26 December 2018. 60 Roux, La Parole (n 55) 52.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Neither Here nor There 83 whether it is a transposable model: the STL was set up to essentially deal with one case, with no defendants (the trial is conducted in absentia), that makes it materially possible to centralize defence activities in one office. This will never be the case at the ICC, which deals with numerous cases in very different situations whose political context calls for a diversity of approaches. Ultimately, what is required is an institutional change of perception, that is difficult to imagine given the systemic balancing out of the defence to which I now turn.

V. The Systemic Balancing Away of the Defence61 International criminal tribunals operate in a very particular context that creates a systemic tension with any genuine consideration for the accused, and, as a consequence, for the rights of the defence. The first and most obvious feature of ICL is the nature of the crimes considered. International criminal courts have jurisdiction over those crimes that are considered to be the most egregious crimes, ‘unimaginable atrocities that deeply shock the conscience of humanity’.62 These are crimes that therefore carry a unique moral weight which serves to inversely diminish any consideration for the rights of the accused. Specifically, the crimes within the jurisdiction of international courts are usually mass crimes that, as a result, have countless victims who are seen as the beneficiaries of these trials. This constitutes a shift in the rationale of criminal law that is traditionally, at least in the western tradition, the response of society in reaction to an offence against its societal values, rather than a direct remedy to victims for their personal suffering. By putting victims at the heart of ICL, the accused does not face the objective features of the State through the prosecutor, but instead faces the subjective features of the alleged victims. It is much harder to focus on the rights of accused person in that context because those rights can now be argued not as protecting the individual against the arbitrariness of the exercise of sovereign power by the prosecuting institution, but as a means of shielding the accused from those who directly claim to have suffered from his acts. In this symbolic confrontation, the accused is likely to be denied that right. The second feature to be considered is the particular nature of international criminality. International crimes share, to a lesser or greater extent depending on the crime considered, a requirement of some form of collective action, which is usually embodied in the legal requirement of identifying the contextual element of the crime.63 War crimes 61 This part relies on part of the author’s already published chapter Jacobs, ‘Tale of Four Illusions’ (n 44). 62 Rome Statute (n 10) preamble. 63 On this, see e.g., Mark A. Drumbl, ‘Collective Violence and Individual Punishment: The Criminality of Mass Atrocity’ (2005) 99 Northwestern University L Rev 539; M. Osiel, ‘The Banality of Good: Aligning Incentives Against Mass Atrocity’ (2005) 105 Columbia L Rev 1751, 1753; M. Osiel, Making Sense of Mass Atrocity (CUP 2009).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

84 Dov Jacobs require an armed conflict; crimes against humanity require a widespread or systematic attack against any civilian population and—at the ICC at least—a State or organizational policy; genocide requires—at least at the ICC—a manifest pattern of similar conduct. The consequence of this is that, in international trials, considerable attention is devoted to establishing this context, with consideration of the actual role of the accused taking a back seat. It suffices to open any judgment of the ad hoc tribunals to note that one can go through hundreds of pages in which the factual findings are made and legal conclusions are drawn on the commission of crimes without the accused being mentioned. The structure of most international judgments is an oddity in itself. Indeed, findings on the commission of crimes are usually made with no knowledge of the direct individual perpetrators of the underlying acts, and therefore with no discussion of the intent of those direct perpetrators. While this is common practice in ICL, it is technically impossible to determine the existence of a crime, in a legal sense, without considering both the actus reus and the mens rea elements of that crime, that makes a large proportion of legal findings on the commission of crimes in international judgments inappropriate from a criminal law perspective. This leads to the third feature of ICL: the nature of the criminal responsibility. Even when the accused is considered, it is most of the time not for his direct commission of the crimes, in the traditional sense of the term ‘commission’. International defendants are usually high up in the military ranks or are individuals who held political office. They are not those who actually pulled the trigger—metaphorically speaking. Establishing their responsibility for crimes committed by others often requires adopting modes of liability that connect them to the crimes in some remote way, such as ordering, planning, or being a superior in the case of command responsibility. In addition to that, the collective nature of international criminality, as noted previously, means that ICL relies heavily on collective modes of liability, such as joint criminal enterprise at the ad hoc tribunals or indirect co-perpetration at the ICC. These modes of liability further dilute the conduct of the accused in light of the actions of the group, which is claimed to have perpetrated the crimes, that in turn makes it easier to ignore the actual conduct and/or mens rea of the accused. Under these collective modes of liability, a co-perpetrator need not actually share the particular intent to commit certain crimes and does not actually need to have knowledge of certain crimes, as long as he shares the more general intent to contribute to a common plan or the joint criminal enterprise during which one of his other co-perpetrators committed the crimes charged. As a consequence, because the conduct of the accused is diluted away in legal discussions about collective conduct, the balancing away of his rights will appear less problematic. A fourth, less legal, but no less important feature of ICL is the political context of international crimes. The label of ‘criminality’ has the effect of putting a veil over the often very political dimension of the alleged criminal conduct; for example in Sierra Leone, the fact that the corruption of the government and its rampant human rights abuses had a role in the start of the civil war. The language of ICL can have the effect to depoliticize what is almost always political violence, irrespective of its legality or illegality under international law. As a result, international tribunals also claim that they are

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Neither Here nor There 85 not making political determinations by only looking at the individual criminal responsibility of the accused. That is not true. International tribunals not only cannot avoid making findings that have political implications but have to take into account political considerations in their legal findings. First of all, a stated goal of international justice and the trials conducted in the inter national criminal courts is to provide an accurate historical record of a given conflict.64 International criminal tribunals will necessarily delve into the political history and context of the crimes; you cannot accurately write about history without describing the extant political situation. Second of all, and more importantly, a great number of international judgments, especially regarding those accused who were higher up in the hierarchy at the time of the crimes alleged, are naturally required to consider—directly or indirectly—political motives as part of the claimed collective criminal intent. Joint criminal enterprise requires proof of a common purpose, just as indirect co-perpetration requires a common plan, both of which will often be alleged to be political. The consequence of this feature is once again a dilution of the actual conduct of the accused not only in the context of collective criminal conduct, but also as to collective political conduct. Moreover, once this mixed legal/political message leaves the courtroom, there is a natural filter by which only the political dimension reaches the general public, therefore reinforcing the idea that the rights of accused during the legal proceedings are not that important. Leaving the courtroom leads us to the fifth feature, that of the media attention on the situations that international criminal courts deal with; attention that usually occurs well in advance of the court processes themselves. This necessarily taints any perception of the accused, especially when they are high ranking military commanders or well-known political figures. Most international defendants have been thoroughly ‘pre-judged’ by the media and the general public, based on the role that people understand them to have had in the State apparatus. As a result, the expectation is that there will be a conviction, and the higher the position, the higher that expectation. Who would ever expect Muammar Ghadaffi, Saddam Hussein, or tomorrow, Assad or Bashir to be acquitted? For such political figures, international trials are expected to be purely symbolic; a formal validation of what everybody thinks they already know about what they did. There is little room for concern about the rights of the accused in such a context even though no fair, valid legal system can proceed without continued concern for such individual rights. With this consideration we come back full circle to our initial point: the shift from the rights of the accused to the symbolic objectives of the international community and more particularly the interests of victims. And with this shift comes another shift, that of the general understanding of justice. The ‘justice’ of the international criminal trial is not generally measured by the fairness of the proceedings, but by the favourable outcome from the victims’ perspective. Proof of that can be found in any reaction to convictions 64 Whether international tribunals should in fact have such an ambition in the first place is a different debate.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

86 Dov Jacobs and acquittals. A conviction is often labelled by the advocates of international justice (such as NGOs and policy makers) as a ‘victory for Justice’,65 whereas you will rarely hear such claim in the event of an acquittal (other than by counsel for the acquitted person), despite the fact that an acquittal after a fair process should normally also be considered as a ‘victory for Justice’. What is ultimately worrying is that this view seems to be shared not only outside the Tribunals but also within these institutions. Indeed, while one can possibly understand the psychological and emotional desire of alleged victims to get a conviction, there is something disturbing about the fact that those who work at these institutions and produce the decisions also think in this way, because it demonstrates a bias against the accused that puts the question of the fairness of the process at a systemic level. Examples abound of this. A few years ago, an ICTY staff survey was leaked to the press and it transpired that the morale was low because there had been some acquittals in the preceding months.66 Recently, the ICTY website and Twitter account made every effort not to say that Šešelj had been acquitted, while a conviction obviously always makes the front page.67 And probably the most striking example is the poster that everyone could see in the lobby of the ICTY, which shows two sets of handcuffs, one in a rudimentary fabric—used by some perpetrators against some victims of the conflict—and one in stainless steel—to be used on ICTY defendants—with the following text: ‘Bringing perpetrators to justice and justice to victims’. This illustrates perfectly the fact that justice for the defendant means putting him in handcuffs, while the ‘real’ justice is for the victims. Moreover, beyond grand statements about the rights of the defence, this poster vehiculates a simple ‘eye for an eye’ law of talion message. Needless to say that there is little room for the rights of the defence in such a framework of analysis. Ultimately, for all the above reasons, the accused at an international criminal tribunal can only ever be peripheral to his trial, rather than be at the centre of it as should be the case, because the stakes go far beyond his mere individual criminal responsibility or lack thereof.68 The accused is but one element of a broader political, historical, and societal discussion, and this in turn diminishes his or her role in the courtroom itself and explains why, as a consequence, his individual rights are less of a concern, even though they are codified in numerous international instruments.

65 See e..g, in relation to the Taylor Judgment, Dov Jacobs, ‘Taylor Judgment: “A Victory for Justice”?’ (Spreading the Jam, 26 September 2013) accessed 26 December 2018. 66 Dov Jacobs, ‘Low Morale at the ICTY’ (Spreading the Jam, 23 August 2013) accessed 26 December 2018. 67 Dov Jacobs, ‘Is the ICTY Ashamed by its own Seselj Judgment ?’ (Spreading the Jam, 31 March 2016) accessed 26 December 2018. 68 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin Classic 2006).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Neither Here nor There 87

VI. Concluding Thoughts: Working on the Periphery as Defence Counsel This chapter draws a bleak picture of the position of the defence in international criminal law. Despite lip service to the rights of the defence, the accused and his counsel are being constantly balanced out of the equation in all aspects of the daily life of international criminal justice because, to put it simply, the stakes are too high to give too much room to the defence. This situation raises a number of questions. First of all, what does it mean for defence counsel themselves and their role within the international criminal law framework? Informal interviews69 with defence counsel unsurprisingly reveal that the vast majority are extremely critical of the ICL system and its incapacity to adequately safeguard the rights of the defence, for the reasons exposed previously. However, when challenged on their continued participation in such a system, not one of them agreed that it would be a good idea to give up, because, as one of them put it, it is always better to be inside the system fighting for its improvement than outside observing its failures. Another put it in the simplest terms possible: ‘It’s my job’. These practitioners also pointed out the real successes obtained by defence counsel over the years, in their respective cases, even leading up to notable acquittals. One defence counsel pointed out that the absence of the defence in the courtroom, whatever its weak position, will always change the dynamics of the trial. Yet, prosecution cases are often evaluated by observers of international justice in a static way, as if the defence didn’t exist. Viewed from the outside, and seen through the lens of the judgment, the prosecution case is usually found, in hindsight, to have been always good or always bad. What is missing in such an evaluation is the role that the defence might have had in changing the perception of the prosecution case. Possibly weak prosecution cases would never be revealed as such without a strong defence to test it. Second of all, one can even wonder, reflecting back, to what extent the starting premise of this chapter—that respect of the rights of the defence is not only an objective of the system, but a means to give it legitimacy—is sustainable. Indeed, while the respect for the rights of the defence is a purported concern for those working in the field of international criminal law, it might be inaccurate to claim that this respect contributes to the legitimacy of the system as a whole. Legitimacy is a relative concept that is conditioned by the expectations of observers and their priorities. In this light, it is doubtful that, apart from a handful of practitioners (most likely defence lawyers, but not only) and academics, many followers of international justice matters actually factor in the rights of the defence in their evaluation of the legitimacy of international criminal law. This finding, even if correct, should not lead to ignoring the difficulties that the system has with respecting the rights of the accused (after all, if nobody cares about them, why bother?). Indeed, even if the respect for the rights of the defence is not taken 69 Conducted by the author in the course of 2017.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

88 Dov Jacobs as an (moral/political) objective per se, what discussion and debates surrounding them reveal about the failings of the system remains true, be it in relation to poorly led investigations, inadequately proven charges, inaptly argued motions, or unsatisfactorily reasoned decisions. Given this role for the defence, it seems inevitable that it will structurally always be at the periphery of the system, on the border between inclusion and exclusion, depending on the circumstances of the case, the line of defence adopted, and the state of mind of the other participants and parties. It cannot be entirely within the system, as some would hope for by calling for the recognition of the defence as a pillar of international justice on the same level as the prosecution, lest it be burdened by the constraints that affect the system as a whole; nor can it be entirely outside the system, lest it have no impact on it whatsoever. Finally, herein lies probably the most concrete reason why the defence will always have a marginal place in international criminal justice, beyond the philosophical and systemic reasons given previously: an effective defence is a mirror that is put up to international justice’s face and that shows it what is not working. Like the Queen in the Brothers Grimm Snow White fairy tale, international justice does not want to hear that she is not the fairest of them all. However, looking away from, ignoring, or breaking the mirror will not change that fact. As long as international justice is content with basking in the illusion of its own fairness, it will never achieve any of its claimed ambitions, let alone respect the rights of the defence.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

chapter 4

Th e Cr e ation of a n A d Hoc Elite And the Value of International Criminal Law Expertise on a Global Market Mikkel Jarle Christensen

I. Introduction Scholarship on international criminal justice has been dominated by legal scholars studying the law and jurisprudence of this new field and political scientists studying how diplomacy shaped the international criminal courts and their impact. Less atten tion has been given to investigating the sociology of international criminal law and how the professional constitution of this field affects its development. This chapter investigates the creation and evolution of a new professional elite within and around the inter national criminal courts.1 By professional elite the chapter refers here to the agents able to move into senior positions, and individually exert material and symbolic influence on the development of international criminal law (ICL). Building on a wider international ization of criminal law and political investments in international institution building, this group of professionals moved from other career paths into the nascent field of ICL. Here they were joined by later elite agents and became the drivers of new institutional and legal developments and one of the primary embodiments of the institutional and symbolic authority generated in this field. The influence of this heterogeneous group that consisted of legal professionals, NGO advocates, diplomats, and academics often built on the ability to mobilize several different forms of expertise and invest it towards the promise to end impunity. 1 This project has received funding from the Independent Research Fund Denmark, the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation pro gramme, and from the Danish National Research Foundation Grant no. DNRF105.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

90 Mikkel Jarle Christensen The analysis will proceed in four parts. First, the theoretical background, method, and empirical material of the article will be presented and related to previous scholarship. Secondly, the advent of the new elite will be analyzed with a focus on what kinds of expertise were prevalent for the top professionals who moved into ICL in the 1990s. To understand the development of this elite, the chapter draws mostly on examples from its earliest practitioners in the International Criminal Tribunal for the former Yugoslavia (ICTY), the foundational institution of modern ICL, using also data on later members of this group. Thirdly, the article will analyze the construction of a field of stakeholders around ICL, and how this field depended also on the crafting of a specific symbolism that was crucial for signaling and potentially building legal authority. This symbolism also formed the basis for the consolidation of an ICL elite with positions also outside of the international criminal courts. Fourthly, the analysis will situate the elite of ICL in a larger international market for legal services in which different per spectives and ideals compete to set the agenda. In this context, the relative success of the identified elite when attempting to transfer their expertise into other professional spaces holds central clues to the perceived value of ICL on a wider global market of governance ideas and technologies.

II. Theory, Method, and Data Most professional fields are characterized by a specific division of labour between different groups who work in this space, some of which have been able to attain a more privileged positons than others. These professional agents are able to exercise power by directing the work and thinking of others. Like in most other fields, material and symbolic power within the field of ICL is not distributed evenly. The accumulation of authority and the ability to exert power sets the elite apart from other individuals over whom they exert influence. In the context of this chapter, the elite is characterized by being able to manage the labour of others within specific institutions and to shape the development of law within and beyond the international criminal courts. As such the identified elite is an integral part of the daily workings of the field, and its members hold positions that allow them to impact the practical and normative direction of its development. This sets them apart from other professionals who may have worked for decades within this field, but whose indi vidual decision-making does not directly impact the legal strategies or interpretations deployed in this space or the organization of its work. Due to their particular position in the field, understanding the composition and strategies of the elite is crucial because this group has access to esoteric power resources that shape the development of ICL. In order to analyze the emergence and impact of a specific ICL elite, the chapter builds on previous studies that have investigated how elite status is connected to the control over specific resources, and how individuals exert material and symbolic forms of authority and power in a larger social space. The definition of an elite deployed by this chapter has three dimensions: firstly, the elite is characterized by having access specific

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Creation of an Ad Hoc Elite 91 positions in ICL from where they are able to direct work, manage resources and affect policy-building. Secondly, from these positions of institutional power , individual elite agents build profiles that enable them to exert symbolic influence in the wider space of ICL. Symbolic influence is here understood as the ability to shape perceptions and ideas about this form of law. Thirdly, the accumulation of institutional and symbolic power allows elite agents to become the prime bearers of the norms of ICL, norms that they themselves helped shape. Embodying specific ideals and practices, the elite promotes ICL solutions on a broader market of legal services and competing governance technologies. The three elements used here to map and analyze the ICL elite build on the thoughts of three sociologists: C. Wright Mills, Max Weber, and Pierre Bourdieu. Analyzing the role of what he labelled the ‘power elite’ in the context of the US, C. Wright Mills’ seminal book defined three separate elite constellations characterized by access to distinct forms of institutional power: an economic elite tied to top tier, giant corporations in the US; a political elite engaged in the policy development at the federal level and in the executive establishment; and a military elite in control of the most expensive branch of government.2 Published a decade after the Second World War, Mills identified the enlargement of bureaucracies and centralization of decision-making powers as a core feature that cut across these three sectors. The power elite was charac terized by access to and control over institutional assets that allowed them to influence the lives of large numbers of citizens through their individual decision-making powers. Mills’ definition of an elite will be used to populate the analysis of the present chapter by identifying professionals in concrete positions in and around the international criminal courts that have access to institutional resources: judges, prosecutors, and registrars. While they were also in internal competition within specific institutions, these pro fessionals had access to institutional resources and were able to direct the work of international criminal courts. Outside of these institutions, leaders of international NGOs and professors at universities also yielded power over institutional resources, although the assets they commanded were very different from those of the courts. The form of power exercised by elites is not only inscribed in the institutional posi tions from which they operate. Max Weber famously identified three types of legitimate rule: traditional, legal-rational, and charismatic authority.3 In Weber’s understanding, traditional authority is tied to forms of hereditary rule as evidenced in family, clan, tribal, and royal forms of rule. The legal-rational form of authority in Weber’s system is related to what he identified as the advent of bureaucracies based on the formalistic implementation of pre-defined rules.4 As such, this form of authority is exercised by individuals but based on uniform and transparent principles. The third form of authority, charismatic authority, is tied to the perceived extraordinary characteristics of a single individual able to influence others through symbolic as well as material forms of 2 Charles Wright Mills, The Power Elite (OUP 1956). 3 Max Weber, ‘The Three Types of Legitimate Rule’ (1958) 4(1) Berkeley Publications in Society and Institutions 1–11. 4 Max Weber, ‘Bureaucracy’ in Hans Heinrich Gerth and Charles Wright Mills (eds), From Max Weber: Essays in Sociology (Routledge 2009) 196–244 (hereafter Gerth and Mills (eds), From Max Weber).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

92 Mikkel Jarle Christensen governance.5 Crucially, these forms of authority are not mutually exclusive, but coexist even in modern configurations of rule. In ICL specifically, elite authority is often charac terized by a mix of access to specific institutional resources, as identified by Mills, and access to more symbolic resources as conceptualized by Weber’s idea of charismatic authority. To exert charismatic authority, elite agents often relied on professional strategies related to publishing or using media to further their cause. The co-existence of different forms of authority also makes clear that authority itself is relational and not fixed once and for all. It is constantly renegotiated, for instance as the formal preroga tives of law meet politics and advocacy work. Of course, complicating the picture, authority and power are not the same thing.6 Where power implies the ability to bring change, legal-rational authority is formally ascribed to institutions through, for instance, the political compromise manifested in their statutes. In this context, charis matic authority points to the ability to exert symbolic influence over the perception of legal and professional practices, but does not guarantee the impact of such influence. Symbolic authority only becomes powerful when it is replicated and recognized by, and gives normative direction to, a wider constituency. To understand how the exercise of material and symbolic power is possible, and how it affects the world, elite status must be situated in a larger social setting. The field analysis of Pierre Bourdieu aims to analyze how particular social spaces are organized through the relational distribution of material and symbolic power. This theoretical perspective will tie together the analysis of ICL by situating the accumulation of elite power in a larger space. For Bourdieu the concept of a field is central to investigate how different forms of power and status are distributed. A field is defined here as a social space whose boundaries are defined by the gravitational pull of its power relations.7 To move into elite positions in specific fields, individual actors must be able successfully to invest expertise—or capital—that is in demand in this social space. In most countries, for instance, a law degree is crucial as a form of currency that gives access to specific positions. But law degrees not only vary in value according to which school signs the degree: investing in degrees successfully depends on the accumulation of other forms of capital and on the shape of the market in which other forms of professional expertise is used to compete for positions. Understanding the composition of an elite within a certain field requires an analysis of the forms of capital active in this social space, the distribution of this capital, and how it is related to the division of power in the field and beyond. Crucially for this approach to studying elite status, capital is tied to the specific fields in which it was accumulated, but can also be invested beyond it, although at a certain risk of devaluation. This risk means that elite status in one field, for instance in ICL, does not necessarily allow agents to become successful in other markets unless it corresponds to a form of capital that is in demand here. 5 Max Weber, ‘The Sociology of Charismatic Authority’, in Gerth and Mills (eds), From Max Weber (n 3) 245–52. 6 Karen J. Alter, Laurence R. Helfer and Mikael R. Madsen, ‘How Context Shapes the Authority of International Courts’ 79 Law and Contemporary Problems 1 ibid. 7 Pierre Bourdieu and Loic Wacquant, An Invitation to Reflexive Sociology (University of Chicago Press 1992) 97.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Creation of an Ad Hoc Elite 93 With a focus on international politics, political scientists have previously analyzed the nexus between legal and political power,8 but they have done so in a way that does not conceptualize elite influence as part of the object of inquiry. Legal scholars have analyzed and systematized the legal developments of the field of ICL.9 In doing so, it can be argued that the most prominent of these scholars are in fact part of the elite of the field of ICL. They exercise symbolic power by criticizing the case law of the courts in which they frequently also work as expert consultants,10 and hold material power tied to university chairs and, for instance, PhD committees, and in recruitment of younger scholars. Zooming in on how elites operate, the work of John Hagan and Ron Levi has studied the profiles active in creating the International Criminal Tribunal for the former Yugoslavia (ICTY) and the role of high ranking professionals in setting the course of the Court as it came under external pressure.11 Critical legal scholars have also contributed important insights on the role of lawyers, legal scholars, and legal expertise in a larger space of international governance. In this context, David Kennedy has recently contrib uted an original perspective on how expertise shapes global governance.12 While Kennedy is interested in mapping expertise—including a legal expertise running amok in the modern law of warfare—the present chapter focuses on how specific groups of people were able to move into positions in which they became elite representatives of certain forms of expertise. Forming a new elite, ICL experts compete with the forms of expertise analyzed by Kennedy in ascribing the direction of global governance based on legal technologies. In addition to these perspectives, recent studies have analyzed how senior professionals have responded to the shrinking of the field of ICL as the temporary courts have entered into their completion strategies13—national markets often proving skeptical to ICL expertise.14

8 Victor Peskin, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation (CUP 2008) (hereafter Peskin, International Justice in Rwanda and the Balkans); Adam Branch, Displacing Human Rights: War and Intervention in Northern Uganda (OUP 2011). 9 Alexander Zahar and Göran Sluiter, International Criminal Law: A Critical Introduction (OUP 2008); Carsten Stahn, Law and Practice of the International Criminal Court (OUP 2015); William A. Schabas, An Introduction to the International Criminal Court (CUP 2011) (hereafter Schabas, Introduction to the ICC); M. Cherif Bassiouni, Introduction to International Criminal Law (2nd rev edn, Martinus Nijhoff 2013). 10 Mikkel Jarle Christensen, ‘Preaching, Practicing and Publishing International Criminal Justice: Academic Expertise and the Development of an International Field of Law’ (2017) 17(2) Intl Crim L Rev 239. 11 John Hagan and Ron Levi, ‘Crimes of War and the Force of Law’ (2005) 83(4) Social Forces 1499–534; John Hagan, Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal (University of Chicago Press 2003) (hereafter Hagan, Justice in the Balkans); John Hagan, Ron Levi, and Gabrielle Ferrales, ‘Swaying the Hand of Justice: The Internal and External Dynamics of Regime Change at the International Criminal Tribunal for the Former Yugoslavia’ (2006) 31(3) Law & Social Inquiry 585–616. 12 David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton UP 2016) (hereafter Kennedy, A World of Struggle). 13 Mikkel Jarle Christensen, ‘From symbolic surge to closing courts: The transformation of international criminal justice and its professional practices’ 43 International Journal of Law, Crime and Justice 609. 14 Mikkel Jarle Christensen, ‘International Prosecution and National Bureaucracy: The Contest to Define International Practices within the Danish Prosecution Service’ (Winter 2018) 43(1) Law & Social Inquiry 152.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

94 Mikkel Jarle Christensen To study the characteristics of the ICL elite, the chapter builds on almost 120 interviews of which a third were with professionals employed in leadership positions in the international criminal courts, academia, or NGOs. The interviewees were selected from all professional levels to secure multiple perspectives on ICL, and representative of its different stakeholders. In other words, the interviews did not focus merely on elites but on mapping the field of ICL as such. This sample of elite and non-elite interviews was later supplemented with 255 publicly available CVs of high-ranking profiles such as judges, prosecutors, and registrars to provide a fuller picture of elite status and trajectories. The data has been collected according to the definitions of an elite built around Mills, Weber, and Bourdieu. In other words, some of the entries were selected because they occupy a certain position in the field—such as judges, prosecutors, and registrars— positions that would correspond to Mills’ view of an elite as a group of agents with access to certain institutional resources. Besides these agents, the materials also include the profiles of the most used defence counsel in the field, whose career is more flexible than those employed in the courts as they can build ICL portfolios alongside other types of case work, prominent NGO practitioners, and a small elite sample of the large number of scholars who work on ICL. These individuals were selected by looking for individuals who exerted symbolic influence (having published prominent textbooks, been cited in the case law of the courts, or being an expert frequently quoted in media). As such they become part of a wider group of stakeholders who compete to define international criminal justice, its subject-matter, and professional boundaries.15 The selection of these different profiles aimed to provide a comprehensive picture of the agents active in the field. The approach was inclusive and sensitive to the perceptions of interviewees and includes members of the elite pointed out in these qualitative and semi-structured conversations that focused on individual career trajectories and perceptions of ICL.

III. The Advent of the ICL Elite The creation of what has been called a field of international criminal justice16 was the result of a protracted and incremental development begun with the creation of the ICTY with Security Council Resolution 827 in 1993. Many aspects of this development are well-known and have been documented by legal scholars,17 political scientists,18 and 15 Mikkel Jarle Christensen, ‘Crafting and Promoting International Crimes: A Controversy between Legal Professionals of Core Crimes and Anti-Corruption’ (2017) 30(2) Leiden J of Intl L 501. 16 Ron Levi and John Hagan, ‘Penser Les « Crimes De Guerre »’, (2008) 173 Actes de la Recherche en Sciences Sociales 6–27; Peter Dixon and Chris Tenove, ‘International Criminal Justice as a Transnational Field: Rules, Authority and Victims’ (2013) 7(3) Intl J of Transitional Justice 393–441. 17 Luc Reydams, Jan Wouters, and Cedric Ryngaert, International Prosecutors (OUP 2012); Schabas, Introduction to the ICC (n 7); Frédéric Mégret, ‘International Criminal Justice as a Juridical Field’, (2016) 13 Champ pénal/Penal field accessed 14 October 2019. 18 Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton UP 2000).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Creation of an Ad Hoc Elite 95 sociologists.19 From a sociological perspective, four main career routes led into this new market: the first was academia that played a role particularly for judges, many of whom continued to cultivate this expertise while on the bench. The second was tied to capital accumulated from legal practice—either related to international law or national criminal justice systems, in the latter case often tied to complex forms of crime such as corruption, money laundering, or financial crime. The third was experience from NGO advocacy focused on human rights. And, finally, the fourth, was a career path tied to diplomacy either nationally or through international organizations such as the United Nations (UN). Expertise or capital from these four sectors were central for establishing the field of ICL and its elite. The convergence of expertise from these sectors was visible in the first senior staff employed in the ICTY. The 11 judges of the Yugoslav tribunal formally appointed 17 November 1993 were selected from a list of 22 candidates. Most candidates were at the late stages of their careers. The average age of the appointed judges was close to 63 years old. US judge, Gabrielle Kirk McDonald, born in 1942, was the youngest and the Chinese judge, Li Haopei born in 1906, was the oldest. The election process, being tied to the General Assembly of the UN, was highly political and matters of geographical represen tation as well as geopolitical power interests came into play. This was perhaps most evident in the Russian discontent that the Federation did not, as the only permanent member of the Security Council, see their candidate elected to the ICTY. The Russian candidate, Valentin G. Kisilev, was mainly oriented towards practical domestic affairs and had a few publications in his native language, but had become part of the country’s association of international law. One could argue that he did not hold much professional capital closely attuned to the crafting of ICL, but the same could be said of the French candidate, Germain Le Foyer de Costil, although the latter did serve as an assistant lecturer in criminal law in Paris.20 de Costil later resigned due to health reasons and Claude Jorda took his place on the bench. While the games of high politics were a factor in selecting the first bench of international criminal law—and remain a crucial in the ICC via the Assembly of State Parties (ASP)—at a deeper sociological level the career trajectories of the new judges displayed clear patterns as they built on combinations of the four entry points defined above, even when only accumulating weak capital in some of them. Collectively, the new group of judges drew especially on academic, practical, and diplomatic experience built over the span of relatively long careers at the national level as well as in international forums. Of course, due to the political nature of the selection process, this capital had to be somewhat aligned with diplomatic preferences to be activated. 19 Hagan, Justice in the Balkans (n 9). 20 Secretary General of the UN, ‘Note by the Secretary General: Curricula vitae of candidates nominated by States Members of the United Nations and non-member States maintaining permanent observer missions at United Nations Headquarters’ in Election of Judges of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, UNGA, 47th Sess, Agenda item156, UN Doc A/47/1006, (1 September 1993).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

96 Mikkel Jarle Christensen Embodied in the individual judges, the composition of capital took different forms. Most judges had accumulated extensive expertise from at least two of the abovemen tioned sectors, some from all four. A prominent example of a judge who had accrued capital from all of the domains was Egyptian judge, Georges Abi-Saab. Saab had studied abroad at some of the best schools in the world, something that was not atypical for the applicants, held an LLM and a JD from Harvard, and was a Doctor of political science from Cambridge and Geneva. Holding also a diploma from The Hague Academy of International Law, Abi-Saab had published extensively on international law, the International Court of Justice, and United Nations operations. Working in government service, he represented Egypt in the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable to Armed Conflicts between 1974 and 1977, directly relevant for the ICTY. In terms of practical legal experience, he had also worked as counsel before the International Court of Justice on frontier disputes between Egypt and Israel. In two other border disputes—between Burkina Faso and Mali as well as Libya and Chad—he served as ad hoc judge. Abi-Saab and later president of the ICTY, Antonio Cassese, exhibited perhaps the broadest capital. Other judges such as Kisilev and de Costil had most of their experience from legal practice with some connections to the academy. Another example was Pakistani judge, Rustam S. Sidhwa, who had experience as associate professor alongside his seat on the country’s Supreme Court. The embryonic character of ICL and its institutions was evident in the early recruitment strategies of the courts. First of all, and not surprisingly, few judges had direct experi ence with this form of law. Second of all, the staffing of the rest of the Tribunal was driven by professional networks as well as by more formal procedures. In this context the recruitment of the second ICTY prosecutor, Richard Goldstone, is emblematic of how a new elite was crafted at the intersection of different forms of criminal law and human rights. This process has been analyzed by John Hagan,21 and illustrates the role of networks in the creation of what was in effect the first ICL elite. Recruited though the active intervention of tribunal president Antonio Cassese, while Goldstone lacked direct prosecutorial expertise, he had extensive experience as a judge tied to the transi tional justice initiatives that followed the end of apartheid in South Africa. This profile points to the contemporary coexistence of the emergent ICL and truth and reconcili ation processes of which South Africa was the most celebrated example. Goldstone’s expertise from the newly reformed South Africa gave him a combination of legal and symbolic capital tied to the international reception of the most prominent national reconciliation process based on norms of human rights after the end of the Cold War. Staffing the ICTY and later the ICTR, Goldstone himself also used his contacts to locate potential candidates in Western countries,22 some of whom had close links to the South African Development Community (SADC).

21 Hagan, Justice in the Balkans (n 9) 60–61. 22 Interview with former ICTY judge 25 February 2016.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Creation of an Ad Hoc Elite 97 The staffing of senior positions was a highly political process and was partly driven by the deployments to these courts by national governments. Here the larger political structures were crucial for those who moved into the ICL elite. Outside of strictly legal positions in the Office of the Prosecutor (OTP) and on the bench, the Tribunal’s registry was initially staffed with Dutch professionals to facilitate cooperation with the host state. The first Registrar, Theo van Bowen, had extensive experience from the UN system and had worked with human rights. He had close ties to academia and would later draft the ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’ in cooperation with Cherif Bassiouni, who had led the commission that prepared evidence for the ICTY, adopted with UNGA Resolution 60/147 in 2006. Collectively, the first elite entrants into ICL had accumulated capital from diplomacy, national judiciaries, the practice of international law, academia and, to a lesser extent, NGO advocacy related to human rights and humanitarian law as evidenced for instance in the profile of Morten Bergsmo, who was active in the commis sion of inquiry that preceded the ICTY and had previously worked for the Norwegian Human Rights Institute. In the new space of ICL, structured by international diplomacy, elite agents invested their capital towards the formation of a new form of law that they themselves became the main exponents of. Some of them would remain in this field henceforth enjoying the status of ‘founding fathers’, while others divested their expertise from ICL and entered into other positions.

IV. The Creation of a Group and its Symbolic Capital As the field of international criminal law expanded, the early elite of repeat players became part of a professional market to which individual agents devoted large parts of their career. As a result of the structure of the field, this participation, the value of which is determined by the perception of professionals in this emergent space and broader market, became closely tied to the symbolism of this form of law. This symbolism has not gone unnoticed in ICL scholarship23 and was crucial for the very functionality of a form of criminal law that was unmoored from national fields and lacked the police powers developed over centuries in domestic territories. In contrast to other studies of this symbolism, it will be analyzed here as embodied in and crafted by the very profes sionals of this field. Furthering the mission of ICL to ‘end impunity’, as the preamble of the Rome Statute famously sets out as a broad mission statement, was intertwined with 23 Immi Tallgren, ‘The Sensibility and Sense of International Criminal Law’, European Journal of International Law, 13/3 (April 1, 2002 2002), 561–95, Martti Koskenniemi, ‘Between Impunity and Show Trials’, Max Planck Yearbook of United Nations Law Online, 6/1 (2002), 1–32.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

98 Mikkel Jarle Christensen the creation of a new form of professional identity as international criminal lawyers.24 In total, some 4,000 professionals were employed in international criminal courts in 2008/2009,25 positions that were also characterized by a significant turnover. Of these positions, 144 were occupied by elite agents in the definition of this chapter. In other words, the elite composed 3.6 per cent of the total population in the courts at this specific point in time. Over time, the empirical data compiled for the chapter has located 231 agents who held elite positions in the international criminal courts at one point in time. 146 individuals served as judges (to which can be added 41 ad litem judges), 27 as prosecutors, deputy prosecutors, and head of prosecutions, and 17 regis trars and deputy registrars. As is evidenced in the data on elite trajectories, many of these agents moved between different positions in ICL. In total, 31 judges served on the bench of different inter national criminal courts or moved from ad litem to permanent. In addition, six registrars and six prosecutors served in other courts or capacities elsewhere in the field of ICL. These moves are indicative of how professionals invested their capital in the courts often for twin reasons related to the perceived mission of their work and simply being able here to draw most professional interests from their investment. For the elite of ICL the creation of a wider market had two significant effects. Firstly, this specific market was constructed around the objectification of a particular discourse tied to the non-partisan nature of the law and its importance as a governance tool, and secondly this orthodoxy had to be solidified in and promoted beyond the field of ICL to secure the mission and professional investments of this space. However, statistics of leadership positions do not demonstrate whether this group was indeed able to affect the world outside of the small context in which they were placed. It also says little about the differences between the specific subgroups in the elite sample, the uneven distribution of capital among them, and how this impacted their practices. While the statistics on individuals in specific positions provide a good point of entry, they must be supplemented by a more dynamic conception of the elite. This is also where Weber reenters the picture, because while analyzing leadership positions did allow a certain overview of actors who were formally able to exert institutional authority, the authority of their position was not a given outside the doors of these institutions. On the contrary, despite the fact that the ad hoc tribunals for the former Yugoslavia and Rwanda were formally created by the UN Security Council, a provenance that theoretic ally secured compliance with its rulings, the early history of these institutions points to very different dynamics in which UN members states were rarely inclined to help the new courts.26 This context framed the activities of early court elites who set out to 24 Claus Kreß, ‘Towards a Truly Universal Invisible College of International Criminal Lawyers’ (2014) Torkel Opsahl Academic EPublisher Occasional Paper Series 1–36. 25 Mikkel Jarle Christensen, ‘From Symbolic Surge to Closing Courts: The Transformation of International Criminal Justice and Its Professional Practices’ (2015) 34(4) Intl J of Law, Crime and Justice 609–25. 26 Victor Peskin, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation (Cambridge University Press 2008).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Creation of an Ad Hoc Elite 99 construct external and charismatic authority based on the mission of the courts: to bring cases against suspects of grave abuses of human rights and, although often stated less carefully, bringing reconciliation and peace to war-torn regions. To do this the Tribunals engaged in a range of practices that were not strictly legal but aimed at influencing the social space in which they were situated. Since the effort to secure cooperation was intimately linked to the mobilization of different forms of capital, in particular legal, diplomatic, and academic, investigating these practices also yields important insights into the construction of a new elite in the field of ICL and how it gained authority beyond The Hague. As demonstrated in John Hagan’s book on the early years of the ICTY, prosecutors were deeply involved in different forms of diplomacy aimed at securing cooperation.27 Perhaps the most striking early example of how alternative methods were used to push the work of the Tribunals onto the international agenda and solicit state cooperation was an incident involving Louise Arbour, the third prosecutor of the ICTY recom mended by Goldstone as he returned to South Africa in September 1996 to take a seat at the Constitutional Court. In early 1998 Arbour spent three days in Skopje negotiating for, and failing to get, access to Kosovo. Due to massive media interest, this apparent failure was turned into a victory as Arbour was pictured in a flak jacket on the border as the long arm of the law attempting to bring those responsible for crimes in the region to justice.28 This minor incident quickly made world news. Advised among others by Richard Holbrooke to remain in Skopje, Arbour succeeded in putting pressure on Milošević. Although Arbour’s account of the events demonstrate that there was little strategy behind her protest, pitted against physical and political obstruction, the new form of justice being built in the Hague and in Arusha could also be used as a public relations tool. This victory demonstrated the potential of ICL symbolism. In Weber’s terms, when the formal-rational authority came up short, investments into charismatic authority succeeded. Charismatic authority and the effects of this authority essentially depends on external recognition. Judges or prosecutors who invest in charismatic influence thus endeavour beyond the mere fulfillment of predesigned bureaucratic functions. They use symbolic investments to secure resources or cooperation when formal practices cannot. The use of symbolism to solicit cooperation and support soon became pivotal for the courts, now almost expected to exert a form of symbolic authority that mirrored the broader mission of ICL. This development was closely related to the expansion of the field of ICL in the 1990s and 2000s and created a veritable professional market around this form of law that offered opportunities within the courts, as well as in academia and human rights NGOs, many of which had also turned their attention towards prosecution of offences.29 From their respective positions, NGO advocates and academics yielded institutional power (less pronounced than in the case of the courts), but also co-produced 27 Hagan, Justice in the Balkans (n 9). 28 ibid 115–18. 29 Kjersti Lohne, Advocates of Humanity: Human Rights NGOs and International Criminal Justice (OUP forthcoming).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

100 Mikkel Jarle Christensen the symbolism of this field by holding the courts to their perceived promises, as expressed in scholarly writings and NGO reports. As was the case with the first judges, the new segments of the ICL elite were able to mobilize different forms of previously accumulated capital towards the development of the field, but increasingly had to be able to exhibit specialized knowledge of the practices and ideas generated in this space. On the basis of this expertise, they were important for promoting the mission of ICL beyond the courts. For NGO advocates, access to resources in leading activist organizations such as Human Rights Watch (HRW) and Amnesty International (AI) was central for the building of individual and symbolic influence. In this part of the field, a small number of agents have built positions that enable them to be seen as the spokespersons for international criminal justice. One is William Pace, convener of the Coalition for the ICC that coordinates the work of more than 2,500 NGOs with interest in the ICC. Another trajectory more closely linked to front line advocacy is that of Reed Broady whose status builds on his activities at the cusp of human rights work. Having also legal expertise from working as Assistant Attorney General in New York, Broady’s reputation built on his report on US support to the Nicaraguan Contras that was used in the ICJ’s judgment on the same issue.30 In 1998 Broady moved to Human Rights Watch (HRW) where he spearheaded the work of this NGO with ending impunity and bringing even state leaders to justice. In this capacity, he played a pivotal role in the Hissène Habré trial at the Extraordinary African Chambers in Senegal. The elite of NGO professionals forms the first line of symbolic defence of and in the field of ICL as they affirm the broader symbolism of the space by authorizing it through their career trajectory dedicated to studying or promoting it, frequently in effect doing both, and thereby endow it with authority and power beyond the courts. This promotional activity was partly built on the critique of concrete practices of the international criminal courts assessed with reference to the symbolism of the field in part developed by the courts themselves. As such, the constant battle over the symbolism of ICL was part of the collective labour of constructing this very symbolism. The elite of ICL also counts academics. For these agents, the ability to mix different forms of expertise was also crucial. The most prominent academics often played double roles as practitioners and served as experts in the courts. This was the case for Cherif Bassiouni and Antonio Cassese as well as for a range of other prolific names including William Schabas, Kevin Jon Heller, Göran Sluiter, and Carsten Stahn who had all worked closely with the courts and hold professorships where they exert significant influence over ICL by commenting on its legal developments and training new gener ations of scholars and practitioners. Much like NGO elites, the positions of these scholars outside of the courts allow them to be critical of the practices of these institu tions, holding them against legal standards systematized in their own writings. Besides NGO and academic elites, a small number of repeat players on the side of the defence 30 Reed Broady, Contra Terror in Nicaragua: Report of a Fact-Finding Mission: September 1984–January 1985 (South End Press 1999).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Creation of an Ad Hoc Elite 101 have also become part of the ICL elite, but maintain a more flexible role as they typically have positions in law firms that allow them to take on other cases as well. Collectively these elites wield institutional and symbolic power, and compete to define ICL as a legal practice. The symbolic power exercised by particular individuals in the field of ICL only takes on value due to its relational character. For symbolic capital to be a passable form of professional currency, it must be recognized and attributed value by a collectivity of agents who are playing the same game. As a result, and related to the differentiation of the ICL market, the elite is not a unified group and develops the symbolism of the field through distinct and competing practices. Despite the fact that the symbolism of ICL was essentially a field effect created through collective investment into this field, the individual accumulation of professional and symbolic capital in this field was unevenly divided and was invested towards conflicting definitions of what the law meant. Mobilizing institutional as well as symbolic capital, the elite of ICL competes to define the direction of this form of law while at the same time policing the boundaries of who is considered the main professional bearers of the overall mission. As different forms of capital are activated through specific struggles through which ICL ideals are simultaneously maintained and transformed, these forms of capital become the subject of market fluctuations in the sense that different forms of capital increase or decrease in value.31 These conjunctures of capital are related both to the overall structure of the field of ICL and can follow from developments, such as closure of institutions or the preferences of state funders, that have impact on the career trajectories of elite agents. Related to the contest over institutional power and the development of capital, symbolic capital can also potentially be devalued if it is no longer considered salient among stakeholders.

V. The Value of the ICL Elite on a Broader Market In a larger space of global elites, some of which were placed in neighbouring fields of human rights,32 international law33 or economic governance,34 the competitiveness of ICL expertise is tested. This is most clearly evidenced when ICL elites try to capitalize on their experience by translating it into status in other fields of law. For many of them, the relatively small social space of ICL does not offer opportunities that can support a full 31 Mikkel Jarle Christensen, ‘The Judiciary of International Criminal Law: Double Decline and Practical Turn’ 17 Journal of International Criminal Justice 537. 32 Mikael Rask Madsen and Gert Verschraegen (eds), Making Human Rights Intelligible: Towards a Sociology of Human Rights (Oñati International Series in Law and Society) (Hart Publishing 2013). 33 Yves Dezalay and Bryant G. Garth, ‘Hegemonic Battles, Professional Rivalries, and the International Division of Labor in the Market for the Import and Export of State-Governing Expertise’ (2011) 5(3) Intl Political Sociology 276–93. 34 Kennedy, A World of Struggle (n 10).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

102 Mikkel Jarle Christensen career and, as a consequence, many look to leave this field and invest in other career paths. The gravitational pull that structures which agents are able to move into new fields—as well as the power relations between fields—formats the opportunities of agents looking to translate expertise into new positions beyond the social space where this expertise was built. Having accumulated substantial capital before entering the international criminal courts, some professionals circulated back into the national jurisdiction after working in these institutions, while others ended their career in these institutions, a third group continuing to other international endeavours, usually diplomatic or legal work related to ICL. Few were able to invest their capital in legal fields not related to ICL, except those that left this field after relatively brief investments of career capital. Former prosecutors, Louise Arbour and Richard Goldstone, both returned to their native countries to serve as judges—maintaining at the same time their investment in ICL—Goldstone through publications, lectures, heading the UN fact-finding mission to Gaza in 2008–2009, and serving on the advisory board of the Coalition for the International Criminal Court (CICC). Arbour became the UN High Commissioner for Human Rights (2004–2008) after serving on the Canadian Supreme Court, and then president of the NGO International Crisis Group 2009–2014, diversifying investments into some of the professional domains that were also active in building the field of ICL. Both of these relatively successful conversions of ICL expertise were characterized by short tenures in the international criminal courts that allowed their expertise to remain relevant for the national context. On the side of the judges, some professionals appointed to the bench at a late stage in their careers used the courts as the pinnacle of a long professional life. An emblematic example of how the work as a tribunal judge was used towards the end of a formidable career was Canadian judge, Jules Dechênes. Born in 1923 and admitted to the bar in Quebec in 1946, he became Queen’s Counsel in 1961 and was appointed by Pierre Trudeau as Chief Justice in the Superior Court of Quebec in 1973 where he served for a decade. From 1984–87, he worked in the United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities and, in 1985, he served as the head of the Commission of Inquiry on War Criminals in Canada, the so-called Dechênes Commission. Dechênes was one of the few to work practically with war crimes before entering the field of ICL. Bringing in this legal and diplomatic expertise, he was a judge at the ICTY from 1993–1997. He died in 2000. While many were appointed late in their careers, some judges moved to other international courts. One example is Moroccan diplomat and judge, Mohamed Bennouda, born 1943, who was a law professor and held degrees from the Sorbonne and The Hague Academy of International Law. He was also member of the International Law Commission 1986–1998. He served as legalcounsel to Morocco’s UN delegation from 1974–85, Deputy Permanent Representative of Morocco to the United Nations (1985–89), and Director General of the Arab World Institute (Institut du monde arabe, Paris) (1991–98). He served as judge in the ICTY from 1998–2001, before being elected to the bench of the International Court of Justice in 2006 where his current term expires in 2024. The profiles of judges in later courts had

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Creation of an Ad Hoc Elite 103 some of the same components as in the ICTY, but with certain variations. Institutions like the Extraordinary Chambers in the Courts of Cambodia (ECCC) mainly attracted late stage professionals with a national profile or aspiring elites hoping to use the chambers as a stepping-stone to other positions.35 In the ICC, judges build on a long career that combined practical experience with human rights work, while academic expertise was less prominent than in the early elite of the ICTY. Despite these successful conversions, when leaving the courts, the capital built in ICL risks being devalued when reinvested on a wider market. This is clear also beyond the ad hoc courts, and the ICTY in particular, and was especially the case when agents had spent a long period in ICL. In addition to this temporal dimension, the reputation of elite agents seems also to have been important when transitioning from ICL to other walks of life. The careers of Carla del Ponte and Luis Moreno Ocampo after ending their term as prosecutors were marked by internal as well as external attacks on their authority. After ending her term, Del Ponte headed an EU investigation into organ trafficking in Kosovo, and then served as Swiss Ambassador to Argentina before becoming a member of the Independent International Commission of Inquiry on the Syrian Arab Republic that accumulates evidence on human rights abuses in Syria. Ocampo became an associate in the law firm Getnick & Getnick, and worked as chairman on the World Bank Expert Panel on the Padma Bridge project in Bangladesh and with tobacco giant Phillip Morris on anti-corruption questions. Ocampo has tried in different ways to remain a player in ICL, so far not landing a new position that allows him to retain influence in the field directly. The variable value of ICL expertise was related to the overall structure of this field that built on a low impact of its legal-rational authority and, closely linked, attempts to build instead charismatic authority as a form of elite power. The concrete criticism that characterized the tenures and legacies of del Ponte and Ocampo can also be read through this prism. They were criticized mainly for their managerial skills, but also for their exercise of charismatic authority through unsuccessful attempts to use the symbolic promise of ICL to secure its power by going for big cases easy to sell to the public. Their investment in symbolism, to a certain extent dictated by the structures of ICL, combined with the criticism of poor legal-rational authority helped devalue their professional capital. In other words, building charismatic authority without a solid foundation was a risky strategy that opened for the depreciation of professional capital. Working in a field in which positions have been decreasing with the closing of the Tribunals for the former Yugoslavia and Rwanda as well as of other institutions, the elite status of the studied groups remained uncertain and had to be constantly renegotiated. Most successful conversions of capital took place after short tenures in ICL, and often maintained a connection with the field. Long-term professional investments of capital run the risk of being pigeon-holed in the field of ICL as their accumulation of expertise became too narrowly affiliated with the law and practice of this field. As such, the status 35 Mikkel Jarle Christensen and Astrid Kjeldgaard-Pedersen, ‘Competing Perceptions of Hybrid Justice: International v. National in the Extraordinary Chambers of the Court of Cambodia’ 18 Journal of International Criminal Justice 127.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

104 Mikkel Jarle Christensen of the ICL elite remained ad hoc and tied to the development and continued existence of a very particular form of law and justice this very elite was part of building. The failure to convert specialized ICL expertise and symbolic authority into new positions in other fields of law testifies to the relative structural isolation of this field of law from other forms of legal governance. Following its own internal rules and professional logics, the creation of new forms of legal-rational and charismatic authority does not seem to be of significant value in other markets organized around other forms of legal governance. Beyond this market focused narrowly on servicing the fight against international core crimes of genocide, crimes against humanity, and war crimes, ICL expertise was not in high demand.

VI. Conclusion As part of a larger conjuncture that saw the internationalization of different forms of law, the creation of the field of ICL gave rise to a new elite that played a crucial role in defining and promoting the legal technologies and symbolism inscribed in the broad mission of this field. As this field grew and was differentiated into a professional market with different and competing positions, its elite was characterized by an aggregation of different forms of capital that could be mobilized toward the development of ICL in close relation with the building of individual careers. The forms of expertise invested into ICL were visible in the very first elites that entered into the field and were linked to careers in diplomacy, human rights, international and criminal law, and academia. The elite of ICL built on capital from these spaces and in many cases on nurturing close connections between them as they built careers in the emergent field created around the international criminal courts, but also kept doors open toward alternative trajectories. Within the field of ICL, the status of elite was tied to specific positions that allowed for the deployment of institutional resources, but also to a form of symbolism that was crucial for the attempt to create real legal power and authority. This symbolism was a collective, albeit competitive, construction. Building its status on different forms of capital and occupying different positions in the field of ICL, the elite was not a unified group but competed to set the agenda for the space they invested their professional capital in. In this differentiated field, NGOs and academics were often critical towards the practices of the courts that many of them had worked in at one stage of their career and retained close connections to. These elite battles are central for understanding the development of this field of law as they mirror the deeply rooted social and professional divisions on which this field was built. The value of expertise built in ICL has remained low on a global marketplace where this form of law competes with other approaches to governance. This points to a central feature of the legal, political, and social structure of the field of ICL. Characterized by a low degree of legal-rational authority, but a strong symbolism built in tandem with the internationalization of criminal law practices, ICL remains relatively disjointed from

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Creation of an Ad Hoc Elite 105 other forms of international law and governance as well as from national criminal justice systems. This is visible concretely in the career trajectories of the ad hoc elite of ICL and their attempt at translating capital into new professional positions. Related to the limited legal, political and social influence of the field of ICL, the value of capital accumulated in this field does not have a fixed conversion rate but is highly variable and prone to depreciation when invested elsewhere. Even for its elite, the market of ICL is isolated and potentially volatile.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

chapter 5

Teachi ngs of Pu blicists a n d th e R ei n v en tion of th e Sou rces Doctr i n e i n I n ter nationa l Cr imi na l L aw Neha Jain*

I. Introduction Does the international criminal law regime subscribe to the same doctrine of sources as classical public international law? On first blush, it is difficult to contemplate any answer that would not be in the affirmative. International criminal law, after all, is one amongst the many (fragmented) branches of international law and can be expected to recognize the same legal sources as authoritative.1 This response is, however, complicated to a considerable degree by at least three factors: the hybrid identity of international * Associate Professor of Law, University of Minnesota Law School; Fellow, Stellenbosch Institute for Advanced Study (STIAS), Wallenberg Research Centre at Stellenbosch University, Stellenbosch 7600, South Africa. I am indebted to the Editors of the Handbook for detailed and helpful feedback on this chapter. 1 This assumption underlies even the most sophisticated work on the sources of international criminal law. See e.g., Antonio Cassese, International Criminal Law (OUP 2003) 20, 26 (hereafter Cassese, ICL); Dapo Akande, ‘Sources of International Criminal Law’ in Antonio Cassese (ed), The Oxford Companion to International Criminal Justice (OUP 2009) 41; Margaret McAullife deGuzman, ‘Article 21: Applicable Law’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (2nd edn, Beck, Hart, and Nomos 2008) 701, 702.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Teachings of Publicists and the Reinvention of the Sources 107 criminal law that sits betwixt criminal law, public international law, and human rights law;2 the disputed nature of the sources doctrine in public international law; and the disproportionate role played by international criminal courts in the development of the sources doctrine, especially when compared to other international tribunals.3 This chapter analyzes one of the most controversial areas in the jurisprudence of the International Criminal Court (ICC)—modes of liability—to conduct a broader investigation into whether the classical doctrine of sources in public international law represents faithfully the manner in which sources of law are being conceived and applied in the realm of international criminal law. It does so by focusing on a source of law that has attracted almost no comment in the renewed debate on sources of public international law and has similarly evaded the attention of most international criminal law scholars: the teachings of publicists.4 While the literature on sources in international criminal law has examined discrete sources such as customary international law5 and the decisions of municipal courts,6 this enquiry has mostly been conducted in a piecemeal fashion, rather than through the lens of debates on the sources doctrine in classical public international law.7 The normative and descriptive validity of the sources of public international law and their applicability to international criminal law has been assumed, a phenomenon that is all the more unexpected given that the Rome Statute of the International Criminal Court (ICC) explicitly recognizes a different hierarchy of sources.8 2 Cassese, ICL (n 1) 18–19; Leena Grover, ‘A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of the International Criminal Court’ (2010) 21 European J of Intl L 543, 550–51. 3 Scholars have increasingly turned their attention to the centrality of judicial creativity in the development of international criminal law. See e.g., Shane Darcy and Joseph Powderly (eds), Judicial Creativity at the International Criminal Tribunals (OUP 2010); Antonio Cassese, ‘Black Letter Lawyering v. Constructive Interpretation’ (2004) 2 J of Intl Crim Justice 265; William Schabas, ‘Interpreting the Statutes of the ad hoc Tribunals’ in Lal Chand Vohrah and others (eds), Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (Kluwer Law International 2003) 847. 4 For a recent exception to this trend in general public international law, see Lianne J M Boer, ‘ “The Greater Part of Jurisconsults”: On Consensus Claims and Their Footnotes in Legal Scholarship’ (2016) 29(4) Leiden J of Intl L 1021 (hereafter Boer, ‘Consensus Claims’). 5 Mia Swart, ‘Judicial Lawmaking at the ad hoc Tribunals: The Creative Use of the Sources of International Law and “Adventurous Interpretation” ’ (2010) 70 Zeitschrift für Aüslandisches öffentliches Recht und Völkerrecht 459, 463–48; Guénaël Mettraux, International Crimes and the Ad Hoc Tribunals (OUP 2005) 13–15; André Nollkaepmer, ‘The Legitimacy of International Law in the Case Law of the International Tribunal for the Former Yugoslavia’ in Thomas A J A Vandamme and Jan Herman Reestman (eds), Ambiguity in the Rule of Law: The Interface Between National and International Legal Systems (Europa Law 2001) 13, 17. 6 André Nollkaepmer, ‘Decisions of National Courts as Sources of International Law: An Analysis of the Practice of the ICTY’ in Gideon Boas and William Schabas (eds), International Criminal Law Developments in the Case Law of the ICTY (Brill 2003) 277. 7 For uncommon attempts to relate the sources of international criminal law to the hybrid identity of the regime, see Leena Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court (CUP 2014) (on treaty interpretation in the context of international criminal law); Neha Jain, ‘Judicial Lawmaking and General Principles of Law in International Criminal Law’ (2016) 57 Harvard Intl L J 111 (on the general principles of law in international criminal law). 8 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, UN Doc A/CONF.183/9 (in force 1 July 2002), art 21 (hereafter Rome Statute). This viewpoint could partially be explained by the

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

108 Neha Jain This chapter interrogates the ICC’s use of the teachings of publicists in fashioning novel forms of individual criminal responsibility to argue that the Court, similar to its predecessors such as the International Criminal Tribunals for Rwanda and the Former Yugoslavia, has been quietly engaged in reinventing the classical doctrine of sources and repurposing it to suit the international criminal law regime. The rehabilitation of this largely unutilized source of law has not, however, been carried out in a particularly conscious or informed fashion, at least none that is explicit in the jurisprudence of the ICC. The absence of any doctrinal discussion or even framework is not surprising in light of the Court’s general reluctance to make grand theoretical pronouncements, especially those that raise fundamental issues concerning the identity and goals of international criminal justice. The chapter unpacks the Court’s innovative approach to the teachings of publicists in the context of forms of criminal responsibility and signals the normative and policy issues that this raises, not only for the international criminal law regime, but also for the sources doctrine in public international law. Part II gives a brief overview of the opinion of publicists as a source of classical public international law. Part III focuses on the jurisprudence of the ICC on modes of liability to highlight the manner in which teachings of publicists have assumed an influence all out of proportion to their traditional role in the development of public international law. Part IV analyses the implications of this use of scholarship and what it reveals about the nature of the international criminal law regime, drawing on domestic law comparisons with the status and position of scholars as sources of legal authority. The chapter concludes by gesturing towards the contribution that a renewed focus on sources of law as applied by international criminal tribunals could make to contemporary debates on the sources doctrine in public international law.

II. Publicists in Public International Law While the Statute of the International Court of Justice (ICJ) technically only specifies the sources of law that are to be applied by the ICJ, Article 38(1) of the statute dealing with sources is widely regarded as a template for the sources of public international law more generally.9 Under the statute, the ICJ is entitled to apply ‘judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means

fact that the Rome Statute is a self-contained treaty regime that has its own hierarchy of sources. However, the same could be said for Art 38 of the ICJ Statute, that has been a vital reference point for any discussion of the sources doctrine in public international law more broadly. 9 David Kennedy, ‘The Sources of International Law’ (1987) 2 American U Intl L Rev 1, 2; Robert Jennings, ‘What is International Law and How Do We Tell It When We See It?’ (1981) 37 Schweizerisches Jahrbuch für Internationales Recht 59, 60–61.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Teachings of Publicists and the Reinvention of the Sources 109 for the determination of rules of law’.10 This formulation obscures the various tensions underlying heated debates on the appropriate sources of international law during the drafting stage of the precursor to Article 38(1) in the Statute of the Permanent Court of International Justice (PCIJ).

A. Publicists and Gap-Filling in International Law Baron Descamps, the President of the Advisory Committee of Jurists in charge of crafting the statute, initially proposed a list that specified, in order of preference, the following sources: (1) conventional international law; (2) international custom; (3) ‘the rules of international law as recognised by the legal conscience of civilised nations’; and (4) ‘international jurisprudence as a means for the application and development of law’.11 Doctrine, or the ‘concurrent teachings of juriconsults of authority’, was introduced as a means of determining the third source, which in turn was an attempt to avoid a situation of non-liquet.12 In a subsequent draft, doctrine appeared in a different guise proposed by Mr Root in collaboration with Lord Phillimore: the Court was now to consider ‘the authority of judicial decisions and the opinions of writers as a means for the application and development of law’.13 This proposal precipitated a lively discussion,14 with some members of the Advisory Committee such as M. Ricci-Busatti expressing dismay and amazement at the idea that doctrine by itself could constitute a source of law.15 To this charge, Lord Phillimore replied that it might be possible for a legal system to accept a rule based solely upon the doctrine of authors, though he later qualified his statement by considering agreement among authors as evidence of custom.16 Professor de Lapradelle, who was unhappy at the prospect of doctrine constituting a source of law, would have narrowed its application to the ‘coinciding doctrines of qualified authors in the countries concerned in the case’.17 Baron Descamps sought to allay these fears by clarifying his position that while doctrine (and jurisprudence) could not create law, they were helpful tools for the 10 Statute of the International Court of Justice, 26 June 1945, 3 UST 1179, 59 US Stat 1031, art 38(1)(d). 11 Permanent Court of Justice, Advisory Committee of Jurists, Procés-Verbaux of the Proceedings Committee, June 16th—July 24th 1920 (Van Langenhuysen 1920) Annex No 3 at 306 accessed 2 July 2018 (hereafter Procès-Verbaux). 12 Procés-Verbaux (n 11) 318–19, 323. See also Alain Pellet, ‘Article 38’ in Andreas Zimmermann and others (eds), The Statute of the International Court of Justice: A Commentary (OUP 2006) 677, 686 (here after Pellet, ‘Article 38’); Michael Peil, ‘Scholarly Writings as a Source of Law: A Survey of the Use of Doctrine by the International Court of Justice’ (2012) 1 Cambridge J of Intl and Comparative L 136, 138–39 (hereafter Peil, ‘Scholarly Writings’). 13 Procés-Verbaux (n 11) 344. 14 For a detailed account, see Pellet, ‘Article 38’ (n 12) 685–88; Maarten Bos, ‘The Recognized Manifestations of International Law: A New Theory of “Sources” ’ (1997) 20 German YB of Intl L 9, 61–63 (hereafter Bos, ‘New Theory’); Peil, ‘Scholarly Writings’ (n 12) 138–40. 15 Procés-Verbaux (n 11) 332–34. 16 Procés-Verbaux (n 12) 333, 336. 17 Procés-Verbaux (n 11) 336.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

110 Neha Jain judge to determine its existence.18 A tentative compromise was reached in the final wording of the draft that stated that ‘[t]he Court shall take into consideration judicial decisions and the teachings of the most highly qualified publicists of the various nations as a subsidiary means for the determination of rules of law’.19 The ambiguous formulation of the final text, however, fails to resolve the disagreements voiced during the debates on the precise status of the opinion of publicists as a source of international law.20

B. Publicists as a Subsidiary Source of Law Subsequent commentary on the teachings of publicists as a legal source has been far from enthusiastic, bespeaking an intriguing modesty of the scholarly community as to their own reliability and authoritativeness. Thus, scholars have largely attempted to highlight the ‘subsidiary’ nature of the teachings of publicists in various ways.21 A distinction has been made between the other three sources—treaties, custom, and general principles—that are considered ‘formal’ or sources of law proper, and judicial decisions and publicists as ‘documentary’ sources that merely evidence the existence of the formal sources.22 Alternatively, emphasis has been put on the nature of the institution that gives rise to the law, such that ‘law-creating’ agencies such as states enact formal sources like treaties, whereas ‘law-determining’ ones like courts and scholars simply elucidate where the law may be found and its content.23 Skepticism has also been expressed at the equal status accorded in Article 38(1)(d) to judicial decisions and publicists.24 For instance, according to Fitzmaurice, ‘[a] decision is a fact: an opinion, however cogent, remains an opinion’.25 While a judicial decision may not be materially any better or more persuasive than a scholarly opinion, it has a qualitatively different impact on subsequent legal proceedings that is plain in the manner in 18 Procés-Verbaux (n 11) 332, 334. 19 Procés-Verbaux (n 11) 584. 20 Bos, ‘New Theory’ (n 14) 62–63; Peil, ‘Scholarly Writings’ (n 11) 140. cf Pellet, ‘Article 38’ (n 11) 783 (concluding that notwithstanding the confusing positions adopted by various members, the final draft signalled their intention to retain doctrine as a means to elucidate the rules to be applied by the court). 21 For a detailed discussion and references, see Aldo Zammit Borda, ‘A Formal Approach to Article 38(1)(d) of the ICJ Statute from the Perspective of the International Criminal Court and Tribunals’ (2013) 24 European J of Intl L 649, 653–56 (hereafter Borda, ‘Formal Approach to Article 38(1)(d)’). 22 Sir Gerald G Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law’ in Jan H W Verzijl (ed), Symbolae Verzijl: Presentées au Professor J.H.W. Verzijl à l’occasion de son LXX-ième anniversaire (Nijhoff 1958) 153, 153–54 (hereafter Fitzmaurice, ‘Problems Regarding the Formal Sources’); Shabtai Rosenne, The Law and Practice of the International Court, 1920–2005, vol III (Nijhoff 2006) 1551. 23 Georg Schwarzenberger, ‘The Province of the Doctrine of International Law’ (1956) 9 Current Legal Problems 235, 236–37 (hereafter Schwarzenberger, ‘The Province of the Doctrine’); Georg Schwarzenberger, ‘The Inductive Approach to International Law’ (1947) 60 Harvard L Rev 539, 550–51 (hereafter Schwarzenberger, ‘Inductive Approach’). 24 Fitzmaurice, ‘Problems Regarding the Formal Sources’ (n 22) 172–74; Borda, ‘Formal Approach to Article 38(1)(d)’ (n 21) 650, 660. cf Torsten Gihl, ‘The Legal Character and Sources of International Law’ (1957) 1 Scandinavian Studies in Law 51, 74 (referring with approval to their equal status under the ICJ statute and arguing that their influence should depend equally on the quality of their arguments). 25 Fitzmaurice, ‘Problems Regarding the Formal Sources’ (n 22) at 172.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Teachings of Publicists and the Reinvention of the Sources 111 which it influences the attitudes of the parties in framing their arguments and in the extent to which judges feel obligated to follow or distinguish judicial precedents.26 This attempt to privilege judicial decisions vis-à-vis scholarship as sources of law has, however, been criticized for its unconscious perpetuation of a common law bias that ignores the status of scholarly and judicial pronouncements in the civilian tradition whereby both are considered equally accurate (or not) representations of the law.27 Judgments of major international courts such as the PCIJ and ICJ rarely cite doctrine in support of their decisions, leading to speculation on whether doctrine truly has such little value in the eyes of the courts, or if it is read and considered, and merely not cited.28 Indeed, individual opinions often contain citations to scholarship to craft a persuasive argument.29 This has not, however, prevented critics from referencing the low value of the work of international law scholars found in harsh pronouncements by courts such as the English Admiralty Court: ‘A pedantic man in his closet dictates the law of nations; everybody quotes, and nobody minds him . . . and who shall decide, when doctors disagree?’30 The reluctance to refer to scholarship has been attributed to the highly political nature of the international legal system and to the small and incestuous community of international law scholars, where personal and political rivalries may undermine the strength of the judge’s reasoning if it demonstrated the clear influence of the opinion of one or the other scholar.31 International law scholarship has also been derided as nationally biased, superficial, and prone to making assertions about principles and rules that are unsupported by actual evidence, such as the inattentiveness to state practice in establishing the existence of custom.32

26 ibid 172–74. Robert Jennings, ‘The Judiciary, International and National, and the Development of International Law’ (1996) 45 Intl and Comparative L Q 1, 9 (hereafter Jennings, ‘The Judiciary’). 27 Jörg Kammerhofer, ‘Lawmaking by Scholars’ in Catherine Brölmann and Yannick Radi (eds), Research Handbook on the Theory and Practice of International Lawmaking (Elgar 2016) 305, 308. cf Pellet, ‘Article 38’ (n 12) 748 (arguing that although doctrine and jurisprudence perform the same function in the abstract, the ICJ’s use of the two sources has been quite different). See also P K Menon, ‘An Enquiry into the Sources of Modern International Law’ (1986) 64 Revue de Droit International, de Sciences Diplomatiques et Politiques 181, 199 (on the differential treatment of the two sources by the PCIJ and the ICJ). 28 Robert Jennings, ‘Reflections on the Subsidiary Means for the Determination of Rules of Law’ (2003) 1 Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz 319, 327–28 (hereafter Jennings, ‘Reflections’); Pellet, ‘Article 38’ (n 12) 791–92. See also Peil, ‘Scholarly Writings’ (n 12) 144–47 (Peil examines the possible reasons for the reluctance to cite scholars). 29 Manfred Lachs, The Teacher in International Law: Teachings and Teaching (Nijhoff 1982) 172–73 (hereafter Lachs, Teacher); Jennings, ‘Reflections’ (n 28) 328. 30 The Renard (1778) Hay-Marriott 222–224; 165 English L Rep 51, 52 (Adm). 31 Pellet, ‘Article 38’ (n 12) 792; Hilary Charlesworth, ‘Law-Making and Sources’ in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (CUP 2012) 187, 197 (hereafter Charlesworth, ‘Law-Making and Sources’); Jennings, ‘The Judiciary’ (n 26) 9. 32 Clive Parry, The Sources and Evidences of International Law (Oceana 1965) 104–05, 108 (hereafter Parry, Sources and Evidences); Schwarzenberger, ‘Inductive Approach’ (n 23) 560–62. See also Nicholas Greenwood Onuf, ‘Law-Making in the Global Community (1974)’ in Nicholas Greenwood Onuf (ed), International Legal Theory: Essays and Engagements 1966–2006 (Routledge-Cavendish 2008) 63, 71.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

112 Neha Jain Some scholars have nonetheless alluded to the practice and social reality of the normative authority exercised by international law scholars.33 At least in the beginning of the consolidation and development of international law, the lack of significant judicial practice meant that scholars were often in the vanguard of systematizing and clarifying the content of international legal rules.34 Scholars claim that ‘the books and the opinions of the nineteenth century seem often to resemble catalogues of the praises of famous men. “Hear also what Hall sayeth. Hear the comfortable words of Oppenheim” is an incantation which persists even into this century’.35 Even today, familiarity with the teachings of eminent international law scholars is considered the hallmark of a persuasive legal argument.36 Scholars have also had a deep impact on specialized areas of the law such as the law of diplomatic protection and the law of state succession.37 Additionally, scholars who participate in various governmental and inter-governmental capacities can have an outsize influence on the doctrine.38 This is especially true of academics who go on to illustrious careers as judges of international adjudicative bodies (where their judicial opinions may be an extension of their scholarly work and commitments) and those who are appointed to specialized bodies such as the Sixth Committee of the United Nations or the International Law Commission (ILC).39 Not only do academics constitute a significant proportion of the members of the ILC, but the ILC also frequently relies on well-known publicists in exercising their mandate to codify and progressively develop the rules of international law.40 In this process, the ILC has produced draft articles and prepared the ground for codification conventions that have had a significant influence on states as well as international institutions.41 There is, however, an intriguing discrepancy in the rate at which international tribunals, including the ICJ, cite the work and deliberations of the ILC when compared to 33 Lachs, Teacher (n 29) 176–77; Gleider I Hernández, ‘The Responsibility of the International Legal Academic: Situating the Grammarian within the “Invisible College” ’ in Nollkaemper and others (eds), International Law as a Profession (CUP 2017) 1, 20–1 (hereafter Hernández, ‘Responsibility’); Bos, ‘New Theory’ (n 14) 63. 34 Lassa Oppenheim, ‘The Science of International Law: Its Task and Method’ (1908) 2 American J of Intl L 313, 315, 345 (hereafter Oppenheim, ‘Science of International Law’) ; Gillian Triggs, ‘The Public International Lawyer and the Practice of International Law’ (2005) 24 Australian YB of Intl L 201, 202 (hereafter Triggs, ‘Public International Lawyer’). 35 Parry, Sources and Evidences (n 32) 103. 36 Hernández, ‘Responsibility’ (n 33) 20. 37 Parry, Sources and Evidences (n 32) 107. cf Triggs, ‘Public International Lawyer’ (n 35) 202–03 (citing examples where tribunals have rejected ‘progressive lawyering’ by scholars where their assertions have not been backed by evidence). 38 Lachs, Teacher (n 29) 167; Triggs, ‘Public International Lawyer’ (n 34) 205–06. 39 See Robert Jennings, ‘International Lawyers and the Progressive Development of International Law’ in Jerzy Macarczyk (ed), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzystof Skubiszewski (Kluwer Law International 1996) 417; Triggs, ‘Public International Lawyer’ (n 34) 205–06. 40 Lachs, Teacher (n 29) 194–95. 41 See Fernando Lusa Bordin, ‘Reflections of Customary International Law: The Authority of Codification Conventions and ILC Draft Articles in International Law’ (2014) 63 Intl and Comparative L Q 535, 536, 538–39 (hereafter Bordin, ‘Reflections’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Teachings of Publicists and the Reinvention of the Sources 113 other ‘academic’ sources.42 The ILC, in this sense, occupies a fairly unique institutional position, not only because of its status as an organ of the UN and the quality of the texts it produces, but also because the ‘provisions it formulates reflect a synthesis of scholarly opinion tempered by the general trends emerging from the opinions voiced by States’.43 In more recent years, the ICJ has relied directly on ILC draft articles in cases such as the Gabčíkovo-Nagymaros judgment.44 In this case, the ICJ declared that Article 33 of the ILC’s Draft Articles on State Responsibility on the state of necessity as precluding the wrongfulness of an act was reflective of customary international law. It went on to rely on the criteria provided in Article 33 for evaluating the existence of the necessity justification to determine Hungary’s international responsibility.45 The ICJ has since directly referenced the Draft Articles on State Responsibility in numerous judgments, as have other international adjudicative bodies.46

III. Publicists at the International Criminal Court A. Application and Hierarchy of Sources in ICL Given the extensive discussion on sources of law during the drafting of the Statutes of the PCIJ and ICJ and the subsequent wide ranging academic commentary on sources of public international law, it is surprising to see the scant attention paid to sources in the early stages of the development of international criminal law. The issue of sources was largely neglected during the drafting of the constitutive instruments of the ad hoc inter national tribunals, including the ICTY,47 the International Criminal Tribunal for Rwanda (ICTR),48 the Special Court for Sierra Leone (SCSL),49 the Extraordinary Chambers in the

42 Peil, ‘Scholarly Writings’ (n 12) 152. 43 Bordin, ‘Reflections’ (n 41) 552, 549–48. 44 ibid 544; Pellet, ‘Article 38’ (n 12) 757–58 citing Gabčíkovo-Nagymaros Project (Hungary v Slovakia), Judgment, [1997] ICJ Rep 7, 38–42, paras 47, 50–4. 45 ibid paras 49–58. 46 Bordin, ‘Reflections’ (n 41) 544–45 citing Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, [2007] ICJ Rep 43, para 385, 398, 420, 431; Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, [2010] ICJ Rep 14, para 273; Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Preliminary Objections, Judgment, [2007] ICJ Rep 582, paras 31, 91. 47 Statute of the International Criminal Tribunal for the Former Yugoslavia, UNSC Res 827, UNSCOR, 48th Sess, 3217th Mtg, UN Doc S/RES/827 (25 May 1993) (hereafter ICTY Statute). 48 Statute of the International Criminal Tribunal for Rwanda, UNSC Res 955, UNSCOR, 49th Sess, 3453rd Mtg, UN Doc S/RES/955, (8 November 1994). 49 UN Secretary-General, Report on the Establishment of a Special Court for Sierra Leone, UNSCOR, 55th Sess, UN Doc S/2000/915, (4 October 2000).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

114 Neha Jain Courts of Cambodia (ECCC),50 and the Special Tribunal for Lebanon (STL),51 none of which specify the sources of international criminal law or their hierarchy.52 In contrast, Article 21(1) of the Rome Statute of the International Criminal Court on ‘Applicable Law’ provides the following list of sources: a) first, the Statute, Elements of Crimes, and Rules of Procedure and Evidence; b) second, treaties, principles, and rules of inter national law; and c) failing that, general principles of law derived from laws of domestic legal systems, including those of the State that would normally have jurisdiction, as long as they are consistent with the Statute and with international law.53 This list differs from the one contained in Article 38(1) of the ICJ Statute in important respects. The Rome Statute, unlike the ICJ Statute, clearly contains a hierarchy as to the application of the sources—the ICC must first look to its own ‘internal’ or ‘proper’ sources (the Statute, Elements, Rules, and its own case law), then to other treaties and public international law rules, and to the general principles of law only if those still do not yield an answer.54 While there is no mention of the teachings of publicists or the jurisprudence of municipal and international tribunals, Article 21(2) authorizes the Court to ‘apply principles and rules of law as interpreted in its previous decisions’. This has not, however, prevented the ICC from turning to publicists, both to develop and interpret the provisions of the Rome Statute and to add heft to its decisions. While some of these uses of doctrine appear relatively banal, there are other areas of international criminal law, such as modes of liability, where the Court has pioneered an altogether different use of the teachings of publicists as a source of international criminal law.

B. The Role of Scholarship in the Jurisprudence on Modes of Liability Few aspects of international criminal law have been as deeply contested as the modes of liability for attribution of conduct to the accused. In a remarkable exercise of interpret ive creativity, the ICTY (headed by judge and scholar extraordinaire Antonio Cassese) was responsible for pioneering the doctrine of joint criminal enterprise (JCE) as a form of principal responsibility for the collective criminality that characterizes international 50 Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, UNGA Res 57/228, UN Doc A/RES/57/228B/Annex (13 May 2003); Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, NS/RKM/1004/006 (27 October 2004). 51 Statute of the Special Tribunal for Lebanon, UNS Res 1757, UN Doc S/RES/1757 (30 May 2007). 52 Gilbert Bitti, ‘Article 21 of the Statute of the International Criminal Court and the Treatment of Sources of Law in the Jurisprudence of the ICC’ in Carsten Stahn and Göran Sluiter (eds), The Emerging Practice of the International Criminal Court (Brill 2009) 285, 286–87 (hereafter Bitti, ‘Article 21’). 53 Rome Statute (n 8) art 21. 54 Bitti, ‘Article 21’ (n 52) 287–88. See also Allain Pellet, ‘Applicable Law’ in Antonio Cassese, Paola Gaeta, and John R W D Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, vol II (OUP 2002) 1051, 1053–54 (hereafter Cassese and others (eds), The Rome Statute).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Teachings of Publicists and the Reinvention of the Sources 115 crimes.55 The JCE doctrine has since been subject to extensive commentary and criticism,56 and there was much speculation on whether it will be endorsed by the ICC, especially since the Rome Statute has a detailed provision on modes of liability that does not, on the face of it, include JCE.57 In its first pronouncement on modes of liability in the Lubanga confirmation of charges decision, the ICC belied expectations by comprehensively rejecting JCE as a potential form of principal liability under the Statute and introducing the doctrines of co-perpetration and indirect perpetration into international criminal law in its place.58 In Lubanga, the Pre-Trial Chamber purported to adopt a textual interpretation of Article 25(3)(a) of the Rome Statute. It noted different approaches to distinguishing between parties to a crime: objective (physical commission of the objective elements of the crime); subjective (the mental state accompanying the contribution to the crime); and ‘control’ (the decision on whether and how the offence will be committed). According to the Chamber, the doctrine of ‘control’ over the crime was expressly included in the provision on liability for indirect perpetration in Article 25(3)(a) of the Rome Statute.59 Thus, the notion of ‘co-perpetration’ in the same article had to cohere with this criterion for differentiating between principals and accessories.60 The Lubanga Pre-Trial Chamber then specified the objective and subjective elements of co-perpetration, which have formed a template for subsequent iterations of the elem ents by the Pre-Trial Chamber. The objective elements consist of, first, an agreement or a common plan between two or more persons. This plan can be implicit and should include an element of criminality, even though it need not be directed specifically at the commission of a crime.61 Second, there must be a coordinated essential contribution by 55 The Prosecutor v Tadić (Judgment) IT-94-1-A, (15 July 1999) paras 187–93 (ICTY, Appeals Chamber). 56 See e.g., Allison Marston Danner and Jenny S Martinez, ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law’ (2005) 93 California L Rev 75; Gideon Boas, James Bischoff, and Natalie Reid, International Criminal Law Practitioner Library, Vol I: Forms of Responsibility in International Criminal Law (CUP 2008) 8–141; Jens David Ohlin, ‘Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise’ (2007) 5 J of Intl Crim Justice 69. 57 See e.g., Florian Jessberger and Julia Geneuss, ‘On the Application of a Theory of Indirect Perpetration in Al Bashir: German Doctrine at the Hague?’ (2008) 6 J of Intl Crim Justice 853, 865 (predicting that the ICC may be willing to interpret accessory liability under art 25(3)(d) as a ‘little cousin’ of JCE); Thomas Weigend, ‘Intent, Mistake of Law and Co-Perpetration in the Lubanga Decision on Confirmation of Charges’ (2008) 6 J of Intl Crim Justice 471, 478 (remarking that Art 25(3)(d) ‘cracks open the door’ on JCE); Linda Engvall, ‘The Future of Extended Joint Criminal Enterprise – Will the ICTY’s innovation meet the standards of the ICC?’ (2007) 76 Nordic J of Intl L 241, 258 (arguing that JCE may be split between para (a) and para (d) of Art 25). 58 The Prosecutor v Lubanga (Decision on the Confirmation of Charges) ICC-01/04–01/06, (26 January 2007) (Pre-Trial Chamber I) (hereafter Lubanga (Confirmation of Charges)). 59 ibid paras 328–35, 338–39. 60 ibid paras 331–32, 349–50. 61 ibid paras 343–45; The Prosecutor v Katanga and Ngudjolo Chui (Decision on the Confirmation of Charges) ICC-01/04–01/07, (30 September 2008) paras 522–23 (Pre-Trial Chamber I) (hereafter Katanga and Ngudjolo Chui (Confirmation of Charges)); The Prosecutor v Muthaura, Kenyatta and Ali (Decision of the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/09– 02/11, (23 January 2012) paras 399–400 (Pre-Trial Chamber II) (hereafter Muthaura, Kenyatta and Ali

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

116 Neha Jain each perpetrator resulting in the realization of the objective elements of the crime.62 The first subjective element for co-perpetration is the accused’s fulfillment of all subjective elements of the crime with which he is charged. For most crimes under the jurisdiction of the ICC, this would mean meeting the ‘intent’ and ‘knowledge’ requirements in Article 30(1) of the Rome Statute.63 All co-perpetrators must also be mutually aware of and accept that the execution of the common plan may result in the realization of the objective elements of the crime.64 Finally, the accused must be aware of the factual circumstances enabling him to jointly control the crime.65 In the decision of confirmation of charges in Katanga and Ngudjolo, the Pre-Trial Chamber endorsed and expanded upon the notion of control under Article 25(3)(a) developed in Lubanga.66 In Katanga and Ngudjolo, however, the Chamber focused on the elements of liability for joint perpetration through another person. The Chamber saw no merit in the defence’s argument that the phrase ‘jointly with another or through another person’ can include either ‘co-perpetration’ or ‘indirect perpetration’, but not ‘indirect co-perpetration’.67 It then set out the objective elements for perpetration by (Confirmation of Charges)); The Prosecutor v Banda and Jerbo (Corrigendum of the Decision on the Confirmation of Charges) ICC-02/05–03/09, (7 March 2011) paras 129–35 (Pre-Trial Chamber I) (here after Banda and Jerbo (Confirmation of Charges)); The Prosecutor v Ruto, Kosgey and Sang (Decision of the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/09–01/11, (23 January 2012) paras 301–04 (Pre-Trial Chamber II) (hereafter Ruto, Kosgey and Sang (Confirmation of Charges)); The Prosecutor v Abu Garda (Corrigendum of the Decision on the Confirmation of Charges) ICC-02/05–02/09, (8 February 2010) paras 160, 163–232 (Pre-Trial Chamber I) (hereafter Abu Garda (Confirmation of Charges)). 62 Lubanga (Confirmation of Charges) (n 58) paras 346–48; Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) paras 524–26; Muthaura, Kenyatta and Ali (Confirmation of Charges) (n 61) paras 401–06; Banda and Jerbo (Confirmation of Charges) (n 61) paras 136–49; Ruto, Kosgey and Sang (Confirmation of Charges) (n 61) paras 305–12; Abu Garda (Confirmation of Charges) (n 61) paras 160, 180–232. 63 Lubanga (Confirmation of Charges) (n 58) paras 349–60. See also Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) paras 527–32; The Prosecutor v Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) ICC-01/05–01/08, (15 June 2009) para 351 (Pre-Trial Chamber I) (hereafter Bemba Gombo (Confirmation of Charges)); Muthaura, Kenyatta and Ali (Confirmation of Charges) (n 61) paras 410–17; Ruto, Kosgey and Sang (Confirmation of Charges) (n 61) paras 333, 338–47; Abu Garda (Confirmation of Charges) (n 61) para 161; Banda and Jerbo (Confirmation of Charges) (n 61) paras 150–57. 64 Lubanga (Confirmation of Charges) (n 58) 361–65; Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) paras 533–37. 65 Lubanga (Confirmation of Charges) (n 58) 366–67; Bemba Gombo (Confirmation of Charges) (n 63) para 351; Banda and Jerbo (Confirmation of Charges) (n 61) paras 150, 160–61; Abu Garda (Confirmation of Charges) (n 61) para 161. 66 See Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) paras 480–86. 67 ibid paras 490–93. See also Ruto, Kosgey and Sang (Confirmation of Charges) (n 61) paras 287, 289 (stating that the concept of indirect co-perpetration was derived from merging the two modes of participation in Article 25(3)(a), that was a dynamic approach to interpretation in conformity with the Vienna Convention on the Law of Treaties); Abu Garda (Confirmation of Charges) (n 61) paras 156–57. See Thomas Weigend, ‘Perpetration through an Organization: The Unexpected Career of a German Legal Concept’ (2011) 9 J of Intl Crim Justice 91, 110 (hereafter Weigend, ‘Perpetration through an Organization’) (stating that there is nothing novel about this mode of liability that is merely a combination of two accepted modes of perpetration).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Teachings of Publicists and the Reinvention of the Sources 117 means, concentrating on the cases that it considered most relevant to international criminal law: the doctrine of Organisationsherrschaft.68 These elements have been reiter ated in subsequent Pre-Trial Chamber Confirmation of Charges decisions.69 The first element consists of the perpetrator’s control over the organization.70 The Katanga and Ngudjolo Pre-Trial Chamber opined that since Article 25(3)(a) expressly provided for the commission of a crime through another culpable person, it would also encompass cases involving the principal’s control over an organization.71 The second element is the existence of an organized and hierarchical apparatus of power.72 The third element is execution of the crimes through ‘automatic’ compliance with orders.73 There has been a significant amount of academic writing critically assessing the merits of the ICC’s jurisprudence on indirect and co-perpetration.74 However, for the purposes of this chapter, far more intriguing are the sources the ICC has relied on to put forward indirect and co-perpetration as an appropriate exegetical result and to define the elements of these modes of liability. The doctrines are a clear instance of borrowing from civil law doctrines of perpetration, in particular from the German criminal law system, where they originated in the work of prominent German criminal law theorists tasked with developing the Dogmatik of German criminal law.75 The very framework for the distinction between parties to a crime (subjective, objective, and control) is taken from German scholarship,76 and the concept of ‘control’ to distinguish between perpet rators and accessories was initially developed by German scholar Claus Roxin.77 The indebtedness of the doctrines to German criminal law scholarship is evident in the citations in the Lubanga confirmation of charges decision.78 Tracking back the references produces even more striking results—most of the academic sources cited by the Pre-Trial Chamber in turn rely on the conceptual framework for perpetration recog68 See Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) paras 495–99. 69 Muthaura, Kenyatta and Ali (Confirmation of Charges) (n 61) paras 407–10; Ruto, Kosgey and Sang (Confirmation of Charges) (n 61) paras 313–32. 70 See Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) paras 500–10; Muthaura, Kenyatta and Ali (Confirmation of Charges) (n 61) paras 407–10; Ruto, Kosgey and Sang (Confirmation of Charges) (n 61) paras 313–32. 71 Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) paras 501, 510. 72 ibid paras 511–14; Muthaura, Kenyatta and Ali (Confirmation of Charges) (n 61) para 408; Ruto, Kosgey and Sang (Confirmation of Charges) (n 61) 313–17. 73 See Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) paras 515–18; Muthaura, Kenyatta and Ali (Confirmation of Charges) (n 61) paras 409–10; Ruto, Kosgey and Sang (Confirmation of Charges) (n 61) paras 313–32. 74 For a comprehensive review and citations, see Neha Jain, Perpetrators and Accessories in International Criminal Law: Individual Modes of Responsibility for Collective Crimes (Hart 2014) 81–98. 75 See e.g., Johannes Wessels and Werner Beulke, Strafrecht, allgemeiner Teil: Die Straftat und ihr Aufbau (42th revised edn, C F Müller 2012) 190–208 (hereafter Wessels and Beulke); HW Laufhütte and others (eds), Strafgesetzbuch Leipziger Kommentar (Großkommentar): Band 1 (12th revised edn, De Gruyter 2007) 1844–964 (hereafter Leipziger Kommentar) (on the development and explication of the modes of liability in German criminal law). 76 Wessels and Beulke (n 75) 193–95; Leipziger Kommentar (n 75) 1846–60. 77 Claus Roxin, Täterschaft und Tatherrschaft (De Gruyter 2006) 60–126. 78 See e.g., Lubanga (Confirmation of Charges) (n 58) at fn 425 citing Roxin and a number of authors who share his view.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

118 Neha Jain nized in German doctrine and inspired by one major author: Claus Roxin.79 Thus, even the scholarly chorus that undergirds the Pre-Trial Chamber’s analysis is heavily influenced by the ideas and writings of one towering intellectual figure, who is subsequently taken to represent an academic majority or consensus.80 Equally striking is the absence of references to almost any other sources. There is a passing reference to Judge Schomburg’s Opinions in the Gacumbitsi case at the ICTR and to the Stakić trial judgment at the ICTY.81 It is perfectly legitimate for the Pre-Trial Chamber to refer to the jurisprudence of the ad hoc tribunals, which is of persuasive value. However, Judge Schomburg’s reasoning also shows the clear influence of German scholarship. There are several direct references in the Opinion to the work of Roxin,82 and tracing back numerous other citations reveals Roxin as an important source of inspiration. For instance, Judge Schomburg cites the adoption of the concept of indirect perpetration by the German Federal Supreme Court (Bundesgerichtshof) in the Politbüro case, for which the original source is the work of Roxin.83 Similarly, his reference to the Argentinian National Appeals Court’s endorsement of the doctrine of indirect perpetra tion in the Argentine Juntas case84 fails to acknowledge the overwhelming influence of German criminal law doctrine and theorists, including Roxin, on the Argentinian law dealing with modes of criminal responsibility.85 This pattern of references is repeated in the Katanga and Ngudjolo confirmation of charges decision, where nearly all the citations are to the Pre-Trial Chamber’s decision in Lubanga and to German scholarship,86 with the occasional nod to judicial decisions by a few national courts.87 Yet again, though, Claus Roxin is the Chamber’s 79 See e.g., Lubanga (Confirmation of Charges) (n 58) fn 418 citing Gerhard Werle, Principles of International Criminal Law (TMC Asser Press 2005) margin no 354 (who cites Kai Ambos, Der Allgemeine Teil des Völkerstrafrechts (Duncker & Humblot 2002) whose work in turn has numerous references to Roxin’s framework); Lubanga (Confirmation of Charges) (n 58) fn 418 citing George Fletcher, Rethinking Criminal Law (OUP 2000) 639 (whose primary citations are to German law and doctrine); Lubanga (Confirmation of Charges) (n 58) fn 419 citing Albin Eser, ‘Individual Criminal Responsibility’ in Cassese and others (eds), The Rome Statute (n 53) vol 1, 795 (who cites Friedrich-Christian Schroeder, Der Täter hinter dem Täter (Duncker & Humblot 1965), the precursor to Roxin’s theory of indirect perpetration). 80 This argument takes its inspiration from the methodological model developed in Lianne Boer’s work on consensus claims in the context of use of force. See Boer, ‘Consensus Claims’ (n 4) 1037–38. 81 Lubanga (Confirmation of Charges) (n 58) at fns 418, 422–24, 426, 432, 434, 436–37, 440, 442 citing The Prosecutor v Gacumbitsi (Judgment) ICTR-2001-64-A, (7 July 2006) (ICTR, Appeals Chamber, Separate Opinion of Judge Schomburg) (hereafter Gacumbitsi, Separate Opinion of Judge Schomburg); and The Prosecutor v Stakić (Trial Judgment) IT-97-24-T, (31 July 2003) (ICTY, Trial Chamber II). 82 Gacumbitsi, Separate Opinion of Judge Schomburg (n 81) fns 31–33, 37. 83 Gacumbitsi, Separate Opinion of Judge Schomburg (n 81) fns 35, 38 citing German Federal Supreme Court (Bundesgerichtshof), Judgment of 26 July 1994, BGHSt 40, 218, 236. On the Bundesgerichtshof ’s adoption and expansion of Roxin’s theory, see Weigend, ‘Perpetration through an Organization’ (n 67) 94–95, 98–99. 84 Gacumbitsi, Separate Opinion of Judge Schomburg (n 81), fn 34 citing Judgement on Human Rights Violations by Former Military Leaders of 9 December 1985, [1987] 26 ILM 317–72. 85 Cassandra Steer, Translating Guilt: Identifying Leadership Liability for Mass Atrocity Crimes (Springer and TMC Asser Press 2017) 215, 217–19. 86 Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) at fns 640, 642, 645–46, 647, 649, 655–60, 664–65, 678, 680–84, 686, 689 (citing, amongst other commentators, Roxin). 87 Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) at fns 667, 679.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Teachings of Publicists and the Reinvention of the Sources 119 ‘crown witness’.88 When it comes to modes of liability at the ICC then, all roads eventually lead to Roxin and his adherents. The various elements of the modes of co-perpetration and indirect perpetration resemble their original counterparts in German criminal law doctrine, with only very few departures, such as the ability of the indirect perpetrator to secure automatic compliance with his orders based not on the element of fungibility of the direct perpetrators, but through intensive and violent training regimens for subordinates.89 The almost exclusive reliance on scholars varies markedly from the jurisprudence of the ad hoc tribunals, where surveys of the citation practice of the ICTY, for instance, have concluded that the influence of doctrine on the decision-making of the ICTY is marginal.90 This is not a particularly surprising conclusion, given that the ad hoc tribunals have been at pains to signal their adherence to the doctrine of sources in Article 38(1) of the ICJ Statute and have emphasized the ‘subsidiary’ character of the sources listed in Article 38(1)(d).91 The difference in approach between the ICC and the ad hoc tribunals suggests that the turn to doctrine for fleshing out modes of liability at the ICC cannot be fully accounted for by the fact that the traditional sources of public international law are silent on this question. It is important to note that while the doctrines of co-perpetration and indirect per petration are perfectly plausible interpretations of the text of Article 25(3), they are far from the only logical interpretation. As Van Sliedregt notes, contrary to the claims of the Pre-Trial Chamber in Lubanga, the drafting history of Article 25(3) suggests no single coherent doctrinal grounding for the modes of liability as a whole.92 The ostensibly textual interpretation has also been questioned by Judge Van den Wyngaert, whose Concurring Opinion in the Ngudjolo case93 challenges the derivation of the control theory from 88 Weigend, ‘Perpetration through an Organization’ (n 67) 94. 89 Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) para 518. This addition to the element of fungibility is not found in the original German doctrine: see Weigend, ‘Perpetration through an Organization’ (n 67) 107 (critical of this position, stating that the Chamber may have found it necessary to adapt the doctrine to suit the exigencies of mass atrocity in Africa). cf Harmen van der Wilt, ‘The Continuous Quest for Proper Modes of Criminal Responsibility’ (2009) 7 J of Intl Crim Justice 307, 312 (arguing that this new element introduces flexibility in the doctrine). 90 Michael Bohlander, ‘The Influence of Academic Research on the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia–A First Overview’ (2004) 3 Global Community: YB of Intl L and Jurisprudence 195, 208. See also Michael Bohlander, ‘Language, Culture, Legal Traditions and International Criminal Justice’ (2004) 12(3) J of Intl Crim Justice 491, 502 (conducting a qualitative assessment of the overall citations in the Lubanga trial judgment to conclude that 88% were academic sources). 91 Borda, ‘Formal Approach to Article 38(1)(d)’ (n 21) 653 citing The Prosecutor v Zoran Kupreškić et al. (Judgment) IT-95-16-T, (14 January 2000) para 540 (ICTY Trial Chamber); and The Prosecutor v Issa Hassan Sesay, Morris Kallon, Augustine Gbao (Judgment) SCSL-04-15-T, (2 March 2009) para 295 (SCSL, Trial Chamber). 92 Elies van Sliedregt, Individual Criminal Responsibility in International Law (OUP 2012) 85–6; Jens David Ohlin, Elies van Sliedregt, and Thomas Weigend, ‘Assessing the Control-Theory’ (2013) 26 Leiden J of Intl L 725, 744–45. 93 The Prosecutor v Ngudjolo Chui (Judgment Pursuant to Article 74 of the Statute, Concurring Opinion of Judge Christine Van den Wyngaert) ICC-01/04–02/12, (8 December 2012) (Trial Chamber II) (hereafter Ngudjolo (Judgment, Concurring Opinion Judge Van den Wyngaert)).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

120 Neha Jain German legal doctrine. According to Judge Van den Wyngaert, this appropriation of the control theory violates both Article 31(1) of the Vienna Convention on the Law of Treaties, under which the court should interpret treaty terms according to their ‘ordin ary meaning’94 as well the principles of strict construction and in dubio pro reo enshrined in Article 22(2) of the Rome Statute. This would be true even if the control theory could be regarded as a ‘general principle of criminal law’ under Article 21(1)(c), that is highly doubtful.95 There is, however, an alternative explanation for the adoption of the control theory by the ICC, which lies in the doctrine of sources.

IV. The Reliance on Doctrine On the face of it, the ICC’s resort to doctrine is merely an effort in treaty construction where it fleshes out the full meaning and import of the terms of the Rome Statute. However, the intricate liability structure that it produces scarcely resembles the everyday business of treaty interpretation. Indeed, it comes much closer to a technique that is much more common in civil law systems such as Germany: the heavy reliance on the Dogmatik to structure and understand the law.

A. Scholars and the Dogmatik In an illuminating observation on the ICC’s jurisprudence, George Fletcher attempts to explain the interpretive stance of the Pre-Trial Chamber’s Lubanga and Katanga and Ngudjolo Confirmation Decisions as an attempt to develop a Dogmatik, or a ‘set of values and principles that provide the structure of a code of criminal law’96 on principles of liability based on the jurisprudence of scholars. As Fletcher notes, if the ICC were to follow this methodology consistently, it would involve a move away from strict adherence to the terms of the statute towards interpreting it in light of a Dogmatik that evolves through the jurisprudence of the ICC and scholars.97 Fletcher’s cursory remarks, however, pave the way to a more considered examination of whether the influence of the civilian tradition of sources of law and interpretation, in particular the role of scholars in the process, might signify a shift in the way doctrine will be used to develop inter national law, at least in the specific field of international criminal law.

94 See also The Prosecutor v Lubanga (Judgment Pursuant to Article 74 of the Statute, Separate Opinion of Judge Fulford) ICC-01/04–01/06, (14 March 2012) paras 12, 13, 16 (Trial Chamber I) (hereafter Lubanga (Judgment, Separate Opinion of Judge Fulford)) (adopting a plain reading of the Statute). 95 Ngudjolo (Judgment, Concurring Opinion Judge Van den Wyngaert) (n 93) paras 14–20. See also Lubanga (Judgment, Separate Opinion of Judge Fulford) (n 94) paras 10–12. 96 George P Fletcher, ‘New Court, Old Dogmatik’ (2011) 9 J of Intl Crim Justice 179. 97 ibid 184.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Teachings of Publicists and the Reinvention of the Sources 121 An idea of what this might entail can be obtained from looking at the esteem in which ‘doctrine’ is held in civil law traditions such as Germany, both historically and in the contemporary legal system. While scholarship or doctrine is by no means an official source of law, the concept of Lehre (teachings or ‘theory’) is integral to the systematization of the law.98 The herrschende Lehre (dominant teachings) are not enacted law, but being as they are, statements and theories about the basic legal principles that lend structure and coherence to the law as a whole, they are highly persuasive in judicial reasoning and decision-making.99 Indeed, in the case of a gap in the law, some modern codes explicitly authorize judges to rely on ‘established doctrine’.100 The doctrine serves various functions, including providing answers to specific cases, critiquing the existing jurisprudence with the explicit aim of developing the law, and uncovering fundamental conceptual and structuring principles.101 This tradition of the high value placed on the writings of scholars has its origins in pre-classical and classical Roman law and stretches into the emergence of the modern civil law systems in the twelfth century, where the systematic study and exposition of the law at centres of learning had a significant influence on the judicial process.102 Professors were cited extensively by advocates, asked to weigh in on complex cases, and even used as a way for judges to avoid personal liability for potentially wrong judgments!103 The main features of this intellectual heritage persist till the present and scholars continue to be extremely influential in civil law as well as mixed-legal systems.104 The ICC’s jurisprudence on modes of liability owes much to a similar appropriation of doctrine (that is, moreover, not international but domestic in nature) whereby the systematizing function of scholarship constitutes a de facto source of law. What could account for this approach to the authoritativeness of doctrine?

B. Scholars and their relationship to international criminal law Possible explanations for why the teachings of publicists have ascended to the status of a dominant legal source in the ICC’s jurisprudence on forms of responsibility must take 98 See George P Fletcher, ‘Two Modes of Legal Thought’ (1981) 90 Yale L J 970, 988. 99 ibid 988–94 (on Germany); John Henry Merryman, ‘The Italian Style I: Doctrine’ (1965) 18 (2) Stanford L Rev 39, 42–3 (on Italy). See also William Twining and others, ‘The Role of Academics in the Legal System’ in Peter Cane and Mark Tushnet (eds), The Oxford Handbook of Legal Studies (OUP 2003) 920, 937 (hereafter Twinning and others, ‘The Role of Academics’). 100 Swiss Civil Code of 10 December 1907, art 1.3 (English translation available at accessed 3 July 2018.) 101 Twinning and others, ‘The Role of Academics’ (n 99) 936–37. 102 ibid 938. See also R C Van Caenegem, Judges, Legislators, and Professors (CUP 1987) 59–70. 103 Twinning and others, ‘The Role of Academics’ (n 99) 938; Andras Jakab, ‘Seven Role Models of Legal Scholars’ (2011) 12 German L J 757, 758–59. 104 Twinning and others, ‘The Role of Academics’ (n 99) 938–39; Jurij Fedynskyj, ‘Book Review: The Role of Judicial Decisions and Doctrine in Civil Law and Mixed Jurisdictions, edited by Joseph Dainow’ (1975) 50 Indiana L J 636, 637–38.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

122 Neha Jain into account the distinctly ‘scholarly’ background of the development of the institutions of international criminal justice. In the beginning of the revival of international crim inal law in the 1990s, prominent public international law academics such as Cherif Bassiouni played a central role in the establishment and design of international criminal tribunals such as the ICTY.105 The influence of public international law scholars was apparent in the academic spirit and style of ICTY judgments spearheaded by judgeacademic Antonio Cassese, whose reputation as a public international law scholar was eclipsed only by his role in the development of the early jurisprudence of the ICTY.106 Bassiouni and other prominent scholars were also instrumental in the drafting of the Rome Statute of the ICC; and the subsequent phase of the maturing of international criminal law has witnessed the growing participation of scholars with a primarily crim inal law background.107 The composition of this ‘invisible college’ of international criminal law scholars has also shifted and now includes academics from traditionally under-represented parts of the globe, including Eastern Europe, Asia, and Africa.108 Scholars continue to occupy a crucial role in the discourse of international criminal justice, not only due to their advisory role in significant processes such as the negoti ations leading to the definition of the crime of aggression,109 but also because of the revolving door that characterizes the practice of international criminal law.110 From the very inception of international criminal tribunals, there has been a close connection between lawyer-academics who move between important roles in government or academia and then go on to careers as lawyers and judges in international courts, and sometimes return to yet more illustrious careers in policy positions in their home countries.111 The quasi-academic pedigree of the ad hoc tribunals and the ICC, and the scholarly background of influential individual lawyers and judges who have played important roles in the formulation and application of international criminal legal rules might explain their readiness to turn to doctrine as a source of inspiration or authority. The nature of scholarship in international criminal law is also quite varied and serves a multitude of purposes: theoretical/conceptual systematization, doctrinal construction, value-oriented activism, critical reflection, and empirical evaluation.112 The conceptual and normative focus of a good proportion of international criminal law scholarship may in fact be one of the contributing factors in its influence on the jurisprudence of the 105 Claus Kreß, ‘Towards a Truly Invisible College of International Criminal Lawyers’ (2014) Torkel Opsahl, FICHL Occasional Papers Serie No 4, at 6. 106 ibid 6–7. 107 ibid 7–8. 108 ibid 26–33. 109 ibid 19. It bears mentioning that Kreß himself played a significant role in the codification of the crime of aggression. 110 See Mikkel Jarle Christensen, ‘Academics for International Criminal Justice: The Role of Legal Scholars in Creating and Sustaining a Legal Field’ (2014) iCourts Working Paper Series No 14 accessed 3 July 2018. 111 ibid 10–18 (tracing the career trajectories of some prominent lawyer-academics throughout the history of international criminal law). See also Sergey Vasiliev, ‘On Trajectories and Destinations of International Criminal Law Scholarship’ (2015) 28 Leiden J of Intl L 1, 9–10 (on the ever close connections between ‘academic scholarship’ and ‘scholarship of action’). 112 ibid 11–13. See also Carsten Stahn and Eric D Brabandere, ‘The Future of International Legal Scholarship: Some Thoughts on “Practice”, “Growth”, and “Dissemination” ’ (2014) 27 Leiden J of Intl L 1, 3–5.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Teachings of Publicists and the Reinvention of the Sources 123 international criminal tribunals, especially given the relatively underdeveloped state of the principles governing international criminal law, even by the time the ICC was established and began to function. In some ways, this reliance on non-traditional sources to promote and develop (rather than merely serve as evidence of) the law is not unique to the ICC. For instance, scholars have pointed to rare instances where individual opinions of judges at the ICJ cite the teachings of publicists to similar effect.113 In the context of international criminal law, scholar-judges such as Antonio Cassese early on pioneered a ‘critical positivism’ in their approach to finding and developing the principles of international criminal law.114 For Cassese, an international jurist faced with the indeterminacy of the law was justified in drawing on general principles that expressed (purportedly) universal values such as peace, democracy, and the rule of law to make an explicit choice between conflicting legal claims based on extra-legal considerations.115 Cassese has been compared to Lauterpacht in his approach to the progressive interpretation of law that is nevertheless grounded in a largely positivist framework.116 This can be seen, for instance, in his heavy emphasis on the element of opinio juris as compared to state practice for the identification of rules of customary international law.117 The readiness to harness sources of law that fall outside the hierarchy of the formal sources of public international law has meant that subsidiary actors, such as judges and scholars, have assumed an unusually authoritative role in the creation and interpretation of the rules of international criminal law.118 In the absence of any sophisticated pre-existing international criminal law framework, their task has often not been one of mere identification of the law, but that of conceptually oriented and value-laden development of the rules governing international criminal law.119

113 Peil, ‘Scholarly Writings’ (n 12) 155–57 citing Fisheries (United Kingdom v Norway), Merits, Judgment, [1951] ICJ Rep 145, 148–49 (Individual Opinion of Judge Alvarez); Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v Thailand), Provisional Measures, Order of 18 July 2011, Separate Opinion of Judge Trindade, [2011] ICJ Rep 566, Sections II–XI. 114 Antonio Cassese, ‘Introduction’ in Antonio Cassese (ed), Realizing Utopia: The Future of International Law (OUP 2012) xvii; Antonio Cassese (ed), Five Masters of International Law: Conversations with R-J Dupuy, E Jiménez de Aréchaga, R. Jennings, L. Henkin and O. Schachter (Hart 2011) 255–59. 115 For an exposition of Cassese’s critical positivism, see Isabel Feichtner, ‘Realizing Utopia through the Practice of International Law’ (2012) 23 European J of Intl L 1143, 1149–51; Hernández, ‘Responsibility’ (n 33) 28–9. 116 Robert Cryer, ‘International Criminal Tribunals and Sources of International Law: Antonio Cassese’s Contribution to the Canon’ (2012) 10 J of Intl Crim Justice 1045, 1061. 117 ibid 1049. 118 See Cassandra Steer, ‘Non-State Actors in International Criminal Law’ in Jean d’ Aspremont, W Michael Reisman, and Math Noortmann (eds), Participants in the International Legal System: Multiple Perspectives on Non-State Actors in International Law (Routledge 2011) 295, 295–99. 119 Public international law scholars have widely differing views on the appropriateness of this normative function played by publicists. See generally Jörg Kammerhofer, ‘Orthodox Generalists and Political Activists in International Legal Scholarship’ in Matthew Happold (ed), International Law in a Multipolar World (Routledge 2011) 138, 146–47; Jochen von Bernstorff, ‘International Legal Scholarship as a Cooling Medium in International Law and Politics’ (2014) 25 European J of Intl L 977; Oppenheim,

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

124 Neha Jain

V. Conclusion Does the newfound importance given to doctrine in the development of modes of liability imply that in contrast to traditionally state-made public international law, inter national criminal law, at least in specialized areas, can be characterized as professormade? This would be too rigid a dichotomy. The ICC’s reliance on the teachings of publicists to develop an international law framework on modes of liability is but one instance of the emergence of doctrine as a de facto source of law, that may end up being limited to this highly technical criminal-law-specific area of the law. Indeed, one can argue that even when it comes to the elements of perpetration responsibility, after an initial embrace of doctrine as a source of law, the ICC has subsequently chosen to cite its own previous decisions on the requirements for liability as a perpetrator and largely refrained from referring to academic commentary.120 In doing so, the Court is clearly on firmer ground: under Article 21(2) the Court may apply ‘principles and rules of law as interpreted in its previous decisions’. This contrast in the use of sources is nevertheless striking, especially when one considers that there is now a rich discussion on modes of responsibility by international criminal law scholars, and the Court could thus avoid charges of relying exclusively on select domestic law debates. Should this pattern of references continue, in time, the original academic source of the elements of perpetration responsibility is likely to be obscured. Alternatively, the turn to jurists could signal a broader recognition by judges of the need to go beyond the official catalogue of sources in the Rome Statute, that very often do not contain concrete answers to the specific legal questions the Court confronts. For instance, a similar reliance on doctrine is noticeable in decisions and individual opinions on the elements required to establish the existence of crimes against humanity under Article 7 of the Rome Statute.121 In traditional public international law, however, the teachings of publicists are intended to serve this gap-filling function only indirectly, by providing material evidence that meets the criteria for establishing the ‘formal’ sources of law. To do otherwise may run counter to the principle of legality enshrined in the Rome Statute, which includes the prohibition against ex post facto criminalization, strict construction of crime definitions and restriction on extensions by analogy, and

‘Science of International Law’ (n 34) at 335; Schwarzenberger, ‘The Province of the Doctrine’ (n 23) 244, 259 (critical of this normative role). 120 However, as discussed earlier, these previous decisions are themselves based on the teachings of publicists, which remain the original source for the modes of liability. 121 See e.g., Situation in the Republic of Kenya (Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) ICC-01/09-19-Corr, (31 March 2010) fns 83–85, 87–90 (Pre-Trial Chamber II) (on the meaning of a state or organizational policy to commit an attack); The Prosecutor v Ruto and Sang (Decision on Defence Applications for Judgments of Acquittal, Dissenting Opinion of Judge Herrera Carbuccia) ICC-01/09–01/11, (5 April 2016) fns 70, 72, 73, 75, 76, 78, 79, 80, 82, 83, 85, 87, 88, 90, 92 (Trial Chamber V(A)).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Teachings of Publicists and the Reinvention of the Sources 125 the rule of in dubio pro reo.122 The Court could potentially still rely on the systematizing function of ‘doctrine’ to lend structure and coherence to the criminal law enshrined in the Rome Statute; after all, civil law systems that embrace this role played by doctrine in their criminal law systems manage to do so without jeopardizing their compliance with the principle of legality. If the Court chooses to traverse this path, it would need to address far more explicitly the scope and nature of the Dogmatik and its interpretive function within the framework of the Rome Statute. In particular, the Court will need to be conscious of the limits of using scholarship developed in the context of domestic legal systems to craft a Dogmatik for international criminal law. The Court could also use the teachings of publicists on international criminal law, as a ‘documentary’ or ‘law-determining’ source, which serves to evidence the existence of the ‘formal’ sources in Article 21(1) of the Rome Statute. Doctrine could prove useful in identifying the existence of ‘principles and rules of international law’ and ‘general principles of law derived from laws of domestic legal systems’. In this exercise, the Court must, however, be careful to distinguish between commentary that truly highlights the evidentiary basis for the ascertainment of the formal sources and scholarship that is more normative in character. In general public international law, an influential strain of scholarship has long been skeptical of the ‘ruleness’ of sources of law, especially of those that are considered formal sources.123 Thus, rather than identifying a single rule of recognition for international law,124 scholars have pushed for an emphasis on the social practice of authorities tasked with applying the law. Under this understanding, what qualifies as a source of law will depend as much on an act of interpretation by the relevant law-applying authority, as does the content of the law. Moreover, as this social practice shifts and evolves, so will the criteria for law-ascertainment.125 The ICC’s jurisprudence to date indicates that the Court is still formulating its position on legal sources, their hierarchy, and their interpretation.126 In this process, the Court will also be interpreting Article 21(1), which outlines the sources of law. As the ICC continues to engage in this exercise, its pronouncements are likely to constitute one of the most significant arbiters of what counts as a source of international criminal law, not only for the purposes of the Rome Statute, but also for the broader field of international criminal law.

122 Rome Statute (n 8) art 22. 123 See e.g., Jean d’ Aspremont, ‘The Idea of “Rules” in the Sources of International Law’ (2014) 84 British YB of Intl L 103 (hereafter d’Aspremont, ‘The Idea of “Rules” ’); Charlesworth, ‘Law-Making and Sources’ (n 31) 200. See also Jean d’Aspremont, ‘The Politics of Deformalization in International Law’ (2011) 3 Göttingen J of Intl L 503, 518–20 (describing various non-formalist approaches to sources of international law). 124 In Hartian terms, every legal system must have an ultimate single rule of recognition. See Grant Lamond, ‘Legal Sources, the Rule of Recognition, and Customary Law’ (2014) 59 American J of Jurisprudence 25, 28. 125 d’Aspremont, ‘The Idea of “Rules” ’ (n 123) 115–17. 126 See e.g., Neha Jain, ‘Interpretive Divergence’ (2017) 57 Virginia J of Intl L 45 (analyzing the ICC’s approach to treaty interpretation).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Section II

SPAC E S

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Chapter 6

L egiti m acy i n Wa r a n d Pu n ish m en t The Security Council and the ICC Tom Dannenbaum

I. Introduction Does the International Criminal Court (ICC) suffer from a legitimacy deficit? In terms of what Richard Fallon calls ‘sociological legitimacy’—acceptance by the relevant public of the institution’s authority as appropriate or justified—the Court is plainly in a difficult moment.1 States upon whose support and cooperation it depends are openly resisting, questioning, or weakening it. Burundi became the first state to withdraw in late 2017.2 Months later, the Philippines announced its exit, which was consummated on schedule in March 2019.3 Encouraged by the African Union (AU), others, including erstwhile ICC champion South Africa, have considered following suit.4 Also with AU backing, a 1 Richard H Fallon Jr, ‘Legitimacy and the Constitution’ (2005) 118(6) Harvard L Rev 1787, 1794–96 (hereafter Fallon, ‘Legitimacy and the Constitution’). 2 Agence France-Presse, ‘Burundi Becomes First Nation to Leave International Criminal Court’ The Guardian (London, 27 October 2017). 3 ‘Statement of the President of the Republic of the Philippines on the Jurisdiction of the International Criminal Court’ (13 March 2018) accessed 8 September 2018; Jason Gutierrez, ‘Philippines Officially Leaves the International Criminal Court’ The New York Times A9 (New York, 18 March 2019) 4 Assembly of the African Union, ‘Decision on the International Criminal Court’, 28th Ordinary Sess, Doc EX.CL/1006(XXX), (30–31 January 2017) para 8. A domestic court ruling finding procedural irregularity prompted South Africa to revoke its initial withdrawal instrument. Democratic Alliance v. Minister of International Relations and Cooperation and Others (83145/2016) [2017] ZAGPPHC 53; 2017 (3) SA 212 (GP); [2017] 2 All SA 123 (GP); 2017 (1) SACR 623 (GP). Initially, the government indicated that it would restart the process, however it has since undergone a change in leadership. Abdur Rahman Alfa Shaban, ‘South Africa’s Ruling Party Support’s ICC Exit Ahead of al-Bashir Ruling’ (Africa News, 5 July 2017)

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

130 Tom Dannenbaum long list of governments refused over the course of a decade to arrest then Sudanese President Omar al-Bashir, despite a long-standing warrant and the Court’s repeated insistence on their obligation to do so.5 Russia has mimicked the United States’ earlier ‘unsigning’ of the Rome Statute.6 And tension has grown around the issue of the Court’s budget.7 With politically delicate investigations underway or imminent, the path ahead does not promise a quick turnaround. In light of this escalating resistance, the time is ripe to reflect on whether the ICC’s legal authority is normatively well grounded. Rather than seeking to explain state resistance empirically, this latter query goes to what Fallon would call the Court’s ‘moral legitimacy’.8 Is the Court morally justified in its exercise of authority? As will be discussed in this chapter, the answer depends in part on the Court’s capacity to realize the normative purpose of its endowment with that authority.9 The moral and sociological forms of legitimacy (or illegitimacy) need not align. Significant numbers of states could resist a morally legitimate court. Equally, a majority might endorse and comply with a morally illegitimate one. Even when sociological and moral legitimacy converge, they may do so for different reasons. Thus, in questioning the Court’s moral legitimacy in certain situations, this chapter claims neither that the reasons that warrant such skepticism are the primary reasons motivating state resistance to the Court, nor that state motivations for resistance are themselves defensible. It claims only that there are robust normative grounds for questioning the Court’s authority, at least in certain contexts. The central legitimacy flaw explored here is specific to Security Council referrals of situations involving the nationals and territories of states that have not ratified the ICC accessed 8 September 2018. 5 After a series of diversely reasoned Pre-Trial Chamber decisions against states refusing to arrest a l-Bashir, the Appeals Chamber finally weighed in on the matter, confirming that the obligation stood despite al-Bashir’s position as head of state of Sudan at the time of the failures to arrest. Prosecutor v. Al Bashir (Judgment in the Jordan referral re Al-Bashir Appeal), ICC-02/05–01/09, (6 May 2019) (Appeals Chamber). On the AU position, see Assembly of the African Union, ‘Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court’, 13th Ordinary Sess, Doc Assembly/ AU/Dec 245(XIII), (1–3 July 2009). 6 The Ministry of Foreign Affairs of the Russian Federation ‘Statement by the Russian Foreign Ministry’ (Press Release, 16 November 2016) accessed 8 September 2018. 7 Matt Brown, ‘African Withdrawals Mask the Real Issue at the Assembly of States Parties 15’ (Opinio Juris, 8 December 2016) accessed 8 September 2018; Elizabeth Evenson and Jonathan O’Donohue, ‘States shouldn’t use ICC budget to interfere with its work’ (Amnesty International, 23 November 2016) accessed 8 September 2018. 8 Fallon, ‘Legitimacy and the Constitution’ (n 1) 1796–801. 9 This is closely related to what Buchanan and Keohane identify as the ‘integrity’ criterion of institutional legitimacy in the context of global governance. Allen Buchanan and Robert O Keohane, ‘The Legitimacy of Global Governance Institutions’ (2006) 20 Ethics & Intl Affairs 405, 422–24 (hereafter Buchanan and Keohane, ‘Legitimacy’).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Legitimacy in War and Punishment 131 Statute. The Court acts in such situations pursuant to unambiguous legal authority. However, that authority depends on the acquiescence of each of the permanent members of the Security Council, three of which are not ICC states parties. That institutional context undermines significantly the Court’s legitimacy in exercising its legal authority. Part II discusses the three premises underpinning this claim. First, the most defens ible philosophy of punishment at the international level is one of moral expressivism. On that theory, punishment is justified by its unique capacity to express appropriate societal condemnation of, and non-acquiescence in, criminal wrongdoing. Second, whether moral condemnation is justified is not simply a question of whether wrongdoing occurred and the responsible party was culpable: It requires also that the actor or institution issuing the condemnation has moral standing to do so. Third, institutions that exercise power depend for their moral legitimacy on their capacity to perform the central normative function(s) that justify that allocation of power. Thus, the moral legitimacy of an international criminal court or tribunal hinges in part on its moral standing to issue justified condemnation. Part III builds on those premises to argue that when the ICC acts pursuant to Security Council authority, its dependence on the acquiescence of the US, Russia, and China (call them the ‘non-party permanent members’) undermines its moral standing to condemn. Indeed, the ICC may be worse off in this respect than were the ad hoc tribunals and possibly even than were the post-World-War-II tribunals in Nuremberg and Tokyo. In contrast to those earlier tribunals, the ICC’s institutional permanence affords states the opportunity to affirm or reject its authority over their territories or nationals in a presumptively permanent way. The rejection of that authority by the non-party permanent members is uniquely harmful to the Court’s standing to condemn in Council-referred cases. If that thesis is right, it flips on its head the reverse divergence invoked so frequently since NATO’s 1999 military action in Kosovo, whereby unauthorized humanitarian interventions have been described as ‘illegal but [morally] legitimate’.10 Indeed, the thesis advanced here might seem to be in deep tension with a closely related post-Kosovo development—the notion that the Security Council has a responsibility to authorize the use of force to stop atrocity, and that the Council loses legitimacy when it fails to do so, even though such inaction falls clearly within the bounds of its legal discretion. Part IV asks whether it is possible to hold these apparently contradictory views simultaneously. Is the view that there is a legitimacy imperative for the Security Council to authorize force in response to atrocity compatible with the view that there is a legitimacy imperative against the Council’s referral of precisely such situations to the ICC? The reason to respond affirmatively is that the different roles of force and punishment in international law implicate different normative stakes, and thus distinct standards of legitimacy. International criminal punishment is about blame; the use of force is about 10 Independent International Commission on Kosovo, The Kosovo Report (OUP 2000) 4 (hereafter IICK Report).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

132 Tom Dannenbaum preventing certain kinds of wrongful harm. Standing is essential to an institution’s moral capacity to issue condemnation, including in the form of criminal punishment. However, it is less relevant to an institution’s moral capacity to use force, because it does not define the institution’s efficacy in responding to and preventing wrongful acts or threats. Part V argues that if this is right, the ICC’s legitimacy could be enhanced in one of two ways. If it were endowed with universal jurisdiction regarding international crimes, it could claim credibly to stand as an impartial supranational authority channeling universal values in a way that it cannot currently. Alternatively, if it were endowed exclusively with territorial and nationality jurisdiction, it could claim credibly to express the values of the community of states parties in contexts in which their values are implicated and their authority to determine normative boundaries is unambiguous. Of the two, the universal posture may better match the aspirations of international criminal justice. However, such a change to the structure of ICC jurisdiction is difficult to imagine in the short run. In the meantime, the Court’s legitimacy would benefit from a de facto move to the other alternative, whether through the Council refraining from ICC referrals, or the prosecutor declining to pursue such referrals ‘in the interests of justice’.

II. Moral Expressivism, Standing to Blame, and Institutional Legitimacy The first premise of the argument goes to the appropriate philosophy of punishment at the international level. Multiple justificatory theories have been offered in that regard, drawing on classic theories of domestic criminal punishment. Many frame international criminal justice as a mechanism for deterring atrocity.11 Others have argued that it is necessary to incapacitate individuals who are uniquely threatening to individual rights, fundamental values, or stability.12 Still others have framed it in retributivist terms—as a matter of issuing just deserts.13 Whatever the utility of these theories in the domestic 11 See e.g., Payam Akhavan, ‘Beyond Impunity Can International Criminal Justice Prevent Future Atrocities?’ (2001) 95 American J of Intl L 7, 10; Deirdre Golash, ‘The Justification of Punishment in the International Context’ in Larry May and Zachary Hoskins (eds), International Criminal Law & Philosophy (CUP 2010) 201, 211; Immi Tallgren, ‘The Sensibility and Sense of International Criminal Law’ (2002) 13(3) European J of Intl L 561, 569; Prosecutor v Delalić et al (Judgment), IT-96-21-A, (20 February 2001) para 806 (ICTY, Appeals Chamber) (hereafter Delalić); Prosecutor v Rutaganda (Judgment and Sentence), ICTR-96–3, (6 December 1999) para 456 (Trial Chamber I) (hereafter Rutaganda). 12 Gary J Bass, ‘Jus Post Bellum’ (2004) 32 Philosophy & Public Affairs 384, 404; Alexander K A Greenawalt, ‘Milosevic and the Justice of Peace’ in Timothy William Waters (ed), The Milošević Trial: An Autopsy (OUP 2013) 377; David Luban, ‘Fairness to Rightness’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (OUP 2010) 569, 575–76 (hereafter Luban ‘Fairness to Rightness’). 13 Delalić (n 11) para 806; Rutaganda (n 11) para 456; Alexander K A Greenawalt, ‘International Criminal Law for Retributivists’ (2014) 35 University of Pennsylvania J of Intl L 969; Jon Elster, ‘Retribution’ in Retribution and Reparation in the Transition to Democracy (CUP 2006) 33–56.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Legitimacy in War and Punishment 133 realm, none plausibly identifies the core normative function of international criminal justice as currently constituted. In addition to the standard objections to deterrence theory domestically, international criminal law addresses situations in which a presumption of rational action is dubious, arrest is unlikely, and in which individuals anyway face competing incentives of physical and political survival that dominate the prospect of criminal punishment in both urgency and severity.14 Retributivist theories also fail. A system of highly selective and necessarily meagre punishment cannot plausibly perform the metaphysical rebalancing that retributivism demands; penalties are difficult to justify in juxtaposition to punishments for ordinary domestic crime; and fair play versions of retributivism are unpersuasive in situations of social breakdown or competing international and domestic laws.15 Incapacitation theories fare little better. Inevitably, they place excessive causal weight on a small number of individuals whose arrest is feasible typically only once they no longer hold political sway.16 Moreover, they fail to account for the danger that pros ecuting those persons (rather than exiling them, for example) will revive their political status and fuel (rather than suppress) the very narratives of grievance and victimization that motivate atrocity in the first place.17 Recognizing the failure of these standard theories of criminal punishment when transposed to the international level, a growing number of scholars have come to the conclusion that international criminal punishment is best understood as a mechanism of moral expression.18 Paraphrasing Joel Feinberg’s classic articulation in the domestic realm, Robert Sloane argues that international criminal punishment is the international 14 Tom Dannenbaum, ‘Crime Beyond Punishment’ (2009) 15(2) University of California Davis J of Intl L & Policy 189, 203–08 (hereafter Dannenbaum, ‘Crime Beyond Punishment’); Robert D Sloane, ‘The Expressive Capacity of International Punishment’ (2007) 43 Stanford J of Intl L 39, 71–75 (hereafter Sloane ‘Expressive Capacity’); Mark A Drumbl, ‘A Hard Look at the Soft Theory of International Criminal Law’ in Leila Nadya Sadat and Michael P Scharf (eds), The Theory and Practice of International Criminal Law (Brill 2008) 1, 14–15 (hereafter Drumbl ‘A Hard Look at the Soft Theory’); Julian Ku and Jide Nzelibe, ‘Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?’ (2006) 84 Washington University L Rev 777. But see Hyeran Jo and Beth Simmons, ‘Can the International Criminal Court Deter Atrocity?’ (2016) 70(3) Intl Organization 443 (arguing that the ICC can deter in limited ways despite these obstacles); Nick Grono and Anna de Courcy Wheeler, ‘The Deterrent Effect of the ICC on the Commission of International Crimes by Government Leaders’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (OUP 2015) 1225. 15 Dannenbaum, ‘Crime Beyond Punishment’ (n 14) 194–203; Sloane ‘Expressive Capacity’ (n 14) 60, fn 146; Drumbl ‘A Hard Look at the Soft Theory’ (n 14) 11–14. 16 Dannenbaum, ‘Crime Beyond Punishment’ (n 14) 215–17; Drumbl ‘A Hard Look at the Soft Theory’ (n 14) 15. 17 Dannenbaum, ‘Crime Beyond Punishment’ (n 14) 215–17. On the potential for trials to exacerbate the collective senses of grievance that underpin atrocity, see Marko Milanović, ‘Establishing the Facts About Mass Atrocities’ [2016] 47 Georgetown J Intl L 1321 (hereafter Milanović, ‘Establishing the Facts’). 18 See Sloane ‘Expressive Capacity’ (n 14); Luban ‘Fairness to Rightness’ (n 12) 575–76; Diane Marie Amann, ‘Group Mentality, Expressivism, and Genocide’ [2002] 2 IntlCLR 93, 117; Margaret M. deGuzman, ‘Choosing to Prosecute’ [2012] 33 MichJIntlL 265; Mark A. Drumbl, Atrocity, Punishment, and International Law (2007) 3, 61, 173–79; Ralph Henham, ‘Some Issues for Sentencing in the International Criminal Court’ [2003] 52 ICLQ 81, 111; Bill Wringe, ‘Why Punish War Crimes?’ [2006] 25 L&Phil 151; Conor McCarthy, Reparations and Victim Support in the International Criminal Court (2012) 132–33.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

134 Tom Dannenbaum community’s attempt ‘authoritatively to disavow that conduct, to indicate symbolically its refusal to acquiesce in the crimes, to vindicate international human rights norms and the laws of war’.19 On this account, when the ICC punishes, it does not simply impose a cost on the criminalized behaviour; it condemns the perpetrator and disavows her act.20 It is upon accepting this starting point that the second premise of the argument becomes important. A key insight from the philosophy of blame and blaming is that the question of whether condemnation is morally appropriate is not merely a function of whether the potential target of that condemnation engaged in culpable wrongdoing. Another essential element is that the person or body engaged in condemnation must have the moral standing to blame the wrongdoer.21 Thus, whereas ‘a judgment of blameworthiness is [one] that anyone can make’, issuing blame requires that the blaming agent is able to stand in a particular kind of relationship vis-à-vis the wrongdoer and the wrong.22 This requirement is familiar from the morality of ordinary life. An individual’s complicity in another’s wrongdoing, or culpability for similar past wrongs against the present wrongdoer would undermine the former’s standing to issue blame, even though neither would mitigate the latter’s blameworthiness.23 Consider a simple case. Adolf Eichmann culpably perpetrated extraordinary wrongdoing in the context of the Holocaust. Nonetheless, it would have been morally indefensible for Adolf Hitler or Heinrich Himmler to have condemned him for those wrongs.24 The fact that blame from the latter two would have been inappropriate says nothing about either the gravity of Eichmann’s wrongdoing or his culpability for it. It hinges entirely on the connection of Hitler and Himmler to precisely the same wrong, and thus their lack of standing to condemn Eichmann on that front. Blame, in short, is an agent-relative normative concept. The concept of ‘standing’ in the legal realm refers typically to a threshold requirement for bringing a legal claim. There is no notion that courts must have legal standing; the limits of courts’ reach are defined instead by rules of admissibility and jurisdiction. To the extent a system of criminal justice is justified as a system of retribution, deterrence, or incapacitation, there may also be no need to think about the moral standing of 19 Sloane ‘Expressive Capacity’ (n 14) 71. See also Prosecutor v Blaškić (Judgment), IT-95-14-A, (29 July 2004) (Appeals Chamber) (acknowledging that punishment is in part a mechanism for the international community to issue ‘public reprobation and stigmatisation’ para 678). 20 Arguably, condemnation is constitutive of criminal punishment at any level. Dan M Kahan, ‘What Do Alternative Sanctions Mean?’ (1996) 63(2) University of Chicago L Rev 591, 599. On moral expressivism generally, see Elizabeth S Anderson and Richard H Pildes, ‘Expressive Theories of Law’ (2000) 148 University of Pennsylvania J of Intl L 1503; Joel Feinberg, ‘The Expressive Function of Punishment’ (1965) 49 Monist 397. 21 Gerald A Cohen, ‘Casting the First Stone: Who Can, and Who Can’t Condemn the Terrorists?’ in Finding Oneself in the Other (Princeton UP 2013) 115 (hereafter Cohen, ‘Casting the First Stone’); Marilyn Friedman, ‘How to Blame People Responsibly’ (2013) 47 J of Value Inquiry 271; T M Scanlon, Moral Dimensions: Permissibility, Meaning, Blame (Harvard UP 2008) 175–76 (hereafter Scanlon, Moral Dimensions). 22 ibid 175. See also Cohen, ‘Casting the First Stone’ (n 21) 119–21. 23 Scanlon, Moral Dimensions (n 21) 176–78. 24 cf Cohen, ‘Casting the First Stone’ (n 21) 124, 126.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Legitimacy in War and Punishment 135 criminal courts. In those realms, what matters, in addition to protecting the rights of the accused and guarding against the punishment of innocents, is that just deserts are realized, wrongdoing is made costlier and thus less prevalent, and wrongdoers are taken off the streets, respectively. Moral standing is not itself essential to such tasks, although some of its criteria may be. To the extent criminal courts are best understood as agents of communal moral condemnation, however, their fulfilment of that core normative function hinges fundamentally on their moral standing to blame. This goes to the third premise of the argument. The moral legitimacy of any institution that exercises power is contingent on its capacity to perform its core normative function effectively.25 Lacking that capacity, its exercise of power does not provide the contribution to society that justifies its endowment with that power. Exercised in that way, power becomes arbitrary. The consequences of this view for international criminal courts or tribunals are significant. If it is correct that such courts serve the normative function of channeling justified condemnation, it follows from the above that they depend for their legitimacy on having moral standing. If they lack such standing, they cannot perform that function. Assuming jurisdiction and admissibility, their positive legal authority may remain intact, but they would exercise it without moral legitimacy. Ordinarily, the moral standing of criminal courts in this respect is simply presumed. Indeed, the system of criminal justice ought to be set up to ensure it. In a well-functioning system, a criminal court is structured so as to stand in an impartial posture vis-à-vis all of those over whom it has jurisdiction and thus to channel the condemnation of the whole without being undermined by the wrongdoing, complicity, or contrary expressions of any of the constituent members. Criminal courts are, in that sense, designed to be able to adopt a position of unique standing vis-à-vis the wrongdoer. Individuals’ standing to blame can be undermined by their own actions, commitments, or relations with the perpetrator or the wrong.26 This is true even of victims, whose special (and typically elevated) standing to blame their perpetrators is shaped by factors specific to the individuals involved and their relationships prior to and after the wrong.27 Although those particulars often give the victim a particularly strong basis for standing, they can work the other way. Thus, a victim may lack standing for having provoked the wrong or for having perpetrated similar wrongs in the past.28 A system of criminal justice can avoid such threats to standing by disavowing credibly the wrongs of any individual members of the collective for which it speaks. That disavowal is achieved through the equal application of the criminal law. A system of criminal justice that deviates from that standard can lose its standing to condemn. The complicity of a domestic system of criminal justice in wrongs graver than those it prohibits or the failure of that system to adhere to basic standards of equality before the law might be thought to eviscerate the condemnatory power of criminal 25 cf Buchanan and Keohane, ‘Legitimacy’ (n 9) 422–24. 26 Scanlon, Moral Dimensions (n 21) 175–79. See also ibid 122–52. 28 Cohen, ‘Casting the First Stone’ (n 21) 119, 127–28.

27 ibid 136–38.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

136 Tom Dannenbaum judgments in such societies. A criminal justice system upholding apartheid would surely fall into such a category.29 This does not necessarily mean that criminal law has no authority at all in such conditions. Minimalist Hobbesian reasons may warrant upholding punishment for core non-political crimes, even when the system’s injustices are sufficiently grave to warrant resistance. However, a criminal justice system of that sort cannot be defended as the vehicle for moral expression through punishment. The concept of condemnation as a form of non-acquiescence may help to illuminate this point. Systematic acquiescence in wrongdoing of the same or worse kind when committed by persons of a race or class other than that of the accused would preclude the credibility of courts in expressing non-acquiescence in the cases that are punished. If such punishment expresses anything, it is discrimination in favour of those shielded from prosecution, not genuine condemnation and disavowal of the wrongs done.

III. The Legitimacy Problem in International Criminal Justice In light of the expressive function of international criminal punishment (and the corresponding weakness of alternative theories of punishment in that realm), the question of standing is particularly pointed at the international level. This is a problem for the ICC. When the Court acts pursuant to Security Council referrals, it condemns a category of persons equivalent in all morally relevant respects to officials of non-party permanent members acting outside state party territory.30 And yet, the structure of the Court’s authority is such that it is bound to acquiesce in equivalent wrongs when perpetrated by members of the latter group. That structured acquiescence arises from two facts about those states. Each has veto power over Council referrals to the Court and each has expressed its rejection of the Court’s authority over its nationals or territory by declining to ratify the Rome Statute. Before elaborating that argument, it is worth emphasizing that the problem of standing is not new. Moral condemnation has always been at the heart of international criminal punishment.31 And the institutions applying that punishment have long been subject to critiques that go directly to their standing to issue such condemnation. 29 Garry Seltzer, ‘The Role of the South African Criminal Code in Implementing Apartheid’ (1978) 8 Georgia J of Intl & Comparative L 176. 30 The focus here is on court action in situations in which Security Council referral is the only available jurisdictional trigger, because the conditions provided in art 12(2) of the ICC Statute are inapplic able. In theory, of course, the Security Council could refer situations covered by art 12(2), but its role in such situations is legally inessential to ICC jurisdiction, and so is unlikely to arise. 31 ‘Opening Statement at Nuremberg by Justice Robert H Jackson, Chief Prosecutor for the United States, 21 November 1945 in Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg 14 November 1945–1 October 1948, vol II (International Military Tribunal 1947) 98, 102 (hereafter Jackson, Nuremberg Opening Statement); Luban, ‘Fairness to Rightness’ (n 18) 584.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Legitimacy in War and Punishment 137 Perhaps most famously, Justice Radhabinod Pal issued a stinging dissent from the judgment of the International Military Tribunal for the Far East (IMTFE).32 Like the parallel International Military Tribunal at Nuremberg (IMT), the IMTFE sat in judgment only of Axis war criminals. Allegations of Allies’ war crimes were off the jurisdictional table. Defeated enemies were convicted of crimes that had never previously been defined or applied. In light of this combination of features, Pal described the IMTFE as a ‘manifestation of power’ and a ‘sham’.33 Despite providing the foundational precedents of international criminal law, the tribunals have never fully escaped the taint of ‘victor’s justice’.34 A parallel critique reappeared in the 1990s. Duško Tadić, the first defendant at the International Criminal Tribunal for the former Yugoslavia (ICTY), claimed that the Tribunal lacked authority in part because the ‘Security Council had been inconsistent in creating this Tribunal while not taking a similar step in the case of other areas of conflict in which violations of international humanitarian law may have occurred’.35 This too was a claim about standing. Underpinning it was the observation that the broader system from which the Tribunal derived legal authority had acquiesced repeatedly in similar crimes when perpetrated in other situations. Having failed to disavow them, its purported disavowal of his wrongs rang hollow. In response, the Appeals Chamber ruled that the facts that the Tribunal was ‘set up by a competent organ in keeping with the relevant legal procedures’ and that it operated pursuant to the dictates of ‘procedural fairness’ were sufficient to satisfy the requirements of the rule of law.36 Although responsive to other aspects of the appeal, this ignored Tadić’s more fundamental objection to the Tribunal’s moral standing to condemn him.37 One of the Rome Statute’s virtues was supposed to be that it would move beyond such challenges. Several features of the statute look like significant improvements in that respect. Rather than being narrowly bound to a specific situation, the ICC is a permanent institution with potentially global reach. Within the Court’s ordinary territorial and personal jurisdictional limits, the prosecutor can initiate investigations without needing the authorization of any particular state or set of states. Referral by any state party or

32 ‘Judgment of the Honorable Mr Justice Pal, Member from India’ in Neil Boister and Robert Cryer (eds), Documents on The Tokyo International Military Tribunal (Oxford University Press 2008) 809 (hereafter Pal, Tokyo Dissent). 33 ibid 826–27. 34 William A Schabas, ‘Victor’s Justice’ (2010) 43 John Marshall L Rev 535, 536 (hereafter Schabas, ‘Victor’s Justice’). 35 Prosecutor v. Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), IT-94-1-AR72, (2 October 1995) para 27 (ICTY, Appeals Chamber) (hereafter Prosecutor v Tadić (Decision on Jurisdiction)). 36 ibid paras 42, 45–46. 37 Sarah M H Nouwen, ‘Legal Equality on Trial’ (2012) 43 Netherlands YB of Intl L 151 (hereafter Nouwen, ‘Legal Equality on Trial’) (arguing that the Tribunal avoided this issue by shifting the focus from its creation to the application of the law).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

138 Tom Dannenbaum approval by the Pre-Trial Chamber is sufficient.38 Within that realm, there is no institutionally pre-determined acquiescence. Any perpetrator who is a national of a state party or who committed her crime on a state party’s territory is a viable target for investigation, without arbitrary exclusion.39 Had it been endowed exclusively with these forms of jurisdiction, the ICC would have operated from something like the normative posture of a regional court.40 That is to say, an ICC so defined would have stood as the voice of a particular community—the community of states parties and their populations—channeling their condemnation of a particular class of wrongs identified by that community for their gravity or trans national implications. The only limits on the reach of that condemnation would have been the ordinary limits of such a community—those of nationality and territory. These limits do not undermine standing internally. First, limiting condemnation to members of the collective community (state party nationals) and those who act on community territory is consistent with an approach on which condemnation is only imperative as a matter of coherent moral expression in response to wrongdoing in which the community has a certain kind of direct interest. Refraining from condemning wrongdoing outside those bounds is rooted not in acquiescence in that wrongdoing, but in a recognition that the community’s values are not assaulted directly and that other actors are therefore better placed to issue that disavowal. Second, a court’s standing to condemn within the bounds of nationality and territory does not depend on its disavowal of wrongdoing perpetrated by non-members outside the boundaries of the community, because such a court does not claim to issue condemnation on behalf of the perpetrators of the latter wrongs. Conversely, it does claim to speak on behalf of all members of its community, as defined by territory and nationality. It is when it channels, among others, the voices of perpetrators that it has systematically failed to disavow that a court’s condemnation lacks credibility. Third, a jurisdictional regime rooted in territoriality and nationality is compatible with the view that some of the norms reflected in the Rome Statute go beyond existing customary law and are therefore only appropriate grounds for judgment vis-à-vis those who are connected by nationality or territory to states that have affirmed those rules formally. For these reasons, to refrain from issuing condemnation on a universal basis is not to acquiesce in foreign wrongdoing occurring abroad. It is instead to draw a defensible line 38 Rome Statute of the International Criminal Court, (17 July 1998) 2187 UNTS 3, Can TS 2002 No 13, arts 12(2), 14–15 (hereafter Rome Statute). 39 This is not to say that the prosecutor will not be influenced by political or other factors in selecting cases. It is only to say that the legal framework of the ICC does not itself channel any such arbitrary protections or exclusions. 40 cf the proposed International Criminal Law Section of the African Court of Justice and Human Rights. Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (27 June 2014) accessed 8 September 2018.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Legitimacy in War and Punishment 139 between those instances of wrongdoing that are within the institution’s scope of evaluation and those that are better left to other communities and institutions. That is not to say that it is the only defensible line. A prominent alternative in the context of international criminal law is that of universal jurisdiction. Serious proposals were made during drafting to grant the ICC that authority.41 Plainly, an ICC so empowered would have been structured with a different posture vis-à-vis outsiders. Rather than acting as the voice of a particular community, expressing the values of that community in contexts in which it is particularly invested, it would have adopted a position more akin to that of a domestic court asserting universal jurisdiction.42 Such courts stand in something like the position of an impartial bystander, or a member of the global human community. From that position, they channel global values to express condemnation on the part of that broader community, often acting opportunistically when violators who have escaped punishment elsewhere come within their reach.43 As long as the violations would be recognized universally to be wrongful and the application of such jurisdiction is not arbitrarily limited to exclude particular actors, this too is a plausible posture from which to claim standing to condemn. Had the ICC been endowed with universal jurisdiction, it would have enjoyed standing to condemn on the same basic grounds. If anything, its credibility in channeling global values would have exceeded that of domestic courts, given its connection to, design by, and staffing with actors from a broad range of states and cultures.44 In sum, there are at least two viable lines that could have been drawn in defining the ICC’s jurisdictional reach, neither of which would have undermined its standing to condemn. One would have been universal. The other would have focused exclusively on wrongdoing by the nationals or on the territories of states parties. Although more

41 Elizabeth Wilmshurst, ‘Jurisdiction of the Court’ in Roy S Lee (ed), The International Criminal Court: The Making of the Rome Statute—Issues, Negotiations, Results (Kluwer 1999) 127, 132–39; Philippe Kirsch and John T Holmes, ‘The Rome Conference on an International Criminal Court’ (1999) 93 American J of Intl L 2, 4, 8–9. 42 On the normative grounds for universal jurisdiction, Stephen Macedo (ed), Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law (University of Pennsylvania Press 2003). On the customary status of universal jurisdiction for war crimes, Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law (CUP 2005) 604–07. On its prevalence, Amnesty International, Universal Jurisdiction: A Preliminary Survey of Legislation Around the World—2012 Update (Amnesty International 2012). On the lack of any significant opinio juris against such laws, Case Concerning the Arrest Warrant of 11 April 2000 (DRC v. Belgium) (Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal) [2002] ICJ Rep 3, paras 19–65. On US opposition, see John B Bellinger III and William J Haynes II, ‘A US government response to the International Committee of the Red Cross Study Customary International Humanitarian Law’, 46 ILM 514, [2007] 89 IRRC 443, 465–70. 43 Eichmann v. Attorney-General (29 May 1962), [1968] 36 Intl L Report 277 (Israel, Supreme Court). 44 For some, the standing of domestic courts in this regard may depend on the lack of an international alternative. See ibid.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

140 Tom Dannenbaum restricted, the latter posture is normatively and practically defensible, as well as being consistent with dominant jurisdictional models in domestic law. The Rome Statute, however, did not draw the jurisdictional line at either of these points. Instead, via Article 13(b), it allowed for the Security Council to create a third basis for ICC jurisdiction beyond those of nationality and territory. Pursuant to that mode, a Council referral grants the Court jurisdiction over all crimes committed in the referred situation, unfettered (per current jurisprudence) even by those immunities that would ordinarily block third states from cooperating in the arrest and surrender of certain non-party officials.45 It allows the condemnation of those not linked to the community of states parties by nationality or territory, but falls short of pure universal jurisdiction, because the Court can investigate such extra-territorial, extra-national situations only if the Council so authorizes. This places extraordinary control over the scope of criminal justice in the hands of the permanent members of the Security Council. Each can block unilaterally the Court’s exercise of extra-territorial, extra-national jurisdiction. In exercising that unilateral negative control, the decision-makers in each of the non-party permanent members (the US, China, and Russia) can ensure their own protection against vulnerability to prosecution at the ICC for any crimes committed on their territory (or the territory of another non-party) and even their protection from arrest for any crimes committed on the territory of a state party for as long as they are shielded by an effective immunity.46 They can also block the Court’s jurisdiction over any of their lower-level subordinates regarding crimes perpetrated outside the territory of a state party. Thus, the inequality between states that are permanent members of the Security Council and states that are not underpins an inequality under ICC law between different groups of individuals (as well as between different clusters of states).47 The upshot is that a leader of one of the non-party permanent members could act identically in every respect to the way that Omar al-Bashir is alleged to have acted and yet would hold veto power over her own and her subordinates’ vulnerability to prosecution at the ICC. The mechanism that rendered members of the Sudanese or Libyan regimes vulnerable to prosecution is the very mechanism that empowers American, Chinese, and Russian leaders to protect themselves and their officials from liability at the ICC, as long as they do not commit a crime on the territory of a state party and lack an applicable immunity. Despite the obvious tension with fundamental principles of the rule of law, this framework has strong positivist legal credentials. The Court has unambiguous statutory authority to act pursuant to Council referrals.48 Similarly, having survived an early challenge in the Tadić litigation, the Security Council’s authority to activate systems of inter national criminal justice pursuant to Article 41 of the UN Charter is now widely

45 See sources at n 5. 46 Rome Statute (n 38) art 98(1). 48 Rome Statute (n 38) art 13(b).

47 Nouwen, ‘Legal Equality on Trial’ (n 37).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Legitimacy in War and Punishment 141 recognized.49 As such, the legality of the Council-referral system at the ICC is relatively uncontroversial.50 Its moral legitimacy is more vulnerable. Comparing the ICC with earlier tribunals can illuminate this point. To be clear, in light of the relatively strong grounds for standing in nationality and territorial jurisdiction cases, the Court is generally less plagued by moral standing problems than were its predecessor tribunals. However, in the specific context of Council-referred situations, the ICC arguably suffers a greater deficit of moral standing than did those earlier tribunals. Paradoxically, this is partly because of its more straightforwardly legitimate exercise of nationality and territorial jurisdiction. Consider first the ad hoc tribunals. The starting point for an argument defending the ICTY from Tadić’s challenge would be to emphasize that ad hoc tribunals presume themselves to be extraordinary responses to extraordinary situations. From that perspective, their singularity and rarity is a feature, not a bug; they focus on specific situ ations because those situations are deemed extraordinarily in need of an institution of criminal justice. At the same time, a central claim of any such defence must be that situations of similarly extraordinary character, equally in need of external judicial scrutiny will also be addressed through a tailored international response, without arbitrary exclusion. Robert Jackson articulated this point at Nuremberg, asserting, ‘while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment’.51 Of course, it is difficult to imagine that a permanent member of the Security Council would allow the creation of an ad hoc tribunal for crimes committed by its leaders or other agents. However, this is a political prediction about state action in a hypothetical future situation, based on factors outside the processes of international criminal justice. The tribunal’s legal framework does not itself indicate that likelihood one way or the other. As such, a defence of an ad hoc tribunal’s standing might emphasize that in its own concrete and present acts of moral expression through punishment, such a tribunal can act credibly from the aspirational premise that the international community will live up 49 Prosecutor v Tadić (Decision on Jurisdiction) (n 35) paras 27–36; Erika De Wet, The Chapter VII Powers of the United Nations Security Council (Hart 2004) 338–56; Nouwen, ‘Legal Equality on Trial’ (n 37) (arguing that the basis for ICC jurisdiction here is the same as that underpinning the ad hoc tribunals). But see Dov Jacobs, ‘The Frog That Wanted to Be an Ox’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (OUP 2015) 281 (advocating a minority position that the Security Council referrals to the ICC are more problematic than are resolutions creating ad hoc tribunals at 290, 295, 298). 50 Of course, the fact that the moral legitimacy deficit asserted here implicates a rule of law deficit raises the possibility of a deeper form of legality challenge. I thank Frédéric Mégret for emphasizing this in comments on an earlier draft. 51 Jackson, Nuremberg Opening Statement (n 31) 152. See also Telford Taylor, ‘The Meaning of the Nuremberg Trials’ (address delivered in French, Palais de Justice, Paris, 25 April 1947 at 12 accessed 8 September 2018.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

142 Tom Dannenbaum to the standards expressed through its creation. It can operate, in other words, on the presumption that other tribunals will be created when the facts demand it. This optimistic presumption would be most credible for tribunals created at what might appear to be transformative moments, in which the political conditions that precluded criminal accountability in the past seem to be changing. This was arguably the case at Nuremberg (with the dawn of the United Nations) and again with the tribunals for Rwanda and Yugoslavia (shortly after the end of the Cold War). A second feature of such tribunals can help to bolster the viability of that aspirational premise—namely, the extension of their jurisdiction to all persons within their limited geographic, temporal, and material reach, without arbitrary exclusion.52 For example, the ICTY heard cases against members of all local parties to the conflicts arising from the breakdown of Yugoslavia and the prosecutor determined (correctly) that the Tribunal would have been able to assert jurisdiction over NATO actors too.53 The relevance of this second feature is in informing and strengthening the presumption underlying the first. Equality before the law within the situation over which the tribunal exercises jurisdiction bolsters (although clearly not definitively) the presumption that the tribunal can be seen as part of a developing framework of international criminal justice that does not systematically shield certain actors on morally arbitrary grounds. This feature of the defence of ad hoc tribunals’ standing does not extend easily to the International Military Tribunals at Nuremberg and Tokyo, given their explicit restriction to cases involving ‘European Axis’ and ‘Far Eastern’ war criminals, respectively.54 The best that can be said of those tribunals may be that the crimes of those prosecuted far exceeded the crimes of those shielded, offering a gravity basis for one-sidedness.55 Even if defensible on those terms (itself a dubious claim), the internal imbalance would certainly not augment the Jacksonian presumption that analogous tribunals would be created in analogous situations in the future. The claim of internal impartiality is more plausibly available to the ICTY and ICTR, although this, too, has been complicated by skepticism regarding the reasons why prosecutors did not pursue alleged perpetrators from NATO and the Rwandan Patriotic Front respectively.56 52 The same cannot be said of the Special Court for Sierra Leone. Statute of the Special Court for Sierra Leone, 16 January 2002, art 1(2) accessed 8 September 2018. However, as a hybrid court, its status and the plausible limits on its jurisdiction differ in significant ways. 53 ‘Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia’ (Press Release, 2000) accessed 8 September 2018. Objecting to that position, despite the fact that it resulted in no prosecutions, see Henry Kissinger, ‘The Pitfalls of Universal Jurisdiction’ (2001) 80 Foreign Affairs 86. 54 Charter of the International Military Tribunal, 8 August 1945, 82 UNTS 279, arts 1, 6; Charter of the International Tribunal for the Far East, 19 January 1946, 1589 TIAS 21, arts 1, 5. 55 Schabas, ‘Victor’s Justice’ (n 34) 536 (discussing both sides of that debate). See e.g., contra Pal, Tokyo Dissent (n 32) 1091 (questioning the notion that Allied crimes were less grave). There is also, of course, the problem of the Tokyo Tribunal’s acquiescence in the crimes of Emperor Hirohito. 56 See e.g., Letter from Philip Roth, Human Rights Watch, to ICTR Chief Prosecutor Hassan Jallow in Response to His Letter on the Prosecution of RPF Crimes (14 August 2009)

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Legitimacy in War and Punishment 143 Ultimately, a defence of the ad hoc tribunals’ moral legitimacy along these lines is necessarily limited and contingent. The less credible the aspirational premise regarding future tribunals and the less credible non-discriminatory explanations of prosecutorial gaps, the less plausible the tribunal’s claim to standing. It may even be that the legitimacy of such tribunals suffers retrospectively if the optimistic premise proves to be wildly erroneous. Thus, Security Council cooperation in the creation of the Special Court for Sierra Leone would redound to the benefit of the earlier tribunals, but its inaction on atrocities perpetrated in North Korea, Myanmar, Yemen, or Syria (to name only a few) might be thought to harm their standing. That said, assuming that this limited defence holds for ad hoc tribunals, one might think that it would be equally applicable to the ICC in Council-referred situations. After all, in a formal sense, Russia, the US, and China have been equally silent at moments of ad hoc tribunal creation and at moments of ICC referral about their willingness to allow similar Security Council action in future equivalent situations involving their (or their allies’) territories or nationals.57 In theory, then, it is equally possible in either case that these states would allow the future creation of such a tribunal or referral of such a situation; if the aspirational presumption is available to the ad hoc tribunals, it must also be available in defence of the ICC. However, the argument does not transfer so simply. Silence cannot be interpreted in isolation. Understanding what it means requires juxtaposing it to the available alternative modes of expression. Whereas permanent member silence regarding future situations in the context of tribunal creation is ambiguous, silence in the context of ICC referral is more pointed. In the context of an ad hoc tribunal, permanent members’ willingness vel non to accept the authority of analogous future institutions finds no formal expression one way or the other. Any given permanent member involved in the creation of an ad hoc tribunal may intend genuinely to subject its nationals to analogous future institutions where appropriate, or it may have no intention of the sort. By nature, such tribunals are detached from any instrument through which permanent members might make a firm and binding commitment clarifying the matter. At most, states can make hortatory Jacksonian statements of intent.58 In the resulting ambiguity, the best that can be said of such states’ posture is that the aspirational premise described above may be viable, at least in transformative moments of international relations. The ICC provides a very different context. ICC situations occur within a standing institution in which the Security Council typically plays no role. The overwhelming majority of situations come to the Court via states’ long-term treaty commitments.59 accessed 8 September 2018. 57 The separate issues of art 98 agreements and carve-outs within Security Council referrals are addressed later in this part. 58 Jackson, Nuremberg Opening Statement (n 31). 59 Of the 12 situations that had been opened for investigation by the prosecutor at the time of writing, only two (Darfur and Libya) were opened pursuant to Security Council referral. Nine situations are

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

144 Tom Dannenbaum This is possible, because, pursuant to Articles 12, 13(a), and 13(c) of the statute, the Court can act with respect to the nationals or territories of states parties without needing Council approval. That context allows states (including permanent members of the Security Council) to express a position vis-à-vis their own long-term relationships with that institution and its system of criminal justice that is simply unavailable in the ad hoc tribunal context. The UK and France have seized that opportunity. By ratifying the statute, they have effectively foresworn the veto as a tool of self-protection at the ICC. Were they the only veto-wielding states, the Court’s standing in Council-referred situations would be far stronger than that of any of the ad hoc tribunals. However, they are not the only permanent members. Moreover, their ratification provides the alternative against which the non-party permanent members’ silence must be interpreted. Specifically, that ratification defines the silence of each non-party permanent member in this context as the eschewal of an opportunity to commit to allowing Court scrutiny of crimes by its nationals or on its territory. This is a fundamentally different message from that conveyed at the creation of an ad hoc tribunal, where silence entails no such refusal. Significantly, the non-permanent members’ eschewal of commitment occurs in a context in which those very states express both comfort with the scope of the Court’s material jurisdiction, as applied to action by non-party nationals on non-party territory, and confidence in the impartiality and independence of the prosecutors and judges regarding case selection, case management, and adjudication. These, in any event, are the only defensible implications of their decision to support, or at least to allow, referral of the situation at hand. In light of this combination of factors, the overwhelming presumption must be that non-party permanent members will use the veto to protect (at least some of) their nationals and allies’ nationals from ICC scrutiny. Given the perennial availability of ratification, overcoming that presumption would require a change in the legal relationship, whether through Article 12(3) declaration, Security Council referral, or ratification itself. Perhaps a similar result could be achieved through committing publicly not to exercise the veto to block an ICC referral of a mass atrocity situation.60 However, in a context of the state’s non-ratification, unless such a commitment had some teeth, it would be of dubious credibility. Certainly, it is hard to imagine a state being willing genuinely to foreswear the veto in such situations, and yet refusing to ratify the satute. In any event, no such commitment has been made. currently in the preliminary examination stage and the prosecutor has closed preliminary examinations in five further situations, without opening an investigation; none of these were referred by the Council. 60 Proposing a general commitment not to veto in response to situations of mass atrocity, see France Diplomatie, ‘Why France wishes to regulate use of the veto in the United Nations Security Council’ accessed 9 September 2018. See also Accountability, Coherence and Transparency Group, Code of Conduct Regarding Security Council Action Against Genocide, Crimes Against Humanity and War Crimes, UNGAOR, 70th Sess, UN Doc A/70/621–S/2015/978, (2015).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Legitimacy in War and Punishment 145 On the contrary, the non-party permanent members have exacerbated the impression that they would use the veto as a shield. Most obviously, the Council has tried to protect ‘nationals, current or former officials or personnel’ of outside non-party states from the Court’s reach in its resolutions referring the situations in Darfur and Libya.61 The legal effect of these carve-outs has yet to be tested, but the US has been explicit in stating their purpose to be shielding its personnel from ICC scrutiny.62 Indeed, the US has gone further in rejecting ICC authority by agreeing a slew of bilateral agreements to preclude the arrest and transfer to The Hague of US nationals, and passing legislation authorizing the use of force to retrieve any American detained to that end or already in ICC custody.63 These specific signals confirm the more fundamental message expressed by silence in the form of non-ratification. The implication of that basic communication is not simply that an analogue of the arrest warrant issued for Omar al-Bashir is politically inconceivable for the leaders or officials of the US, Russia, or China, as might be thought to have been the case at the creation of the ad hoc tribunals. More significantly, the silence of those states, framed and given meaning by the legal apparatus of the Court itself, expresses their resistance to the Court’s authority over their nationals. Pursuant to the ICC’s statutory framework, and the role it provides for the Security Council, that in turn entails a posture of acquiescence on the part of the Court in any crimes that may be committed by nationals of those states on non-party territory. Unlike distinctions rooted in state party nationality or territory, the distinction between defendants in Council-referred situations and persons shielded from such scrutiny by the veto is not rooted in a normatively relevant difference. As a result, an ICC structured to acquiesce in criminal wrongdoing by those shielded by the veto cannot credibly disavow such wrongdoing when perpetrated by those brought within its reach by Council referral. Tainted by the former acquiescence, it lacks standing to condemn the latter wrongdoing. Acting in such contexts, it expresses discrimination, rather than genuine disavowal. None of this is to say that the ICC itself is at fault in any of this. The Court is a product, not the source of the statute. Moreover, pursuant to the statute, the Court’s capacity for action is determined in significant part by outside actors (through ratification decisions, referral decisions, and veto authority). Fault, however, is the wrong frame of analysis. What matters is institutional standing. There, the Court’s constitutive framework and the actors empowered in that framework are dispositive.

61 UNSC Res 1593, UNSCOR, 2005, 5158th Mtg, UN Doc S/RES/1593, (31 March 2005) para 6; UNSC Res 1970, UNSCOR, 2011, 6491st Mtg, UN Doc S/RES/1970, (26 February 2011) para 6. 62 Questioning the legality of the carve-outs, see e.g., Robert Cryer, ‘Sudan, Resolution 1593, and International Criminal Justice’ (2006) 19 Leiden J of Intl L 195, 208–22. The US ambassador to the UN stated publicly and explicitly that the provision’s value was in shielding US troops. Göran Sluiter, ‘Obtaining Cooperation from Sudan’ (2008) 6(5) J of Intl Crim Justice 871, 879. 63 ‘Countries that have Signed Article 98 Agreements with the U.S.’ (Georgetown Law Library) accessed 9 September 2018; American ServiceMembers’ Protection Act, Pub L No 107–206, 116 Stat 820 (2002).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

146 Tom Dannenbaum Nor does this excuse perpetrators in Council-referred situations. Were any of Omar al-Bashir, Ahmad Harun, Saif Gaddafi, or Mahmoud al-Werfalli to be convicted in The Hague, his guilt would not be washed away by the Court’s lack of standing. On the contrary, to invoke the concept of standing is to assert that condemnation may be inappropriate despite the target’s culpability for grave wrongdoing. If the evidence vindicates the charges, the individuals in question would be blameworthy and deserving of punishment from the legal point of view. The argument here only calls into question whether the ICC as currently constituted is normatively competent to deliver the conviction. Indeed, it is partly because those guilty of international crimes warrant condemnation from the international legal point of view that the ICC’s lack of standing makes it the wrong institution to punish them. Although legally competent to impose such punishment, it cannot do so in a way that conveys the correct moral expression. Undermined in this way, the Court lacks the very thing that makes it a valuable piece of the broader framework of international law. In such situations, it acts lawfully, but without legitimacy.

IV. Legitimate Illegality and Legal Illegitimacy The notion that the ICC’s exercise of authority in Council-referred cases is legal but illegitimate flips on its head the relationship between law and legitimacy articulated by the Independent International Commission on Kosovo (IICK) in the context of the 1999 NATO intervention in Kosovo—an intervention that it deemed ‘illegal but legitimate’.64 That assessment sought to thread the needle between two judgments. As a matter of positive law, the Commission determined that there was insufficient state practice or agreement to justify finding a third exception to the UN Charter prohibition of the use of force, other than self-defence and Security Council authorization.65 On the other hand, there was a sense that fundamental principles of humanity preclude standing by while atrocity is visited on those who cannot defend themselves.66 From this perspective, the condemnation of those who use force to prevent atrocity would have been morally backwards and could even have undermined the normative authority of international law.67 A range of authorities have endorsed something like this awkward position of legitimate illegality as not just an accurate statement of positive law, but a desirable equilibrium.68 The worry from that point of view is that muddying the jus ad bellum 64 IICK Report (n 10) 4. See also ibid ch 6. 65 ibid 166–76. 66 ibid 185–86. 67 ibid. 68 See e.g., Thomas M Franck, Recourse to Force: State Action Against Threats and Armed Attacks (CUP 2002) 166–89 (hereafter Franck, Recourse to Force); Oscar Schachter, International Law in Theory and Practice (M. Nijhoff 1991) 126 (hereafter Schachter). Several of the states that intervened in Kosovo

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Legitimacy in War and Punishment 147 with a third exception to the Article 2(4) prohibition would open the door to actors seeking to exploit ambiguities in that exception and wage wars that either fail to serve a humanitarian imperative, or that use force in a manner disproportionate to such an imperative.69 For its advocates, the ‘illegal but legitimate’ concept aspires to maintain the clarity of the legal line, while mitigating the condemnation of those who use force illegally, but in the service of humanity.70 Closely related to this idea is the notion that the international community has a ‘responsibility’ to use force to prevent atrocity when the host state has failed to exercise its primary responsibility to that end. This idea was first articulated by the Independent Commission on Intervention and State Sovereignty (ICISS) in its own post-Kosovo reflections.71 In the ICISS’s assessment, that responsibility to use force is held most clearly and immediately by the Security Council, acting through Chapter VII of the UN Charter.72 More controversially, and somewhat in line with the IICK, the ICISS reasoned that others, such as the General Assembly, and possibly even an ‘ad hoc coalition’ or ‘individual states’, might take up the mantle when the Council fails to act.73 In that latter context, the action would be illegal, but the ‘real question’, the ICISS reasoned, would be ‘where lies the most harm: in the damage to international order if the Security Council is bypassed or in the damage to that order if human beings are slaughtered while the Security Council stands by’.74 Two features of the global reaction to the ICISS report are worthy of note for the purposes of the argument here. First, although several features of the multifaceted responsibility to protect have real legal foundations, the notion of an international responsibility to use force has not yet hardened into a legal obligation.75 Second, broad state and internationa l organization endorsement of the responsibility to protect has been premised on a narrower understanding than that of the ICISS regarding the responsibility claimed moral justification, while insisting that the intervention was not a legal precedent. On the issue of precedent, see Jane Stromseth, ‘Rethinking Humanitarian Intervention’ in J L Holzgrefe and Robert O Keohane (eds), Humanitarian Intervention (CUP 2003) 232, 239. On the issue of moral imperative, see Daniel Levy and Natan Sznaider, The Holocaust and Memory in the Global Age (Temple UP 2006) 166; UNGAOR, 54th Sess, 14th Plen Mtg, UN Doc A/54/PV.14 (25 September 1999); ‘NATO Attack on Yugoslavia Begins’ (CNN, 24 March 1999) accessed 9 September 2018. 69 Dino Kritsiotis, ‘Reappraising Policy Objections to Humanitarian Intervention’ (1998) 19(4) Michigan J of Intl L 1005, 1020; W Michael Reisman, ‘Unilateral Action and the Transformations of the World Constitutive Process’ (2000) 11 European J of Intl L 3; Tom Dannenbaum, ‘Why Have We Criminalized Aggressive War?’ (2017) 126(5) Yale L J 1242, 1295–301. 70 Questioning the viability of such a posture, see Anthea Roberts, ‘Legality vs Legitimacy’ in Philip Alston and Euan Macdonald (eds), Human Rights, Intervention, and the Use of Force (OUP 2008) 179 (hereafter Roberts, ‘Legality vs Legitimacy’). 71 On the use of force, see International Commission on Intervention and State Sovereignty, The Responsibility to Protect (International Development Research Center (Canada) 2001) paras 6.13–6.28 (hereafter ICISS Report). 72 ibid ch 6. 73 ibid paras 6.28–6.40. 74 ibid para 6.37. 75 On the legal dimensions: Monica Hakimi, ‘Toward a Legal Theory on the Responsibility to Protect’ (2014) 39 Yale J of Intl L 247.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

148 Tom Dannenbaum of the international community to use force. Specifically, that responsibility has been recognized only with respect to force exercised via the Security Council.76 One way of understanding these two features of the international reaction to the responsibility to protect is as follows. When the Security Council fails to authorize the use of force in response to an atrocity, it acts within the scope of its legal prerogative. It has no legal obligation to do otherwise. The Council’s ‘responsibility to protect’ does not affect this, because it lacks legal force. At the same time, a Security Council that declines to authorize military action in that context fails to discharge one of its core (and widely recognized) normative responsibilities. As such, through the failure to authorize, the Council undermines its moral legitimacy as the body vested with exclusive authority over the use of force in this context. It acts legally, but without legitimacy. An assessment along those lines is implicit in the ICISS assessment that Security Council inaction would ‘damage’ the international order and could have ‘enduringly serious consequences for the stature and credibility of the UN itself ’.77 At first glance, this common (although far from universal) perspective on humanitarian intervention might appear to be in deep tension with the arguments above on ICC legitimacy. The former position holds that Security Council inaction impugns its legitimacy in the context of the use of force, even though such inaction is within its legal discretion. Indeed, it may even be that outside actors gain legitimacy by acting as the Council should have, despite acting illegally and possibly with even less procedural legitimacy.78 In contrast, the argument on ICC legitimacy holds that the procedural inequities inherent in the Security Council are such that its referral of an atrocity situation to the Court impugns the legitimacy of the latter’s actions pursuant to that referral, even though both institutions act clearly within their respective scopes of legal authority. In reflecting upon this apparent inconsistency in the way law and legitimacy interact in these different forms of Security Council response to atrocity, one might simply argue that one (or perhaps both) of these assessments is wrong. An alternative and more compelling explanation is that the difference in the two assessments is the product of appropriately different evaluative standards for determining the legitimacy of criminal punishment and force. On this view, legitimacy imperatives may demand both that the Security Council authorizes force in response to atrocity and that it refrains from referring the same situation to the ICC. The key reason for the divergent legitimacy thresholds for international criminal punishment and the use of force is that the two kinds of action perform normatively 76 2005 World Summit Outcome, UN GA Res 60/1, UNGAOR, 60th Sess, 8th Plen Mtg, UN Doc A/ RES/60/1, (16 September 2005) paras 138–39; UNSC Res 1674, UNSCOR, 5430th Mtg, UN Doc S/ RES/1674, (28 April 2006) para 4; Secretary General, Implementing the Responsibility to Protect, UNGAOR, 63rd Sess, UN Doc A/63/677, (12 January 2009) at 8–9. 77 ICISS Report (n 71) paras 6.37, 6.40. 78 One situation in which an outside actor might be thought to have greater procedural legitimacy than the Security Council in this respect would be the case of humanitarian intervention authorized by the African Union pursuant to art 4(h). Constitutive Act of the African Union, 11 July 2000, 2158 UNTS 3, art 4(h).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Legitimacy in War and Punishment 149 distinct functions. One performs a police task—stopping wrongful harm. The other performs a task of morality or justice—condemning wrongdoing. The legitimacy of institutions operating in either domain turns in part on whether they are structured appropriately to discharge those functions, and whether they do in fact perform those functions well. It should be no surprise that institutions structured for one task may prove inapt for the other. The function of using force in a humanitarian intervention is to stop and prevent gravely illegal abuses of human beings. It is important to limit legally which actors can engage in that prevention so as to ensure that action is taken only when narrowly tailored and likely to actually fulfil that protective objective. But on either side of that specific assessment are consequences. What matters is stopping the wrongful harm without causing greater harm. The procedures in place are valuable and legitimacyenhancing primarily insofar as they elevate the likelihood of certain outcomes. The legitimacy of action without Security Council authorization is widely thought to be plausible (if at all) only when the Council has failed to act and the situation on the ground shocks the conscience.79 The Security Council provides an imperfect but useful procedural check in part because the divergent interests and political postures of the permanent members make them unlikely to assent unanimously to pretextual interventions, in part because the acquiescence or support of major powers enhances the intervention’s prospects of success (and is unlikely if an intervention is destined to fail), and in part because of the value to long-term global security of upholding the process to which states have agreed.80 Seen in this way, the value of the Security Council’s role in this domain is in optimizing for a particular result—the prevention of atrocity without the encouragement of unjustified war. Where the system fails in that endeavour, its legitimacy and the legitim acy of its institutions suffer. When the harm is sufficiently grave, it may be legitimate, measured against the law’s protective function, for other actors to violate the law so as genuinely to prevent atrocity. To the extent that argument is viable, legitimacy and legality separate because the law or its institutions frustrate its core function. The typical insistence on multilateralism in even that scenario is rooted in the hope that requiring 79 See e.g., ICISS Report (n 71) para 6.28; Robin Cook, Secretary of State for Foreign & Commonwealth Affairs, ‘Speech to the American Bar Association Meeting in London’ (19 July 2000) in Geoffrey Marston (ed), ‘United Kingdom Materials on International Law 2000’ (2001) 71 British YB of Intl L 646 (hereafter Cook, ‘Speech to the ABA’); UK Prime Minister’s Office, ‘Chemical Weapon Use by Syrian Regime: UK Government Legal Position’ (Policy Paper, 29 August 2013) accessed 9 September 2018. 80 See e.g., Yoram Dinstein, War, Aggression and Self-Defence (5th edn, CUP 2012) 74; Franck, Recourse to Force (n 68) 175–78; Allen S Weiner, ‘The Use of Force and Contemporary Security Threats: Old Medicine for New Ills?’ (2010) 59(2) Stanford L Rev 415, 428 (2006); Christine Gray, International Law and the Use of Force (3rd edn, OUP 2008) 52; Schachter (n 68) 126; Simon Chesterman, ‘Hard Cases Make Bad Law’ in Anthony F Lang Jr (ed), Just Intervention (Georgetown UP 2003) 46, 50. But see Ryan Goodman, ‘Humanitarian Intervention and Pretexts for War’ (2006) 100 American J of Intl L 107, 107, 110–11, 126–27 (arguing that claiming a humanitarian imperative is more likely to pressure leaders to limit their uses of force than would claiming self-defence).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

150 Tom Dannenbaum some form of widespread assent can provide a surrogate mechanism for checking the unjustified use of force.81 In the ways elaborated above, the normative function of the international criminal justice is completely different. The test is not whether the institution can best get done what needs to be done. In the context of condemnation, equally important is how the function is performed. For punishment to carry the moral message of disavowal, the institution must have standing. Its systematic acquiescence in the analogous wrong doing by other actors precludes that. Ultimately, legitimacy in both cases is driven by fidelity to the normative function of the practice. Fidelity to the function of prevention is measured in whether the harm is prevented; procedure is relevant only insofar as it facilitates that without creating other risks and dangers. Fidelity to the function of condemnation is measured not only by whether the persons punished warrant that condemnation, but also whether the entity charged with providing it has the standing to do so.

V. The Path Forward The separation of law and legitimacy creates instability. Action that is lawful but illegit imate may meet resistance and fail to fulfil its core legal function. Conversely, action that is affirmed as legitimate, despite being illegal, may become normalized and legalized over time.82 Both of these are possibilities in the context of Security Council responses to atrocity. On the issue of using force to stop atrocity, the less willing the Security Council is to act, the more it will lose legitimacy, and the more the legal requirement for its imprimatur in that realm is likely to erode.83 Conversely, the more it responds appropriately to situations demanding a forceful response, the better the Council can perform its function of checking pretextual, unnecessary, or disproportionate use of force. In the realm of criminal justice, the story is quite different. Unless permanent members discard the veto altogether in this context, an uptick in Security Council referrals to the ICC would likely exacerbate, rather than remedy the divide between legality and legitimacy. Short of Rome Statute ratification by the current non-party permanent members, two options for strengthening the Court’s legitimacy in this respect stand out. First, the Court could move to a universal jurisdiction model, as proposed during Rome Statute drafting.84 Removing the requirement for a Security Council referral would eliminate immediately the Court’s structured and systematic acquiescence in the wrongs of 81 ICISS Report (n 71) paras 6.29–6.40; Cook, ‘Speech to the ABA’ (n 79) 647. See also Allen Buchanan and Robert O Keohane, ‘Precommitment Regimes for Intervention’ (2011) 25 Ethics and Intl Affairs 41, 52–55. 82 Roberts, ‘Legality vs Legitimacy’ (n 70). 83 ibid. 84 See n 41.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Legitimacy in War and Punishment 151 non-party permanent members, bolstering significantly its standing to condemn wrongs perpetrated by nationals of other non-parties in non-party territory. This is not to say the ICC would suddenly escape all claims of bias or discrimination.85 However, that discrimination would no longer be baked into the Court’s legal framework. This would at least provide the Court with the potential to condemn with the moral authority necessary to do so effectively. Realistically, however, such a reform is unlikely to gain political traction. In an era of backlash against the perceived overreach of international institutions (manifest, inter alia, in recent withdrawals from the Rome Statute), it is difficult to imagine states agreeing to endow the Court with such dramatically expanded jurisdictional reach. They declined to do precisely that during the more auspicious period in which the statute was first negotiated. The alternative route to a more legitimate ICC would be for the Court to revert to a nationality and territorial jurisdiction model. Short of an unlikely statutory amendment eliminating the Security Council referral trigger, this could be achieved in two ways. First, in direct contrast to the path to legitimacy in responding to atrocity with appropriate force, the Council could step back from referring atrocity situations to the Court. Second, and more radically, the prosecutor could use her discretion to refrain from opening investigations or pursuing charges in Council-referred situations on the grounds that pursuing those avenues would not be in the ‘interests of justice’.86 Unlike reasons not to proceed rooted in jurisdiction or admissibility, a prosecutorial decision along these lines would invite oversight by the Pre-Trial Chamber.87 The latter ought to uphold such a decision. Requiring the prosecutor to proceed would entail setting the stage for the Court to act despite an inability to fulfil its normative function and credibly disavow the crimes before it. That ought to be understood as clearly contrary to the interests of justice. One might object at this point that Security Council referral is often the only route to ICC jurisdiction over some of the world’s gravest abuses and thus the only way to combat impunity in those severe cases. Forswearing the system by which the prosecutor has pursued the likes of al-Bashir might be deemed a significant setback for international justice, notwithstanding that system’s imperfections.88 In other words, to advocate that the Council, prosecutor, or Court hold back in such circumstances may seem naively perfectionist. This objection is misleading in several respects. It ignores alternative paths to justice. It presumes that punishment serves valuable pragmatic ends at the international level. And it discounts the damage that such referrals do to the core function of international criminal justice. 85 The Court has long been accused of anti-African bias. Max du Plessis, Tiyanjana Maluwa, and Annie O’Reilly, Africa and the International Criminal Court (Chatham House Report 2013). 86 Rome Statute (n 38) arts 53(1)(c), 53(2)(c). 87 ibid arts 53(3)(b). 88 Max du Plessis, The International Criminal Court that Africa Wants (Institute For Security Studies 2010) 74.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

152 Tom Dannenbaum The first error is to presume away other paths to accountability. Among the most obvious alternatives to Council referral to the ICC in this respect are foreign domestic courts exercising universal jurisdiction, hybrid or regional criminal courts, and, in the longer run, domestic criminal courts or alternative justice mechanisms exercising territorial or active nationality jurisdiction.89 Indeed, referral to the ICC is not the only way in which the Security Council can facilitate accountability. The Council could authorize and empower investigative bodies competent to gather the information and evidence that might underpin prosecutions or justice actions in any of the fora described immediately above.90 Beyond that, once a regime transition allows for it, the Council could work with the territorial state to enable its domestic courts, to create a hybrid court, or to encourage acceptance of the ICC’s jurisdiction via Article 12(3) of the Rome Statute. Finally, through taking action under Chapter VII of the UN Charter, the Council may help both to stop the atrocities in the first place and to facilitate the conditions in which the territorial state could participate in any of these processes. Of course, many of these options presume a change in the facts on the ground. However, a decade of experience shows that ICC efficacy in Council-referred situations is no less contingent on such a change. The ICC depends on state cooperation from the first steps of preliminary evidence gathering and arrest, to more comprehensive access to evidence, witness subpoena and protection, and ultimately post-conviction detention.91 When host state hostility precludes the alternative paths identified above, Council referral to the ICC is also likely to fail. This leads to the second point in response to the pragmatist’s objection. Even if there were a context in which Council referral to the ICC could make progress towards criminal accountability over and above that available via other routes, this would not necessarily mean that referral would be a good idea. Sacrificing the ICC’s capacity to discharge its 89 Regionally, consider the proposed African Court of Justice and Human Rights (see n 40). On the universal jurisdiction response to the crisis in Syria, see Yuna Han, ‘Rebirth of Universal Jurisdiction?’ (Ethics & International Affairs Blog, 4 May 2017) accessed 9 September 2018. On alternative (potentially competing) modes of justice, see e.g., Sarah M H Nouwen and Wouter G Werner, ‘Monopolizing Global Justice’ (2015) 13 J of Intl Crim Justice 157. 90 The General Assembly took action of this kind regarding Syria. UNGA Res A/RES/71/248, International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011, UNGA Res A/RES/71/248, UNGAOR, 71st Sess, 66th Plen Mtg, UN Doc A/RES/71/248, (21 December 2016). 91 Rome Statute (n 38) arts 86–111. On subpoena power: Prosecutor v. Ruto (Appeals Judgment on Prosecutor’s Application for Witness Summonses and Request for State Party Cooperation) ICC-01/09– 01/11–1598, (2014). In addition to the obvious failure in Darfur, consider the role of non-cooperation in the breakdown of the Kenya cases. ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the withdrawal of charges against Mr Uhuru Muigai Kenyatta’ (Press Release, 5 December 2014) accessed 9 September 2018; Prosecutor v. Kenyatta (Second decision on Prosecution’s application for a finding of non-compliance), ICC-01/09–02/11–1037, (2016).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Legitimacy in War and Punishment 153 central normative function (moral expression) and rendering it vulnerable to legitimate claims of discrimination requires robust justification. To put it bluntly—punishment to what end? As discussed above, claims that international criminal punishment will deter are questionable given the large numbers of persons involved, the reasons to be skeptical about rational action, the low likelihood of arrest, and the greater urgency and potency of more immediate incentives.92 Even in cases in which those factors do not drown out the threat of punishment, that threat may itself prove counterproductive if it deters surrender or negotiation.93 The alternative pragmatic objective of removing and incapacitating atrocity leaders is also of questionable utility in light of the facts that (a) the feasibility of arrest is likely to mean that those leaders have already lost political sway, and (b) prosecuting them may risk fanning (rather than dousing) the flames of perceived injustice.94 In short, the notion that Council referrals serve pragmatic ends is not at all obvious. Such referrals target dubious instrumental benefits in situations in which the Court is unlikely to garner cooperation sufficient to pursue those benefits effectively and in which there is a countervailing risk of exacerbating conditions on the ground. Given both the cost to the Court’s capacity to discharge its core normative function and the reasons to be skeptical of instrumental benefits, there is a heavy burden on the pragmatist to show robust evidence of positive effects. It is a mistake to assume that greater and broader ICC activity in response to atrocities is necessarily in the interests of justice or of combating impunity. Focusing on the value of international criminal punishment can clarify when it should and should not be used, and in what form. To the extent that its value takes the form of moral expression, standing matters. Recognizing that means moving away from Security Council referrals as a mode of international criminal justice and focusing instead on two pursuits. First, taking action at the ICC in contexts in which its capacity to express moral values on behalf of the community of states parties is clear and well-grounded. And, second, pursuing alternative routes to criminal or other forms of justice, including with Security Council support, in contexts in which the ICC would lack that standing.

92 See n 14.

93 See n 14.

94 See n 17.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Chapter 7

A fr ica a n d I n ter nationa l Cr imi na l L aw Christopher Gevers

I. Introduction The relationship between Africa and international criminal law has been the focus of much attention in recent times. However, the debate about the nature of this relationship remains largely unproductive, generally proceeding as follows. The critics allege an anti-African bias (on neo-colonial or racist grounds) on the part of the International Criminal Court (ICC) (figured to embody the project as a whole), p ointing to the overwhelming number of African cases before the Court. In response, defenders argue that the majority of those cases were brought to the ICC by the African states themselves. At that point the two sides often shift into different, and incompatible, registers. Critics turn to history (of international law, or criminal law) or theory (often from outside the discipline of international law, or at least at its margins), while its defenders ascend to heady normative arguments (‘international rule of law’), or descend into thin consentbased arguments (‘African states signed up’), often calling on particular Africans for reinforcement in the process (the Prosecutor and other African ICC functionaries, or more abstractly but productively, unspecified ‘African victims’).1 Notably, these defences are generally also ‘meta-juridical’,2 but seldom admitted as such. 1 For a recent, engaging attempt to move beyond such binaries in the context of the ICC, see generally Kamari Clarke, Abel Knottnerus, and Eefje de Volder (eds), Africa and the ICC: Perceptions of Justice (CUP 2016). 2 An admittedly ‘hardly jurisprudentially elegant’ term used by Elihu Lauterpacht to describe, hardly elegantly, considerations ‘other than strictly legal considerations’. Elihu Lauterpacht, ‘The Juridical and the Meta-Juridical in International Law’ in Jerzy Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krysztof Skubiszewski (Kluwer Law International 1996) 215.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Africa and International Criminal Law 155 This chapter aims to open up the debate about the relationship between Africa and international criminal law, both temporally and conceptually. First, it will argue that both sides of the debate generally rely on a history of this relationship that is foreshortened, one that begins in the 1990s. However, while it was only then that Africans were assigned official roles (i.e., as defendants, victims, prosecutors), and African states participated in its officially noteworthy projects and institutions (i.e., the ICTR and ICC), this chapter aims to show that Africans and ‘Africa’ have been present since the beginning of the project in 1919. Second, and in order to do so, this chapter will open up the debate conceptually, arguing that there is more to both ‘Africa’ and ‘international criminal law’ than its current framing suggests. There is more to ‘Africa’ than African states: before their emergence in the late 1950s there was an ‘Africa’ in the west, and it is that ‘Image of Africa’3 that for some continues to predominate today (in part because of international criminal law). Similarly, there is more to ‘international criminal law’ than the ICC: not only are there other institutions and actors that form part of the project (NGOs, intergovernmental organizations, activists, lawyers, scholars, and ‘publics’), but from its inception the project has participated in, and relied upon, political, economic, and cultural orders as well. With this in mind, the chapter begins by revisiting what for many is the project’s founding moment: the attempts by Allied Powers to establish an international tribunal following World War I. It returns to Versailles, 1919 to c onsider the untold story of two ‘Blue Books’ alleging German crimes against Africans before and during the war, one that reveals how Africa and Africans were what Toni Morrison describes as a ‘present absence’ at Versailles.4 The rest of the chapter will show how they remained so for much of international criminal law’s history: at Nuremberg, 1945, during the Cold War era, and even still in the 1990s. Moreover, this chapter will proceed to show that the conditions under which Africa and Africans were present, absented, and ‘re-presented’ at Versailles in 1919 introduces three threads of critique of international criminal law—concerning its racial politics, its imperial entanglements and its symbolic (and affective) regime5—that weave their way, at times together at times apart, from 1919 until the present. It will end by reconsidering the debate about this relationship to suggest that, in light of this history, the question becomes not whether international criminal law (or the ICC) might be a field that operates on neo-colonial and racist lines, but whether it might have been anything else (or might yet be).

3 Chinua Achebe, ‘An Image of Africa: Racism in Conrad’s “Heart of Darkness” ’ (1977) 18(4) Massachusetts Rev 782 (hereafter Achebe, ‘Image of Africa’). 4 Toni Morrison, Playing in the Dark: Whiteness and the Literary Imagination (Harvard UP 1992) 5 (hereafter Morrison, Playing in the Dark). 5 Kamari M. Clarke, ‘The Rule of Law Through its Economy of Appearances: The Making of the African Warlord’ (2011) 18(1) Indiana J of Global Legal Studies 7, (Clarke, ‘Making of the African Warlord’). See further, Kamari M. Clarke, Affective Justice: The International Criminal Court and the Pan-Africanist Pushback (Duke UP 2019).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

156 Christopher Gevers

II. Versailles, 1919: ‘resist[ing] with impunity’ After years of docile submission it is obvious that time must elapse before [the native races] . . . can realize that matters have changed, that they can look to us for protection, and that attacks upon their virtue may now be resisted, and resisted with impunity.6

A. Re-telling Versailles, 1919 Many histories of international criminal law begin with the unsuccessful attempt to establish an international tribunal after World War I through the Treaty of Versailles.7 In the end no such tribunal was established, nevertheless these halting attempts at inter national justice remain central to the field, both legally and historiographically. Legally, judges at Nuremberg relied on them as precedent to overcome claims of retrospective lawmaking, or worse ‘Victor’s justice’, using Versailles to show that procedurally and substantively the Tribunal was ‘the expression of International Law existing at the time of its creation’.8 Similarly, while few histories of international criminal law dwell on Versailles, it does often set in motion progress narratives: stories of struggle—of law over politics, reason over vengeance, the international over the national/local9—in which the project’s initial failings are corrected, first imperfectly at Nuremberg in 1945 and then definitively at Rome in 1998.10 Before there was ‘Nuremberg, 1945’ or ‘Rome, 1998’ however, James Morgan Read wrote a very different account of the international justice attempted at Versailles, one that was well-received at the time.11 Rather than the 1919 Commission on the 6 Union of South Africa, Administrator’s Office, Report on the Natives of South-West Africa and Their Treatment by Germany (HMSO 1918) 200 (hereafter Report on the Natives of South-West Africa). 7 See Articles 227–230, Treaty of Versailles (1919). 8 The Trial of German Major War Criminals. Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Part 22, 22nd August, 1946 to 30th September, 1946 (HMSO, 1950) 444. As did the subsequent Nuremberg Military Tribunals, see Kevin J Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (OUP 2011) 124–32 (hereafter Heller, Nuremberg Military Tribunals). 9 See Gerry Simpson, Law, War and Crime: War Crimes, Trials and the Reinvention of International Law (Polity 2007) 30–53 (hereafter Simpson, Law, War and Crime). 10 See further, Christopher Gevers, ‘The “Africa Blue Books” at Versailles: World War I, Narrative and Unthinkable Histories of International Criminal Law’ in Immi Tallgren and Thomas Skouteris (eds), Encounters: International Criminal Law and its Histories (OUP, 2019). Those histories that do dwell on Versailles tend to focus on the debates within the 1919 Commission on the Responsibility of the Authors of the War, and how these debates prefigure international criminal lawyers’ later preoccupations. See Simpson, Law, War and Crime (n 9) 41. 11 James M Read, Atrocity Propaganda: 1914–1919 (Yale UP 1941) (hereafter Read, Atrocity Propaganda). Read’s book received positive reviews at the time. See Harold D Lasswell, ‘Atrocity Propaganda, 1914–1919

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Africa and International Criminal Law 157 Responsibility of the Authors of the War, Read’s account focused on the so-called ‘atrocity stories’ published by Allied Powers during the war, arguing that these made the attempts to try Germans before an international tribunal at its conclusion ‘inevitable’.12 According to Read, ‘the statesmen at Paris in 1919 were largely the prisoners of their own machinations’, as the ‘picture of the enemy . . . painted during the war’ by these atrocity stories ‘led to the overpowering demand for punishment of the war criminals’.13 Bringing these atrocity stories into the history of ‘Versailles, 1919’, and international criminal law, unsettles standard accounts of the project in a number of ways. For present purposes, they bring with them the German atrocities committed against Africans during the war, and colonial violence more generally, as these were the subject of two Blue Books published by the British government during the war. The first, the 1916 Blue Book on German Atrocities and Breaches of the Rules of War in Africa, concerned reports of atrocities committed in the Cameroons during German raids on ‘native’ villages (including ‘war crimes’, and a number of ‘crimes against humanity’ by today’s standards), as well as alleged atrocities in East Africa and German South West Africa.14 The second, the 1918 Blue Book on Report on the Natives of South-West Africa and Their Treatment by Germany, dedicated over 200 pages solely to the ‘history and treatment’ of the ‘native races’ under German domination, from the moment of colonization until the outbreak of war. The 1918 South West Africa Blue Book paid particular attention to ‘the extermination of the Hereros’ following General Lothar von Trotha’s 1904 extermination order to ‘let not man, woman, or child be spared—kill them all’.15 While ‘the Light of International Criminal Law’16 is only now being shone on this genocide, the first of the 20th century, the details of it were plainly stated in 1918 in the South West Africa Blue Book. Notably, according to Read, of all the Allied Powers’ atrocity stories it was the British accounts that were most influential to the public demand for prosecutions after the war,17 and anecdotal evidence suggests that those reports concerning Africa were particularly influential in this regard.18 British atrocity stories were also central to the by James Morgan Read’ (1942) 14(4) J of Modern History 542; Charles Callan Tansill, ‘Atrocity Propaganda, 1914–1919 by James Morgan Read’ (1942) 36 American J of Intl L 364. 12 Read, Atrocity Propaganda (n 11) vii. 13 Read, Atrocity Propaganda (n 11) viii. 14 Examples of the former included the killing of civilians, extermination, mutilation, destruction of civilian property, and the use of ‘expanding bullets’; examples of the latter include persecution and exter mination. See Great Britain, Colonial Office, German Atrocities and Breaches of the Rules of War in Africa (HMSO 1916) (hereafter German Atrocities). 15 Report on the Natives of South-West Africa (n 6) 5, 40, 60. 16 Klaus Bachmann, ‘Germany’s Colonial Policy in German South West Africa in the Light of International Criminal Law’ (2017) 43(2) J of Southern African Studies 331. 17 Read, Atrocity Propaganda (n 11) 187–88. 18 The same week that the first Africa Blue Book was published (in August 1916), Read notes that ‘[q]uite suddenly . . . English public opinion became receptive to the idea of forcing Germany to expiate her crimes’. ibid 243. Following the publication of the 1918 South West Africa Blue Book, the Times suggested that the ‘savage abominations’ contained in it made the ‘inhuman outrages committed in Europe seem insignificant’. Read, Atrocity Propaganda (n 11) 236 quoting The Times, 12 September 1918. In fact, Read suggests that ‘the atmosphere in 1917 and through the summer of 1918 was remarkably free of recrimination’, and it was only later in 1918 that the ‘wrath of the British people was . . . roused’ (ibid 245–6); coinciding with the publication of the second Blue Book on German South West Africa.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

158 Christopher Gevers work of the 1919 Commission on the Responsibility of the Authors of the War when it recommended ‘the establishment of a high tribunal composed of judges drawn from many nations’.19 The Commission cited ‘British Reports’ 30 times in its annexure detailing examples of ‘[o]ffences committed . . . against the Laws and Customs of War and the Laws of Humanity’.20 Moreover, the British were instrumental in the plan to establish an international tribunal (that the US opposed), and the US delegate Robert Lansing considered that ‘British insistence on an international criminal tribunal was nothing other than an attempt to please British public opinion for political gains’.21 However, while the two ‘Africa Blue Books’ were central to its creation, and its recommendation to establish an international tribunal, the Commission apparently never considered the prosecution of those committed against Africans. The Commission’s report set out in detail numerous examples of ‘outrage upon outrage’ committed by ‘Germany and her allies’,22 both in the report itself and the 30-page annexure providing a ‘Summary of Examples of Offences . . . against the Laws . . . of War and the Laws of Humanity’, but the atrocities committed against Africans detailed in the two Africa Blue Books of 1916 and 1918 were nowhere to be found.23 How and when the decision was taken to exclude German crimes against Africans from the ‘international justice’ to be dispensed at Versailles, in theory if not in the event, is not clear. It certainly was not a distinction maintained in the Blue Books or surrounding press reports during the war. In the lead-up to Versailles, there was no suggestion in official documents that the justice to be dispensed for atrocities would be circumscribed geographically or racially. In fact, the Commission on Responsibility’s mandate was unhindered geographically by the Peace Conference; it was tasked with reporting on inter alia ‘the facts as to breaches of the laws and customs of war committed by the German Empire and their Allies on land, on sea, and in the air during the present war’.24 However, when the Commission on Responsibility released its report in March 19 ‘Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties’ (1920) 14(2) American J of Intl L 95, 116 (hereafter ‘Commission on the Responsibility’). 20 Notably this annexure (Annex I) was ‘omitted for lack of space’ by the editors of the American Journal of International Law when it was reprinted in 1920. See Carnegie Endowment for International Peace, Division of International Law (ed), Violations of the Laws and Customs of War: Reports of Majority and Dissenting Reports of American and Japanese Members of the Commission of Responsibilities, Conference of Paris, 1919 (Pamphlet No. 32, Clarendon Press 1919) 28–57 (hereafter Commission on Responsibility, Annex I). See further Read, Atrocity Propaganda (n 11) 265–68. 21 Quoted in Harry M. Rhea, ‘The Commission on The Responsibility of the Authors of the War and on Enforcement of Penalties and its Contribution to International Criminal Justice after World War II’ (2014) 25 Crim L Forum 147, 161. 22 ‘Commission on the Responsibility’ (n 19) 113. 23 Notably, the report included the ‘Armenian Genocide’, citing as evidence a 1916 British Blue Blue, but no mention is made of the extermination of the Herero detailed in the 1918 ‘Africa Blue Book’. Blue Book on German South West Africa Viscount Bryce, The Treatment of Armenians in the Ottoman Empire, 1915–1916 (HMSO 1916). 24 ‘Commission on the Responsibility’ (n 19) 95 (emphasis added). The alleged atrocities listed in the report as taking place throughout the British Empire included attacks on the British mainland, ships, and a hospital abroad, as well as British and Indian prisoners of war in France, Germany, Turkey and modern-day Iraq and Syria (then ‘Turkey in Asia’). Commission on Responsibility, Annex I (n 20) 51–56.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Africa and International Criminal Law 159 1919, it was clear that it had decided to limit the ‘international justice’ it anticipated racially: German crimes committed against black Africans were to be resisted, quite literally, ‘with impunity’.

B. Presence, Absence, and ‘Re-presentation’ at Versailles The story of the Africa Blue Books introduces a number of the arguments pursued in this chapter. First and foremost, it demonstrates that the relationship between Africa and international criminal law did not begin in the 1990s, it began at the project’s inception a century ago (long before, tellingly, the existence of almost all modern African states). During its formative moments, Africans were present in international criminal law, however briefly, and then they were inexplicably absent, or absented, or silenced.25 Moreover, the story demonstrates how, even in their absence, Africa and Africans have been productive for international criminal law, in the same way Morrison has shown they have been in American and European literature: as ‘present absences’.26 According to Morrison, a ‘studied indifference’ led mainstream scholars of American literature to conclude that it was ‘free of, uninformed, and unshaped by the . . . presence of, first Africans and then African-Americans in the United States’; whereas, she demonstrates, despite the notable absence of African and African-American characters, this literature is nevertheless characterized by a ‘dark, abiding, signing Africanist presence’.27 This chapter will argue that a similar ‘studied indifference’, or perhaps a ‘studied ignorance’,28 masks the ‘present absence’ of Africa and Africans in international criminal law; and that, paraphrasing Morrison, ‘[t]he contemplation of this black presence is central to any understanding of [international criminal law] and should not be permitted to hover at the margins’.29 Paying attention to the conditions under which Africa and Africans were present, absented, and ‘re-presented’ in the story of the Africa Blue Books introduces, in broad terms, three further arguments made in this chapter. First, in showing how crimes committed against black Africans were present (perhaps even necessary), for the purposes of establishing the project’s (almost) first international tribunal, but absent when it comes to the justice it was to dispense, the story places ‘racial politics’30 at the project’s inception (and introduces a double-standard that is 25 Michel-Rolph Trouillot, Silencing the Past: Power and the Production of History (Beacon Press 1995) 26 (hereafter Trouillot, Silencing the Past). 26 Morrison, Playing in the Dark (n 4) 7. See also Edward W. Said, Culture and Imperialism (Knopf 1993) 73–115 (hereafter Said, Culture and Imperialism). 27 Morrison, Playing in the Dark (n 4) 5. 28 Charles Mills, The Racial Contract (Cornell UP 1997) 133 (hereafter Mills, Racial Contract). 29 Morrison, Playing in the Dark (n 4) 5. 30 In this chapter the term ‘racial politics’ is used heuristically, where (i) ‘politics’ is, per Laswell’s def inition, a question of ‘who gets what, when, how’; (ii) the goods to be distributed include something called ‘international justice’; and (iii) it is distributed based on the sociopolitical construct called ‘race’. A detailed exploration of these ‘racial politics’ are beyond the scope of this chapter. However, one avenue

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

160 Christopher Gevers thoroughly contemporary). The justice anticipated at Versailles in 1919 was, for reasons so widely shared or self-evident so as to make them unnecessary to state, never intended to apply to the innumerable offences against black Africans detailed in the two Africa Blue Books. To do so was, perhaps, unthinkable for some at the time, and remains so.31 This chapter argues that these racial politics run throughout international criminal law’s history, and remain operational today: at best, in its preference for victims of a certain kind (and not others), and at worst, in its continued refusal to punish white violence against black bodies.32 This is only half the story, however, as the Africa Blue Books were not altogether absent at Versailles. The other half lies in how African victims were ‘re-presented’ in the Allied Powers’ justifications for the re-distribution of German colonial territories. Dismissing claims for self-determination, Allied Powers decided to place these territories under the control of Mandatory Powers, in ‘the interests of the native populations’, under the ‘sacred trust of civilization’.33 When Germany objected strongly to this term of the Peace Treaty, the Allied Powers swiftly recalled the atrocities alleged in the two Africa Blue-Books, namely ‘the cruel methods of repression, the arbitrary requisition and the various formed of forced labor which resulted in the depopulation of vast expanses of territory in German East Africa and the Cameroon, not to mention the tragic fate of the Hereros in South West Africa, which is well known to all’.34 This, then, is what ‘resisting with impunity’ entailed: ‘protection’ in the form of further political and economic subordination under a re-ordered imperial settlement.35 for doing so is Charles Mills’ notion of the ‘Racial Contract’ that underpins both western moral and political thought, and the modern world made by European colonialism: ‘that set of formal or informal agreements . . . between one subset of humans, henceforth designated by (shifting) “racial” . . . criteria as “white” . . . to categorize the remaining subset of humans as “nonwhite” . . . subpersons, so that they have a subordinate civil standing in the white or white-ruled polities . . ., and the moral and juridical rules normally regulating the behavior of whites in their dealings with one another either do not apply at all in dealings with nonwhites, or apply on in a qualified form’ (emphasis added). Or, put simply: ‘When white people say “Justice”, they mean “Just us” ’: Mills, Racial Contract (n 28) 11. 31 In the same way that Trouillot has argued that the Haitian revolution was ‘unthinkable even as it happened’—and, along with black self-determination generally, remained so for much of the 20th century— as it posed such a challenge to ‘the ontological and political assumptions’ of the day that they ‘were “unthinkable” facts in the framework of western thought’ (and remain so for some still to this day). Trouillot, Silencing the Past (n 25) 73, 82, 89. See further Mills, Racial Contract (n 28) 17, 93 (on the racial contract and an ‘epistemology of ignorance’). 32 Siba N. Grovogui, ‘Come to Africa: A Hermeneutics of Race in International Theory’ (2001) 26(4) Alternatives: Global, Local, Political 425, 438–39 (hereafter Grovogui, ‘Come to Africa’) (noting the modern insistence on concealing [European] crimes in order to project moral rectitude, the rule of reason, and historical purpose). Notably, Mills argues that ‘the Racial Contract . . . explains the actual astonishing historical record of European atrocity against nonwhites, which . . . in number and horrific detail, cumulatively dwarfs all other kinds of ethnically/racially motivated massacres put together’. Mills, Racial Contract (n 28) 97. See further, Christopher Gevers, ‘Prosecuting the crime against humanity of apartheid: never, again’ (2018) African YB Intl Hum Law 25–49. 33 See Article 22, Covenant of the League of Nations, 28 April 1919. 34 Allied and Associated Powers, Reply of the Allied and Associated Powers to the Observations of the German Delegation on the Conditions of Peace (HMSO 1919) 19 (emphasis added). 35 On the ‘Mandates System’ and its lasting effects on international law and institutions, see Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2005) ch 3.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Africa and International Criminal Law 161 In the case of South West Africa, that protection took the form of subordination to white-settler South Africa, under a ‘C Class’ Mandate, which would effectively last almost 70 years.36 In this respect, the Africa Blue Books introduce the second critique of international criminal law that structures its relationship with Africa: its ‘imperial entanglements’. While this critique is most commonly voiced in respect of the recent entanglements of the ICC with the UN Security Council, through the referral and deferral powers granted to the Council under the Rome Statute,37 it can be traced back to Versailles in 1919. As Nesiah points out, from its inception international criminal law has been entangled with ‘agendas that are part of the different articulations of Empire’— at Versailles, Nuremberg, and Rome—including ‘territorial, economic and governance agendas’.38 Third, the story of the Africa Blue Books at Versailles illustrates how from the outset international criminal law has relied on and produced a symbolic and affective regime in which Africa and Africans were, and remain, central; one that drew on both an older ‘racialized regime of representation’,39 and newer ‘imagined communities of sentimentality’40 in the west (with the ‘white humanitarian reading class’ at its core).41 On Read’s account, the push for establishing an international tribunal in 1919 was as much, if not more, the outcome of the politics of popular sentiment—produced by government ‘propaganda’ that was taken up by the media—as they were high politics of international statesmen (or the high-minded utopianism of international lawyers, for that matter). Moreover, the manner in which Africa was ‘represented’ in the Africa Blue Books and other western media drew on racist narratives, imaginaries, and tropes common across and within the imperial powers.42 Here, the Blue Books recall Morrison’s thesis more directly, as Africa and Africans became ‘markers for the benevolent and the wicked’, to ‘evoke and enforce hidden signs of racial superiority, cultural hegemony, and dismissive “othering” of people’.43

36 See generally Siba N. Grovogui, Sovereigns, Quasi Sovereigns, and Africans: Race and Selfdetermination in International Law (University of Minnesota Press 1996). 37 One telling example is that of Schabas, who has recently suggested that ‘[f]rom a vibrant and dynamic body, full of potential to alter the post-Second World War order with its fealty to a handful of “great” powers, the ICC has now become far too deferential to the established order’ (emphasis added). William Schabas, ‘The Banality of International Justice’ (2013) 11(3) J of Intl Crim Justice 545, 551 (here after Schabas, ‘Banality of International Justice’). 38 Vasuki Nesiah, ‘Doing Justice to History’ in Karen Engle, Zinaida Miller, and D A Davis (eds), AntiImpunity and the Human Rights Agenda (CUP 2017) 98 (hereafter Nesiah, ‘Doing Justice to History’) . 39 Stuart Hall, ‘The Spectacle of the “Other” ’ in Stuart Hall (ed), Representation: Cultural Representations and Signifying Practices (Sage 1997) 249 (hereafter Hall, ‘Spectacle of the “Other” ’). 40 Margaret Cohen, ‘Sentimental Communities’ in Margaret Cohen and Carolyn Dever, The Literary Channel: The Inter-National Invention of the Novel (Princeton UP 2002) 106 (hereafter Cohen, ‘Sentimental Communities’). 41 Joseph R. Slaughter, Human Rights, Inc: The World Novel, Narrative Form, and International Law (Fordham UP 2007) 301. 42 See further Hall, ‘Spectacle of the “Other” ’ (n 39) 223–78. 43 Morrison, Playing in the Dark (n 4) ix–x.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

162 Christopher Gevers The particular ‘spectacle of the “other” ’ produced by these early international criminal law documents was (as the quote at this part’s outset demonstrates) that of the ‘docile’ (feminized) subjects looking to white Europeans ‘for protection [from] . . . attacks upon their virtue’; generating an affective regime predicated on African suffering and European salvation, and of ‘African victims’ and ‘European saviours’.44 There was, however, a third figure present at the project’s inception—that of the ‘African savage’—as the Africa Blue Books often suggested that the actual killing was being done by Africans under German command, including ‘hordes of natives . . . armed with poisoned arrows’.45 This chapter will argue that these three racialized figures—the ‘African savage’, the ‘African victim’, and the ‘European saviour’—introduced, in 1919, a symbolic and affective regime that continues to structure the field of international criminal law (similar to, but distinct from, that of the ‘humanitarian narratives’46 that preceded it, and the ‘compound metaphor’ of international human rights that would come later).47 This regime would expand over the ensuing century—as would the ‘imagined communities of sentimentality’48 that it relies on and re-produces—but its central features (and figures) remain unchanged.

III. Nuremberg, 1945: Colonialism, Genocide, and European Crimes Nurnberg was colonial, we had taken the country after this wretched war, and were living in it, had to be there for a while. We weren’t sure how the natives would act, whether they would lie down and lick our boots, or slit our throats on too dark a night, yet we were determined to dine out on occasion and have as much fun as we could. It was like Kipling’s Simla, pointed to a different setting in a very different time.49

44 See Makau Matua, ‘Savages, Victims, and Saviours: The Metaphor of Human Rights’ (2001) 42(1) Harvard Intl L J 201 (hereafter Matua, ‘Savages, Victims, and Saviours’). 45 German Atrocities (n 14) 10. Germany’s belated response to the African Blue-Books employed similar language, but went further: arming black Africans against Europeans was not just wrong ‘perpetrated against the white race as a whole’, it was a violation of international law. German Colonial Office, The Treatment of Native and other Populations in the Colonial Possessions of Germany and England: An Answer to the British Blue Book of 1918 (Engelman 1919) 146. 46 Thomas W. Laqueur, ‘Bodies, Details, and the Humanitarian Narrative’ in Lynn Hunt (ed), The New Cultural History (University of California Press 1989) 177 (Although Lacquer identified them as the ‘victim’ and the ‘benefactor’). 47 Matua, ‘Savages, Victims, and Saviours’ (n 44) 201. 48 Cohen, ‘Sentimental Communities’ (n 40) 106. 49 Francis Biddle, US Judge at the Nuremberg IMT, In Brief Authority (Greenwood Press 1962) 422.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Africa and International Criminal Law 163

A. ‘Nurnberg was colonial’ There was much that was colonial about Nuremberg, 1945.50 While the International Military Tribunal at Nuremberg is today associated with the prosecution of Nazi crimes against Jews, the Holocaust ‘played a largely ancillary role in the trial’.51 Rather, the central focus of the prosecution was, in the words of Robert Jackson, ‘the greatest menace of our times: aggressive war’.52 And there was much that was colonial about German ‘crimes of aggression’. Judge Biddle’s reference above to Simla recalls Hitler’s refrain that the Eastern territories where going to be ‘Germany’s India’.53 Germany’s own colonial ‘jewel’ was German South West Africa, and the terms ‘lebensraum’ and ‘konzentrationslager’ were first used in relation to that territory.54 While international criminal lawyers are more familiar with Arendt’s Eichmann in Jerusalem (1963), she devoted a significant portion of The Origins of Totalitarianism to European colonialism, and German colonialism in Africa in particular, and suggested that: ‘African colonial possessions [were] . . . the most fertile soil for the flowering of what later was to become the Nazi elite’.55 Colonialism was not only central to the origins of Germany’s ‘aggressive war’, but also to the means employed during its execution. As Césaire pointed out in Discourse on Colonialism: [W]hat [Europe] . . . cannot forgive Hitler for is not crime in itself, the crime against man, it is . . . the fact that he applied to Europe colonialist procedures which until then had been reserved exclusively for the Arabs of Algeria, the coolies of India, and the blacks of Africa.56

Similarly, Fanon argued that through its methods: ‘Nazism transformed the whole of Europe into a veritable colony’.57 Only recently have historians in the west begun to belatedly sharpen the lines of descent (pointed out half a century ago by Césaire, 50 The focus here is on both the International Military Tribunal (IMT) at Nuremberg and the 12subsequent ‘Nuremberg Military Tribunals’ (NMT) prosecuted by the US. On the latter’s significance, see Heller, Nuremberg Military Tribunals (n 8) 2–3. 51 Lawrence Douglas, ‘History and Memory in the Courtroom: Reflections on Perpetrator Trials’ in Herbert R. Reginbogin and Cristoph J. Safferling (eds), The Nuremberg Trials: International Criminal Law Since 1945 (K.G. Saur Verlag 2006) 96. 52 ‘Opening Statement before the International Military Tribunal’ in Trial of the Major War Criminals before the International Military Tribunal, Vol II (IMT 1947) 98–102. 53 See Alex J. Kay, Exploitation, Resettlement, Mass Murder: Political and Economic Planning for German Occupation Policy in the Soviet Union, 1940–1941 (Berghahn Books 2006) 80–81. 54 Benjamin Madley, ‘From Africa to Auschwitz: How German South west Africa Incubated Ideas and Methods Adopted and Developed by the Nazis in Eastern Europe’ (2005) 35(3) European History Q (2005) 429 (hereafter Madley, ‘From Africa to Auschwitz’). 55 Hannah Arendt, The Origins of Totalitarianism (Harcourt, Brace 1951) 206. 56 Aimé Césaire, Discourse on Colonialism (first published 1950, Joan Pinkham (tr), Monthly Review Press 2001) 36 (hereafter Césaire, Discourse on Colonialism). 57 Frantz Fanon, The Wretched of the Earth (Constance Farrington (tr), Grove 1963) 100 (hereafter Fanon, The Wretched of the Earth).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

164 Christopher Gevers Fanon, and others) from German colonial violence, in South West Africa in p articular, to Nazi crimes.58 Yet, these African victims were never officially present in the international justice dispensed at Nuremberg (not even in the way they were initially at Versailles): not the African victims of the German Colonial atrocities prior to World War II, nor the African soldiers persecuted by the Germans on the basis of their race during it.59 Nor were the African victims of violence by Allied Powers before, during, and after the war (and those in the diaspora)60 officially present at Nuremberg.61 Justice for these crimes remained unthinkable in the minds of those who mattered.

B. A ‘dark, abiding, signing . . . presence’ Africa and Africans were present absences at Nuremberg, however, in at least two respects. Through, first, the narrative constructed at the trials themselves and, second, what would ultimately become their popular legacy (i.e., the crime of genocide), Africa and Africans were used (in Morrison’s words) to both ‘evoke and enforce hidden signs of racial superiority’ and as ‘markers . . . for the wicked’.62 First, as Judge Biddle glibly suggested, at Nuremberg Germans became ‘natives’, figuratively speaking, the ‘uncivilized’ kind who might ‘slit . . . throats on too dark a night’. In his Discourse on Colonialism, Césaire famously declared, ‘ “Europe” is morally, spiritually indefensible’, in part because ‘Nazi crimes’ had revealed Europe to itself: that ‘the very distinguished, very humanistic, very Christian bourgeois [European] . . . has a Hitler inside him’.63 The architects of the Nuremberg tribunals agreed with Césaire’s 58 See e.g., Sven Lindquist, Exterminate All the Brutes (Joan Tate (tr), New Press 1996); A. Dirk Moses, ‘Conceptual Blockages and Definitional Dilemmas in the “Racial Century” ’ (2002) 36(4) Patterns of Prejudice 31; Enzo Traverso, Origins of Nazi Violence (Janet Lloyd (tr), New Press 2003); Madley, ‘From Africa to Auschwitz’ (n 54); David Olusuga and Caspar W Erichsen, The Kaiser’s Holocaust: Germany’s Forgotten Genocide and the Colonial Roots of Nazism (Faber and Faber 2011). 59 See Raffael Scheck, Hitler’s African Victims (CUP 2006). 60 See J Robert Lilly and J Michael Thomson, ‘Executing US Soldiers in England, World War II: Command Influence and Sexual Racism’ (1997) 37(2) British J of Criminology 262. 61 In fact, when negotiating the London Charter, US delegate Robert Jackson (later Chief US Prosecutor at Nuremberg) supported limiting the scope of the ‘crimes against humanity’ in order to limit uncomfortable comparison to ‘some regrettable circumstances at times in our own country in which minorities are unfairly treated’. Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials (US GPO 1949) 333. This did not stop the comparison from being made forcefully after Nuremberg, see William L. Patterson, We Charge Genocide: The Historic Petition to the United Nations for Relief from a Crime of the United States Government Against the Negro People (Civil Rights Congress 1951). Notably, Raphael Lemkin publicly refuted the claims, labelling them as attempts to divert attention from crimes of genocide committed against ‘Soviet-subjugated peoples’. See further John Cooper, Raphael Lemkin and the Struggle for the Genocide Convention (Palgrave Macmillan 2008) 224–26 (hereafter Cooper, Lemkin). 62 Morrison, Playing in the Dark (n 4) ix–x, ix (emphasis added). 63 Césaire, Discourse on Colonialism (n 56) 32, 36 (emphasis added). Mills notes that ‘[t]he standpoint of Native America, black Africa, colonial Asia, has always been aware than European civilization rests on extra-European barbarism’. Mills, Racial Contract (n 28) 103.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Africa and International Criminal Law 165 analysis but disagreed with his conclusion; for them ‘Europe’ was defensible, and was to be defended by showing that Germany’s crimes were in fact a betrayal of European or ‘western’ civilization, and that Germans had become Europe’s ‘uncivilized Others’. Contrary to Césaire, they sought to locate ‘Hitler’ definitively outside of ‘the very distinguished, very humanistic, very Christian bourgeois [Europe]’.64 As one its main architects Telford Taylor put it, Nuremberg was to be ‘a story of betrayal’,65 one that required an ‘other’ in order to ‘evoke and enforce hidden signs of racial superiority’.66 A close examination of the historical record reveals how this ‘story of betrayal’ was crafted at Nuremberg. In The Betrayal: The Nuremberg Trials and German Divergence, Priemel uses court records, public documents, and private correspondence (drawn from over 40 archives) to demonstrate how the trials were consciously and meticulously designed to communicate that ‘Germany had deviated from the western way’.67 However, while Priemel acknowledges that ‘othering, was the linchpin of the Nuremberg trials’ design’, and this narrative was ‘deeply steeped in nineteenth-century legal thinking of otherness’,68 his ‘intellectual history of . . . German otherness’ focuses on inter-European othering in the decades preceding the war.69 In doing so, Priemel’s otherwise meticulous account overlooks Europe’s more obvious, longstanding ‘other’—the negative counterpart in what Said called the ‘contrapuntal ensemble’ of “Europe” ’70—the ‘uncivilized’ African, or Biddle’s ‘native’. Second, Africa and Africans were also a present absence in what has come to be seen as the legacy of the trials at Nuremberg, the crime of genocide,71 in that they were necessary for Raphael Lemkin’s construction of the crime. First, ‘colonial mass murders’ were central to both Lemkin’s ‘conceptual framework for analysing the German policy of occupation and extermination in Eastern Europe during World War II’,72 and his subsequent project to write a History of Genocide (incomplete when he died in 1959). In that history, Lemkin planned to include chapters on ‘The Germans in Africa’, ‘The Herero’, and ‘S.W. Africa’.73 While Lemkin’s 100-page draft essay on the ‘Belgian Congo’—which 64 Césaire, Discourse on Colonialism (n 56) 32, 36. 65 Cited in Kim Christian Priemel, The Betrayal: The Nuremberg Trials and German Divergence (OUP 2016) 1 (hereafter Priemel, Betrayal). 66 Morrison, Playing in the Dark (n 4) ix–x (emphasis added). 67 Priemel, Betrayal (n 65) 6. 68 Priemel, Betrayal (n 65) 15 (citing, in a footnote, Anne Orford (ed), International Law and Its Others (CUP 2006) as an account of ‘the persistence of such dichotomies’). 69 Priemel, Betrayal (n 65) (see especially ch 2, ‘Mapping the west: Nuremberg’s Sources’). 70 Said, Culture and Imperialism (n 26) 52 (noting that ‘no identity can ever exist by itself and without an array of opposites, negatives, oppositions: Greeks always require barbarians, and Europeans Africans, Orientals, etc’). 71 Despite the fact that the crime of genocide was not prosecuted at Nuremberg, and the Holocaust itself was not the focus of the IMT (it was however ‘foregrounded’ by the subsequent Nuremberg Military Tribunals). See Heller, Nuremberg Military Tribunals (n 8) 4–5. 72 Dominik J. Schaller, ‘Raphael Lemkin’s View of European Colonial Rule in Africa: Between Condemnation and Admiration’ (2005) 7(4) J of Genocide Research 531 (hereafter Schaller, ‘Lemkin’s View’). 73 See the outline of the History of Genocide in Steven Leonard Jacobs, Lemkin on Genocide (Lexington Books 2012) 18–19 (hereafter Jacobs, Lemkin on Genocide). Notably, the draft chapter on ‘Herero’ mentions the two ‘Africa Blue Books’, but Lemkin appears only to have had access to the condensed one-page

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

166 Christopher Gevers ‘can bear comparison with Adam Hochschild’s book King Leopold’s Ghost’74—estimated that three-quarters of that territory’s inhabitants were ‘wiped out in the space of a few years’.75 In producing these histories of colonial genocide, Lemkin was ahead of his time, as they are seldom acknowledged in subsequent histories of genocide, by historians and international criminal lawyers alike.76 Tellingly, once the Genocide Convention was adopted, Lemkin ensured that the first state to ratify the Genocide Convention was African (just like the Rome Statute 50 years later).77 However, Lemkin relied on Africa and Africans in his conception of genocide at a second level as well, as a ‘marker for the wicked’. Before it became ‘genocide’ in 1943, Lemkin considered ‘German techniques of occupation’ as crimes of barbary and crimes of vandalism:78 the former term having ‘entered European expressions in the sixteenth century with the “Barbary Coast” as a reference to what is today’s Maghreb, or the middle and western coastal regions of North Africa’.79 In doing so, Grovogui argues, Lemkin ‘effectively placed Africans (the Blacks) and Germanic tribes at a crime scene which, at least in the case of Africans, the majority had not seen’, and ‘indicted [them] for actions that they could not imagine or execute’.80 The effect, Grovogui points out, was that ‘the entities that conceived, planned and executed the Holocaust were indexed as historically and spatially distant communities’ (i.e., Africans), while Europe was ‘exonerated’ and re-established as ‘the legitimate adjudicator of values, norms and institutions’.81

C. Threads: Race, Empire, and Affective Regimes The present absence of Africa and Africans at Nuremberg recall their role earlier at Versailles in a number of respects. First, the racial politics of the field meant that justice for crimes committed against Africans before, during, and after World War II remained unthinkable. Even when fate made comparisons between German crimes and colonial violence—and black and white victims—seemingly unavoidable; as it did when France discussion of the Herero genocide in Great Britain, Foreign Office, Treatment of Natives in the German Colonies (HMSO 1920), that he draws on extensively. (Jacobs, Lemkin on Genocide (n 73) 221). 74 Cooper, Lemkin (n 61) 248. 75 Lemkin, ‘Belgian Congo’ in The Raphael Lemkin Papers (New York Public Library, Manuscripts and Archives Division, Box 3) 10. 76 Schaller, ‘Lemkin’s View’ (n 72) 532. 77 Cooper, Lemkin (n 61) 175 (noting that Lemkin ‘contacted Stuart Spencer, the American adviser to the Ethiopian government, an African state, and on 1 July 1949 Ethiopia became the first nation to ratify the [Genocide] Convention’. Fifty years later, on 2 February 1999, Senegal became the first state to ratify the Rome Statute. 78 See Raphael Lemkin, Axis Rule in Occupied Europe (Carnegie Endowment for International Peace, Division of International Law 1944) 91–2. 79 Siba N. Grovogui, ‘Deferring difference: A postcolonial critique of the “race problem” in moral thought’ in Sanjay Seth (ed), Postcolonial Theory and International Relations: A Critical Introduction (Routledge 2013) 119. 80 ibid. 81 ibid.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Africa and International Criminal Law 167 massacred 45,000 ‘colonial subjects’ at Setif on the day of German surrender, in reprisal for the murder of 80 to 105 settlers.82 As Grovogui notes: [T]he humanity of the European victims of Germany could be asserted, but not that of those ‘who owed their allegiance . . . as colonial subjects’. Not even the Algerians murdered on V-Day . . . in Setif by their former World War II French trenchmates could be considered victims. They were after all ‘natives’ who inhabited ‘colonial countries’.83

Second, not only was ‘Europe’ exonerated or redeemed at Nuremberg, the Allied Powers’ imperial gains were set in international legal stone. As Justice Pal pointed out in his dissentient opinion at the International Military Tribunal for the Far East—and much like at Versailles in 1919—the effect of the international justice dispensed at Nuremberg and Tokyo tribunals was to consolidate European colonialism (and silence its crimes) through international criminal law generally, and the ‘crime of aggression’ in particular. As Simpson notes: Pal’s most important insight . . . was to reveal international law as a project for stabilizing and securing existing power distributions within international society. For him, the criminalization of aggression was simply a way of freezing the status quo. The criminal repression of territorial change was meant to ensure that the frontiers created by the original sin of colonial maldistribution would remain fixed by the legitimating force of an international rule of law.84

More broadly, Nuremberg was also part and parcel of the consolidation of ‘the Allies as arbiters of a new world order’,85 one in which Africa’s place remained materially unchanged since Versailles. Third, the present absence of Africa and Africans, both at Nuremberg and in the introduction of the crime of genocide in its aftermath, recalled the affective regime introduced at Versailles, and the figure of the ‘African savage’ in particular. Even when he was condemning colonial violence, Lemkin was not immune from invoking this ‘spectacle of the “Other” ’. According to his account, the genocide in the ‘Belgian Congo’, while under the direction of the Belgians, was carried out by Africans that he described as ‘an unorganized and disorderly rabble of savages whose only recompense was what they obtained from looting, and when they were cannibals, as was usually the case, in 82 Yves Biegber, Judging War Crimes and Torture: French Justice and International Criminal Tribunals and Commission (1940–2005) (Martinus Nijhoff 2006) 94–5 (hereafter Biegber, Judging War Crimes and Torture). 83 Grovogui, ‘Come to Africa’ (n 32) 445 (emphasis added). See Mills, Racial Contract (n 28) 101 (noting that the social contract ‘norm of the infinite value of all human life . . . has to be rewritten to reflect the actual (Racial Contract) norm of the far greater value of white life, and the corresponding crystallization of feelings of vastly different outrage over white and nonwhite death, white and nonwhite suffering’). 84 Simpson, Law, War and Crime (n 9) 147 (emphasis added). 85 Nesiah, ‘Doing Justice to History’ (n 38) 108.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

168 Christopher Gevers eating the foes against whom they were sent’.86 Moreover, Lemkin recalled the symbolic and affective regime introduced at Versailles directly when he went on to suggest that ‘[t]he African natives have always been divided into two categories: The peacable [sic] and the warlike, and the Germans turned this situation to their own advantage’.87 His was an ‘Africa’ of only victims or savages or, as Biddle put it, natives who would ‘lie down and lick our boots’, and those who would ‘slit our throats on too dark a night’.

IV. The Cold War era: Late colonial violence, Biafra, and apartheid For the first time in our history Britain has become an active accomplice in the deliberate slaughter of hundreds of thousands of men, women and children, whose only crime is that of belonging to a proscribed nation: in short, an accomplice in genocide.88

A. Re-telling ‘The Cold War Era’ In 1957 Ghana obtained its independence, and a number of other African colonies would soon follow, bringing the ‘postcolonial African state’ into the international legal order. Contrary to the gentle recreations of today, ‘decolonization’ was a violent phenomenon. Colonial powers did not shy away from ‘the use of massive force in fighting the growing anticolonial resistance in the periphery’ and committed untold inter national crimes in the process.89 The same year that Ghana obtained its independence, Raphael Lemkin labelled the French actions in Algeria genocide, while the International Committee of the Red Cross (ICRC) visited ‘Mau Mau’ detention camps in Kenya. However, the ICRC failed to expose the systematic abuses in these camps (and, arguably, contributed to covering them up),90 and one of the ICRC delegates would privately tell his friend, the Governor, ‘Ne vous inquiétez pas. Compared to the French in Algeria, you are angels of mercy’.91

86 Lemkin, ‘Belgian Congo’, The Raphael Lemkin Papers, New York Public Library, Manuscripts and Archives Division, Box 3, 10. Similarly, in ‘Germans in Africa’ Lemkin wrote, ‘the native soldiers were free to tyrannize over their fellows, giving free rein to their savage lust for murder and rapine’ (Jacobs, Lemkin on Genocide (n 73) 220). 87 ibid. 88 ‘Another More Murderous Harvest’ The Spectator, 31 May 1968 (hereafter ‘Another More Murderous Harvest’). 89 Fabian Klose, Human Rights in the Shadow of Colonial Violence: The Wars of Independence in Kenya and Algeria (University of Pennsylvania Press 2013) 5 (hereafter Klose, Shadow of Colonial Violence). 90 See Yolana Pringle, ‘Humanitarianism, Race and Denial: The International Committee of the Red Cross and Kenya’s Mau Mau Rebellion 1952–60’ (2017) 84 History Workshop J 89. 91 Terence Gavaghan, Of Lions and Dungbeetles (Arthur H. Stockwell 1999) 235.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Africa and International Criminal Law 169 For their part, newly independent African states were quick to turn to international law for redress, beginning with taking South Africa to the International Court of Justice (ICJ) in 1960 over the treatment of the inhabitants of South West Africa, and by implication the implementation of apartheid in South Africa itself.92 Then, when the ICJ by its infamous 1966 decision ‘joined in [the] battle against Africa’,93 African states quickly turned to international criminal law. First, with the declaration by the General Assembly in 1966 that apartheid was a crime against humanity, followed by the inclusion of apartheid in the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity,94 that then led to the adoption of the Apartheid Convention in 1973, which almost led to the creation of an international criminal court in the 1980s. In the interim, the first major ‘postcolonial conflict’ in Africa— widely-considered at the time to be the first genocide since the Holocaust—took place when the ‘Republic of Biafra’ tried to secede from newly-independent Nigeria in 1967. However, by most accounts very little happened in international criminal law during the Cold War, institutionally or otherwise. Not least because the prosecutions of innumerable late colonial crimes (in Kenya, Algeria, and elsewhere), ongoing neo-colonial crimes (the crime of apartheid in South Africa and South West Africa), and postcolonial crimes (the ‘Biafran genocide’) remained unthinkable (although, in the case of Biafra, distinctly so). By bringing Africa, Africans, and now ‘postcolonial African states’ into the standard account of the Cold War era, the next part of the chapter aims to show how this period was nevertheless productive for international criminal law; and that Africa and Africans remained present absences throughout, just as they had been at Versailles, and Nuremberg. As before, the re-told story of the Cold War era begins with unthinkable colonial crimes.

B. Late Colonial Violence International crimes were ‘nothing less than an essential characteristic’ of late colonial violence,95 and their perpetrators were—as Fanon noted at the time—‘nothing more than war criminals’.96 The Algerian war of independence saw somewhere between 200,000 and 1.5 million Algerian lives lost (the French and Algerian estimates, respectively),97 with the French routinely employing torture and summary executions.98 Reports of these French colonial atrocities were not uncommon at the time. One notable 92 See South west Africa Cases, Second Phase, Judgment, [1966] ICJ Rep 6 (hereafter South west Africa Cases, Second Phase). 93 Benoit Bindzi, Statement by the Cameroonian Delegate to the General Assembly, UNGAOR, 21st Sess, 1412th Plen Mtg, UN Doc A/PV.1412 (1966) para 77. 94 GA Res 2391 (XXIII), UNGAOR, 23rd Sess, 1727th Plen Mtg, 26 November 1968 (entered into force 11 November 1970) accessed 14 April 2019 (hereafter Convention on the NonApplicability of Statutory Limitations to War Crimes and Crimes Against Humanity). 95 Klose, Shadow of Colonial Violence (n 89) 139. 96 Fanon, The Wretched of the Earth (n 57) 101. 97 Biegber, Judging War Crimes and Torture (n 82) 96. 98 ibid 96–98, 125.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

170 Christopher Gevers example being the one sent to the ICRC in 1960 by three French lawyers (one of whom was Jacques Verges, who later defended Klaus Barbie) detailing the use of ‘summary executions’ by the French army, which they said was a daily occurrence that had resulted in ‘several thousand’ deaths, and was a grave breach of Article 3 of the Geneva Conventions.99 The front de libération nationale (FLN) went further, alleging that the French actions, and that of the settlers, amounted to genocide.100 The ‘anticolonial bloc’ at the United Nations even tried to get these allegations onto the agenda of the UN General Assembly on this basis.101 Notably, Raphael Lemkin agreed: in 1957 he wrote a memorandum usefully titled ‘To Avoid Responsibility for Genocide in Algeria the French are Destroying the Genocide Convention’, that argued that France was trying to influence the wording of the Draft Code of Offences against Peace and Security of Mankind in order to ‘free the French colons in Algeria from any responsibility for crimes committed against the Algerians’.102 The FLN were reportedly so grateful for Lemkin’s support that they sent a delegation to attend his tombstone consecration.103 However, nothing came of Lemkin’s intervention, or that of Verges, at the time or since. While France was trying to put down anti-colonial rebellion in Algeria, the British were trying to suppress revolt in Kenya and were also committing international crimes in the process, the scale and detail of which have only recently come to the attention of historians in the west.104 In Imperial Reckoning, Elkins estimates that ‘somewhere between 130,000 and 300,000’ Kikuyu were killed (the British estimate is 11,503) and details the use of ‘concentration camps’ and widespread and systematic murder and mistreatment (including mutilation, torture, and sexual abuse).105 Elkins argues that the 99 ‘Report from Jacques Vergès, Maurice Courrégé, and Michel Zavrian to the ICRC president’ (ACICR, B AG 225 078–007, 12 March 1960) cited in Klose, Shadow of Colonial Violence (n 89) fn 85. 100 ‘White Paper Submitted by the Delegation of the Front of National Liberation to the United Nations Organisation on the Franco-Algerian Conflict’ (MAE, NUOI Carton 548, 12 April 1956) cited in Klose, Shadow of Colonial Violence (n 89) fn 159; ‘Ferhat Abbas and Yazid Mohamed to the President of the 11th UN General Assembly’ (CAOM 81 F1013, February 1957) cited in Klose, Shadow of Colonial Violence (n 89) fn 163; ‘FLN brochure Genocide in Algeria’ (CAOM 81 F530, June 1958) cited in Klose, Shadow of Colonial Violence (n 89) fn 165; Matthew Connelly, A Diplomatic Revolution: Algeria’s Fight for Independence and the Origins of the Post-Cold War Era (OUP 2003) 90. 101 ‘Letter from the UN delegates from Afghanistan, Egypt, Burma, Ceylon, Indonesia, Iran, Iraq, Jordan, Lebanon, Libya, Pakistan, the Philippines, Saudi Arabia, Syria, Thailand, and Yemen to the UN Secretary General requesting inclusion of item 62 “Algerian Question” and explanatory memorandum’ UNGAOR, Doc A/3197 (1 October 1956). 102 ‘To Avoid Responsibility for Genocide in Algeria the French are Destroying the Genocide Convention’ (Lemkin Papers, Box 4/3 American Jewish Archives, circa 1957). He added that France was also ‘working simultaneously on an additional plan . . . [to make] “Genocide” a form of discrimination in order to bring it within the limitations of article 2 point 7 of the U.N. Charter’. 103 Cooper, Lemkin (n 61) 250. 104 See e.g., Caroline Elkins, Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya (Owl Books 2006) (hereafter Elkins, Imperial Reckoning). While this story was ‘untold’ in the west, it has been well-known and documented in ‘memoirs, autobiographies and thinly fictionalized participant accounts’ for some time. Susan Carruthers, ‘Mau Mau Memoirs: History, Memory and Politics. Marshall S. Clough’ (1998) 74(2) Intl Affairs (1998) 450. 105 Elkins, Imperial Reckoning (n 104).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Africa and International Criminal Law 171 actions of the Colonial Office, white settlers, and Kikuyu loyalists were genocidal, ‘Mau Mau became for many whites in Kenya, and for many Kikuyu loyalists as well, what the Armenians had been to the Turks, the Hutu to the Tutsi, the Bengalis to the Pakistanis, and the Jews to the Nazis’.106 Similar allusions were made privately at the time by the British themselves. Amongst recently discovered British files is a memorandum from the Colonial Attorney-General describing the treatment of detainees in Kenyan concentration camps as ‘distressingly reminiscent of conditions in Nazi Germany or Communist Russia’, adding: ‘If we are going to sin’, he wrote, ‘we must sin quietly’.107 Notably at the time, the British were able to publicly conceal their crimes in part through the use of atrocity stories reminiscent of Versailles, which relied on the same racist tropes and narratives of ‘African savagery’ on the part of the Mau Mau.108 The media in the west played an important part once more, by ‘present[ing] photographic spreads with chilling pictorial evidence of Mau Mau’s savagery that contrasted dramatically with images of the local British settlers’.109 In any event, whatever private concerns of conscience there might have been, there appears to have been little concern amongst British officials at the time that ‘the UK could be held in breach of the [Genocide] Convention because of its colonial policies’.110 In fact, while historians have shown how ‘western colonial powers . . . resisted any attempt to extend human rights to their colonies’,111 on the whole there is little to suggest that they had serious concerns about their actions being characterized as international crimes. It seems ‘international justice’ for colonial violence remained largely unthinkable—for colonial powers, and also the western media and publics—as it had been at Versailles and Nuremberg, notwithstanding the efforts of the ‘Father of the Genocide Convention’ to condemn them as such.

106 ibid 49. 107 ‘Kenya: UK Expresses Regret over Abuse as Mau Mau Promised Payout’ The Guardian (5 June 2013). 108 Klose, Shadow of Colonial Violence (n 89) 237. The ‘Myth of the Mau Mau’ was that it was ‘a rejection of civilization, an atavistic regression into barbarity’. A. S. Cleary, ‘The Myth of Mau Mau in Its International Context’ (1990) 89(355) African Affairs 227 (hereafter Clearly, ‘Myth of Mau Mau’). See further Susan Lisa Carruthers, ‘Propaganda, Publicity and Political Violence: The Presentation of Terrorism in Britain, 1944–60’ (DPhil thesis, University of Leeds, May 1994) 218 accessed 14 April 2019. 109 Outside of the west (in Eastern Europe and India in particular) the media coverage was quite different, one headline reading, ‘British Gestapo Hunts Members of the Mau Mau Liberation Movement’. See Clearly, ‘Myth of Mau Mau’ (n 108) 235–38. 110 Karen E. Smith, Genocide and the Europeans (CUP 2010) 48 (hereafter Smith, Genocide and the Europeans) (‘[t]here is no indication that this was ever a worry, even though . . . the brutality with which the British repressed the “Mau Mau” insurgency in Kenya in the 1950s sparked outrage in the UK. Clearly it was too farfetched to consider that such massacres (and the associated racism) might appear to others to be genocidal’). 111 Roland Burke, Decolonization and the Evolution of International Human Rights (University of Pennsylvania Press 2010) 114.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

172 Christopher Gevers

C. The Biafran war, the Postcolonial World Order and the ‘Image[s] of Africa’ While characterizing colonial crimes as international crimes was unthinkable for many at the time (and remains so), when it came to postcolonial crimes, matters where quite different. In July 1967, war broke out between Nigeria and the secessionist ‘Republic of Biafra’, following the latter’s declaration of independence one month earlier. While the western media and publics initially showed little interest in the conflict, this changed dramatically in June 1968 when The Sun ran a front-page story on ‘The Land of No Hope’, accompanied by ‘images of suffering’ last seen during the trials in Nuremberg.112 From that moment on, not only did the international community become interested in the Biafran conflict, but allegations of ‘genocide’ and comparisons to the Holocaust became commonplace. In fact, the first time that the American Jewish Committee (AJC) used the term ‘genocide’ after the Holocaust was in reference to the conflict in Biafra. In September 1968, the AJC’s Rabbi Marc H. Tanenbaum told ‘A Protest Against Genocide’ rally in New York: ‘Lidice is the most widely known example of Nazi savagery and one of the longest remembered acts of barbarism in the civilized world. In the second half of the 20th century, Biafra is on its way to becoming the Lidice of mankind.’

In doing so, the AJC was joined by some western politicians, including (then candidate) Richard Nixon; religious leaders, including the Pope ‘kind of ’;113 and public figures, including the Beatles: a somewhat unholy trinity. However, despite these widespread allegations of genocide, there was little appetite amongst states in the Global North, on either side of the Cold War divide, to determine whether there was any basis to the claims. In fact, Britain took the unusual step of orchestrating an ‘International Observer Team’ in late 1968 to prove that genocide wasn’t taking place in Nigeria.114 The Observer Team duly did so without setting foot in ‘Biafra’ itself, through a series of reports, the first of which was helpfully called ‘No Genocide’.115 Even amongst those for whom there was genocide (and other international crimes) 112 Lasse Heerten, The Biafran War and Postcolonial Humanitarianism: Spectacles of Suffering (CUP 2017) 178 (hereafter Heerten, Biafran War). 113 In his benediction of 11 January 1970, the Pope referred to the ‘kind of genocide’ in Biafra. Herald Tribune, 12 January 1970 cited in Stremlau, The International Politics of the Nigerian Civil War, 1967–1970 (Princeton UP 2016) 367; Lawrence Fellows, ‘Nigerian Rejects Help from Groups that Aided Biafra’ New York Times, 14 January 1970. 114 Smith, Genocide and the Europeans (n 110) 81. The mission was undertaken officially at the invitation of the Nigerian government and with representatives from Canada, Poland, Sweden, the UK, the OAU, and the UN. 115 ‘No Genocide: Report of Observer Team to Nigeria’ Nigerian National Press, Lagos, December 1968. Its subsequent reports included one helpfully called ‘No Indiscriminate Bombing: Report on Activities of the Representatives of Canada, Poland, Sweden, and the U.K. during the period 14th January-6th March, 1969’ Nigerian National Press, Lagos, March 1969.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Africa and International Criminal Law 173 taking place in Biafra, there was little call for criminal prosecutions; notwithstanding considerable international legal minds exercised in respect of the conflict generally.116 Biafra was nevertheless productive for international criminal law in a number of now familiar respects: First, the ‘muscular humanitarianism’117 that underwrites much Western intervention in postcolonial states, which is said to have emerged in the postCold War era, can in fact be traced back to Biafra. In the debates amongst British parliamentarians immediately after The Sun’s front-page story of June 1968, the conflict was not only framed as a ‘genocidal war’, but the immediate response was western intervention (‘a Commonwealth peacekeeping force’).118 One parliamentarian, seemingly lacking any sense of irony (if not time) noted that ‘the boundaries of States in Africa are the artificial creation of European powers’ and ‘should [not] necessarily prevail for the rest of history’.119 International lawyers played their part as well. In 1969, Reisman and McDougal produced a memorandum on ‘Humanitarian Intervention to Protect the Ibos’ (that would become important for humanitarian debates in the 1990s).120 Non-state actors in the west were also empowered, and new humanitarian actors emerged, while old ones faltered (most notably French doctors broke away from the Red Cross to form the Comité de lutte contre le génocide au Biafra, and later Médecins Sans Frontières).121 Through the mobilization of the language of international criminal law in Biafra, the postcolonial world order was ‘re-imagined’122 along familiar imperial lines, with Africa becoming the site for Western intervention by states, international institutions, and non-state actors. In doing so, the Biafran conflict would lay the normative and institutional foundations for interventions in the name of international criminal law following the end of the Cold War: by states (in the form of universal jurisdiction, often by former colonial powers), institutions (the ad hoc Tribunals, and then the ICC), and by non-state actors. Second, the representation of the Biafran conflict produced ‘images of Africa’ that supplemented international criminal law’s symbolic and affective regime in two important respects. First, the conflict produced actual ‘images’ of Africa—as ‘images of starving Biafran children entered the everyday lives of people across the west’123—images that have become synonymous with African suffering since. Second, the conflict drew 116 Michael Reisman and Myres McDougal, ‘Humanitarian Intervention to Protect the Ibos’ (1969) reprinted in R Lillich (ed), Humanitarian Intervention and the United Nations (UP of Virginia 1973) 167 (hereafter Reisman and McDougal, ‘Humanitarian Intervention’). See further Nicholas J. Wheeler, Wheeler, Saving Strangers: Humanitarian Intervention in International Society (OUP 2000) 42–43. 117 Anne Orford, ‘Muscular Humanitarianism: Reading the Narratives of the New Interventionism’ (1999) 10 European J of Intl L 679. 118 See Heerten, Biafran War (n 112) 113. 119 ibid 114. 120 Reisman and McDougal, ‘Humanitarian Intervention’ (n 116). Notably, the authors did cite Article VI of the Genocide Convention and the Nuremberg Tribunals, but only in relation to the supposed irrelevance of immunity. See ibid 175–76. 121 On Médecins Sans Frontières, the re-imagination of the third world, and colonial guilt, see Jessica Whyte, ‘Powerless Companions or Fellow Travellers?: Human Rights and the Neoliberal Assault on PostColonial Economic Justice’ (Radical Philosophy, June 2018) accessed 14 April 2019. 122 Heerten, Biafran War (n 112) 9. 123 ibid 128.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

174 Christopher Gevers on, and developed, what Chinua Achebe (a one-time envoy for the Republic of Biafra) called ‘the dominant image of Africa in the western imagination’; one that ‘set[s] up Africa as a foil to Europe, as a place of negations at once remote and vaguely familiar, in comparison with which Europe’s own state of spiritual grace will be manifest’.124 Or, as Morrison puts it, ‘the canvas upon which a portrait of a wiser, or sadder, or fully reconciled [European] self could be painted’.125 This ‘Image of Africa’ was by no means novel, but representations of Biafra drew heavily on it to produce a rhetorical figure that would become central to international criminal law: the white (male) humanitarian saviour. The ‘wandering European’ who enters an ‘Africa’ figured as ‘a metaphysical battlefield devoid of all recognizable humanity’, and (re)discovers his own in the process.126 In Biafra, this symbolic figure took the form of the male European missionary carrying the stricken African child.127 Later, it became that of the ICC prosecutor: ‘the [white] man in the white suit’ wandering into a ‘Congolese village’.128 In Biafra, as in Versailles and Nuremberg, the figures of the ‘African victim’ and the ‘European saviour’ were once again supplemented by that of the ‘African savage’, invoked by journalists and international lawyers129 alike. In fact, when references to ‘savages’ were omitted by journalists’ reporting on Biafra, the editor of the New York Times (who well-understood the affective regime that bound together his audience) promptly inserted them.130 Of course both the ‘muscular humanitarianism’ of the West and the re-figuring of the humanitarian Western actor required a calculated forgetting of the (still very recent) colonial past, which former colonial powers were more than happy to do. None more so than Germany, for whom Biafra also represented an opportunity to redress the ‘betrayal’ narrative of Nuremberg by demonstrating that ‘[a]fter the barbarism of Nazis rule, the postimperial west Germany of the late 1960s [had] become a part of the west’.131 Biafra seemingly offered expiation for the German people as well, through joining the ‘imagined community of sentimentality’ it generated, as more individual petitions were 124 Achebe, ‘Image of Africa’ (n 3) 784 (emphasis added). 125 Toni Morrison, The Origins of Others (Harvard UP 2017) 103. 126 Achebe, ‘Image of Africa’ (n 3) 790, 793. 127 On the over-representation of western male priests in Biafra, see Heerten, Biafran War (n 112) 161. 128 The narrator’s opening lines in the 2010 documentary The Prosecutor, that depicts the ICC pros ecutor’s arrival in a Congolese village, preceded immediately by images of (i) African women and children and then (ii) an armed African man. As Schwobel points out, in addition to The Prosecutor, ‘other documentaries, including The Reckoning from 2010 and The Court, released in 2013, make use of the same narrative of heroes, victims and perpetrators’. See Christine Schwobel, ‘The Market and Marketing Culture of International Criminal Law’ in Schwobel (ed), Critical Approaches to International Criminal Law: An Introduction (Routledge 2014) 272–73. See further Wouter G. Werner, ‘Justice on Screen— A Study of Four Documentary Films on the International Criminal Court’ (2016) 29 Leiden J of Intl L 1043. 129 Reisman and McDougal, ‘Humanitarian Intervention’ (n 116) 167. 130 Milton Allimadi, The Hearts of Darkness: How White Writers Created the Racist Image of Africa (Black Star Books 2002). British papers were little different. See A Bolaji Akinyemi, ‘The British Press and the Nigerian Civil War’ (1972) 71 African Affairs 408. 131 Heerten, Biafran War (n 112) 218.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Africa and International Criminal Law 175 sent to the UN about the conflict from Germany than from any other country.132 A Foreign and Commonwealth Office memo written at the time speculated that ‘[i]t seems possible that many Germans find a psychological compensation in protesting against allegations of genocide in Nigeria for their failure to make similar protests in Germany under Hitler’.133

D. African States, Apartheid, and the (almost) International Criminal Court Unlike Germany, Britain had not had its ‘Nuremberg moment’ and so the assertion that Biafra was ‘the first time in . . . history [that] Britain has become an active accomplice in the deliberate slaughter of hundreds of thousands of men, women and children’ was neither controversial nor uncommon.134 African states, however, would certainly have disagreed. Colonialism and slavery aside, Britain was at the time an ‘active accomplice’ in the ongoing international crime of apartheid taking place in South Africa and South West Africa. As a result, while the west invoked the language of international criminal law to re-imagine the future postcolonial order in Biafra, African states used it to address the last vestiges of the colonial not-yet-past, and what they saw as the greatest international crime of the day: apartheid South Africa. When Oliver Tambo of the African National Congress (ANC) addressed the UN in 1963—the first time a member of the South African liberation movement addressed a major UN body—he called apartheid ‘genocide masquerading under the guise of a civilised dispensation of justice’.135 By then newly independent African states had already unanimously decided to take South Africa to the ICJ—in the names of its ‘oldest’ states, Ethiopia and Liberia—to challenge the implementation of apartheid in South West Africa, and by implication South Africa.136 They chose American lawyer Ernest Gross to represent their case, who, Irwin argues, ‘[modelled] Africa’s case on the most prominent human rights trial of the twentieth century, the Nuremberg Trials’.137 After some initial success, their efforts were met with the infamous 1966 decision of the ICJ declaring that

132 ibid 227. 133 Document PMVB (69) of 16 January 1969 in UKNA fi le FCO 65/179 cited in Smith, Genocide and the Europeans (n 110) 70. 134 ‘Another More Murderous Harvest’ (n 88). 135 Oliver Tambo, ‘United Nations Must Take Action to Destroy Apartheid’ (Statement at the meeting of the Special Political Committee of the General Assembly, New York, 29 October 1963) reprinted in Enuga Sreenivasulu Reddy (ed), Apartheid and the International Community: Addresses to the United Nations Committees and Conferences (Sterling Publishers 1991). 136 See Second Conference of Independent African States, Addis Ababa, June 14 to 26, 1960 (Ministry of Information of the Imperial Ethiopian Government 1960) 105. See further Ernest A. Gross, ‘The South west Africa Cases: On the Threshold of Decision’ (1964) 3 Columbia J of Transnational L 19. 137 Ryan M. Irwin, Gordian Knot: Apartheid and the Unmaking of the Liberal World Order (OUP 2012) 110.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

176 Christopher Gevers Ethiopia and Liberia had no legal interest in the matter.138 African states were universally critical of the ICJ’s decision. Foreshadowing their complaints against the ICC half a century later, African states accused the ICJ of ‘neo-colonialism’139 and threatened it with mass withdrawal.140 The ‘turn’ to international criminal law by African states was almost immediate: in December 1966 all but one African state voted in favour of the General Assembly reso lution declaring apartheid to be a ‘crime against humanity’.141 Two years later African states fought doggedly to include specific references to the crime against humanity of apartheid in both the Preamble and the substance of the 1968 Convention on the NonApplicability of Statutory Limitations to War Crimes and Crimes Against Humanity.142 As one African delegate put it: ‘The definitions in the Charter of the Nuremberg Tribunal represented the view of the allied Powers in 1945; because of their limited purposes, those definition were no longer suitable for present-day world needs’.143 For their part, Western powers doggedly opposed any reference to apartheid, largely on ‘technical’ grounds, but African states, with the support of Third World allies, won and the crime against humanity of apartheid was included in the Convention.144 In response, European states formulated their own convention on the subject that simply omitted the crime against humanity of apartheid.145 Then, in 1973, the General Assembly adopted the International Convention on the Suppression and Punishment of the Crime of Apartheid,146 which not only criminalized

138 See South west Africa Cases, Second Phase (n 92). See Victor Kattan, ‘Decolonizing the International Court of Justice: The Experience of Judge Sir Muhammad Zafrulla Khan in the South west Africa Cases’ (2015) 5(2) Asian J of Intl L 310. 139 UNGAOR, 21st Sess, C5, 1132nd Mtg, 25 October 1966, 70. The President of Liberia, at the time, noted that the decision was ‘transparent with racism and the old game of colonialism’. 140 UNGAOR, 21st Session, C5, 1124th Mtg, 10 October 1966, 24. 141 The Policies of Apartheid of the Government of the Republic of South Africa, GA Res 2202 (XXI), UNGAOR, 21st Sess, 1496th Plen Mth, 16 December 1966 accessed 14 April 2019. Malawi was the only African state (aside from South Africa) that did not support the resolution, deciding to abstain (along with Australia, Austria, Belgium, Canada, France, Italy, Japan, Luxembourg, Netherlands, New Zealand, United Kingdom, and the United States). Portugal and South Africa opposed it. For the background to the resolution see ‘General Assembly’ (1967) 21(2) Intl Organization 336, 391–400. 142 See UNGAOR, 23rd Sess, C3, 1568th Mtg, 10 October 1968, 5 (African states unanimously rejected UK amendment that removed reference to apartheid from Article I); UNGAOR, 23rd Sess, C3, 1573rd Mtg, 15 October 1968, 1 (African states unanimously voting in favour of Preamble). See generally UNGAOR, 23rd Sess, C3, 1562nd-1574th Mtgs. The Convention was subsequently adopted by the General Assembly and entered into force on 11 November 1970. See Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (n 94). 143 Statement by Representative from Dahomey (as reported), UNGAOR, 23rd Sess, C3, 1567th Mtg, 10 October 1968. 144 See further, Christopher Gevers, ‘Prosecuting the crime against humanity of apartheid: never, again’ (2018) African YB Intl Hum Law 25–49. 145 See European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes, Council of Europe, 25 Janruary 1974, Eur TS No 82. 146 30 November 1973, 1015 UNTS 244 (hereafter Apartheid Convention).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Africa and International Criminal Law 177 apartheid but created ‘unprecedented powers of jurisdiction and enforcement’.147 Like the 1948 Genocide Convention, it called for the prosecution of the crime of apartheid by ‘an international penal tribunal’, but it went further: empowering ‘a competent tribunal of any State Party’ to do so (i.e., through exercising universal jurisdiction);148 and providing for international criminal responsibility for individuals who ‘abetted, encouraged, or cooperated in the crime of apartheid’.149 Little was to come of the latter two innovations, but the efforts to establish an ‘international penal tribunal’ as contemplated by the Apartheid Convention contributed significantly to the establishment of the ICC in ways that remain unacknowledged today. In 1980, the UN Commission on Human Rights asked Egyptian international lawyer Cherif Bassiouni to undertake a study into establishing the ‘international penal tribunal’ anticipated by the Apartheid Convention.150 Bassiouni went a few steps further: producing not only a study but a draft convention, not only for the crime of apartheid but for international crimes generally. In his commentary on the Draft Convention on the Establishment of an International Penal Tribunal for the Suppression and Punishment of the Crime of Apartheid and Other International Crimes (‘Draft Apartheid Tribunal Convention’), Bassiouni claimed that the 1973 Apartheid Convention was ‘the only international convention which specifically contemplates an “international penal tribunal” ’ (the Genocide Convention notwithstanding),151 and argued that under Article V of the Apartheid Convention (alone) ‘the legislative authority for the creation of an International Criminal Court is clearly established’.152 Under Bassiouni’s Draft Apartheid Tribunal Convention, the resultant ‘international criminal court’ (a ‘new international legal entity’)153 would be based in The Hague,154 147 Adam Sitze, ‘The crime of apartheid: geneology of a succesful failure’ (2019) 7(2) London Review of International Law 181–214 (hereafter Sitze, ‘Crime of Apartheid’ n 147). 148 Article V, Apartheid Convention (n 146) (emphasis added). As opposed to the ‘the State in the territory of which the act was committed’. See Article VI, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 278. Bassiouni argued at the time that ‘the distinctive essence of the Apartheid Convention is that it addresses the consequences for States generally of conduct occurring within another State’. See Study on Ways and Means of Insuring the Implementation of International Instruments such as the International Convention on the Suppression and Punishment of the Crime of Apartheid, Including the Establishment of the International Jurisdiction Envisaged by the Convention, UNESCOR, Commission on Human Rights, 37th Sess, UN Doc E/CN.4/1426 (19 January 1981) 5 accessed 14 April 2019 (hereafter Study on Apartheid Convention). 149 John Dugard, International Law: A South African Perspective (Juta 1994) 214. 150 See Implementation of the International Convention on the Suppression and Punishment of the Crime of Apartheid, Commission on Human Rights Res 12 (XXXVI), 36th Sess, 26 February 1980, para 7. 151 Study on Apartheid Convention (n 148) 46 (‘[n]o other international convention, which has as its objective to criminalize a certain conduct, contains a similar requirement. In fact only the [Genocide Convention] . . . incidentally recognizes the eventual jurisdiction of an International Criminal Court’ (emphasis added). 152 Study on Apartheid Convention (n 148) 13 (noting later that ‘the only international legislative authority for an International Penal Tribunal is the Apartheid Convention’ at 46). 153 ibid 2. 154 Article 2, Draft Apartheid Tribunal Convention in Study on Apartheid Convention (n 148).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

178 Christopher Gevers be independent of the Apartheid Convention, and have its jurisdiction extended to prosecute all international crimes.155 At the time, Bassiouni declared that the Draft Apartheid Tribunal Convention had reawakened the promise of an international criminal court, by remedying the flaws in the post-Nuremberg attempts at creating one.156 There was, of course, to be no Apartheid Tribunal, but it was not without consequence. In the 1980s the halting efforts at establishing such a tribunal led to African states’ decision not to prosecute international crimes through its nascent regional human rights regime (a decision they likely regret, and have recently revisited).157 Then, when it came to drafting what would become the Rome Statute of the International Criminal Court in the 1990s, the Draft Apartheid Tribunal Convention was its blueprint.158

V. The 1990s: The Era of (Anti-)Impunity It was not sufficient to refer to [existing] international law in defining the crimes in question since that law, which had been formulated in the past by the developed countries, did not take into account certain present-day realities which were of the highest importance for the young countries. It was important that the convention should apply to crimes past, present and future. Apartheid was one of the gravest crimes against humanity being committed today and it would render the draft convention meaningless if [it] . . . were omitted.159

The 1990s held much promise, both for international criminal law and for its relationship with Africa. The end of the Cold War brought renewed hope that the long-deferred 155 See Article 4(2), Draft Apartheid Tribunal Convention in Study on Apartheid Convention (n 148). Bassiouni suggested that the Apartheid Convention might be used as the ‘international legislative basis . . . to permit the International Penal Tribunal to investigate, prosecute, adjudicate and punish other conventional international crimes’. Study on Apartheid Convention (n 148) 46. Bassiouni also produced an alternate draft convention—the Draft Additional Protocol for the Penal Enforcement of the International Convention on the Suppression and Punishment of the Crime of Apartheid—which would supplement the 1973 Apartheid Convention, mostly utilize ‘existing United Nations structures’, and be limited to prosecuting the crime of apartheid. 156 See Study on Apartheid Convention (n 148) 13–4. 157 See Frans Viljoen, ‘A Human Rights Court for Africa, and Africans’ (2005) 30(1) Brooklyn J of Intl L 1, 4–5. 158 See Cherif Bassiouni, The Legislative History of the International Criminal Court (Transnational Publishers 2005) 36, 39–40 (noting that the 1994 Draft Statute for an International Criminal Court ‘was patterned after the 1980 draft statute to establish an international criminal jurisdiction to enforce Article V of the Apartheid Convention’). According to Bassiouni, the ICTY Statute was modelled to some extent on his Draft Apartheid Tribunal Convention. See M. Cherif Bassiouni, ‘Enforcing Human Rights through International Criminal Law and through an International Criminal Tribunal’ (1994) 26 Studies in Transnational Legal Policy 347, fn 79. 159 ‘Statement by Kenyan Representative’ (as reported) (General Assembly, Third Committee, 9 October 1968).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Africa and International Criminal Law 179 permanent International Criminal Court (ICC) would finally be established, and before the ‘Decade of International Law’ had even begun, efforts to this end were underway. While they were ongoing, a reinvigorated UN Security Council established two ad hoc International Tribunals for the conflicts in Rwanda and Yugoslavia, the era of the ‘responsibility to protect and right to punish’ had begun.160 These developments opened up the possibility of African states’ participation in a renewed international criminal law. While this participation was not in itself novel, as the previous part has illustrated, the degree was: the 1990s was the most significant chance for African states to influence—in a permanent fashion—the laws and institutions of international criminal law that, as they pointed out in 1968, had been ‘formulated in the past by the developed countries’, and to ensure that the project ‘[took] into account certain present-day realities which were of the highest importance for the young countries’. As Schabas notes, for African states the ICC held the promise of ‘a new institution that would be independent of the old system, in which all states would play an equal role, and whose work would be directed by a genuinely independent and impartial prosecutor’.161 The promise of a renewed international criminal law also held out hope for the victims of international crimes in Africa who were yet to receive any of the ‘international justice’ it has long-promised, despite being present absences in its workings from the outset. By its close, there was much to suggest that the decade had fulfilled its promise. While crimes committed in Africa were not officially the concern of international criminal law prior to 1990, by the century’s end, international, domestic, and ‘hybrid’ courts were making good business out of them, a dramatic break from the impunity that prevailed in past centuries for crimes committed against Africans. The ‘revolutionary’ ICC—permanent and impartial (although not as impartial as African states would have liked)—promised future ‘unprecedentedness’. African states had participated at Rome with ‘astonishing enthusiasm’,162 and an African country had become the first state to ratify the Rome Statute.163 Yet, when set against the longer history of Africa and international criminal law, the ‘dramatic break’ ushered in by the 1990s breaks down (dramatically, perhaps); and so much of what seemed ‘new’ about international criminal law was in fact more of the same. The field remained thoroughly entangled with older imperial prerogatives, institutionally so in fact, notwithstanding the efforts of African states at Rome in 1998. The continued hold of international criminal law’s racialized symbolic and affective regime was clear to some at the time (and has become clearer since).164 Moreover, while the persistence of international criminal law’s past racial politics is perhaps less obvious, given the formal inclusion of Africans within it, ‘double standards’ continued to haunt the field in the 1990s. As illustrated by considering its responses to two events, both of which took place in April 1994. 160 Mahmood Mamdani, ‘Responsibility to Protect or Right to Punish?’ (2010) 4(1) J of Intervention and Statebuilding 53. 161 Schabas ‘Banality of International Justice’ (n 37) 549. 162 Schabas ‘Banality of International Justice’ (n 37) 548. 163 On 2 February 1999, Senegal became the first state to ratify the Rome Statute. 164 See e.g., Adam Branch, Displacing Human Rights: War and Intervention in Northern Uganda (OUP 2011) 182–83.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

180 Christopher Gevers

A. April 1994 The 1994 Rwandan genocide lasted 100 days and took 800,000 lives. ‘In contrast to the Bosnia case’, Smith notes, ‘in the Rwanda case virtually all European governments used the term genocide to describe the killings while they were still ongoing’ (the US was infamously reluctant to do so for reasons of its own).165 It took less than a month for NGOs to label the events in Rwanda genocide, and before it was over they were calling for international prosecutions.166 Western states soon followed suit, and in November 1994 the UN Security Council adopted SCR 955 establishing an International Criminal Tribunal for Rwanda (ICTR), which began operating in 1995. From early on in the conflict, NGOs called for criminal trials to end the ‘culture of impunity’ in Rwanda, which they said had not only contributed to the genocide, but also harmed the international community. In Rwanda: Death, Despair and Defiance—the influential (and now infamous) 750-page ‘yellow book’ on the genocide, published less than three months after it had ended—African Rights called for the ‘culture of impunity’ itself to be put on trial.167 The language of ‘ending impunity’ took hold quickly: while the term ‘culture of impunity’ ‘had rarely been used before 1991’ its use rapidly increased thereafter, particularly from 1994 onwards.168 The events in Rwanda were central to the ascendency of this ‘anti-impunity’ agenda in the 1990s, as the Rwandan genocide was figured as both a warning and a rallying cry. A warning for what happens when the West ‘stands idly by’, and a rallying cry for it to ‘do something’ in the face of such atrocities (and increasingly to do one thing above all else: prosecute those responsible).169 In fact, when the ICTR shut down in December 2015, it called the film reflecting on its legacy ‘20 Years Challenging Impunity’. The meteoric rise of the language of ‘anti-impunity’ during the 1990s culminated in its inclusion in the preamble of the Rome Statute—which recorded the determination ‘to put an end to impunity for the perpetrators of . . . [international] crimes and thus to contribute to the prevention of such crimes’.170

165 Smith, Genocide and the Europeans (n 110) 177. The UK were similarly reluctant to do so. ibid 163. 166 See Human Rights Watch, ‘Genocide in Rwanda: April-May 1994’ (1 May 1994) 14 accessed 14 April 2019; Amnesty International, ‘A Call for UN Human Rights Action on Rwanda and Burundi’ (30 April 1994) accessed 14 April 2019. 167 Rakiya Omaar, Rwanda: Death, Despair and Defiance (African Rights 1995) 724. 168 See N-gram in Karen Engle, ‘A Genealogy of the Criminal Turn in Human Rights’ in Karen Engle, Zinaida Miller, and D M Davis (eds), Anti-Impunity and the Human Rights Agenda (CUP 2017) 15, 21 (hereafter Engle, ‘Genealogy of the Criminal Turn’). 169 Samuel Moyn, ‘Anti-Impunity as Deflection of Argument’ in Karen Engle, Zinaida Miller, and D M Davis (eds), Anti-Impunity and the Human Rights Agenda (CUP 2017) 69 (hereafter Moyn, ‘AntiImpunity’) (As Moyn notes, ‘ “Standing idly by” . . . is not the sole option besides punishment in the face of atrocity crime, let alone other forms of injustice that haunt the world’). 170 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, preamble (here after Rome Statute).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Africa and International Criminal Law 181 This ‘war on impunity’ initiated in the 1990s, however, was circumscribed from the outset. It was limited to particular forms of violence or harms that are determined to be ‘international crimes’,171 particular actors that could be held responsible for these crimes, and, as Clarke notes, above all it was limited ‘to the “now”, namely to the “present”, and the “future” ’.172 It was not about the colonial past, in Rwanda or elsewhere, no matter how recent.173 This orientation towards the future (and away from the past) was made explicit in a first draft of the Rome Statute’s preamble that called for an end to impunity only ‘for the sake of future generations’.174 Justice for the ‘present generation’ was an afterthought, while justice for the past remained largely unthinkable. Yet the ‘impunities’ of the past were stubborn. For inspiration for their draft preamble of the Rome Statute, the Andorran delegation had turned to the preamble of the United Nations.175 That preamble was drafted by Jan Smuts, who also had a hand in South West Africa becoming a mandate territory under South African control at Versailles in 1919,176 and the establishment of what would later become known as ‘apartheid’ in South Africa.177 Apartheid had come to an end in South Africa in April 1994 (and Namibia, a few years prior), and it is in international criminal law’s responses to the end of apartheid that the field’s continued racial politics are most visible. As Dugard notes, ‘[b]efore 1990 . . . it was widely believed that, if the liberation movements were victorious in their effort to overthrow the apartheid regime by force, the leaders of the regime would be tried in the same way that Nazi leaders had been tried at Nuremberg’.178 The Apartheid Convention—which at the time had been signed by

171 As Simpson puts it, international criminal law ‘reproduce[s] a dominant account of the inter national system in which its crimes (hundreds of thousands of preventable deaths every month) are understood as accidents or by-products of international political economy or sovereignty or the free trade in machetes, while its accidents . . . or singular political acts . . . are understood as ‘crimes’. Gerry Simpson, ‘Linear Law: The History of International Criminal Law’ in Schwobel (ed), Critical Approaches to International Criminal Law: An Introduction (Routledge 2014) 170. 172 Kamari M. Clarke, ‘International Justice and the Politics of Sentimentality’ in Kamari Maxine Clarke, Abel S Knottnerus, and Eefje de Volder (eds), Africa and the ICC: Perceptions of Justice (CUP 2016) 90. 173 On the colonial past and the Rwanda genocide see Jose Alvarez, ‘Crime of States/Crimes of Hate: Lessons from Rwanda’ (1999) 24 Yale J of Intl L 365, 387–88, 440–41. 174 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June—17 July 1998, Official Records, Volume III, UN Doc A/CONF.183/13(Vol. Ill) 203. 175 ibid. 176 Notably, in 1926, copies of the 1918 South West Africa Blue Book had been destroyed by the authorities of the mandate territory as it was hampering the rapprochement between white settlers, an act that paved the way for white minority rule and the implementation of the policy of apartheid in that territory two decades later. 177 See Saul Dubow, Racial Segregation and the Origins of Apartheid in South Africa, 1919–36 (Palgrave Macmillan 1989) 4; Noel Garson, ‘Smuts and the Idea of Race’ (2007) 75(1) South African Historical J 153, 164. 178 John Dugard, ‘Reconciliation and Justice: The South African Experience’ (1998) 8 Transnational L and Contemporary Problems 277, 290 (hereafter Dugard, ‘Reconciliation and Justice’) (Dugard points out further that the ‘spectre of Nuremberg was held out as a threat by the liberation movements in exile’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

182 Christopher Gevers over half the states in the world (but not a single state in the West)179—had even envisaged the UN drawing up ‘a list of individuals, organizations, institutions and representatives of States’ guilty of the crime of apartheid for future prosecution by international or domestic courts.180 However, just as the ICTR was beginning its first trials, the South African Truth and Reconciliation Commission (TRC) was granting criminal and civil amnesty to perpetrators of gross human rights violations committed during apartheid. Given the significance of struggle against apartheid globally, and uptake of inter national criminal law during the 1990s, one might have expected some international push back against amnesty for apartheid crimes in South Africa. However, in stark contrast to Rwanda, from the outset there was little international appetite for trials. For its part, not only did the UN ‘not suggest or even consider the establishment of an ad hoc tribunal to try apartheid’s criminals despite the fact that many of the acts in question constituted international crimes, particularly crimes against humanity’,181 it played, at best, an unwitting role in the inclusion of a conditional amnesty in the negotiated settlement. Generally speaking, in the 1990s the UN ‘seemed intent on forcing the parties in South Africa to formulate their own solution to the problem’ of negotiating an end to apartheid (in contrast to the ‘interventionist approach’ in Yugoslavia, Somalia, and later Rwanda).182 However, following the ‘Boipatong massacre’ in June 1992, the ANC sent its leader Nelson Mandela to New York to address the Security Council and request international assistance in ending the violence. In the weeks leading up to his trip to New York, Mandela told audiences at home and abroad that the South African government’s actions were comparable to that of Nazi Germany,183 and he opened his address to the Security Council on 15 July 1992 by reminding its members that the UN had been seized with the question of apartheid ‘which [it] has determined is a crime against humanity’.184 The immediate outcome of that meeting was the dispatch of a UN envoy to South Africa to explore measures that would end the violence and facilitate the re-opening of negotiations.185 While the UN observers were in South Africa, ANC members embarked upon a week of ‘mass action’ that included mock ‘Nuremberg trials’ on the streets of Cape Town that found the apartheid leaders guilty of international crimes and sentenced them to death.186 179 By April 1994, 99 states had signed up the Apartheid Convention. 180 Article 10, Apartheid Convention (n 146). 181 Dugard, ‘Reconciliation and Justice’ (n 178) 278. 182 Peter N. Bouckaert, ‘The Negotiated Revolution: South Africa’s Transition to a Multiracial Democracy’ (1997) 33 Stanford J of Intl L 375, 392 (hereafter Bouckaert, ‘Negotiated Revolution’). See further UN General Assembly, Declaration on Apartheid and its Destructive Consequences in Southern Africa, UN Doc A/RES/S-16/1 (1989). 183 ‘ANC breaks off talks’ The Citizen, 22 June 1992. 184 Security Council, Provisional Verbatim Record of the 3059th Meeting, 15 July 1992, at 17. 185 See Security Council Resolution 765, UNSCOR, 3096th Mtg (1992) accessed 14 April 2019. 186 ‘ANC Unwilling to Back a General Amnesty’ The Chicago Tribune, 14 August 1992.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Africa and International Criminal Law 183 However, when the UN Secretary-General reported back to the Security Council in August 1992, he recommended, amongst other things, the investigation of violence on both sides and the ‘immediate release of all remaining political prisoners’ that would ‘contribute greatly to improving the political climate, creating trust and burying the unhappy past’.187 The next day the ‘Goldstone Commission’—appointed by the apartheid government to look into political violence188 and headed by Richard Goldstone (at the time also sitting as a Judge on apartheid South Africa’s highest Court of Appeal)— called for the investigation of the military and police, and the provision of amnesty in order to ‘make the work of the commission more efficient’.189 The apartheid government, which had been trying for some time to ‘tie the question of an amnesty for its own forces to the freeing of the remaining prisoners’,190 seized on the idea of a ‘blanket, noquestions-asked amnesty that would cover all crimes linked to South Africa’s past’.191 Notably, at the time, Western nations had reportedly ‘already indicated support for some form of amnesty’.192 No doubt buoyed by the international support for ‘burying the unhappy past’, the apartheid government subsequently pushed through a law in November 1992 giving the president the power to grant amnesty to anyone who ‘advised, directed, commanded, ordered or performed any act with a political object’.193 The ANC rejected the measure, reportedly calling it ‘tantamount to a self-pardon by Nazi war criminals’,194 and vowed not to uphold the law. The scope, conditions, and timing of any amnesty remained a sticking point in negotiations throughout 1993, however in November—amidst the spectre of a return to outright civil strife, threats from the apartheid security apparatus over the issue of amnesty,195 and international pressure to conclude the negotiated settlement196—a last minute compromise was reached providing for a conditional amnesty for ‘offences associated with political objectives and committed in the course of

187 United Nations Security Council, Report of the Secretary-General on the Question of South Africa, 7 August 1992, 16, 18. 188 Commission of Inquiry Regarding the Prevention of Public Violence and Intimidation, appointed by President FW de Klerk on 24 October 1991. 189 ‘S. Africa Panel: Investigate Police, Military’, The Chicago Tribune, 9 August 1992. 190 Lynn Berat, ‘South Africa: Negotiating Change?’, in Naomi Roht-Arriaza, Impunity and Human Rights in International Law and Practice (1995), 267, at p. 272. 191 ‘ANC Unwilling to Back a General Amnesty’, The Chicago Tribune, 14 August 1992. 192 ‘ANC Unwilling to Back a General Amnesty’, The Chicago Tribune, 14 August 1992. 193 Further Indemnity Act 151 of 1992. See Berat, ‘Negotiating Change?’, 272–3. 194 Human Rights Watch, Accounting for the Past: The Lessons for South Africa from Latin America, 23 October 1992. 195 Lynn Berat and Yossi Shain, ‘Retribution or Truth-Telling in South Africa? Legacies of the Transitional Phase’ (1995) 20(1) Law & Social Inquiry 163, 182–83 (‘[t]he agreement came after bruising negotiations among the government, the security forces, and the ANC in response to a request for a general amnesty made to Nelson Mandela by the Police Commissioner and the recently retired head of the National Intelligence Service. In their request, the two men argued that, in return for the guarantee of amnesty, the security forces would “guarantee stability” during the transition period’ citing ‘Amnesty for Political Crimes Is Agreed’ South Africa Rep (10 December 1993) 3)). 196 Bouckaert, ‘Negotiated Revolution’ (n 182) 394–95.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

184 Christopher Gevers the conflicts of the past’.197 The upshot of this compromise was the Promotion of National Unity and Reconciliation Act, adopted by South Africa’s new democratic parliament,198 which established the vaunted TRC, the first such commission empowered to grant amnesty for gross human rights violations.199 Few international lawyers (most of them South African) noted the apparent contradiction between the TRC in South Africa and the concurrent international trials taking place in Arusha and The Hague. For his part, John Dugard surmised that ‘the international community, in a state of euphoria over the abandonment of apartheid, was in no mood to set up an international tribunal’,200 and in any event the establishment of an ad hoc tribunal was impossible as ‘the South African situation was no longer seen as a threat or potential threat to international peace’.201 While Richard Goldstone—who had since become the First Chief Prosectuor of the ICTY and ICTR—argued that the difference was in ‘magnitude’: crimes of ‘Nazi Germany, the former Yugoslavia, or Rwanda’ were too egregious to be left subject to national amnesties, or even national courts: the crimes of apartheid were not, apparently.202 Even less attention was paid to the prospect of other states prosecuting the crimes of apartheid under the principle of universal jurisdiction,203 even though over half the world’s states had undertaken to do so under the Apartheid Convention.204 In fact, in 1980, Bassiouni had confidently predicted that ‘[t]he greatest threat to individuals residing in States with apartheid as policy would be in the future’, as ‘offenders’ freedom of travel’ would gradually become limited owing to the threat of either prosecution by states themselves under the Apartheid Convention, or extradition to the Apartheid Tribunal by those states.205 Even when families of prominent apartheid victims, brought a challenge to the TRC in South Africa’s new Constitutional Court 197 The compromise was appropriately captured in the epilogue of the interim constitution. The resultant amnesty law also made amnesty conditional on the ‘full disclosure of all the relevant facts’. See section 3(1)(b), Promotion of National Unity and Reconciliation Act, 34 of 1995. 198 Immediately after the elections in 1994, Mandela ‘ruled out Nuremburg-style trials for those who committed crimes in defense of apartheid’, citing amongst other things ‘the need to retain the confidence of the white minority and international investors to help build a new nation’. John Battersby, ‘Mandela Offers Amnesty As Key to Reconciliation’, The Christian Science Monitor, (Johannesburg, 2 May 1994) accessed 19 April 2019. 199 M Nothling Slabbert, ‘Debunking a Meta-Narrative: A Few Reflections on South Africa’s Truth and Reconciliation Commission One Decade after Its Final Report (2010) 73 J of Contemporary RomanDutch L 24, 25. 200 John Dugard, ‘Is the Truth and Reconciliation Process Compatible with International Law? An Unanswered Question? (1997) 13 South African J on Human Rights 258 (hereafter Dugard, ‘Truth and Reconciliation Process’). 201 ibid 291 (adding that ‘political reality’ made domestic trials in South Africa equally impossible). 202 Richard J. Goldstone, ‘Justice as a Tool for Peace-Making: Truth Commissions and International Criminal Tribunals’ (1996) 28 New York University J of Intl L & Politics 485, 496–97. 203 See, however, Neil Boister and Richard Burchill, ‘The Implications of the Pinochet Decisions for the Extradition or Prosecution of Former South African Heads of State for Crimes Committed under Apartheid’ (1999) 11 African J of Intl & Comparative L 619. 204 Article IV(b), Apartheid Convention (n 146). 205 Study on Apartheid Convention (n 148) 17–8.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Africa and International Criminal Law 185 on the grounds that it violated international law,206 and were dismissed on legally suspect grounds (in which the Court momentarily forgot about crimes against humanity),207 this decision also ‘escaped significant direct criticism’ from international lawyers.208 In fact, not only was the contradiction overlooked, South Africa’s TRC was feted by the international community (and many ‘anti-impunity’-minded international lawyers209 and NGOs) as ‘the best example of restorative justice ideals and practices on a national level’.210 The international community and NGOs subsequently mythologized the TRC into an ‘ideological metanarrative’ of restorative justice in a manner that, Lin argues, belies not only its deeply political origins, but also masked its failings and domestic discontent (that have only grown with time).211 This failure to punish apartheid crimes in the 1990s has been further obscured by the subsequent ‘criminal turn’ amongst international lawyers and NGO’s alike since then, in which criminal retribution has firmly replaced the once-ascendant ‘restorative justice’ and its preferences for truth, peace, reconciliation, and forgiveness.212 Amnesties now seem ‘so 90s’, 206 Azanian Peoples Organization (AZAPO) and Others v. President of the Republic of South Africa and Others 1996 (4) SA 672 (CC) (25 July 1996). The applicants relied considerably on an article by another South African international lawyer, Ziyad Motala, that argued that the TRC Act violated both domestic and international law and was therefore invalid. See Ziyad Motala, ‘The Proportion of National Unity and Reconciliation Act, the Constitution and International Law’ (1995) 28(3) The Comparative & Intl L J of Southern Africa 338. 207 The Constitutional Court remembered them a few years later, but only after the TRC’s work was complete, and confidently declared not only that apartheid was a crime against humanity but that South Africa was under an international obligation to prosecute them. See S v. Basson 2005 (1) SA 171 (CC) and S v. Basson 2007 (3) SA 582 (CC). See further Christopher Gevers, ‘International Criminal Law in South Africa’ in Erika De Wet, Holger Hestermeyer, and Rüdiger Wolfrum (eds), The Implementation of International Law in Germany and South Africa (Pretoria University Law Press 2015) 411–12 (hereafter Gevers, ‘ICL in South Africa’) . 208 Engle, ‘Genealogy of the Criminal Turn’ (n 168) 22. See however, Dugard, ‘Truth and Reconciliation Process’ (n 200) 258; Nthabiseng Mogale, ‘Ten Years of Democracy in South Africa: Revisiting the AZAPO Decision’ in Wessel Le Roux and Karin van Marle (eds), Law, Memory and the Legacy of Apartheid: Ten Years After AZAPO v. President of South Africa (Pretoria University Law Press 2007); Gevers, ‘ICL in South Africa’ (n 207) 412–16. 209 Taking one international lawyer as an example, Engle points out that the same individual argued that South Africa’s TRC’s complied with international law in 2000 (the same year that he convinced the Inter-American Court of Human Rights that Peru’s amnesty law violated international human rights law), only to recant a decade later by arguing that the TRC would no longer meet the requirements of international law. Engle, ‘Genealogy of the Criminal Turn’ (n 168) 25. 210 Carrie J. Niebur Eisnaugle, ‘An International Truth Commission: Utilizing Restorative Justice as an Alternative to Retribution’ (2003) 36 Vanderbilt J of Transnational L 209, 224. 211 Olivia Lin, ‘Demythologizing Restorative Justice: South Africa’s Truth and Reconciliation Commission and Rwanda’s Gacaca Courts in Context’ (2005) 12 ILSA J of Intl & Comparative L 41 (pointing out the ‘critical gap [that] exists between the ideological weight that the TRC carries within the international community and the political realities initiating and controlling the TRC’s development’). See also Tshepo Madlingozi, ‘Good Victim, Bad Victim: Apartheid’s Beneficiaries, Victims and the Struggle for Social Justice’ in Wessel Le Roux and Karin van Marle (eds), Law, Memory and the Legacy of Apartheid: Ten Years After AZAPO v President of South Africa (Pretoria University Law Press 2007). 212 See generally Engle, ‘Genealogy of the Criminal Turn’ (n 168).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

186 Christopher Gevers replaced by the ‘fight against impunity’ spearheaded by international criminal law. Buried with them was the internationally sanctioned impunity enjoyed by the numerous perpetrators of apartheid crimes.

B. A Present Absence, Almost: Apartheid (and Rwanda) at Rome, 1998 By 1998, ‘international justice’ and apartheid have already become so dissociated for international criminal lawyers that the crime of apartheid was almost absent from the Rome Statute altogether. As noted above, it was certainly present at the outset, as Bassiouni’s Draft Apartheid Tribunal was the blueprint for the ILC’s 1994 Draft Statute for an International Criminal Court. Moreover, in its Commentary to the earlier 1991 Draft Code of Crimes Against Peace and Security of Mankind, the ILC noted that the crime of apartheid ‘is nowadays so deeply condemned by the world’s conscience that it was inconceivable . . . to exclude it from a code which punishes the most abominable crimes that jeopardize the peace and security of mankind’.213 However, in its 1996 Draft Code of Crimes Against Peace and Security of Mankind the Commission did just that (as happened in early drafts of the Statute in Rome in 1998). It was only at ‘an advanced stage of the Rome Conference’, and at the insistence of South Africa and other African states, that the crime of apartheid was included in the Rome Statute at all.214 It was also left to African states (and Haiti) to call attention to the crimes of the past at Rome in 1998, more generally. The Organisation of African Unity (OAU) representative noting that ‘Africa had a particular interest in the establishment of the Court, since its peoples had been the victims of large-scale violations of human rights over the centuries: slavery, wars of colonial conquest and continued acts of war and violence, even in the post-colonial era’.215 In calling attention to apartheid and past crimes in 1998, African states might have had a déjà vu, sort of. Thirty years prior, they had successfully fought off attempts by Western states to exclude the crime of apartheid from the 1968 Convention on the Non-Applicability of Statutory Limitations, on now familiar grounds (including 213 ILC, Yearbook of the International Law Commission, 1991, Volume II, Part Two (United Nations 1994) 102 (emphasis added). Notably, the 1991 Code also included a crime of ‘Colonial domination’ (see art 18), that was subsequently dropped as well. 214 Roger Clark, ‘Crimes Against Humanity and the Rome Statute of the International Criminal Court’ in Mauro Politi and Guiseppe Nesi (eds), The Rome Statute of the International Criminal Court: A Challenge to Impunity (Ashgate 2001) 87. 215 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June—17 July 1998, Official Records, Volume II, UN Doc A/CONF.183/13(Vol. II) 104, 116 (hereafter Rome Proceedings II). South Africa, speaking on behalf of the Southern African Development Community (SADC), also reminded delegates of the link between ‘the crimes committed under the apartheid system’ and the establishment of the ICC. Rome Proceedings II at 65. A few other delegations mentioned apartheid, but focused on the technical aspects of the crime generally, not apartheid South Africa.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Africa and International Criminal Law 187 European concerns that it ‘was too vague and was out of place in a legal instrument’216 and American pleas for concessions to ensure ‘the widest possible acceptance of the draft convention’).217 However, while in 1998 African states sought to redirect attention from an exclusive focus on future crimes (at the expense of crimes of the past), in 1968 their struggle was to avoid the exclusive focus on past crimes (at the expense of crime of the present and future). At the time, Western states were keen to limit the 1968 Convention to Nazi crimes, while African states (and other Third World allies) aimed to ensure that it was ‘applicable not only to the events which had taken place in Europe between 1939 and 1945, but also to [international crimes of] the present . . . and the future’ (i.e. apartheid).218 However, it would seem that the time is never the right time to try certain crimes (or, perhaps, the time is always right to never try such crimes). In 1968 the representative from recently-independent Kenya pleaded, as if addressing delegates in Rome 30-years later: It was important that the convention should apply to crimes past, present and future. Apartheid was one of the gravest crimes against humanity being committed today and it would render the draft convention meaningless if the words ‘including inhuman acts resulting from the policy of apartheid’ were omitted.219

While apartheid was almost absent from Rome in 1998, ‘Rwanda’ was hyper-visible (perhaps portending things to come). So visible in fact that the Rwandan delegation told the plenary that it ‘hoped that the many references made to the genocide that had involved the people of his country in 1994 denoted a desire to bring the organizers of that genocide to justice’.220 If the association of international criminal law and apartheid (for reasons well-known at this point) had quickly become almost unthinkable, the association of international criminal law and the Rwandan genocide had just as quickly become almost unavoidable. Moreover, it was not just the racial politics of the field that undermined the proclaimed revolution at Rome, international criminal law’s response to the Rwanda genocide also recalled its symbolic regime and imperial entanglements which, as a result, were also present at Rome in 1998. First, the 1994 Rwandan genocide became the post-Cold War touchstone for Western intervention (and the consequences of not doing so), a ‘muscular humanitarianism’ that had its roots in part in Biafra. In fact, one of the first notable calls for ‘humanitarian (military) intervention’ in Rwanda was made by Bernard Kouchner, the ‘renegade’ doctor who broke away from the ICRC during the Biafran war. The UN famously did not intervene forcibly in Rwanda in 1994, and by some accounts the ICTR was established

216 UNGAOR, 23rd Sess, C3, 1566th Mtg, 9 October 1968, 1. 217 ibid. 218 Delegate from United Republic of Tanzania, UNGAOR, 23rd Sess, C3, 1568th Mtg, 10 October 1968, 2 (emphasis added). 219 UNGAOR, 23rd Sess, C3, 1566th Mtg, 9 October 1968, 1. 220 Rome Proceedings II (n 215) 103.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

188 Christopher Gevers out of the west’s ‘guilt’ for not doing so.221 While some questioned the legality of these ad hoc tribunals, ‘many human rights advocates almost immediately claimed [them] . . . as a human rights project’.222 In doing so, these actors not only were ‘legitimizing the dominant structures of global governance’,223 they were placing them at the centre of the resurgent international criminal law architecture. More than this, the West’s ‘non-intervention’ in Rwanda (as it had in Biafra) became a rallying to ‘do something’, or a warning of what happened when it did not. The central conceit of this refrain in Rwanda was that the west was not already present and already doing something. As Orford argues, the ‘imaginative geography’ of such interventions assumes that ‘the international community is absent from the scene of violence and suffering until it intervenes as a heroic saviour’, whereas this is seldom the case, and it certainly was not the case in Rwanda.224 The effect of this ‘imaginative geography’ for international criminal law is to place distance causally, and therefore criminally, between the ‘scene of violence’ and the ‘benevolent West’. Through its operation in Rwanda (in contradistinction to Africans at Nuremberg); states, international institutions, and non-state actors in the West were removed from the ‘crime scene’, of which they were well-aware, and absolved of responsibility for actions in which they were at the very least implicated. These continued imperial entanglements followed international criminal law into the drafting of the Rome Statute, most obviously in the power granted to the Security Council to refer and defer situations to the ICC.225 It was a power reluctantly agreed to by African states in Rome (who had unanimously opposed any role for the Security Council beforehand),226 as a necessary evil for the purposes of consensus and perhaps with the faint hope that the ICC might be a means to challenge imperial prerogatives. When doing so, African delegates at Rome ‘re-iterated the basic principle that the Court should contribute to furthering the integrity of States generally, as well as the equality of States within the general principles of international law’.227 Second, the representation of the Rwandan genocide in the west vividly recalled the symbolic regime of Biafra (and Nuremberg, and Versailles). To the central figure of the 221 Kingsley Moghalu, Rwanda’s Genocide: The Politics of Global Justice (Palgrave Macmillan 2005) 49 (noting that the ICTR was established so that the international community ‘could look itself in the face and say: “we did do something” ’). 222 Engle, ‘Genealogy of the Criminal Turn’ (n 168) 40. 223 Nesiah, ‘Doing Justice to History’ (n 38) 108. 224 Anne Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (CUP 2003) 85 (hereafter Orford, Reading Humanitarian Intervention). 225 See Rome Statute (n 170) arts 13(b) and 16. 226 See Dakar Declaration on an International Criminal Court, adopted by the OAU Council of Ministers in February 1998, and thereafter by the 34th Assembly of Heads of State and Government of the OAU, meeting at Ouagadougou in June 1998 accessed 19 April 2019; SADC Common Position, adopted at Pretoria in September 1997. 227 Dullah Omar (South Africa), speaking on behalf of the Southern African Development Community (SADC), Rome Proceedings II (n 215) 65 (emphasis added).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Africa and International Criminal Law 189 ‘African victim’ of Versailles, and the ‘European saviour’ of Biafra, Rwanda re-introduced the ‘African savage’ as simply the ‘devil’; a ‘present absence’ at Nuremberg, but absent no more. All three of these figures were present on the May 1994 cover of Time magazine, which contained the image of a Rwandan mother and child ‘beseeching intervention’,228 across that was written in large font: ‘ “There are no devils left in Hell,” the missionary said, “They are all in Rwanda” ’.229 Despite the introduction of a permanent court in 1998, with an independent prosecutor and potentially wide-ranging jurisdiction, the symbolic regime of Versailles, Nuremberg, and Biafra would prove remarkably durable for the ICC. Particularly insofar as African victims230 and perpetrators231 were concerned, which would remain its sole concern for some time to come. Looking back, notwithstanding the significant changes brought about in the 1990s to international criminal law, and in particular in respect of its relationship to Africa which is said to have begun then (or at least begun anew), in many respects it continued to reflect (and repeat) its unacknowledged past. In particular, the role that the Draft Apartheid Tribunal Convention played in the drafting of the Rome Statute recalls the story of the Blue Books at Versailles, where crimes committed against black Africans were present for the purposes of establishing a ‘first’ for the project (a permanent international tribunal, successfully this time around), but absent when it came to the justice it was to dispense. This absence was compounded this time around in two respects. First, not only were the crimes of apartheid legally excluded from the justice to be dispensed by the ICC (temporally, and almost substantively as well), they have in the event been excluded from the justice to be dispensed by the emerging regime of international criminal law as a whole (be it by another international tribunal, or a domestic court). The fact that there is yet to be a single prosecution for the countless international crimes committed during apartheid—either as the crime of apartheid, or acts constituting crimes against humanity—is staggering. Second, this absence in the event is further compounded by their absence in the retelling: namely the silence that surrounds the role of apartheid in the historiography of the field. It would after all be possible to tell a slightly less triumphant history of international criminal law in the 1990s that included the role of the Draft Apartheid Tribunal Convention in the creation of the Rome Statute, or a considerably less triumphant history of the decade that recounts how the crime that the ILC considered ‘so deeply condemned by the world’s conscience’ as to be unavoidable at its outset, had been wholly forgiven and largely forgotten by international criminal law at its close.232

228 Paraphrasing Said, Culture and Imperialism (n 26) 9. 229 Time, vol 143, no 20 (16 May 1994) accessed 19 April 2019. 230 See Christine Schwöbel-Patel, ‘The “Ideal” Victim of International Criminal Law’ (2018) 29(3) European J of Intl L 703. 231 See Kamari Maxine Clarke, ‘Refiguring the Perpetrator: Culpability, History and International Criminal Law’s Impunity Gap’ (2015) 19(5) Intl J of Human Rights 592. 232 ILC, Yearbook of the International Law Commission, 1991, Volume II, Part Two (United Nations 1994) 102 (emphasis added).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

190 Christopher Gevers

VI. Concluding Remarks There are 14 accused, all of them are Africans. There are more than 5 million African victims displaced, more than 40,000 African victims killed, thousands of African victims raped. Hundreds of thousands of African children transformed into killers and rapists. 100% of the victims are Africans. 100% of the accused are African.233

This chapter has tried to temporally and conceptually re-frame the relationship between ‘Africa’ and ‘international criminal law’, suggesting that it is much longer and more complex than is often suggested. Doing so places the ongoing debates about the field’s ‘African problem’234 in an altogether different light: the question becomes not whether international criminal law (or the ICC) might operate on neo-colonial and racist lines, but whether it might have been anything else (or might yet be). The signs are not encouraging for either international criminal law or the ICC. The difficulty that its defenders face is that the orthodox narrow framing of this relationship generates a mystery to be solved by its critics, namely: how the ICC came to focus solely on African crimes. This, however, assumes that it ought to have been otherwise. Opening up this relationship, as this chapter has done, not only unsettles this assumption, it arguably removes the mystery altogether. In the light of the longer history of this relationship (and its resonances in the present) there is nothing remarkable about the fact that the ICC has only prosecuted Africans, and not a single European, in almost two decades of operation. The hypervisibility of Africans in international criminal law today, exemplified in the statement by the former prosecutor that ‘100 per cent of the victims are Africans. 100 per cent of the accused are African’, is not remarkable because, from its inception, Africans— and African victims in particular—have been an important part of the field’s repertoire. Nor is it to be celebrated: the ‘present absence’ of Africa and Africans in the past has seldom been to their advantage. Why would the current iteration arrangement prove different? In fact, rather than transcend the racial politics, imperial entanglements, and the racialized symbolic and affective regime of the field’s past, the ICC has arguably entrenched them. What could better confirm the ‘image of Africa’ and black Africans (and of Europe and white Europeans)—and reproduce the affective regime of Versailles, Nuremberg, Biafra, and Rwanda—than if an international court, established through the neutral and apolitical application of the rule of law by the brightest legal minds, concluded, on behalf of humanity, that the ‘greatest crimes known to mankind’ were committed exclusively by Africans, and against innumerable African victims (mostly women 233 Luis Moreno Ocampo, ‘Working with Africa: The View from the ICC Prosecutor’s Office’ (Symposium on ‘The ICC that Africa Wants’, Stellenbosch, 9 November 2009). 234 Solomon Ayele Dersso, ‘The ICC’s Africa Problem: A Spotlight on the Politics and Limits of International Criminal Justice’ in Kamari Maxine Clarke, Abel S Knottnerus, and Eefje de Volder (eds), Africa and the ICC: Perceptions of Justice (CUP 2016) 61.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Africa and International Criminal Law 191 and children), the latter of whom, the former prosecutor’s statement suggests, are waiting to be ‘transformed into killers and rapists’ themselves.235 Moreover, what better way to redeem the existing global governance regime if it is not only displaced from the scene of this carnage,236 but also if both the older post-imperial institutions (chiefly, the Security Council) and the newer technologies of governance (such as rule of law technocrats) are presented as the only way to address it. All the while the ‘profoundly uneven global political economy’ that underpins this carnage ‘disappears’.237 In fact, the above statement by the former prosecutor might even be read ironically, as confession rather than defence. So too might the title of the conference where it was delivered be re-read ironically, as not the ‘The ICC that Africa Wants’ but the ‘The Africa that the ICC wants’: not just discursively, but politically and economically as well. The effect, moreover, is not only to naturalize a certain present, but a version of the past as well. As exemplified once again, although this time in even fewer words, by the former prosecutor in a 2017 tweet, ‘African bias cover up African killers. Holocaust denial cover up Nazi crimes’. As at Nuremberg, ‘European’ crimes are particularized to certain actors (i.e., Nazi’s), while ‘Africans’ act collectively and permanently, their agency being subsumed by their identity (they don’t act, they are); paraphrasing Fanon, their criminality is ‘written into the nature of things, of the thing which is biologically organized’.238 As the burden shifts onto the project’s defenders to show why, in light of this history, the ICC’s ‘Africa Problem’ is a mystery at all, the puzzle becomes theirs to solve. They need to account for how a formally neutral, globally-staffed institution, applying a universal law, came to focus solely on African crimes, in order to show that it need not have been the case, and that the ICC or at least the project of international criminal law can be reformed yet. Here, complex arguments (usually raised by critics) as to why the ICC might be structurally racist or neo-colonial, become defences of why it is not wholly or irredeemably so (and simpler arguments about its case selection based on overt neocolonial conspiracies become a distant dream). Structural explanations of its focus on Africa—the preponderance of conflicts, the political economy of international crimes, the need to bolster institutional legitimacy through pursuing ‘easy’ targets, the ‘necessary evil’ of Great Power support—become sights of intervention and remedial action to ‘save the ICC from itself ’. However, aside from the fact that international criminal law’s defenders have generally ignored or dismissed structural arguments of this sort out of hand (and, as discussed below, are likely to continue to do so), the immediate difficulties with re-working them in defence of the ICC are three-fold. The first is that there is a lot of structure 235 Returning to Mills’ ‘Racial Contract’, black African victims are present in order to implicate black African perpetrators: a globalized iteration of hyper-policing that was traditionally assigned to the ‘coercive arms of the state . . . as the enforcers of the Racial Contract’. Mills, Racial Contract (n 28) 84. 236 Orford, Reading Humanitarian Intervention (n 224) 85. 237 Clarke, ‘Making of the African Warlord’ (n 5) 7. 238 Fanon, The Wretched of the Earth (n 57) 302.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

192 Christopher Gevers involved in producing these outcomes, and at some point the whole starts to look like the sum of its parts. The second is that many of the actors involved in the field today were instrumental in the conceptualization and implementation of these structures in the Rome Statute. The third is that these actors have ‘doubled-down’ on many of these structures since the ICC came into operation: the prosecutor has defined gravity narrowly and solicited self-referrals, the Court has operated willingly in the shadow of the Security Council, NGOs have further empowered institutions and actors in the North over states in the South through ‘creeping cosmopolitanism’,239 and the symbolic and affective regime has been profited from240 and ‘re-worked’ for a neoliberal age241 (all with ‘distinctive and repetitive geopolitical and distributive patterns’).242 In the final analysis, however, debates about the relationship between Africa and international criminal law are likely to remain narrow and unproductive for some time to come; and the call made in this chapter to re-tell the project’s past to ‘un-silence’ the roles played by Africa and Africans, and how they resonate in the present, is likely to fall on deaf ears. In Playing in the Dark, Toni Morrison argues that even today ‘silence and evasion’ continues to blunt critical and difficult conversations about the place of Africans and African-Americans in American letters, and in society more generally. Similarly, difficult conversations about Africa and international criminal law continue to be met with ‘silence and evasion’, both of which have something to do with the discourse of ‘impunity’. First, the history of the field is unlikely to be re-told as this past has been silenced in part because ‘the heightened attention to the fight against impunity has all but eclipsed the intertwined history and legacy of impunity that has accompanied every attempt at international justice’.243 Even Bassiouni himself forgot about the crimes of apartheid when, in 2009, he set out the evidence for why ‘[i]n all of the post-World War II conflicts, there has been so much impunity and so little accountability’ (although, tellingly, he did remember ‘Biafra in the early 1960s [sic]’).244 Returning to the analogy of the Haitian revolution, Trouillot argues that this historical event was silenced, then and now, not because of a lack of historical ‘facts’ (even misstated ones), but because of how history continues to be narrated: it was rendered a ‘distracting footnote within [the] narrative order . . . of global domination’ because it contradicted ‘most of what the West has told both itself and others about itself ’.245 As a result, no single ‘great book nor even a substantial increase in slave resistance studies will fully uncover [this] silence’; rather, it 239 Padraig McAuliffe, ‘From Watchdog to Workhorse: Explaining the Emergence of the ICC’s Burden-Sharing Policy as an Example of Creeping Cosmopolitanism’ (2014) 13(2) Chinese J of Intl L 259. 240 Christine Schwöbel-Patel, ‘Spectacle in International Criminal Law: The Fundraising Image of Victimhood’ (2016) 4(2) London Rev of Intl L 247. 241 Kamari M. Clarke, Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (CUP 2009) ch 2. 242 Nesiah, ‘Doing Justice to History’ (n 38) 100. 243 ibid 96. 244 Cherif M. Bassiouni, ‘International Criminal Justice in Historical Perspective: The Tension Between States’ Interests and the Pursuit of International Justice’ in Antonio Cassese (ed), The Oxford Companion to International Criminal Justice (OUP 2009) 138. 245 Trouillot, Silencing the Past (n 25) 107.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Africa and International Criminal Law 193 will persist ‘as long as the history of the West is not retold in ways that bring forward the perspective of the world’.246 The same could be said of histories of international criminal law currently narrated as a progressive ‘struggle against impunity’, and as part of the story the West tells about itself and its ‘others’, where past impunities of the sort recounted here are necessarily rendered distracting footnotes. Second, attempts to engage critically with international criminal law’s relationship with Africa and Africans is likely to continue to be met with evasion. As Mégret notes, the ICC’s ‘almost cartoonesque’ overrepresentation of Africans has not, as one might have expected, ‘led to a more deliberate and introspective soul-searching, and perhaps even to a sophisticated effort at grappling with questions of race and racism’, but has rather led to ‘blanket denials of racism and claims that the ICC is “on the side” of, almost invariably racialized, victim populations’.247 Yet, as critical race theorists have pointed out repeatedly, silencing race and racism by ‘defer[ring] to the unseen shape of things’248 does not make it go away, quite the opposite. As Morrison notes, ‘The world does not become raceless or will not become unracialized by assertion. The act of enforcing racelessness . . . is itself a racial act’.249 Moreover, Morrison points out that this ‘habit of ignoring race’—often ‘understood to be a graceful, even generous, liberal gesture’—blunts critical and difficult conversations, and ‘forclose[s] adult discourse’.250 Along with the silence of its ‘racial blindness’, the project’s evasive rhetoric of ‘antiimpunity’ has been central to foreclosing ‘adult discourse’, about both the ICC and international criminal law more generally. Through its deflection of arguments, Moyn points out, ‘the rhetoric of anti-impunity’ has become an important part of ‘how international criminal accountability and especially the ICC are routinely justified, or more accur ately, not justified’.251 In this sense, as in many others, the field and its relationship to Africa remains unchanged since Versailles: it continues to resist both uncomfortable stories about its past and their implications for its present, and ‘resist with impunity’.

246 ibid 106–07. 247 Frédéric Mégret, ‘The Invisibility of Race at the ICC: Lessons from the US Criminal Justice System’ (forthcoming). Worse still, familiar tropes have emerged to dismiss them out of hand as ‘emotionally laden accusations of “neo-colonialism” ’, to be contrasted with ‘more rationally sustained arguments about the proper relationship between peace and justice’. Harmen van der Wilt, ‘Universal Jurisdiction under Attack: An Assessment of African Misgivings towards International Criminal Justice as Administered by Western States’ (2011) 9 J of Intl Crim Justice 1043, 1043–44. 248 Patricia J. Williams, The Alchemy of Race and Rights (Harvard UP 1991) 49. 249 Morrison, Playing in the Dark (n 4) 46. See further Mills, Racial Contract (n 28) 75–78. US critical race theorists have consistently critiqued such ‘color-blind’ approaches to race and racism. Gotanda, for example, argues that ‘concepts such as race neutrality and nonrecognition can be thought of as legal fictions which serve to legitimate racial subordination’. Neil Gotanda, ‘A Critique of “Our Constitution Is Color-Blind” ’ (1991) 44(1) Stanford L Rev (1991) 1, 23. 250 Morrison, Playing in the Dark (n 4). 251 Moyn, ‘Anti-Impunity’ (n 169) 69.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Chapter 8

On R egiona l Cr i m i na l Cou rts as R epr e sen tati v e s of Politica l Com m u n itie s The Special Case of the African Criminal Court Harmen van der Wilt

I. Introduction Criminal justice is mainly interested in the question of who bears responsibility for what. Less attention is paid to the issue to whom—that is, to which entity or body—the offender has to answer for his crime. That need not surprise us much, as the solution is often rather self-evident. In the dominant paradigm of the nation-state, as Anthony Duff argues, a person is held to account for his wrongdoing by the political community of citizens.1 Social contract theories explain how people living together in a community agree to delegate to a representative body the power to decide what behaviour should be (dis)qualified as ‘criminal’, what punishment such offences deserve, and what kind of procedure should be followed to resolve these issues. In meting out justice, criminal courts ultimately act on behalf of that political community of citizens. Beyond the context of the nation-state, in the realm of international criminal justice, it is more difficult to answer the question of to which body the perpetrator owes responsibility. From a strictly legal point of view, it is undoubtedly correct to assert that 1 RA Duff, ‘Responsibility, Citizenship, and Criminal Law’ in RA Duff & Stuart Green (eds) Philosophical Foundations of Criminal Law (OUP 2011) 125, 137 (hereafter Duff, ‘Responsibility’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

On Regional Criminal Courts 195 the authority of international criminal courts and tribunals is predicated on the consent of states, either directly, as in the treaty-based International Criminal Court (ICC), or more indirectly, as in the ad hoc tribunals that have been established by a resolution of the Security Council. By implication one may be inclined to hold that ‘such international criminal courts are acting on behalf of the more local political communities within which the crimes were committed, and are still holding the defendants responsible as citizens to their following citizens in those political communities.’2 This is at least one possible answer that can be given to the question of to whom defendants in international criminal courts are responsible. However, Anthony Duff immediately proposes an alternative option where he suggests that perpetrators of international crimes can be directly held accountable to humanity as a whole.3 Such a representation hints at the existence of a ‘community of mankind’, analogous to the political community of the nation-state, that is at least united in its abhorrence and condemnation of heinous crimes. While this concept of a ‘common humanity’ has a certain moral intuitive appeal, it has been severely criticized as well by those who are sceptical of ‘cosmopolitanism’. David Luban, denying that the international community can be considered as a ‘political community’, portrays the former as ‘something of a gaseous invertebrate under the classical Westphalian theory of equal sovereign states.’4 Michael Walzer, in his reply to Martha Nussbaum’s plea for a ‘cosmopolitan education’, contests that he is a citizen of the world, adding that he is not ‘even aware that there is a world such that one can be citizen of.’5 And Immi Tallgren rhetorically inquires who the ‘we’ of the international community stands for and with what moral or legal authority it speaks, suggesting that ‘we-talk’ may serve as a cloak for world-wide political control and exclusion.6 In a more politicized context, the cosmopolitan stand, as extolled by the ICC, has been censured by the African Union. Largely prompted by its chagrin over the preponderance of African situations before the ICC, the Union has come to favour an alternative ‘African justice for Africans’.7 To that purpose, the African Union adopted in June 2014 the ‘Malabo Protocol’, with an annex that provides for the establishment of a Criminal

2 RA Duff, ‘Criminal Responsibility, Municipal and International (Draft)’ (2006) accessed 17 May 2016, 1 (hereafter Duff, ‘Criminal Responsibility’). 3 ibid 2. 4 David Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’ in Samantha Besson and John Tasioulas (eds) The Philosophy of International Law (OUP 2010) 577. 5 Michael Walzer, ‘Spheres of Affection’ in Joshua Cohen (ed) For Love of Country: Debating the Limits of Patriotism—Martha C Nussbaum with Respondents (Boston 1996) 125. 6 Immi Tallgren, ‘The Voice of the International: Who is Speaking?’ (2015) 13(1) Journal of International Criminal Justice 135. 7 On these developments and their background, see Charles Chernor Jalloh, ‘Regionalizing International Criminal Law?’ (2009) 9(3) Intl Crim L Rev 445; and Ademola Abass, ‘The Proposed International Criminal Jurisdiction for the African Court: Some Problematical Aspects’ (2013) 60(1) NILR 27 (hereafter Abass, ‘The Proposed International Criminal Jurisdiction’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

196 Harmen van der Wilt Chamber within the institutional context of the African Court of Justice and Human and Peoples’ Rights.8 The Protocol requires 15 ratifications to enter into force.9 This chapter intends to explore the claim that continents can qualify as political communities of citizens whose interests can be protected by criminal law and who can therefore be represented by regional criminal courts.10 To that purpose, I first will address the relationship between political communities and criminal law (Part II). Drawing upon the rich theoretical work of Emile Durkheim and Antony Duff, I will discuss the social functions that criminal law is supposed to serve. The central hypothesis of this contribution is that, in order to reach a minimum threshold of ‘political community’ that deserves protection by a common criminal law, the members of that community should share a number of values and interests whose infringement triggers the responsibility of those who have threatened or violated those interests towards the community. In Part III, I apply the findings of the previous part to the regional context, by investigating the rationales of regional criminal law enforcement in view of the concept of a ‘continent’ as an intermediary between the state and the international community. Part IV shifts the attention to the African situation by inquiring whether the subject matter jurisdiction of the future African criminal court, as envisaged in the Malabo Protocol, reflects the common interests of African nations and people. Moreover, it will attempt to shed some light on the position that the African criminal court will occupy between the ICC and domestic jurisdictions. Part V rounds up this essay with a couple of final reflections.

II. The Social Function of Criminal Law Durkheim famously postulated that criminal punishment is the expression of the collective consciousness. Crimes elicit passionate repressive reaction because they are universally condemned by the members of a society and strike at the most precious and deeply held values of those members.11 Durkheim took the public consciousness as his point of departure and reversed the causal order between the egregiousness of the crime 8 Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (adopted 27 June 2014) STC/Legal/Min/7(I) Rev. 1 with Annex: Statute of the African Court of Justice and Human and Peoples’ Rights (African Union). 9 At the time of writing, the Protocol has been ratified by five African states: Kenya, Benin, CongoBrazzaville, Guinea Bissau, and Mauretania. 10 For an earlier (concise) analysis of the topic, see Harmen van der Wilt, ‘Reflections on the Prospects for Regional Criminal Courts: Europe and Africa Compared’ in Joanna Banach-Guttierez and Christopher Harding (eds) EU Criminal Law and Policy: Values, Principles and Methods (Routledge: Abingdon 2017) 127–133. 11 Emile Durkheim, Durkheim and the Law (Steven Lukes and Andrew Scull, eds, OUP 1983) 42, 46 (hereafter Durkheim, Durkheim and the Law).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

On Regional Criminal Courts 197 and its effect on the common mind: ‘. . . we should not say that an act offends the common consciousness because it is criminal, but that it is criminal because it offends that consciousness. We do not condemn it because it is a crime, but it is a crime because we condemn it.’12 Crime has the nature of an abomination that affects the moral fabric of society. The social function of criminal law is to repair the blow to a society’s moral order by demonstrating the firmness of its members when exposed to such a mighty challenge.13 Durkheim’s analysis of the social function of criminal law and punishment has withstood the wear and tear of time, because it provides a singular, forceful account of the interaction between collectives and individuals in a morally charged context. Simultaneously, it has only limited pretensions and by no means answers all questions. For one thing, Durkheim does not address the composition of the (political) community. He does, for instance, not convey whether the offender must belong to such a community. In this respect, the deliberations of Duff are instructive. Duff argues that the offender and the body that holds him to account must at least share a linguistic and normative commonality. After all, before being able to respond to a charge one must grasp its literal and normative bearing.14 But Duff carries the argument one step further when he claims that the citizen is responsible to his fellow citizens, suggesting that both the offender and the victim(s) belong to the same (political) community. By grounding criminal jurisdiction in citizenship, rather than in territory, Duff attempts to sustain extra-territorial jurisdiction—like the active nationality principle and the passive personality principle—or at least aims to demonstrate that from this perspective there is nothing ‘puzzling’ about such claims: [T]here is nothing puzzling in a claim that I am answerable to my fellow citizens for wrongs that I commit elsewhere, since I do not leave my status as a citizen behind when I go abroad; or in a claim that as citizens we have a proper interest in any wrongs done to our fellow citizens, and the standing to call the wrongdoer to answer for them.15

To be sure, there is merit in the assumption that the offender should belong to the community that holds him to account for his deviant behaviour. First of all, the offender, as a member of the political community, has at least had the opportunity to influence the decision on what counts as ‘criminal behaviour’. Secondly, as an insider he had ‘fair warning’ about the consequences of his criminal trespassing. And finally, he will, after having responded to the charges and perhaps having atoned for his wrongdoing, be admitted to that community again. Nonetheless, Duff ’s preference for citizenship as a basis for criminal jurisdiction runs slightly astray when he tries to reconcile it with the 12 Durkheim, Durkheim and the Law (n 11) 48. 13 Durkheim, Durkheim and the Law (n 11) 69: ‘The real function of punishment is to maintain inviolate the cohesion of society by sustaining the common consciousness in all its vigour.’ 14 Duff, ‘Responsibility’ (n 1) 131. 15 Duff, ‘Criminal Responsibility’ (n 2) 15.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

198 Harmen van der Wilt primacy of territorial jurisdiction in criminal law. He concedes that not only nationals but also foreign visitors or tourists are equally protected and bound by a state’s criminal law. Duff sustains the protective quality of criminal law on the idea of hospitality and contends that the offence of the foreigner, while considered wrongful in the abstract when committed abroad, becomes ‘our business’ when committed on our territory.16 He emphatically denies that this means that he has converted to the territoriality principle: To say this is not to revert to a geographical or territorial account of jurisdiction, to the effect that the criminal law of a given polity has jurisdiction over all crimes committed within its territory, by and against whomever they are committed: what makes normative sense of jurisdiction is still the law’s character as the law of a particular polity, whose members are its primary addressees.17

Duff ’s reasoning on this point is contrived and not very convincing, because he ignores that the applicability of the law is completely tied up with and inseparable from the territory that the community claims to possess. Moreover, his previous predilection for citizenship as basis for criminal jurisdiction is considerably diluted when one admits the accidental traveller to that circle.18 But apart from this small flaw, Duff ’s analysis is very insightful, as it sheds a clear light on the connection between criminal law and political community. A second weakness in Durkheim’s sociology of punishment is that he is rather vague about the question what the criminal law of a specific community reveals about the values and interests of that community. He explicitly denies that criminal law serves to ward off the harm that is inflicted on society: ‘There are a whole host of acts which have been, and still are, regarded as criminal, without in themselves being harmful to society.’19 Conversely, there are many events or acts that shake the foundations of society but are left virtually untouched by criminal law: ‘an economic crisis, a crash on the stock market, even a bankruptcy, can disorganize a community much more seriously than an isolated case of homicide.’20 Could the argument then be improved by holding that criminal law protects those values and interests that are perceived as being quintessential for the well-being of society? Undoubtedly that is the case, but it does not explain anything, as it boils down to ‘our saying that societies deem the rules necessary because they deem them necessary!’21 Durkheim insists that criminal punishment is reserved for the violation of people’s deepest sentiments that reside in the ‘conscience collective’ and that criminal law has a strong degree of durability and is therefore rather immutable both in space and in time. But by stressing the commonalities of criminal law and punishment— forceful as it may be—Durkheim tends to ignore the subtle differentiations in criminal law that reflect changes in moral opinions or in perceptions of man-made threats. It is 16 Duff, ‘Responsibility’ (n 1) 142/143. 17 Duff, ‘Criminal Responsibility’ (n 2) 14/15. 18 For similar criticism, see Alejandro Chehtman, ‘The Extraterritorial Scope of the Right to Punish’, (2010) 29(2) Law & Phil 127. 19 Durkheim, Durkheim and the Law (n 11) 40. 20 Durkheim, Durkheim and the Law (n 11) 41. 21 Durkheim, Durkheim and the Law (n 11) 42.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

On Regional Criminal Courts 199 rather striking that public permissiveness of sexual relations between adults and minors has diminished within a comparatively short period of time and this has left its traces in criminal law that has become more repressive in this respect. On the other hand, toleration of the possession and use of soft drugs has increased internationally, not in the least because of the acknowledgment that criminal repression involves considerable expenses, both materially and immaterially. As a result, there are growing discrepancies between state practice and international conventions that still propagate the paradigm of criminal law enforcement and are therefore gradually becoming obsolete.22 Whereas these brief examples refer to developments in time, it is quite obvious that states harbour different opinions on what values and interests require the protection of criminal law, that is proven by the widespread and fierce resistance against efforts to harmonize or unify (substantive) criminal law. I will discuss this topic in more detail in the next part. While the relationship between criminal law and a community’s main values is arguably more complex than Durkheim suggests, the major virtue of his work is that he, like Antony Duff, has pondered on the concept of a political community, characterized by common interests and values, as a prerequisite for the existence of criminal law that gives expression to those interests. An offender may or may not be a member of that community, but he must at least share linguistic and normative features in order to be able to ‘respond’ to the charges of the community. These appear to be appropriate points of departure for assessing the claims of international and regional criminal justice systems as representatives of true communities.

III. From International to Regional Criminal Law Enforcement: A Step Forward? The search for aims and justifications of international criminal justice has rekindled the interest in Durkheim’s work. The line of reasoning goes like this. International criminal law reflects the deepest sentiments of humanity that entail a shared revulsion of atrocities like war crimes, crimes against humanity, and genocide. The prime objective of international criminal justice is therefore ‘normative expression’ and both the international criminal trial and subsequent punishment serve the didactic purpose of demonstrating and reminding humanity of the primordial value of denunciating and

22 On this specific topic, see the interesting contributions of Krzsztof Krajewski, ‘How Flexible are the United Nations Drug Conventions?’ (1999) 10 International Journal of Drug Policy (1999), 329; and (in Dutch) PHPHMC van Kempen and Masha Fedorova, Internationaal recht en Cannabis [International Law and Cannabis] (Wolters Kluwer 2014).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

200 Harmen van der Wilt abstaining from such acts.23 This obviously presupposes a realm of values and sentiments, commonly held by all humanity. The Preamble of the Rome Statute indeed starts from that premise: ‘Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time.’24 The second line of the Preamble is strongly reminiscent of Durkheim: ‘Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.’25 The recognition of this common conscience is combined with an imperative to act by engaging in criminal law enforcement: ‘Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished . . . Determined to put an end to impunity . . . Recalling that it is the duty of every State to exercise its criminal jurisdiction.’26 It is not as easy as it would seem to locate the common conscience of mankind in the shared repudiation of certain heinous acts. Some would be inclined to attribute this to man’s capacity to recognize the other’s perception of life and the world as truly authentic and equal to his own. That would imply a rejection of any profound dehumanization of which international crimes are a prime example.27 Others would perhaps more sceptic ally observe that the current pluralism and extreme cultural, ideological, and religious fragmentation leave us no other option than to negatively define our common humanity in renunciation of violence and identification with the victims.28 Such philosophical reflections need not detain us here. What is remarkable is that, less than 20 years after the promulgation of the Rome Statute, both the idea of a ‘common consciousness’ sustaining the project of international criminal justice and the self-evidence of criminal law enforcement as the exclusive way to counter international crimes have dwindled. In my view this can be ascribed to three factors. First of all, there is a growing awareness that international criminal justice is not administered equally. By manipulating the Security Council, the most powerful states are capable of protecting their friends and targeting their foes.29 Apparently, it does not matter so much what is done, but by whom. 23 Advocates of this view are Mirjan Damaška, ‘What is the Point of International Criminal Justice?’ (2008) 83(1) Chi-Kent L Rev, 329; Edward M Wise, ‘The International Criminal Court: A Budget of Paradoxes’ (2000) 8 Tulane Journal of International and Criminal Law 267; and Marc Drumbl, Atrocity, Punishment, and International Law (CUP 2007) 175. I have previously endorsed this opinion in Harmen van der Wilt, ‘Crimes Against Humanity: A Category Hors Concours in (International) Criminal Law?’ in Britta van Beers, Luigi Corrias & Wouter Werner (eds) Humanity Across International Law and Biolaw (CUP 2014) 37. As indicated before, Durkheim would certainly agree that the function of criminal law is the affirmation of social solidarity. Whether he would find that people should be educated and reminded of that purpose is perhaps more doubtful, as such sentiments in his view would already be engrained in their consciences. 24 Rome Statute of the International Criminal Court (1998) 2187 UNTS 3 (emphasis added). 25 Emphasis added. 26 Emphasis added. 27 See the deep observations of Raimond Gaita, A Common Humanity: Thinking About Love and Truth and Justice (Routledge 2000). 28 In this vein, Richard Rorty, Contingency, Irony and Solidarity (CUP 1989). 29 For an interesting study on this problem, see Res Jorge Schuerch, The International Criminal Court at the Mercy of Powerful States: How the Rome Statute Promotes Legal Neo-Colonialism (Asser Press 2017).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

On Regional Criminal Courts 201 Secondly, there is an increasing disenchantment with the lack of efficiency demonstrated by the ICC, that can largely be attributed to the reluctance of states to cooperate with the Court. Again, this does not testify to the much-heralded common effort that would be required to end impunity. And finally, doubts are raised whether criminal law enforcement would be an appropriate mechanism at all to accomplish important goals like peace-making and reconciliation. Transitional justice encompasses a wide variety of approaches and tools of which criminal law might not be the most appropriate.30 In short, the initial optimism about international criminal justice has waned, prompting some to comment that the ‘honeymoon is over’.31 The legitimacy-loss of the ICC raises the question whether regional criminal law enforcement would provide an appropriate alternative. Does a continent like Europe or Africa qualify as a ‘political community’ whose members share interests and values that deserve protection by a regional criminal law that is administered by regional legal institutions? Some authors indeed defend that position. William Burke-White mentions a number of practical advantages of regional criminal law enforcement.32 The physical proximity of the adjudicating court to the crime scene and the affected society facilitates the involvement of and cooperation with the local judiciary, on a similar— complementary—basis as the current construction in the Rome Statute. It also increases the opportunities for the attendance and participation of interested parties, like victims and witnesses.33 For the purpose of this essay, Burke-White’s observations on the political and psychological merits of regional courts are of particular interest. He attributes the (potential) greater legitimacy of a regional tribunal—compared to supranational criminal law enforcement—to the ‘claim that regional groupings share some sense of common identity.’ He notes that ‘where regional groupings do share a common set of values or identities, regionalization allows those values to be better reflected in adjudicative tribunals.’ And he concludes that ‘a regional court, with fewer member states, may be perceived as more responsive to local customs, values and preferences.’34 Burke-White 30 The literature on the topic is abundant. Suffice here to refer to Okechukwu Oko, ‘The Challenges of International Criminal Prosecutions in Africa’ (2007) 31 Fordham Intl L J 343 who notes the tensions between traditional justice systems placing ‘a significant premium on social harmony’ and western type justice systems that are ‘chiefly concerned with rights of the citizens and punishment of those who violate the law.’ In a similar vein: African Union High-Level Panel on Darfur, ‘Report of the African Union High Level Panel on Darfur’ (Peace and Security Council 207th Meeting at the Level of Heads of State and Government, October 2009, Abuja, Nigeria, PSC/AHG/2(CCVII)) challenging the monopoly of crim inal justice (p. 53): ‘Crimes arising from clashes over land rights and resources, or violence between nomads and farmers, cannot be answered by prosecutions and punishment exclusively, they require the adoption of methods, within or additional to the criminal process, which will encourage communities to reach peaceful accommodations with one another.’ 31 David Luban, ‘After the Honeymoon: Reflections on the Current State of International Criminal Justice’ (2013) 11 Journal of International Criminal Justice 505. 32 William W. Burke-White, ‘Regionalization of International Criminal Law Enforcement: A Preliminary Exploration’ (2003) 38 Texas International Law Journal 729 (hereafter Burke-White, ‘Regionalization of ICL Enforcement’). 33 Burke-White, ‘Regionalization of ICL Enforcement’ (n 32) 735–6. 34 Burke-White, ‘Regionalization of ICL Enforcement’ (n 32) 737.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

202 Harmen van der Wilt acknowledges that regional criminal courts would represent one option within a broader array of potential forms of regionalization of international criminal justice and he suggests that such regional courts could easily be interwoven in the existing institutional framework of the European Union or Organization of American States.35 While Burke-White’s analysis is theoretically interesting and is vividly reminiscent of the ideas explored by Duff and Durkheim, there is hardly any practical evidence to support his propositions. The European Union, an example of advanced regional political integration, is far removed from accepting a regional criminal court. One might expect that the operation of a regional criminal court would require at least the harmonization of (substantive) criminal law in a number of areas in which that court would wield competence. Article 83 of the Treaty on the Functioning of the European Union identifies a number of ‘particularly serious crimes with a cross-border dimension’ that would be subject to minimum-harmonization of the applicable legal provisions of the member states.36 Apart from revealing a top-down approach, the provision is quite careful in emphasizing that European institutions are only aiming at ‘minimum harmonization’ and ‘approximation’ of criminal laws. They by no means wish to raise the suspicion that they would impose criminal law on the member states! Harmonization of criminal law has traditionally been a cumbersome affair within the European Community, because the member states are loath to sacrifice their sovereign powers in this area. Precisely because harmonization of criminal law within the European Union has always been an arduous business, the principle of ‘mutual recognition’ was introduced during the summit of the Council in 1999 in Tampere. The member states of the European Union are supposed to engage in judicial and police cooperation in spite of the differences in their (substantive or procedural) criminal law. These differences should, however, not be too big, as that would discourage the states from mutual cooperation. This dialectical relationship between mutual recognition and (minimum) harmonization is expressed in Article 82 of the Treaty on the Functioning of the European Union: (1) Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83.

35 Burke-White, ‘Regionalization of ICL Enforcement’ (n 32) 749–50. 36 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, [2007] OJ C306/01. Art 83, s 1 provides that: ‘The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crimes with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis. These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organized crime.’

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

On Regional Criminal Courts 203 The Framework Decision on the European Arrest Warrant was the first legal instrument to incorporate the principle of mutual recognition.37 Article 2(2) of the Framework Decision partially abolishes the requirement of dual criminality for 32 listed offences, including the crimes that are mentioned in Article 83(2) of the EU Treaty. It perfectly demonstrates that the principle of mutual recognition is primarily intended as an alternative to harmonization. After all, if the criminal laws of the member states had been harmonized, one would not have had to bother with the abolition of dual criminality. Perhaps somewhat redundantly, the European Court of Justice in the Advocaten voor de Wereld case confirmed that ‘the Framework Decision (on the European Arrest Warrant) does not seek to harmonise the criminal offences in question in respect of their constituent elements or the penalties which they attract.’38 It stands to reason that the functioning of a regional criminal court does not require that the states establishing such a court all have exactly the same provisions in respect of the offences that belong to the subject matter of that court. Moreover, the inclination to cooperate in criminal matters in spite of legal differences may reveal a strong degree of mutual trust and a global consensus that these offences affect common interests that are important ingredients of a political community, as presented by Duff. If so desired, these states might decide to outsource the adjudication of these offences to a regional criminal court. Yet there are hardly any signs that the establishment of such a European criminal court is imminent.39 Article 86 of the Treaty on the Functioning of the European Union provides for the establishment of a European Public Prosecutor’s Office (EPPO) by means of a regulation, out of the bosom of Eurojust, whose primary task is to initiate and coordinate criminal investigations of the member states of the European Union.40 A draft regulation to that purpose has indeed been promulgated.41 EPPO is primarily intended to counter and combat the crimes affecting the financial interests of the European Union. Article 86(2) stipulates that ‘the European Public Prosecutor’s Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union’s financial interests’. The initiative to dedicate the criminal law enforcement in respect of crimes against the Union’s financial interests to a special institution of the Union stems from the old grudge that member states have consistently 37 Council Framework Decision, 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States OJ L190/1. 38 Case C-303/05 Advocaten voor de Wereld VZW v. Leden van de Ministerraad [2007] ECR I-03633, para 52. 39 Compare also André Klip, European Criminal Law: An Integrative Approach (Intersentia 2009) 427, who predicts merely that the Union will, ‘one day establish a European criminal court.’ (hereafter Klip, European Criminal Law). 40 It is not entirely clear how the relationship between both institutions is envisaged: will they remain separate institutions or are they likely to merge? See the interesting reflections of William Geelhoed, Het opportuniteitsbeginsel en het recht van de Europese Unie (Kluwer, Deventer 2013) 273–8 (hereafter Geelhoed, Het opportuniteitsbeginsel). 41 Council of the European Union, ‘Draft Council Regulation on the Establishment of the European Public Prosecutor’s Office’ 2013/0255 (APP).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

204 Harmen van der Wilt failed to exhibit the necessary zeal in this area.42 Nevertheless, Article 86(4) provides that the powers of EPPO may be extended to include serious crime having a cross-border dimension. Geelhoed notes that the Green Paper on the Criminal Law Protection of the Financial Interests of the Community and the Establishment of a European Public Prosecutor mentioned organized crime and counterfeiting of the Euro as potential candidates for the expansion of EPPO’s powers.43 In view of these developments, two observations are in order. First, the choice of the financial interests of the Community as the area of primary concern for regional criminal law enforcement is striking. From the perspective of the European Union, one can easily understand the EU’s sense of frustration of the member states’ laxity. However, the financial interests of the EU are hardly likely to touch the deepest chords of the conscience collective of the European population, as Durkheim would have it. Second, and more importantly, the formation of a European Public Prosecutor’s Office does by no means imply that a European Criminal Court will emerge as well. Article 86(2) of the EU Treaty on the Functioning of the EU explicitly holds that EPPO shall exercise the functions of prosecutor in the competent courts of the member states in relation to offences affecting the financial interests of the Union. In other words, it envisages a system of decentralized criminal law enforcement. How EPPO and national prosecutors will interact is not yet fully clear. The only thing that one could add is that the presence of an institutional structure in the realm of prosecution may perhaps facilitate the establishment of a regional court.44 These slightly jolting observations on the meanderings of European criminal law are not intended to suggest that regional criminal courts are a mere chimera. They only serve to demonstrate that a continent with a high level of political and economic integration has not opted for the adoption of centralized criminal law enforcement. Differently from what Burke-White asserts, the presence of a highly developed system of human rights protection is a poor predictor for the establishment of a regional crim inal court.45 It is perhaps illuminating to turn our attention to a real attempt to create a regional criminal court. 42 In the famous ‘Greek Maize Case’, Case 68/88 Commission v. Hellenic Republic [1989] ECR 2965, para 24, the European Court of Justice pointed out that ‘whilst the choice of penalties remains within their discretion (id est: of the Member States), they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance which, in any event, make the penalty effective, proportionate and dissuasive.’. The Court added (at para 25) that ‘the national authorities must proceed, with respect to infringement of Community law, with the same diligence as that which they bring to bear in implementing corresponding national laws.’ Both formulations obviously served to exhort the member states to vigorously protect the financial interests of the European Community, both in legislations and in practice. Apparently, this reminder was—and is until this very day—quite necessary! 43 Geelhoed, Het opportuniteitsbeginsel (n 40) 272. 44 In a similar vein, Klip, European Criminal Law (n 39) 427. 45 Burke-White, ‘Regionalization of ICL Enforcement’ (n 32) 750. Similar optimism on the convergence between human rights and criminal law is displayed by Alexandra Huneuus, ‘The Quasi-Criminal Judgments of the Human Rights Court’ (2013) 107 American Journal of International Law 1, although, to

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

On Regional Criminal Courts 205

IV. The Prospects of an African Criminal Court Authors on the topic of the African Criminal Court agree that the proposals for its establishment have mainly been driven by negative incentives: the discontent about the selective attention of the ICC and western political powers for African offenders and African crimes, in particular in respect of African state officials.46 Obviously, that does not disqualify the entire venture. In order to ascertain whether a regional criminal court in Africa would provide an appropriate intermediate forum between domestic courts and the ICC, it is interesting to investigate its prospective subject-matter jurisdiction. After all, by identifying the criminal threats that burden the African population the most, we may acquire a reliable impression of the nature and cohesion of the political community. Article 28A of the Malabo Protocol lists 14 crimes over which the International Criminal Law Section of the African Court can exercise jurisdiction.47 This collection of offences represents an interesting mixture of what are often called ‘core crimes’ and transnational crimes. The ‘core crimes’—genocide, crimes against humanity, war crimes, and the crime of aggression—are largely modelled on the definitions in the Rome Statute, although the Malabo Protocol contains some remarkable innovations.48 Some international or transnational crimes mirror definitions in international her credit, she warns in footnote 4 that ‘the comparisons included here are to stimulate the reader to take seriously the connections the paper draws, but with acknowledgement of the incommensurability of the different types of courts’. 46 Abass, ‘The Proposed International Criminal Jurisdiction’ (n 7) 28: ‘The rancour between the African Union (AU) and the ICC, apparently warranted by the latter’s issuance of arrest warrants against sitting African heads of state and senior government officials, induced the AU to take several “retaliatory” measures against the ICC, culminating in its conferring international criminal jurisdiction on its court.’ Chacha Bhoke Murungu, ‘Towards a Criminal Chamber in the African Court of Justice and Human Rights’, (2011) 9 Journal of International Criminal Justice 1068: ‘Arguably, there is one main factor that has led to calls for the establishment of a Criminal Chamber within the African Court. This is the indictment and prosecution of African state officials either by the domestic courts of some European states (..) or by the International Criminal Court’. 47 Genocide, crimes against humanity, war crimes, the crime of unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, illicit exploitation of natural resources and the crime of aggression. 48 Article 28B on genocide, for instance, includes ‘acts of rape or any form of sexual violence’ (if committed with the special intent to destroy, in whole or in part, a national, ethnic, racial or religious group). Article 28D on war crimes adds to the long list of other serious violations of the laws and customs applicable in either international or non-international armed conflicts a couple of other crimes including slavery, collective punishment, and despoliation of the wounded, sick, shipwrecked, or dead. And perhaps most noteworthy: the provision identifies the use of nuclear weapons or other weapons of mass destruction as a war crime. This was a highly contested issue during the Rome Conference, but it did not make it to the final draft of the Rome Statute.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

206 Harmen van der Wilt c onventions that have been concluded by states in order to improve their cooperation in the fight against those crimes. Piracy (Malabo Protocol, Article 28F) is copied verbatim from Article 101 of the UN Convention on the Law of the High Seas.49 Trafficking in persons (Article 28J Protocol) faithfully follows the Protocol that supplements the UN Convention against Transnational Organized Crime of 2000.50 And Article 28K on trafficking in drugs is strongly reminiscent of the corresponding criminal provisions in the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.51 Six other crimes display a distinct African touch, as they are engrafted on legal instruments of the African Union. The definition of terrorism in Article 28G is inspired by Article 1 of the OAU Convention on the Prevention and Combating of Terrorism of 1999.52 The reading of terrorism by the AU is clearly much broader than the definition of terrorism under customary international law, as advanced by the Appeals Chamber of the Special Tribunal for Lebanon, that lacked any references to ulterior motives like

49 UN Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3, Article 101: ‘Piracy consists of any of the following acts: a) Any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private boat, ship or private aircraft and directed: i) on the high seas, against another boat, ship or aircraft, or against persons or property on board such boat, ship or aircraft; ii) against a boat, ship, aircraft, persons or property in a place outside the jurisdiction of any State. b) Any act of voluntary participation in the operation of a boat, ship or of an aircraft with knowledge of facts making it a pirate boat, ship or aircraft; c) Any act of inciting or intentionally facilitating an act described in subparagraph (a) or (b).’ 50 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319, article 3(a): ‘ “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.’ The other sections of Article 28J—on a closer definition of exploitation, irrelevance of consent, and the special position of children—reads exactly the same as the corresponding provisions in the UN Protocol. 51 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (adopted 20 December 1988, entered into force 11 November 1990) 1582 UNTS 95, art 3(1)(a)(i-iv). 52 OAU Convention on the Prevention and Combating of Terrorism, (adopted 14 July 1999, entered into force 6 December 2002) ‘ “Terrorist Act” means: (1) any act which is a violation of a State Party, the laws of the African Union or a regional economic community, and which may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or causes or may cause damage to public or private property, natural resources, environmental or cultural heritage and is calculated or intended to: (i) Intimidate, put in fear, force, coerce or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act, or to adopt or abandon a particular standpoint, or to act according to certain principles; or (ii) Disrupt any public service, the delivery of any essential service to the public or to create a public emergency; or (iii) Create general insurrection in a State.’

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

On Regional Criminal Courts 207 disruption of public services or the creation of general insurrection in a state.53 Another conspicuous feature in both the Malabo Protocol and the OAU Convention is the explicit exclusion of liberation or self-determination struggles from the realm of terrorism, which has always been a sensitive issue in African countries.54 Article 28H coins the definition of a mercenary, as proposed by the OAU Convention for the Elimination of Mercenarism in Africa (1977) that in its turn borrows from Additional Protocol I to the Geneva Conventions.55 However, the provision in the Malabo Protocol refers specifically to a category of contract fighters who are involved in the overthrowing of a legitimate government or in the undermining of the constitutional order of a state, assisting a government to maintain power, assisting a group of persons to obtain power, or undermining the territorial integrity of a state.56 Clearly, this reflects the African preoccupation with seditious action that underlies the crime of unconstitutional change of government, the topic of Article 28E. While Article 47 of Additional Protocol I only decrees that mercenaries shall not have the right to be a combatant or a prisoner of war, Article 28H stipulates that a mercenary who participates directly in hostilities or in a concerted act of violence commits an offence. The definition of corruption in Article 28I is literally taken from the African Union Convention on Preventing and Combating Corruption (2003), although the provision interestingly restricts the jurisdiction of the African Criminal Court to those acts of corruption that are of a serious nature and affect the stability of a state, region, or the union.57 The related and supportive offence of money laundering (Article 28I Bis) is modelled after Article 6 of the AU Convention on Corruption that, in its turn, repeats the definition featured in the UN Convention against Corruption (2003).58 Two provisions of the Malabo Protocol aim to protect the much endangered African wildlife and environment. Article 28L on trafficking in hazardous wastes—a transnational crime par excellence—explicitly refers to the Bamako Convention of 1991 that contains a definition of ‘hazardous wastes’ and designates ‘any import or failure to re-import, transboundary movement, or export’ of such materials as a crime under the 53 Case STL-11–01/I/AC/R176bis Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging (Appeals Chamber of the Special Tribunal of Lebanon, 16 February 2011) §§ 83–5. 54 Article 28 G Malabo Protocol and Article 3 of the OAU Convention provide that ‘notwithstanding the provisions of paragraphs A and B [respectively article 1], the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts.’ 55 OAU Convention for the Elimination of Mercenarism in Africa (adopted 2 July 1977, entered into force 22 April 1985) CM/817 (XXIX), Annex II Rev. 1; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 4. 56 Art 28H(1)(b). 57 African Union Convention on Preventing and Combating Corruption (adopted 1 July 2003, entered into force 5 August 2006), art 4. 58 UN Convention against Corruption (adopted 31 October 2003, entered into force 14 December 2005), 2349 UNTS 41.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

208 Harmen van der Wilt jurisdiction of the African Court.59 And Article 28L Bis copies Article 12 of the Protocol Against the Illegal Exploitation of Natural Resources, explaining which acts constitute the criminal offence of illicit exploitation of natural resources.60 Arguably the most controversial—and interesting—offence in the Malabo Protocol is the crime of unconstitutional change of government, elucidated in Article 28E. The crime is inspired by Article 23 of the African Charter on Democracy, Elections and Governance, which covers both uprisings against democratically elected governments and refusals of incumbent governments to make way for those that have been elected by the people.61 In 2012 the AU Assembly of Member States suspended the adoption of the Draft Protocol (the predecessor to the Malabo Protocol), requesting the Union to come up with a more precise definition of the concept of unconstitutional change of government. An expert meeting decided that an amendment of the current definition was not necessary, but the issue remains fraught with political sensitivities, including the question of who will decide on the legitimacy of a popular uprising against an (oppressive) regime.62 Abass has expressed some concern that not all offences that belong to the subject-matter jurisdiction of the prospective African Court would qualify as serious international crimes.63 As abundantly demonstrated above, all the offences have a solid legal basis in conventional instruments, so they will meet the standards of ‘foreseeability and accessibility’. However, that would not suffice because not all these crimes incur criminal responsibility under international law. The lack of international status could be compensated for by comprehensive ratification and implementation of the conventions that enjoin member states of the African Union to criminalize these activities in their domestic legislation. However, the Member States have by no means fully complied with their obligations.64 To be sure, Abass has a point, but it only reinforces the assumption 59 Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (African Union—adopted 30 January 1991, entered into force 22 April 1998) accessed 4 May 2016. 60 Protocol Against the Illegal Exploitation of Natural Resources (International Conference on the Great Lakes Region—adopted 30 November 2006) accessed 4 May 2016. 61 African Charter on Democracy, Elections and Governance (African Union—adopted 30 January 2007, entered into force 15 February 2012) accessed 16 October 2019. For an in-depth analysis of the nature of this offence, including the question whether it can be considered as a crime under (regional) customary international law, see Harmen van der Wilt, ‘Unconstitutional Change of Government: A New Crime Within the Jurisdiction of the African Criminal Court’ (2017) 30(4) Leiden Journal of International Law 967. 62 Compare Ademola Abass, ‘Prosecuting International Crimes in Africa: Rationale, Prospects and Challenges’ (2013) 24(3) European Journal of International Law 941. 63 Abass, ‘The Proposed International Criminal Jurisdiction’ (n 7) 32–37. 64 Abass, ‘The Proposed International Criminal Jurisdiction’ (n 7) 33 gives the telling example of the AU Convention against Corruption that has only been ratified by 31 African states, while only 10 of them have ‘implemented some of the most basic provisions of the Convention within their domestic laws.’

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

On Regional Criminal Courts 209 that some crimes, while perhaps not inciting universal condemnation, may definitely be of great regional concern.65 The fact that all offences as enumerated in the Malabo Protocol are firmly rooted in regional instruments attests to the fact that they have been on the minds of the African population for a long time. For a number of these crimes this hardly requires further substantiation—rampant corruption has long plagued the African continent.66 While terrorist cells controlled by IS or Al Qaeda are capable of wreaking havoc all over the world, the atrocities committed by Boko Haram permanently disrupt entire communities.67 Illegal poaching of animals, boosted by the insane demand of wealthy consumers, threatens the survival of African wildlife.68 And Abass asserts that unconstitutional changes of government ‘are undoubtedly one of the most common sources of conflict in Africa’, adding that ‘the examples of Zimbabwe’s Mugabe, Kenya’s Kibaki and Ivory Coast’s Gbagbo readily come to mind.’69 In view of the fact that all these crimes significantly affect Africans and African states, it makes sense to create a regional institution that may be able to counter them. The underlying assumption of the African Criminal Chamber’s establishment is that African states are insufficiently equipped to prosecute and try the perpetrators of those crimes. Article 46H of the Malabo Protocol indeed presupposes that national states take precedence and that the Court steps in only when they do not engage in criminal law enforcement at all or are unwilling or unable genuinely to carry out the investigation or prosecution.70 For a proper functioning, the African criminal court will be entirely dependent on the loyal cooperation of states parties. With this objective in mind, Article 46L of the Protocol instructs the states to cooperate with the Court in the investigation and prosecution of persons accused of committing the crimes under the statute and to 65 Abass, ‘The Proposed International Criminal Jurisdiction’ (n 7) 33 admits this when he holds that ‘the acquisition of jurisdiction by the African Court over such unorthodox “international” crimes, it is submitted, addresses the gap between the jurisdictional reach of the ICC and the occurrence in many African States Parties to the Rome Statute of many admittedly less familiar but ubiquitous and devastating crimes afflicting them.’ 66 On the Corruption Perception Index of 2015, created by Transparency International, six of the ten worst performing countries are African. accessed 11 May 2016. 67 See on the chilling abductions of schoolgirls in Chibok in 2014 Kevin Sieff, ‘Boko Haram Kidnapped 276 Girls Two Years Ago, What Happened to Them?’ The Washington Post (14 April 2016) accessed 11 May 2016. 68 See Leilani Jordan, ‘Illegal Poaching in Africa’ (Gapyear) accessed 11 May 2016. 69 Abass (n 62) 939. See for a thorough account of African political instability Martin Meredith, The state of Africa; A History of 50 years of Independence (Free Press 2005). 70 The article embodies the well-known principle of complementarity and virtually copies art 17 of the Rome Statute, leaving out, however, the qualifying term ‘genuinely’. On the potential consequences of this omission, see Harmen van der Wilt, ‘Complementarity jurisdiction (Article 46H)’ in Gerhard Werle and Moritz Vormbaum (eds) The African Criminal Court: A Commentary on the Malabo Protocol (Asser Press 2017) 187–202 (hereafter Werle and Vormbaum, The African Criminal Court). See on the scope of the complementarity principle: Darryl Robinson, ‘The Mysterious Mysteriousness of Complementarity’, (2010) 21(1) Criminal Law Forum 67.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

210 Harmen van der Wilt comply without delay with any request for assistance or order issued by the Court.71 Whether states will indeed live up to the expectations is of course difficult to predict and may well depend on the nature of the crime and the situation at stake.

V. Some Final Reflections At first blush it may be rather surprising that the EU has not made much progress in establishing a regional criminal court. One would perhaps expect politically and culturally kindred states to pool their investigative and judicial powers, making use of existing legal structures, like the European Court of Justice or the European Court on Human Rights, that can be relatively easily enlarged with a criminal chamber. On further consideration, however, it is understandable. The European states can show a long tradition of inter-state cooperation in criminal matters. They simply do not need a regional crim inal court because it does not have any added value. The history of European criminal law over the last 50 years has been marked by increasing cooperation, but states have simultaneously jealously guarded their realm of criminal law against encroachment by European institutions. The establishment of a regional criminal court could be interpreted as a further surrender to Brussels. In Africa the situation is radically different. The African population is harassed by man-made disasters that are sometimes caused or created by states, or at least exceed their powers of law enforcement. A regional criminal court could, from that perspective, be conceived as a shield that offers at least some protection. It could occupy the niche between national authorities and the distant ICC that not only has been accused of a one-sided focus on African situations, but has no interest in the prosecution of crimes that may be considered as parochial by the international community, but involve real threats for Africans. Simultaneously, the intermediate position of the African Criminal Court also yields great challenges. Squeezed between national jurisdictions and the ICC, the African court is rather vulnerable. The partial overlap of subject matter jurisdiction of the ICC and the African court raises the question of which court would have primacy in respect of the investigation and prosecution of war crimes, crimes against humanity, or genocide. One could envisage a backstop position for the ICC, in line with the principle of complementarity, that would entail that the African Court would have the first shot and the ICC would be allowed to step in whenever the regional court does not display any action or appears to be ‘unable or unwilling’. However, the Malabo Protocol does not address the relationship between the African court and the ICC.72 There are sources of 71 The provision is inspired by—and a simplified version of—arts 89 and 93 of the Rome Statute. 72 On this puzzling omission see Max du Plessis, ‘Implications of the AU Decision to Give the African Court Jurisdiction Over International Crimes’, (2012) Institute for Security Studies Paper 235, 10: ‘. . . it is unfathomable that the draft protocol nowhere mentions the ICC, let alone attempts to set a path for African states that must navigate the relationship between these two institutions.’

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

On Regional Criminal Courts 211 conflict in the normative architecture of both institutions. One obvious bone of contention is the issue of immunities for heads of states and other senior state officials. Whereas the Rome Statute has emphatically abolished both functional and personal immunities before the ICC in Article 27, the Malabo Protocol in Article 46A bis stipulates that ‘no charges shall be commenced or continued before the (African) Court against any serving AU Head of State or Government, or anybody acting or entitled to act in such cap acity, or other senior state officials based on their functions, during their tenure of office.’ Political clashes between the ICC and the African Union are therefore most likely to occur if the highest governmental echelons are involved in war crimes or crimes against humanity.73 In the majority of cases the African court will not face competition from the ICC, for the simple reason that the crimes are outside the latter’s subject-matter jurisdiction. Whether these transnational crimes will be prosecuted and tried at the national or regional level is largely dependent on the capacities of either of them to administer criminal justice. As indicated above, the relationship between the African court and national jurisdictions is governed by the complementarity principle. The fact that African states themselves created the Court is maybe an incentive for them to embolden its functioning by engaging in concerted action. The extent to which they are prepared and capable of doing so is the ultimate litmus test of whether Africa can count as a political community that attempts to repel mortal threats to its existence by means of criminal law.

73 On this topic, see Dire Tladi, ‘Immunities (Article 46Abis)’ in Werle and Vormbaum, The African Criminal Court (n 70), 203–17.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Section III

R AT IONA L E S

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Chapter 9

Ta k i ng I n ter nationa lism Ser iously Why International Criminal Law Matters Miriam Gur-Arye* and Alon Harel**

I. Introduction It is often argued that international criminal law (ICL) is designed to overcome deficiencies in national legal systems. When the state is incapable or unwilling to punish, it must be replaced by a reliable and impartial agent. Under this view, ICL is a pragmatic solution to the partiality and/or ineffectiveness of national legal systems.1 This chapter rejects such a view; ICL is not a pragmatic solution to the partiality, lack of accountability, and/or ineffectiveness of national legal systems. Nor is ICL international by coincidence or due to contingent features such as the greater competence of international tribunals, their better accountability, or impartiality. Rather, the goods of international criminal law and the values it promotes can only be provided by inter national entities. This is part of a more general theme that one of us has developed in the past under which many legal institutions and procedures are not mere contingent means * Judge Basil Wunsh Professor of Criminal Law, The Hebrew University of Jerusalem. ** Alon Harel, Mizock Professor of Law, The Hebrew University of Jerusalem; Center of Rationality, the Hebrew University. We are grateful to Vincent Chiao, Antony Duff, Leora Dahan-Katz, George Fletcher, Tatjana Hornle, Sandra Marshall for their valuable comments. Thanks are further due to our research assistants Tiran Sasson, Gal Dabush Yuval Bressler, and Noam Kolt. 1 See e.g., Gerhard Werle, Principles of International Criminal Law (2nd ed., TMC Asser Press 2009) 124–26 (hereafter Werle, Principles of ICL); Antonio Cassese, International Criminal Law (OUP 2003) 445–46 (hereafter Cassese, ICL). See also criminal.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

216 Miriam Gur-Arye and Alon Harel to an end, but are constitutive of these ends. Under the view developed in Why Law Matters: ‘various legal institutions and legal procedures that are often perceived as a contingent means to facilitate the realization of valuable ends matter as such’.2 We apply this finding to international criminal law and show that international criminal law ‘matters as such’. More specifically, we argue that ICL is not merely a means to provide deterrence, prevent atrocities, and bring about justice. Instead, international criminal law pronounces the wrongfulness of actions that harm the interests of the international community as a whole, and stresses the supremacy of internationalism and the proper hierarchical relations between the states and the international order. This view has important implications concerning the nature of the tribunals that are in charge of interpreting and enforcing international criminal law. These tribunals have to meet certain conditions and, in particular, they have to be capable of speaking in the name of the international community. According to our view, international criminal law is an agent-dependent enterprise. It provides goods that must, as a conceptual matter, be provided by an international agent, i.e., an agent who speaks in the name of the international community and whose judgments can be attributed to the international community. No individual state can make an authoritative pronouncement concerning the wrongfulness of international wrongs. The judgment that a particular act is a wrong directed against the international community must therefore be made by an entity that is superior to the states, i.e., an institution that can speak authoritatively in the name of the international community. We call this view ‘robust internationalism’. According to robust internationalism, the goods provided by the international community hinge on its internationalism and cannot be provided otherwise. In order to lend support to robust internationalism, we will begin by making some observations about national legal systems. Traditionally, discussions about criminal law maintain that the state (and only the state) should be tasked with punishing, i.e., that punishment cannot be inflicted by any agent other than the state.3 Criminal punishment that is inflicted by entities other than the state is not necessarily ineffective, impartial, or costly, but it is illegitimate and fails to provide the goods that criminal sanctions are designed to provide. In particular, it fails to pronounce that the relevant criminal behaviour is a public wrong harming the interests of the polity, and, as such, it is the business of the state to hold the offender accountable for that wrong.4 This chapter extends this analysis from national criminal law to international criminal law. Just as the state (and only the state) is the appropriate agent to govern and operate the national criminal law system, the international community (and only the 2 See Alon Harel, Why Law Matters (OUP 2014) 2 (hereafter Harel, Why Law Matters). 3 For a philosophical discussion of the importance of the agent in charge of making judgments concerning responsibility, see Anthony Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Hart 2007) (hereafter Duff, Answering for Crime). See also Harel, Why Law Matters (n 2) ch 3. 4 See ibid; Avihay Dorfman and Alon Harel, ‘The Case Against Privatization’ (2013) 41(1) Philosophy and Public Affairs 67.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Taking Internationalism Seriously 217 international community) is the appropriate agent to govern and operate ICL. Hence, when national courts exercise universal jurisdiction to enforce the provisions of ICL, they represent the international community and speak in its name rather than in the name of the national entities to which they belong. Their decisions are given on behalf of the international community. In extending the analysis from national criminal law to international criminal law, one should note the difference between the two; a difference that may give rise to an objection. The authority of the state to govern and operate criminal law derives from its sovereignty. The sovereign, and only the sovereign, is authorized to speak in the name of the polity, and to require that a citizen answers for the crime committed against her fellow citizen.5 The exact nature of the international community and the basis of its authority to govern and operate the international criminal law is less clear and subject to debate.6 However, as we will show in Part III, the legal sources of the international criminal law, the crimes it defines, and the tribunals it has established are all based on the assumption that there is an international community whose criminal law seeks to protect universal interests threatening the ‘peace, security and the well-being of the world’.7 Our claim is therefore a modest one: we do not presuppose or establish the existence of an international community; we only argue that the ICL was established under the assumption that such a community exists, and that if such a community does not exist it follows that international criminal law, cannot be justified. The justifiability of ICL hinges on this assumption. Part II discusses the traditional rationales offered to justify ICL. We establish that those rationales do not take seriously internationalism. Part III argues that a careful examination of the practices of ICL indicates that the founders of ICL and the jurists who developed it strongly believe in the significance of internationalism. A thorough examination of the institutions in charge of implementing ICL indicates that those institutions are designed to serve the interests of the international community as a whole and should be regarded as organs of the international community. Part IV defends robust internationalism. It argues that the goods provided by the international community hinge on its internationalism and cannot be provided by tribunals that fail to speak in the name of the international community and, to do so, these tribunals ought to meet certain conditions specified in Part IV. 5 See Duff, Answering for Crimes (n 3). 6 See e.g., Antony Duff, ‘Authority and Responsibility in International Criminal Law’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (OUP 2010) 589, 597–602 (here after Duff, ‘Authority and Responsibility in ICL’); Kai Ambos, ‘Punishment without a Sovereign? The Ius Puneiendi Issue of International Criminal Law: A first Contribution towards a Consistent Theory of International Criminal Law’ (2013) 33(2) Oxford J of L Studies 293. 7 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 38544, UN Doc A/CONF.183/9 (corrected on 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002, entered into force 1 July 2002), Preamble (hereafter Rome Statute).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

218 Miriam Gur-Arye and Alon Harel

II. Evaluating the Traditional Rationales of International Criminal Law The establishment of the ICC prompted a lively controversy concerning the rationales underlying its establishment as well as the rationales underlying international criminal law more generally.8 Many theorists justify ICL on the basis of the traditional rationales of national criminal law: deterrence,9 retributivist theories,10 educational theories,11 expressivist theories,12 etc. Each one of these theories has been used to justify national criminal law and, once ICL has been established, these rationales have been extended to justify ICL. Under this view, ‘international criminal law provides an answer to the failure of traditional mechanisms for protecting human rights’, that is, the failure of national legal systems.13 Other proposed justifications reject this view and, instead, aimed to provide distinct justifications for the establishment of ICL. These include, for instance, the argument that ICL assists in producing an accurate historical record of atrocities.14 All these theories have been subjected to harsh criticism.15 Yet our primary interest here is not to evaluate the soundness of these theories or to identify their strengths and weaknesses, but rather to highlight one feature that is shared by all of them. None of the traditional justifications for international criminal law takes seriously what we call internationalism. In other words, while all these theories purport to justify ICL, they do not establish the distinct features that the institutions that are in charge of interpreting or enforcing ICL must have, namely that such institutions must represent the international community and that their capacity to do so is necessary to advance or realize the values 8 For a comprehensive list of the rationales justifying the establishment of the ICC, see Hans PeterKaul, ‘International Criminal Court (ICC)’, Max Planck Encyclopedia of Public International Law (December 2010) accessed 15 June 2018. 9 See Payam Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities’ (2001) 95 American J of Intl L 7, 12. 10 Adil Ahmad Haque, ‘Group Violence and Group Vengeance, Toward a Retributivist Theory of International Criminal Law’ (2005) 9 Buffalo Crim L Rev 273. 11 Mirjan Damaska, ‘What is the Point of International Criminal Justice’ (2008) 83(1) Chicago-Kent L Rev 329 (hereafter Damaska, ‘What is the Point of Intl Crim Justice’). 12 Robert D. Sloane, ‘The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law’ (2007) 43(1) Stanford J of Intl L 39. For an attempt to rationalize international law in general in expressivist terms, see Alex Geisinger and Michal Ashley Stein, ‘A Theory of Expressive International law’ (2007) 60(1) Vanderbilt L Rev 77. 13 Werle, Principles of ICL (n 1) 124. Some theorists believe that establishment of institutions such as the ICC is detrimental to the realization of the traditional goals of criminal law. In particular, it was argued that it has perverse effects, i.e., it is likely to lead to less rather than more punishment for human rights abuses. See e.g., Jack Goldsmith, ‘The Self-Defeating International Criminal Court’ (2003) 70 Chicago L Rev 89, 95–99 (hereafter Goldsmith, ‘The Self-Defeating ICC’). 14 Damaska, ‘What is the Point of Intl Crim Justice’ (n 11) 331. 15 For some critiques, see ibid; Goldsmith, ‘The Self-Defeating ICC’ (n 13).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Taking Internationalism Seriously 219 that ICL is designed to promote.16 We label the view that internationalism is a necessary (rather than contingent) feature of ICL ‘robust internationalism’. Robust internationalism maintains that the institutions in charge of drafting, interpreting, and enforcing ICL represent the international community, i.e., that they speak in the name of the international community. ‘Robust internationalism’ rests on the conviction that the goals of ICL dictate that the institutions in control be organs of the international community.17 Thus, even if, e.g., Sweden establishes a court that is fair and effective and designed to sentence individuals who commit crimes against humanity, and even if such a court may effectively deter and serve retributivist goals, as long as it speaks in the name of the Swedish people rather than in the name of international community, it is not an appropriate tribunal to sentence violators of the ICL. Naturally, robust internationalism requires us to identify which institutions can speak in the name of the international community. As we demonstrate below, under certain conditions the Swedish court (or any other national court) can speak in the name of international rather than the national community. Yet to speak ‘in the name of ’ the international community, national courts should satisfy certain conditions. In particular, they need to be deferential to the international community; they must subject their judgments to those required by the international community and promote its interests. We will now show that none of the traditional rationales for establishing ICL takes internationalism seriously. As discussed already, some theories of ICL are based on the traditional justifications for the establishment of national criminal law. If ICL is designed exclusively to serve the same ends that traditional criminal law serves and to remedy the deficiencies of national legal systems, internationalism can be only contingently valuable. Take, for instance, the view that ICL can be used to deter atrocities.18 Using ICL to deter international crimes is a pragmatic extension of national legal systems. It is only the (contingent) failure of national legal systems and, in particular, their inefficacy in deterring crime that requires, under this view, the establishment of ICL.19 More generally, the failure of national legal systems in realizing the traditional goals attributed to these systems is a contingent fact. Different factual circumstances would, therefore, lead to the conclusion that inter national institutions are obsolete. 16 Thus, it is often stated that the very same ends pursued by ICL can in principle be pursued by other entities such as nation states or international organizations. See John M. Czarnetzky and Ronald J. Rychlak, ‘An Empire of Law: Legalism and the International Criminal Court’ (2003–2004) 79 Notre Dame L Rev 55 (‘[i]f nation states are incomplete communities, then other nation states, and perhaps international organizations must assist nation states in coordinating their activities in order to foster the common good of their citizens’ 100). 17 Our chapter does not affirm that the institutions that implement ICL succeed in speaking in the name of the international community. We only maintain that to gain legitimacy they ought to do so. For the view that often international institutions do not operate in the name of humanity, see e.g., Eric Stein, ‘International Integration and Democracy: No Love at First Sight’ (2001) 95 American J of Intl L 489. 18 Akhavan, ‘Beyond Impunity’ (n 9). 19 For compelling evidence concerning the failure of national criminal law to deter atrocities, see Cassese, ICL (n 1) 3–5.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

220 Miriam Gur-Arye and Alon Harel The preamble to the Rome Statute may provide some support for this view. It asserts that: ‘Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation’.20 This provision implies that the national and the international level can, in principle, substitute one another. Additional support for the view that ICL has no distinct purpose can be found in the provisions concerning complementarity. The preamble to the Rome Statute as well as Article 1 emphasize that the jurisdiction of the ICC shall complement national criminal jurisdictions. Article 17 specifies detailed conditions concerning the inadmissibility of cases that are (already) under investigation in national legal systems. Arguably, if the Rome Statute itself acknowledges the priority of national criminal law, it indicates that ICL is simply a contingent means to realize ends that could in principle equally be served by national legal systems.21 So far, we have surveyed the view that the goals of ICL are not distinct and that, consequently, ICL can be replaced by national criminal law in those cases where the instrumental justifications for ICL are absent. One can conjecture that the rationales that justify uniquely international criminal law, namely those that are not shared with national legal systems, would take internationalism seriously. Yet, this conjecture is false. Take for example the view (mentioned before) that ICL is designed to provide an accurate historical record of atrocities and that it can serve as a useful means to counter pernicious efforts to falsely rewrite history and to deny the very existence of atrocities.22 This rationale is unique to ICL and is used only rarely (if at all) to justify the establishment of national criminal law systems. This rationale also fails to take seriously internationalism. Using ICL to provide an accurate historical record of atrocities rests upon pragmatic or empirical features of ICL. But there is nothing that necessitates the use of the international community to realize this purpose. In fact, as one commentator noted, historians are more likely to provide an accurate historical record than the international legal community.23 Part II illustrated that internationalism is typically not taken seriously by inter national criminal law theorists.24 The traditional justifications that allegedly ground ICL depict it as a means of realizing ends that could otherwise be realized by institutions that are not international in character. Part III will now examine whether there are reasons to believe that internationalism is in fact an important component of ICL. It suggests that the internal understanding of ICL favors robust internationalism.

20 Rome Statute (n 7), Preamble (emphasis added). 21 We later argue that this understanding is misleading as national courts operate on behalf of the international community. 22 Werle, Principles of ICL (n 1) 101. 23 Damasca, ‘What is the Point of Intl Crim Justice’ (n 11) 336–37. 24 For theorists who take internationalism more seriously see Part III next.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Taking Internationalism Seriously 221

III. Robust Internationalism as a Constitutive Component of International Criminal Law Why should one assume that internationalism matters? Why should a theory of ICL endorse robust internationalism? Why should one reject any theory that regards ICL to be only contingently or instrumentally international? Part III addresses these questions. More specifically, it maintains that internationalism should matter to theorists because it matters to practitioners and is embodied in the documents that define the international crimes and established the various international criminal tribunals, as well as in the legal doctrines applied by these tribunals. There is, therefore, a sense of incongruity between the official (allegedly rational and instrumental) justifications for ICL (in terms of its supposed desirable contingent effects such as deterrence and retribution) and the underlying sentiments triggering the interest and passions of those who sustain the institutions designed to interpret and enforce international criminal law. We address this issue in two steps. First, we argue that it is a virtue of a theory purporting to justify a legal or a political institution, to justify it in ways that account for its appeal in the eyes of those who establish the institution or procedure and sustain it. Second, we maintain that internationalism matters to the founders of ICL and is impli citly reflected in legal doctrines. There is therefore a gap between the self-understanding of the institutions implementing ICL and the scholarly or theoretical justifications provided to it described in Part II. The failure to account for internationalism does not undermine the existing theories, but it is a major weakness, that we hope to remedy by providing a new rationale for ICL in Part IV. In Why Law Matters, one of us defended the significance of the virtue of ‘sincerity’ in political theory. Justifications of political institutions and procedures are sincere to the extent that they account for the sentiments underlying the urge to sustain or design political institutions and procedures. More specifically Why Law Matters argues that: [T]he traditional structure of justifications suffers sometimes from insincerity or inauthenticity; it fails at times to identify (or capture) the real sentiments underlying the urge to sustain or design political institutions or procedures. The sentiments underlying and sustaining the passions of legislators, the public, and even the theorists themselves are grounded in different normative considerations than those officially used to defend the relevant institutions or procedures.25

In the absence of sincerity, those who participate in the designing and sustaining of political institutions fail to understand what it is that they are doing. Hence, even 25 See Harel, Why Law Matters (n 2) 4.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

222 Miriam Gur-Arye and Alon Harel perfectly sound contingent arguments for or against certain entrenched political institutions or procedures may miss the point to the extent that they rationalize political institutions and procedures in terms that do not capture what actually makes such institutions or procedures politically and morally attractive. Note that we do not regard sincerity as a necessary nor as a sufficient condition for the soundness of a theory. Sometimes an institution can be justified in terms that are alien to those who establish the institution. At other times, the perception of those who establish or participate in the institution that it is justified is simply wrong, and normatively the institution cannot be justified. But we believe that, when it is possible, institutions should be justified in terms that are sensitive to the sentiments of those who establish the institutions or operate them. Let us now explore the way in which ICL theorists and practitioners view their own enterprise and establish that it is typically understood in terms that resemble robust internationalism, namely terms that regards internationalism as an essential feature of ICL. The universalistic aspirations of ICL are reflected at the outset of the preamble of the Rome Statute establishing the ICC that states: ‘Conscious that all people are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time’. In addition, the preamble also asserts that ICL protects ‘peace, security and [the] well-being of the world’. Article 5 speaks of serious crimes that are ‘of concern to the international community as a whole’.26 As will be shown in this chapter, the crimes that are of concern to the international community are all international crimes protecting international rather than local interests. These statements indicate the perception that ICL seeks to protect universal values, the protection of which is required to avoid harm to the international community as a whole (rather than only to the domestic community). Such a perception is shared by both theorists and international tribunals. Theorists believe that, by stigmatizing extreme forms of inhumanity, ICL helps to protect human rights and by that facilitates gradual positive moral changes in the international sphere.27 The International Criminal Tribunal for the former Yugoslavia (ICTY) expressed a similar view according to which the punishment for crimes against humanity expresses ‘the outrage of the international community at these crimes’; the punishment serves further to ‘make plain the condemnation of the international community of the behavior in question and show that the international community was not ready to tolerate serious violations of international law and human rights law’.28 26 Rome Statute (n 7), Preamble, art 5 (emphasis added). 27 Werle, Principles of ICL (n 1) note 1 para 100; Damasca, ‘What is the Point of Intl Crim Justice’ (n 11) 345; Immi Tallgren, ‘The Sensibility and Sense of International Criminal Law’ 13 EJIL 561, 591–2. An interesting example of the impact that the existence of the Court has on the deliberations of politicians can be found in the sharp exchange between Foreign Minister Shimon Peres and the Infrastructure Minister Avigdor Liberman concerning the best ways to react to terrorism. This is documented in Leila Nadya Sadat, ‘The Legacy of the ICTY: The International Criminal Court’ (2002) 37 New England L Rev 1073–74. 28 The Prosecutor v. Aleksovski (Judgment) IT-95–14/1 (24 March 2000) para 185 (ICTY, Appeals Chamber).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Taking Internationalism Seriously 223 The universal values protected by ICL require that international crimes have a link to the international community. Such a link might be based either on the cross-border nature of the crime (such as war crimes, piracy), or on an infringement of an interest that it is the business of the international community as a whole to protect (such as genocide or crimes against humanity). To accord the status of international crime, both genocide and crimes against humanity have a collective dimension. The international prohibition on genocide protects the right of ‘a national, ethnical, racial or religious group’29 to exist, and ‘to contribute to a pluralistic world’.30 The right extends beyond the physical existence of the members of the group; the prohibition on genocide protects the unique social entity of the group, rather than just the aggregate of the individuals who compose the group.31 The link between crimes against humanity, committed against a civilian population, and the international community as a whole is more controversial. Historically, crimes against humanity were linked to armed conflicts. In contemporary ICL, crimes against humanity have to be committed ‘as part of a widespread or systematic attack directed against any civilian population’32 whether or not the attack was part of an armed conflict. While discussing the values that crimes against humanity protect, some theorists treat ‘humanity as such’33 as the protected interest; others are more specific and emphasize ‘the core humanity that we all share and that distinguish us from other natural beings’,34 or ‘shared humanity’ by virtue of which ‘fellow human beings . . . have a claim on our respect and concern’.35 For the purpose of our argument, there is no need to take a stand on the specific nature of the interest protected by crimes against humanity. It is enough to note that the international nature of these crimes, the unique link to the international community, has been emphasized by both theorists and international tribunals. Most indicative of all is the assertion by the ICTY (Appeals Chamber) who ruled that: Rules proscribing crimes against humanity address the perpetrator’s conduct not only towards the immediate victim but also towards the whole of humankind . . . . Because of their heinousness and magnitude they constitute an egregious attack on human dignity, on the very notion of humaneness. They consequently affect, or should affect, each and every member of mankind, whatever his nationality, ethnic group or location’.36

29 See Rome Statute (n 7), art 6 (genocide requires an ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group’). 30 Kai Ambos, ‘The Crimes and Sentencing’, Treatise on International Criminal Law, vol II (OUP 2014) 3. 31 ibid 4; Werle, Principles of ICL (n 1) 256–57. 32 Rome Statute (n 7), art 7. 33 See Antonio Cassese, Paola Gaeta, and John R W D Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, vol I (OUP 2002) 353, 360; Werle, Principles of ICL (n 1) 292. 34 David Luban, ‘A Theory of Crimes against Humanity’ (2004) 29 Yale J of Intl L 85, 86. 35 Duff, ‘Authority and Responsibility in ICL’ (n 6) 601. 36 The Prosecutor v. Erdemović (Judgment) IT-96-22-A (7 October 1997), Joint Separate Opinion of Judge McDonald and Judge Vohrah, para 21 (ICTY, Appeals Chamber) (hereafter Erdemović case).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

224 Miriam Gur-Arye and Alon Harel The conclusion that ICL protects universal values, and that the provisions protecting these values are, by their nature, international, are (themselves) insufficient to establish robust internationalism. Arguably, national institutions can promote universal values; and there are indeed domestic courts that protect universal values. To establish inter nationalism (as we understand it), we need to show further that the institutions that are in charge of interpreting and enforcing international criminal law are international not by chance and not due to factual contingencies. Rather, internationalism must be a constitutive component of these institutions. In the rest of this part, we will show that a detailed analysis of the self-understandings of those who established the ICL institutions demonstrates that all these institutions and the doctrines they employed are quintes sentially ‘international’. More particularly, to qualify as a tribunal that applies international criminal law, a tribunal must act on behalf of the international community; thereby it becomes an organ of the international community. To do so it must shed off its national characteristics and serve the values of the international community. To establish this, let us examine in greater detail the tribunals that implement international criminal law. There are four types of tribunals, all of them established by international legal sources: a) The International Criminal Court established by the Rome Statute (ICC); b) The ad hoc International Criminal Tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR); c) Domestic courts exercising ‘universal jurisdiction’; d) Mixed or Hybrid ad hoc tribunals, such as the special courts for Sierra Leone, East Timor, Kosovo, and Cambodia.

A. The ICC The internationalism of the ICC is reflected in the purpose of establishing it, in the nature of crimes under its jurisdiction, and in the principles it has to apply while dealing with these crimes—all of them have an international component. The ICC was established by the Rome Statute, in 2002 in order ‘to guarantee lasting respect for and the enforcement of international justice’ (preamble).37 To achieve that goal the Rome Statute established a permanent international criminal court that has an ‘international legal personality’ (Article 4.1, emphasis added). The ICC has jurisdiction over ‘the most serious crimes of concern to the international community as a whole’ (Article 5.1). The Rome Statute defines four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression (Article 5.1). In dealing with these crimes, the ICC has to apply the following international norms: first and foremost, those that are defined by the Rome Statute (Article 21(a)); secondly, ‘treaties and the principles and rules of international law’ (Article 1(b)). Where there are no explicit international principles, the ICC ought to apply ‘general principles of law derived by the 37 For a description of the establishment of the ICC, see Mahnoush H. Arsanjani, ‘The Rome Statute of the International Criminal Court’ (1999) 93 American J of Intl Law 22 (1999).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Taking Internationalism Seriously 225 Court from national laws of legal systems of the world . . . provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards’ (Article 1(c)). As already noted, the international jurisdiction of the ICC is based on complementarity, i.e., the Court will generally defer to national jurisdictions provided that domestic investigations or prosecutions are conducted, unless the state is unwilling or unable to properly investigate or prosecute.38 This may seem to imply that national courts are an appropriate institution to engage with ICL. However, in discussing universal jurisdiction, we will soon show that this view is false. When national courts apply international criminal law, they effectively become organs of the international community.39

B. The Ad Hoc Tribunals The ICTY and the ICTR were established by the United Nations Security Council in accordance with Chapter VII of the UN Charter.40 The ICTY was established in 1993 ‘for . . . prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia’.41 The ICTR was established in 1994 to ‘prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and neighboring States, between 1 January 1994 and 31 December 1994’.42 Although the ad hoc tribunals and national courts have concurrent jurisdiction for cases falling within their jurisdiction, as opposed to the ICC, both the ICTY and the ICTR have ‘primacy over the national courts of all States’.43 Given these facts, it is easy to conclude that according to the ICL founders’ selfunderstandings, both the ICC and the ad hoc tribunals are international entities and that their sole mission is to promote the interests of the international community. 38 Rome Statute (n 7), art 17. On the principle of complementarity, see Jann K. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdiction (OUP 2008); Mohamed M. El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice (Martinus Nijhoff 2008); Jo Stigen, The Relationship between the International Criminal Court and National Jurisdictions: The Principle of Complementarity (Martinus Nijhoff 2008). 39 See the discussion of universal jurisdiction at Part III.C. 40 For a description of the establishment of these courts and evaluating their performance, see Lilian A. Barrira and Steven D. Roper, ‘How Effective Are International Criminal Tribunals: An Analysis of the ICTY and the ICTR’ (2005) 9 Intl J of Human Rights 349. 41 Security Council resolution 827 (1993) on establishment of the International Tribunal for Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UNSC Res 827, 3217th Mtg, UN Doc S/RES/827 (25 May 1993). 42 Statute of the International Criminal Tribunal for Rwanda (ICTR) established by UNSC Res 955, 3453th Mtg, UN Doc S/RES/955 (8 November 1994), art 1 (hereafter ICTR Statute). 43 UN Secretary-General, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc S/25704 (3 May 1993), art 9(2) (hereafter ICTY Statute); ICTR Statute (n 42), art 8(2).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

226 Miriam Gur-Arye and Alon Harel

C. Universal Jurisdiction The nature of national courts exercising universal jurisdiction is less clear. What, if anything, makes such institutions international? What, if anything, elevates them to the status of organs of the international community? Our answer is based both on our examination of the intentions of the founders of these institutions and, more import antly, on the legal doctrines that they employ. Under the rule of universal jurisdiction, any state may prosecute offenders for certain international crimes even when the state lacks a traditional nexus with the crime, the alleged offender, or the victim.44 Historically,45 universal jurisdiction can be traced back to the prosecution and punishment of the crime of piracy.46 After the Second World War, the universal jurisdiction was expanded through the establishment of the Nuremberg and Tokyo International Military Tribunals in order to prosecute senior German and Japanese officials, respectively, for crimes against humanity, war crimes, and the crime of aggression.47 Later on, other international conventions and rules of customary law enshrined universal jurisdiction as a permanent feature of ICL. Universal jurisdiction was later used in a number of cases, starting with the Eichmann case in 1961,48 the Demanjuk case in 1985,49 the Pinochet case in 1999,50 and the Butare Four case in 2001.51 The traditional justification for the universal jurisdiction relies upon its ‘universalism’. International crimes are crimes against the international community as a whole. Therefore, the international community, through all its components—states 44 See e.g., Kenneth C. Randall, ‘Universal Jurisdiction under International Law’ (1998) 66 Texas L Rev 785–88; International Law Association Committee on International Human Rights Law and Practice, Final Report on the Exercise of Universal Jurisdiction in respect of Gross Human Rights Offences (London Conference, 2000) 2; Mary Robinson, ‘Foreword’ in Stephen Macedo (ed), The Princeton Principles on Universal Jurisdiction (Princeton UP 2001) 16. 45 For the historical survey, see Werle, Principles of ICL (n 1) 183–218. 46 See for instance United States v. Smith, 18 US (5 Wheat) 153 (1820) 161–62. 47 United Nations, Charter of the International Military Tribunal—Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis, 8 August 1945, 82 UNTS 279, 59 US Stat 1544, 1574, art 6 (hereafter IMT Statute); Charter of the International Military Tribunal for the Far East, 19 January 1946, TIAS No. 1589, 4 Bevans 20. For an elaborate discussion of these trials, see Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (Knopf 1992); Richard Overy, ‘The Nuremberg Trials: International Law in the Making’ in Philippe Sands (ed), From Nuremberg to The Hague: The Future of International Criminal Justice (CUP 2003) 1–29; Neil Boster and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (OUP 2008). 48 A-G of the Government of Israel v. Eichmann (1962), Crim Appeal 336/61, 36 Intl L Rep 277, 298–300 (Israel Sup Ct) (English translation) (hereafter Eichmann (1962)). 49 The State of Israel v. Demjanjuk, Crim case 373/86 (District Ct of Jerusalem) (April, 1988), revised Crim Appeal 347/88 (Israel Sup Ct, 29 July 1993). For the English translation, see Asher Landau (ed), The Demjanjuk Trial (Hever Translators’ Pool (trs), Israel Bar Publishing House 1991). 50 Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet [1999] UKHL 17, [1999] 2 WLR 827. 51 Cour d’Assises de Bruxelles, 8 June 2001, documentation of the whole trial is available online at accessed 16 June 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Taking Internationalism Seriously 227 or international organizations—must prosecute and punish the perpetrators of such crimes. The view that in exercising universal jurisdiction the tribunals serve as agents of the international community was explicitly expressed in the Nuremberg trials. In his opening statement, Robert Jackson, the Chief US Prosecutor in the trials, stated: The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.52

Hence, the Nazi criminals are brought to court for crimes that civilization itself cannot tolerate and they are brought before a court of humanity: ‘Where law exists a court will rise. Thus, the court of humanity, if it may so be termed, will never adjourn’.53 Even when domestic courts—and not just international tribunals such as the Nuremberg military tribunal—exercise universal jurisdiction, they act on behalf of the international community. International law empowered, and at times even obliged, states to prosecute international crimes that harmed the international community as a whole. The Israeli Supreme Court in the Eichmann case—considered to be the corner stone for the exercise of universal jurisdictions by domestic courts—made this view explicit: Not only are all the crimes attributed to the Appellant of an international character, but they are crimes whose evil and murderous effects were so widespread as to shake the stability of the international community to its very foundations. The State of Israel, therefore, was entitled, pursuant to the principle of universal jurisdiction, and acting in the capacity of guardian of international law and agents for its enforcement, to try the Appellant. This being the case, it is immaterial that the State of Israel did not exist at the time the offences were committed.54

The view that in exercising universal jurisdiction domestic courts act as agents of the international community has been expressed in the academic literature as well: [When] individual nations act pursuant to universal jurisdiction, in theory they are acting pursuant to an implied mandate from the collective international community.55

52 See Robert Jackson, ‘Opening Address for the United States’ accessed 16 June 2018 (emphasis added). 53 Quoted in A-G of the Government of Israel v. Eichmann [1962] Crim Case 40/61, 36 Intl L Rep 5 accessed 16 June 2018, para 26 (District Ct of Jerusalem). 54 Eichmann (1962) (n 48) para 12 (emphasis added). 55 Anthony Sammons, ‘The “Under-Theorization” of Universal Jurisdiction: Implications for the Legitimacy on Trials of War Criminals by National Courts’ (2003) 21 Berkley J of Intl L 111, 141 (hereafter Sammons, ‘The “Under-Theorization” of Universal Jurisdiction’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

228 Miriam Gur-Arye and Alon Harel Under this view: [B]y exercising universal jurisdiction, national courts are transformed into international institutions. This transformation is grounded in the conviction that the prosecuting state is acting on behalf of all states.56

It follows that universal jurisdiction is very different from other instances of extraterritorial jurisdiction that instead require a nexus between the state and the crime, the criminal or the victim. In cases of extraterritorial jurisdiction based on such a nexus, the state operates in its own name, to promote its own interests and on behalf of its own citizens. In the case of universal jurisdiction, the state operates on behalf of the international community in order to promote the interests of the international community as a whole. As Sammons argued: As a state’s sovereignty transfers to the international community when certain ‘heinous’ crimes are committed within the state, a particular nation that assumes the authority to prosecute essentially acts as the agent of the international community.57

So far, we have established that tribunals that apply universal jurisdiction regard themselves as operating in the name of the international community and are described in these terms by academics. Arguably, however, this is mere rhetoric designed to dramatize the significance of national courts. To establish the real importance of this (self) depiction it is necessary to establish that it has doctrinal implications. Typically, when the extraterritorial jurisdiction is based on a special nexus to the state, the state is free to define and design its criminal norms in accordance with its own domestic legal tradition. In contrast, when the state exercises universal jurisdiction, it is highly constrained. The crimes that give rise to universal jurisdiction are defined by international law; further, the state often has to deviate from its own legal traditions when it invokes universal jurisdiction. The view that in exercising universal jurisdiction domestic courts have to grant primacy to ICL over domestic criminal law is not explicitly supported by the Rome Statute, which does not require full incorporation of international criminal law into domestic law. States can ostensibly ‘rely on ordinary [domestic] criminal law to cover crimes under international law, for example under the definitions of murder, deprivation of liberty and the like.’58 Yet as maintained by Werle: [N]on incorporation of international criminal law into domestic law is not a recommended long term solution. To comply fully with the spirit and the plan of the ICC, states should adapt their substantive criminal law.59 56 Christopher C. Joyner, ‘Arresting Impunity: The Case for Universal Jurisdiction in Bringing War Criminals to Accountability’ (1996) 59 Law and Contemporary Problems 153, 165. 57 Sammons, ‘The “Under-Theorization” of Universal Jurisdiction’ (n 55) 137. 58 Werle, Principles of ICL (n 1) 319. 59 ibid 321.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Taking Internationalism Seriously 229 The spirt of the ICL has come to light in practice through the legal doctrines of ICL. In particular, we show that in exercising universal jurisdiction domestic courts should be completely deferential to the international community. One indication is the case of Prosecutor v. Bagaragaza (2006) in that the ICTR Appeals Chamber rejected Norway’s request to refer the case to Norway in order to enable it to prosecute the defendant for murder. The reason for the refusal was that Norwegian law does not contain a prohibition on genocide.60 It follows that an ICL case would have been referred to Norway only when Norway acts in the name of the international community and prosecutes for the international crime of genocide, rather than for its domestic crime of murder. German jurists were aware of this observation and acted accordingly. The German parliament enacted ‘Code of Crimes against International Law’ (2002),61 which enables German domestic courts to prosecute core international crimes, as defined in the Rome Statute. In prosecuting these crimes, domestic courts apply the general principles of German criminal law, unless they contradict the international principles specified in the Rome Statute. Where there is a contradiction, the German courts have to deviate from the domestic principles of German criminal law and apply the international principles as are set out in the Code of Crimes against International Law.62 The fact that German domestic courts apply a specific code of crimes that grants primacy to ICL principles reveals that while dealing with international crimes (such as genocide or crimes against humanity) the German courts act on behalf of the international community; they perceive of themselves as serving the international community. The courts of Germany shed their Germanic features, transforming themselves into an organ of the inter national community. In this context, a clarification is needed. As mentioned before, the exercise of universal jurisdiction does not require nexus between the state, the victims, and offenders. However, in practice such a nexus might be important as a means of conveying the message that justice is done to the local population who was subject to atrocities, and mainly to the victims. When there is a nexus between the state and crimes such as genocide or crimes against humanity, the state in fact has two options in dealing with such crimes. Its domestic courts can act in the name of the international community by exercising universal jurisdiction. In such a case the domestic courts convey the message that the international community as a whole condemns the atrocities committed within the state’s territory, or against the state’s population, or by offenders who are citizens of the state. By doing so, domestic courts transform themselves into an organ of the international community and are obliged to apply international criminal law principles and doctrine. However, states might choose to prosecute atrocities committed in their 60 (Decision on Rule 11bis Appeal) ICTR-05-86-AR11bis, (30 August 2006), para 17 (ICTR, Appeals Chamber). 61 For the English translation of the code see accessed 16 June 2018. 62 See ibid ss 3–5 relating to acting in obedience to illegal military order (section 3), responsibility of superior (section 4), and non-applicability of the statute of limitations (section 5).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

230 Miriam Gur-Arye and Alon Harel territory, or against their citizens or by their citizens in the states’ own names, as part of their obligations towards their own citizens. In such a case, even when the state prosecutes offenders accused of genocide or crimes against humanity, as defined in its domestic criminal law, the crimes are not international crimes and the domestic courts are not international tribunals. Domestic courts that deal with these crimes are obliged to apply domestic criminal law principles and doctrines. The rulings of the domestic courts in such cases do not serve as binding precedent for the international criminal law. A state might choose to prosecute atrocities committed in its territory as international crimes, dealt with by its domestic courts in the name of the international community, rather than in the name of the local polity, in cases of transition when the legitimacy of the new regime has not yet been established. Preferring international over national criminal law in such cases might reinforce the victims’ confidence in the system. The same tribunal may sometimes (with respect to some cases) apply national law and, at other times (with respect to other cases), apply international law. Yet, with respect to a single case, it must regard itself either as a domestic court, which speaks in the name of the local polity and is bound by local rules and doctrines, or as an international one, speaking in the name of the international community, and has to follow international rules and precedents even when they contradict the local ones. To explain the implications of the different roles domestic courts might have in dealing with offences like genocide or crimes against humanity, let us take the Erdemović case (1997) as an example.63 In that case, the Appeals Chamber of the ICTY ruled (in 3:2 majority) that duress does not afford a complete defence to crimes against humanity when it involves the killing of the innocent. The majority reached this conclusion despite the conflicting approaches of the various relevant legal systems. Most common law jurisdictions do not grant duress when the defendant kills innocent persons to save her own life, whereas civil law jurisdictions regard duress as a complete excuse in such cases. On 2002, the Rome Statute adopted the minority’s view in the Erdemović case, according to which duress might be a defence to crimes against humanity, even when it involves killing the innocent. The question whether domestic courts in civil law jurisdictions will excuse offenders, who under duress commit a crime against humanity, in the period between 1997 (after the Erdemović case) and 2002 (before the Rome Statute) depends on behalf of whom the domestic courts operate. In exercising universal jurisdiction, domestic courts act on behalf of the international community. Acting on behalf of the international community imposes obligations on domestic courts to defer to the judgments of the international criminal tribunals. Therefore, domestic courts exercising universal jurisdiction will be obliged to follow the ruling of the ICTY in the Erdemović case and to convict a defendant charged with crimes against humanity who sacrificed the life of innocent person/s to save his own on grounds of duress.64 By contrast, domestic courts who act on behalf of 63 See n 36. 64 Rome Statute (n 7), art 31(d). It is important to note that we do not take a stand on the debate following the Erdemović case with regard to whether or not duress should excuse crimes against humanity. cf eg Luis E. Chiesa, ‘Duress, Demanding Heroism, and Proportionality’ (2008) 41 Vanderbilt J of Transnational

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Taking Internationalism Seriously 231 the state in whose territory the crime has been committed, or was directed against its citizens or committed by its citizens, are obliged to apply domestic doctrines. In such a case, domestic courts in civil law jurisdictions might excuse a defendant charged with a crime against humanity, as defined by domestic law, even when it involves killing of the innocent. In the same spirit, after 2002, domestic courts in common law legal systems, acting in the name of the international community, will have to follow the Rome Statute and to grant an excuse to crimes against humanity even when the life of innocent persons were sacrificed; whereas when these courts act in the name of the local polity, they will refuse to grant such an excuse.

D. Hybrid Tribunals Since the beginning of the 21st century, several hybrid criminal tribunals have been established in post-conflict situations in order to address atrocities committed during the conflict, such as the special courts for Sierra Leone,65 East Timor,66 Kosovo,67 and Cambodia.68 Such courts are ‘hybrid’ because both the institutional apparatus and the applicable law consist of a blend of the international and the domestic. Foreign judges sit alongside their domestic counterparts to try cases prosecuted and defended by teams of local lawyers working with those from other countries. The judges apply domestic law that has been reformed to accord with international standards.69 Are these hybrid criminal tribunals in essence organs of the international community or are they national courts applying international criminal law? Supporters of hybrid tribunals argue that hybrid tribunals that are located in the very same places where the relevant atrocities took place will gain legitimacy in the eyes of the local population, especially the victims—a legitimacy that is more difficult to achieve L 741, 770–72; Rosa E. Brooks, ‘Law in the Heart of Darkness: Atrocity & Duress’ (2003) 43 Virginia J of Intl L 861, 875–76; Alexander K.A. Greenawalt, ‘The Pluralism of International Criminal Law’ (2011) 86(3) Indiana L J 1063, 1118. 65 The Special Court for Sierra Leone (SCSL) has been established by the Agreement between the United Nations and Sierra Leone that was concluded pursuant to UNSC Res 1315, 4186th Mtg, UN Doc S/RES/1315 (14 August 2000). 66 The Special Panels for Serious Crimes were established by the United Nations Transitional Administration in East Timor (UNTAET) in 2000 pursuant to Regulation no. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction Over Serious Criminal Offences, UN Doc UNTAET/REG/2000/15 (6 June 2000). 67 The Kosovo courts were established through regulations of the United Nations Interim Mission in Kosovo (UNMIK) 1999. 68 The Extraordinary Chambers in the Courts of Cambodia were established by an agreement between the Cambodian government and the UN (adopted by the UN General Assembly on 22 May 2003—UNGA Res 57/228B). The Cambodian Parliament approved the agreement and incorporated the Extraordinary Chambers as part of the Cambodian legal system. 69 Laura A. Dickinson, ‘The Promise of Hybrid Courts’ (2003) 97(2) American J of Intl 295 (hereafter Dickinson, ‘The Promise of Hybrid Courts’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

232 Miriam Gur-Arye and Alon Harel through a ‘purely’ international tribunal convening from afar, distanced from the victims, and speaking in a foreign tongue.70 The implementation of the international criminal law by domestic courts, it has been argued, will be better achieved through hybrid tribunals: Because the work of the international courts is physically remote from the countries in question, and the judges and personnel have not been drawn from the local population, there is little opportunity for domestic legal professionals to absorb, apply, interpret, critique, and develop the international norms in question, let alone for the broader public to do so. . . . [T]he mere existence of an international court does not create a channel for its jurisprudence to be used and developed, or even merely respected and understood, on a local level.71

The need to both gain legitimacy in the eyes of the local population, and succeed in implementing the jurisprudence of international criminal law, stems—in our view— from the nature of the hybrid tribunals as international tribunals. Precisely because these tribunals speak in the name of the international community, there is a need to bring the international community’s judgments closer to both the local populations and professionals. This will enable domestic courts to better fulfill their obligation to subject their judgments to the standards of the international community and to promote inter nationalist interests.

IV. Taking Internationalism Seriously: The Case for Robust Internationalism Part III established that the tribunals that implement ICL are invariably international tribunals that operate in the name of the international community. This part provides a new rationale justifying the internationalist characteristics of such tribunals. More specifically, this part defends robust internationalism; it argues that international criminal law is not contingently international. Internationalism is necessary for successfully performing certain functions. In particular, it is essential for communicating authoritative judgments concerning what counts as ‘international crimes’ and how these crimes should be punished. Judgments determining the content of international crimes and punishing those who committed these crimes must be made by an international entity— an entity that can speak in the name of the international community, i.e., an entity whose judgments can be attributed to the international community. Accordingly, under our view, it is not that international entities are better in making judgments with regard to 70 Etelle R. Higonnet ‘Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform’ (2006) 23 Arizona J of Intl and Comparative L 347, 362–67. 71 Dickinson, ‘The Promise of Hybrid Courts’ (n 69) 305.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Taking Internationalism Seriously 233 the scope of international crimes and the appropriate punishments because they are wiser or more likely to be impartial. No instrumental considerations are relevant for our analysis. Rather, international entities are the only entities whose judgments concerning international crimes and the appropriate punishment count. We develop the argument in two steps. First, we illustrate the importance of agency and define the concept of an agent-dependent enterprise—enterprises whose success hinges on the identity or the status of the agent performing the enterprise. We also provide examples of agent-dependent enterprises. We later argue that international criminal law is an agent-dependent enterprise. It provides goods that must, as a conceptual matter, be provided by an international agent, i.e., an agent who speaks in the name of the international community and whose judgments can be attributed to the international community. Some agents are chosen to execute a particular enterprise because of their competence or excellence in doing so; significantly, this competence or excellence is evaluated independently of the agent’s own identity or status. At other times, however, excellence or competence in executing an enterprise is inseparable from the identity or the status of the agent. In the latter case, the quality of the execution of the enterprise cannot be measured independently of the agent’s identity. In a previous work, one of us developed the concept of ‘agent-dependent enterprise or practices’, that is enterprises or practices whose success depends on the agent performing them.72 One example of an ‘agent-dependent enterprise’ is the blood feud. Blood feuds are ritualized ways of seeking vengeance for a wrong by killing or punishing a person belonging to a tribe or to a clan of the original perpetrator. Anthropologists found out that it is only a male relative of the deceased that is capable of performing a blood feud. A killing by the ‘wrong agent’ is not merely an inappropriate or an impermissible blood feud; it does not even count as a blood feud, and it cannot redress the injustice.73 The notion of an ‘agent-dependent enterprise’, however, is not a relic of the past. In a well-known Israeli case, Chief Justice Beinisch decided to strike down a statute authorizing the establishment of private prisons.74 Chief Justice Beinisch argued that prisons must be operated by the state not because state prisons are likely to be better, safer, or more humane, but because imprisonment is among ‘the state’s most distinctive powers as the embodiment of government’.75 The agent (state prison), rather than the mere performance of the incarceration, is of key significance. 72 The next two paragraphs are based on Harel, Why Law Matters (n 2) 69–81. 73 Pamela Barmash, Homicide in the Biblical World (CUP 2005) 24. 74 Academic Center et al v. Minister of Finance translation [2009] HCJ 2605/05 (Israel Sup Ct). For an English translation of the ruling see , accessed 12 October 2019. 75 ibid. Additional support for the view that regards punishment as a good that must be produced by a specific agent can be found in Locke. See John Locke, A Second Letter Concerning Toleration in The Works of John Locke (Thomas Davison 1823) (Locke believes that in addition to the requirement that the imposition of the punishment by an agent should be ‘directly useful for the procuring of some greater good’, the punishment also ought to be inflicted by someone ‘who has commission and power to do so’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

234 Miriam Gur-Arye and Alon Harel To establish robust internationalism, one needs to demonstrate that international criminal law is an ‘agent-dependent enterprise’—that the international community is necessary for realizing important functions of international criminal law. To establish this, we draw upon the expressive function of the criminal punishment. Sanctioning a wrongdoer is an expressive or a communicative act of condemnation. It is a public manifestation of condemnation and disapprobation of the criminal deeds.76 Unlike deterrence and other conventional goals of punishment, public condemnation is possible in the first place only if it emanates from the appropriate agent—one that represents the public. Condemnation is ineffective unless it is communicated by an agent that is in a privileged status compared to that of the person subjected to the condemnation, i.e., an agent whose judgments concerning the appropriateness of the behaviour are worthy of attention or respect. Otherwise, an infliction of ‘a sanction’ amounts to an act of violence that does not actually communicate censure for the relevant wrongful acts. This explains why a dog that bites a burglar is not typically described as inflicting a punishment. While the dog’s bite may be painful and related causally to the wrong, it does not convey condemnation of the act of burglary. ICL serves to pronounce the wrongfulness of actions directed against the inter national community. Yet, given the equal sovereignty of each state, no individual state can make an authoritative pronouncement concerning the wrongfulness of international wrongs. A judgment made by one state can always be challenged or questioned by another state. The judgment that a particular act is a wrong directed against the inter national community must therefore be made by an entity that is superior to the states, i.e., an institution that can speak in the name of the international community. Just as criminal law must be implemented by the state (given that no individual person can make authoritative judgments as to what constitutes a criminal wrong against the domestic polity), the judgment that an act is a wrong against the international community must be made by the international community (given that no state can make authoritative determinations that bind other states or the entire international community). Thus, even if ICL does not reinforce conformity with international duties or guarantee better protection of human rights, it still serves an important goal, namely conveying the judgment that certain actions are international wrongs. In the absence of tribunals that can speak in the name of the international community, punishing a person for international crimes is illegitimate. When a national legal system imposes punishments for international crimes, the criminalization and the infliction of 76 This view is not unique to international crimes and it is shared by many contemporary legal theor ists. An early articulation of this claim was developed by Robert Nozick who believes that ‘[r]etributive punishment is an act of communicative behaviour’, and that retribution achieves two goals. The first is ‘to connect the criminal to the value qua value’, and, the second is to connect the wrongdoer to the value in a way ‘that value qua value has a significant effect in the criminal’s life, as significant as his own flouting of correct values’. See Robert Nozick, Philosophical Explanations (Harvard UP 1981) 370. See also Joel Feinberg, ‘The Expressive Function of Punishment’ in Doing and Deserving; Essays in the Theory of Responsibility (Princeton UP 1970) 95, 98; Anthony Duff, Punishment, Communication, and Community (OUP 2001).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Taking Internationalism Seriously 235 sanctions hinges on the state’s judgment rather on a judgment by the international community. The state lacks the moral standing to speak and act in the name of the international community. Whereas the international community can claim that its judgments deserve attention, the individual state cannot make such a claim. If a state condemns officials of other states for violating their international duties, such a condemnation has no authoritative force; it is only the international community that can make such normative pronouncements. This observation indicates that the view that ICL undermines state sovereignty is false.77 As a matter of fact, ICL is a means of honouring the sovereignty of states in that it protects states from interference by other states and facilitates such interference only if it is initiated by the international community.78 Note that we do not make any claim here as to the success of the international tribunals in ‘speaking in the name of the international community’ or ‘representing it’.79 Some scholars have pointed out that the international community is dominated by powerful states and that often tribunals that purport to represent the international community fail to do so. We do not deny that is may be true. We only maintain that to gain legitimacy they ought to do so. Naturally, this analysis requires us to identify which institutions are ‘international institutions’ who have the moral standing to speak ‘in the name of ’ the international community. As we have seen, domestic courts exercising universal jurisdiction can act in the name of the international community. In such cases, domestic courts function as international institutions that have to subject their judgments to the standards of the international community and promote its interests. This observation might raise a concern: we stated earlier that the state cannot act on behalf of the international community and make judgments in its name. Why can national tribunals act in the name of the international community? What makes them legitimate international institutions capable of executing ICL? We believe that the willingness to accord national tribunals a legitimate international status, which makes them capable to speak in the name of the international community, is a by-product of both historical and functional reasons. Historically, the development of international law and the recognition that international criminal law standards are necessary to protect universal values took place before the development of distinct international institutions authorized to enforce the international criminal standards. The enforcement of these standards was done through universal jurisdiction exercised either by ad hoc international tribunals (such as the Nuremberg and Tokyo International Military Tribunals) or by national tribunals that were authorized to speak in the name of 77 For a discussion on the relations between international criminal law and the sovereignty of states, see Robert Cryer, ‘International Criminal Law vs State Sovereignty: Another Round?’ (2005) 16(5) European J of Intl L 979. 78 It can be argued that even this limited interference on the part of the international community is unjustified. What we say here is merely that this interference is rather limited as it rests on judgments by the international community rather than by other states. 79 See also n 17.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

236 Miriam Gur-Arye and Alon Harel the international community. Functionally, in exercising universal jurisdiction national tribunals have to follow the international criminal law standards and to defer to the international criminal law precedents. Therefore, the decisions of national tribunals in exercising universal jurisdiction can in principle be monitored effectively by the international community.80 These are the reasons that helped to entrench a convention under which national tribunals exercising universal jurisdiction are appropriate agents to speak in the name of the international community. Let us see how our analysis can address the important challenge pressed by Anthony Duff to ICL: When an ICC defendant asks ‘by what right do you try me?’ what kind of answer could be given? An answer must show that the court acts in the name of some group to whom the defendant is answerable for his alleged crime. It is not enough to argue that the wrongs he allegedly committed are terrible wrongs whose perpetrators ought to be punished: the trial’s legitimacy depends upon the acceptability of the court’s claim to act in the name of those who have the right to call the defendant to account. In whose name then can the ICC claim to act? To whom are the perpetrators of such crimes answerable?81

According to Antony Duff, defendants who commit international crimes must answer to their local communities. However, there might be cases in which, due to the ‘widespread and systematic attacks on civilian populations’, there is ‘no surviving political community to which perpetrators and victims belong’.82 In such cases, defendants ‘must answer . . . to humanity’.83 A human community in this context ‘need not involve close ties or deep structures of richly shared interests’. Rather, human community is composed of ‘fellow human beings’ who ‘have a claim on our respect and concern simply by virtue of our shared humanity’.84 We agree with Duff ’s observation that the ICC should speak in the name of a community that is distinct from the local community (the state). However, as opposed to Duff, we embrace internationalism enthusiastically and regard it as necessary for the very intelligibility of ICL. It is only the international community that can make judgments with respect to these crimes, and therefore the only proper tribunal to whom we are accountable for international crimes are international tribunals. Hence, we insist to conceptualize national courts exercising universal jurisdiction as international (or, more accurately as tribunals that speak in the name of the international community) rather than national tribunals. 80 Arguably, one could ask if national courts can act in the name of the international community why cannot private institutions punish in the name of the state? The reason rests on a functional difference between private and public institutions. Private institutions (as opposed to public ones) have always sectarian interests that can legitimately guide their decisions. This is what characterizes them as private. Hence, decisions of private institutions can never be fully controlled by the state. The state can impose limits and define goals but it cannot fully control the manner in which these goals are realized. See Harel, Why Law Matters (n 2) ch 3. 81 See Duff, ‘Authority and Responsibility in ICL’ (n 6). 82 ibid 599. 83 ibid 601. 84 ibid.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Taking Internationalism Seriously 237

V. Conclusion This chapter challenges the traditional justifications of ICL that regard internationalism as a contingent feature of international criminal law. It also challenges the conviction that what is right and wrong can be determined independently of the agent who makes the decision and, consequently, that selecting the right agent to implement ICL is simply (and invariably) a matter of selecting the agent that is more likely to make a just decision concerning what should count as a crime against humanity or a war crime. This chapter shifts the type of considerations bearing on the question ‘who is the appropriate agent to interpret international criminal law’ from considerations concerning the likely correctness, justness, or effectiveness of the resulting decision to considerations concerning the legitimacy of the agent to make the decision. Robust internationalism does not regard courts as mere instruments to prevent atrocities; the desirability of internationalism does not hinge only on the question of whether it is effective in preventing international crimes or in minimizing the frequency and severity of their violation. The protection of international norms is not a prerogative of the state with which it may or may not comply. It is a prerogative of the international community as such. This leaves open however the question of whether the institutions that claim to be speaking in the name of humanity or the international community succeed in doing so. This chapter only implies that if they do not succeed in doing so, such a failure on their part undermines their legitimacy.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

chapter 10

Im pu n itie s Mark A. Drumbl1

‘I must not only punish but punish with impunity’. —Montresor, the narrator, in Edgar Allan Poe’s ‘The Cask of Amontillado’ (November, 1846), published in Godey’s Lady’s Book.

I. Introduction Montresor could bear all the injuries that Fortunato, another Italian nobleman, had apparently inflicted upon him. But when Fortunato ‘ventured upon insult’, Montresor cracked and ‘vowed revenge’. Montresor’s smile was no longer one of welcome, but one that curled at the thought of Fortunato’s immolation. Retribution required Montresor to punish, and punish he ultimately did in accordance with his family’s motto: nemo me impune lacessit—no one assails me with impunity.2 Fortunato’s eventual punishment was not by immolation, however, but by immurement. Montresor tricks Fortunato. He seizes upon Fortunato’s putative ‘connoisseurship’ in wine. Montresor promises Amontillado—a rare vintage—as the finale. Fortunato, clad for Carnival as a jester, his bells clinking and clanking, had already been drinking prior to joining Montresor. The drinking continues. Montresor inveigles Fortunato into the vaults that house the wine cellars. These are Montresor’s vaults, his family’s catacombs, the crypts of his ancestors. Fortunato drinks (but does not savour) Medoc and De Grave—he coughs, sputters with rheum, consumes some more. It is damp. The vaults 1 Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington and Lee University. I thank Colt Justice and Courtney Wolf for research assistance; Meg deGuzman and Barbora Holá for guidance; and Darryl Robinson and Sarah Nouwen for their robust input and extensive comments. 2 Identical to the Latin motto of the Scottish Stuart dynasty, which has been adopted by the Order of the Thistle and three Scottish regiments of the British Army. In Scottish Gaelic: Cha togar m’ fhearg gun dìoladh.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Impunities 239

Figure 10.1 Fortunato, in chains, immured: Fortunato (l), Montresor (r) Illustration by Harry Clarke, 1919.

twist, the crypts extend deeply, the Amontillado lies as a mirage at their most subterranean ends. The walls at these ends have staples and chains, a padlock even, in which Montresor binds and shackles a dazed Fortunato. Among the bones and humidity, Montresor finds stone and mortar and unsheathes a trowel he had been hiding. This may not be the first time (see Figure 10.1). Montresor builds a wall around Fortunato. The wine naturally wears off. Fortunato becomes lucid and screams. He cries out: this is a joke, Montresor—come, let’s have a laugh about this, later, over the Amontillado at the palazzo. Fortunato’s cries are met with silence. It is too late. Fortunato knows it. All he can say is: ‘For the love of God, Montresor!’ Yes indeed, Montresor retorts, plastering the wall and entombing Fortunato, ‘this is for the love of God’. The tomb, we learn, lies undisturbed by any mortal ‘for the half of a century’. Montresor admits he feels sick at heart, but only fleetingly so, and besides, he blames it on the dampness of the catacombs. Poe blurs the lines between the injured and the injurer, between the victim and the criminal. The reader is left hanging as to who exactly is the villain. Montresor redresses impunity but in a way that generates new impunity. Impunity, then, becomes a fun house of mirrors: it takes impunity to prevent impunity, so preventing impunity creates new injustices. In a classic sense, ‘impunity’ means freedom from punishment for one’s harmful acts. Etymologically, the term springs from impunité in Middle French, that in turn derives

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

240 Mark A. Drumbl from the Latin impune (in [not] + poena [punishment, pain]) originally from the ancient Greek poine [penalty]. Poena, the spirit of punishment in Roman mythology, attends to Nemesis, the goddess of retribution. Impunity is a theme that suffuses literature, fables, and art throughout the ages; and in modern times impunity surfaces as among the concerns of the global human rights movement. International criminal courts and tribunals assume, and have been assigned, many lofty goals. Among these is to fight (and even end) impunity for heinous atrocities and to stanch cycles of impunity that lead to collective cultures of violence.3 International criminal courts and tribunals directly contribute to this battle by prosecuting and sentencing perpetrators. They also indirectly contribute thereto by incentivizing national judicial actors to act. The admissibility structure of the International Criminal Court (ICC), for example, promotes national investigations and criminal prosecutions through the principle of complementarity, and thereby taps those national prosecutions as important players in the fight against impunity. Preliminary examinations additionally serve the goal of ‘ending impunity’, as noted by the ICC Office of the Prosecutor, because they too ‘encourag[e] genuine national proceedings’.4 Complementarity pushes the antiimpunity norm, and criminal prosecutions as the best practice to further this norm, into national contexts.5 The ICC Office of the Prosecutor’s Policy Paper on Case Selection affirms: In relation to cases not selected for investigation or prosecution, it should be recalled that the goal of the Statute to combat impunity and prevent the recurrence of violence, as expressed in its preamble, is to be achieved by combining the activities of the Court and national jurisdictions within a complementary system of criminal 3 See for instance in scholarly discussion Mark Kersten, Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace (OUP 2016) 20–21 (hereafter Kersten, Justice in Conflict) (‘Ending impunity is the primary aim of international criminal justice and is regularly invoked as a necessary ingredient in the establishment and maintenance of peace’ and ‘[e]nding impunity goes to the heart of the ICC’s mandate’); Max Pensky, ‘Amnesty on Trial: Impunity, Accountability, and the Norms of International Law’ (2008) 1 Ethics & Global Politics 1, 12 (noting that ‘[t]he anti-impunity norm takes center stage as the [ICC’s] core “mission statement” ’) (hereafter Pensky, ‘Amnesty on Trial’); Christine EJ Schwöbel-Patel, ‘The Market and Marketing Culture of International Criminal Law’ in C Schwöbel (ed), Critical Approaches to International Criminal Law (Routledge, 2014) 2, available at SSRN: (‘The branding of ICL is one of a discipline fighting impunity, a beacon of global justice, the heroic few internationalists who dare to fight big power-players’.). 4 ICC Office of the Prosecutor, ‘Policy Paper on Preliminary Examinations’ (November 2013) accessed 18 August 2017, para 93; See also ibid, para 100 (discussing the goal of ‘ending impunity through positive complementarity’); See also William Burke-White, ‘Implementing a Policy of Positive Complementarity in the Rome System of Justice’ (2008) 19 Criminal Law Forum 59, 62 (‘the overall goal of the Rome Statute—ending impunity—may be best achieved through . . . encouragement of national prosecutions’). 5 See e.g., ICC Office of the Prosecutor, ‘Policy Paper on Sexual and Gender-Based Crimes’ (June 2014) accessed 18 August 2017, para 7 (‘In an effort to close the impunity gap, it is therefore crucial that States comply with their primary responsibility to investigate and prosecute serious international crimes effectively, including sexual and gender-based crimes’.).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Impunities 241 justice. As such, the Office will continue to encourage genuine national proceedings by relevant States with jurisdiction.6

In sum: regardless of the jurisdictional level they occupy, courtrooms, trials, and jailhouses have become centralized as indispensable in the protection of human rights because they fight impunity.7 What is more, as Mark Kersten notes, conventional wisdom now perceives accountability as promoting peace, while impunity is taken as a threat to peace.8 My ambitions for this chapter are modest. Principally, I hope to trigger a conversation about impunity. My starting point is to look at how international criminal courts and tribunals understand and deploy the term. Interestingly, the term ‘impunity’ appears infrequently in the enabling instruments—the actual body of rules and laws—of contemporary international criminal courts and tribunals. The term, however, more commonly populates the discourse of representatives of these institutional actors, as well as the discourse of global civil society and other agents who support their work.9 The term ‘impunity’ is a touchstone in the way these courts and tribunals present themselves to the rest of the world, for example, through their press releases, that are the representational practices that this chapter focuses on.10 This chapter’s findings are preliminary and impressionistic. They are not intended to be causal. Riffing off my crude discourse analysis of the press releases, however, I feel confident enough to make two observations. First, it is unclear whether the representational practices of international criminal courts and tribunals evidence a rigorous understanding of impunity and any ability 6 ICC Office of the Prosecutor, ‘Policy Paper on Case Selection and Prioritization’ (September 2016) accessed 18 August 2017, para 7. 7 cf Martti Koskenniemi, ‘Between Impunity and Show Trials’ (2002) 6 Max Planck Yearbook of United Nations Law 1, 13 (‘The effort to end the “culture of impunity” emerges from an interpretation of the past—the Cold War in particular—as an unacceptably political approach to international crises’). See also ibid at 2 (‘[b]ringing Milosevic to The Hague has been celebrated as the most significant event in the international efforts to end the culture of impunity’). 8 Kersten, Justice in Conflict (n 3) 21; Karen Engle, ‘Anti-Impunity and the Turn to Criminal Law in Human Rights’ (2015) 100 Cornell L R 1069, 1071 (‘anti-impunity and its alignment with criminal pro secutions came to be uncontested within human rights so relatively quickly’). Engle ties the predilection for criminal law to neo-liberalism that, in turn, insulates itself from challenge by the criminal law. 9 Fighting impunity is also a frequently repeated adage of global civil society, of the NGO community, and of human rights activists. For important touchstones in the development of the anti-impunity norm, see Louis Joinet, ‘The Administration of Justice and the Human Rights of Detainees: Questions of the Impunity of Perpetrators of Human Rights Violations (Civil and Political)’ (1997) UN Doc E/CN.4/ Sub.2/1997/20/Rev.1; Diane Orentlicher, ‘Promotion and Protection of Human Rights: Impunity’ (2008) UN Doc E/CN/4/2004/88. 10 I focus on these two institutions principally for interests of manageability of the available information (there are 2,961 references to impunity that emerge from a search I conducted of the ICC website alone). A more comprehensive and scientifically rigorous extension of this project in a deeper iteration would require a detailed review and coding of all accessible documents of the ICC and the ad hoc tribunals. Such an analysis lies beyond the remit and scope of this chapter.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

242 Mark A. Drumbl to measure it. The frequency of reference to and invocation of the term ‘impunity’ belie the term’s undertheorized nature. These references exude a sense of superficiality, gauziness, and vapidity. References to impunity in the discursive practices of international criminal courts and tribunals therefore recall the deployment of other buzzwords, such as ‘reconciliation’ and ‘peace’, that also seem widely used, poorly understood, and thinly grounded. Second, poena has been instrumentalized in a political, bureaucratic, and ideological sense. International criminal courts and tribunals have largely equated punishment with the kind of punishment that they can deliver, namely, incarceration. Hence, impunity tends to become associated with an absence of criminal prosecution and, in the case of persons found guilty, resultant jail time. This may seem understandable, to be sure, and perhaps even self-evident, but this move carries with it important architectural, operational, and associational effects. This move means that impunity arises when there is a lack of working courtrooms and jailhouses. The presence of working courtrooms and jailhouses, on the other hand, indicates that progress is being made in the battle against impunity. If courts—rather than individuals such as Montresor—mete out punishment, and if they to do so following a properly (and publicly) conducted criminal trial, then no new impunity would arise on the part of the punisher because the punishment becomes just and legitimate. Hence, the fight against impunity requires trials, judges, courts, and jails. The preferred way to combat impunity is to build more courtrooms and jailhouses, or work the ones that we already have even harder and better. This is not to say that representatives of international criminal courts and tribunals refuse to acknowledge other modalities of accountability and justice. Rather, they envision these other modalities as lower in preference on an ordinal hierarchy and as incapable of appropriately inflicting poena, that is reserved for the courtroom and jailhouse. The fight for human rights is to be waged through the criminal law. Part II herein surveys how the term impunity is deployed in the enabling instruments of international criminal courts and tribunals and also in their press releases. Part III identifies a challenge to the quest to combat impunity through international criminal courts and tribunals, that is, the reality that it is still more accurate to talk about impunities than impunity. Reducing impunity for one side in a conflict may mean overlooking the abuses inflicted by the other side. Although selectivity remains among law’s foibles, the foible of selectivity paradoxically may be necessary in order for an international criminal court or tribunal actually to prosecute anyone. While not hearkening back to Montresor, in such instances punishment may become unjust because of its partiality. Part IV posits that axiomatically associating the fight against impunity with the épanouissement of international criminal courts and tribunals draws attention away from the many other ways in which atrocity perpetrators and human rights abusers could be ‘punished’. One way to engage these possibilities, and break the tautology, is to revisit the basics and reimagine a broader understanding of poena, and hence the fight against impunity, that unmoors punishment from the iconic preference for jailhouses.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Impunities 243 This part proposes a broader conceptualization of poena that includes recrimination, shame, reparations, harmful consequences, and sanction and discusses a number of examples thereof. Part V concludes with a fable.

II. Impunity in Text and Discourse How is ‘impunity’ deployed in the enabling instruments, public inflections, and press releases of international criminal courts and tribunals?

A. Enabling Instruments Intriguingly, the word impunity appears only once in the Rome Statute, whose preamble highlights the establishment of the ICC as indicating the determination of states parties to ‘put an end to impunity for the perpetrators’ of international crimes so as to contribute to their prevention.11 In many public pronouncements, however, ICC Chief Prosecutor Fatou Bensouda and her predecessor Luis Moreno-Ocampo routinely build upon this sparseness by underscoring how impunity threatens stability and how the ICC, by eroding impunity, thereby serves to promote peace.12 MorenoOcampo, for example, had forcefully argued that: [The Rome Statute] ensures that the law will guarantee lasting peace, and that impunity for the worst perpetrators is no longer an option. . . . We are building a global criminal justice system to prevent atrocities and end impunity for the most serious crimes. The Prosecutor’s duty is to apply the law without bowing to political considerations, and I will not adjust my practices to political considerations.13

In the Lubanga trial, moreover, he closed the prosecution’s opening statement by reminding the judges that the ICC’s goal is to ‘end impunity and contribute to the prevention of future crimes. . . . If convicted, Thomas Lubanga’s sentence will send a clear message: The era of impunity is ending’.14

11 See Rome Statute of the International Criminal Court Preamble (1998) UN Doc. A/CONF. 183/9, para 5 (‘Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’). 12 See e.g., Kersten, Justice in Conflict (n 3) 21 (citing Chief Prosecutor Bensouda as declaring to the United Nations Security Council in the Darfur situation that ‘as long as [indictees] enjoy impunity for the crimes they commit, they will continue to represent a threat to international peace and security’). 13 Luis Moreno-Ocampo, ‘The International Criminal Court: Seeking Global Justice’ (2007–2008) 40:1 Case Western Reserve J of Intl L220, 224. 14 The Prosecutor v. Thomas Lubanga Dyilo (Opening Statement) ICC-01/04–01/06 (2012) 30.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

244 Mark A. Drumbl In the Bemba sentencing judgment, delivered in June 2016, an ICC Trial Chamber directly referenced the anti-impunity language in the ICC preamble to support the finding that retribution and deterrence are the primary objectives of punishment.15 Public references to impunity are routine among ICC officials. Anecdotally, as I was drafting this chapter, I checked on the website of the ICC, only to be struck with one lead item being a report on Chief Prosecutor Bensouda’s visit to Ghana in which the headline quoted her as imploring that ‘we must continue to work together to combat impunity’.16 Another lead item was Chief Prosecutor Bensouda’s report to the UN Security Council regarding Darfur in which she emphasized that ‘[t]ackling impunity and pursuing justice for atrocity crimes in Darfur is the task that this Council mandated to my Office’.17 The word impunity does not make any appearance in the statutes of the ICTR or ICTY; or in the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Republic of Kampuchea (ECCC); or in the Statute of the Special Tribunal for Lebanon (STL). Security Council Resolution 1966 (2010) establishing the International Residual Mechanism for Criminal Tribunals (MICT), however, contains the following prefatory language: Reaffirming its determination to combat impunity for those responsible for serious violations of international humanitarian law and the necessity that all persons indicted by the ICTY and ICTR are brought to justice.18

The term impunity absents itself from Security Council Resolution 955 that initially established the ICTR in 1994 and Security Council Resolution 827 that did the same for the ICTY in 1993. While the term impunity does not appear in the Statute of the Special Court for Sierra Leone (SCSL), it does arise in the preambular language to the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone.19 No mention is made of impunity in the Special Court Agreement (2002) Ratification Act, the initiative of Sierra Leone’s Parliament to enact the Special Court Agreement domestically. Finally, the term is absent from Security Council Resolution 1757 (2007) that established the Special Tribunal for Lebanon under Chapter VII of the UN Charter. 15 The Prosecutor v. Jean-Pierre Bemba Gombo (Decision on Sentence Pursuant to Article 76 of the Statute) ICC-01/05–01/08 (2016) para 10. 16 ICC, ‘The Prosecutor of International Criminal Court, Fatou Bensouda, visits Ghana’ (Press Release, 26 May 2017) accessed 10 June 2017. 17 ICC, ‘Statement before the United Nations Security Council on the situation in Darfur, pursuant to UNSCR 1593 (2005)’ (Press Release, 8 June 2017) accessed 10 June 2017. 18 United Nations Security Council (22 December 2010) S/RES/1966. 19 ‘WHEREAS the Security Council, in its resolution 1315 (2000) of 14 August 2000, expressed deep concern at the very serious crimes committed within the territory of Sierra Leone against the people of Sierra Leone and United Nations and associated personnel and at the prevailing situation of impunity’.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Impunities 245

B. A Sampling of Press Releases and Public Statements As already alluded to in the case of the ICC, ‘impunity’ routinely pops up in the press releases of international criminal courts and tribunals and dots the public statements and policy papers of tribunal officials. Why press releases? On the one hand, assuredly, press releases are simplistic and by necessity perfunctory. They are not drafted for nuance. On the other hand, they constitute a major way in which international criminal courts and tribunals present themselves to the public, perform outreach, and explain their work product to the world. It is for this reason that I determined them to be a worthy primary source to capture—albeit in my case not scientifically—how international criminal courts and tribunals understand impunity, conceptualize punishment, and envision themselves as fighting impunity for atrocities. I also consider public statements by officials. While these press releases gesture towards a multiplicity of modalities (alternative remedies, traditional justice, economic sanctions) and institutional actors that can help fight impunity,20 as a whole they also reveal the central, and I would argue primary, place of courtrooms and jailhouses in the imposition of punishment and, therefore, in the fight against impunity. The duty is to prosecute and, in the case of a guilty verdict, to incarcerate. This duty, to be sure, can be accompanied with a range of other accountability mechanisms, and be complemented by these other mechanisms, but there is no true substitute for prosecution, which has emerged as a first-best remedy.21 This view in turn reflects a normative preference for individuated responsibility and judicially authenticated truths. The courtroom and jailhouse are seen as indispensable. At the ICC, references to impunity arise in standardized language that appears in press releases and ‘ICC at a glance’ or ‘Understanding the ICC’ public outreach documents, and that global civil society actors have recirculated in their own documents that describe the ICC’s work: ‘The ICC is the first permanent, treaty-based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community, namely war crimes, crimes against

20 See e.g., ‘The Council intends to continue forcefully to fight impunity with appropriate means and draws attention to the full range of justice and reconciliation mechanisms to be considered, including national, international and “mixed” criminal courts and tribunals, and as truth and reconciliation commissions,’ Statement of the President of the Security Council, 22 June 2006, cited in ICC, ‘Policy Paper on the Interests of Justice’ (September 2007) accessed 18 August 2016, fn 5. 21 ICC, ‘Policy Paper on the Interests of Justice’ (n 20) para 6(a) (OTP ‘fully endorses the complementary role that can be played by domestic prosecutions, truth seeking, reparations programs, institutional reform and traditional justice mechanisms in the pursuit of broader justice. The Office notes the valuable role such measures may play in dealing with large numbers of offenders and in addressing the impunity gap’ but also noting the presumption in favour of investigation or prosecution).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

246 Mark A. Drumbl humanity and genocide’.22 The tendency is not to discuss, unwrap, or methodologically assess impunity. Invocations of impunity thereby come with a pro forma and perfunctory flavour; aired in conclusory cadence and as aphoristically self-evident.23 Upon receipt of the report from the UN Security Council’s Commission of Inquiry into Darfur, for example, the OTP referenced impunity as follows: To protect life, the international community has joined together to end impunity in Darfur. . . . Now, we have a common task—to end the culture of impunity. As the Prosecutor, my duty in this common task is to investigate the crimes and to respect the interests of the victims. . . . I have an additional duty: to assess national proceedings. The Sudanese authorities report they have begun investigations. This could be very important. I will carefully and independently assess these proceedings. I will closely monitor ongoing crimes in Darfur as well as efforts to prevent and stop them. We all have a common task: to protect life in Darfur, ending the culture of impunity.24

Sudan, it was subsequently affirmed, has the legal obligation to implement arrest warrants and President al-Bashir was castigated for ‘taking advantage of his position of power to continue with his strategy and to ensure his own impunity and the impunity of those who follow his instructions’.25 The refusal by states (South Africa, Djibouti, Uganda) to arrest al-Bashir, moreover, further permits this impunity to fester.

22 See e.g., ICC, ‘International Criminal Court Opens its Doors to More Than 750 Visitors on Hague International Day’ (Press Release, 22 September 2014) accessed 18 August 2016; See also ICC, ‘The ICC at a Glance’ (2016) accessed 14 August 2017; and ICC Registry, ‘Understanding the International Criminal Court’ accessed 14 August 2017. 23 See e.g., ICC, ‘Press Conference by the President of the Assembly of States Parties’ (Press Release, 19 May 2010) (‘In general, [the review conference] will be a unique opportunity for States to reflect on the achievements of the Court in the stocktaking of four topics: complementarity, cooperation, impact of the Rome Statute on victims and affected communities, and peace and justice. Additionally, States will be able to reaffirm their commitments to combat impunity for the most serious crimes of concern to inter national community’.). 24 See ICC Office of the Prosecutor, ‘Prosecutor receives list prepared by Commission of Inquiry on Darfur’ (5 April 2005) accessed 18 August 2016. 25 See ICC, ‘ICC Prosecutor’s Statement to the United Nations Security Council on the Situation in Darfur UNSCR 1593 (2005)’ (Press Release, 5 June 2012) accessed 18 August 2016; cf ICC, ‘President of the Assembly and ICC Prosecutor Speak at a High-Level Conference in Arusha (Press Release, 1 March 2013) accessed 18 August 2016 (quoting the President of the Assembly of States Parties, Ambassador Tiina Intelmann: ‘When we speak of the fight against impunity, we think first of all of the perpetrators of crimes who are brought to justice. But, at the same time, we must think of the victims of these atrocities’).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Impunities 247 Chief Prosecutor Bensouda advances judicial institutions as promoting stability and reconciliation in the aftermath of a conflict.26 The ICC, she says, is ‘being called upon, again and again, to fulfill the promise made to victims in Rome, that there should be an end to impunity and that future crimes should be prevented’.27 To commemorate the Day of International Criminal Justice in 2015, Prosecutor Bensouda emphasized: [W]e must not deviate from our essential goal: to fight against impunity for the most heinous crimes, and to give a voice to the victims. To this end, at the Office of the Prosecutor, we continue to uphold our obligations in accordance with the Rome Statute to independently and impartiality [sic] investigate and prosecute those most responsible for atrocity crimes.28

Much like the ICC, the International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for the Former Yugoslavia (ICTY) press releases include the word impunity without any further elaboration.29 Adama Dieng, Registrar for the ICTR, released a statement when six convicted criminals, including the former Prime Minister of Rwanda, were sent to prison in Mali: ‘Let the world take notice that impunity increasingly will not go unpunished. The entrance of these six convicts through the prison gates of Bamako has reaffirmed the gradual swing of the pendulum from a culture of impunity to a culture of accountability’.30 This statement aligns with the general sentiment that ending impunity is to be achieved through formal criminal adjudication. A former President of the ICTY, Patrick Robinson, explained that each individual facing the judicial process, arrest, and conviction, ‘remov[ed] yet another brick from the wall of impunity’.31 Former ICTY judge Gabrielle Kirk McDonald, speaking at the Council on Foreign Relations in New York, linked criminal tribunals to human rights enforcement, specifying that ‘these rights have for the most part been ignored. Thus, a cycle of impunity with devastating results has evolved which, I submit, can only be ended by the application of the rule of law, by holding individuals accountable for 26 See ICC, ‘ICC Leaders on Peace and Gender Justice at Human Rights Conference in Turkey’ (Press Release, 23 May 2013) accessed 18 August 2016. 27 ibid. 28 See ICC, ‘To commemorate the Day of International Criminal Justice, the President of the Assembly Convenes a Regional Discussion in Dakar on State Sovereignty and International Criminal Justice’ (Press Release, 22 July 2015) accessed 18 August 2016. 29 A search I conducted of the ICTY website for ‘impunity’ yielded 1,920 hits; the same search on the UNMICT website (legacy website for the ICTR) triggered 100 hits. 30 See ICTR, ‘Former Prime Minister and Five Other Convicts Sent to Prison in Mali’ (Press Release, 11 December 2001) accessed 20 August 2017; This statement is somewhat awkward. It is not impunity that is to be punished, rather, acts of atrocity are to be punished. And when these acts are punished, the perpetrators no longer can be said to ‘benefit’ from impunity. That said, this awkward usage of the term impunity indicates the ‘buzzword’ nature of the term—even when used incorrectly, we all have a sense of what is meant (or intended) in the first place. 31 See ICTY, ‘President Robinson’s Address Before the United Nations General Assembly’ (Press Release, 11 November 2011) accessed 20 August 2017.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

248 Mark A. Drumbl their illegal acts’.32 One important theme at the ICTY, which is closing, is the facilitation of national prosecutions and penal investigations in order to close any residual ‘impunity gap’. The ICTR has made available a four minute video clip entitled ‘20 Years Challenging Impunity’, narrated by actor Clarke Peters, known for his roles in acclaimed TV series The Wire and Treme, which ‘is a tribute to international criminal justice, and a call for it to become a standard for all, everywhere’.33 One press release (from the ICTR) is illu minating in that it concerns the Fifth Colloquium of Prosecutors of ICTR, ICTY, SCSL, ECCC, ICC, and STL: After reiterating their common concern on the fight against impunity in respect of law, respect of human rights and evaluation of the necessary environment for the maintenance of peace and stability, the Prosecutors call upon the states: ■ To ensure that their Legal systems and other regional Legal arrangements to which they are party have the jurisdiction and the capacity to effectively prosecute international crimes or to extradite suspects of such crimes; ■ To provide full cooperation to all the International Criminal Tribunal [sic] and to execute all requests and orders for assistance from the Tribunals including the arrest of all fugitives indicted by them; ■ To seriously consider the adoption of a convention on the Suppression and Punishment of Crimes against Humanity; ■ That have not yet done so, to become party to the Rome Statute of the International Criminal Court (ICC) and cooperate fully with the court in the execution of its mandate.34

This joint statement does not explicitly exclude, or disclaim, modalities such as apologies, amends, reparations, or informal proceedings from the fight against impunity. But it links punishment to criminal prosecutions, and criminal prosecutions to the fight against impunity, and does so in a preferential manner. A search of the website of the Residual Special Court for Sierra Leone and the SCSL for the term ‘impunity’ triggers 800 separate hits (including many newspaper articles collated as press clippings). Some internal documents actively contemplate the intersection between penal proceedings and other modalities of accountability, in this specific case the Sierra Leone Truth and Reconciliation Commission. At the SCSL, combating impunity is seen as driven by criminal proceedings and also as capable of 32 See ICTY ‘The International Criminal Tribunal for the Former Yugoslavia: Making a Difference or Making Excuses?’ (13 May 1999) accessed 20 August 2017. 33 See ICTR, ‘20 Years Challenging Impunity—UN-ICTR Launches Legacy Website and Tribute Video’ (Press Release, 6 November 2014) accessed 18 August 2017. 34 See ICTR, ‘Prosecutors of International Criminal Tribunals Call for Full Cooperation’ (Press Release, 16 November 2009) accessed 20 August 2017.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Impunities 249 involving other mechanisms.35 This greater nuance may well arise from the reality that the SCSL had to navigate a complex relationship with the Sierra Leone Truth and Reconciliation Commission. The STL’s invocation of impunity typifies the pro forma approach. One example, from a press release about an STL prosecutor’s visit to the Lebanese Ministry of Foreign Affairs, underscored the STL’s ‘firm commitment and the commitment of the Tribunal to deliver on the mandate entrusted to them by the Lebanese people, first and foremost, and by the international community, to ensure accountability for the crimes under its jurisdiction and help Lebanon to put an end to impunity’.36 Judge Ralph Riachi, the STL’s Vice-President, remarks: [T]he [STL] is the first international criminal tribunal in the Middle East to try persons responsible for crimes described by the Security Council as terrorism committed in an Arab country. This significant move had enabled this area of the world to join the club of international criminal law, which aims to promote a policy of no impunity for the most serious crimes.37

The Third and Fourth of the STL’s Annual Reports refer to the STL’s mission as inter alia being to end impunity. The Third Annual Report addresses the balance between rule of law and due process: [T]he role of the Special Tribunal is to contribute to challenging impunity. This responsibility reaches beyond the proper adjudication of the matters squarely before us: by bringing accused persons to justice and adhering to the presumption of innocence, the STL shows that these are essential steps in consigning violence to the past and resolving political battles through lawful means instead of force.38 35 See SCSL, ‘TRC Chairman and Special Court Prosecutor Join Hands to Fight Impunity’ (Press Release, 10 December 2002) accessed 20 August 2017. 36 See STL, ‘Prosecutor Daniel A. Bellemare Meets Foreign Affairs Minister Ali Al-Shami’ (Press Release, 5 December 2009) accessed 21 October 2019; See also STL, ‘Statement by Daniel A Bellemare, Prosecutor of the STL, to the People of Lebanon’ (Press Release, 20 February 2012) accessed 21 October 2019 (‘During my tenure, I often felt that the fight against impunity would be a long and difficult journey. Nonetheless, I continued to be passionate about the mission and about Lebanon. The people of Lebanon deserve no less. They deserve a society free of impunity, a society based on a culture of accountability. It is encouraging to see that this legitimate desire for justice and accountability is not gaining greater momentum. Today our fight against impunity is shared even more broadly’). 37 Judge Ralph Riachi, ‘The Special Tribunal for Lebanon and International Criminal Law: Contradictory or Complementary?’ (Lecture, 21 May 2013) para 34 accessed 18 August 2016. 38 See STL, ‘Third Annual Report 2011–2012’ (7 March 2012), release available at https://www.stltsl.org/en/media/press-releases/1438-media-advisory-tribunal-publishes-its-third-annual-report and report on file with the author; For the UN perspective on the STL see STL, ‘Meeting between the Secretary-General of the UN and the Head of the STL Defence Office’ (Press Release, 30 May 2014)

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

250 Mark A. Drumbl The STL obviously is sensitive to the fact that its trials may proceed in absentia. Prosecutor Norman Farrell, for example, affirmed in media reports that he regretted having to conduct a trial without the defendants in the Court, but then added: ‘Though it is not complete justice or final justice, in the sense that the accused are not present, it is a form of justice,’ that, moreover, would hopefully ‘contribute to the desire at least to move towards the end of impunity’.39 Among the more intriguing of the STL’s public documents is a wide-ranging published interview with defence counsel François Roux. Commenting on the existence of a permanent defence office at the STL, that Roux heads and that is unusual among the international criminal tribunals, Roux adds: At first sight, it might seem contradictory to have the will to fight impunity whilst defending the alleged perpetrators. However, the prosecutor fights impunity, the judge must judge impartially, and the defense lawyer has to defend the rights of the accused. The judges are not on a crusade against impunity [. . .] I have become a defense lawyer because I believe in the specific role of the defense lawyer in the service of justice.40

Montresor may have been on a crusade, and in charge of that crusade, but this is not the STL’s destiny. A search of the ECCC’s website reveals only sporadic deployment of the term impun ity. UN Secretary-General Ban Ki-Moon, affirming that since his ‘first day in office, [he] made the fight against impunity a top UN priority,’ remarked that putting the Khmer Rouge leadership on trial, ‘even 30 years after, is itself a powerful message . . . [a] message that impunity will not be tolerated . . . neither by the people of Cambodia and their government, nor by the United Nations and the international community’.41 In remarks made at the start of a pledging conference for the ECCC, Secretary-General Ban Ki-Moon noted that ‘[t]he Extraordinary Chambers in the Courts of Cambodia were established to bring justice to the people of Cambodia, and to prevent impunity for the

accessed 18 August 2016 (‘The Secretary-General highlighted the importance of the work of the Special Tribunal in tackling impunity for the crimes within its jurisdiction’). 39 Somini Sengupta, ‘Mideast Strife Turns Trial on Beirut Assassination Into Another Fault Line’, New York Times (New York, 14 January 2014) A9. 40 STL, ‘Interview: François Roux, Head of Defence Office of the Special Tribunal for Lebanon and Former Lawyer at the Khmer Rouge Tribunal—Peace Palace Library’ (3 May 2013) accessed 18 August 2016. 41 United Nations Assistance to the Khmer Rouge Trials, ‘The UN Secretary-General’s Remarks at Extraordinary Chambers in the Courts of Cambodia’ (27 October 2010) accessed 18 August 2016 (adding also, and referring directly to the staff at the ECCC, that ‘Your work is vital in the world’s fight against impunity’).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Impunities 251 most heinous of crimes’.42 He further emphasized that ‘no-one is above the law. This is a fundamental principle in the world’s fight against impunity, and it is encouraging indeed to see it in action today in Cambodia’.43 With the ECCC facing budget difficulties, he requested the authorization of subvention funds for the Court to keep it solvent. In his remarks exhorting the donation of these funds, Secretary-General Ban Ki-Moon indicated a ‘financial failure of the Court would be a tragedy for the people of Cambodia, who have waited a long time for justice, and would constitute a serious setback to the international community’s fight against impunity’.44 In a 2014 joint statement by the Cambodian government and the UN High-Level Delegation Regarding the ECCC, cooperation was pledged and a commitment was reaffirmed ‘to ending impunity for the atrocities of the former Khmer Rouge regime’.45 Noting specifically the 12,000 Cambodian citizens who had (at that time) attended court proceedings, another official joint statement (from 2009) recognized the importance of establishing an independent counsellor at the ECCC to ‘progress toward addressing impunity for the crimes of the former Khmer Rouge regime’.46 Ambassador Penny Richards of Australia, following the confirmation of a $2 million (AUD) donation to the ECCC, noted ‘that the ECCC ha[d] made significant strides in ending impunity for grave mass crimes committed by the Khmer Rouge, achieving some measure of justice for their victims, and contributing to national reconciliation’.47 42 See ECCC, ‘Extraordinary Chambers of the Courts in Cambodia, UN Secretary-General’s Remarks to Pledging Conference for the Extraordinary Chambers in the Courts of Cambodia’ (Press Release, 26 May 2010) accessed 18 August 2016. 43 ibid. 44 See ECCC, ‘UN General Assembly Approves US$ 15.5 million funding reserve’ (Press Release, 23 May 2014) accessed 18 August 2016. 45 United Nations Assistance to the Khmer Rouge Trials |(UNAKRT), ‘Joint Statement by the Royal Government of Cambodia and the United Nations High-Level Delegation Regarding the Extraordinary Chambers in the Courts of Cambodia (28 January 2013) accessed 18 August 2016. 46 UN, ‘Joint Statement on Establishment of Independent Counsellor at the Extraordinary Chambers in the Courts of Cambodia’ (Press Release, 12 August 2009) accessed 18 August 2016; See also UNAKRT, ‘Joint Statement on Case 002/01 Judgement’ (Press Release, 7 August 2014) accessed 18 August 2016 (‘The Royal Government of Cambodia and the United nations Secretary-General have repeatedly emphasized that there must be no impunity for the most serious international crimes’); UNAKRT, ‘Statement from Assistant Secretary-General Peter Taksoe-Jensen on Anti-Corruption Measures at ECCC’ (Press Release, 8 April 2009) accessed 18 August 2016 (‘I welcome the significant progress made in the first trial before the ECCC, which is an important step towards addressing impunity for the crimes of the former Khmer Rouge regime. The United Nations continues to be convinced that the Court will meet the principle of fair trial’.). 47 ECCC, ‘Australia Confirms Donation of AUD 2Million’ (Press Release, 3 June 2011) accessed 18 August 2016.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

252 Mark A. Drumbl

C. Punishment, Peace, and Transition The representational practices of international criminal courts and tribunals reveal two important assumptions: namely, that impunity threatens stability and that reducing impunity promotes peace. The linkages between chipping away at impunity and promoting peace, however, are in actuality considerably more complex and, according to Kersten, ‘remain unclear’.48 Noting how Spain’s transition towards peace from abusive autocracy was attained without any criminal prosecutions (in fact, these were actively dissuaded or disclaimed), Kersten remarks that ‘it is difficult to conclude that impunity itself has undermined peace and stability’.49 Arguments that justice in the form of criminal prosecutions may nevertheless imperil peace have largely been eschewed by international lawyers and human rights activists. As Kersten adroitly observes, ‘the peace-justice debate is primarily about how, when and at what cost to end impunity’.50 The fight against impunity as presently constituted also stigmatizes amnesties, including qualified amnesties, as threats to peace and security rather than bargaining chips for peace and security.51 Max Pensky astutely notes how ‘domestic amnesties for inter national crimes became the poster child for the most egregious forms of impunity’.52 Linkages between amnesties and impunidad, for example, have animated many reactions to the peace settlement process in Colombia. In Latin America, laws that reference amnesties and pardons, for example, have been dismissively stigmatized as ‘impunity laws’.53 Indeed, according to Pensky, ‘the anti-impunity norm itself is based on a narrowly retributivist conception of criminal justice’.54 The discursive practices of international criminal courts and tribunals tether punishment to criminal prosecutions and incarceration. This means that the fight against impunity is principally to be led by criminal courts and tribunals, operating internation ally, and also nationally by dint of positive complementarity. In this regard, then, these

48 Kersten, Justice in Conflict (n 3) 21; cf David Rieff, In Praise of Forgetting: Historical Memory and its Ironies (Yale UP, 2016) 66–7, 91–92 (Rieff warns that the deployment of collective historical memory has ‘far too often . . . led to war rather than peace, to rancor and ressentiment . . . rather than reconciliation, and to the determination to exact revenge’) (hereafter Rieff, In Praise of Forgetting); ibid 39 (also arguing overall that historical memory should be seen as a moral option rather than a moral imperative). 49 Kersten, Justice in Conflict (n 3) 22. 50 Kersten, Justice in Conflict (n 3) 22; cf Rieff, In Praise of Forgetting (n 48) 90. 51 Pensky, ‘Amnesty on Trial’ (n 3) 1 (‘An emerging consensus regards domestic amnesties for inter national crimes as generally inconsistent with international law. This legal consensus rests on a norm against impunity: the chief role of international criminal law . . . is to end impunity for violators of the worst of criminal acts’.); ICC, ‘Policy Paper on the Interests of Justice’ (n 20) fn 5. 52 Pensky, ‘Amnesty on Trial’ (n 3) 6 (noting also at 6–7: ‘Now saddled with a less-than-descriptive name, Amnesty International became the first influential human rights NGO to articulate an anti-amnesty position favoring domestic and/or international prosecution as the preferred mechanisms for addressing past atrocities in post-conflict states. . .’). 53 Kai Ambos, ‘Impunity and International Criminal Law: A Case Study on Colombia, Peru, Bolivia, Chile and Argentina’ (1997) 18:1–4 Human Rights L J 1, 2, 5. 54 Pensky, ‘Amnesty on Trial’ (n 3) 1.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Impunities 253 discursive practices as circulated by practitioners evidence a conventional, though narrow, understanding of what punishment actually means.

III. Impunity and Selectivity While selective justice may be required to fight impunity, selective justice simultan eously thwarts the purity of the anti-impunity norm. The International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East present one instantiation of selective justice, to wit, that of victor’s justice. While prosecuting German and Japanese acts of aggressive war and crimes against humanity, Allied acts such as the Dresden bombing and the deployment of atomic weaponry were left unaddressed. The very definition of crimes against humanity, which at the time required a nexus with the party who had initiated the aggressive war, oozed with selectivity. Modern international criminal law, to be sure, has unmoored crimes against humanity from the requirement of having committed an anterior act of aggression. Modern inter national criminal law, moreover, has done much to investigate all sides to a conflict: this has been central to the work of the ICTY and the SCSL. But victor’s justice still infuses the operation of putatively neutral international courts and tribunals. Battling impunity for one side’s abuses may be contingent upon impunity for the abuses inflicted by the other side or another side however constellated. It is no wonder, then, that Thierry Cruvellier titled his powerful disquisition of the ICTR and the Rwandan genocide Le tribunal des vaincus: the court of losers, in this instance the UN and the international community. The Rwandan Patriotic Front (RPF) government was able to massage, manipulate, and direct the ICTR’s work such that no concrete investigation or prosecution of alleged RPF abuses would ever occur. And none did. The selectivity of justice in Rwanda, moreover, transcends the brass-knuckled politics of who is indicted. Selectivity can also arise expressively, in terms of the social construction of victimhood and history, and germinate within global civil society whose actors, in turn, may turn to political obsequiousness in order continue to garner access, funding, and prominence. Luc Reydams, in a controversially scathing piece of investigative research, unpacks how a small London-based start-up NGO, African Rights, moulded and propagated a narrative of the Rwanda genocide that, although certainly hewing to key facts, also overlooked other salient facts and thereby facilitated impunity for Paul Kagame and the RPF.55 Reydams argues, based on numerous interviews and a painstaking review of the evidentiary record: 55 Luc Reydams, ‘NGO Justice: African Rights as Pseudo-Prosecutor of the Rwandan Genocide’ (2016) 38:3 Human Rights Quarterly 547–88, Reydams argues that an early African Rights publication about the genocide, entitled ‘Death, Despair and Defiance,’ massaged facts to project a vision of the genocide as being well organized and facilitated by the international community’s abandonment of Rwanda. No mention is made, according to Reydams, of the RPF’s categorical rejection of any sort of humanitarian intervention.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

254 Mark A. Drumbl [T]hat African Rights was coopted in the first weeks of the genocide by the [RPF] . . . [and was] instrumental in shaping and spreading an easily consumable one-sided narrative of the Rwandan conflict and that the resulting pensée unique contributed to RPF impunity.56

This pensée unique, moreover, sculpted the historiography of the Rwandan genocide such ‘that it became politically unthinkable to hold the RPF accountable before an international jurisdiction’.57 In this regard, then, the shared officialized memory of the Rwanda genocide may, to invoke historian Jacques Le Goff ’s mordancy, ‘only seek to rescue the past in order to serve the present and the future’.58 So, too, is it with the ICC’s interventions in northern Uganda. These interventions redress some impunities (e.g. those of the Lord’s Resistance Army (LRA)), but allow others to fester (e.g. those of the Government of Uganda). When OTP sought arrest warrants in the situation in Northern Uganda in 2005, the language of combating impunity was vivid, and in turn electrified many human rights NGOs.59 This was the case despite the fact that Chief Prosecutor Moreno-Ocampo only pursued LRA members, and spoke of the arrest warrants at a press conference jointly with members of the Government of Uganda with whom the LRA was fighting and who were themselves implicated in massive human rights abuses throughout all of Acholiland. Still today, reporting on the one case in that situation to wend its way to the ICC—that of former child soldier Dominic Ongwen—global civil society persists in referencing how the proceedings against Ongwen ‘show progress in fight against impunity’.60 In addition to selective justice, there is also justice omitted. By individuating guilt among a handful, international criminal law may promote impunity for the actions or nonfeasance of the many, of bystanders and side-standers, of corporate entities, arms dealers, and foreign governments—actors whose small steps when aggregated serve as crucial conditions precedent to the metastasis of atrocity. In sum, then, it seems that impunity may need to be generated in order for impunity to be fought. We may not have travelled as far as we would hope from Montresor. When made possible because of victor’s justice or selective prisms, international criminal law may resonate with the eeriness in Poe’s The Cask of Amontillado. Montresor punishes because he feels he must, but also because he can. On a final, and forward-leaning, note: Is there not something profoundly liminal about ending impunity—when are we there? On arrive quand, exactement? How 56 ibid 547, Reydams identifies this factor as blending with the US government’s support of the RPF in explaining RPF impunity. For Reydams’ views regarding the effects of African Rights’ work product upon the ICTR’s prosecutorial strategy, see ibid 579–82, 586. Reydams notes how ICTR Chief Prosecutor Richard Goldstone refused to even ‘contemplate’ to indict RPF commanders, despite evidence of their crimes, ibid 586–7 (citing also the research of Filip Reyntjens). 57 ibid 588 (emphasis in original). 58 Cited in Rieff, In Praise of Forgetting (n 48) 22. 59 See e.g., Kersten, Justice in Conflict (n 3) 64–5. 60 Sarah Kasande, ‘Kwoyelo and Ongwen Trials Show Progress in Fight Against Impunity’, (International Center for Transitional Justice, 25 July 2016) accessed 18 August 2016.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Impunities 255 much criminal law would it take? Would the anti-impunity norm be satisfied only by punishment for jus cogens violations, or would it also need to include punishment for ordinary common crimes? What would a place without any impunity look like? Would we wish to live amid so much criminal law? Would it be a just place, or a repressive place; liberating or suffocating? These, too, are some of the reflections this chapter hopes to prompt. Perhaps these questions raise a further justification for a broader construction of the meaning of punishment, of poena. Without such an understanding, a place with no impunity—the place in which impunity has been successfully fought tooth and nail—would be a place of perpetual penalization. It would be a place with jails everywhere, many jailers, and so many prisoners.

IV. Reimaging Punishment Uncoupling our understanding of impunity from criminal law and thinking more broadly about the meaning of punishment opens up a broader vista. I propose a conceptualization of poena that includes recrimination, shame, consequence, and sanction. I believe it possible, and normatively desirable, to reimagine poena, and hence the fight against impunity, in a way that unmoors punishment from the iconic preference for jailhouses. Some of these alternate ways to punish are unsavoury: reprisal killings, which we have known throughout the ages, come to mind as do acts of vengeance and vigilantism. Forms of punishment other than incarceration might, however, be humanistic and transformative. A more capacious and creative approach might contemplate how appearing before a truth commission or a local reintegrative ceremony could constitute punishment. Or, perhaps, lustration, reparations, and citizenship sanctions can be seen as poena? In an even more innovative sense, informational transparency, public disclos ure, reclaiming of memory, and perhaps even forgetting might also be constructed as forms of punishment. Because some of these modalities are deeply personal, rooted in the idiosyncrasies of the perpetrator, they become unpredictable. Solzhenitsyn for example insisted that the torturers of the Soviet gulag suffer the most horrible of fates, that is, a downward departure from humanity: torture dehumanizes both the tortured and the torturer. Frederick Douglass maintained that owning slaves gradually soiled the character of the slave owner. Martin Luther King identified the greatest victims of segregation as white folks whose souls were deformed by the hate they harboured. How to speak of this deformation, exile, and taint when it occurs? Does the concept of poena offer a new perspective through which to conceive of these effects? The Act of Killing, a 2012 film by Joshua Oppenheimer, screens perpetrators of massive human rights abuses in Indonesia as they reenact the abuses they had committed during anti-Communist purges in the 1960s.61 The Act of Killing has been described as 61 It is estimated that between 500,000 and 3 million so-called ‘communists’ were murdered by paramilitary forces, who often recruited low-level street thugs, in the service of the Indonesian government

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

256 Mark A. Drumbl ‘an outlandish anthropology project’.62 The erstwhile perpetrators coordinate the scenes, the wardrobe, the content, and the script. They re-perpetrate and re-discover their identities. They dramatize and put to film their own acts of violence in the way they wish and want. The perpetrators cum actors are influenced by Hollywood—they deploy drag, dance, cowboy hats, impersonations (even as victims), and masquerade. By giving them the space to make a film about themselves, about how they see themselves as gangsters—‘free men,’ as they say—in the end the film they make about themselves makes them look rather villainous. Anwar Congo, the avuncular and natty main character, appears to come full circle as the film ends, retching uncontrollably on the rooftop where he had garroted so many victims some decades ago. Or perhaps he is just faking, pretending to be contrite for the camera. Or, perhaps, he is staging a Hollywood ending coded with redemption and acknowledgement. The Act of Killing succeeds in imposing some consequences through self-inflicted wounds, the consequence of embarrassment and the consequence of making audiences aware of what happened. One observer posits: The Act of Killing [is] a fiercely original experiment in documentary film-making that exposes the entrails of a brutal regime of impunity. The film’s diffusion throughout Indonesia is shaking the country’s bedrock of violence.63

Perhaps this is too fulsome a description. That said, the beginnings of accountability stir in the case of the Indonesian atrocities, most recently with the declaration by the International People’s Tribunal that crimes against humanity had been perpetrated in 1965 in Indonesia and that the US, UK, and Australia had been complicit therein. Following reunification in the early 1990s, the approach taken in Germany with Stasi (the abusive East German secret police) crimes and surveillance is illustrative of the power of transparency. A decision was taken to permit interested members of the public access to the Stasi files.64 The Stasi had recruited tens of thousands of ordinary citizens in their quest to monitor over one-third of the country’s population of 16 million. Ordinary citizens could suddenly learn about who was spied upon, who did the spying, who refused to spy, who was never spied upon, and whose spying resulted in the transmission of accurate or fanciful information.65 On this latter note, the opening of the files and supported by the west (in the throes of Cold War politics). The regime that coordinated this violence remains in power in Indonesia today. 62 Tanguy Chouard, ‘Anthropology: The Science of Impunity’ 503 Nature 340 (21 November 2013). 63 ibid. 64 Stasi officers tried to destroy their files after the Berlin Wall fell, but ordinary citizens stormed the Stasi offices in Erfurt to protect the documents. 65 In the German drama film The Lives of Others, a Stasi agent enamoured with the people he is spying on makes up information about how they love the state even though they are actually plotting against it. He thereby protects them.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Impunities 257 resulted in the public’s learning not only of betrayal and obsequiousness, but also of quiet acts of resistance, transgression, and tenderness among those approached to do the spying. Following their opening at the very start of 1992, nearly three million German citizens visited the archives containing their Stasi files.66 While the opening of the files certainly ran the risk of vigilantism, revenge, brusque lustration, and shaming— and did lead to suicide (in the case of parliamentarian Gerhard Riege)67—one observer posits that on a national level these risks proved to be more apparent than real.68 Instead, among the major outputs of the opening of the files were discussion, historical appreciation, assemblage of memory, and a search for a ‘truthful understanding of the past’.69 Relationships were ruptured and persons ostracized, to be sure; also dispelled, however, were many suspicions and doubts. Assessments of moral guilt were facilitated—adroitly and gauchely, publicly and privately—by the decision to open up these archives.70 In 2015, some documents in the files were made generally available to the public on a German government website. The website does not include any files on living individuals. In the aftermath of atrocity many survivors are keen to see their abusers criminally prosecuted. Other survivors, however, are keen on other forms of justice, either collat erally or in lieu of criminal prosecutions. One of the advantages of a broader construction of poena is that it might channel more in the way of the diversity of how survivors see themselves in the aftermath of the violence and what they actually wish for. This diversity might also better respect the agency of victims when it comes to reclaiming their memories and recollecting their own histories: what they choose to remember and how they elect to remember and, even, whether to remember at all. To deny victims that agency through command and control policies of official remembrance might compel victims to remember a certain way or to force them to remember in the first place and oblige those who do not wish to speak to speak. In addition to crimping the agency of victims, such official policies, which the criminal law actuates, neglects the power of forgetting. Journalist David Rieff evokes the Edict of Nantes, through which Henri IV ended wars of religion in France in 1598. This instrument would be seen as heresy amid today’s epistemic community of international criminal lawyers. The Edict

66 Arne Lichtenberg, ‘Germans Remember 20 Years’ Access to Stasi Archives’ Deutsche Welle (Bonn, 2 January 2012) accessed 18 August 2016. A larger number of applications to view were made, though not all of these were granted. 67 Stephen Kinzer, ‘Germans Anguish Over Police Files’ New York Times (New York, 19 February 1992). 68 Rachel Beattie, ‘The Poisoned Madeleine: Stasi Files as Evidence and History’ (2009) 1:3 Faculty of Information Quarterly accessed 18 August 2016. 69 ibid 3 of printout. 70 See generally Barbara Miller, The Stasi Files Unveiled: Guilt and Compliance in a Unified Germany (Transaction Publishing 2004).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

258 Mark A. Drumbl of Nantes forbade all Henri IV’s subjects, Catholics and Protestants, to remember.71 The Edict suspended, perhaps even erased memory, through its stipulation that: The memory of all things that took place on one side or the other from March 1585 . . . and in all of the preceding troubles, will remain extinguished, and treated as something that did not take place.72

The Edict suppressed the agency of victims who wanted to remember, name, blame, and claim. In this regard, it is the obverse of compelled participation in processes of recollection and authentication, such as criminal trials. But a crucial point remains: ‘forgetting’ the abuser is not always a testimonial to the lingering strength of the abuser but instead may defrock—perhaps even punish?—the abuser by revealing the abuser’s profound weaknesses.73 If among the purposes of criminal punishment is the rehabilitation of the perpetrator, to provide a space for penance and eventual reintegration, then perhaps a victim’s refusal to contribute to that process constitutes a form of punishment. Perhaps a victim that chooses not to participate in a process of organized reconciliation, and thereby refuses to accept an apology or to bestow forgiveness upon the abuser, is in effect punishing that abuser. What about recollecting glimpses of joy amid horror? Nobel Prize winner Imre Kertész’s Fatelessness is a gripping tale of György—a teenager—and his path into and beyond Auschwitz.74 Throughout, György sees the horrors as a child and, perhaps for this reason, holds on to them in their best light. He sees light when the horrors pause, or are suspended, even if only for a moment. György thereby inverts the suffering and limits the power of his abusers by making it clear that they could not reach him, or parts of him, and that they were, all things considered, more insignificant than significant. After liberation, back home in Budapest, György alights from his old house onto the street, under the setting sun, as ‘the fleecy clouds over the indigo hills were already turning purple and the sky, a shade of claret’.75 This ‘peculiar hour’ was György’s ‘favorite hour in the camp’. György concludes the book with the following breathtaking monologue:

71 Rieff, In Praise of Forgetting (n 48) 143. 72 Quoted in Rieff, In Praise of Forgetting (n 48) 143. Rieff challenges Santayana’s admonition that ‘those who forget the past are condemned to repeat it’. 73 Some victims with whom I have worked balk at the prospect of constantly having to revisit and retell the stories of their suffering and to shoehorn these stories into the lingo and tempo of criminal procedure and the rules of evidence. Some victims wish to forget the abuser and the abuses. These victims are not filled with trauma, or fear, or denial. Rather, they plead that the one thing the abuser may not have taken from them is the time that they still have left in this earthly life. And, from the perspective of the survivor, spoiling the time that one has left on the past, and soiling it with yesterday’s pain, simply fritters away the present and the future. Sonderkommando Abraham, a touch of a collaborator and also a resister in the lauded film ‘Son of Saul,’ puts it well as he chides Saul, zealous to secure a proper burial for a murdered boy, for ‘fail[ing] the living for the dead’. 74 Imre Kertész, Fatelessness (Tim Wilkinson tr, Vintage 2004). Kertész, born in 1929, was imprisoned in Buchenwald as a youth. He wrote Fatelessness in 1975. 75 ibid 261.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Impunities 259 For even there, next to the chimneys, in the intervals between the torments, there was something that resembled happiness. Everyone asks only about the hardships and the “atrocities,” whereas for me perhaps it is that experience which will remain the most memorable. Yes, the next time I am asked, I ought to speak about that, the happiness of the concentration camps. . . . If indeed I am asked. And provided I myself don’t forget.76

György transcends the Nazis—he triumphs by refusing to let them prevail and by contesting the straitjacket of his victimhood. He emancipates himself and his mind. His is an act of manumission. In this regard, György shames. He marginalizes. He mocks his abusers into insignificance. What about reparations? The Rome Statute indeed embraces reparative justice. In part, this embrace arises because punishment, although preferential, was not seen by treaty negotiators as totalizing. In other words, it was felt by treaty negotiators that victims wanted more. Reparations, however, were given the label ‘restorative justice’ instead of ‘retributive justice’. Reparations were contrasted with jail time, seen as something quite different than punishment, and shorn from the punitive aspect of the treaty framework. This differentiation is particularly evident when it comes to collective reparations ordered through the Victims’ Trust Fund. I would like to suggest here that, perhaps, the Rome Statute’s conceptual approach to reparations as restorative justice should not be universalized, in other words, that there may also be occasion within national frameworks to conceptualize reparations as poena, in particular when they take the form of fines and financial damages directly ordered against human rights abusers (for example, civil remedies such as those contemplated by the US Alien Tort Statute).

V. Conclusion Hans Christian Andersen’s tale ‘The Emperor’s New Clothes’ (Kejserens nye Klæder in Danish, written in 1837) spins a yarn about two swindling weavers. The weavers approach the Emperor and offer to make him a magnificent costume, vestments of unparalleled beauty, so long as he provides them nothing less than the very finest fabrics. The Emperor, prone to vanity and ostentation, agrees. The weavers however take the fabrics and brazenly pocket them. They pretend to weave the outfit. They run their looms day and night, future-faking all the while. They gaslight, and do so narcissistically. At some point, the Emperor wants to learn of the progress. He dispatches officials. The weavers show them the progress, the clothes, the garb, how furiously the looms are working and how carefully they thread. There is of course nothing to see, for nothing has been made, but still the officials praise the beautiful work. To do otherwise would mean that they are 76 ibid 262.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

260 Mark A. Drumbl too dull—after all, the new suit is invisible only to those who are unfit for their positions. To do otherwise means they are no longer the Emperor’s sycophants but, rather, would become bearers of bad news. Calling the weavers out on their bullshit—telling the truth—would mean admitting that the Emperor and his retinue have been hoodwinked, defrauded, misled, and deceived. The swindling weavers seize the moment to ask for more and more fabric to make the clothes even lovelier. They get what they ask for. It is best to pretend. Finally, the Emperor arrives to admire the final product. The outfit is so gorgeous, so resplendent; the weavers gently take it off the loom and, in an act of pantomime, drape it over the Emperor’s shoulders. Stunning! So much so, indeed, that the Emperor organizes a parade to showcase his new garments for all his subjects to see. Wearing his invisible new clothes, and therefore naked, he waltzes throughout the countryside. Crowds gather. No-one dares to say they see nothing but a naked man and that they are unable to appreciate the garments. Only a fool, after all, would not be able to value the weaving, the finery, the embroidery, the sewing, and all the frippery. The pretense is maintained in the interests of tranquility and out of fear of being identified as too stupid, or too gauche, not to see what is to be seen. Why embarrass, or be embarrassed? Only a child, who is promptly hushed, has the temerity—the cheek—to cry out that the Emperor isn’t actually wearing anything at all. The weavers succeed. They get away with it. They steal, wildly so, and openly. They benefit from impunity: they ride its wave while staring everyone in the eye. It is galling. Indeed, impunity galls. It churns the stomach. If the weavers evoke such sentiments over fabric, then, imagine perpetrators of murder, massacre, and torture! Sure, criminal law helps by stepping into this breach. The swindling weavers could have been charged. And tried. They could have been jailed. That is what an independent prosecutor could (and would) have done. This is the reflexive response, the immediate answer to the questions as to ‘what should have happened, what ought to have been done’. It is a good answer. But should it be the only answer, or the loudest one, the firmest in tone? Impunity is a product not only of how we construct wrongdoing, but also how we envision punishment. This chapter hopes to make a modest case for a more elastic understanding of poena according to which impunity becomes understood as freedom from harmful consequences, recrimination, reparations, shame, or pain. Such an understanding could seed a more diverse set of remedies in the aftermath of atrocity. It could redirect, or even divert, the drift towards incarceration and, thereby as a matter of institutional politics, pluralize and diversify the range of actors and entities engaged in the fight against impunity.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

chapter 11

Cou rti ng Fa ilu r e When Are International Criminal Courts Likely to be Believed by Local Audiences? Marko Milanović

I. Introduction International crimes are committed by individuals, individuals who are morally and legally culpable. But these individuals normally do not make the moral choices that make them culpable in isolation. Mass atrocities are social phenomena, involving many thousands of people, victims, and perpetrators; they cannot be divorced from the social setting in which they occur. As for international criminal tribunals, their primary pur pose is to punish those deserving of punishment. But beyond dispensing individualized justice, the question still remains whether such tribunals can also help deeply trauma tized and divided societies heal on a more fundamental level. To do that, the factual accounts these tribunals produce—about the guilt of specific individuals for specific crimes, but also about the systemic nature and causes of these crimes—at least at some point need to be accepted by their local audiences. Crimes need to be believed to be remedied. Some courts, like the International Criminal Tribunal for the Former Yugoslavia (ICTY), have failed in this broader task.1 But is every international criminal court or tri bunal similarly doomed to fail? This is the principal question that this chapter will address. Even once we understand the root causes of the ICTY’s failure, it is a different question, and one of much broader import, whether the account of the ICTY’s ineffect iveness is confined to the specific situation of the former Yugoslavia, or whether it is generalizable to a greater or lesser extent to other situations of group conflict and other international courts. 1 See Marko Milanović, ‘The Impact of the ICTY on the Former Yugoslavia: An Anticipatory PostMortem’ (2016) 110(2) American J of Intl L 233.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

262 Marko Milanović I will attempt to answer this generalizability question by, first, distilling the various factors that in my view led to the ICTY’s ineffectiveness, and, second, examining other courts and situations while accounting for the presence of these factors. In other words, this chapter will treat the ICTY’s example as a template for a predictive hypothesis, and then see whether that hypothesis can be falsified by reference to other real-world examples: the Nuremberg and Tokyo International Military Tribunals (IMTs), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), and the Extraordinary Chambers in the Courts of Cambodia (ECCC). Obviously, it is hard to reliably establish what people in these various societies actually believe with regard to particular crimes, and even harder to disentangle the causalities of their beliefs, i.e., to what extent they were shaped by the decisions of the relevant international courts. But even with plenty of methodological caveats the inquiry is well worth the effort. I will argue that the various case studies do, in fact, confirm the lessons drawn from the ICTY. Most importantly, they show that international crim inal courts and tribunals are only trusted by local audiences if their work was not met with significant opposition from dominant local elites.

II. Factors Predictive of Failure A. Objective and Subjective Limitations on the Processing of Information About Atrocities In an earlier article, I dealt with the impact of the ICTY within the former Yugoslavia.2 On the basis of numerous public opinion surveys, the article concluded that the ICTY failed to persuade local target audiences that the factual findings in its judgments are true, outright denialism being widespread and governed by ethnic bias. In a follow-up piece,3 I tried to provide a theoretical explanation for the ICTY’s lack of local impact, mainly from the standpoint of social psychology, arguing that the causes of the ICTY’s ineffectiveness4 are complex, turning on an interplay between subjective and objective limitations on individuals’ processing of information about war crimes, limitations that are largely independent of the quality of the tribunal’s own work. The interplay between these limitations was such that even had the ICTY been run perfectly—and it was not— it would not have been able to overcome the many barriers insulating the peoples of the 2 ibid. 3 See Marko Milanović, ‘Establishing the Facts About Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences’ (2016) 47 Georgetown J of Intl Law 1321 (hereafter Milanović, ‘Establishing the Facts’). 4 By ineffectiveness or lack of impact I here refer only to the ICTY’s inability to persuade target audiences of the veracity of its factual findings. There are other possible measures of impact, but these are not the subject of this study. See generally Y Shany, Assessing the Effectiveness of International Courts (OUP 2014).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Courting Failure: When Are International Criminal Courts 263 Objective limitations

Subjective limitations

• Lack of time and resources

• Confirmation bias and motivated reasoning

• Ease of avoiding belief revision

• Ingroup/outgroup bias

• Political relevance and manipulation

• Heuristic reasoning, System 1 and System 2

• Distance and reliance on mediators

Figure 11.1 Objective and Subjective Limitations on the Processing of Information About Atrocities

former Yugoslavia from the positive effects of its work. Operating in a bias-driven downward spiral,5 the more it challenged established nationalist narratives the more it generated distrust, and hence the less likely it was that it would be believed. As a mech anism of transitional justice, the Tribunal was simply doomed to fail. How is it possible that 90 per cent of ethnic Serbs do not accept the ICTY’s findings on the Srebrenica genocide, and engage in stronger or lesser forms of denial? It is unlikely that these millions of people are in fact fully aware of the accuracy of the ICTY’s findings, but consciously choose to reject them. Rather, as I have argued, it is the inter play of various objective and subjective factors that leads the vast majority of otherwise decent people to internalize standard narratives that are at odds with the ICTY’s work, while maintaining their own sense of objectivity and moral rectitude. Taken together, these factors limit the rational processing and cognition of information about the ICTY or specific crimes.6 The first objective limitation is the distance between most people forming beliefs about a particular event and the event itself, of which they have had no immediate sen sory experience. Most of the millions of ethnic Serbs, for example, physically could not and did not witness Srebrenica or other specific crimes first-hand. This remoteness from the event means that any knowledge about it can be obtained only indirectly, through mediators of information: politicians, the media, public intellectuals, the ICTY. Similarly, the vast majority of ordinary people lack the time, resources, or expertise to process information about specific crimes with any kind of rigour. What reasoning they do on these issues will be quick and impulsive, and will be shaped to a great extent by the interpretative filter any relevant information has to through, e.g., the media. Remoteness from the event and the consequent reliance on mediators also enable cognitively easy strategies for avoiding the revision of previously acquired beliefs. For example, all it takes to reject the ICTY’s findings about Srebrenica is to discredit the ICTY as a political court, an institution with an anti-Serb bias. Such an account can be plausibly constructed with little effort. Reliance on mediators also means that ordinary people have to choose whom to trust, and here we come to the final, and key, objective 5 See Stuart Ford, ‘A Social Psychology Model of the Perceived Legitimacy of International Criminal Courts: Implications for the Success of Transitional Justice Mechanisms’ (2012) 45 Vanderbilt J of Transnational L 405, 427–30 (hereafter Ford, ‘A Social Psychology Model’). 6 This part of the chapter is largely based on Milanović, ‘Establishing the Facts’ (n 3).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

264 Marko Milanović factor—the role of dominant local political elites. In the former Yugoslavia, these elites still depend on nationalism as a source of their power and authority, and have a vested interest in using all instruments in their power—and these are many—to push their own agenda and distort any information coming out of the ICTY.7 This is particularly true when it comes to control over the media. It is trite to observe that mass atrocities do not tend to happen in liberal, open pluralist societies, but in more or less authoritarian states where there is a strong tendency to see control over media (and hence influence over public opinion) as indispensable for maintaining power. The subjective limitations bound human rationality, especially when they are driven by strong emotional or affective responses. The principal such limitation is confirm ation bias, which ‘connotes the seeking or interpreting of evidence in ways that are par tial to existing beliefs, expectations, or a hypothesis in hand’.8 The primacy effect of confirmation bias privileges information acquired early in the cognitive process; once formed, beliefs tend to persist and are resistant to change.9 Confirmation bias ties into motivated reasoning: [The] unconscious tendency of individuals to process information in a manner that suits some end or goal extrinsic to the formation of accurate beliefs . . . . [The goal] directs mental operations—in this case, sensory perceptions; in others, assessments of the weight and credibility of empirical evidence, or performance of mathematical or logical computation—that we expect to function independently of that goal.10

Bias on the basis of group membership has also been well documented in psychological and sociological research.11 The bias is at its most intense when the group classification relates to status or identity and arouses strong emotions.12 Group biases are obviously foundational for any intergroup conflict; atrocities necessitate a level of moral exclusion or dehumanization of the intended victims. Finally, building on the work of Keith Stanovich and Richard West, Daniel Kahneman has elaborated on a dual process theory of cognition, divided into two systems: The operations of System 1 are fast, automatic, effortless, associative, and often emotionally charged; they are also governed by habit, and are therefore difficult 7 For a recent example, see Sasa Dragojlo, ‘Milosevic’s Old Allies Celebrate His “Innocence” ’ (Balkan Insight, 16 August 2016) accessed 26 October 2018. 8 Raymond Nickerson, ‘Confirmation Bias: A Ubiquitous Phenomenon in Many Guises’ (1998) 2(2) Rev of General Psychology 175. 9 See ibid 187. 10 Dan Kahan, ‘Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law’ (2011) 125 Harvard L Rev 1, 19 (relying on Ziva Kunda, ‘The Case for Motivated Reasoning’ (1990) 108(3) Psychological Bulletin 480). 11 See e.g., Miles Hewstone, Mark Rubin, and Hazel Willis, ‘Intergroup Bias’ (2002) 53 Annual Rev of Psychology 575. 12 See ibid 579–80.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Courting Failure: When Are International Criminal Courts 265 to control or modify. The operations of System 2 are slower, serial, effortful, and deliberately controlled; they are also relatively flexible and potentially rule-governed.13

Heuristics, ‘cognitive short-cuts that provide adequately accurate inferences for most of us most of the time’,14 directly tie into System 1, ‘fast’ type of thinking, and can lead to biased outcomes, especially when the cognitive alternatives are effortful.15 In the various communities of the former Yugoslavia, the interplay of these object ive and subjective factors was such that the ICTY’s impact was rendered minimal. By the time the ICTY was created, the wars in Bosnia and Croatia were in full swing, with some of the worst crimes already having been committed. Whole belief systems were already in place. The main drivers behind these nationalist narratives were the media, especially state-owned television stations, that operated under strong polit ical control and generally marginalized dissenting voices.16 And it was through the media and other mediators, such as local political and intellectual elites, that the populations of the Balkan states already received biased and heavily interpreted information about specific events, be it Srebrenica or the siege of Sarajevo or what ever.17 All this came long before the ICTY could say anything on the matter, let alone do so in a final judgment. Inevitably, therefore, the ICTY’s work was assessed in the light of pre-existing and often very polarized attitudes, which had a privileged, pri macy effect in the minds of the audience. Similarly, initial impressions about the ICTY would likely have been formed using fast, emotionally charged System 1 types of reasoning, and these impressions would then themselves be protected from change by the effects of confirmation bias. In essence, each ethnic group in the former Yugoslavia constructed its own reality, which its members feel as much as they believe. Most people generally lack the time and the resources to meaningfully, carefully scrutinize information that they receive from normally already biased sources. They therefore resort to quick, heuristic reasoning, jumping to conclusions and forming attitudes about particular events in a way that min imizes their own cognitive effort while maximizing the effect of biases already at work.18 They largely do so unconsciously, through identity-protective motivated reasoning that leads them to the denialist outcome while maintaining an internal illusion of objectivity and a sense of self-worth. And they thus easily fall prey to political manipulators who

13 Daniel Kahneman, ‘Maps of Bounded Rationality: Psychology for Behavioral Economics’ (2003) 93 American Economic Rev 1449, 1451. 14 Michael Hogg and Graham Vaughan, Social Psychology (6th edn, Pearson 2011) 71. 15 See generally Daniel Kahneman, Thinking, Fast and Slow (Penguin 2011) 21ff. 16 See e.g., Judith Armatta, ‘Milosevic’s Propaganda War’ (Global Policy Forum, 27 February 2003) accessed 26 October 2018; Mark Thompson, Forging War: The Media in Serbia, Croatia, Bosnia and Hercegovina (University of Luton Press 1999). 17 See also Ford, ‘A Social Psychology Model’ (n 5) 431–32. 18 ibid 425–26.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

266 Marko Milanović are exploiting these cognitive vulnerabilities for their own ends, mainly in order to gain or maintain power, money, and influence.

B. Towards Generalization In order to inductively generalize on the basis of the ICTY’s experience, we would need to examine whether the different factors outlined above are replicable in other conflict situations. Starting from the basic account of the cognitive biases at work, one possible objection to the psychological research used in this piece would be to expose own inher ent bias, as most such research has been conducted on ‘WEIRD’ participants (those from Western, Educated, Industrialized, Rich, and Democratic countries), like US col lege students.19 That research is not necessarily generalizable to other types of societies, for example in African countries, in which most ICC investigations and prosecutions have occurred. In a similar vein, psychological science is currently undergoing some thing of a reproducibility crisis, with a major recent review of 100 experimental studies managing to replicate only 39 per cent of their results.20 It is obviously very difficult to definitively justify, with absolute certainty, the reliability of the psychological research relied on in this study. One could say, for instance, that the explanatory power of psychological research does not seem to be diminished in the case of the populations of the former Yugoslavia, which are broadly speaking not really all that Western, educated, industrialized, rich, or democratic. Cognitive biases have been demonstrated in so many different contexts that the basic reliability of this line of research can reasonably be assumed, unless we have significant evidence to the contrary. That said, the possibility cannot be excluded that some qualifications would need to be made for other societies that are even more divergent from the WEIRD baseline. I would only add that, if anything, group identity-protective forms of biased reasoning could reasonably be expected to be even more pervasive in societies with stronger collective or group-based identification.21 Moving on to the other factors, when it comes to the distance between most ordin ary individuals and specific atrocities, not all mass atrocities are the same. Some are by their sheer scale and publicity such that more people will have had an immediate experience of the crimes than was the case in Yugoslavia—think only of Cambodia or Rwanda. This may have some impact on the possibility of creating internally plausible forms of denial. But that impact will likely not be transformative. Even atrocities com mitted on a truly vast scale can be distant from the bulk of the population of the per petrator group, as was the case with the Holocaust, with most of the killings being 19 See generally Joseph Henrich, Steven Heine and Ara Norenzayan, ‘The Weirdest People in the World?’ (2010) 33 Behavioral and Brain Sciences 61. 20 See Open Science Collaboration, ‘Estimating the reproducibility of psychological science’ (2015) 349 (6251) Science 943. See also Jay Van Bavel and others, ‘Contextual Sensitivity in Scientific Reproducibility’ (2016) 113 Proceedings of the National Academy of Science 6454. 21 See also Ford, ‘A Social Psychology Model’ (n 5) 454–55.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Courting Failure: When Are International Criminal Courts 267 done outside Germany itself, outside major population centres, and in fact with deliberate efforts to hide them.22 Moreover, the scale of the atrocities is a concept that is by itself hard for any single individual to perceive directly—a regular Rwandan will have friends, family, and neighbours who have been killed (or were doing the killing) in the genocide, but he or she cannot know from personal experience that eight hundred thousand Tutsis and moderate Hutus were killed, no more than a survivor of Auschwitz can know solely from their own experience that six million Jews perished in the Holocaust, or even that a million or more did so in Auschwitz itself.23 Finally, even in the case of atrocities done visibly and on a massive scale, distance will eventu ally reassert itself inter-generationally—the descendants of the direct victims and wit nesses will necessarily have to rely on their parents and grandparents (and similar other sources) for an (always imperfect) account of what happened. In short, reliance on mediators with regard to information about crimes will be a constant in all conflictafflicted societies, even if with a degree of variability. The same goes for the ease of avoidance strategies enabled by distance. As for the lack of time, resources, and expertise on the part of the population generally in evaluating any relevant information, if there is any cross-cultural and societal constant that would seem to be it. The key—indeed, the only remaining—variable therefore appears to be the role of dominant political, intellectual, and media elites within their groups. It is the attitudeshaping power of these elites in traumatized societies that varies and matters the most. When international courts intervene in such damaged communities, they never do so with some kind of clean slate. There is, in other words, always some kind of group narra tive that cognitive biases can latch onto—what varies is what those in power do with them. At worst, as happened in the former Yugoslavia, they will facilitate the creation of exclusive group-specific realities, that the work of the elite-discredited international criminal court or tribunal will be incapable of penetrating. But this need not be the case.

C. A Predictive Hypothesis If an international court’s impact is largely a function of the conduct of dominant local elites, what factors influence the probability of an intense adverse elite reaction? Drawing from the post-Yugoslav example, I will hypothesise that the likelihood of an adverse reaction can be assessed by reference to four predictive factors. First, group cohesion and polarization. For an inter-group conflict to have arisen in the first place, the groups in question must have had a level of distinctiveness and internal cohesion. But especially in the aftermath of a conflict, the question is whether all of the relevant adversary groups maintained their cohesion and mutual independence. 22 But see Ernst Klee, Willi Dressen, and Volker Riess (eds), ‘The Good Old Days’: The Holocaust as Seen by Its Perpetrators and Bystanders (Konecky 1996) (discussing the immediate experience of the Holocaust of segments of the German population). 23 cf Tony Judt, Postwar: A History of Europe Since 1945 (Penguin 2005) 830 (hereafter Judt, Postwar).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

268 Marko Milanović Conflicts may end in one group’s total defeat. Without a continuing level of group cohesion, there can be no dominance of elites within that group, and no real possibility for completely divergent alternate realities to form within each group. In most conflicts, however, especially when they are fought between states, the previ ously conflicting groups will maintain their separate existence, power structures, and elites. The former Yugoslavia provides a paradigmatic example. Each ethnic group today has its own state (e.g., Croatia, Serbia) or parastatal entity (e.g., the Federation and Republika Srpska in Bosnia, or Kosovo if its legal claim to statehood is rejected), in which it is essentially independent from other groups or in which these other groups are marginalized. On the other hand, even when a conflict ended in one group’s defeat, e.g., the Croatian Serbs’ defeat at the hands of the Croatian government, the minority group could rely to an extent on a strong external focus for its group, Serbia. The fragmented post-Yugoslav landscape is such that each of the main adversary groups (Serbs, Croats, Bosniaks, Albanians) has its own political institutions, media, and educational systems, which easily exclude the viewpoints of the other groups. Second, elite continuity. Assuming that the adversary groups maintained their cohesion over time, the further question is whether the elites of these groups are the same or substantially similar to those that led the group during the conflict or when the atrocities took place, and whether they adhere to or espouse the same or substan tially similar ideology. Especially in situations of conflict driven by nationalism, elite continuity is predictive of a need to maintain entrenched nationalist narratives. This was again the case in the former Yugoslavia, where the few instances of discontinuity were never truly radical. To briefly look at political elites only, of the 26 years since the independence of Croatia, the nationalist Croatian Democratic Union (HDZ), founded by Franjo Tudjman, was the ruling party for almost 20. Even when the HDZ was in opposition, the left-wing governments of the day felt constantly under threat from the right and catered to the established nationalist narratives of the purity of the country’s founding and its struggle against the separatist Serbs and Greater-Serbian aggression, entrenching a mythomania of the Homeland War. In Serbia, the ruling party is currently the Serbian Progressive Party, led by the prime minister Aleksandar Vučić and president Tomislav Nikolić. While ostensibly pro-European (viz. the spurious ‘progressive’ label), Vučić and Nikolić are erstwhile lieutenants of the ultra-nationalist Vojislav Šešelj, the leader of the Serbian Radical Party who was indicted and contro versially recently acquitted by the ICTY.24 The Socialist Party of Serbia, which was led by the former dictator Slobodan Milošević until his deposition in October 2000, has actually been a key minority partner in government for most of the post-Milošević era. After the April 2016 parliamentary elections, only some 45 of the 250 seats in the Serbian parliament were held by liberal, non-nationalist parties. In Bosnia, the main political leader of the Bosniaks is Bakir Izetbegović, the son of the Bosniak wartime president Alija Izetbegović, while among the Bosnian Serbs the principal government and opposition parties are all strongly nationalist. In Kosovo, many of the key political 24 See more Marko Milanović, ‘The Sorry Acquittal of Vojislav Seselj’ (EJIL: Talk!, 4 April 2016) accessed 26 October 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Courting Failure: When Are International Criminal Courts 269 leaders, including the current president and former prime minister Hashim Thaçi, are former officers of the Kosovo Liberation Army (KLA), the paramilitary organization that fought Serbian authorities in Kosovo. The third factor is authoritarianism. The more dominant the elites are over their respective groups, the more control they exercise of the most potent mediators of infor mation, especially the media and public education, the more capable they are of exclud ing alternative views from the public space and of marginalizing the work of international courts. The Yugoslav experience shows that the authoritarianism thresh old for effective opposition to international courts is not high. The society in question need not be North Korea—the softer authoritarianism of the Balkans seemed perfectly sufficient to marginalize the ICTY, especially in the crucial early years when the various conflicts were still ongoing. The concept of authoritarianism is used here mainly to denote the absence of genuine pluralism. Finally, there is threat. Do the dominant local elites perceive the work of the international tribunal as threatening to their own power and authority, or see any other interest in opposing the tribunal? Since it comes with potentially significant costs (e.g., in international relations), opposition (especially opposition as intense, total discreditation) is likely only if it will produce some genuine payoff. That was certainly the case in the former Yugoslavia. The ICTY was challenged by those elites, chiefly Serb and Croat, whose nationalist narratives were threatened by the Tribunal’s indictments, arrest warrants, and judgments. Bosniaks and Kosovo Albanians, on the other hand, were not opposed to the ICTY because it largely validated their views about their own victimhood, and indicted and convicted only a few of their own group members. To sum up, if the cohesion of a target group is disrupted, its elites (if any) will not be able to effectively oppose the work of the court. If the elites that ruled during the conflict or atrocities have been replaced by elites that do not draw their authority from the same pernicious ideology or competitive victimhood, they will have less of an interest in opposing the court. If the society in question is genuinely pluralist, there is less of a chance that views supporting the court will be marginalized, and for the sheer perva siveness of any contrary propaganda to overwhelm the public space and engage all of the cognitive biases we have examined above. That said, societies that experience mass atrocities are unlikely to be genuinely pluralist in this sense, particularly not in the immediate aftermath of conflict. Finally, if the court poses no real threat to the groups’ ruling elites, they may well leave it be and not actively oppose it, or they might find more subtle means of opposing it. This is most likely to happen if the court (rightly or wrongly) targets only one of the sides in a conflict. As a general matter, the likelihood of elite opposition to the court would also seem to increase if the court starts its work while the conflict is still ongoing, as was indeed the case with the ICTY, since at least the first two of the relevant factors would be met by definition. The hypothesis I set out here is a probabilistic argument only, made on the basis of the experience of the ICTY in the former Yugoslavia. Much will of course depend on the specific context. To test whether the hypothesis is valid I will now proceed to examine several relevant case studies: the Nuremberg and Tokyo IMTs, the ICTR, the SCSL, and the ECCC.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

270 Marko Milanović

III. Nuremberg and Tokyo Few people in Germany today would dispute the basic facts about the Holocaust, or that Nazi Germany bore the principal blame for starting the Second World War. In Japan the picture is less rosy, as we will see, but again most people do not deny that the forces of Imperial Japan committed atrocities in East Asia. But what role did the Nuremberg and Tokyo IMTs have in the formation of these attitudes? Some significant dissimilarities with the former Yugoslavia are immediately apparent. Like with Yugoslavia, German and Japanese groups retained their basic cohesion, identity, and statehood. But unlike with any of the groups in Yugoslavia, Germany and Japan suffered total defeat at the hands of their adversaries and were subjected to prolonged military occupation by the Allied victors. Most importantly, the Allies dismantled the top echelons of the previous ruling elites of Germany, although the dismantling was coupled with ad hoc, arbitrary amnesties, especially as one went further down the lead ership chain; elite disruption happened on a smaller scale in Japan. Cold War politics were of enormous importance for both countries. The partitioning of Germany led to the establishment of a totalitarian East German state that was a Soviet satellite, while West Germany gradually developed into a liberal democracy but remained under the economic, political, and military influence of the United States and the Western Allies, as did Japan. This, of course, is painting with a very broad brush. The interplay of the four factors in Germany and Japan is more complex and has evolved significantly over time. Before the relative success of today in accepting the existence of mass atrocities and the responsi bility for them, came long periods of sustained failure. So let us try to look at both coun tries in more detail, starting with Germany and its ‘sixty-year cycle of denial, education, debate and consensus’.25 Some truly excellent work regarding the reception of the Nuremberg IMT in Germany over time has been done by Susanne Karstedt26 and Donald Bloxham,27 which the analysis that follows will heavily draw on. We also have some rigorous empirical infor mation on the attitudes of regular Germans towards the Nuremberg IMT proceedings while they took place and several years thereafter, since the US military administrators in their sector of occupied Germany commissioned a series of comprehensive surveys of public opinion.28 After West Germany’s foundation in 1949, a number of other relevant surveys were conducted by local polling agencies. 25 Judt, Postwar (n 23) 830. 26 See Susanne Karstedt, ‘The Nuremberg Tribunal and German Society: International Justice and Local Judgment in Post-Conflict Reconstruction’ in David Blumenthal and Timothy McCormack (eds), The Legacy of Nuremberg: Civilising Influence or Institutionalised Vengeance? (Nijhoff 2008) 13 (hereafter Karstedt, ‘The Nuremberg Tribunal’). 27 Donald Bloxham, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory (OUP 2001) (hereafter Bloxham, Genocide on Trial). 28 See Anna Merritt and Richard Merritt, Public Opinion in Occupied Germany: The OMGUS Surveys, 1945–1949 (University of Illinois Press 1970) accessed 26 October 2018. For discussions on the reliability of this polling see Karstedt, ‘The Nuremberg Tribunal’ (n 26) 27, fn 34.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Courting Failure: When Are International Criminal Courts 271 The picture that emerges is to an extent surprising. While the IMT proceedings were ongoing and in their immediate aftermath, the German population was largely supportive of the victors’ justice served to them by the Allies. For example, upwards of 70 per cent of respondents thought that the trial was conducted justly and that it was trustworthy in terms of reliability; 68 per cent agreed that crimes against humanity were committed by the Germans.29 However, the IMT’s apparent success was only skin-deep: [T]he picture that emerges is of a society failing and refusing to confront the breadth and depth of its culpability . . . at the time it mattered most, namely in the immediate aftermath of Nazi rule, both the medium and the message of trial were decisively rejected by the west German populace.30

What made the IMT appealing to the German population in the short-term was that it gave them somebody to blame for the utter misery and defeat that afflicted them: the very top of Hitler’s regime, i.e., the very persons who were put on trial before the IMT.31 In other words, the IMT reinforced the Germans’ own victimhood narrative while allowing them to disconnect themselves from the previous regime.32 The victimhood narrative was further advanced by the vast destructive impact of the Allied bombing campaigns in Germany, the mass rape of German women by Soviet troops in 1945, the loss of German POWs in Soviet camps, the forced expul sions into Germany of millions of ethnic Germans from Central and Eastern Europe, and by the distance that regular Germans (generally but not always) had from the populations of the groups of their own victims, such as the Jews, Poles, or Roma.33 Positive perceptions of Nuremberg in its immediate aftermath were also undoubtedly shaped to no small extent by the fact that the Allies maintained strict control over the media.34 That regular Germans generally trusted the IMT because (paradoxically) they felt that it exonerated them can be also seen from the fact that approval indicators fell significantly whenever they concerned charges against organizations with wide spread membership among ordinary Germans, such as the SA or the army, or when they concerned the overall blame for starting an aggressive war. The same applies to denazification proceedings, which were not limited to the senior leadership.35 From the qualified acceptance of Nuremberg in the 1940s, West Germany plunged into a deep collective amnesia during the 1950s: ‘[M]ost German citizens made all pos sible efforts to forget what happened . . . . They made their gaps in memory systematic,

29 As reported by Karstedt, ibid 21–23. 30 Donald Bloxham, ‘The Nuremberg Trials and the Occupation of Germany’ (2006) 27 Cardozo L Rev 1599, 1600 (hereafter Bloxham, ‘The Nuremberg Trials’). 31 See also Judt, Postwar (n 23) 54. 32 Karstedt, ‘The Nuremberg Tribunal’ (n 26) 25. 33 See Bloxham, ‘The Nuremberg Trials’ (n 30) 1600–01; Judt, Postwar (n 23) 57. 34 See also Karstedt, ‘The Nuremberg Tribunal’ (n 26) 21. 35 ibid 22–23. On denazification generally, see Therese O’Donnell, ‘Executioners, Bystanders and Victims: Collective Guilt, the Legacy of Denazification and the Birth of Twentieth-Century Transitional Justice’ (2005) 25 Legal Studies 627, 651–62 (hereafter O’Donnell, ‘Executioners, Bystanders and Victims’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

272 Marko Milanović and developed the handling of these generous gaps to perfection’.36 Due to Cold War politics, as well as simple practicalities, denazification petered out.37 Those ousted by denazification were allowed to hold office in the early 1950s, while most convicted war criminals (except those tried by the IMT) were released after serving only a fraction of their sentences.38 A thorough swing in public opinion is documented in surveys done at the time, which show, for example, that a majority favoured the release of the remaining Nuremberg defendants; that 78 per cent felt that they were not even ‘morally implicated’ in the genocide of the Jews; that 55 per cent felt that German soldiers could not be reproached for any wrongdoing during the war; and that about two-thirds felt that the number of victims of the Holocaust was either somewhat or strongly exaggerated.39 In a survey from October 1950, only 38 per cent of respondents thought that the IMT trial was conducted fairly, compared to 78 per cent of respondents who thought that the trial was fair four years earlier.40 This polling data is much more reminiscent of the thor oughly depressing Yugoslav experience. The data slowly starts to change, however, from the 1960s onwards. Authors have attributed a (variable) catalytic effect to a number of highly publicized events: the 1961 Eichmann trial in Jerusalem; the 1963–1965 Auschwitz and the 1975–1981 Majdanek trials in Germany;41 various episodes in the Israeli-Arab conflict; Chancellor Brandt’s commemoration of the victims of the Warsaw Ghetto; the murder of Israeli athletes at the 1972 Munich Olympics; and the airing in Germany of the Holocaust TV mini-series, starring Meryl Streep, in January 1979,42 a Hollywood soap-opera that stirred the masses to a ‘crescendo of self-questioning’.43 Both the slippage into amnesia and the awakening therefrom require a structural explanation. The amnesia is explained not only by the general weariness of the German population and the European-wide urge to forget and relegate the Second World War to

36 Christoph Burchard, ‘The Nuremberg Trial and its Impact on Germany’ (2006) 4 J of Intl Crim Justice 800, 812 (quoting German criminal lawyer Juergen Baumann) (hereafter Burchard, ‘The Nuremberg Trial’) 37 See Karstedt, ‘The Nuremberg Tribunal’ (n 26) 26; Judt, Postwar (n 23) 56–7. 38 Karstedt, ‘The Nuremberg Tribunal’ (n 26) 26–7. 39 ibid 28. 40 See Bloxham, ‘The Nuremberg Trials’ (n 30) 1606. See also Burchard, ‘The Nuremberg Trial’ (n 36) 812–13. 41 See Karstedt, ‘The Nuremberg Tribunal’ (n 26) 29–32; Judt, Postwar (n 23) 810. On the Auschwitz trial, see especially the magisterial Devin Pendas, The Frankfurt Auschwitz Trial, 1963–1965: Genocide, History and the Limits of the Law (CUP 2006). 42 See Judt, Postwar (n 23) (‘[o]f these the television series was by far the most important. The purest product of American commercial television—its story simple, its characters mostly twodimensional, its narrative structured for maximum emotional impact . . . . It ran for four consecutive nights on West German national television and was watched by an estimated twenty million viewers— well over half the adult population’ at 811). See also Alf Lüdtke, ‘ “Coming to Terms with the Past”: Illusions of Remembering, Ways of Forgetting Nazism in West Germany’ (1993) 65 J of Modern History 542 (hereafter Lüdtke, ‘ “Coming to Terms with the Past” ’] (‘the showing of the film accom plished much more than the extensive educational activities in schools and in the media had achieved during the previous years’ at 544). 43 Bloxham, Genocide on Trial (n 27) 135.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Courting Failure: When Are International Criminal Courts 273 the past,44 coupled with all of the identity-protective psychological mechanisms at work, but also by the role played by German elites. As the Allies abandoned war crimes trials and denazification due to the start of the Cold War and the need to placate German pub lic opinion,45 the old elites—although decapitated—started reasserting themselves.46 For example: In Bavaria in 1951, 94 percent of judges and prosecutors, 77 percent of finance min istry employees and 60 percent of civil servants in the regional Agriculture Ministry were ex-Nazis. By 1952 one in three of Foreign Ministry officials in Bonn was a for mer member of the Nazi Party. Of the newly-constituted West German Diplomatic Corps, 43 percent were former SS men and another 17 percent had served in the SD or Gestapo. . . . Universities and the legal profession were the least affected by denazi fication, despite their notorious sympathy for Hitler’s regime.47

Another important elite group were the (largely never denazified, and very nationalist) Catholic and Protestant clergy, who generally lobbied for the release of convicted war criminals and fed the overarching German victimhood narrative.48 To the extent that Nuremberg did not fit their interests, it was either forgotten or discredited,49 as these elites pushed for (as Alfred Streim, a later Nazi-hunting German prosecutor put it) a ‘final solution of the war criminals question’.50 This is again reminiscent of Yugoslavia, but with some important differences that explain the German awakening in the 1960s. Unlike the ICTY, which has since its found ing been a constant presence in post-Yugoslav politics, the IMT trial lasted for only a year. And while they remained largely nationalist, in the Cold War environment the (West) German elites could not profit from propagating Nazi ideology. Hence, as a new generation of Germans was coming onto the stage, it was utterly ignorant of the Third Reich.51 Thus, unlike in the former Yugoslavia, new generations were not continuously exposed in the media and through public education to narratives denying, minimizing, 44 Judt not only documents this trend, but his central thesis is indeed that ‘[w]ithout such collective amnesia, Europe’s astonishing post-war recovery would not have been possible’: Judt, Postwar (n 23) 61. See also ibid 803ff. 45 See Bloxham, ‘The Nuremberg Trials’ (n 30) 1606–07; Lüdtke, ‘ “Coming to Terms with the Past” ’ (n 42) 550. 46 See Bloxham, ‘The Nuremberg Trials’ (n 30) 1603. 47 Judt, Postwar (n 23) 57–58. 48 See, e.g., Ronald Webster, ‘Opposing “Victors’ Justice”: German Protestant Churchmen and Convicted War Criminals in Western Europe after 1945’ (2001) 15 Holocaust and Genocide Studies 47; Bruno Simma, ‘The Impact of Nuremberg and Tokyo: Attempts at a Comparison’ in Nisuke Ando (ed), Japan and International Law: Past, Present and Future (Kluwer 2001) 59, 69 (hereafter Simma, ‘Impact of Nuremberg and Tokyo’). 49 See Devin Pendas, ‘The Fate of Nuremberg: The Legacy and Impact of the Subsequent Nuremberg Trials in Postwar Germany’ in Kim Priemel and Alexa Stiller (eds), Reassessing the Nuremberg Military Tribunals: Transitional Justice, Trial Narratives, and Historiography (Berghahn Books 2012) 249, 252 (hereafter Pendas, ‘The Fate of Nuremberg’). 50 Bloxham, Genocide on Trial (n 27) 149. 51 ibid 810. See also Lüdtke, ‘ “Coming to Terms with the Past” ’ (n 42) 554; Bloxham, Genocide on Trial (n 27) 135.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

274 Marko Milanović or justifying Nazi crimes. Over time, silence about the Holocaust between the old generations and the new was replaced by active engagement and instruction.52 This disruption of generational transmission was facilitated by the genuine, if gradual, trans formation (driven by both internal and external factors and enabled by sustained economic growth and stability) of the West German society from an authoritarian to a democratic, pluralist one.53 New political, media, and intellectual elites thus also emerged, which did not feel themselves beholden to their predecessors and their ideology.54 In sum, it was not the Nuremberg IMT that persuaded the German people of the existence of Nazi crimes and in their moral responsibility therefor.55 This was the result of a process of long duration, over successive generations.56 And it is likely that this process would never had happened but for Germany’s total defeat and the disrup tion (even if partial) in the continuity of its elites, which inhibited the transmission of their worldviews to their children and grandchildren. The IMT’s role was mainly in enabling regular Germans, in the immediate aftermath of the war, to disassociate themselves from and blame the Nazi leadership for everything that had happened. This disassociation was to an extent arguably helped by the IMT, but it is perfectly possible that it could also have happened without the IMT. Let us now turn to the Tokyo IMT. Even if they are at times exaggerated, the failings of the Tokyo trial were many—as Professor Bassiouni memorably put it, ‘Tokyo . . . was a precedent that legal history can only consider with a view not to repeat it’.57 Like Nuremberg, Tokyo was victors’ justice, in that the vanquished could not be left to judge themselves. Like Nuremberg, Tokyo was selective justice, in that no Allied officials were prosecuted for comparable crimes. Both IMTs were also selective in the sense that they had to focus on the higher echelon of the political and military leadership.58 But Tokyo was in a sense qualitatively more selective—for worse—than Nuremberg, in that whole swathes of the Japanese elite were deliberately left untouched, a decision again largely driven by Cold War politics. This is above all the case with respect to the Emperor Showa (Hirohito) and other members of the imperial family. The US occupying administration deliberately chose (with active cooperation from the Japanese side) to insulate the Emperor from prosecution, feeling that any such action would fuel resentment in the local population,59 ‘MacArthur’s truly extraordinary measures to save Hirohito from

52 See ibid (‘[w]hereas in 1968 there had been just 471 school groups visiting Dachau, by the end of the Seventies the annual number was well in excess of five thousand’ at 811). 53 See Bloxham, ‘The Nuremberg Trials’ (n 30) 1600; Lüdtke, ‘ “Coming to Terms with the Past” ’ (n 42) 552. 54 See also Karstedt, ‘The Nuremberg Tribunal’ (n 26) 29. 55 In that regard, Nuremberg’s focus was anyway much more on crimes against peace than it was on the Holocaust. See, e.g., O’Donnell, ‘Executioners, Bystanders and Victims’ (n 35) 649. 56 See also Pendas, ‘The Fate of Nuremberg’ (n 49) 268. 57 Quoted according to Neil Boister, ‘The Tokyo Trial’ in William Schabas and Nadia Bernaz (eds), Routledge Handbook of International Criminal Law (Routledge 2011) 17. 58 ibid 21–22. 59 ibid 22; Simma, ‘Impact of Nuremberg and Tokyo’ (n 48) 79.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Courting Failure: When Are International Criminal Courts 275 trial as a war criminal had a lasting and profoundly distorting impact on Japanese understanding of the lost war’.60 But the preservation of Japanese elites further down the food chain ran deeper still. The majority of Class A war criminal suspects were eventually released without ever being tried; one of the most prominent, Nobusuke Kishi, chief industrial official of Japanese-occupied Manchuria and minister in the wartime Tojo government, was Japanese Prime Minister from 1957 to 1960. The current Prime Minister, Shinzo Abe, is his grandson.61 All war criminals serving their sentences in Japan were released in the 1950s: [A]part from the military officer corps, the purge of alleged militarists and ultrana tionalists that was conducted under the Occupation had relatively small impact on the long-term composition of men of influence in the public and private sectors. The purge initially brought new blood into the political parties, but this was offset by the return of huge numbers of formally purged conservative politicians to national as well as local politics in the early 1950s. In the bureaucracy, the purge was negligible from the outset . . . . In the economic sector, the purge similarly was only mildly disruptive.62

In the first post-occupation elections, 42 per cent of members of the lower house were individuals previously purged by the occupation authorities.63 Unlike in Germany, Japan retained its own government throughout the occupation, even if it was subordin ate to the occupation authorities. Elite continuity is also evident from the fact that the Liberal-Democratic Party of Japan, led today by Abe and representing a broad spectrum of conservative or right-wing ideology, has since its founding in 1955 been in power in Japan, but for some four years of interruption in the 1990s and 2000s. When it comes to the perceptions of the Tokyo IMT trial among the Japanese popula tion, we can initially observe similar dynamics as in Germany. In its immediate after math the trial created little resentment, especially since during the US occupation the media were subjected to strict censorship by the occupation authorities.64 A review of private letters sent among the Japanese population and secretly censored by the occupa tion authorities showed that ‘34 per cent of those who mentioned the Tokyo Trial praised it, and 39 per cent were critical, sympathizing with the defendants for their heavy sentences—but not necessarily protesting against the trial per se’.65 Like in postwar 60 Herbert Bix, Hirohito and the Making of Modern Japan (Harper Collins 2000) 585. 61 See Yuka Hayashi, ‘For Japan’s Shinzo Abe, Unfinished Family Business’ (The Wall Street Journal, 11 December 2014) accessed 26 October 2018. 62 John Dower, ‘The Useful War’ in Stephen Large (ed), Shōwa Japan: Political, Economic and Social History 1926–1989, Volume II 1941–1952 (Routledge 1998) 62, 63 (hereafter Dower, ‘Useful War’). 63 See Michael Schaller, Altered States: The United States and Japan Since the Occupation (OUP 1997) 38. 64 See Madoka Futamura, War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the Nuremberg Legacy (Routledge 2008) 68–70 (hereafter Futamura, War Crimes Tribunals). 65 ibid 70.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

276 Marko Milanović Germany, the Japanese population needed somebody to blame—the top echelons of the Japanese military elite—for all the suffering that they have been through.66 At the same time, a narrative of Japanese victimhood easily evolved, not only because of the wide spread postwar devastation, poverty, and famine, but also because of the uniqueness and lasting impact of the Hiroshima and Nagasaki atomic bombings.67 The distant vic timized populations in China, Korea, or the Philippines were of little relevance. The trial then quickly slipped out of public interest; when the Tribunal closed the media stopped even mentioning it.68 Over the ensuing decades, the trial has remained one of several focal points of ideo logical divisions in Japanese society and has attracted a diverse body of commentary. The trial is a topic that ‘has been ignored by the majority of the population . . . [but] has been debated emotionally and ideologically within a limited circle’.69 The Tokyo IMT has thus been a continuous target of attack on the part of nationalist segments of the Japanese pol itical and intellectual elites, attacks that ebbed and flowed with the course of Japanese political life. It is part of a wider revisionist discourse regarding, for example, the denial that Japan was engaged in wars of aggression; the denial or minimization of specific crimes such as the Nanjing massacre; the issue of so-called ‘comfort women’ in Korea and the Philippines; the content of history textbooks in Japanese schools on these matters; and efforts to amend the pacifist constitution imposed on Japan by the occupiers.70 Revisionism has generally been on the increase during and since the 1990s; the visits of several prime ministers to the Yasukuni Shrine have been particularly controversial in Japan’s neighbouring states, with their own competing nationalisms and victimhood narratives.71 Yasukuni honours all Japanese military war dead, but it became a national ist focus after the 1978 enshrinement of the most prominent war criminals convicted by the Tokyo IMT. Notably, next to the Shrine is a memorial to IMT Judge Pal of India, the only judge to vote for acquittal at Tokyo: [M]any of postwar Japan’s nationalist leaders and thinkers have long upheld Judge Pal as a hero, seizing on—and often distorting—his dissenting opinion at the Tokyo trials to argue that Japan did not wage a war of aggression in Asia but one of selfdefense and liberation.72

Indeed, in a 2007 visit to India, Prime Minister Abe paid tribute to Judge Pal in speech before the Indian Parliament, praising his ‘noble spirit of courage’ at the Tokyo trial.73 66 ibid 92–93, 142. 67 See also Han Sang-Jin, ‘Can Japan Overcome the Ghost of the Past?’ in Han Sang-Jin (ed), Divided Nations and Transitional Justice: What Germany, Japan and South Korea Can Teach the World (Routledge 2014) 173, 174. 68 See Futamura, War Crimes Tribunals (n 64) 71. 69 ibid 86. 70 ibid 93–99. 71 See generally Jeff Kingston (ed), Asian Nationalisms Reconsidered (Routledge 2016). 72 Norimitsu Onishi, ‘Decades After War Trials, Japan Still Honors a Dissenting Judge’ (New York Times, 31 August 2007) accessed 26 October 2018. 73 ibid. See also Nariaki Nakazato, Neonationalist Mythology in Postwar Japan: Pal’s Dissenting Judgment at the Tokyo War Crimes Tribunal (Lexington Books 2016).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Courting Failure: When Are International Criminal Courts 277 Revisionism has not captured most of the Japanese population, at least not yet and not in every respect.74 But it has become mainstream, unlike in Germany in which it is on a radical fringe;75 jingoism and revisionism in Japan are ‘essentially conservativeelite driven processes’.76 For example, Prime Minister Abe, more than half of his cabinet, and a third of the Japanese Diet are openly affiliated with Nippon Kaigi, a Shinto rightwing lobbying organization with an explicitly revisionist agenda.77 The rightward turn that started in the 1990s can be explained by the new generation of elites taking over the mantle of their predecessors and cynically exploiting nationalist narratives for political gain during a period of deep economic malaise and stagnation. Crucially, these elites display a remarkable degree of continuity: ‘[S]ince 1996 to date, no less than seven of the ten prime ministers came from political dynasties . . . . [They are] sons or grandsons of postwar prime ministers’.78 The increase in nationalist revisionism in Japan in recent decades also provides us with a cautionary lesson that the passage of time alone does not necessarily lead to greater public acceptance of past atrocities, if generational change is not followed by a disruption in the transmission of nationalist worldviews.79 In sum, we can conclude that the Tokyo IMT at best had a marginal role in fostering acceptance of the responsibility for the war and wartime atrocities in modern Japan: [T]he Tokyo Trial’s historical record did not contribute to finalizing the history of a traumatic experience and a controversial period of the Japan’s past. The Japanese still, after more than 60 years, hold an ambiguous and unsettled view of the war, and have not successfully come to terms with their past.80

While the unfairness of the trial is a trope of revisionist discourse, the trial itself is largely absent from collective memory.81 There is thus a marked contrast between Germany and Japan when it comes to reconciling with the past, and that contrast is not explain able by the greater flaws of the Tokyo IMT when compared to its Nuremberg sibling. Both the similarities and differences are structural. First, we should not discount the genuine objective differences between the German and Japanese imperial projects and 74 See Futamura, War Crimes Tribunals (n 64) 99–100. 75 cf Simma, ‘Impact of Nuremberg and Tokyo’ (n 48) 82. 76 Koichi Nakano, ‘Political Dynamics of Contemporary Japanese Nationalism’ in Jeff Kingston (ed), Asian Nationalisms Reconsidered (Routledge 2016) 160, 162 (hereafter Nakano, ‘Political Dynamics’). 77 See ‘Right Side Up: A Powerful if Little-Reported Group Claims It Can Restore the Pre-War Order’ (The Economist, 4 June 2015) accessed 26 October 2018; Norihiro Kato, ‘Tea Party Politics in Japan’ (The New York Times, 12 September 2014) accessed 26 October 2018. 78 Nakano, ‘Political Dynamics’ (n 76) 165. 79 See Milanović, ‘Establishing the Facts’ (n 3). See also Futamura, War Crimes Tribunals (n 64) 100–11 (discussing the importance of educating future generations). 80 Futamura, War Crimes Tribunals (n 64) 114. 81 See more Madoka Futamura, ‘Japanese Societal Attitudes Towards the Tokyo Trial: A Contemorary Perspective’ (2011) 9(5) Asia Pacific J at accessed 2 May 2019.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

278 Marko Milanović their respective crimes. In particular, the Nazi crimes against the Jews of Europe had no Japanese equivalent. Second, both Germany and Japan suffered a complete defeat in the war and were subject to Allied occupation; it is in the nature and policies of the two occupations that we can find the seeds of future successes and failures. Both countries were radically reoriented internally and externally. Like Germany, Japan abandoned militarism and empire, transitioned to democracy and found itself in the orbit of the United States, but without a link to a regional project of economic and political integra tion such as the European Union. Third, the most important difference between Germany and Japan is in the level of elite disruption imposed by the victors. We have seen that even in Germany elite continuity ran deep, accounting for the failure of Nuremberg in inducing popular acceptance of its findings. But in Japan elite continuity was more pervasive, from the Emperor down, with the sole exception of a military thor oughly discredited by the magnitude of its defeat: ‘At almost every level, the postwar state rested on organizational pillars that were firmly planted in the past’.82 To the extent the legacy of the Tokyo IMT threatened these continuing elites, as it still does on ques tions that go to the core of their identity and perception of self-worth, that legacy has been deliberately marginalized. Finally, even though today’s Japan genuinely is a dem ocracy and is far from monolithic when it comes to its relationship to the past, the enduring power of conservative elites has been such that Japan is nonetheless signifi cantly less pluralist than Germany.83 The reduced space for critical self-reflection, com bined with economic stagnation, has created an environment in which revisionist nationalism has much more purchase, and is fed by (and feeds in turn) the competing nationalisms of Japan’s neighbours.

IV. Rwanda What of the ICTY’s sister tribunal, the ICTR? What do we know about the popular per ceptions of the ICTR, and how would the four predictive factors apply to Rwanda? The empirical question on the perceptions of the ICTR is difficult to answer reliably, primar ily because of the increasingly authoritarian turn that Rwanda has taken after the 1994 genocide, which creates numerous incentives for Rwandan people to misrepresent their views when answering questions about the genocide and its legacy. So let us first examine that authoritarian turn.84 Unlike the wars of the Yugoslav succession, but like Germany and Japan, the Rwandan conflict had a clear victor—the Tutsi-elite dominated Rwandan Patriotic Front (RPF), led by Paul Kagame. The Rwandan civil war was itself part of a wider, complex series of atrocity-laden conflicts 82 Dower, ‘Useful War’ (n 62) 63. 83 See ibid 75 (concluding that conservative elites have brokered Japanese democracy ‘in ways that respect the form but frequently kill [its] spirit’). 84 See generally Filip Reyntjens, Political Governance in Post-Genocide Rwanda (CUP 2013) (hereafter Reyntjens, Political Governance).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Courting Failure: When Are International Criminal Courts 279 in neighbouring Uganda, Burundi, and especially in the Congo (Zaire). But, again, in Rwanda the victor was clear, and full advantage was taken of that victory. Ironically, the genocidal programme of the Hutu Power extremists led precisely to the kind of minority Tutsi-elite government that the génocidaires wanted to foil.85 Kagame has been in power in Rwanda since the genocide, whether formally or de facto, without interruption, without any serious rivals, and with increasing authoritarian consolidation. He was elected president of Rwanda twice, in 2003 and 2010, both times with over 90 per cent votes and with over 95 per cent overall turnout, numbers that Kim Jong Un would envy.86 In 2015, Kagame went through the obligatory dictatorial ritual of con stitutional amendments that would allow him to stand for a third presidential term, which were ultimately approved at a referendum by 98 per cent of voters.87 A parliamen tary commission that previously canvassed Rwandan voters about the proposed amendments could find only 10 (ten) individuals in the whole country who disagreed with them, out of the millions they allegedly interviewed.88 Obviously, none of these ten people sat in Rwanda’s parliament, which approved the amendments unanimously.89 In short, despite significant economic development since 1994, Rwanda is a strongly authoritarian state, in which the Kagame regime exercises complete control over any possible issues of political controversy and tolerates little dissent.90 This necessarily extends to inherently political matters of intercommunal reconciliation. The regime has crafted a simplistic official narrative of the 1994 genocide that disregards deeper social roots of the genocide and essentially blames it all on the legacy of Belgian colonialism, which entrenched the Hutu/Tutsi distinction and before which Rwanda was supposedly harmonious and unified, while minimizing atrocities committed by the RPF against the Hutu during and in the aftermath of the genocide.91 That narrative is protected through sweeping and rigorously enforced laws against genocidal ideology and denial.92 Most importantly, in a country with a very young population, today more than half of which 85 See ibid (‘about two thirds of the most important officeholders in the country are Tutsi, while they are about 10 percent of the population’ at 201). 86 See ‘Rwanda President Kagame wins election with 93% of vote’ (BBC News, 11 August 2010) accessed 27 October 2018. 87 See ‘Rwanda vote “allows Kagame to extend term in office”’ (BBC News, 19 December 2015) accessed 27 October 2018. 88 See ‘Only 10 Rwandans against Paul Kagame’s third term, says lawmakers’ report’ (Daily Nation, 11 August 2015) accessed 27 October 2018. 89 See Clement Uwiringiyamana, ‘Rwanda elections: MPs back move to let President Paul Kagame run for unprecedented third term’ (The Independent, 14 July 2015) accessed 27 October 2018. 90 See Human Rights Watch, ‘Rwanda: Repression Across Borders’ (28 January 2014) accessed 27 October 2018. 91 See Reyntjens, Political Governance (n 84) 194–99. 92 See Amnesty International, ‘Safer to Stay Silent: The Chilling Effect of Rwanda’s Laws on “Genocide Ideology” and “Sectarianism” ’ (31 August 2010) accessed 27 October 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

280 Marko Milanović has not witnessed the genocide directly,93 it is perpetuated through public education, which is firmly under regime control and excludes alternative narratives.94 In a society such as this one, reliability of polling or similar quantitative research on politically controversial issues has to be doubted. Let us take as an example the most comprehensive studies conducted by the National Unity and Reconciliation Commission of Rwanda,95 the 201096 and 201597 Rwanda Reconciliation Barometers, the latter con ducted as a survey of a representative sample of 12,000 Rwandans coupled with individual interviews and focus groups.98 According to the 2015 Barometer:99 • 91.3 per cent of survey respondents agreed that the causes of the 1994 genocide against the Tutsis have been frankly discussed and commonly understood in Rwanda; • 95.3 per cent agreed that the way history is currently taught and understood in Rwanda, after the 1994 genocide against the Tutsis, reconciles Rwandans; • 92.6 per cent of respondents claimed that they would ‘prefer to die instead of engaging in divisions or genocide’, while (paradoxically) 28.9 per cent of respondents believed that ‘there are Rwandans who would try to commit genocide, if conditions were favourable’; • 95.6 per cent of respondents asserted that ‘Rwandans view themselves as Rwandans first before anything else’. Perhaps the most telling result in this apparent paradise of truth and reconciliation is that 95.2 per cent of respondents thought that ‘Rwanda’s leaders always do what is in the best interests of citizens’, while 96 per cent agreed that ‘Rwanda is a country whose lead ers respect the rule of law and human rights’.100 It is impossible to conclude anything from this massive poll except that its ever-present 90+ per cent of respondents told the researchers exactly what they wanted to hear—of course we are reconciled, of course we see ourselves as Rwandans first, and of course we trust our leaders. This research simply cannot penetrate the reality of how the genocide and the conflict are perceived by ordin ary, and oppressed, Hutus and Tutsis—in all likelihood, ‘in the privacy of their homes, in 93 See ‘Rwanda Demographics Profile’ (Index Mundi) accessed 27 October 2018. 94 See generally Denise Bentrovato, Narrating and Teaching the Nation: The Politics of Education in Pre- and Post-Genocide Rwanda (V&R unipress 2015). See also Elisabeth King, From Classrooms to Conflict in Rwanda (CUP 2014) 171–73. 95 Reyntjens, Political Governance (n 84) 206 (refers to the Commission as ‘one of the keepers of the regime’s orthodoxy’). 96 National Unity and Reconciliation Commission, Rwanda Reconciliation Barometer (October 2010)

accessed 27 October 2018. 97 National Unity and Reconciliation Commission, Rwanda Reconciliation Barometer (December 2015) accessed 27 October 2018. 98 ibid 11–23. 99 ibid xv–xx. 100 ibid xvii.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Courting Failure: When Are International Criminal Courts 281 discreet conversations, and in the body language that accompanies their silence, the powerless construct their truth, which may well be more radical than the RPF believes’.101 Whatever reality that may be, the ICTR is absent from it—another notable item about the 2015 Barometer is that none of the questions in the survey nor the 100-plus pages of its analysis even mention the ICTR. Other studies have reported anecdotal evidence of negative public perceptions of the ICTR as inefficient, expensive, overly lenient, remote, and having only a ‘very limited’ role in Rwandan society.102 Another study, focusing on establishing the impact of the ICTR’s (small and under-resourced) outreach programme and based on focus groups involving current or recent secondary school students, found that while most Rwandans were aware of the ICTR’s existence, they knew very little about its work.103 According to in-depth interviews with experts conducted as part of the same study, ‘only a minority of Rwandans perceives the ICTR’s impact on reconcili ation to be meaningful or significant’.104 Thus, to the extent we can establish the attitudes of the Rwandan public towards the ICTR, the Tribunal seems to be regarded largely as an irrelevancy. This is still better (or at least different) than the openly hostile attitude towards the ICTY among the Serbs and Croats in the former Yugoslavia. Similarly, although there is no way to be com pletely certain due to the difficulty in obtaining empirically reliable information, it seems that even among the Hutus in Rwanda there is no widespread (silent) denial of the core facts of the 1994 genocide against the Tutsis, again unlike in Yugoslavia. What we therefore need to determine is whether these differences are explainable by reference to the four predictive factors outlined above: group cohesion, elite continuity, authori tarianism, and threat. In that regard, we should first note the impact of the RPF victory in the conflict. Not only were the Hutu Power extremists defeated, but the RPF assumed complete control over the country, in which it established a ‘monopoly of truth’.105 While there is continu ity in the Tutsi elites, the Hutu in Rwanda have been subjected to the domination of the RPF in all aspects of public life,106 thus reducing the space for any alternative narrative 101 Reyntjens, Political Governance (n 84) 256, 208–09. See also Eugenia Zorbas, ‘What Does Reconciliation after Genocide Mean? Public Transcripts and Hidden Transcripts in Post-Genocide Rwanda’ (2009) 11 J of Genocide Research 127 (discussing versions of the truth among the Hutu population diverging from the official narrative, on the basis of individual and group interviews); Sara Kendall and Sarah Nouwen, ‘Speaking of Legacy: Toward an Ethos of Modesty at the International Criminal Tribunal for Rwanda’ (2016) 110 American J of Intl L 212, 229 (hereafter Kendall and Nouwen, ‘Speaking of Legacy’). 102 See Sigall Horovitz, ‘Rwanda: International and National Responses to the Mass Atrocities and Their Interaction’ (DOMAC Project, September 2010) 55–6 accessed 27 October 2018 (hereafter Horovitz, ‘Rwanda’). 103 See Philipp Schulz, ‘ “Justice seen is Justice done?”—Assessing the Impact of Outreach Activities by the International Criminal Tribunal for Rwanda (ICTR)’ (2015) 21(74) Croatian Intl Relations Rev 63, 76 accessed 27 October 2018. 104 ibid 78. 105 Reyntjens, Political Governance (n 84) 195. See also Kendall and Nouwen, ‘Speaking of Legacy’ (n 101) 223. 106 See Anuradha Chakravarty, Investing in Authoritarian Rule: Punishment and Patronage in Rwanda’s Gacaca Courts for Genocide Crimes (CUP 2016) 319 (hereafter Chakravarty, Investing in Authoritarian Rule).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

282 Marko Milanović to emerge. The level of authoritarianism in Rwanda is also far higher than it has ever been in any of the successor states of the former Yugoslavia. In other words, if the Kagame regime wanted to totally discredit the ICTR in the eyes of the Rwandan public in the same way in which the Serb and Croat elites have done with respect to the ICTY, it could have done so. The only reason it did not do so is because the ICTR was not per ceived as posing a serious enough threat, in particular because it only prosecuted Hutu offenders and did not endanger the official narrative of the conflict in Rwanda. We know that the Kagame regime would have pushed back against the ICTR if it had been a threat because this is exactly what the regime did when and to the extent it needed to. In 2002 and 2003, the then prosecutor of both the ICTY and ICTR, Carla Del Ponte, was investigating RPF crimes committed in the aftermath of the genocide, involving tens of thousands of victims. In retaliation, Rwanda not only stopped cooperating with the Tribunal, but initiated a whole-scale diplomatic campaign against Del Ponte, relying on and manipulating its guilt-ridden allies in the West.107 In August 2003, Del Ponte was not re-elected as the ICTR prosecutor by the Security Council, even though she continued as the prosecutor of the ICTY.108 Del Ponte herself stated that she had no doubt that calls for her resignation by Kagame were made as a result of her investigations into alleged RPF atrocities.109 Her successor, Hassan Jallow, never issued any indictments against RPF officials. He transferred one case under investigation to the Rwandan judiciary; in a brief trial, the two senior officers were acquitted, while the two junior officers who confessed to murder were ultimately given five-year sentences.110 We can observe similar pushback by the Rwandan regime against (limited) investigations into allegations against RPF officials undertaken in third states on the basis of universal jurisdiction. The government has been remarkably skilful in capitalizing on international support for post-genocide Rwanda, in deflecting outside pressure, and in leveraging its cooper ation with the ICTR,111 essentially managing to cow the Tribunal.112 It is the ICTR’s very one-sidedness that enabled it to evade the hostile discreditation that was to be the fate of the ICTY in much of the former Yugoslavia.113 It simply stopped being a threat to the 107 See Richard Ashby Wilson, Writing History in International Criminal Trials (CUP 2011) 43–4 (hereafter Wilson, Writing History). See also Reyntjens, Political Governance (n 85) 137–39, 236–47; Kendall and Nouwen, ‘Speaking of Legacy’ (n 101) 220–21. 108 See Horovitz, ‘Rwanda’ (n 102) 58–59. 109 See Steven Edwards, ‘Del Ponte Says UN Caved to Rwandan Pressure’ (Global Policy Forum, 17 September 2003) accessed 27 October 2018. 110 See Wilson, Writing History (n 107) 44–45. 111 See Reyntjens, Political Governance (n 84) 253. 112 See also Wilson, Writing History (n 107) 47–48. 113 See also Horovitz, ‘Rwanda’ (n 102) 59, fn 261 (reporting an interview with an ICTR judge who stated that ‘the main reason for Rwanda’s limited cooperation with the Tribunal was its desire to prevent the Tribunal from gaining public legitimacy in Rwanda, in case it decided to prosecute members of the RPF leadership. . . . Rwanda become confident that the ICTR no longer intends to prosecute RPF mem bers only after the ICTR Prosecutor transferred to Rwanda his case-file (“dossier”) against four RPF officers in 2008 . . . . Until then, he explained, the Rwandan government’s entire activity and planning has been influenced by the risk of its leaders being indicted’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Courting Failure: When Are International Criminal Courts 283 RPF elites controlling Rwanda. At the same time, the ordinary Rwandan judiciary and the special gacaca courts never seriously examined RPF crimes,114 while in various ways helping to entrench the RPF’s authoritarian rule.115 The example of the ICTR is thus fully in line with my working hypothesis.

V. Sierra Leone and Cambodia Let us turn now to two modern hybrid tribunals, the Special Court for Sierra Leone (SCSL), and the Extraordinary Chambers in the Courts of Cambodia (ECCC), both lauded for the strength of their outreach programmes, especially in comparison to the ICTY and the ICTR. As before, the first task is to establish whether the two institutions and the account of atrocities they produced are trusted in their local constituencies, and then examine whether this state of affairs aligns with the four predictive factors. Starting with the SCSL, it would be helpful to first look at a survey of public opinion conducted by the BBC and two NGOs in Sierra Leone in mid-2007, using a representa tive, cross-regional sample of the Sierra Leonean population.116 Their survey showed a very high level of awareness of the existence of the SCSL (98 per cent of men and 94 per cent of women were aware of the Court), coupled with relatively low knowledge of what the Court actually did.117 While the respondents were not asked about their beliefs about specific crimes, their general attitudes towards the SCSL were quite positive: 73 per cent of respondents either agreed or strongly agreed with the propositions that proceedings before the SCSL would deter future crimes;118 77 per cent agreed that the SCSL would achieve justice for the people of Sierra Leone;119 76 per cent of respondents agreed that the SCSL can be trusted to bring justice to those involved in wrongdoing during the war;120 15 per cent ranked the Court’s performance as excellent, while a fur ther 53 per cent rated it as good.121 Another major poll was conducted by a group of NGOs and the SCSL Outreach Section in Sierra Leone and in Liberia in mid-2012, after the trial judgment against Charles Taylor was handed down.122 While this poll also shows a positive picture of the 114 See Reyntjens, Political Governance (n 84) at 221ff. 115 See Chakravarty, Investing in Authoritarian Rule (n 106) 322–23. This is not to deny in any way that the gacaca courts rightly punished vast numbers of the perpetrators of the 1994 genocide. 116 See BBC World Service Trust, International Center for Transitional Justice, and Search for Common Ground, ‘Peace, Justice and Reconciliation in Sierra Leone: A Survey of Knowledge and Attitudes Towards Transitional Institutions in Post-Conflict Sierra Leone’ (August 2008) accessed 27 October 2018. 117 See ibid 59–60 (with 91% of men and 96% of women saying that they knew ‘a little’ about the Court). 118 ibid 62. 119 ibid 63. 120 ibid 64. 121 ibid 65. 122 No Peace Without Justice and others, ‘Impact and Legacy Survey for the Special Court for Sierra Leone’ (NPWJ and SCSL, August 2012) accessed 27 October 2018 (hereafter NPWJ Survey).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

284 Marko Milanović SCSL in both Sierra Leone and Liberia, it unfortunately suffers from some methodological defects that seriously undermine its reliability.123 That said, the overall positive assessment of the SCSL is credible and is in line with the 2007 BBC survey.124 Surveys in Cambodia are similar in that they also show an overall positive assess ment of the ECCC, coupled with poor knowledge about the specifics of its work. Two surveys were conducted in 2008 and then in 2010 (after the conclusion of the first ECCC trial) by the Berkeley Human Rights Center.125 According to the 2010 survey, 25 per cent of respondents had a moderate or higher knowledge of the ECCC, 50 per cent knew a little, and 25 per cent knew nothing about the Court.126 At the same time, only 11 per cent of respondents could correctly identify all of the defendants awaiting trial before the ECCC,127 while 54 per cent could correctly identify Duch as the defendant in the ECCC’s first (then recently completed) trial.128 Despite the lack of specific knowledge, the respondents were quite positive about the ECCC: 79 per cent believed the ECCC’s judges to be fair, 83 per cent thought that the ECCC should be involved in responding to what happened during the Khmer Rouge regime, and 81 per cent stated that the ECCC will help promote national reconciliation.129 Other studies confirm this positive assessment.130 In sum, it is fair to say that, to the extent they can be reliably assessed, the favourability ratings of the SCSL and ECCC in the relevant target populations are quite high, virtually the opposite of what happened to the ICTY. But is this outcome in line with my predict ive hypothesis? Note, first, with regard to continuing group cohesion and polarization, that the conflicts in Sierra Leone and Cambodia were not dominantly based on ethnic or racial identity. In both cases, one side to the conflict—the RUF and the Khmer Rouge (KR) respectively—decisively lost the war it was fighting. The outcome of the two con flicts, in other words, looked more like Rwanda than like Yugoslavia. Second, when it comes to elite continuity, the elites in power in Sierra Leone since the end of the conflict were essentially the same people who fought against the RUF in the civil war, while the RUF lost its power base and its leaders were arrested and tried. In Liberia, on the other hand, Charles Taylor was deposed as president mid-2003 after losing the second Liberian civil war (he became president after winning the first) and went into three years of exile in Nigeria. After a period of transition, it was his successor, Ellen Johnson Sirleaf, 123 See also Stuart Ford, ‘How Special is the Special Court’s Outreach Section?’ in Charles Jalloh (ed), The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law (CUP 2014) 505, 517–19 (hereafter Ford, ‘How Special’). 124 See NPWJ Survey (n 122) 41. 125 Phuong Pham and others, After the First Trial: A Population-Based Survey on Knowledge and Perceptions of Justice and the Extraordinary Chambers in the Courts of Cambodia (Human Rights Center, University of California, Berkeley School of Law, June 2011) accessed 27 October 2018. On the survey methodology, see ibid 16–17 (hereafter P Pham and others, After the First Trial). 126 ibid 21. 127 An increase from 3% in the 2008 survey. ibid 22. 128 ibid 23. 129 ibid 26, 29. 130 See Open Society Justice Initiative, Performance and Perception: The Impact of the Extraordinary Chambers in the Courts of Cambodia (Open Society Foundations 2016) 71–2, 78–80 accessed 27 October 2018 (hereafter OSJI, Performance and Perception).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Courting Failure: When Are International Criminal Courts 285 who asked Nigeria to send Taylor to the SCSL. Though she later became a Nobel Peace Prize laurate, Sirleaf had early ties with Taylor’s bloody rebellion from which she tried to distance herself after becoming president.131 While this is not to say that Taylor had no lingering support in Liberia—far from it132—the government in power had every inter est to leave him be at the SCSL. The Cambodian picture is somewhat more complicated. The Vietnamese interven tion that largely ended the conflict and installed a pro-Vietnamese regime in Cambodia relied on the help of many former Khmer Rouge cadres who had fallen out with the KR leadership. From this regime eventually emerged Cambodia’s ruler for the past 30 years, Hun Sen, himself a former mid-level military commander of the Khmer Rouge. Today Hun Sen is the prime minister, a position he has said he wishes to occupy for at least another decade. Many of his closest associates are former KR cadres, including the finance and foreign ministers and the chairman of the national assembly.133 In short, there is a significant level of elite continuity in Sierra Leone, Liberia, and Cambodia. That said, the various warring factions in Sierra Leone and Liberia did not generally mobilize around some comprehensive set of competing ideologies. As for Cambodia, while the current ruling elite that emerged from a UN-observed process of transition and consolidation is itself comprised of many former KR cadres, that elite has no interest in perpetuating KR ideology,134 but is rather focused in maintaining its power in a Western-friendly, foreign aid-exploiting, impossibly corrupt fake democracy.135 That brings us to the third factor, authoritarianism. Neither Sierra Leone nor Liberia are highly functioning democracies. The level of authoritarianism in these societies is at least on par with that of the Balkans; according to the 2015 EUI Democracy Index, both Sierra Leone and Liberia fall within the category of hybrid regimes, combining the formal existence of democratic institutions with authoritarian, illiberal traits.136 131 In fact, the Liberian Truth and Reconciliation Commission recommended that Sirleaf be barred from holding public office for 30 years due to her early involvement with Taylor, a recommendation she rejected. See more in Prue Clarke and Emily Schmall, ‘Liberia’s Election: Hard Times for Ellen Johnson Sirleaf ’ (Newsweek, 2 October 2011) accessed 27 October 2018; David Fickling, ‘Q&A: Charles Taylor and Liberia’s civil wars’ (The Guardian, 3 April 2006) accessed 27 October 2018. 132 See Jina Moore, ‘Charles Taylor War Crimes Trial Gets Mixed Reviews in Liberia’ (The Christian Science Monitor, 11 November 2009) accessed 27 October 2018; Clair MacDougall, ‘Taylor Guilty: Liberians Have Mixed Emotions about Verdict’ (The Christian Science Monitor, 27 April 2012) accessed 27 October 2018. 133 See Stéphanie Giry, ‘Necessary Scapegoats? The Making of the Khmer Rouge Tribunal’ (The New York Review of Books, 23 July 2012) accessed 27 October 2018 (hereafter Giry, ‘Necessary Scapegoats?’). 134 Note in that regard that the 2010 Berkeley survey found that 81% of respondents reported having feelings of hatred toward the Khmer Rouge responsible for violence. See Pham and others, After the First Trial (n 125) 33. See also Ford, ‘A Social Psychology Model’ (n 5) 448. 135 See generally Sebastian Strangio, Hun Sen’s Cambodia (Yale UP 2014). 136 The Economist Intelligence Unit, ‘Democracy Index 2015: Democracy in an Age of Anxiety’ (2015). 6–7 accessed 27 October 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

286 Marko Milanović While they are also far from being Kagame’s Rwanda, Cambodia is its close analogue. Hun Sen has maintained his 30-year grip on power not only by controlling the coun try’s armed forces, institutions, and the media, but also by periodically imprisoning or executing his political opponents.137 But Hun Sen does not rule through violence alone; he is also a deft political operator and manipulator of public opinion—as a former Canadian ambassador to Cambodia put it, ‘Hun Sen is known for creating his own reality and then living in it’.138 In short, there is little doubt that the level of authoritarianism in Sierra Leone and Liberia, and especially in Cambodia, is such that if their ruling elites wanted to dis credit their respective hybrid tribunals they could have done so. That they did not is a function of the most important predictive factor—lack of threat. The work of the SCSL did little to threaten the ruling elites of Sierra Leone and Liberia, which is why they did not actively oppose it. The Taylor trial was, of course, controversial in Liberia itself,139 but it was not against the interests of President Sirleaf and most other Liberian leaders. In Sierra Leone, the SCSL largely validated the official narrative of the conflict and was thus welcomed, with one significant exception—the case against the leaders of the pro-government CDF militia. Thus, for example, the Sierra Leonean judges on the trial and appeals benches dissented with regard to the conviction and sentencing of the two surviving defendants in the case, essentially because the defendants fought on the ‘just’ side in the civil war.140 That said, the overarching output of the SCSL did not seriously threaten Sierra Leonean elites. President Kabbah—who both established the CDF and invited the creation of the SCSL—was never indicted, did not testify dur ing the CDF trial, and had long fallen out with Sam Hinga Norman, the principal leader of the CDF.141 In Cambodia, the ECCC was actually helpful to Hun Sen’s regime in obtaining inter national legitimacy and creating a narrative that blames only the very top echelon of the

137 See Human Rights Watch, ‘30 Years of Hun Sen: Violence, Repression, and Corruption in Cambodia’ (12 January 2015) accessed 27 October 2018 (hereafter HRW, ‘30 Years of Hun Sen’). 138 Sebastian Strangio, ‘The House That Hun Sen Built’ (Foreign Policy, 13 January 2015) accessed 27 October 2018. 139 Note in that regard that even the otherwise quite rosy NPWJ Survey, found that 42.43% of Liberian respondents thought that the sentences handed down at the SCSL (most recently to Taylor) were too harsh, while only 7.89% of Sierra Leonean respondents believed so. See NPWJ Survey (n 122) 41. 140 For a full account of the case, see Tim Kelsall, Culture under Cross-Examination: International Justice and the Special Court for Sierra Leone (CUP 2009) 36–70. See also Ford, ‘A Social Psychology Model’ (n 5) 441–48 (discussing a noticeable, even if not drastic, drop in support for the SCSL in areas of Sierra Leone whose populations more closely identified with the CDF). 141 See Tim Kelsall, ‘Politics, Anti-politics, International Justice: Language and Power in the Special Court for Sierra Leone’ in Tom Young (ed), Readings in the International Relations of Africa (Indiana UP 2015) 261, 268. See also Jessica Lincoln, Transitional Justice, Peace and Accountability: Outreach and the Role of International Courts after Conflict (Routledge 2011) 81.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Courting Failure: When Are International Criminal Courts 287 Khmer Rouge for the atrocities and the suffering of the Cambodian people,142 so long as the ECCC did not go beyond the ‘necessary scapegoats’ and implicate people currently in power.143 As soon as the ECCC showed any indication that it might to do so, it was faced with immediate obstruction from Cambodian authorities, following a similar pat tern to that of Rwanda and investigations of RPF suspects by the ICTR. But unlike with the ICTR, it was the very hybrid design of the ECCC that provided Hun Sen’s regime with direct tools of political influence, leading to scandal after scandal and serial resig nations of international staff: ‘It was the Cambodians who schooled the West on how to properly capture a mixed tribunal and neutralize if not completely isolate it from relevance’.144 In particular, Cambodian judges form the majority of the ECCC’s judicial chambers, while the international co-investigating judges and prosecutors can do little or nothing without the consent of their Cambodian counterparts, all of whom are sub ject to the regime’s influence.145 Hun Sen has actively opposed the ECCC in pursuing further defendants after cases 001 and 002.146 High-ranking government officials with a KR past have generally not appeared as witnesses before the ECCC, with the Cambodian judges either blocking summonses or with the government refusing to comply with them.147 As a prominent historian put it, ‘Hun Sen set the parameters for the ECCC long ago (whatever the U.N. thinks), and he runs the country’.148 To conclude, the positive assessments of the SCSL and the ECCC in the relevant populations are entirely commensurate with the low level of threat that these courts posed to the dominant elites in Sierra Leone, Liberia, and Cambodia. When these courts started posing a threat, as happened in Cambodia, that threat was adequately 142 See also Peter Manning, ‘Reconciliation and Perpetrator Memories in Cambodia’ (2015) 9 Intl J of Transitional Justice 386, 390; Julie Bernath, ‘ “Complex Political Victims” in the Aftermath of Mass Atrocity: Reflections on the Khmer Rouge Tribunal in Cambodia’ (2016) 10 Intl J of Transitional Justice 46, 64 (hereafter Bernath, ‘ “Complex Political Victims” ’). 143 See Giry, ‘Necessary Scapegoats?’ (n 133). 144 See Aun Chhengpor, ‘A Decade Later, Khmer Rouge Tribunal Leaving a Mixed Legacy’ (VOA Khmer, 21 June 2016) (quoting Sophal Ear) accessed 27 October 2018. See also OSJI, Performance and Perception (n 130) 65–69; Joel Brinkley, ‘Justice Squandered: Cambodia’s Khmer Rouge Tribunal’ (2013) 176(3) World Affairs 41; Ford, ‘A Social Psychology Model’ (n 5) 450–52. 145 See HRW, ‘30 Years of Hun Sen’ (n 137) s IX. Hun Sen and the Subversion of the Khmer Rouge Tribunal; OSJI, Performance and Perception (n 130) 21, 26–9, 37–39. 146 See Prak Chan Thul, ‘Hun Sen Hostility Puts Decade-Old U.N. Khmer Rouge Tribunal in Doubt’ (Reuters, 21 April 2015) accessed 27 October 2018. 147 See ‘Duch: Hun Sen Above Me in KR’ (Khmer Times, 21 June 2016) accessed 27 October 2018; Charlie Campbell, ‘Cambodia’s Khmer Rouge Trials Are a Shocking Failure’ (Time, 13 February 2014) accessed 27 October 2018. 148 George Wright, ‘Heng Samrin’s Absence Leaves Holes at Tribunal’ (The Cambodia Daily 23 August 2016) (quoting David Chandler) accessed 27 October 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

288 Marko Milanović neutralized by the elites through direct means available to them that did not require outright discreditation. There is little evidence that the positive popular assessment of the two hybrid tribunals was caused by their better outreach efforts when compared to the ICTY/R.149 That approval is highly contingent and conditioned by identityprotective reasoning that is capitalized on by local elites—it remains to be seen, for example, how the ethnic Khmer population of Cambodia will respond to the ECCC’s (legally correct) characterization of KR atrocities against the Cham and the Vietnamese as genocide, while Khmer victims are victims ‘only’ of crimes against humanity.150 And even if better outreach was somehow causally linked to increased positive perceptions, there is direct link between elite reaction, as determined by their view of the threat that the given tribunal poses to them, and the actual possibility of outreach. Outreach officers would never have been allowed access to radio or TV pro grammes, or allowed to visit schools or organize town hall meetings, if the local powers that be were significantly opposed to the Tribunal’s work. In sum, the SCSL and ECCC confirm that elite reaction remains the most important predictor of local trust in an international criminal tribunal.

VI. Conclusion Whether an international criminal tribunal and its account of responsibility for com mitted atrocities will be trusted by local populations depends little on the quality of the Tribunal’s work, the fairness of its procedures, or the scope of its outreach programme. It depends mostly on whether the Tribunal’s decisions on whom to prosecute, convict, or acquit align with what these populations want to hear in their particular context and at that particular time.151 Psychological mechanisms of identity-protective reasoning can easily lead to the widespread rejection of the relevant tribunal and its factual account. Whether this will in fact happen depends largely on one variable—the reaction of dom inant local political, media, and intellectual elites. The likelihood and potency of an adverse reaction can, in turn, be predicted by reference to four factors: (1) the degree of continuing group cohesion and polarization; (2) the degree of elite continuity in terms of both personnel and ideology; (3) the degree of authoritarianism in the relevant society; and, most importantly (4) the degree of threat that the work of the Tribunal is perceived to pose to the power and influence of these elites. The five case studies examined above confirmed this predictive hypothesis. In all countries in which a tribunal was regarded positively, it was either not considered to be a threat to the interests of local elites that were in a position to shape public opinion, 149 See Ford, ‘How Special’ (n 123) 524–26. 150 See also Bernath, ‘ “Complex Political Victims” ’ (n 142) 65. 151 See generally Ford, ‘A Social Psychology Model’ (n 5); Milanović, ‘Establishing the Facts’ (n 3).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Courting Failure: When Are International Criminal Courts 289 or if it was, that threat was dealt with through less drastic means than whole-scale discreditation. Thus, Kagame managed to deter the ICTR from prosecuting RPF defendants, and Hun Sen managed to defang the ECCC by obstruction from within, so that the two courts conformed to the narrative that they wanted them to produce. In Germany, on the other hand, during the Allied occupation the Nuremberg IMT was conveniently perceived as exclusively blaming the top layers of Nazi leadership while exculpating the rest, only to then be promptly discredited and forgotten in the 1950s, as Germany returned to self-government. Nuremberg’s rehabilitation came much later. The Japanese right similarly rejected the Tokyo IMT and relegated it to either irrelevance or use as one of many tropes of nationalist victimization. This chapter was confined to these case studies for reasons of space and because the work of the relevant international tribunal in other societies is either in early stages or its impact on popular perceptions is too difficult to measure reliably. But to the extent we are able to analyse them, there are no examples that appear to disprove my predictive hypothesis. For instance, we can conclude with a fair degree of confidence that some thing very similar to the Yugoslav discreditation scenario is unfolding with respect to the Special Tribunal for Lebanon, in a society sharply divided along sectarian lines in which powerful elites can each create their own versions of reality.152 It is also a virtual certainty that this will be the fate of the new special court for Kosovo,153 which is already being vilified by Albanian nationalists on the grounds that it is turning them from heroes into monsters, and that will be similarly vilified by Serb nationalists if it proceeds to acquit high-ranking Albanian defendants (as is likely) due to lack of evidence or wit ness intimidation. And the ICC has already experienced this fate at least once, with its failed Kenyan prosecutions. Paradoxically, it was arguably the ICC’s even-handed pros ecution of both Kenyatta and Ruto, leaders of opposing factions, that incentivized the two to unite politically and jointly work on discrediting the ICC as yet another example of Western colonialism, particularly among members of their own ethnic groups, while actively sabotaging ICC proceedings against them and preventing domestic prosecu tions of lower-level defendants.154 The purpose of this chapter was solely to be predictive, i.e., to assess the likelihood of a Yugoslav scenario occurring elsewhere. It was not to be prescriptive and put for ward policy conclusions. Accurate diagnosis should come before any prescription; in that regard, we need to be realistic—not necessarily cynical, but realistic—about the causal factors that drive public perceptions of the work of international criminal tri bunals. And even with all the caveats about the difficulties of drawing conclusions 152 See, e.g., Michelle Burgis-Kasthala, ‘Defining Justice during Transition? International and Domestic Contestations over the Special Tribunal for Lebanon’ (2013) 7 Intl J of Transitional Justice 497. 153 See Marija Ristic, ‘New Kosovo War Court Awaits Dutch MPs’ Approval’ (Balkan Insight, 17 May 2016) accessed 27 October 2018. 154 For an extensive discussion, see James Verini, ‘The Prosecutor and the President’ (The New York Times, 22 June 2016) accessed 27 October 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

290 Marko Milanović about causality, especially counter-factually, the evidence is in my view fairly strong that by themselves international criminal tribunals have little, if any, power to shape local public opinion. In other words, their relative success or failure in gaining accept ance for their findings among target audiences is not really their success or failure. It depends predominantly on what those with actual power in the affected societies choose to do with the tribunals’ work, and they will only rarely choose to do some thing good.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Section IV

CRIMES

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Chapter 12

‘W h at is A n I n ter nationa l Cr i m e?’ Alexander K.A. Greenawalt

The question posed by my title may seem uninteresting. Over the last 25 years, after all, international criminal law (ICL) has evolved into a well-established field of law. There are institutions dedicated to the enforcement of ICL, and legal professionals whose careers are dedicated to the prosecution, defence, and adjudication of persons accused of having committed international crimes. International criminal law has become an increasingly established part of legal education, and, as the contributions to this volume attest, a rich focus of scholarship. Surely, one might assume, these developments presuppose some stable notion of what international crimes actually are and how they differ from so-called ‘ordinary’ domestic offences. I am not so sure. As I explore in this chapter, the concept of international crimes is surprisingly elusive. Let me start by explaining that the question itself is ambiguous, and one can elicit distinct but interrelated types of answers depending upon one’s meaning. There is, first of all, the matter of general definition. In the United States, for example, a federal crime is one promulgated by a federal statute pursuant to the constitutional powers of the United States’ Congress. By contrast, a criminal prohib ition promulgated pursuant to the police powers of a state is a state crime. How does one describe an international crime in analogous terms? What are the features of a particular criminal prohibition that allows one to describe the offence as an international crime? There is also the question of which specific crimes count among the international crimes. If one were to make a list of international offences, what offences would appear on that list? And what are the specific elements of those offences? There is, finally, the normative question. Which crimes deserve recognition as inter national crimes? So posed, this inquiry seems unresponsive to the question raised by my title. That question asks for an ‘is’ rather than an ‘ought’. But is and ought are not so easily separated. If, as some prominent authorities maintain, international crimes are defined

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

294 Alexander K.A. Greenawalt by certain qualitative features, such as their implication of ‘community values’1 or ‘transnational interests’,2 then normative criteria are embedded in the very definitions of offences. One might ask whether the historical evolution of ICL reflects a stable or coherent distinction between international and domestic offences in this qualitative sense, or whether, conversely, considerations of state sovereignty limit the legitimate scope of ICL. Likewise, the enforcement of ICL will inevitably involve interpretive ambiguities whose resolution will predictably demand consideration, among other factors, of the purposes of ICL. Authorities reflect a rough consensus on many, if not all, of these questions. Genocide, war crimes, crimes against humanity, and aggression are all international crimes (in keeping with common practice, I will call these four the ‘core crimes’),3 with some debate persisting on whether additional international crimes also exist. For Antonio Cassese, the list also includes terrorism and torture.4 M. Cherif Bassiouni has identified 28 international crimes, 10 of which (including the four core crimes) he describes as jus cogens obligations.5 A 1991 draft code by the International Law Commission identified 11 categories of ‘crimes against the peace and security of mankind’,6 whereas the Commission’s subsequent 1996 draft reduced the list to five: the four core crimes plus ‘crimes against United Nations and associated personnel’.7 At least with respect to the core crimes, the most standard account explains that these crimes are all international in the sense that international law both defines their elements and directly prohibits their commission.8 Hence, individual culpability for international crimes does not hinge on whether the conduct in question is punishable under domestic law. Qualitative explan ations emphasize the extreme gravity of these crimes and their unique concern to the 1 Antonio Cassese, International Criminal Law (2nd edn, OUP 2008) (stating that ‘international crimes may be held cumulatively to embrace [various features including] rules intended to protect values considered important by the whole international community [and] a universal interest in repressing these crimes’ at 23–24) (hereafter Cassese, ICL). 2 M. Cherif Bassiouni, ‘International Crimes: The Ratione Materiae of ICL’ in M. Cherif Bassiouni (ed), International Criminal Law, Vol I: Sources, Subjects and Contents (3rd edn, M. Nijhoff 2008) (identifying ‘five criteria applicable to the policy of international criminalization’ including that ‘the prohibited conduct affects a significant international interest’ at 133) (hereafter Bassiouni, ‘Ratione Materiae’) 3 See, e.g., Roger O’Keefe, International Criminal Law (OUP 2015) (hereafter O’Keefe) (‘[t]he term ‘core crimes’ is frequently found in the literature, the reference being to genocide, crimes against humanity, war crimes, and the crime of aggression’. O’Keefe finds this label ‘formally meaningless and factually misleading’, and argues is ‘merely a historically contingent descriptor referable to no more than the twin facts that the crimes in question have featured within the respective jurisdictions ratione materiae of most of the international criminal courts seen to date and that the four of them are currently the only crimes triable by the International Criminal Court’ at 63–64). 4 Cassese, ICL (n 1) 149–51, 177–78. 5 Bassiouni, ‘Ratione Materiae’ (n 2) 137–38. 6 International Law Commission ‘Draft Code of Crimes Against Peace and Security of Mankind’ in Report of the International Law Commission, UNGAOR, 43rd Sess, Supp No 10, UN Doc A/46/10, (1991) 95–98. 7 International Law Commission, ‘Draft Code of Crimes Against the Peace and Security of Mankind’ in Report of the Commission to the General Assembly on the Work of its Forty-eighth Session, UNGAOR, 51st Sess, Supp No 10, UN Doc A/51/10, (1996) 15. 8 See n 53.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

‘What is An International Crime?’ 295 international community as factors distinguishing international offences from ‘ordinary’ domestic crimes.9 In this chapter I defend a pluralist account of ICL, one that draws a blurrier line between the ordinary and the international. As both a descriptive and a normative matter, there is no hard and fast distinction between these offences, but instead a continuum of regulation in which international law asserts varying degrees of nonexhaustive force over the criminal law. This pluralism derives principally from the normative underpinnings of ICL that, I argue, are concerned less with the prosecution of offences that are uniquely international in some qualitative sense than with protecting universal human values through a division of labour between international and domestic institutions. In some ways, the identification of particular international offences is useful to this endeavour, but in other ways it complicates it. Because the division of labour works differently in different situations, one’s idea of what is, or should be, an international crime may itself be context-dependent, straining international law’s ability to maintain a unitary distinction between international and domestic offences. Hence, this feature of ICL has substantial descriptive and normative power with respect to the evolution and promise of ICL, and also has shortcomings that help explain the tensions and dilemmas that complicate the field. My discussion proceeds as follows. I argue first that the historical path of ICL reveals no clear distinction between the nature of international and domestic offences. As ICL has expanded from a model tethered to interstate regulation and evolved into one that defends universal human dignity, it has become increasingly difficult to distinguish international offences from domestic offences on qualitative grounds. Next, I explore complexities associated with competing positive law explanations of international crime. The view that international crimes are defined principally by reference to an international legal obligation to suppress provides an internally coherent framework, but with the counterintuitive result that many seemingly ordinary domestic offences are, in fact, international crimes. By contrast, the more common explanation that international law directly prohibits international offences aligns with the historically appealing explanation that ICL exists to support special institutional responses to certain especially grave offences that have proven uniquely resistant to domestic prosecution. But this account, too, has its problems. The ad hoc, often retroactive, recognition of international offences reveals no clear metric for recognizing which offences reflect a direct prohibition and which do not. It remains unclear, moreover, that the concept of direct prohibition is in fact necessary to any of the particular institutional responses that ICL ostensibly exists to support. Finally, the diversity of these institutional responses that make use of ICL calls into question the sustainability of a one size-fits-all approach to ICL: the functional needs of different institutional settings will predictably result in either the fragmentation of ICL or its diminishment. 9 See nn 1–3 above.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

296 Alexander K.A. Greenawalt

The nature of international crimes At the close of World War II, when the victorious Allied powers established special tribunals to prosecute senior German and Japanese officials, the effort benefited from a seemingly straightforward account of what it was that internationalized these offences. Committed in the pursuit of a global war, these were crimes that quite literally crossed borders. The statutes of the International Military Tribunals convened in Nuremberg and Tokyo authorized the prosecution of those responsible for initiating and waging that illegal war, those who committed war crimes within it, and those who committed a third category of offence—crimes against humanity—‘in execution of or in connection with’ the foregoing two offences.10 Hence, the link to Word War II was the defining theme of these tribunals. The regulation of international armed conflict was already a core focus of international legal regulation, an effort wholly consistent with a traditional paradigm of international law as the body of law established to regulate the relations among states but not—pursuant to the principle of sovereign equality—their internal affairs. One can imagine a system of international criminal law evolving along these lines, with new offences emerging to address special problems of transnational regulation. Indeed, in 1989 when Trinidad and Tobago revived the idea of a permanent inter national criminal tribunal, prompting the UN General Assembly to take the measures that ultimately produced the International Criminal Court (ICC), the state had in mind a court that would assist in combatting the international drug trade.11 That, however, is not the path that ICL has taken.12 The law has, instead, largely coalesced around a so-called ‘atrocity’ model, focusing on the most severe offences without regard to whether or not their commission crosses state borders.13 The seeds of 10 Charter of the International Military Tribunal, 8 August 1945, 59 US Stat 1544, 1547, 82 UNTS 284, art 6(c) (hereafter IMT Charter); Charter of the International Military Tribunal for the Far East, 19 January 1946, TIAS No 1589, 4 Bevans 20, art 5(c) (as amended on 26 April 1946, 4 Bevans 27) (hereafter IMTFE Charter). 11 International criminal responsibility of individuals and entities engaged in illicit trafficking in narcotic drugs across national frontiers and other transnational criminal activities: establishment of an international criminal court with jurisdiction over such crimes, GA Res 44/39, UNGAOR, 44th Sess, 72nd Plen Mtg, UN Doc A/RES/44/39, (1989) (‘[r]equests the International Law Commission . . . to address the question of establishing an international criminal court or other international criminal trial mechanism with jurisdiction over persons alleged to have committed crimes which may be covered under such a code of crimes, including persons engaged in illicit trafficking in narcotic drugs across national frontiers’ para 3); James Crawford, ‘The Making of the Rome Statute’ in Philippe Sands (ed), From Nuremberg to The Hague: The Future of International Criminal Justice (CUP 2003) 109. 12 See, e.g., Sarah Nouwen, ‘International Criminal Law: Theory All Over the Place’ in Anne Orford, Florian Hoffmann, and Martin Clark (eds), Oxford Handbook of the Theory of International Law (OUP 2016) 738 (noting and critiquing the view that ‘international crimes are crimes that transcend boundaries’) (hereafter Nouwen). 13 See, e.g., Robert Cryer and others, An Introduction to International Criminal Law and Procedure (3rd edn, OUP 2014) (hereafter Cryer, Introduction to ICL) (‘[w]ith the possible exception of the crime of aggression with its focus on inter-State conflict, the concern of international criminal law is now with

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

‘What is An International Crime?’ 297 this model were present already after World War II, when prosecutorial efforts addressed offences that—in addition to their transnational dimensions—ranked among the most heinous in human history. The immediate post-war period saw the passage of the Universal Declaration of Human Rights, identifying obligations owed by governments to their own citizens in peacetime,14 as well the Genocide Convention, which extended individual criminal liability to acts of genocide even when committed during peacetime by a government against its own people.15 Contemporary ICL, newly resurgent following the Cold War, has generally rejected the international armed conflict paradigm. Liability for war crimes is now broadly acknowledged to apply in non-international conflicts,16 and crimes against humanity have definitively transcended any sort of armed conflict nexus.17 Indeed, the vast majority of recent ICL cases have involved perpetrators—sometimes government officials or other state actors, but oftentimes not—victimizing their co-citizens within the territory of their own respective states. individuals and with their protection from wide-scale atrocities’ at 3). The crime of aggression continues to require an interstate conflict in that aggression involves an illegal armed attack committed by one state against another. That crime has gone unprosecuted at the international level since World War II, however, and the recent activation of jurisdiction over aggression by the ICC represents the first time since World War II that an international criminal tribunal has even possessed jurisdiction to prosecute the crime. See ICC, ‘Assembly Activates Court’s Jurisdiction Over the Crime of Aggression’ (Press Release, 15 December 2017) accessed 14 October 2018; Alex Whiting, ‘Crime of Aggression Activated at ICC: Does it Matter?’ (Just Security, 19 December 2017) accessed 14 October 2018 (hereafter Whiting) (‘[a]lthough the crime of aggression was the top charge at Nuremberg, it was the one crime that was conspicuously left out of the mandate of all of the tribunals that came after it, which focused instead on war crimes, crimes against humanity, and genocide’). The significance of this development is tempered by the relatively low number of states parties that have agreed to be subject to the amendment thus far, and by a statutory provision precluding—absent a UN Security Council referral— the prosecution of individuals for acts of aggression committed by a state that has not agreed to the amendment. See Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3 (as am by the Review Conference 2010, Res RC/Res.6, depository notification C.N.651.2010.TREATIES-8), art 8 bis (hereafter Rome Statute). 14 Universal Declaration of Human Rights, GA Res 217A(III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810, (1948) (hereafter UDHR). 15 See Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 102 US Stat 3045, 78 UNTS 277, art I (hereafter Genocide Convention). 16 See eg Prosecutor v. Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), IT-94-1-I, (2 October 1995) (ICTY, Appeals Chamber) (hereafter Prosecutor v. Tadić (Appeal Decision on Jurisdiction)) (‘we have no doubt that [the war crimes alleged] entail individual criminal responsibility, regardless of whether they are committed in internal or international armed conflicts’); Rome Statute (n 13) art 8(2)(e) (defining war crimes ‘in armed conflicts not of an international character’). 17 See, e.g., Statute of the International Criminal for Rwanda, SC Res 955, UNSCOR, 3453rd Mtg, UN Doc S/RES/955, (1994) (hereafter ICTR Statute) (establishing the International Criminal Tribunal for Rwanda (ICTR) with jurisdiction to try crimes against humanity ‘when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds’ at art 3); Rome Statute (n 13) (‘[f]or the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’ at art 7).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

298 Alexander K.A. Greenawalt The paramount value of contemporary ICL, it would seem, is humanity itself, not international order.18 But this explanation is puzzling. It provides, perhaps, a morally satisfying account of why certain offences belong to ICL, but it fails to explain what, if anything, distinguishes these offences from other offences that are not international crimes. Take murder, for example. Pursuant to the ICC’s statute, murder becomes an international crime against humanity when knowingly committed as part of a ‘widespread or systematic attack directed against any civilian population’.19 Likewise, murder can be a war crime when committed in connection with an armed conflict,20 and it can be genocide when committed as part of a plan to destroy a racial, ethnic, national, or religious group in whole or in part.21 But what about a murder lacking these special aspects? Does ‘ordinary’ murder deserve recognition as an international crime? Is it even clear that ordinary murder is not, in fact, an international crime?

The obligation to criminalize Answering these questions requires more careful consideration of what it exactly means to call something an international crime, and also, conversely, what it means to say that an offence is not an international crime. One way of thinking about the distinction is to ask whether international law demands prohibition of particular conduct.22 This approach finds a vigorous defence in the recent work of Kevin Jon Heller, who maintains that, as a matter of positive law, ‘an international crime is an act that international law obligates every state in the world to criminalize’.23 Heller distinguishes international crimes from the core ordinary crimes as follows: 18 See, e.g., Prosecutor v. Tadić (Judgment) IT-94-1-A, (15 July 1999) (ICTY, Appeals Chamber) (hereafter Prosecutor v. Tadić (Appeal Judgment)) (noting that ‘[a] State-sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach’ at para 97). Perhaps, one might object, I reach this conclusion too quickly without considering other ways in which ICL offences might reflect uniquely international interests, for example, by addressing intrastate conduct that nevertheless poses grave risks to international security, or by imposing harms that uniquely offend humanity as a whole. As I have explored elsewhere, such arguments are problematic in at least two respects: it is difficult to see how those criteria adequately distinguish acknowledged international offences from other, seemingly non-international offences; and even if they do, it is difficult to see why ICL could not also take account of other values in defining offences. See Alexander K A Greenawalt, ‘The Pluralism of International Criminal Law’ (2011) 86 Indiana L J 1063 (hereafter Greenawalt, ‘Pluralism of ICL’). See also Nouwen (n 12) (identifying such arguments and arguing along similar lines); O’Keefe (n 3) (‘even if one were to accept that all international crimes violate some or other fundamental value of the international community, this violative quality would not serve to distinguish international crimes from municipal crimes, unless one were to deny that murder, rape, infliction of grievous bodily harm, wanton destruction of property, and so on, even where punishable under municipal law alone, are intrinsically violations of the fundamental values of the international community’ at 59). 19 Rome Statute (n 13) art 7. 20 ibid art 8. 21 ibid art 6. 22 See, e.g., O’Keefe (n 3) 51 (citing support for this ‘inclusive approach’). 23 Kevin Jon Heller, ‘What is an International Crime? (A Revisionist History)’ (2017) 58(2) Harvard J of Intl L 353, 355 (footnotes omitted) (hereafter Heller).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

‘What is An International Crime?’ 299 [N]early all scholars share a common understanding of what makes an international crime distinctive: namely, that it involves an act that international law deems universally criminal. The international-law requirement is what distinguishes an international crime from a domestic crime: although some acts that qualify as domestic crimes are universally criminal – murder, for example – their universality derives not from international law, but from the fact that every state in the world has independently decided to criminalize them.24

This approach provides a coherent and plausible definition of international crime, and Heller’s account raises serious challenges to the more standard account that I explore in this chapter. Nevertheless, I am skeptical that this approach succeeds in achieving the distinction between domestic and international crime that most accounts of ICL assume. The right to life, after all, is one of the most fundamental human rights there is. Is it really the case that international law takes no position on whether states must criminalize murder? Is the general prohibition on murder merely a matter left to the independent discretion of states? There is international human rights jurisprudence dictating otherwise. International human rights bodies have taken the position that states are obligated not merely to refrain from directly violating fundamental rights, but also to protect those within their territory from crimes such as murder, rape, and domestic abuse, including through the promulgation of effective criminal sanctions.25 Hence, according to this now 24 ibid 354 (footnotes omitted). 25 See, e.g., Velasquez Rodriguez v. Honduras (1988), Judgment, Inter-Am Ct HR (Ser C) No 4 (noting that ‘[a]n illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention’ at para 172, and finding a violation of the human rights to life and liberty resulting from ‘the complete inability of the procedures of the State of Honduras, which were theoretically adequate, to carry out an investigation into the disappearance of Manfredo Velásquez, and of the fulfillment of its duties to pay compensation and punish those responsible’ at para 178); Osman and Osman v. United Kingdom (Judgment, merits and just satisfaction) (1998), App no 23452/94, Case No 87/1997/871/1083, ECHR 1998-VIII, [1998] ECHR 101, (2000) 29 EHRR 245, (noting that the right to life, as protected by the European Convention on Human Rights, ‘enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction’ and also that the state has a ‘primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by lawenforcement machinery for the prevention, suppression, and sanctioning of breaches of such provisions’ at para 115); MC v. Bulgaria (Merits and just satisfaction) (2003), App no 39272/98, (2005) 40 EHRR 20 [MC v Bulgaria] (‘[s]tates have a positive obligation . . . to enact criminal-law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution’ at para 153); Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on State Parties to the Covenant, UNHRCOR, 88th Sess, 2187th Mtg, UN Doc CCPR/C/21Rev.1/Add.13 (2004) (‘[t]he [International Covenant on Civil and Political Rights] cannot be viewed as a substitute for domestic criminal or civil law. However, the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

300 Alexander K.A. Greenawalt well-established understanding, the obligation to prohibit core, universally prohibited, domestic offences exists as an obligation under international human rights law (IHRL). If an international crime is defined by a universal obligation to prohibit at the domestic level, then this line of reasoning quickly transforms the most universal, malum in se, domestic offences into international crimes. Perhaps, one will argue, this argument has it wrong. Perhaps the opinions of regional bodies such as the European Court of Human Rights (ECHR) and the Inter-American Court of Human Rights, along with other particular human rights bodies established under particular treaties, are simply mistaken to extract a positive obligation to criminalize from general human rights guaranties. Or perhaps, this view lacks sufficient universality as matter of positive law to establish the requisite global obligations. In that case, the question becomes a debate about the content of international human rights. But suppose these authorities have it right, and that universal human rights are broad enough to embrace the right—hardly unreasonable—to live in a state where murder and rape are prohibited and taken seriously by the authorities. Does that position necessarily transform those offences into international crimes? Or is the commitment to that understanding of human rights nevertheless consistent with the view that international offences deal with something different? Consider some potential bases of distinction.

Specificity and uniformity One might object that ICL involves a different level of specificity. International crimes are offences whose elements are defined by international law. Domestic crimes are defined by domestic law. Even if IHRL imposes an obligation to punish murder, that obligation still leaves many details to state discretion, including the precise definition of the offence, and the general standards of responsibility, including modes of participation, defences, etc. Hence, imposing an obligation to punish murder is not the same as defining murder as a crime under international law. While this distinction has intuitive appeal, it maps only partly against actual practice. Consider, for instance, the case of M.C. v. Bulgaria, in which the ECHR faulted Bulgaria for including a force requirement in its criminal prohibition of rape.26 The Court held that ‘[s]tates have a positive obligation inherent in Articles 3 and 8 of the [Convention for the Protection of Human Rights and Fundamental Freedoms] to enact criminal-law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution’27 With respect to the particular elements of rape, the Court elaborated that the ‘Convention must be seen as requiring the penalisation and effective persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities’ at para 8). 26 MC v. Bulgaria (n 25).

27 ibid para 153.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

‘What is An International Crime?’ 301 prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim’.28 In support of this position, the Court looked not to a specific treaty provision addressing rape, but instead to the general human right to be free from torture and degrading treatment, and also to the right to privacy.29 As is evident, the M.C. v. Bulgaria case addressed the elements of rape with relative specificity, holding that Bulgaria could not, consistent with its human rights obligations, impose a force requirement in the definition of the offence.30 On the other hand, international law has not defined ICL offences with the specificity that one might imagine.31 For instance, when the London Charter of the International Military Tribunal at Nuremberg first identified crimes against humanity as an inter national offence, the treaty listed ‘murder’ along with ‘extermination’, ‘enslavement, deportation, and other inhumane acts’ as types of crime against humanity, but it did nothing further to define the elements of these particular offences.32 Likewise, when the International Criminal Tribunal for the former Yugoslavia (ICTY) recognized rape as both a war crime and a crime against humanity, it did so based on a statute that merely identifies (without further elaboration) rape as one of the crimes against humanity, and that does not specifically list rape as a war crime but instead authorizes the prosecution of those ‘persons violating the laws or customs of war’.33 To identify the elements of rape, the court looked to the major domestic legal systems of the world for guidance since ‘it was not possible to discern the elements of the crime of rape from international treaty or customary law, nor from the “general principles of international criminal law or ( . . . ) general principles of international law” .’34 As such, the ICTY had no more guidance regarding specific elements than did the ECHR in the M.C. v. Bulgaria case. 28 ibid para 166. 29 ibid para 110. Pursuant to its jurisdiction, the Court applied a regional treaty, the European Convention on Human Rights. The same guarantees, however, appear in other, broader-reaching instruments such as the Universal Declaration on Human Rights, see UNDH, (n 14) arts 3 (‘right to life, liberty and security of person’), 5 (‘[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’), 12 (‘[n]o one shall be subjected to arbitrary interference with his privacy’); and the International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171 (in force 1976), arts 7 (‘[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’), 9 (‘right to life, liberty and security of person’), 17 (‘[n]o one shall be subjected to arbitrary or unlawful interference with his privacy’). 30 MC v Bulgaria (n 25). 31 See eg Cassese, ICL (n 1) (‘[i]t would seem that the difference between national criminal laws and international criminal rules lies in the still rudimentary character of the latter’ at 135). 32 IMT Charter (n 10) art 6(c). 33 See Prosecutor v. Furundžija (Judgment) IT-95–17/1-T, (10 December 1998) (ICTY, Trial Chamber) paras 165–89 (hereafter Furundžija (Judgment)]; Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, SC Res 827, UNSCOR, 48th Sess, 3217th Mtg, Annex I to UN Doc S/25704, (1993) 32(4) ILM 1192, arts 3, 5 (hereafter ICTY Statute). 34 Prosecutor v. Kunarac et al. (Judgment) IT-96-23-T & IT-96–21/1-T, (22 February 2001) (ICTY, Trial Chamber) para 437 (summarizing the analysis of the Furundžija judgment); Furundžija (Judgment) (n 33) (‘[t]his Trial Chamber notes that no elements other than those emphasised may be drawn from inter national treaty or customary law, nor is resort to general principles of international criminal law or to general principles of international law of any avail. The Trial Chamber therefore considers that, to arrive

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

302 Alexander K.A. Greenawalt This example highlights a broader tendency in the evolution of ICL toward selective and partial definition. As I shall elaborate further, this history complicates not only the specific claim that ICL offences are defined by reference to state obligation, but indeed it calls into question the more general assumption—central to the standard account that ICL directly assigns individual culpability—that the law establishes a fixed distinction between international and domestic offences that holds constant across different jurisdictional contexts. ICL instruments—despite sometimes pervasive vagueness— have provided relative (although changing) clarity on the ‘chapeau’ or ‘internationalizing’ elements that most distinguish international offences from their domestic counterparts, but they have failed to provide critical details necessary to the actual prosecution of the crimes. Hence, as I have already explained, the statutes of the post-World War II International Military Tribunals limited prosecution of crimes against humanity to offences involving a nexus to an international armed conflict.35 Subsequent tribunals have expanded that category of offence. The ICTY statute, promulgated in 1993, retained the armed conflict nexus but did not require an international conflict.36 The next year, the UN Security Council expanded the offence’s definition even further with the ICTR Statute, then specifying that what defined a crime against humanity was not an armed conflict of any kind, but instead the commission of an enumerated offence ‘as part of a widespread or systematic attack against a civilian population’.37 The list of enumerated offences also evolved, but these post-Cold War statutes continued to define those offences in only the most general way, leaving crucial elements (such as the aforementioned definition of rape) to case-by-case development. The story is very much the same when it comes to general standards of responsibility.38 The aforementioned statutes dedicate attention to certain issues that have special at an accurate definition of rape based on the criminal law principle of specificity . . . it is necessary to look for principles of criminal law common to the major legal systems of the world. These principles may be derived, with all due caution, from national laws’ para 177). 35 IMT Charter (n 10) art 6(c); IMTFE Charter (n 10) art 5(c). 36 ICTY Statute (n 33) art 5. 37 ICTR Statute (n 17) art 3. 38 One can object here that I am conflating the general part of the criminal law with the specific elem ents of offences when, in fact, they are distinct. Nevertheless, there is an interdependence between these two areas of law in that both are required to assign culpability for an international crime. The point is especially crucial for the standard account that ICL directly assigns individual culpability, since it is not possible to do so without addressing both the specific elements of offences and the standards of personal responsibility. In at least many cases, the distinction appears to be one of drafting convenience. For instance, a criminal code can specify mens rea on an offence-by-offence basis in the elements of the offence, or it can address mens rea in the general part. The ICC Statute, for instance, does both: it establishes default mens rea requirements for all offences (Rome Statute (n 13) art 30(3)), while also including some mens rea requirements in the elements of offences (see, e.g. art 6 (defining genocidal mens rea) and art 7 (defining crimes against humanity in part by reference to the perpetrator’s ‘knowledge’ of participation in a ‘widespread or systematic attack directed against any civilian population’)). Likewise, the Rome Statute defines the crime of aggression partly as an inchoate offence, such that ‘planning’ and ‘preparation’ are forms of committing aggression (ibid art 8bis(1)) whereas, for the other offences, criminal attempts are regulated in the general part alongside the other modes of responsibility (see ibid art 25(3)(f)). The fact that an element is included in the definition of an offence may provide good evidence, as I have argued elsewhere, that the element is especially central to ICL’s purposes, but that need not be the case. See Greenawalt, ‘Pluralism of ICL’ (n 18).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

‘What is An International Crime?’ 303 relevance for international crimes. They specify, for example, that neither official capacity39 nor following orders is a defence,40 and some also codify the rule that commanders are to be held responsible for their subordinates’ actions pursuant to special rules of superior responsibility.41 But none of these statutes, for example, say anything about accomplice liability except to provide that it exists. Nor do they say anything about applicable defences. In the case of Prosecutor v. Erdemović, a plurality of the ICTY’s Appeals Chamber found that international law simply provided no answer on the critical matter of whether duress could ever supply a complete defence to murder, and so the Tribunal fashioned its own rule (which denied the defence) based upon its own policy analysis.42 The ICC’s Rome Statute is somewhat different given its relative greater specificity, including more substantial attention to the general part of the criminal law. Perhaps, one might argue, the legal gaps I have identified are simply the sign of an immature but evolving body of law, one that is increasingly moving from case-by-case evolution to settled principles. The Rome Statute’s greater textual specificity, one could say, represents precisely the sort of evolution needed to iron out the predictable wrinkles that have accompanied ICL in its beginnings. But in some ways that specificity only compounds the difficulties I have just outlined. In several respects—including its treatment of enterprise liability,43 its provision on duress,44 and its standard for aiding and abetting45—the 39 IMT Charter (n 10) art 7; ICTR Statute (n 17) art 6(2); ICTY Statute (n 33) art 7(2). 40 IMT Charter (n 10) art 8; ICTR Statute (n 17) art 6(4); ICTY Statute (n 33) art 7(4). 41 ICTR Statute (n 17) art 6(3); ICTY Statute (n 33) art 7(3). 42 See Prosecutor v. Erdemović (Joint Separate Opinion of Judge McDonald and Judge Vohrah) IT-96-22-A, (7 October 1997) (‘duress, either as a general notion or specifically as it applies to murder, is not contained in any international treaty or instrument’ at para 51. The Appeals Chamber rejected the defence of duress on the ground that ‘[w]hilst reserving our comments on the appropriate rule for domestic national contexts, we cannot but stress that we are not, in the International Tribunal, concerned with ordinary domestic crimes. The purview of the International Tribunal relates to war crimes and crimes against humanity committed in armed conflicts of extreme violence with egregious dimensions’ at para 75). I have argued elsewhere that this distinction is unconvincing. See Greenawalt, ‘Pluralism of ICL’ (n 18). 43 The ICTY case law applied the broad approach to enterprise liability announced in the Tadić case, according to which a participant in a joint criminal enterprise who makes some contribution to the common plan becomes criminally responsible for all crimes committed by others pursuant to the common plan, including foreseeable offences outside the common plan, so long as the accused at least ‘willingly took that risk’ that such crimes might occur. Prosecutor v. Tadić (Appeal Judgment) (n 18) paras 227–28. The most analogous provision of the Rome Statute criminalizes intentional contributions to the crimes of ‘a group of persons acting with a common purpose’, but this language does not assign liability for crimes to which one did not contribute, and it requires, at minimum, ‘knowledge of the intention of the group to commit the crime’. Rome Statute (n 13) art 25(3)(d). 44 The ICTY ruled that duress can never provide a complete defence to murder. See text to n 42. The Rome Statute’s provision on duress contains no such exclusion. See Rome Statute (n 13) art 31(1)(d). 45 The ICTY case law has convicted accessories based on their substantial contributions to the principal’s conduct, with knowledge they were assisting the commission of the offence. See, e.g., Furundžija (Judgment) (n 33) para 249. The Rome Statute’s general provision on aiding and abetting provides for the punishment of those accessories who act ‘[f]or the purpose of facilitating the commission of . . . a crime’ (Rome Statute (n 13) art 25(3)(c)). Note, however, that the Rome Statute separately criminalizes intentional contributions to the crime of ‘a group of persons acting with a common purpose [with] knowledge of the intention of the group to commit the crime’ (ibid art 25(3)(d)).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

304 Alexander K.A. Greenawalt Rome Statute defines a narrower scope of culpability than what the ad hoc tribunals have said customary international law imposes. What is the basis for this difference and which approach, if any, reflects true ICL? It could be that the ad hoc tribunals simply have it wrong. The Rome Statute, after all, is a multilateral treaty joined by over 100 states, and is arguably a better reflection of custom on these points than is the case law of the ad hoc tribunals that, as I have explored in another work, is not always convincing in its attempts to distill authoritative rules derived heavily from World-War-II case law that does not speak with great clarity or uniformity on these questions, and that is not in itself an especially authoritative source of custom in the first place.46 But the Rome Statute, on the other hand, does not purport to establish customary rules, and its text is explicit that nothing in its criminal law provisions ‘shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute’.47 This caveat makes sense considering that the Rome Statute is not a general statement of ICL, but instead the foundational document of a specific institution with quite specific—and for some states excessive—powers. The United States, for instance, has declined to join the ICC notwithstanding its critical role in establishing other international criminal tribunals.48 Hence, one must be cautious about equating limitations imposed on that particular institution with limitations on ICL more broadly. The picture becomes even more complex when one moves beyond international tribunals to consider the position of domestic tribunals prosecuting international crimes. The ICTY, for instance, transferred several of its indicted suspects to a special war crimes court in Bosnia, whose statute applies domestic Bosnian criminal law principles to the prosecution of international crimes.49 Had the ICTY transferred the Erdemović case to the Bosnian court as it subsequently did with other lower-level suspects,50 the outcome might well have been quite different considering that the Bosnian statute—like the Rome Statute but unlike the ICTY case law—does indeed sometimes permit duress as a complete defence to murder. The ICC, moreover, operates under a ‘complementarity’ principle according to which the Court defers to genuine investigations and prosecutions at the national level.51 As ICC case law has confirmed, the national 46 See Alexander K A Greenawalt, ‘Foreign Assistance Complicity’ (2016) 54 Columbia J of Transnational L 531. 47 Rome Statute (n 13) art 10. 48 See, e.g., David J Scheffer, ‘The United States and the International Criminal Court’ (1999) 93 American J of Intl L 12; John R Bolton, Under Secretary of State for Arms Control and International Security, ‘The United States and the International Criminal Court’ (Remarks to the Federalist Society, Washington, DC, 14 November 2002) accessed 15 October 2018. 49 See Krivični Zakon Bosne i Hercegovine [KZBiH] (Criminal Code of Bosnia and Herzegovina), Službeni glasnik Bosne i Hercegovine (Official Gazette of Bosnia and Herzegovina), No 3/03, 32/03, 37/03, 54/04, 61/04, 30/05, 2006. 50 ICTY, ‘Transfer of Cases’ accessed 15 October 2018 (discussing the transfer of lower level suspects to the courts of Bosnia and other former Yugoslav states). 51 Rome Statute (n 13) (‘the Court shall determine that a case is inadmissible where . . . [t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution’ art 17(1)).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

‘What is An International Crime?’ 305 roceedings need not apply ICL. The key point is that the ICC may not proceed with a p case when there are ongoing national proceedings targeting the same conduct. For these purposes, a state may prosecute the conduct using its own domestic criminal legal standards, although it remains unclear to what extent domestic criminal law may produce different outcomes than would the law of the ICC.52 If international crimes are defined in terms of an obligation on the part of states to prohibit certain universally condemned acts, these examples call into question the nature of that obligation. What exactly is it that ICL condemns, and with what level of specificity? It is not clear, in the end, that international crimes are purely international, or that the most serious domestic crimes are purely domestic. Instead, what appears is a continuum of regulation according to which international law asserts certain demands but does not monopolize the entirety of the law necessary to convict offenders.

Direct Prohibition Another way to distinguish international crimes from domestic crimes is to assert that international crimes are offences for which international law directly establishes individual culpability. This, indeed, is the most common way of defining international crimes.53 Under this conception, an individual commits an international crime when she violates a relevant prohibition imposed by international law, irrespective of whether any domestic obligation to prohibit exists, and irrespective of relevant domestic legislation. Assume for the moment that this explanation is correct and international law does in fact directly prohibit certain offences (the international offences), while merely obligating states to prohibit certain other offences (such as the core malum in se offences). What exactly is at stake in this idea? As already explained, the evolution of both ICL and IHRL 52 Prosecutor v. Saif Al-Islam Gadaffi & Abdullah Al-Senussi (Decision on the Admissibility of the Case Against Abdullah Al-Senussi) ICC-01/11–01/11, (11 October 2013) (Pre-Trial Chamber I) (‘the assessment of the subject matter of the domestic proceedings must focus on the alleged conduct and not on its legal characterisation. Indeed, “[t]he question of whether domestic investigations are carried out with a view to prosecuting “international crimes” is not determinative of an admissibility challenge” and “a domestic investigation or prosecution for “ordinary crimes”, to the extent that the case covers the same conduct, shall be considered sufficient”’ para 66(iv) (footnotes omitted)). 53 See, e.g., Heller (n 23) (noting that ‘[a]ll modern ICL scholars take this position’ at 355, and collecting sources); O’Keefe (n 3) (‘[n]ow there is a very respectable body of scholarly opinion which restricts the use of the term “international crime” . . . to those offences giving rise to criminal responsibility under international law itself ’ at 51). Note that O’Keefe adopts the broader definition according to which inter national crimes includes offences of universal jurisdiction as well as offences that international law obligates states to prohibit, yet he also identifies a more limited set of offences that give rise to responsibility directly under international law. So long as one embraces that distinction, then whether one labels the broader set of offences as ‘international crimes’ or not is a matter of semantics. See ibid (describing the matter as one of ‘terminological taste’ at 84).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

306 Alexander K.A. Greenawalt since World War II complicates any argument that international offences are somehow of inherent relevance to international law in a way that non-international crimes are not. A more plausible theory dictates that the distinction between international and domestic offences has more to do with a division of labour between domestic and international institutions in the common defence of humanity. According to this approach, what is most critical about international offences is the practical consequences of labeling something an international crime. What is it, in other words, that international law is trying to do by establishing international crimes? The most obvious use of ICL, and indeed the primary mechanism of its evolution, has been the establishment of specialized international tribunals created to prosecute inter national offences. States have also recognized universal jurisdiction over international crimes, permitting prosecution in domestic courts of extra-territorial offences that otherwise lack a sufficient connection to the forum.54 And international law has attached other types of consequences to international crimes as well. For instance, the UN Secretary General’s 2009 report on the Responsibility to Protect (R2P) asserts that states have a responsibility to prevent, including through military intervention if necessary, the perpetration of genocide, war crimes, and crimes against humanity in states that have manifestly failed to protect their own populations.55 Perhaps, then, the primary function of ICL is to enable certain institutional responses that would be complicated by a model that relied merely on the IHRL model of state obligation. What is it about these offences that merits this special institutional treatment? A good explanation is that there are special reasons to distrust the adequacy of domestic efforts to punish the crimes.56 The core international offences generally involve a context of armed conflict and/or the perpetration of large-scale, organized atrocities.57 States have proven ineffective at prosecuting these crimes either because government actors are themselves the perpetrators, or because extraordinary events—typically the loss of territorial control—have inhibited state prosecution.58 54 See generally M. Cherif Bassiouni, ‘The History of Universal Jurisdiction and Its Place in International Law’ in Stephen Macedo (ed), Universal Jurisdiction: National Courts and the Prosecution Serious Crimes Under International Law (University of Pennsylvania Press 2004). 55 UN Secretary-General, Implementing the Responsibility to Protect, UNGAOR, 63rd Sess, UN Doc A/63/677 (12 January 2009). 56 See eg Andrew Altman and Christopher Heath Wellman, ‘A Defense of International Criminal Law’ (2004) 115 Ethics 35 (defending the international penalization of widespread or systematic crimes on the ground that national failure to punish such crimes ‘falls below what can be reasonably demanded’ of states, at 49). 57 See text to n 19 and n 20 earlier. 58 See, e.g., O’Keefe (n 3) (arguing that ‘with the partial exception of genocide, international crimes have been created over the years not as a way of condemning the impugned conduct over and above the condemnation implied by its existence or possible criminalization and appropriate punishment under municipal law than for the more basic reason that the condemnable conduct might otherwise have escaped punishment altogether’ at 58). Arguing along somewhat similar lines, Sarah Nouwen maintains that ‘[t]he absence of a common definition of an essential concept—the international crime—stems from, and reveals, the reactive character of much of the field of international criminal law’ (Nouwen (n 12) 751). As my ensuing argument makes clear, I agree with this characterization in the sense that the

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

‘What is An International Crime?’ 307 Of course, presumptive state failure alone produces a model that is far over-inclusive as compared to current practice. States routinely fail to punish crimes for a variety of reasons. These include inevitable considerations such as the need to prioritize in light of limited resources, but may also reflect more systemic, nefarious failures, resulting, for example, from official corruption, or from ethnic or gender bias. Yet ICL does not pursue every crime or case that eludes domestic enforcement. The division of labour between domestic and international authority must also take account of the comparatively far greater limits of international institutions. Most obviously, there are resource constraints and practical obstacles associated with extra-territorial investigations. There are also questions of political legitimacy that arise when a state pursues prosecutions unconnected to its territory or when international judges and prosecutors administer justice without direct accountability to the political community or communities most connected to the crimes. States, moreover, are hesitant to cede sovereignty over their territory. ICL’s focus on mass atrocity provides at least a partial answer to each of these challenges.59 In the first place, it manages resources by focusing on the most serious universally condemned crimes. Hence, ICL prioritizes the gravest offences for which there is generally little argument against prosecution. The focus on organized, largescale atrocities,60 moreover, permits prosecutions that attribute broad responsibility to relatively few individuals, maximizing the justice (on a per victim basis) pursued with each prosecution.

history reveals no inherent limit (at least among serious, universally condemned offences) regarding what might be labelled an international crime. At the same time, the historically reactive nature of ICL is consistent with a view that such reactions are likely to target—and have targeted—the type of conduct that I describe, and that the law and practice of ICL has been shaped accordingly thus far. 59 This is not to say that an organized, large-scale atrocity is always a de jure requirement, since indeed it is not. For instance, serious violations of the international rules governing the conduct of hostilities can be war crimes even when committed as isolated, individual acts. But in some ways, this is the exception that proves the rule. As a historical matter, prosecutions at the international level have focused on larger scale systematic war crimes. Hence, my description is informed by the actual enforcement practices at the international level that have made use of ICL. This emphasis finds expression as a policy preference in the statute of the ICC, which notes that ‘the Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes’. Rome Statute (n 13) art 8. 60 The crime of aggression is perhaps a less obvious fit for the atrocity-focused model of ICL, considering that an illegal armed attack by one state against another need not, in every instance, result in loss of life or other serious harms. But historically, of course, warfare has claimed a tremendous cost in human life and has all too often opened the door to the other sorts of individual abuses that ICL forbids. The recognition of aggression as a crime after World War II followed the deadliest war in human history. Should the ICC ever prosecute a case of aggression it is too early to know exactly how the Court will interpret the Rome Statute’s definition of aggression as a crime that must, inter alia, involve ‘an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations’ (Rome Statute (n 13) art 8bis(1)). Nevertheless, this qualification by reference to ‘character, gravity, and scale’ has the potential to focus the Court’s attention on the types of aggressive actions that take the most egregious and unjustifiable toll on human life.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

308 Alexander K.A. Greenawalt This account, in a nutshell, presents a rough reflection of contemporary ICL, one that finds prominent voice in the preamble to the Rome Statute, whose text: [reflects mindfulness that] all people are united by common bonds, [recalls] that during [the 20th] century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity, [and affirms] that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.61

Yet this account faces several shortcomings and challenges that both individually and collectively complicate the idea of a one-size-fits-all distinction between international and domestic offences. Starting at the most basic level, there is a question about whether international law does, in fact, directly prohibit certain offences. The idea that it does has gone largely unchallenged in the literature, but in recent work Kevin Jon Heller powerfully argues that the claim lacks support in positive law.62 As Heller notes, the principal sources of ICL are not explicit about the existence of a direct prohibition. For instance, while international criminal tribunals have prosecuted grave breaches of the 1949 Geneva Conventions, the Conventions themselves are not explicit about a direct prohibition of these crimes. Instead, the Conventions obligate the contracting states to act under domestic law and ‘enact any legislation necessary to provide effective penal sanctions’ for persons who commit grave breaches.63 As Heller further reveals, the notion of direct prohibition under international law is not necessary to many (if any) of the uses to which ICL has been put. For instance, when the ICC prosecutes a crime within its jurisdiction that was perpetrated on the territory of a citizen of a state party or on the territory of a state party, it has the prior consent of that state, which has a ceded a degree of its criminal jurisdiction by ratifying the Rome

61 Rome Statute (n 13) preamble. The preamble also states that ‘such grave crimes threaten the peace, security and well-being of the world’. The vagueness of this statement makes it difficult to assess whether it is really true, and I am skeptical that these criteria provide a meaningful basis for differentiating the crimes within the ICC’s jurisdiction from other crimes that are not. See text to n 18 earlier. A more con vincing characterization is that ICC crimes are generally associated with comparatively severe threats to peace, security, and well-being of the world, a fact that elevates their gravity and makes their prevention and punishment an especially urgent matter of attention for the international community. 62 Heller (n 23). 63 See, e.g., Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 6 UST 3516, 75 UNTS 287, art 149 (hereafter Geneva Convention IV); Heller (n 23) (‘[t]he universallyratified Geneva Conventions do not declare that war crimes are “crimes under international law”; they do not even qualify grave breaches as “crimes of a truly international character”. They are simply suppression conventions that require states to domestically criminalize the grave breaches’ at 370 (footnotes omitted)).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

‘What is An International Crime?’ 309 Statute. That state of affairs does not require direct prohibition at the international level, as the ICC is implementing the state’s own legal commitments.64 A more complicated case arises when jurisdiction is triggered by the UN Security Council, such as when the Council establishes an ad hoc tribunal to prosecute inter national crimes, or confers the ICC with jurisdiction over states that have not acceded to the Court’s statute. The authority to do so derives from the Security Council’s general authority to safeguard international peace and security under Chapter VII of the UN Charter, the treaty by which members of the United Nations have ceded enforcement authority to the Security Council.65 That approach is relatively unproblematic to the extent that prosecutions are focused on conduct that falls within the jurisdiction of a state that prohibits such conduct, whether or not that state uses the same legal labels to describe and prohibit the conduct as does the international tribunal (for example, the tribunal might prosecute as genocidal murder conduct committed in a state that prohibits murder but lacks a genocide law). Regardless of whether or not international law asserts a direct prohibition, the tribunal is using an international label to prosecute conduct that the state is obligated to prohibit under international law, and that the state has indeed prohibited. In such a case, the Council might choose to create an international tribunal such as the Special Tribunal for Lebanon that only has jurisdiction over domestic offences without recourse to international labels or one, such as the Special Court for Sierra Leone, that possesses jurisdiction over both international and domestic crimes.66 One might—as did the unsuccessful defendant in the ICTY’s first trial—dispute the institutional authority of the Council to establish or trigger jurisdiction in these cases,67 but such claims about institutional overreach are separate from—and cannot erase—the underlying criminality of the perpetrator’s conduct. The most difficult scenario arises when a tribunal invokes ICL to prosecute conduct without the benefit of prior criminal prohibition by a state that has an uncontested claim to jurisdiction over the conduct. For instance, the post-World-War-II trials saw the conviction of Nazi offenders for atrocities that were authorized under German law. In the Erdemović trial, the ICTY invoked international law to deprive the accused of a defence of duress that would have been available under the domestic criminal law of Bosnia. If there is no direct prohibition under international law, then justifying a Security Council override requires the troubling assertion that the Council’s powers authorize ex post facto punishment, making something criminal that was not actually prohibited at the time of the relevant conduct. The existence of a direct prohibition appears to solve this problem: a relatively straightforward way to justify prosecution in such cases is to say that domestic law is irrelevant because international law directly 64 See Heller (n 23) 375. 65 See, e.g., Prosecutor v. Tadić (Appeal Decision on Jurisdiction) (n 16) (affirming the UN Security Council’s authority to establish the ICTY under Chapter VII of the UN Charter); Rome Statute (n 13) art 13(b) (providing for the referral of situations to the ICC by the UN Security Council acting under Chapter VII of the UN Charter). 66 O’Keefe (n 3) 60, para 2.31. 67 Prosecutor v. Tadić (Appeal Decision on Jurisdiction) (n 16).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

310 Alexander K.A. Greenawalt prohibits the conduct.68 And the fact that states have established international tribunals that override domestic criminal law provides perhaps the best evidence that direct prohibition is a central assumption of ICL accepted by states and, hence, that it forms part of ICL’s customary foundations. But this argument is far from perfect, considering ICL’s own complex relationship with the legality principle. The post-World War II IMTs prosecuted two offences— crimes against humanity and crimes against peace—that had no history as individually punishable crimes under international law, and subsequent tribunals have relied heavily on post hoc case-by-case development to elaborate upon elements of offences and rules of culpability not resolved by statutory mandate.69 Justifying these practices—if they are justifiable—requires more complicated reasoning. One might defend a natural law prohibition against malum in se offences, arguing that all persons must be on notice that certain acts are inherently criminal. Or perhaps, as a matter of international human rights, certain domestic law defences to serious crimes (such as official capacity or superior orders) are simply invalid, carrying no legal force. Such arguments require some relaxation of the non-retroactivity rule, but—like the theory of direct prohibition— they nevertheless rely on some underlying benchmark of culpability that is distinct from Security Council fiat.70 In this sense, such arguments are compatible with the idea of direct prohibition, but they also complicate and somewhat diminish the force of that idea. Where there exists an established international offence accompanied by a history of—or clear authority for—prosecution by international tribunals, it makes intuitive sense to speak of direct prohibition. But when a tribunal applies newly minted international law to prosecute retroactively, the concept becomes a legal fiction. Indeed, it is not too much of an exaggeration to say that ICL was born out of a deception, one designed to mask a 68 The statutes of the post-World War II IMTs make this point explicit in their definition of crimes against humanity, which provides that the prohibited acts are punishable ‘whether or not in violation of the domestic law of the country were perpetrated’: IMT Charter (n 10) art 6(c); IMTFE Charter (n 10) art 5(c). 69 See, e.g., Cassese, ICL (n 1) (noting that ‘[i]t seems indisputable that the London Agreement of 1945 provided for two categories of crime that were new: crimes against peace and crimes against humanity’ and that the IMT ‘applied ex post facto law’ at 43, and describing the ICTY’s ‘adaptation of existing law’, including the holding that ‘customary rules of international law criminalized certain categories of conduct in internal armed conflict’ at 46); David Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (OUP 2010) 666 (‘[a]lthough war crimes are a traditional category of criminal law, crimes against peace and crimes against humanity were novel. The problem of retroactivity dogged the ad hoc tribunals as well, because they were established after the crimes. True, their statutes were modeled on pre-existing ICL, so the substantive criminal law was not retroactive. But the ICTY broke legal ground on important issues, most dramatically in its holding that the war crimes law governing international armed conflict applied in the Bosnian civil war as well’ at 680–81). 70 Arguing along similar lines, O’Keefe maintains that ‘[t]he only difference in cases where a crime within [an international criminal court’s] jurisdiction is not consonant with a pre-existing customary international prohibition is that the court’s jurisdiction must be strictly prospective if it wishes to avoid violating the principle of nullem crimen sine lege’: O’Keefe (n 3) 55. Yet, O’Keefe also argues that ‘even in the event that its jurisdiction is retrospective, the court will still enjoy that jurisdiction’. Ibid fn 34.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

‘What is An International Crime?’ 311 legality deficit.71 Perhaps, as H.L.A. Hart has argued, it would be better simply to acknowledge—and defend—the necessity in some cases of retroactive punishment.72 Of course, these points do not diminish the prospective value of establishing culp ability rules in advance, ones that will constrain judges, increase transparency, and put prospective defendants on notice that they cannot seek protection in domestic law.73 Assuming that direct prohibition in this sense is central to the project of ICL, there remain many difficulties in establishing what exactly it is that is directly prohibited. One complication is the one that I have already identified: if ICL does not, in fact, dictate single, universal answers to all the principles of criminal liability that go into the prosecution of an international crime, then how can it be said that international law directly prohibits certain conduct? Or to put it perhaps more precisely, given the pluralism evident in the historical practice, what conduct exactly is it that is prohibited? Another complication involves the identification of those offences that are subject to direct prohibition. How do we know that certain crimes—such as genocide, crimes against humanity, aggression, and war crimes—all give rise to individual responsibility under international law whereas others—perhaps torture and terrorism, for example, as well as ‘ordinary’ murder and rape—are merely subject to an international obligation to prohibit domestically?74 The case is strongest with respect to genocide: the 1948 Genocide Convention ‘confirm[s]’ that genocide ‘is a crime under international law’, albeit without defining exactly what that phrase means.75 With respect to the other 71 On this point, the judgment of the Nuremberg IMT famously propounded with respect to the crime of aggression that the ‘maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice’. See International Military Tribunal, ‘Judgment’ in Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946 (IMT 1947) 219. Invoking the Kellog-Briand Pact and other legal instruments, the judgment provided convin cing evidence that Germany’s aggression violated international law, but it provided almost no support for the position that international law established individual criminal culpability for such violations. See ibid 217–19. 72 H L A Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard L Rev 593 (noting with respect to the post-World War II conviction in Germany of a woman who had denounced her husband to the Nazi authorities for disparaging Hitler that ‘odious as retrospective criminal legislation and punishment may be, to have pursued it openly in this case would have at least have had the merits of candour. It would have made plain that in punishing the woman a choice had to be made between two evils, that of leaving her unpunished and that of sacrificing a very precious principle of morality endorsed by most legal systems’ at 619). 73 See, e.g., Cassese, ICL (n 1) (noting that the principle of legality ‘is aimed at ensuring that all those who may under the prohibitions of the law know in advance which specific behavior is allowed or proscribed’ and that ‘the more accurate and specific the criminal rule, the greater the protection that is afforded to the agent from arbitrary action of either enforcement officials or courts of law’ at 41). 74 See Heller (n 23); O’Keefe (n 3) (noting that ‘the adoption of criminal responsibility under inter national law as the definitional criterion for an international crime may lead to an unhelpful debate as to which offences do and do not give rise to such responsibility’ at 55, para 2.16); Cryer, Introduction to ICL (n 13). 75 Genocide Convention (n 15) art 1. As Heller notes, the phrase ‘crime under international law’ is immediately followed by the phrase ‘which [the Contracting Parties] undertake to prevent and punish’. See ibid; Heller (n 23) 372 citing Joseph L Kunz, ‘The Genocide Convention’ (1949) 43 American J of Intl L 732, 744. While making clear the state obligation to punish, the Convention does not explicitly address

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

312 Alexander K.A. Greenawalt offences, however, the clearest evidence of international criminality is, once again, the practice itself of prosecuting those offences at the international level. The world did not really discover that crimes against humanity, war crimes, and aggression were international offences directly punishable by international tribunals until the victorious Allied powers established international military tribunals to prosecute those offences after World War II. Apart from raising the aforementioned concerns about ex post facto liability (especially in the case of aggression and crimes against humanity), this practice also raises a question about what other crimes may be eligible for similar treatment. Might states in the future establish an international criminal tribunal with jurisdiction over the crime of torture as defined by the Convention Against Torture?76 If so, would that be because torture as a standalone crime is already an international crime directly prohibited by international law despite no history of prosecution as such by an inter national tribunal? That answer simply begs the question of how to determine which offences are ICL offences and which are not. Or would the sudden discovery of torture’s ICL status simply flow from the political decision to confer jurisdiction over the crime? In that event, the concept of direct prohibition does no real work since it is the conferral of jurisdiction itself that establishes the direct prohibition, and not some pre-existing feature of the crime. Perhaps it is IHRL that draws the line: any offence—including even ‘ordinary’ rape and murder—that is both universally condemned and subject to an international obligation to suppress at the domestic level is arguably already sufficiently well established to justify international prosecution and defeat legality-based objections.77 The fact that ICL institutions have focused thus far on a more limited set of offences may simply reflect considerations of policy, limited resources, and comparative legitimacy rather than any deeper legal constraint.

the criminal culpability of someone who, for example, commits genocide in a state that has failed to prohibit genocide, and where the perpetrator’s actions are in fact lawful. On the other hand, the text of the Convention purports to ‘confirm’ rather than establish a crime of genocide, and the context of the treaty, arising as it did in response to the Holocaust and the subsequent international prosecutions that ignored possible defences arising under domestic law, suggests support for the idea that national law cannot preclude individual responsibility for genocide. 76 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85. 77 For instance, when post-unification German authorities prosecuted former East German border guards for killing fugitives attempting escape to West Germany, the Federal Constitutional Court appealed to human rights obligations to justify the convictions, notwithstanding German constitutional protections against ex post facto punishment, and the fact that the border guards had been acting under a legal duty imposed by the existing legal regime. See Rudolf Geiger, ‘The German Border Guard Cases and International Human Rights’ (1998) 9 European J of Intl L 540. See also Beth Van Schaack, ‘The Principle of Legality in International Criminal Law’ (2009) 103 American Society of Intl L 101 (justifying ‘ICL tribunals boldly applying new norms to past conduct’ partly on the ground that ‘[t]he near-universal acceptance of international human rights concepts in the global consciousness was foremost among . . . developments’ that ‘effectively put defendants on fair notice of the possibility of criminal liability for abusive practices and expansive forms of participation committed within a range of circumstances’ at 103).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

‘What is An International Crime?’ 313 A similar set of problems exists with respect to already recognized international offences. Take, for example, crimes against humanity, whose relatively broad scope makes it very much the cutting edge of contemporary ICL, the crime whose definition most delimits the boundaries of the field. According to the Rome Statute, there are 11 different categories of crimes against humanity.78 These include murder, extermination, enslavement, deportation, rape, and various other enumerated offences.79 There is also a residual category for ‘other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health’.80 Hence, the range of conduct constituting a crime against humanity is broad and remains somewhat open-ended. What is most critical, then, is the chapeau requirement that the underlying offence be ‘committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’.81 Moreover, the attack must be ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’.82 One can say that these words define crimes against humanity, but one can just as easily observe that the crime remains fundamentally undefined, leaving it to judicial application to determine what conduct falls within the prohibition (thus becoming an international crime) and what does not. Indeed, in many ways the question of what a crime against humanity ‘is’ mirrors the fundamental normative question of what an international crime should be. What exactly is a ‘widespread’ attack? And which attacks qualify on the basis of being ‘systematic’, even if not widespread? Who counts as the state for purposes of the policy requirement, and what types of non-state organizations qualify as well? Depending on how one parses and combines this language, the result is either a crime of extraordinary breadth or one that is relatively narrow. The issue has already come to a head in the ICC’s Kenya cases, which saw the Court’s presiding Pre-Trial Chamber divided between two different understandings of the policy requirement. According to the dissenting view, Kenya’s post-election violence in 2007 and 2008 could not rise to the level of crimes against humanity without evidence that it reflected the policy of an organization that was, at minimum, a quasi-state entity operating as the functional equivalent of a state.83 Hence, on this view, a group like ISIS could meet the policy requirement, but an ordinary criminal gang could not. The majority, however, took the position that any group possessing the capacity to commit organized violence could meet the requirement.84 78 Rome Statute (n 13) art 7(1). 79 ibid. 80 ibid. 81 ibid. 82 ibid. 83 See, e.g., Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, Dissenting Opinion by Judge Hans-Peter Kaul) ICC–01/09–02/11, (23 January 2012) (Pre-Trial Chamber II, Judge Kaul) (arguing that the ‘organizational policy’ requirement demands ‘an entity which may act like a State or has quasi-State abilities’ at para 7 (internal quotation omitted)). 84 See, e.g., Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC–01/09–02/11, (23 January 2012) (Pre-Trial Chamber II) (maintaining that the ‘the formal nature of a group and the level of its organization should not be the defining criterion’ and that ‘a distinction should be drawn on whether a group has the capability to perform acts which infringe on basic human values’ at para 112 (internal quotation omitted)).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

314 Alexander K.A. Greenawalt It is not easy to choose sides in a split like this one, as the purposes of ICL provide only limited guidance. There is an obvious attraction to adopting the interpretation that extends greater protection. International law, as I have argued, reflects a general concern for humanity that transcends the traditional distinction between international and domestic affairs. Where there is evidence of serious crimes, this consideration will generally favour interpretations that permit, rather than prohibit, prosecution. But as I have also explored, the limited capacity of international institutions—combined with the reticence of states to entrust too much discretion in international prosecutors— favours giving priority to only the most serious subset of offences. The problem is that these considerations provide only a general framework and are not able to supply decisive answers to questions like the one that arose with respect to Kenya.

The uses of ICL Further complicating this picture are the different uses to which ICL offences are put. Take, for example, the crime of piracy, which has a long history as a crime of universal jurisdiction defined by international law, but which has never been prosecuted by an international criminal tribunal. According to Cassese, piracy is not a true international crime because piracy ‘was (and is) not punished for the sake of protecting community values’.85 Instead, states ‘are authorized to capture and bring to trial pirates in order to safeguard their joint interest to fight a common danger and a consequent (real or potential) damage’.86 According to my framework, this distinction is not as clear cut. The joint interest in fighting piracy and maintaining commercial access to international waters helps explain why states have resorted to universal jurisdiction, and why they see no comparative advantage in establishing international tribunals to fight piracy. But if states found that a more effective way of fighting piracy is to confer jurisdiction on the ICC or an ad hoc tribunal created by the UN Security Council, then they might do so. And if pirates are already on notice that they may be prosecuted by any court in the world, then prosecution by an international tribunal could hardly offend the legality principle. As it stands today, one might say that piracy is an international crime for purposes of universal jurisdiction under domestic law but not for purposes of direct prosecution by an international tribunal. But I don’t see how that distinction has any practical meaning in this context: it merely describes the status quo without constraining future enforcement initiatives. These different institutional applications will also favour different interpretive approaches to those offences whose international criminal status is less disputed. There is a difference between, on the one hand, an ad hoc tribunal established and financed by the UN Security Council for the express purpose of addressing a particular crime base, 85 Cassese, ICL (n 1) 12.

86 ibid.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

‘What is An International Crime?’ 315 and, on the other hand, the broader but often more fragile jurisdiction of the ICC. The tendency, in the first instance, will be to tailor the substantive criminal law to fit the relevant crime base, whereas the ICC will often face greater pressure to limit its reach to only the most serious cases. And invoking ICL to justify military intervention under the R2P principle is another matter entirely considering the stakes involved in armed action. There are at least two, non-mutually exclusive, ways that ICL might navigate these different institutional settings. One way is through the fragmentation of the substantive law. As I have already mentioned, the case law of the ad hoc tribunals has generally adopted broader standards of liability than has the ICC. The result of this strategy is a non-unitary ICL, one whose content is context-specific. The other way is to downplay the importance of international offences by relying on other mechanisms to perform the essential gate-keeping function of ICL. At the ICC, for instance, there is both the complementarity requirement, and a separate, standalone gravity requirement demanding that all ICC cases involve conduct ‘of sufficient gravity to justify further action by the Court’.87 Remarkably, this dual demand—that the ICC pursue only the most serious cases that are not effectively being addressed by domestic authorities—provides on its own a fairly coherent account of why ICL exists in the first instance, and so inevitably these requirements both complement and compete for primacy with the elements of the particular crimes themselves. The context of humanitarian intervention likewise invites an ‘ICL plus’ approach according to which additional information—such as the scale of atrocities to be prevented and the likelihood of successful intervention—must also inform recourse to military force. This type of approach is theoretically consistent with a unitary ICL, in that it may leave the substantive criminal law unaltered. But the effect is to marginalize that law by relying on other criteria to do the actual heavy lifting involved in determining which cases are appropriate for special international attention and which are not.

Conclusion What, then, is an international crime? As I have argued in this chapter, the answer is surprisingly elusive. One can point to certain cases—a soldier summarily executes civilians; a political leader orchestrates a mass slaughter—that we know violate ICL prohibitions. But as a matter of both fundamental definitions and concrete application, the concept is hard to pin down. Not only do the competing conceptions fail to provide a clear-cut distinction between domestic and international offences, but even the acknowledged ICL crimes exist in an uneasy state whereby international law only partly defines the criminal law principles applicable to their prosecution. This pluralism—in which different crimes are international for different purposes, and in which no unitary set of rules applies to their prosecution—is in large part a result of ICL’s most plausible rationale that, I have argued, is to help combat a particular sort of unwillingness and inability that 87 Rome Statute (n 13) art 17(1)(d).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

316 Alexander K.A. Greenawalt often prevent states from prosecuting the most serious crimes. This rationale does not demand agreement among states on every principle of substantive criminal law, and it is compatible with different conceptions of international crime depending on the context and on the type of institutional response in question. Moreover, while labeling something an international crime may help facilitate certain forms of international intervention— by expressing condemnation; by establishing points of agreement among states on the permissibility, desirability, and limits of such action; and by promoting legality values through increased (albeit imperfect) clarity and notice—it is not clear that a formal distinction between international and ordinary offences is in fact necessary to any of the particular institutional consequences with which ICL is commonly associated. Fundamentally, this pluralism represents the triumph of the international human rights paradigm in which humanity is a central concern of international law, and in which international regulation does not depend on identifying any inherently ‘inter national’ sphere of conduct. The indeterminate boundaries of ICL reflect the pervasive intervention of international norms into domestic affairs. But they also highlight central tensions that have complicated the still emerging field of ICL. Much of the discussion about ICL in recent years has focused on problems of implementation, including the relationship between international and domestic authority, and alleged inequities of enforcement. While concerns relating to legitimacy, discretion, power politics, and disparate enforcement are likely an unavoidable by-product of any institutional mechanism to enforce ICL, the concept of an international crime offers something of a counter-balance, providing a trigger for intervention that is dictated by neutral, legal criteria. While ICL does, in fact, play this role to some degree, its pluralism complicates the narrative, revealing that the relationships are not entirely worked out, and the substantive law is, at least to some extent, informed by context-specific enforcement concerns. The substance and the practice are mutually informing.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Chapter 13

A Th eory of I n ter nationa l Cr i m e s Conceptual and Normative Issues Alejandro Chehtman*

I. Introduction Determining whether a particular type of conduct constitutes an international crime is a sensitive and important legal, political, and moral issue. In Argentina, for instance, it is the distance that separates crimes perpetrated during the 1970s that may be prosecuted today, 40 years after the facts, from those that may not, on grounds of statutes of limitations.1 Similarly, the finding that a given conduct is an international crime accounts for why Belgian courts can try and punish two Rwandan nuns for participating in a genocide perpetrated in Rwanda, against Rwandan victims, whereas they lack the power to adjudicate the murder of a Brazilian national in London. What is more, the InterAmerican Court of Human Rights took this notion centrally into consideration when deciding the invalidity of amnesties dictated by domestic authorities in Peru and Uruguay.2 Finally, this question also underlies much of the debate concerning the inclusion * I am grateful to participants in The Political Philosophy of Human Rights Conference, at the University of Buenos Aires, and the Faculty Seminar of the Cátedra de Cultura Jurídica at the Universitat de Girona for very useful discussions, specially Jordi Ferrer, Jeffrey Howard, and Saladin MeckledGarcía. I am also particularly indebted to Fabricio Guariglia, Ezequiel Malarino, Justina Uriburu, and to the editors of this volume for very useful written comments and suggestions to an earlier draft of this chapter. All mistakes are my sole responsibility. 1 See ‘Arancibia Clavel’ CSJN, Fallos, 327, 3312, 24 August 2004 (Argentina) (hereafter ‘Arancibia Clavel’); ‘Simón, Julio Héctor y otros s/privación ilegítima de la libertad’ CSJN, Fallos, 328, 2056, 14 June 2005 (Argentina) (hereafter ‘Simón, Julio Héctor y otros’). 2 See Case of Barrios Altos v. Peru (2001), Judgment of March 14, 2001 (Merits), Inter-Am Ct HR (Ser C) No 75; Case of Gelman v. Uruguay (2011), Judgment of 24 February 2011 (Merits and Reparations), Inter-Am Ct HR (Ser C) No. 221. But see the expansive jurisprudence of the Inter-American Court of

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

318 Alejandro Chehtman of terrorism within the jurisdiction of the International Criminal Court (ICC).3 In sum, what distinguishes international crimes from domestic, and even transnational offences, and which conducts appropriately belong in these categories, are two of the central theoretical questions underlying international criminal law as a discipline. It is therefore not surprising they have received considerable attention both in the legal and the philosophical literature. The list of international crimes standardly includes so-called ‘core crimes’, such as, war crimes, crimes against humanity, genocide, and aggression. Many scholars add torture to this list. There are, of course, controversial cases, from terrorism (or certain varieties of terrorism), to crimes against the environment and corruption. Yet the theoretical question about international criminalization is not just about which of these specific conducts warrant the status of international crimes. Rather, it also involves what treating them as international crimes entails. Namely, a full theoretical account of what is an international crime requires both determining what are the defining features of an international crime, and explaining why certain conducts warrant that particular treatment. The former question is conceptual in nature; the latter is normative. Incidentally, the quest for a comprehensive account of criminalization is also one of the key questions in domestic criminal law theory. Put succinctly, theories of (domestic) criminalization seek to explain when a particular conduct warrants the state inflicting legal punishment upon its perpetrator.4 They are concerned almost exclusively with the normative question identified above. In this regard, they are inextricably linked with justifications for legal punishment, as well as to arguments concerning the scope of the authority of the state. The reason for this is that the conceptual question of what constitutes a crime in domestic settings seems to pose less difficulties.5 By contrast, there is far less agreement on what the concept of an international crime is. Thus, in order to be able to identify conducts that warrant international criminalization, we must first agree on what it means for such a conduct to be considered an international crime. This is the first issue we shall focus on. Human Rights in Case of Bulacio v. Argentina, Judgment of 18 September 2003 (Merits, Reparations and Costs), Inter-Am Ct HR (Ser C) No. 100 (hereafter Case of Bulacio v. Argentina). 3 See, e.g., Ben Saul, ‘Legislating from a Radical Hague: The United Nations Special Tribunal for Lebanon Invents an International Crime of Transnational Terrorism’ (2011) 24(3) Leiden J of Intl L 677; Mikkel J. Christensen, ‘Crafting and Promoting International Crimes: A Controversy among Legal Professionals of Core Crimes and Anti-Corruption’ (2017) 30(2) Leiden J of Intl Law 501 (hereafter Christensen, ‘Crafting and Promoting International Crimes’). 4 See classically, John Stewart Mill, On Liberty (first published 1859, OUP 2008) ch 1; Joel Feinberg’s monumental, four-volume, The Moral Limits of the Criminal Law (OUP 1984-1986). More recently, see Antony Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Hart 2007); Victor Tadros, Wrongs and Crimes (OUP 2016); Douglas Husak, Overcriminalization: The Limits of the Criminal Law (OUP 2008). For a recent overview, see Tatjana Hörnle, ‘Theories of Criminalization’ in Markus Dubber and Tatjana Hörnle, The Oxford Handbook of Criminal Law (OUP 2014) ch 30 (hereafter Dubber and Hörnle, Handbook of Criminal Law). 5 Yet there is still considerable debate on the distinction between criminal offences and administrative sanctions. See Daniel Ohana, ‘Regulatory Offences and Administrative Sanctions: Between Criminal Law and Administrative Law’ in Dubber and Hörnle, Handbook of Criminal Law (n 4) ch 46.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Theory of International Crimes 319 The normative question, in turn, requires providing sound reasons as to why we should subject any particular conduct to international criminalization. Some would claim that this question must be answered exclusively by reference to existing inter national law. I will argue, by contrast, that a fruitful account of international criminal ization needs to make sense of the existing law, but must also go beyond existing international crimes lex lata and provide arguments for international criminalization de lege ferenda. Namely, this enterprise should involve not only accounting for why specific instances of crimes against humanity, war crimes, or genocide appropriately qualify as international crimes, but also help us to assess whether other conducts, such as those characterizing instances of terrorism, corruption, and so on ought to be treated as such. Furthermore, this further aspect is important in order for our account of international criminalization to be able to critically assess existing and potential elements of each of these crimes, such as, inter alia, the requirements of a widespread or systematic attack, or a policy element for the perpetration of crimes against humanity.6 Accordingly, in Part II I shall advocate a conceptual definition of what an international crime is. Part III, in turn, shall focus on the normative grounds that make a particular act warrant the specific treatment of an international crime. This issue has received considerable attention in the literature, particularly in relation to crimes against humanity.7 In this contribution, I shall assess two recent accounts that advocate significantly expanding the list of ‘core’ international crimes. I shall, in turn, advocate a mildly revisionist account, by suggesting that we should not require that international crimes be perpetrated by highly organized groups, as recently posited by the ICC. Part IV briefly concludes.

II. What Is an International Crime? As it has been generally acknowledged, there is little debate on the ‘crime’ element of the notion of an international crime. Namely, almost everyone accepts that it is a type of conduct for which perpetrators are liable to be punished. By contrast, there is significant disagreement on what the ‘international’ component amounts to. In this sense, I assume that conceptualizing international crimes entails distinguishing them from domestic offences. Several people would add that it should also allow us to distinguish them from so-called transnational crimes. Accordingly, the task of conceptualizing international 6 See, e.g., Claus Kreß, ‘On the Outer Limits of Crimes against Humanity: The Concept of Organization within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision’ (2010) 23 Leiden J of Intl L 855. 7 See, e.g. David Luban, ‘A Theory of Crimes against Humanity’ (2004) 29 Yale J of Intl L 85–167 (hereafter Luban, ‘A Theory of Crimes against Humanity’); Larry May, Crimes Against Humanity (CUP 2005) (hereafter May, Crimes against Humanity); Andrew Altman and Christopher Heath Wellman, A Liberal Theory of International Justice (OUP 2009) ch 4 (hereafter Altman and Wellman); Richard Vernon, ‘What is a Crimes Against Humanity?’ (2002) 10(3) J of Political Philosophy 231–49.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

320 Alejandro Chehtman crimes could be approached as the need to identify the relevant differences with their domestic or transnational counterparts. As a matter of legal practice, international crimes are standardly associated with certain specific legal consequences. I suggest that what we mean by an international crime is a crime for which individuals are accountable, i.e., liable, not before the specific political community to which they belong, where their act took place, or which is targeted by their conduct, but before the international community as a whole. As Schwarzenberger classically argued, their best conceptual characterization is as offences provided for under international law irrespective of whether they are prohibited (and, in fact, permitted) under domestic law.8 This means that they can also9 be adjudicated by domestic courts with no traditional connection (or nexus) to the crime—i.e., the territory in which it was perpetrated, an important sovereign interest, or the nationality of the perpetrators or victims—as well as by international, hybrid, or internationalized courts.10 I believe it is this particular conceptual feature that people have in mind when they argue that, e.g., crimes against humanity, war crimes, or genocide are international crimes whereas homicide, rape, or assault are not.11 Notably, this conceptualization of international crimes mirrors one of leading conceptualizations of human rights—the ‘political’ conception—which precisely claims that human rights are simply those that warrant some form of foreign or external intervention.12 This should be hardly surprising given how influential, both politically and conceptually, the human rights movement has been in the development of contempor ary international criminal law (and vice versa).13 But I believe it supports my claim that a 8 Georg Schwarzenberger, ‘The Problem of an International Criminal Law’ (1950) 3(1) Current Legal Problems 263–96 (hereafter Schwarzenberger, ‘The Problem of an International Criminal Law’). 9 There is nothing in my account that suggests that courts with jurisdiction over these conducts on grounds of one of the commonly accepted jurisdictional bases, most notably territoriality, should not also be entitled to try the perpetrators of international crimes. The conceptual feature I claim needs normatively accounting for is the fact that at least some extraterritorial court (with no connection to the crime) also holds the power to bring the perpetrators to account. 10 For a full defence of this view, see Alejandro Chehtman, The Philosophical Foundations of Extraterritorial Punishment (OUP 2010) ch 4 (hereafter Chehtman, The Philosophical Foundations). 11 See the accounts mentioned in n 7, as well as those further discussed in Part III. See also Adil Haque, Law and Morality at War (OUP 2016) ch 10. Admittedly, some international tribunals have jurisdiction also of what are standardly considered domestic crimes. The Special Tribunal for Lebanon (STL) and the Special Court for Sierra Leone (SCSL) come to mind. However, each one of them has standardly been conceptualized as hybrid or international courts, not as purely international courts, which suggests that they could in principle act both as international and/or domestic courts. Notably, there is nothing in my account that precludes a court acting both on behalf of the political community in which it operates for certain purposes, and as a global actor for others. In each of these two cases, the jurisdiction of these courts can ultimately be traced to the consent (the authority) of the state with traditional jurisdiction over the relevant domestic offence. I am grateful to Sarah Nowen for pressing me on this issue. 12 For seminal accounts, see John Rawls, The Law of Peoples (Harvard UP 2001); Joseph Raz, ‘Human Rights without Foundations’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (OUP 2010). 13 See, e.g., Marlies Glasius, The International Criminal Court: A Global Civil Society Achievement (Routledge 2016); Christensen, ‘Crafting and Promoting International Crimes’ (n 2) s 4.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Theory of International Crimes 321 fundamental aspect of the definition of an international crime is the function they play as a matter of legal practice. This conceptualization, admittedly, leaves aside other features commonly associated with international crimes in the law. As indicated at the outset, it has often been suggested that statutes of limitations do not apply to international crimes,14 and that these cannot be subjected to pardons or amnesties.15 The reason why I do not concentrate on these further features here is simple. As to the former, it may simply be noted that, under many national criminal law systems, certain domestic offences are also not subjected to statutes of limitations. Similarly, some international courts have argued that severe violations of human rights that are not considered international crimes are also not subject to statutes of limitations.16 Furthermore, I am not persuaded that it is necessarily the case that international crimes may not be subjected to valid amnesties, under certain perhaps extraordinarily stringent conditions.17 Accordingly, these are not features that necessarily help us distinguish international crimes from domestic ones. Ultimately, I suggest that the conceptual feature that a theory of international crimes most urgently needs to account for is why a particular offence should be prohibited by international law, and subject also to some kind of extraterritorial jurisdiction by courts with no other accepted nexus to the crime. Such a conceptualization may be compatible with these two further features, and in fact it may even help to normatively account for them. Yet whether this is the case is beyond our scope here. There are at least two important challenges to this account that must be addressed here. On the one hand, Roger O’Keefe has recently posited, following a conception advocated by Cherif Bassiouni, that an international crime is merely ‘a crime defined by 14 See, e.g., Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, adopted and opened for signature, ratification and accession by General Assembly Resolution 2391 (XXIII) of 26 November 1968, 754 UNTS 73 (entered into force 11 November 1970); European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes, Council of Europe, 25 January 1974, Eur TS No 082 (entered into force 27 June 2003); Inter-American Convention on Forced Disappearance of Persons (Belem do Para Convention, OAS, General Assembly, 24th Sess, OASTS No 68, 33 ILM 1429 (1994) (entered into force 28 March 1996), art VII (though with a caveat); Control Council Law No 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 20 December 1945, 3 Official Gazette Control Council for Germany 50–55 (1946), art II(5) (hereafter altogether Conventions on the Non-Applicability of the Statutory Limitations to War Crimes and Crimes against Humanity). See also Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, UN Doc A/CONF.183/9 (in force 1 July 2002), art 29 (hereafter Rome Statute). 15 See n 2. 16 See, e.g., Case of Bulacio v. Argentina (n 2); Case of Bueno Alves v. Argentina, Judgment of 11 May 2007 (Merits, Reparations and Costs) Inter-Am Ct HR (Ser C) No 164. 17 See inter alia, Louise Mallinder, ‘Can Amnesties and International Justice be Reconciled?’ (2007) 1(2) Intl J of Transitional Justice 208, 214; Mark Freeman, Necessary Evils: Amnesties and the Search for Justice (CUP 2011); Francesca Lessa and others, ‘Persistent or Eroding Impunity? The Divergent Effects of Legal Challenges to Amnesty Laws for Past Human Rights Violations’ (2014) 47 Israel L Rev 105. See also the position of the SCSL in Prosecutor v. Kallon and Kamara (Decision on Challenge to Jurisdiction: Lomé Accord Amnesty) SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E), (13 March 2004) para 82 (Appeals Chamber).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

322 Alejandro Chehtman international law, whether customary or conventional’.18 This is, he adds, ‘the sole characteristic shared by every offence with a claim to the denomination “international crime” ’.19 On these grounds, he suggests that this conception covers, at least, crimes against humanity, war crimes, genocide, and aggression, but also piracy jure gentium and torture. This implication is compatible, and perhaps required, by the underlying normative source of these prohibitions. Namely, he claims that the ‘theoretical source of the binding nature for individuals of criminal obligations under international law is simply the sovereign will of the states recognizing, viz establishing such obligations’.20 International crimes are, in other words, whatever states have acknowledged as such. There is, I believe, a first shortcoming to this simple positivist approach. A theoretically fruitful conception of international crimes is not merely one that helps us identify criminal prohibitions within the corpus of existing laws. Rather, such a conceptualization would further need to provide us with useful parameters to be able to answer the normative question identified above. Namely, it must allow us to identify which conducts ought to be considered international crimes (and which ones ought not). To illustrate: suppose five states agree on criminalizing the consumption of alcohol under international law by treaty. O’Keefe’s view would then seem committed to the proposition that having a beer not merely is an international crime, but that it also ought to be considered an international crime. This proposition is, I believe, hardly persuasive. This does not mean that five states could not, in principle, capture via treaty law a new offence. Rather, it shows that the fact that they agree on criminalizing a particular conduct as a matter of treaty law hardly suffices to claim that such conduct is appropriately considered an international crime. Interestingly, O’Keefe believes the role of law in the adequate conceptualization has further theoretical yield: ‘the only epistemologically compelling index of whether conduct was sufficiently serious to merit criminalization under or pursuant to international law would be whether it was criminalized under or pursuant to international law—that is, whether it was defined as a crime by international law’.21 Accordingly, he could resist my criticism by simply alluding to the fact that states have not, as a matter of fact, established alcohol consumption as an international crime. Nevertheless, I believe this response simply confirms my reasons for rejecting O’Keefe’s conceptualization. Namely, that a fruitful conceptualization not only needs to capture the existing features of international crimes as part of an existing legal practice, but that the concept must provide us—in O’Keefe’s terms—with an ‘epistemologically compelling index’ of which conducts ‘merit criminalization under or pursuant to international law’. This further proposition already concedes that the notion of an international crime must do more than simply identify those rules of international law that define criminal conducts. In effect, domestic settings theories of criminalization are not merely concerned with identifying which rules of the existing legal system are criminal in the relevant sense, but 18 Roger O’Keefe, International Criminal Law (OUP 2015) para 2.20 (hereafter O’Keefe, ICL). 19 ibid. 20 ibid 2.82. 21 ibid 2.26.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Theory of International Crimes 323 rather are also concerned with the important and difficult task of providing the relevant criteria to determine which conducts warrant this specific and harmful treatment. In this context—it is often acknowledged—the fact that a given state punishes homosexuality or educating women hardly means that they appropriately belong in the category of domestic crimes. By the same token, the fact that some country does not criminalize marital rape or female circumcision would hardly mean that we should not convincingly describe them as criminal. The concept of a crime, therefore, allows us to criticize certain legal provisions as mistaken (or unwarranted) and to advocate the introduction of certain others, and this, I believe, is one of its critically important functions. Accordingly, a defensible theory of domestic criminalization must help us identify those conducts which appropriately ought to be considered crimes, from those which do not. And so must a conceptual account of international crimes. In sum, I believe that O’Keefe is right in suggesting that a necessary conceptual feature of international crimes is that they are ultimately defined under international law. However, this conceptualization is unable to perform a central function that any such conception should perform. That is, it fails to provide us with suitable criteria to critically evaluate the inclusion of new conducts within the category of international crimes, as well as to assess the existing ones and their appropriate scope. Such a conception would not provide someone like Vespasian Pella with appropriate tools to advocate for the international criminalization of acts of barbarity and vandalism, like Raphaël Lemkin to be able to push for the international criminalization of genocide, or like Hersch Lauterpacht to advocate the international prohibition of crimes against humanity. Similarly, we need the concept of an international crime to help us assess whether specific acts of terrorism, corruption, or drug-trafficking, inter alia, ought to qualify as international crimes or not. In line with this criticism, the concept of an international crime hereby advocated precisely serves the type of function that the concept of a crime serves in domestic settings. Namely, it allows us not only to capture its essential features as a matter of legal practice but it also provides us with relevant criteria to assess whether any particular conduct appropriately belongs in this category. I suggest that the main difference between domestic and international crimes is that, in the case of the latter, the prohibition is prescribed directly by international law rather than merely by domestic law, and punishment is meted out by some organ acting on behalf of the international community, rather than by a national political community alone. An important caveat is in order here. This understanding does not mean that the notion of an international crime is prior, or entirely unrelated to, the legal practice in which it is embedded; in fact, the defining conceptual features of an international crime hereby advocated are inferred from existing legal practice. Rather, it suggests that a theoretical account that cannot critically evaluate the existing law (i.e., serve the purpose of framing arguments de lege ferenda) is as defective as one that does not take into consideration the existing legal practice at all. As a result, I suggest that the advantage of my preferred conceptualization is that it not only captures the main features of the relevant

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

324 Alejandro Chehtman legal practice, but that it also makes the scope of the notion of international crimes not rigidly determined by what the law establishes at any particular point in time.22 On the other hand, Kevin Heller advocates a conception of international crimes that is, at least in legal terms, substantially at odds with the one proposed by O’Keefe (and with my own). Heller rejects that international crimes should be understood as directly criminalized under international law (regardless of whether states criminalize them under their domestic laws). He calls this view the ‘direct criminalization thesis’ (DCT) and suggests that it is simply not supported by existing international law. By contrast, he defends what he calls the ‘national criminalization thesis’ (NCT) that understands international crimes as those which international law obligates every state to criminalize and prosecute under its own domestic law.23 As a matter of the relevant sources of international law, he concludes, the NCT provides a much stronger legal basis for universal (extraterritorial) criminal jurisdiction and a sounder conceptual understanding of what an international crime is. I am hardly convinced that existing international law supports the NCT as strongly as Heller suggests. In particular, I doubt that the NCT can convincingly account for international crimes warranting universal jurisdiction, which Heller acknowledges is their defining feature. Let me explain. His argument rests on three interrelated propositions. First, he argues that international crimes are subject to universal jurisdiction because ‘it is precisely a state’s failure to prosecute an international crime committed on its territory that justifies other states disregarding traditional limits on extraterritorial jurisdiction’.24 Nevertheless, the fact that a state fails to prosecute a particular type of crime would hardly suffice to conclude that other states have jurisdiction over it. This further implication is allegedly based on a second proposition, namely that ‘failing to prosecute an international crime [i]s a violation of an erga omnes obligation— an obligation owed “towards the international community as a whole” ’.25 However, even if we grant the existence of such obligation—a position I challenge in this chapter—this implication hardly follows. The fact that state A has an erga omnes obligation to criminalize and prosecute individuals who commit an international crime on its territory does not, per se, entail that if it were to violate this obligation, other states would acquire the right to exercise that jurisdiction themselves. As a matter of the law on state responsibility— which specifically regulates the legal consequences of failing to comply with any international law obligation—this would hardly be the case. A state violating a primary rule of international law would incur the obligation to cease in its breach and make full

22 This same position on legal concepts is shared by other theorists, such as some working on property rights. See, e.g., Joseph William Singer, ‘Original Acquisition of Property: From Conquest & Possession to Democracy & Equal Opportunity’ (2011) 86(3) Indiana L J 763, 770 (Singer argues that ‘[g]overnment fiat, without more, is unacceptable as a just source of original title to property’. I am grateful to Frédéric Mégret for pressing me on this issue). 23 Kevin J Heller, ‘What Is an International Crime? (A Revisionist History)’ (2017) 58(2) Harvard Intl L J 353, 355 (hereafter Heller, ‘What Is an International Crime’). 24 ibid 400. 25 ibid 404.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Theory of International Crimes 325 reparations.26 Yet, this hardly means—at least not without further argument—that other states would automatically acquire the legal power to adjudicate the matter themselves.27 Heller goes on to suggest, as a third, final claim, that the basis of this specific jurisdictional implication rests on the claim that the obligation to criminalize this type of act is a peremptory norm of international law.28 By contrast, I believe there is hardly sufficient evidence that the legal rule that obliges states to criminalize and prosecute crimes against humanity, genocide, or war crimes has jus cogens status (unlike the rules prohibiting most of those acts). As Heller explicitly recognizes, the existence and function of international criminal rules are precisely a consequence of states not prosecuting international crimes perpetrated on their territory.29 More importantly, a significant number of countries lack appropriate legislation criminalizing the core international crimes—for instance, slightly less than half of UN member states30 have domestically criminalized crimes against humanity.31 It is hard to see how we may argue that there is a peremptory norm of international law that such a large portion of states simply fails to comply with. And even if we grant the existence of such a rule for the sake of argument, it is unclear from the standard implications associated with jus cogens norms that a violation of the said rule would authorize other states to unilaterally intervene to remedy such violation.32 Admittedly Heller could argue, as Schwarzenberger did before him,33 that his conception is still conceptually more sound even if it implies that there are currently 26 See, e.g., James Crawford, Brownlie’s Principles of Public International Law (OUP 2012) ch 26 (hereafter Crawford, Brownlie’s Principles). 27 Heller cites no state practice in support of his view, but merely the opinion of one publicist, something that he does not list among the relevant sources of international law. Heller, ‘What Is an International Crime’ (n 23) 407. 28 ibid 408. 29 ibid 402. But see the precise terms of my disagreement with him in the text to n 91. 30 In a recent survey, Amnesty International reported that only 47.7 per cent of UN member states have included at least one crime against humanity, 61.1 per cent have included genocide, and 70.5 per cent of UN member states have provided for at least one war crime under their domestic legislation. Amnesty International, Universal Jurisdiction: A Preliminary Survey of Legislation Around the World – 2012 Update (Amnesty International Publications 2012) 12–13. 31 By contrast, the customary norm authorizing the exercise of universal jurisdiction over inter national crimes has not been legally justified on the basis of erga omnes obligations or jus cogens norms. For one of the more authoritative views, see Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment of 14 February 2002, [2002] ICJ Rep 3, para 56. 32 See International Law Commission, ‘Articles on Responsibility of States for Internationally Wrongful Acts’ (2001), Appended to Responsibility of States for Internationally Wrongful Acts, UNGA Res 56/83, UNGAOR, 85th Plen Mtg, UN Doc A/RES/56/83 (12 December 2001), art. 41. Arguably, the positive duty for states to ‘cooperate to bring to an end through lawful means any serious breach’ (art 41(1)) would hardly seem to grant individual states the power to interfere with a state that fails to criminalize or prosecute this type of behaviour by exercising jurisdiction themselves over the alleged offender. Furthermore, Crawford writes that the provisions in art 41 are ‘probably as much progressive development as codification . . . [;] if there is an element of customary international law here, it is the element of collective non-recognition’ (Crawford, Brownlie’s Principles (n 26) 598). See further the Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331 (in force 1980), art 53. 33 Schwarzenberger, ‘The Problem of an International Criminal Law’ (n 8).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

326 Alejandro Chehtman no international crimes strictly conceived. I doubt, however, that he would be willing to defend that conclusion. More importantly, I disagree with Heller that the DCT has no plausible foundation in international law. A relevant case to test this thesis would be as follows: let us assume that international law only contains, as per the NCT, a norm that requires states to criminalize the crime against humanity of murder as part of a widespread or systematic attack against a civilian population under their own domestic law, irrespectively of where it has been perpetrated. Suppose further that state S has not fulfilled this duty, and suddenly P, a perpetrator of this crime against humanity, is apprehended on its territory. Under Heller’s NCT, S would simply lack the jurisdiction to prosecute P for crimes against humanity without violating the principle of legality. This implication not only seems normatively unattractive; it is descriptively incorrect as to actual state practice and opinio juris. In terms of relevant state practice, Colombian courts, for instance, have prosecuted individuals for crimes against humanity on the basis of the criminal prohibitions contained in customary international law, as codified under the Rome Statute, even though they lacked a domestic provision criminalizing these type of conduct as a matter of Colombian law.34 Similarly, Argentine courts have characterized crimes perpetrated under the 1970s Chilean and Argentine military dictatorships (as well as by Franco’s regime in Spain) as crimes against humanity on the basis of the international criminal prohibition of these crimes.35 In the latter case, they have exercised universal jurisdiction on grounds of a provision, originated in its 1853/60 Constitution, conferring jurisdiction of its domestic courts on ‘crimes against the law of nations’.36 These decisions not only seem to support the DCT, but they are clearly incompatible with the NCT. Furthermore, opinio juris explicitly confirms the legality of these decisions. For one, the International Criminal Court and the Inter-American Court of Human Rights have hardly criticized these decisions.37 Similarly, the District Court of Jerusalem in Eichmann famously argued that the ‘abhorrent crimes defined in this Law are not crimes under Israel law alone [;] [t]hese crimes, which struck at the whole of mankind and shocked the conscience of nations, are grave offences against the law of nations itself (delicta juris gentium)’,38 only to conclude that states were stepping in only as a substitute for a genuinely global tribunal representing the international community as a whole. Again, under the NCT, Israel would have been disabled from trying Eichmann without violating the principle of legality, insofar as the domestic law under which his acts were 34 See, inter alia, Corte Suprema de Justicia de Colombia [CSJ] [Supreme Court] Sala de Casación Penal, 3 diciembre 2009, Decisión 32672, Salvador Arana Sus (at 23, 25) (Colombia). 35 See n 1. See also Rome Statute (n 14) arts 29, 27(2); Conventions on the Non-Applicability of the Statutory Limitations to War Crimes and Crimes against Humanity (n 14). 36 See art 118 of the current Argentine Constitution. 37 See, e.g., Office of the Prosecutor of the ICC, ‘Report on Preliminary Examination Activities’ (12 November 2015) accessed 19 June 2018 paras 150, 153. For the IACtHR, see, e.g. n 2. 38 A-G of the Government of Israel v. Eichmann [1962] Crim Case 40/61, 36 Intl L Rep 5, para 12 (District Ct of Jerusalem).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Theory of International Crimes 327 considered criminal had not been enacted at the time of his conduct. Similarly, in Yunis, a US District Court argued, ‘The Universal principle recognizes that certain offenses are so heinous and widely condemned that “any state if it captures the offender may prosecute and punish that person on behalf of the world community regardless of the nationality of the offender or victim or where the crime was committed” ’.39 Incidentally, we can gather further support for the DCT from International Human Rights Law. Article 11(2) of the Universal Declaration of Human Rights, and Article 15(1) of the International Covenant on Civil and Political Rights explicitly make reference to the existence of criminal offences ‘under . . . international law’.40 Thus, I am not persuaded that international law supports the NCT. There seems to be a much stronger case for the DCT.41 Ultimately, I find Heller’s approach unconvincing for three further theoretical reasons. First, because it collapses the distinction between international crimes and so-called transnational crimes, such as money laundering, drug trafficking, and the like, which clearly fits his characterization of the NCT. This implication would be rejected— correctly in my view—by many of those advocating transnational criminal law as a separate body of law.42 Second, his conception of international crimes also fails to give us a set of criteria against which to determine whether a particular conduct appropriately belongs in the category of international crimes. As such, it fails to fulfil one of the key tasks a theoretically useful conceptualization of international crimes must perform, i.e., to allow us to critically assess the scope of the existing laws on international crimes (either because of them being over- or under-inclusive). Third, I methodologically disagree with Heller’s insistence on the law itself settling the conceptual question of what an international crime is, by itself clarifying the ultimate basis of a prohibition (i.e., international or domestic law). By contrast, I believe we would be better off if we argue, with O’Keefe, that concepts such as that of an international crime be better determined doctrinally than settled by the law itself, be it a domestic law, treaty, or custom.43 39 United States v. Yunis, 924 F (2d) 1086 (DC Cir 1991). Heller claims this decision is more compatible with the NCT than the DCT given that the US ‘refuses to exercise universal jurisdiction in the absence of a treaty requirement’ in Kevin Jon Heller ‘What is an International Crime? (A Revisionist History): A Reply to My Critics’ (Havard Intl L J Online Symposium, 20 March 2018) at 7 accessed 10 July 2018 (hereafter Heller, ‘A Reply to My Critics’). But surely this is compatible with the DCT insofar as we see universal jurisdiction as right of states, not a duty. Insofar it is a right, states may decide whether and when to exercise it. They may even accept a duty to do so under certain circumstances. 40 Universal Declaration of Human Rights, UNGA Res 217A(III), UNGAOR, 3rd Sess, Supp No 13 at 71, UN Doc A/810 (10 December 1948); International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 (in force 23 March 1976). 41 See, e.g., Astrid Reisinger Coracini, ‘ “What is an International Crime?”: A Response to Kevin Jon Heller’ (HILJ Online Symposium, 20 March 2018) accessed 10 July 2018. 42 See, e.g., Neil Boister, An Introduction to Transnational Criminal Law (OUP 2012); Harmen van der Wilt and Christophe Paulussen (eds), Legal Responses to Transnational and International Crimes: Towards an Integrative Approach (Edward Elgar 2017); Neil Boister and Robert Currie (eds), Routledge Handbook of Transnational Criminal Law (Routledge 2015). 43 On this, vis-à-vis the concept of universal jurisdiction, see Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’ (2004) 2(3) J of Intl Crim Justice 735, 744.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

328 Alejandro Chehtman This point warrants further elaboration. Heller has recently complained that my preferred explanation ‘simply outsources international criminalization to judges’, that is, he claims that I seem to be committed to the implausible proposition that ‘[i]nternational crimes are what judges say they are, regardless of state practice and [of] principles of justice’.44 I do not think this follows from my preferred account. But his proposition allows me not only to further clarify my methodological disagreement with Heller, but also to distinguish between two different questions, that I believe his statement conflates. On the one hand, we have the question of whether a particular act constitutes an international crime as a matter of international criminal law (de lege lata). In this respect, we may discuss, for instance, whether or not killing members of a political group with the intent to destroy it in whole or in part constitutes the crime of genocide. This question, I agree with him, should be determined on the basis of state practice (either as a matter of customary or treaty law), including—when appropriate—the decisions of domestic and international courts. On the other hand, we have the question of what conceptual features crimes against humanity, war crimes, and genocide (inter alia) share as a matter of legal practice, which might support the existence of a unifying concept of an international crime. This question, by contrast to the previous one, is doctrinal; it is the job of jurists and legal theorists to try to make sense of this complex practice and identify the main conceptual features of this notion. States (and judges) only have an indirect influence on what the right answer to this question is, insofar as they embody the legal practice jurists need to examine in order to provide an answer to it. Before concluding this part, let me elaborate on the conceptual definition I advocate here. I have argued that the defining feature of an international crime is that it confers jurisdiction over it also to an extraterritorial authority with no traditional link to the crime, the perpetrator(s), or the victim(s). This is, I submit, what we mean when we say that a certain conduct X is (or should be) considered an international crime: that it is not the exclusive matter of the political community/ies within which it was perpetrated. I now suggest that we must distinguish this understanding from the specific regime of universal criminal jurisdiction, two questions that are often conflated in the literature.45 Namely, my preferred understanding of international crimes does not necessarily require that we provide jurisdiction over them to every or any domestic judicial authority in the world, as the regime of universal criminal jurisdiction does. Nor does it necessarily require that these crimes be triable by an international criminal tribunal.46 The idea of having certain international crimes that are enforceable also by some extraterritorial court is compatible with allocating exclusive authority to prosecute them on a specific authority, be that an international criminal tribunal, as provided for in the Genocide Convention,47 or the domestic courts of every state, as in the regime of 44 Heller, ‘A Reply to My Critics’ (n 39) 8. 45 See the texts cited in n 5, but also Heller’s account in ‘What Is an International Crime’ (n 21). 46 O’Keefe, ICL (n 18) 2.31. 47 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 278, art VI. Furthermore, we could even argue that this tribunal would be representing the interests of

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Theory of International Crimes 329 universal jurisdiction. It may also be the case that, given the current institutional features and political limitations of the international community, we have good policy reasons to provide for international crimes as broad a jurisdictional regime as possible, such as that embodied by universal criminal jurisdiction. But this particular regime must not be conflated with our basic concept.48 If international law provided jurisdiction over war crimes, crimes against humanity, and genocide only to the ICC, we would still say that they characterize the basic concept of an international crime.

III. What Makes a Given Conduct an International Crime? The analysis in the previous section provides us not only with an appropriate conceptualization of international crimes, but also clarifies the central normative question that an account of international crimes must answer. Normative arguments are about providing sufficiently strong reasons for a certain practice or institution, i.e., they are about justification. Mitch Berman has argued that justification is not just about justifying a certain conduct X, but rather it requires justifying X before Y.49 In criminal law, it has been traditionally thought that criminalization required justifying the imposition of legal punishment essentially before those upon whom punishment is inflicted, i.e., convicted defendants. This is also true of international criminalization. Yet, in this context we must also justify the imposition of legal punishment, and in fact the criminalization of certain conducts, vis-à-vis the political community/ies in which the crimes were perpetrated. The reason for this is that the international community is claiming authority to criminalize, prosecute, and ultimately punish these conducts irrespective of the position of the relevant domestic authorities. In particular, international criminalization must be justified against a background of domestic political authorities enjoying a right to self-government.50 Namely, domestic authorities generally claim a pro tanto Hohfeldian power to define and enforce themselves crimes perpetrated within their borders, or perpetrated by or against their nationals or national interests. Accordingly, international criminalization needs justifying before these authorities the fact that this type of conduct will be subject to the jurisdiction of the international community. In early conceptualizations of international criminal law, this question was answered in terms of the violation of the rights of states. Scholars were concerned with securing individuals worldwide, rather than states themselves. I am grateful to Justina Uriburu for making me clarify my position here. 48 I am grateful to Kevin Heller for pressing me on several points of this Part. 49 Mitchell N. Berman, ‘Punishment and Justification’ (2008) 118 Ethics 258–90. 50 See, e.g., Joseph Raz and Avishai Margalit, ‘National Self-Determination’ in Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (OUP 1996), 126.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

330 Alejandro Chehtman peace, preventing revolution, or criminalizing war crimes in international armed conflicts.51 This approach definitely changed in the aftermath of World War II, with an increased preoccupation for individuals and their fundamental rights.52 Currently, international crimes are usually perceived as serious violations of fundamental human rights. Yet there are still disagreements about what rights must be violated, of how many individuals, under what circumstances, and by whom. Most of the leading, contemporary accounts of international crimes have sought to normatively account for international criminalization by taking these considerations into account. David Luban, for instance, suggests that every member of humankind has an interest in international crimes being appropriately punished. The reason for this is that what characterizes international crimes is politics gone cancerous and that every human being is a hostage of some political organization. The interest in extricating this type of act from the repertoire of politics, then, would be served by any organization conducting fair trials against the perpetrators.53 Larry May, for his part, has accounted for this specific implication on the basis of what he calls the security principle. The ‘security principle’ is violated, he argues, when a given state deprives its subjects of physical security or subsistence, or is unable or unwilling to protect them from harms to their security or subsistence. It follows from this violation that such state would forfeit its immunity against a foreign body interfering—i.e., piercing the veil of sovereignty—by not prosecuting those responsible for such crimes.54 Hence, instead of considering the interests of all humanity, he suggests that international criminalization must be justified by reference to the interests of those individuals directly threatened by those acts. Antony Duff, in turn, justifies international criminalization by suggesting that just as domestic offences properly concern the political community within which they are perpetrated, international crimes properly concern the whole of humanity. In fact,—he adds—‘if the wrong is serious and persistent enough, and if the state radically fails in its duty to prosecute and punish such wrongdoing, it may become in principle legitimate for others . . . to intervene, and may become practicable for them to do so’.55 Finally, Willard Cowles explained the international criminalization of war crimes by suggesting that, like acts of brigandism and piracy, they are characteristically perpetrated in situations where there is a lack of an adequate system of law enforcement, allowing perpetrators to operate with the hope of impunity.56 51 Mark Lewis, The Birth of the New Justice (OUP 2014) 84–85 (hereafter Lewis, The Birth of the New Justice). 52 But see David Luban, Legal modernism (U of Michigan Press 1997) 335–62; José Alvarez, ‘Nuremberg Revisited: The Tadic Case’ (1996) 7(2) European J of Intl L 245. 53 Luban, ‘A Theory of Crimes against Humanity’ (n 7). 54 May, Crimes against Humanity (n 7) 68. 55 Antony Duff, ‘Responsabilidad penal, Interna e Internacional’ in Alejandro Chehtman (ed), Problemas estructurales de Derecho penal internacional (Marcial Pons 2015) 338. 56 Willard B. Cowles, ‘Universality of Jurisdiction over War Crimes’ (1945) 33(2) California L Rev 177, 194, 217. For similar accounts, see, e.g., Christopher McLeod, ‘Towards a Philosophical Account of Crimes Against Humanity’ (2010) 21(2) European J of Intl L 281–302; Norman Geras, The Contract of Mutual Indifference: Political Philosophy after the Holocaust (Verso 1998); Alain Zysset, ‘Refining the

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Theory of International Crimes 331 Notably, each of these arguments stands on quite different grounds. Yet all of them share a preoccupation for normatively accounting for existing ‘core crimes’ under international law, and for some of their constitutive conceptual features. These arguments are loosely based, in line with the existing legal practice, on at least three relevant features: the scale of the acts, the level of organization of the perpetrators, and the gravity of the harms. Scale is usually defined in relation to the numbers of people affected. For instance, international law considers a widespread attack a sufficient contextual element for the perpetration of crimes against humanity, while war crimes often require an international or a non-international armed conflict.57 In terms of the level of organization of the perpetrators, again the law on crimes against humanity captures this element by reference to the systematic nature of the acts, and by reference to the need of some kind of policy by a state or a relevant organization.58 Similarly, international law requires that parties to an armed conflict be states, or non-state armed groups that satisfy certain substantial organizational requirements, such as having a command structure, disciplinary mechanisms, military training, and ability to plan and carry out military operations.59 Finally, international criminalization generally requires a significant level of gravity of the relevant act or, as it has been often put, acts that are considered heinous or atrocious.60 Although genocide would be the obvious case in point, the overwhelming majority of crimes against humanity, war crimes, and wars of aggression are characterized by severe violations of fundamental human rights.61 Recently, this general understanding has been challenged by a number of revisionist accounts advocating a broader conception of international crimes than that which prevails both under existing international law and in leading normative accounts. These theorists

Structure and Revisiting the Relevant Jurisdiction of Crimes against Humanity’ (2016) 29(1) Canadian J of L and Jurisprudence 245–65. 57 Rome Statute (n 14) art 7(1). 58 ibid art 7(1) and (2)(a). There is, however, substantial disagreement in the jurisprudence of the ICC and other international and national courts in terms of what this requirement actually amounts to. See, e.g., Claus Kreß, ‘On the Outer Limits of Crimes against Humanity: The Concept of Organization within the Policy Requirement. Some Reflections on the March 2010 ICC Kenya Decision’ (2010) 23 Leiden J of Intl L 855. On this see also The Prosecutor v. Ruto et al (Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/09-01/11, (23 January 2012) para 185 (Pre-Trial Chamber II) (hereafter Ruto et al). 59 See The Prosecutor v. Lubanga (Judgment pursuant to Article 74 of the Statute) ICC-01/04-01/06, (14 March 2012) para 537 (Trial Chamber I); Prosecutor v. Haradinaj et al (Judgment) IT-04-84-T, (3 April 2008) (ICTY, Trial Chamber I). But also see that art 1(1) of the Additional Protocol I to the Geneva Conventions establishes a slightly higher threshold (see Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978)). 60 See the chapter by Samuel Moyn, ‘From Aggression to Atrocity: Rethinking the History of International Criminal Law’ in this volume. 61 I simply assume here that a discriminatory motivation is not a necessary element of an inter national crime. On this, see, e.g., The Prosecutor v. Akayesu (Judgment) ICTR-96-4-A, (1 June 2001) paras 461–69 (Appeals Chamber); Rome Statute (n 14) art 7.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

332 Alejandro Chehtman deny that international criminalization must rest on all these three considerations.62 One of the most radical approaches has been put forward by Cécile Fabre. Her argument, she acknowledges, is entirely de lege ferenda. Yet she claims that any single act of murder, rape, enslavement, abuse, as well as the ‘deliberate failure to save lives out of callous indifference’ ought to be considered, from the point of view of normative philosophy, an international crime.63 She rejects that this type of crime must be perpetrated ‘by or with the acquiescence of political organizations; nor should we define them as attacks against individuals on the basis of some group feature or other’.64 [These are crimes that] shock the conscience of all human beings (for short, humankind) because they destroy, or at any rate seek to destroy, that which is specifically and nobly human in their victims (notably, their self-respect and dignity) and are committed in defiance of that which is or at any rate ought to be specifically human in their perpetrators.65

Therefore, it is their dehumanizing feature that, she suggests, is at the core of these conducts being considered or treated as international crimes.66 In fact—she adds—it is this feature that provides international crimes with their ‘distinctive jurisdictional millage’.67 Put differently, Fabre proposes that we get rid of the scale and organization features identified earlier. She simply states that international crimes should cover all those that violate basic human rights, and that they should be prosecuted by any decent authority regardless of where they were perpetrated, or the nationality of the victim and the perpetrator. Let us assume, with Fabre, that the scope of the power to punish is determined by the reasons that justify inflicting legal punishment upon the particular offender, and that this applies to the scope of the power to punish international crimes. Let us concede also that the power to punish a particular offender is justified by reference to its capacity to communicate or express censure for the relevant wrong perpetrated.68 If we accept that we are justified in expressing condemnation of any act that destroys, or seeks to destroy, ‘that which is specifically and nobly human’ in their victims, it seems to follow that any isolated act of murder, or rape, should be legitimately considered a plausible candidate for an international crime. This is compatible with a compelling take on criminalization more broadly. As Tadros has recently put it, ‘[t]o criminalize v is to warrant accusing 62 See, e.g., Altman and Wellman (n 7); Massimo Renzo, ‘Crimes Against Humanity and the Limits of International Criminal Law’ (2012) 31(4) Law & Philosophy 443. 63 By this I mean that she considers crimes against humanity the genus, of which war crimes, genocide, the legal notion of crimes against humanity are but different species, together with—as we shall see— many more acts. 64 Cécile Fabre, Cosmopolitan Peace (OUP 2016) 182. 65 ibid 181. 66 ibid. 67 ibid 183. 68 For leading accounts on this, see Joel Feinberg ‘The Expressive Function of Punishment’ in Doing & Deserving. Essays in the Theory of Responsibility (Princeton UP 1970); Igor Primoratz, ‘Punishment as Language’ (1989) 64(248) Philosophy 187–205; Antony Duff, Punishment, Communication, and Community (OUP 2001).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Theory of International Crimes 333 people of ving (if there is sufficient evidence to do so), calling those who have ved to account for having done so, publicly blaming those who have been demonstrated to have ved (if they lack a justification or excuse for having ved), and inflicting sanctions on them’.69 Publicly blaming a particular wrongdoer acknowledges the fact that there is some sense in which a crime wrongs the public.70 In this regard, murderers and rapists, amongst other serious offenders, should all be considered liable to being punished. Nevertheless, accepting this proposition need not lead to the conclusion that these acts must be considered international crimes, even de lege ferenda. Namely, from the fact that the state has the power, and indeed may have the duty, to criminalize this kind of behaviour within its borders does not follow that such power should be conferred also upon some extraterritorial authority. The reason for this is that justifying international criminalization is not merely about justifying before the relevant offender the imposition of legal punishment but, rather, and as suggested, also before the relevant political community within which the crime was committed. In effect, the criminal jurisdiction of a state is considered a fundamental aspect of its sovereignty. This entails not only determining whether a particular conduct must be criminalized, but also what is the relevant procedure (the rights of defendants and victims) and the appropriate sanctions, and affirming that punishment is meted out as a consequence of the breach of a binding rule of the community. As a result, the adjudication by a foreign court of a conduct perpetrated within that jurisdiction is generally construed as an unwarranted intervention in the domestic affairs of the state, i.e., a wrong to that particular political community. I have serious reasons to doubt that turning a single act of murder, rape, etc. into an international crime would meet this further normative hurdle. First, it is open to question the extent of the benefits that such an expansive jurisdictional regime will provide in this type of case to the relevant individuals. States’ domestic legal systems can typically prosecute this type of behaviour in a fairly efficient way. Extraterritorial investigations, by contrast, are financially very costly and particularly cumbersome when evidence is located in a state reluctant to give access to it. Accordingly, whereas the incentives to prosecute domestically an incident of murder or rape would be significant (regardless of how serious they are), and so would be the effectiveness of the rules prohibiting them, the incentives for extraterritorial authorities to investigate and punish the perpetrators of a single act of murder or rape, absent any concrete connection to the crime, would be very low. And so would be the capacity of an extraterritorial authority to provide a public condemnation of such act and a vindication of the bindingness of the relevant criminal rule. Second, this type of extraterritorial prosecution would typically generate serious political tensions, which would ultimately undermine—I suggest—the justification for the international criminalization of these acts.71 This insight was arguably reflected in 69 Victor Tadros, Wrongs and Crimes (OUP 2016) ch 9 (hereafter Tadros, Wrongs and Crimes). 70 ibid. 71 Lewis, The Birth of the New Justice (n 51) 297.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

334 Alejandro Chehtman the US Supreme Court’s finding that, unlike piracy, murder in the high seas was not universally cognizable.72 Kontorovich suggests that this may well have been the result of considering that it was too serious a crime to warrant antagonizing the state with traditional jurisdiction over it.73 Accordingly, I believe that criminal jurisdiction over these offences will not be exercised often enough to provide a substantial benefit and, if exercised, it would cause more harm than good, given how strong the interest of the state is in not having extraterritorial authorities with no connection to the offence adjudicate this type of crime.74 In sum, given that turning a particular behaviour into an international crime must be justified not only before the individual upon whom punishment is meted out, but also before the political community within which the crime was perpetrated, in the case of a single act of murder or rape this type of interference would not seem to be sufficiently justified. At least, no one’s concrete interest seems sufficiently weighty to override the interest of the political community in adjudicating this act through its established institutions. In fact, it seems to me that a far more attractive institutional response to the failure to prosecute these offences domestically is characterized by resort to international human rights mechanisms, both adjudicative and political.75 Accordingly, I suggest that we lack sufficiently strong reasons to consider single incidents of murder, rape, and the like as international crimes.76 Margaret deGuzman also advocates a broader conception of international crimes. Unlike Fabre’s, her argument rests on considerations de lege lata; namely, she suggests that we must abandon a high gravity threshold as one of the three necessary conditions for international criminalization. She illustrates this argument by reference to war crimes. Echoing Luban, deGuzman argues, first, that ‘[a]ll humans share an interest in minimizing the suffering war causes, both in our own communities, and around the world’, and that this ‘interest is rooted in our common humanity’.77 Furthermore, she 72 United States v.Furlong, 18 US (5 Wheat) 184 (1820). 73 Eugene Kontorovich, ‘The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation’ (2004) 45(1) Harvard Intl L J 229. 74 This view is compatible both with states delegating their jurisdiction on external fora (as with regimes of transnational criminal law or even under the doctrine of vicarious jurisdiction), as well as with certain specific states holding extraterritorial criminal jurisdiction on grounds of the nationality of the perpetrator or the victim, or of the fact that the crime affects some sovereign interest. 75 See, e.g., n 16. 76 Arguably, I could also resist Fabre’s proposal on consequentialist grounds. In effect, Tadros also requires, for the criminalization of any particular conduct, that we also look at the good or bad effects this criminalization will expectedly have. He persuasively argues that the good that criminalizing a given conduct produces must be proportionate not only to the harm inflicted upon offenders, but also to the bad effects that such criminalization would bring about. It follows from these considerations that the international criminalization of single acts of murder or theft would fail to satisfy this type of requirement too. See Tadros, Wrongs and Crimes (n 69) ch 6. See also Douglas Husak, Overcriminalization: the Limits of the Criminal Law (OUP 2008) ch 3; Andrew Ashworth, Principles of Criminal Law (6th edn, OUP 2009) 33–34. 77 Margaret deGuzman, ‘Justifying Extraterritorial War Crimes Trials’ (2018) 12(2) Criminal Law and Philosophy 289.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Theory of International Crimes 335 claims that ‘people in power in situations of armed conflict are much less likely to enforce the relevant norms’.78 Interestingly, although one could claim that this interest is compatible with criminalizing murder and rape under international law outside of armed conflict, she suggests that war is different insofar as it threatens human well-being in qualitatively and quantitatively different ways than ordinary crimes, and that unlike domestic crimes, war crimes are far less likely to be prosecuted by those in power. Accordingly, she claims that what distinguishes her account from standard understandings is her rejection of atrocity as a necessary feature of international crimes.79 To illustrate her position, deGuzman refers to the war crimes of pillage and of destruction of cultural property. Neither of these examples would constitute, she argues, instances of atrocity crimes. And yet, they warrant extraterritorial prosecution because ‘it is important for the international community to send a message that such conduct will not be tolerated’.80 One way to respond to her suggestion comes right out of the jurisprudence of the ICC. Trial Chamber III specifically argued that acts of pillage under the jurisdiction of the Court in that particular case were ‘large scale and with grave consequences for the victims’: ‘impacting various aspects of their personal and professional lives, [and] often leaving victims with nothing’.81 The judges went on to indicate that ‘soldiers targeted unarmed victims in their homes’, often in groups, and that ‘[a]cts of pillage were often accompanied by acts of murder and rape’.82 In fact, the ICC Pre-Trial Chamber II in that same case had argued that ‘cases of petty property expropriation may not fall under the scope of ’ pillage as defined under the ICC Statute.83 Similarly, in assessing the destruction of cultural objects caused in Timbuktu, the ICC Trial Chamber VIII took into consideration the vast extent of the harm caused, where ‘most of the 10 sites were completely destroyed’ and characterized this as a ‘war activity aimed at breaking the eople of Timbuktu’, for ‘Timbuktu is at the heart of Mali’s cultural heritage’.84 soul of the p 78 ibid. 79 Although she develops her argument with war crimes in mind, yet her reasons for subjecting them to extraterritorial adjudication can easily be extended to other crimes such as crimes against humanity, genocide, and aggression. 80 Margaret deGuzman, Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law (OUP, forthcoming 2019). 81 The Prosecutor v. Bemba Gombo (Decision on Sentence pursuant to Article 76 of the Statute) ICC-01/05-01/08-3399, (21 June 2016) para 49-50 (Trial Chamber III). 82 ibid paras 53–54. Judge Steiner added that most of the victims were ‘particularly defenseless’ (ibid para 58). Jean-Pierre Bemba Gombo himself was ultimately acquitted by the Appeals Chamber on 8 June 2018 (see The Prosecutor v. Bemba Gombo (Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s ‘Judgment pursuant to Article 74 of the Statute’) ICC-01/05-01/08-3636-Red, (8 June 2018) (Appeals Chamber). However, this last decision did not modify the Court’s interpretation on the scope and basis of the international criminalization of pillage. 83 The Prosecutor v. Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) ICC-01/05-01/08-424, (15 June 2009) para 317 (Pre-Trial Chamber II) (hereafter Bemba Gombo). 84 The Prosecutor v. Al Mahdi (Judgment and Sentence) ICC-01/12-01/15-171, (27 September 2016) paras 78, 80 (Trial Chamber VIII).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

336 Alejandro Chehtman By contrast, I believe that relying on these claims would be the wrong type of response to deGuzman’s argument. The reason for this is that the gravity threshold that the ICC applied in these cases is not necessarily a reflection of the scope of international crimes, but rather it may have more to do with considerations relevant to the admissibility of a case before the ICC.85 In other words, the main reason the ICC need not address instances of pillage or destruction of cultural property that did not reach such level of gravity would be, as James Crawford argued, that it should not waste its very limited time and resources on prosecuting minor players.86 Rather, it must concentrate on the most serious crimes and the most responsible perpetrators. Accordingly, this particularly high gravity threshold is more likely based on a plausible strategy of prioritization of cases by a court like the ICC, than with the scope of international criminalization as such. As a matter of fact, the International Committee of the Red Cross (ICRC) Commentary to the Additional Protocols suggests that pillage as a war crime also covers ‘pillage resulting from isolated acts of indiscipline’.87 Arguably, the fact that gravity is necessary for the purposes of the admissibility analysis before the ICC does not entail that it is also necessary for international crim inalization. At the same time, nor does this fact preclude gravity from being a necessary condition for international criminalization. I suggest that international crimes must satisfy a significant gravity threshold on the basis of two different sets of considerations. On the one hand, it is not true that the war crime of pillage is not characterized by a particularly grave type of behaviour. A critical gravity threshold in the case of pillage or destruction of cultural heritage as war crimes is arguably met by their contextual element, i.e., the existence of an international or non-international armed conflict. This contextual element is central to the justification of the establishment of extraterritorial jurisdiction over this type of act. Namely, if a soldier steals the only two cows of a family for personal gain, without the consent of the owner88 outside of an armed conflict, his act is likely not to be construed as an international crime, and rightly so. On the other hand, the specific act must be grave enough to warrant inflicting legal punishment upon an offender. To put it a bit simplistically, there are many violations of international humanitarian law that do not warrant criminalization, such as failure to install canteens, with foodstuffs, soap, and tobacco at local market places, or the failure to issue death certificates as required by articles 28 and 120 of Geneva Convention III,

85 Rome Statute (n 14) art 17(1)(d). 86 See, International Law Commission, ‘Summary Record of the 2330th Meeting’ [1994] 1 UN YB of the Intl L Commission 9. 87 Claude Pilloud and others, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (International Committee of the Red Cross 1987) 1376, para 4542. 88 See ICC, ‘Elements of Crimes’, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, 1st Sess (United Nations publication, Sales No. E.03.V.2 and corrigendum), part II.B and Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May-11 June 2010 (International Criminal Court publication, RC/11) available online at accessed 20 June 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Theory of International Crimes 337 respectively.89 Accordingly, war crimes seem to require a highly significant gravity threshold that is met through the combination of the gravity of the contextual element together with the gravity of the underlying act. This means that the normative account of international crimes that deGuzman favours is hardly a better fit to the existing laws of international crimes de lege lata. Furthermore, it is neither very promising de lege ferenda insofar as it would arguably require considering, inter alia, state-sponsored systematic bicycle theft, or any minor violation of the laws of armed conflict as core crimes under international law. Elsewhere I have provided an argument for international criminalization that not only embraced the three elements identified here, but also sought to account for the specific role that each of them plays in a normative explanation of international crimin alization. Like Fabre’s, this argument takes as its point of departure that the scope of the power to punish is to a large extent determined by the reasons that justify inflicting legal punishment upon a particular person. Against this background, I argued that the power to punish offenders is based on the interest of individuals in there being a criminal rule in force against certain kind of wrongful or harmful behaviours. This proposition is based on an analytic and a normative claim. Analytically, it assumes that a system of criminal rules cannot be in force unless those who violate them are liable to being punished for doing so (and some of them are in fact punished). Normatively, it relies on the claim that having legal provisions prohibiting wrongful conduct in force contribute to the well-being of individuals living under them, by communicating that they are the bearers of fundamental legal rights and that those rights are protected (and their protection taken seriously) by the relevant authorities.90 In cases of murder, theft, or rape, i.e., typical offences under domestic law, individuals have an interest in the concerned state criminalizing this type of conduct, and prosecuting and punishing those who perpetrate them. By contrast, I argued that when wrongs are committed on a large scale and by sufficiently organized and powerful groups, the fact that the state with traditional jurisdiction over these offences (on grounds of territoriality, nationality of the victim or the perpetrator, or the protection of a sovereign interest) holds the power to punish the perpetrators does not suffice to convey the message to individuals in that state that those rules are actually in force. The reason for this is that such state would either be responsible for perpetrating, instigating, or allowing them, or is simply unable to do anything about them.91 Accordingly, if such rules are to be in force, i.e., considered binding by the relevant individuals, we must provide at least some extraterritorial authority with jurisdiction over them, whether we do so on the basis of universal jurisdiction or by empowering an international court (or both).92 89 See, e.g., The Prosecutor v. Brđanin (Judgment) IT-99-36-T, (1 September 2004) para 1013 (Trial Chamber II). 90 Chehtman, The Philosophical Foundations (n 10) ch 2. 91 ibid ch 4. 92 This allows me to further clarify my disagreement with Heller’s conceptual account in Part II. I agree with him that the fact that the territorial state has failed or is expected to fail to prosecute those responsible for a particular criminal act is critical in order to claim that such conduct amounts to an international crime. Yet in my case this reasoning is part of the normative argument of what makes a

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

338 Alejandro Chehtman Furthermore, I also argued that a substantial level of gravity or seriousness is also necessary to justify this type of extraterritorial jurisdiction. This is not because such substantial gravity would suffice to make any particular conduct cognizable by extraterritorial courts. In fact, this consideration does not even play a role in accounting for the need to confer the power to punish perpetrators of international crimes specifically upon some extraterritorial authority. By contrast, the gravity or heinousness of the crimes is necessary in order to override the right to political self-government enjoyed by a state, that constitutes a pro tanto reason to preclude the international community from passing legislation that applies on its territory. Furthermore, it also goes a long way in justifying the kind of political turmoil, and possible adverse political repercussions, these extraterritorial prosecutions may be expected to cause.93 Andrew Altman has objected that this argument commits me to a more revisionist position than I acknowledge.94 If it is true that international crimes are those that simply cannot be in force on a given territory unless some extraterritorial body has jurisdiction over them, then this description would apply to offences perpetrated in failed states facing large crime waves, where the domestic system of criminal law is in shambles. Individuals living under these circumstances would not be able to trust that the domestic prohibition of murder is binding on others around them on the basis of the power of domestic authorities to punish the perpetrators. This means, in short, that I should reject the requirement of organization that characterizes the standard account.95 I have to agree. In my previous work, I considered the organization requirement a necessary element of my normative account of international crimes. The reason for this was that having a powerful organization behind the acts conveyed upon the relevant individuals the message that those responsible for the wrongs they suffered would not be brought to account. This, in turn, consolidated the belief amongst the relevant population (triggered by the fact that the acts were perpetrated on a large scale) that the relevant criminal prohibition could not be really in force on the basis of the sole authority of the territorial state, i.e., binding on them. By contrast, I now believe that my previous position was unnecessarily demanding. I would currently accept that the requirement particular conduct an international crime, and not part of their definition. That is, it answers the question why crimes against humanity or war crimes are international crimes, not what an international crime is. 93 Arguably, there may be certain situations in which the international community should still refrain from intervening all-things-considered such as when such intervention seriously risks reigniting a bloody armed conflict. It suffices for my purposes that we have a pro tanto (i.e., defeasible) reason to prosecute in this type of case. 94 Andrew Altman, ‘The Right to Punish Crimes Committed Abroad: What are the Scope and Grounds of a State’s Criminal Jurisdiction?’ (2011) 2(3) Transnational Legal Theory 452. 95 In effect, this is closer to the revisionist position Altman has advocated in his own work. In a book he co-wrote with Wellman they argue that the organized nature of the perpetrator need not be a defining element of international crimes. That is, that acts perpetrated as part of a crime wave in a failed state would warrant being considered international crimes in the jurisdictional sense advocated here. However, unlike my position here, they do not require a substantive element of gravity or heinousness. For their position, see Altman and Wellman (n 7).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Theory of International Crimes 339 of a substantial level of organization between the perpetrators is not necessary to the justification of making a particular conduct an international crime.96 Let me illustrate this. While assessing whether to open an investigation in Honduras, the Office of the Prosecutor of the ICC (OTP), acknowledged that ‘ [i]n the years following the 2009 coup, violence in Honduras escalated sharply, owing partly to the political turmoil triggered by the coup, but also as a result of the expansion of drug trafficking and criminal organizations, the proliferation of weapons, and the armed forces’ involvement in matters of citizen security’.97 Yet the Court ultimately concluded that the conducts at stake in Honduras did not amount to international crimes.98 The reason for this was that it could not sufficiently identify a relevant ‘course of conduct’, that is, that the violence was not stemming from a sufficiently coordinated organization.99 However, in its more detailed analysis of the situation, the OTP recognized that human rights violations in Honduras during the period under examination: are linked to structural situations concerning, inter alia, the situation of citizen security, the weakness of the administration of justice associated with high levels of impunity, and the marginalisation of segments of Honduran society. In the period under analysis, it appears that this cycle of criminality and impunity has deteri orated further. In general, the increase in killings in the past years appears to be related to the incapacity of the government to deal with criminal and drug trafficking organisations, in particular after the coup.100

In short, I believe international criminal law ought to operate in this type of situation. The reason for this is precisely that Honduran criminal law cannot convey to the relevant individuals the message that their most fundamental rights (life, bodily integrity, freedom of movement, etc.) are currently protected by binding criminal prohibitions. In the relevant sense, they are in a situation that is relevantly similar to those being targeted by a political organization or other sufficiently organized non-state armed group.101 Ultimately, I believe this revised understanding of the scope of international crimes is entirely compatible with, and to some extent required by, the current evolution 96 It may well serve other purposes such as, e.g., sentencing. 97 ICC-OTP, ‘Report on Preliminary Examination Activities (2015)’ (12 November 2015) accessed 20 June 2018, para 272. 98 ibid para 288. 99 OTP, ‘Situation in Honduras: Article 5 Report’ (October 2015) accessed 20 June 2018, para 82 citing Ruto et al (n 58) para 210 and Bemba Gombo (n 83) para 81. 100 ibid para 21. 101 Arguably, this argument need not extend to a short crime wave that erupts on a specific location, insofar as the expectation that those who would participate in the wave are liable to being punished and would most likely be punished shortly after state authorities regain control over the area. An example of this could be the spontaneous acts of violence that erupted in Cordoba City, Argentina, during a 30-hour police-strike in December 2013 (see, e.g., Gustavo Molina, ‘Tensión social en Córdoba: El paro policial dejó el saldo de un muerto, robos y saqueos’ Clarín (5 December 2013) accessed 20 June 2018).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

340 Alejandro Chehtman of prevailing patterns of violence, from state or state-controlled acts, towards acts perpetrated by smaller, less formally structured groups, with ever increasing capacity to cause harm.102

IV. Conclusion This chapter provides an answer to two fundamental theoretical questions in international criminal law, namely: what are the defining conceptual features of an international crime? and what is the reason we include certain types of conduct in this category? I argue that the defining element of an international crime is that it warrants conferring also upon at least some extraterritorial authority, unconnected to the crime, the power to punish its perpetrators. This conceptualization allows us to identify precisely the specific question that a normative account of international criminalization must answer. That is, it not only needs to justify vis-à-vis the perpetrator the imposition of legal punishment, as its domestic counterpart, but it must also account before the political community within which the crime was perpetrated the power of an external authority to prescribe and to adjudicate on this matter. I have argued that international criminal law is a legal system that complements domestic criminal law systems by providing individuals anywhere in the world with the benefits that the latter cannot offer them. In this respect, it has strong similarities with international human rights law.103 Yet I have also argued that in order for this type of external interference to be justified, these crimes need to satisfy a significant gravity threshold. Against the standard accounts of international crimes available in the literature, yet arguably more in line with new emerging patterns of violence threatening the fundamental rights of many individuals around the world, this contribution suggests we should get rid of the organizational requirement prevailing in the Rome Statute, but also in international criminal law more broadly. This would allow this legal regime to better fulfill its overall function of providing legal protection to the most vulnerable people on the planet.

102 For a powerful, albeit if slightly dystopian illustration, see Benjamin Wittes and Gabriella Blum, The Future of Violence: Robots and Herms, Hackers and Drones (Basic Books 2015). 103 See Alain Zysset, ‘The Common Core between Human Rights Law and International Criminal Law: A structural account’ (typescript on file with author).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

chapter 14

From Ag gr e ssion to Atrocit y Rethinking the History of International Criminal Law Samuel Moyn

I. Introduction ‘Once the evil of war has been precipitated, nothing remains but the fragile effort . . . to limit the cruelty by which it is conducted’, great American legal scholar Herbert Wechsler observed in 1947 in a notable reflection on the priorities of the Nuremberg trial, more formally known as the International Military Tribunal (IMT).* ‘Of these two challenges’, he asked, ‘who will deny that the larger offense is the unjustified initiation of a war?’1 It was a rhetorical question. Indeed, given Nuremberg’s overwhelming emphasis on the evil of war itself, one might have thought that the prime legacy of that storied event for present-day international criminal law would have been a comparable focus on the crime of ‘aggression’—the unjustified initiation of violent conflict, not crimes that occur as part of the conduct of hostilities, or apart from them. Yet today, in spite of recent efforts to return aggression some of its original status as ‘supreme crime’, international criminal law since its 1990s reinvention has exclusively focused on accountability for atrocity instead. Now it is genocide that is routinely considered the ‘crime of crimes’, and public attention always gives pride of place to crimes against humanity and war crimes

* Thanks to Mark Hirschboeck for making my first chart, the editors for their comments, Ben Ferencz for his thoughts, and the participants at the Harvard Law School faculty workshop where I presented it for their feedback. 1 Herbert Wechsler, ‘The Issues of the Nuremberg Trial’ (March 1947) 62(1) Political Science Quarterly 17.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

342 Samuel Moyn alongside it.2 To date, the new International Criminal Court (ICC) tries only these offences. Explaining the shift from the priority of aggression in the beginning to its exclusion in the age of the field’s reinvention as atrocity law is the central task for historians of inter national criminal processes—and it also should matter for observers of the world today.3 Yet regularly, international criminal law is presented as running through a smooth trajectory, rather than a stark reversal or at least a massive shift. For this reason, this essay gathers together elements for a case for the transformation in the first place, and floats some hypotheses about its timing and causes. At stake, after all, is not simply historical propriety about the lineages of international criminal law, but also the politics of an open-ended future in which the agenda of the field could change once again. The heated disputes swirling around the Kampala amendments, which attempt belatedly to add aggression to the Rome Statute (the treaty that founded the ICC), suggest as much. American and European international lawyers from the late nineteenth century founding of their profession had focused on war stigmatization and prevention. Constraining force and charging aggression reflected a one-time consensus that, with its multifarious effects, war as a general phenomenon, not its cruelties alone, deserves most opprobrium. Wars may be just, atrocity never; but the examples are not far to seek of wars entered with the best of intentions or even the highest idealism that are wastes of lives, money, and time, and make the world worse off—it is not obvious that controlling them is not highest priority. For such reasons, at least, our ancestors concentrated on war itself. Especially when successful, by contrast, our atrocity focus can function to make war ‘humane’ and more tolerable. There is no reason to think that the morally uplifting rise of mechanisms for punishing atrocity depended or depends on the exclusion of attention to aggression. America’s critics during the Cold War tirelessly reminded their audiences that aggression’s priority at Nuremberg should matter when it came to the country’s own sometimes brutal conduct. Yet the effect of these very campaigns was paradoxical. As a result, the radioactivity of the charge of aggression remains from those days to our own (and notably in America’s own negotiating posture towards the prospective return of aggression to international criminal law). Belated Holocaust memory drove atrocity consciousness in the later Cold War, resulting in a revolution of caring for foreign victims of comparable events. But an exclusionary atrocity consciousness also fit well in a world in which fewer international wars took place to deter and punish, except those conducted by major powers that reserved their rights to do so, and opposed any legal framework that might interfere. Properly told, the history of international criminal law is about a transformation, not an eruption of conscience, since moral attention is inevitably selective and can differ 2 William A. Schabas, ‘Origins of the Criminalization of Aggression: How Crimes Against Peace Became the “Supreme International Crime” ’ in Mauro Politi and Giuseppe Nesi (eds), The International Criminal Court and the Crime of Aggression (Aldershot 2004); William A. Schabas, Genocide in International Law: The Crime of Crimes (2nd edn, CUP 2009). 3 See Gerry Simpson, ‘ “Stop Calling It Aggression”: War as a Crime’ (2008) 61(1) Current Legal Problems 191–228.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

From Aggression to Atrocity: Rethinking the History 343 greatly over space and time. Not a replacement of realism by idealism occurred, one might go so far as to say, but something nearly the opposite. Our ‘idealism’ begins by conceding the endurance of war—indeed our age has seen increasingly latitudinarian interpretations of state prerogatives to conduct it—on the undeniably meaningful, and indeed moving, but (potentially) also enabling condition that wars are clean. If this is true, one might ask: was it an altogether good outcome? To clear the ground for this question, the essay proceeds through a series of steps. First, the enormous priority accorded to war stigmatization over war humanization in much of the nineteenth century and with massive legal impact after World War I needs to be recovered as background to reformist developments since. Second, the IMT’s predominant focus on aggression has to be recaptured and reinterpreted, so that (to the extent it is known) it is not dismissed as simple moral blindness, but looks farseeing in its ambition to constrain or eliminate aggressive war as a broader remedy than targeting atrocity on its own. Finally, the fate of the aggression concept in the Cold War deserves attention. On the one hand, the United Nations embarked on a long attempt to elaborate a definition of aggression, and proposals were mooted for an international criminal tribunal that would try the crime. On the other, the entire agenda was subject to angry critique, which succeeded in marginalizing the concept of aggression even as the campaign to define it proceeded. The era of the Vietnam war is most critical to mention, for it was only in the early to mid-1970s that, especially for Americans, the die was cast for the intensive reprioritization of legal focus on atrocity for our time. Privileging Americans in the story, as I certainly do, is valuable because they so vividly illustrate the almost complete flip-flop: Americans were as central to the establishment of a focus on charging aggressive war—in what some once derided as a national syndrome—as they have now become some of its bitterest enemies. But what follows is equally a tale of the American state, which acted once and once only, but fatefully, to vault the crime of aggression into legality at Nuremberg, treating its legalization as dangerous and wrong both before and since. The main goal of the essay is not a comprehensive history. Rather, it is counter-selective. The goal is to show how much is left out of the near universal standard narrative of where contemporary international criminal law came from, so as to combat the seriously misleading impression normally created by looks back—as if the past were simply the present waiting to happen. The victims of history, in the conventional view, always longed (and their advocates always struggled) for an international law organized around atrocity until, thanks to our generation’s climactic efforts, they got it. This self-congratulatory story is, fortunately, not entirely false. But in reality, our prioritization of atrocity breaks profoundly and recently with prior attempts to regulate violence in international law. Insofar as the highest profile precedent of Nuremberg matters, the evidence is far stronger that our times betray rather than fulfill its spirit.4 There may be 4 This view differs from an endless teleological and triumphalist literature representing contemporary international criminal law as the fulfillment of long-nurtured hopes, with Nuremberg as their first foothold. See, e.g., Belinda Cooper (ed), War Crimes: The Legacy of Nuremberg (TV Books 1999);

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

344 Samuel Moyn good reasons to make our moves, but not to distort the realities of the past along the way, or to erase the novelty of our present.

II. War Prevention as International Law’s Fondest Hope Public international law for most of modern history was essentially synonymous with the goal of war prevention. As late as the early 1960s, one of the signal representatives of this imperative, University of Chicago professor Quincy Wright, could recognize this fact and narrate how slowly civilization had risen to the defence of peace after aeons of war.5 Peace movements had turned with outrage on the millennial expectation that war could never cease. A few religious sects might have dreamed of a world in which swords would be beaten into plowshares (Isaiah 2: 3–4)—a motto international lawyers have often since adopted to their own account—but the sects had assumed that world would be the next one, whereas peace movements and (later) international lawyers decided not to wait.6 Peace movements were likely more numerous and influential in the nineteenth century than in the century that followed (and certainly more than in the present century). But for international lawyers as for so many others, it was only World War I that made the abolition of war a popular goal. Once again, Wright provides an excellent example. He had committed to the project in the interwar years—forming a Committee to Study the Causes of War—and did not give it up, though the dominant aspiration of the field he epitomized did not survive his death in 1970.7 It is true, of course, that there were many aspects of international law and, within the regulation of war, other agendas besides war prevention. Yet the major nineteenth century struggle took place between pacifists and those militarists—like transplanted German Francis Lieber, author of a notably brutal law of war for Union troops in America’s civil war—who despised rising pacifism and regarded properly organized military conflict as a tonic for the progress of civilization. As for the attempt beginning in the later nineteenth century to regulate the fight by protecting sick and wounded soldiers and banning some weapons, it was either an ordinary form of interstate coordin ation or a covert attempt to end war by indirect means. Philippe Sands (ed), From Nuremberg to the Hague: The Future of International Criminal Justice (CUP 2003); David Luban, ‘The Legacies of Nuremberg’ (Winter 1987) 54(4) Social Research 779–829. 5 Quincy Wright, The Role of International Law in the Elimination of War (Manchester UP and Oceana Publications 1961). 6 Martin Ceadel, The Origins of War Prevention: The British Peace Movement and International Relations, 1730–1854 (Clarendon 1996); Inis L. Claude, Swords into Plowshares: The Problems and Progress of International Organization (Random House 1956). 7 Quincy Wright, ‘The Outlawry of War’ (January 1925) 19(1) American J of Intl L 76–103; Quincy Wright ‘The Concept of Aggression in International Law’ (July 1935) 29(3) American J of Intl L 373–95; Quincy Wright, A Study of War (University of Chicago Press, first published 1942, 2nd edn 1965).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

From Aggression to Atrocity: Rethinking the History 345 Secondary to the conflict between militarists and pacifists, in fact, was a fascinating debate about whether it was really plausible that ‘humanizing’ war would serve to make it obsolete. The first Geneva Convention (1864) ‘furnished an argument in favor of the brotherhood of men’, the longtime leader of the International Committee of the Red Cross (ICRC) noted in 1890–91: In subscribing to it, the several factions of civilized mankind have—never before with so much unity—placed themselves under a common rule, formulated entirely in light of moral considerations. . . . Recognizing that after all they all belong to the same family, men have concluded that they ought to begin by showing some regard for another’s suffering, up to a certain point . . . pending the time when a still stronger conviction of their common humanity shall lead them to understand that the very idea of their killing one another is monstrous. . . . The humanization of war (la civilisation de la guerre) could end only in its abolition. Sursum corda!8

Some pacifists, like Leo Tolstoy, were outraged by this sly tactic on the grounds that failed to work. Humanizing war looked like an approach that might guarantee war’s endurance, not its abolition; and in the contemporary era that war has simultaneously been made more humane than ever and unbound from any chronological and territor ial limitations, it certainly looks like Tolstoy may have been onto something: ‘If there was none of this magnanimity in war, we should go to war only when it was worthwhile going to certain death’, Prince Andrew says in War and Peace.9 Now, after the catastrophe of World War I, pacifist hopes enjoyed a wider degree of state acceptance than ever before (or since), and indirection was less important than before in their fulfillment. The nineteenth-century background might not have mattered much—through the period the states for whom most international lawyers worked reserved the rights of war and conquest—except that World War I radically altered the landscape. It gave pacifist sentiment that had done poorly in influencing international law over the late nineteenth century a new opening, climaxing in the mid-1920s, during which the agenda of the field was enduringly set through the middle decades of the twentieth century. For a time, the transatlantic public became ‘devils sick of sin’ (Wilfred Owen) and statesmen were forced to pay heed to antiwar sentiment in an outburst of lawmaking. Already in the immediate aftermath of World War I, calls to try the German Kaiser for initiating the conflict—not for the numerous war crimes of his forces in the field— were rife.10 Aggression as an international crime was born. In fact, it has not so far been 8 Cited in Geoffrey Best, Humanity in Warfare (Columbia UP 1980) 10. Sursum corda, Latin for ‘Lift up your hearts’, is said in Christian Mass just before the beginning of the Eucharistic Prayer, after the gifts of bread and wine have been brought forward to be consecrated. 9 Leo Tolstoy, War and Peace (Louise Maude and Aylmer Maude (trs), (OUP 2010) 832. 10 Isabel Hull shows that, from the beginning of World War I, the heaviest public opprobrium and state denunciations centred on German violation of Belgian neutrality in 1914, sometimes naming it casus belli for the conflict itself. Isabel V. Hull, A Scrap of Paper: The Making and Breaking of International Law in World War I (Cornell UP 2014). Indeed once it became impossible to try the Kaiser for aggression, the fallback was to indict him for such treaty violations.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

346 Samuel Moyn recognized that some of the most public early uses of the phrase ‘crimes against humanity’, now associated with grave atrocity, came from David Lloyd George and other entente politicians who intended to target the German leader’s responsibility for the war itself, rather than any crimes within it. As the war closed, Lloyd George reacted to what he called ‘a growing feeling that war itself was a crime against humanity’. ‘The war was a hideous, abominable crime’, he thundered at one point, ‘a crime which has sent millions of the best young men of Europe to death and mutilation. . . . The men responsible for this outrage on the human race must not be let off because their heads were crowned when they perpetrated the deeds’.11 It was actually in the run-up to the indictment of the Kaiser, rather than in the 1920s when little international law on the topic was actually ratified (amidst a flurry of proposals), that legalizing the crime of aggression came closest to fruition before Nuremberg itself, until being shot down by Lloyd George’s own attorney general, Sir Ernest Pollock.12 Still, the popular desire for an end to war that states had now evoked as much through their promising to a mobilized public as through their mutual slaughter of one another’s soldiers was a genie no one could restore to its bottle. In ways no one could have anticipated or now could fully control, World War I permanently transformed the ethical—or at least rhetorical—assumptions of international life and law, making it in retrospect ‘the great war for peace’.13 If only as a new version of the tribute of hypocrisy that vice must pay to virtue, a marginal peace agenda now became the highest proclaimed aspiration of national statesmen, new international organization, and burgeoning legal advocacy. It was for this reason that the 1920s stood out as the crystallizing age for a security structure that would abolish warfare. The League of Nations was not the last world organization that strongly prioritized peace over justice, but its priorities were especially clear. The very first of the preambular purposes of the League Covenant marked ‘the acceptance of obligations not to resort to war’, while its Article 10 bound signatories ‘to respect and preserve as against external aggression the territorial integrity and existing political independence’ of member states.14 And in the crucial period of 1924–28, inter national lawyers initiated the long twentieth century campaign to define the ‘aggression’ that had now been declared humanity’s chief evil. All along, of course, states reserved the right to wage defensive war, raising the ticklish question of whether anything could 11 Cited in Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, (2nd edn, Princeton UP 2002) 65, 74 (though the author does not notice how much of his evidence (including from the then Canadian prime minister and Italian president saying similar things) indicates how popular it was in 1918–19 to call war itself, rather than its attendant cruelties, a ‘crime against humanity’). 12 Kirsten Sellars, ‘World War I, Wilhelm II, and Article 227: The Origin of the Idea of “Aggression” in International Criminal Law’ in Stefan Barriga and Claus Kreß (eds), The Crime of Aggression: A Commentary (CUP 2016); Kirsten Stellars, ‘Delegitimizing Aggression: First Steps and False Starts after World War I’ (2012) 10 J of Intl Crim Justice 7–40. See also James F. Willis, Prelude to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War (Greenwood 1982). 13 William Mulligan, The Great War for Peace (Yale UP 2014). 14 Covenant of the League of Nations, 28 June 1919 (including amendments in force 16 December 1935) accessed 9 June 2018, preamble, art. 10.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

From Aggression to Atrocity: Rethinking the History 347 ultimately be redefined to count. All the same, many now wanted to impose responsibility on leaders whose claims in this regard failed. The plan may have been doomed from the first. But a long effort to formulate the meaning and scope of the concept of aggression, though not unprecedented, now began in earnest.15 Its advocates appealed to a domestic analogy. At the very beginning of the quest, international lawyer Hersch Lauterpacht observed: ‘In the sphere of municipal law we do not usually object to defining murder or manslaughter for the reason that a definition may on occasion prove insufficient or unjust. We put our trust in the skill of the draftsmen and the wisdom of the Courts’.16 But international aggression was often regarded as in fact different, whether because of the lability of the concept of ‘aggression’, the unavailability of plausible adjudicatory authority, or the desire of (some) states to reserve the right to get away with the analogous acts to murder rather than ban them. In spite of these difficulties, philosophical, legal, and real, the campaign for definition occupied the focus of international legal debates among states and scholars in the interwar period as well as intermittently since. After European powers failed in an initial effort, some Americans led by Columbia University historian James T. Shotwell—though by this point it was clear that their country would not participate in international organization—submitted a Protocol for the Pacific Settlement of International Disputes (1924) that proposed criminalizing interstate aggression and according jurisdiction to the new world court to determine whether it had been committed. It was later merged with a British and French scheme to give the League Covenant’s prohibition of war meaning that likewise came to grief, though unprecedented work by diplomats and scholars—including among leaders of international law such as the Greek Nicolas Politis—went into the project.17 Where disagreement raged about the substantive definition of aggression, proposals recognized that much would depend on believable procedures for applying it in specific cases. These discussions took place in the shadow of more famous efforts at multilateral treaty-making to establish eternal peace outside the League, such as the intra-European Locarno Treaty (1925) and the eventually global General Treaty for the Renunciation of War, better known as the Kellogg-Briand pact (1928).18 Now as great German legal theorist (and later National Socialist) Carl Schmitt rightly observed at the time, in his celebrated study The Concept of the Political, the KelloggBriand pact actually sanctioned rather than prohibited war, for anyone who had eyes to 15 The most detailed history of antecedents to my knowledge is Wacław Kowarnicki, ‘De la définition de l’agresseur dans le droit international moderne’ (1945) 75 Recueil des cours de l’Académie de droit inter national 5–103. See also the wise survey in Ian Brownlie, International Law and the Use of Force by States (OUP 1963) especially chs 5, 8, and 19. 16 Hersch Lauterpacht, ‘The Pact of Paris and the Budapest Principles of Interpretation’ (1934) 20 Transactions of the Grotius Society 178, reprinted in Hersch Lauterpacht, International Law: Collected Papers, vol 5 (Elihu Lauterpacht (ed), CUP 1970) 442. 17 Easily the most dogged and utopian advocate of criminalizing war, both before and after World War II, was Romanian Vespasian V. Pella. See Vespasian V. Pella, La Criminalité collective des États et le droit pénal de l’avenir (Bucharest, Imprimerie de l’État 1925). 18 Daniel Gorman, The Emergence of International Society in the 1920s (CUP 2012) chs 8–9.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

348 Samuel Moyn see, and there was no better illustration of how law’s allowable exceptions define the meaning of its ostensible rule.19 Given reservations claimed or implied by various states beyond self-defence (for example, Americans insisted that nothing done pursuant to the Monroe Doctrine could in principle qualify as aggression), the pact was in some ways a step back from the wishful proposals of the mid-1920s to make any first use of force an international crime.20 It would thus be a grave error to claim that the Kellogg-Briand pact crystallized a radical ban on war-making—there has simply been too much of it, as there certainly is today, to permit any millennialist enthusiasm on this score.21 But it is true that the grounds for it had now narrowed. And in spite of Schmitt’s observations, many international lawyers wanted to claim in the 1930s that any use of nondefensive force now counted as legally proscribed aggression in the international system (in prominent French figure Georges Scelle’s lapidary equivalences, ‘any resort to force=war; any war=aggression’—though as in the domestic analogy with murder, self-defence could provide a justification).22 It is also true that the treaty prohibition of war in this era hardly contemplated individualized criminal accountability, though Nuremberg would move to impose it anyway. All eras, one might say, get the international criminal law states are willing to tolerate. Quieter efforts to actually institute an international criminal law in the 1920s and 1930s focused on the transnational problems states wanted solved at the time— above all, terrorism.23 Yet even if they never got as close to individualized adjudication for aggressive perpetrators as they did in 1919 (before Nuremberg itself), the great powers certainly talked a lot about the need to ban aggressive war in the 1920s and indeed far beyond. American statesmen consistently announced against both fascists after 1941 and communists after 1947 the need to act in the name of this norm, having ostensibly renounced war themselves, including preventive war. Ridding the world of extant aggressors would bring lasting peace.24 In both phases, of course, the American 19 Carl Schmitt, The Concept of the Political (new ed., trans. [from 1932 German second ed.] George Schwab (tr), 2nd edn, University of Chicago Press 2007) 50–1 (‘The Kellogg pact . . . contains most important reservations’ he observed. ‘These reservations are . . . no mere exceptions to the norm but altogether give the norm its concrete content. [The treaty] does not outlaw war but sanctions it’). Schmitt returned to these topics at much greater length in a brilliant memo when asked by industrialist Friedrich Flick in summer 1945 to assess his potential personal liability for aggressive war that the Allies were prioritizing. See Carl Schmitt, ‘The International Crime of the War of Aggression’ in Writings on War (Timothy Nunan (ed) and (tr), Polity 2011). 20 In a once infamous note regarding the pact, Austen Chamberlain, British foreign secretary who had won the Nobel peace prize a few years before, reserved his country’s right not simply to defend itself but also to deploy armed force in (unspecified) places deemed vital to the empire’s interests. 21 cf Oona Hathaway and Scott Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (Simon & Schuster 2017). 22 Georges Scelle, ‘L’agression et la légitime défense dans les rapports internationaux’ (1936) 16 L’Esprit international 378. 23 Mark Lewis, The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919–1950 (OUP 2014) especially chs 4–5 (hereafter Lewis, Birth of the New Justice). 24 Robert W. Tucker, The Just War: A Study of Contemporary American Doctrine (Johns Hopkins Press 1960).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

From Aggression to Atrocity: Rethinking the History 349 government steered far clear of supporting the criminalization of aggression—except at Nuremberg in 1945–46. The balance of the interwar years had not been kind to the search for a ban on aggression. After the stock market crash of 1929 and the events that followed, the campaign may have been even more unpromising, but international lawyers continued the definitional struggle, notably in arguing through a Soviet proposal of 1933 that framed debate on and off for two decades and in convening a large number of multilateral conferences and local projects, including a Harvard Law School effort of the late 1930s that offered up a Draft Convention on the Rights and Duties of States in Case of Aggression.25 However disappointing in outcome, there is no doubt that whether measured by public awareness, state investment, or lawyerly work, these events were preeminent compared to other developments in international law, most definitely including any renovation of the rules governing the conduct of hostilities. As for criminal sanction for the worst atrocities, it was hardly imaginable yet.

III. Nuremberg as an Aggression Trial Nuremberg was primarily an aggression trial. ‘This inquest represents the practical effort of four of the most mighty of nations, with the support of seventeen more, to utilize international law to meet the greatest menace of our times—aggressive war’, American Supreme Court Justice Robert Jackson, acting as America’s Chief Prosecutor, announced right at the start of his opening statement.26 To the extent there is awareness of the actual priorities of the inquest, Nuremberg is routinely written about for what it was not, could have been, or should have been, and sometimes for what it inadvertently made possible, but not for what it most manifestly was: an aggression trial. As Harvard professor Sheldon Glueck’s mass market book arguing for Nuremberg’s importance illustrated, contention in 1945–46 revolved around the legal propriety of trying anyone for aggression, not for prioritizing that crime over atrocity, even though not two years before, Glueck himself had argued for a focus on atrocities.27 Aggression, nearly all agreed at the time, was the problem from hell that states and statesmen were called upon to address if not solve. Trying men for it as if the interwar developments had 25 (1939) 33(Supp) American Journal of International Law 823–909. 26 International Military Tribunal, Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, vol 2 (Nuremberg, The Tribunal 1947–49) 98. 27 Sheldon Glueck, ‘The Nuremberg Trial and Aggressive War’ (February 1946) 59(3) Harvard L Rev 396–456; Sheldon Glueck, The Nuremberg Trial and Aggressive War (Alfred A. Knopf 1946). For his wartime priorities, see Sheldon Glueck, War Criminals: Their Prosecution and Punishment (Alfred A. Knopf 1944). Opinion was internationally divided concerning whether the aggressive war charge, and therefore the Tribunal, failed the most basic test of legality. See Thomas Weigend, ‘ “In General a Principle of Justice”: The Debate on the “Crime against Peace” in the Wake of the Nuremberg Judgment’ (2012) 10 J of Intl Crim Justice 41–58.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

350 Samuel Moyn provided the legal basis to do so inspired the chief objections and worries in real time, and not solely from defendants, and were the centrepiece of public debate. That Nuremberg’s framing and unfolding neglected the central moral event of the war has the potential to startle, because of how the inquest is popularly remembered now.28 Yet it is not really so surprising that the Holocaust, or even atrocity more generally, remained so marginal. The Holocaust was simply too poorly publicized in the period to be an important causal factor in the framing of postwar justice, as the routing of the attempts of various actors to make it one proves.29 Not that basic information was unavailable or even widely known, but it was lost in the shuffle of other facts and interests given more weight by most audiences. Many nations had suffered terrible decimation, starting with tens of millions of soldiers, who attracted the lion’s share of early commemoration; and those who survived had their own war stories to tell. Where victims of the Holocaust were nearly all shot on sight or killed in death facilities where they did not stay the night, survivors of National Socialism’s other horrors—including concentration camps that left a shred of hope for life—were most likely to be non-Jews, and could return home to talk. Patriotic memory immediately after the conflict fastened, eoples, therefore, on the grievous ills Adolf Hitler’s wars had visited on various states and p and to the extent his atrocities within war were widely stigmatized, it was different ones than now seem most egregious: Leningrad and Lidice were infamous at the time, Belzec and Treblinka almost unknown. Nuremberg did little or nothing to change this.30 But it did confirm the central perception on which the Allies acted and which then made sense to much of the world, and Americans especially. The Allies, which had broadly ignored the Holocaust while it was taking place, arrived with their own agendas in London in August 1945 to decide on charges and agreed to put aggression first. Domestic lobbies pushed them to make more room for wartime depredations and especially the novel charge called ‘crimes against humanity’—now referring to mass 28 Google counts more than 500,000 pages with both the words ‘Holocaust’ and ‘Nuremberg’. See, e.g., Barack H. Obama, ‘Statement by the President on Holocaust Remembrance Day’ (2 May 2011) accessed 9 June 2018 (‘This year marks . . . the 65th anniversary of the verdicts at the first Nuremberg trial, a defining moment in international justice’, American President Barack Obama noted on Holocaust Remembrance Day. ‘From [the Holocaust] we see the cost of allowing hatred go unanswered in the world, but from this justice we also see the power of holding the perpetrators of genocide accountable’). 29 Aside from some Jews themselves, the fact that rediscovery of the records of the discreet United Nations War Crimes Commission took so long makes this plain. But consider Dan Plesch’s defiantly ahistorical and teleological Human Rights after Hitler: The Lost History of Prosecuting Axis War Crimes (Georgetown UP 2017). 30 Within a wide consensus that the IMT neglected the Holocaust, scholars are more and less empath etic and generous concerning how badly. For more generosity, see Michael R. Marrus, ‘The Holocaust at Nuremberg’ (1998) 26 Yad Vashem Studies 5–41; for less, Donald Bloxham, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory (OUP 2001) (emphasizing that the trial distorted a great deal and had no public impact in publicizing the Jewish fate in wartime. Auschwitz received much attention at the IMT but, as Bloxham details, primarily in the guise of the concentration camp it also was).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

From Aggression to Atrocity: Rethinking the History 351 atrocity—than the states had originally intended; even so these crimes, framed initially for German Jews who were far from the chief victims of the Holocaust, remained a footnote to the prioritization of aggressive war, and indeed the IMT statute could consider only crimes against humanity committed in connection with aggressive war. The same subordination of atrocity (and the Holocaust especially) to aggression obtained as the trial unfolded over its many sessions. All this is familiar from the mountain of critical scholarship on the proceedings— though a simple computation of the incidence of various terms provides impressive vindication (see Figure 14.1). And aggression loomed even larger at the contemporaneous Tokyo trial, where it easily took pride of place in the attention of prosecutors and judges.31 But to decry the era’s omissions, however reasonably, is to fail to ask why it focused where it did—as if the world was already waiting for atrocity jurisprudence that postwar justice either accidentally anticipated or unaccountably failed to provide. It is worth covering two kinds of reasons why aggression loomed so large, singling them out for emphasis given my larger concerns. First, aggression mattered because it fits with American policy and sentiment (including Robert Jackson’s quite specifically) at a unique moment in history; second, and more speculatively, aggression took pride of place because it was regarded as the gateway crime for others and because New Dealers brought an institutional optic to the task of international justice.

term

count

aggression

1527

war(s) of aggression

677

aggressive war(s)

649

crime(s) against humanity

370

crime(s) against peace

196

final solution

96

human dignity

30

human right(s)

25

genocide

23

rights of man

15

fundamental right(s)

10

Figure 14.1 Incidence of Words and Phrases in complete IMT transcript. Somewhat disturbingly, many or most invocations of rights were made by Nazi lawyers complaining of due process violations. 31 See Kirsten Sellars, ‘ “Crimes against Peace” and International Law’ (CUP 2013) chs 6–8.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

352 Samuel Moyn As noted, Americans had pushed for criminalizing aggression as far back as 20 years before. Skirting any clear definition of aggression—whatever it is, Hitler and at least some of his men had clearly committed it—the Soviets initiated the idea of charging it in the run-up to Nuremberg, and Jackson and other Americans floridly embraced it.32 As political theorist Judith Shklar insightfully later noted, it was also critical for Americans like Jackson in particular to justify retroactively the positions they had taken in the great debate about intervention in 1939–41, including arguable violations of the Neutrality Act before Pearl Harbor and Hitler’s declaration of war.33 Nearly as important, Jackson broadcasts the need to stave off the return of hallowed isolationism by convincing fellow citizens through a dramatic trial how critical it was for America to ensure a world beyond aggressive war. Atrocities suffered by others were not going to be enough, clearly, to stave off America’s relapse into stand-offish ways. Noting ‘a certain Machiavellian streak’ in Jackson’s thinking, Shklar records that in negotiations on the charges he was forced to confront the French representative’s plausible observation that there were better precedents for interfering in domestic affairs to punish mass atrocity than there were for criminalizing belligerence. She continues: ‘Non-intervention was a sacred principle to Americans, Justice Jackson replied, all the more so since they had no intention of letting foreign nations meddle with their own domestic racial policies. Therefore all the charges that affected Nazi crimes within Germany and prior to the war had to be tied to the international crime of waging war’.34 Yet there was also considerable high-minded thinking—there always had been—in the prioritization of aggressive war now championed by Jackson and others. It had been and then was the highest ideal of progressive international law to bring about mechan isms that ended war for good. Even to the extent this aspiration strikes people today as hopelessly romantic, the broadest and most plausible reason for giving aggression pride of place is that—when war regrettably occurs—the greater includes the lesser, as Wechsler wrote. To the extent you prohibit (and deter) war, you prohibit (and deter) war crimes, but the reverse is not true. Furthermore, American New Dealers and their European allies at Nuremberg brought a complex causal sense of what political and economic factors might plausibly give rise to the horror of atrocity, and sought to cut them off at the moment of aggression, or even before. Atrocitarianism, by contrast, fixates on the final step in the causal pathway to civilian mass death. And even apart from its ruinous consequences for the innocent, war is regularly disastrous for all others concerned— including legitimate targets on both sides, the states or organizations they serve, the people who must pay the costs. In short, there is considerable reason for taking very seriously Wechsler’s argument—representative of mainstream international law at the time he wrote—that war as a crime, not ancillary war crimes, demands most attention. Meanwhile, contemporary international criminal law has been completely disembedded 32 For Soviet priority, Francine C. Hirsch, ‘The Soviets at Nuremberg: International Law, Propaganda, and the Making of Postwar Order’ (June 2008) 113(3) American Historical Review 708. 33 Judith N. Shklar, Legalism (Harvard UP 1964) 174 (hereafter Shklar, Legalism) (calling this Jackson’s ‘main preoccupation’). On the great debate, see Lynne Olson, Those Angry Days: Roosevelt, Lindbergh, and America’s Fight over World War II, 1939–41 (Random House 2013). 34 Shklar, Legalism (n 33) 177.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

From Aggression to Atrocity: Rethinking the History 353 from any wider reconstructive mentality of the sort New Dealers brought to their tasks, and not simply hived off from once preeminent aggression. The so-called successor trials in the American zone of occupation after the IMT— what are now regularly called the Nuremberg Military Tribunals (NMT)—require a brief comment. Contrary to some recent claims, these trials were hardly transformative in shifting attention to atrocity, let alone bringing about a ‘jurisprudence of atrocity’, either for those seeking to construct a field of international criminal law or for the general public more broadly.35 It is certainly true that there were some doctrinal novelties at the NMT, and many of these allow contemporary scholars looking back for precedents to give it more credit than Nuremberg itself in the ‘origins of international criminal law’.36 As for the general public, it was not the obscure NMT but later events that created a public culture around mass atrocity. At the earliest, the Eichmann Trial (1961)—the ‘Nuremberg for the Jewish People’ (David Ben-Gurion)—is normally mentioned in this regard; but not only did it have no immediate effect on the agenda of international criminal law, nowadays scholars emphasize that the story of the larger public emergence of Holocaust consciousness that drove public atrocity concern depended on many other, and mostly later, factors.37 It may be most indicative for my purposes to note that at the NMT, a 26-year old lawyer who had never worked his own case, Benjamin Ferencz, was granted his wish to prosecute the Holocaust in the trial of Otto Ohlendorf and other Einsatzgruppen leaders—and still spent most of his career thereafter tirelessly promoting aggression as a focus, even after most Westerners had long since come to treat it as dubious or dangerous.38 How that happened is far more important to understand.

IV. The Cold War: Definition, Critique, and Decline The UN Charter (1945) skirted interwar problems by creating a Security Council that, in theory, monopolized the field of war and peace. The Security Council assesses breaches 35 cf Lawrence Douglas, ‘From IMT to NMT: The Emergence of a Jurisprudence of Atrocity’ in Kim C. Priemel and Alexa Stiller (eds), Reassessing the Nuremberg Military Tribunals: Transitional Justice, Trial Narratives, and Historiography (Berghahn Books 2012). 36 Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (OUP 2011). 37 See Michael Rothberg, ‘Beyond Eichmann: Rethinking the Emergence of Holocaust Memory’ (2007) 46(1) History & Theory 74–81. For broader thoughts on the current state of the literature, Samuel Moyn, ‘Only Tombstones: Silence and the Shoah’ Times Literary Supplement (7 August 2013) accessed 9 June 2018. 38 See Hilary Earl, The Nuremberg SS-Einsatzgruppen Trial, 1945–1958: Atrocity, Law, and History (CUP 2009); Benjamin Ferencz, ‘International Crimes against the Peace’ (1960) accessed 9 June 2018; Benjamin Ferencz, Defining International Aggression: The Search for World Peace (Oceana 1975); and many later books and articles before and during the ICC era. See most recently Benjamin and Donald Ferencz, ‘Criminalising the Illegal Use of Force’ in William Schabas (ed), Cambridge Companion to International Criminal Law (CUP 2016).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

354 Samuel Moyn of the peace and is given responsibility for responding. As with the League of Nations covenant before it, the UN’s charter prioritized peace over justice. The concept of ‘aggression’ is much more marginal to the founding document of the current world organization, mentioned only once in a list of situations the Security Council is empowered to recognize and control. Article 51, of course, acknowledges that states have an ‘inherent’ right of self-defence, but also that it ends when and if the Security Council has ‘taken necessary measures to maintain international peace and security’.39 On paper at least, a charter that starts with the ‘scourge of war’ as the worst evil to correct and assigns the United Nations the first purpose of ensuring peace certainly reflected a redoubled desire to control global violence. But it was open to question whether the definition mongering of the interwar period would need to continue—now it was the Security Council’s job to know ‘aggression’ when it saw it and even decide what to call it—except that Nuremberg had now made aggression an international crime. Yet, soon it was obvious that the UN Charter did not function much better than prior instruments to pacify the globe. Following early deadlocks of the Security Council, which Cold War rivals controlled, the General Assembly resolved to ‘unite for peace’ in hopes of circumventing their failures.40 Veterans of interwar campaigns—like Scelle and Wright, along with Romanian Vespasian Pella who once again wrote the main book laying out the case for war as a crime—redoubled their efforts to define aggression before, during, and after Nuremberg, calling for its criminalization into the decade that followed.41 Though the Genocide Convention (1948) itself contemplated international criminal adjudication, to the extent efforts went into envisioning a permanent international criminal court after Nuremberg, it was explicitly envisioned as an aggression court. The United Nations International Law Commission formulated ‘Nuremberg principles’ that included the criminalization of aggression, but the General Assembly deemed the topic too controversial not to postpone for further thinking.42 Thereafter, work proceeded on two tracks, the drafting of a Code of Offences against the Peace and Security of Mankind, and a related procedural statute for a supranational court. When the former bogged down around defining aggression, the latter was suspended too. Yet no one thought of switching tracks to atrocity either. ‘The assumption by some scholars that states turned to the criminal court in the 1950s in response to genocide and in an attempt to construct a new human rights regime is mistaken’, one scholar notes. ‘The drafting documents show that state representatives 39 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, arts 39, 51. 40 Uniting for Peace, Res 377 (V), UNGA, 5th Sess, UN Doc A/RES/377(V) (3 November 1950). 41 e.g. Vespasian V. Pella, La Guerre-crime et les criminels de guerre: Réflexions sur la justice pénale internationale, ce qu’elle est et ce qu’elle devrait être (A. Pedone 1946); Cornelis Arnold Pompe, Aggressive War: An International Crime (Springer Netherlands 1953); Georges Scelle, ‘Quelques réflexions sur l’abolition de la compétence de guerre’ (1954) 58 Revue générale de droit international public 5–22; Bernard V.A. Röling, ‘On Aggression, on International Criminal Law, on International Criminal Jurisdiction’ (1955) 2 Nederlands Tijdschrift voor interationaal Recht 167–96, 279–89; Quincy Wright, ‘The Prevention of Aggression’ (1956) 50(3) American J of Intl 514–32. 42 UN Gen. Ass. Res. 488 (V), December 12, 1950.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

From Aggression to Atrocity: Rethinking the History 355 were focused exclusively on protecting the principle of territorial integrity and preventing war’.43 Even though United Nations work continued intermittently on defining aggression, a growing body of skeptics cried foul. The bellwether of the death of aggression was the appearance of international lawyer Julius Stone’s Aggression and World Order, a tren chant critique of the whole enterprise as fated to come to grief, as much on intellectual grounds—there was never going to be a plausible definition of aggression to which a divided world could agree—as on political ones.44 No one did more than Stone to haul mainstream international lawyers from their memories of old dreams of eternal peace into a more depressing world in which the interstate order, however well-pacified through the UN Charter and Security Council, was slated for indefinite belligerence. The nuclearized Cold War that had initially caused some to prioritize aggression even more fervently convinced Stone, also very concerned about Middle East politics, that the whole project was a fool’s errand in a dangerous world. That capitalists, communists, and post-colonialists could ever come to terms about which wars were just and which illegal seemed hopeless: better to rely on the locked in Security Council arrangements that the West dominated. ‘The cruel fact of the contemporary breakdown of the whole enterprise of definition of aggression’, Stone concluded, ‘should suggest to us the need for earnest re-examination of theories which would make human survival depend upon agreed advance tests of “aggression”, capable of operating immediately and automatic ally and with certainty of result in any future crises’.45 It is not clear whether Stone was reading the writing that had been on the wall from the beginning, or whether he consigned the fondest hopes of his own profession to the dustbin, in spite of all the work that has gone before and since into adequately and consensually defining aggression for the sake of its criminalization. The Vietnam era later in the Cold War provided the postscript, confirming and accelerating a pivot away from aggression, even while preparing an age of atrocity concern. Its initial phases proved the endurance of the framework of ‘aggressive war’. Even as news of atrocities on both sides mounted, debate on the American scene from the Gulf of Tonkin resolution to the revelation of the My Lai massacres turned—to the extent international law was invoked at all—on which side had committed the crime of aggressive war.46 Even though standards for the conduct of hostilities were far more massively 43 Suzanne Katzenstein, ‘In the Shadow of Crisis: The Creation of International Courts in the Twentieth Century’, (Winter 2014) 55(1) Harvard Intl L J 189 (footnote omitted). Lewis, Birth of the New Justice (n 23) chs 6–7 (Lewis follows failed efforts by Jewish groups to focus on ‘victim-centered justice’, but these generally did not gain traction, except for in the passage of the genocide convention without serious remedies). 44 Julius Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression (University of California Press 1958). 45 ibid 11. 46 See, e.g., Richard A. Falk, ‘International Law and the United States Role in the Viet Nam War’ (June 1966) 75(7) Yale L J 1122–60; William Standard, Aggression: Our Asian Disaster (Random House 1971). This paragraph follows Samuel Moyn, ‘From Antiwar Politics to Anti-torture Politics’ in Austin Sarat and others (eds), Law and War (Stanford UP 2014).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

356 Samuel Moyn broken than in any American war of the twentieth or twenty-first century, besides perhaps the prior Asian wars in Japan, Korea, and the Philippines, initially Nuremberg’s framework seeking to stigmatize or even criminally indict the aggressor endured. The same was true in the ‘people’s tribunal’ Bertrand Russell and Jean-Paul Sartre organized in these years, which likewise recalled Nuremberg explicitly, but more correctly than later observers, as an aggression trial. My Lai, however, changed this, especially after Columbia professor—and former Nuremberg prosecutor—Telford Taylor published his bestseller Nuremberg and Vietnam, shaken by the brutality he and so many other Americans had now had to confront. While Taylor recognized the centrality of aggression at his old trial, circumstances had now changed too much, he said, to keep it alive. The decisive defeat of the Germans had been too unique an event; but it was most definitely worth pursuing criminal atrocities, he insisted, all the way up the chain of command.47 Only a few in this era, of course, imagined international courts for the crime and punishment for any of these infractions, though this period did see the first renewed dreams, dead since the 1950s, of an international court someday.48 Though from decolonization to the present, the Global South has supported the development of mechanisms for policing aggressive war—having been, in its view, the chief victims of that crime in history to date—it has mainly played a supporting unintended role in the overall decline of the charge. As Indian Judge Radhabinod Pal argued in a once notorious dissent at the Tokyo trial, the criminalization of war mainly functioned to lock in an unjust world order, ratifying the results of past gains (notably imperial ones) while criminalizing future wars (including anti-imperial ones). In his barrage against the West for singling out Japan’s aggression but ignoring centuries of its own, Pal powerfully cited a maxim from Arnold Toynbee (way out of context, it turns out): ‘the man of violence cannot both genuinely repent of his violence and permanently profit by it’.49 But in response the Global South has long pursued the strategy of exempting ‘liberatory’ wars from the concept of aggression rather than condemning that concept as a whole. The main effect of decolonization for the debates chronicled above was that wars of ‘self-determination’ were now defined as not aggressive by definition.50 Like the Cold War and especially Vietnam, these developments convinced most great powers, and certainly the United States, to treat the aggression charge not as a device of achieving a peaceful world but mainly one liable to be abused in ill-considered bids to contest their 47 Telford Taylor, Nuremberg and Vietnam: An American Tragedy (Quadrangle Books 1970). 48 See, e.g., Robert K. Woetzel, ‘Proposal for an International Criminal Court’ in Foundation for the Establishment of an International Criminal Court, A Report of the First and Second International Criminal Law Conferences (Johnson Foundation 1973); Benjamin Ferencz, An International Criminal Court, A Step Toward World Peace (Oceana 1980). 49 Radhabinod Pal, ‘Dissentient Judgment’ in Bernard V.A. Röling and Christiaan F. Rüter (eds), The Tokyo Judgment: the International Military Tribunal for the Far East (I.M.T.F.E.), 29 April 1946–12 November 1948, vol 2 (APA-University Press Amsterdam 1977) 627 citing Arnold Toynbee, A Study of History, vol 6 (OUP 1934) 180. 50 See Kirsten Sellars, ‘The Legacy of the Tokyo Dissents on “Crimes against Peace” ’ in Barriga and Kreß (eds), The Crime of Aggression (n 12).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

From Aggression to Atrocity: Rethinking the History 357

Figure 14.2 Relative Salience of the Phrase ‘aggressive war’ in English over time

Figure 14.3 Relative Salience of the Phrase ‘war of aggression’ in English over time

global dominance. Returning to salience in the Vietnam era, ‘aggression’ has been in decline since—including as a language to resist the global war on terror, most of whose opponents in the age of human rights have instead resolved to bring it into conformity with the humanitarian standards of the day, making it cleaner rather than criticizing it in toto. Note the post-1968 fall of the relative salience of the phrases ‘aggressive war’ and ‘war of aggression’ in Figures 14.2 and 14.3.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

358 Samuel Moyn Even as United Nations processes (reactivated in 1967, in the midst of Vietnam and after the Six-Day War) reached a relative fulfillment in a General Assembly Resolution of 1974 that finally defined aggression, other trends had been unleashed that would lead to a reversal of emphasis to reach atrocity.51 From the 1970s and after, a new kind of human rights movement exploded in the Global North putting decolonization and Cold War violence (mostly) behind it to establish a global moral defence of individuals and their basic liberties rather than to bring peace, to liberate groups, or to provide socioeconomic equity. And with it, a particular kind of atrocious cruelty increasingly became for a broad coalition of observers ‘the worst thing we do’ and what most required stigma.52 As consciousness of the Holocaust finally became strong, in the face of the perceived disaster of the post-colonial world, atrocity took the place of aggression as what demanded most zealous opposition, and crimes of war became increasingly intolerable to a broad public that had once stigmatized war as a crime. Once the Cold War ended, and new international criminal courts were finally possible institutionally, it was unsurprising that the field would crystallize as atrocity law.53

V. Conclusions The main reasons for the prioritization of aggression before its exclusion in the name of atrocity are not far to seek. The prospect of international criminal law rose at a unique moment in the relationships of states. Absolute monarchy (ceremony aside) was now a thing of the past, with the fall of dynasties that had ruled the lands from Central Europe to the Pacific ocean east to west, and from the North Sea to North Africa in the other direction. Even if the Kaiser’s trial as an aggressor did not come to pass, liberal peacemaking could prioritize punishing atavistic actors who had brought Europe to ruin. No one yet imagined, at the time, that the charge of aggression could be laid at the doorstep of the liberals themselves, though their states had engaged in conquest of the world for several centuries by that point. The next time around, in 1945, an America that had absented itself from peacemaking after World War I proved so intent on providing trans-Atlantic and trans-Pacific peace after World War II that its representatives frequently imagined a one-time fix that their rise to leadership would involve, rather than endless entanglement and perpetual war. For their part, Europeans were so intent on solving the German 51 Definition of Aggression, Res 3314 (XXIX), UNGA, 29th Sess, UN Doc A/RES/29/3314, (14 December 1974). Stone remained unforgiving in his skepticism: Julius Stone, ‘Holes and Loopholes in the 1974 Definition of Aggression’ (April 1977) 71(2) American J of Intl L 224–46; Julius Stone, Conflict through Consensus: United Nations Approaches to Aggression (Johns Hopkins UP 1977). 52 See John Kekes, ‘Cruelty and Liberalism’ (July 1996) 106 Ethics 834–44. On the birth of human rights, see Samuel Moyn, The Last Utopia: Human Rights in History (Belknap Press of Harvard UP 2010); and, for Americans, Barbara J. Keys, Reclaiming American Virtue: The Human Rights Revolution of the 1970s (Harvard UP 2014). 53 For more detail and more emphasis on the 1980s and 1990s, see Karen L. Engle, ‘Anti-Impunity and the Turn to Criminal Law in Human Rights’ (2015) 100(5) Cornell L Rev 1069–1127.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

From Aggression to Atrocity: Rethinking the History 359 problem once and for all that they pushed to organize international criminal law around aggression almost as ardently—punishing bad actors as a safeguard against future disturbances and continental destruction. Nuremberg’s true significance is thus not simply as an aggression trial, but that it took place in a passing window of plausibility that opened then shut. While in the early days individual Americans had been some of its principal advocates, the American state has always opposed a criminal prohibition on aggression, but for two opposite reasons. Before December 1941, it was because it could not tolerate a collective security system that might require global intervention. Thereafter, it was because it would not tolerate a collective security system that imposed risks of criminal indictment on global intervention. Contrary to myth, Nuremberg mattered not primarily for the breakthrough to punishment of atrocity, but because it marked a passing moment in between eras when, for inverse reasons, the United States would not include, let alone prioritize, criminal punishment for war-making as a task for international law. That atrocity law eventually rushed into the void reflects good and honorable intentions of many state and especially non-state actors. But it also fit shifting international politics as the world moved from the age of global empire to the age of ‘globalization’. International criminal law, initially birthed as part of the search for intra-European and trans-Atlantic order in the era that empires were going strong, returned in the guise of postcolonial governance. Their own ‘democratic peace’ achieved, northern states could tolerate a law criminalizing atrocity that, after decolonization removed the need and Vietnam went so wrong, it was harder to imagine themselves committing. The era since 9/11 has proved surprising precisely because it returned American security to the form of widespread direct intervention (rather than proxy war). As a result, the risk of condemnation for atrocity certainly accrued, albeit on a tiny scale compared to Cold War excesses, but the risk was largely contained. By contrast, the new international criminal law posed no obstacle to the new kind of war the times allowed and dictated: global, interminable, and clean. Even when America’s own arguments for crossing others’ borders in pursuit of terrorists fail to convince everyone, there is no charge of aggression to fear. Today, the way powerful states fight war—in the age of precisely the kind of hygienic war that Tolstoy feared for its likely endurance—is fully compatible with an inter national criminal law that long excluded aggression to shift to atrocity instead. As for public opinion, it transformed radically in the north over time, and nowhere more so than in the United States, helping concern for atrocity take the place of outrage at aggression. The Holocaust had been marginal to postwar justice in the 1940s, but Holocaust memory of the 1960s and 1970s proved decisive to how people framed their beliefs about the world’s problems and solutions to them. The surge of human rights— with that notion now popularly understood, unlike in the 1940s, as mostly responsive to and directed toward the horrors of atrocity—took the place of the antiwar sentiment of an earlier period.54 Citizens of powerful countries increasingly had little fear of 54 See Samuel Moyn, ‘The Integration of Holocaust Memory’ in Human Rights and the Uses of History (Verso 2014).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

360 Samuel Moyn interstate war, whose incidence continued to drop precipitously. International criminal law was no longer focused on their own life and death, as it had been when the world wars were fought. Civil war remained endemic, but predominantly in the Global South. It is characteristic that it took a European civil war interfering with the golden postCold War glow to prompt the reinvention of international criminal law for our time; yet the subsequent geography of the field is all postcolonial. Increasingly, it was a field imagined for the sake of the crime and punishment of others, and the recognition and succour of victims faraway. Like states, then, public opinion across the Atlantic had little reason to support an international law struggling to criminalize war rather than atrocity. Conflicts of northern states with one another were a distant memory. Belligerent returns to the postcolonial world were sometimes viewed as necessary, especially since atrocity and genocide—notably given the endurance of civil war—remained endemic precisely there. If some worried that international criminal law, like domestic criminal law, should regulate not only the weak but also the powerful who might not commit atrocious wrongs as readily but who continued to reserve the right to police the globe, they were in the minority. Of course, aggression is by no means irretrievable, conceptually or legally.55 Recent debate rages around the Kampala amendments to the ICC’s Rome Statute, which have made aggression a chargeable offence, at least theoretically.56 Unlike other northern states, the United States has, obviously, avoided ratifying the Rome Statute altogether, even as the country has supported the agenda of atrocity law the ICC and other courts pursue, at least in most cases.57 But dramatic anxiety is spiking among American observers that, someday soon, the ICC will add aggression to its bailiwick.58 However alarmist the worries, the consequences of the restoration of aggression to international criminal law are not hard to foresee. The ICC may soon try to fulfill a dream of a world in which aggressors are punishable that no nation did more to embed in global aspirations than America itself. But if the Court does so, it will find itself with even fewer American friends than it has now.

55 In philosophy, Michael Walzer followed mainstream assumptions in framing aggression as illegal and supporting criminal responsibility for it; following a classic initial salvo by David Luban, some ‘revisionists’ today contend that an aggression framework is misleading since what matters ethically (in a world of exclusionary normative individualism at least) is whether a war is just, even if it is ‘aggressive’. cf Michael Walzer, Just and Unjust Wars (Basic Books 1977) 51–53, ch 18; David Luban, ‘Just War and Human Rights’ (Winter 1980) 9(2) Philosophy and Public Affairs 160–81; Jeff McMahan, ‘Aggression and Punishment’ in Larry May and Emily Crookston (eds), War: Essays in Political Philosophy (CUP 2008) 67; Jeff McMahan, ‘Unjust War and the Crime of Aggression’ in Barriga and Kreß (eds), The Crime of Aggression (n 12). See also Larry May, Aggression and Crimes against Peace (CUP 2008); Cécile Fabre and Seth Lazar (eds), The Morality of Defensive War (OUP 2014); Tom Dannenbaum, ‘Why Have We Criminalized Aggressive War?’ (March 2017) 126(5) Yale L J 1242–599. In law, see, e.g., Leila Nadya Sadat (ed), Seeking Accountability for Unlawful Uses of Force (CUP 2018). 56 Stefan Barriga and Claus Kreß (eds), The Travaux Préparatoires of the Crime of Aggression (CUP 2012). 57 David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics (OUP 2014). 58 Harold Hongju Koh and Todd F. Buchwald, ‘The Crime of Aggression: The United States Perspective’ (April 2015) 109(2) American J of Intl L 257–95.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

chapter 15

Ensl av em en t as a Cr im e aga i nst H um a n it y Some Doctrinal, Historical, and Theoretical Considerations Edwin Bikundo

I. Introduction and Background On 4 November 2017, the UN Migration Agency, the International Organization for Migration (IOM), published a report highlighting the crime of enslavement occurring in North Africa, particularly Niger and Libya.1 The chief IOM spokesman in Geneva, Leonard Doyle, described the victims as ‘commodities to be bought, sold and discarded’.2 The enslavement involved ‘Sub-Saharan migrants . . . being sold and bought by Libyans, with the support of Ghanaians and Nigerians who work for them’.3 This state of affairs chimes well with not just legal history in that the slave ‘was the one human being who could be owned’,4 legally speaking, but matches closely, as we shall see, contemporary legal definitions of enslavement as either ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’ (based upon

1 IOM, ‘IOM Learns of “Slave Market” Conditions Endangering Migrants in North Africa (Press Release, Libya, 4 November 2017) accessed 16 December 2018. 2 ibid. 3 ibid. 4 William Warwick Buckland, The Roman Law of Slavery: The Condition of the Slave in Private Law from Augustus to Justinian (CUP 1908) 10 (hereafter Buckland, Roman Law of Slavery).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

362 Edwin Bikundo Article 1, clause 1 of the Slavery Convention of 1926) that has in turn led to enslavement’s categorization as an act that qualifies as a crime against humanity.5 However, as we shall see, contemporary understandings of slavery, while focusing on the status of slavery, do not give any particular valence to, let alone foreground, the conditions leading to and accompanying enslavement—such as the deprivation of food, clothing, and shelter accompanying the extreme poverty and lack of opportunity, which the African victims of slavery above sought to escape, leading to their enslavement at the hands of their captors. This chapter begins from the present day by l ooking at enslavement under customary international law and works backwards to the Slavery Convention of 1926, in order to demonstrate enslavement’s development in close connection to, among others, the Rome Statute of the International Criminal Court (Rome Statute) and the statutes for International Criminal Tribunals for the former Yugoslavia and for Rwanda. These courts’ understandings of the term are problematically grounded solely on violations of civil and political rights (CPR) rather than the deprivation of economic, social, and cultural rights (ESCR), despite having had opportunity to do both. Consequently, the argument that follows is that whereas the 1926 Slavery Convention and other instruments following it defined slavery as either a status (governed by civil and political rights)6 or condition (the subject of economic, social, and cultural rights),7 the current conception of enslavement heavily emphasizes status over condition, and in that way does not only do injustice to the victims of contemporary African slavery but is also flawed in law. By deploying history and theory to highlight that blind spot both in law and in fact regarding the status and condition of slavery, this chapter makes the following doctrinal, historical, and theoretical points: 1. Doctrinally, as a legal construct (once condoned and now condemned by law), slavery depended and, despite best efforts, still depends upon a basic distinction between a human (homo) and a person (persona); 2. Historically, that doctrinal distinction was born of Roman Law and reliant upon a split and opposition between unwritten law governing all of humanity—from which the condition of slavery is founded—and written law recognizing persons upon which the status of slavery was founded; and 3. Theoretically, that split dividing the public sphere of the polis, or city (originally the domain of propertied men), and the private sphere of the oikos, or household (originally the proper place of women, children, and—this chapter’s 5 As the United States Court of Appeals for the Second Circuit noted in Filartiga v. Peha-Irala, ‘for purposes of civil liability, the torturer has become like the pirate and slave trader before him—hostis humani generis, an enemy of all mankind’: Filártiga .v Peña-Irala, 630 F.2d 876 (2d Cir. 1980), 890. 6 See International Covenant on Civil and Political Rights, 1966, 999 UNTS 171 (in force 1976), art 16 (‘Everyone shall have the right to recognition everywhere as a person before the law’). 7 See International Covenant on Economic, Social and Cultural Rights, 1966, 993 UNTS 3 (in force 1976), art 11(1) (where ‘the right of everyone to an adequate standard of living for himself and his family, including adequate food and clothing’ is granted recognition).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Enslavement as a Crime against Humanity 363 s ubject—slaves), drew a line within human ‘life’ between natural life and political life in a way that still privileges political life in a process for which the apparatus of law is indispensable. Those three points undergird the overall argument unfolded in this chapter that slavery is defined as having two limbs: status and condition. The ‘status’ limb of slavery is doctrinally based on the person, historically founded on legal recognition/ non-recognition, and theoretically projected as political life. What is more, status is founded upon what are now referred to as civil and political rights. The ‘condition’ limb of slavery is by contrast doctrinally based on the human, historically founded on the material conditions that sustain humanity, and theoretically posited as natural life. Furthermore, condition is based on common understandings of economic, social, and cultural rights. However, the contemporary understandings of slavery have favoured status over condition in privileging civil and political rights over economic, social, and cultural rights. Evelyne Schmid devotes book-length treatment to this phenomenon by painstakingly outlining how international crimes like slavery (but also apartheid, aggression, corruption, and terrorist offences), as defined by international law, may in certain instances overlap with ESCR violations.8 It is not unusual to assert that humanity references not just a biological species—homo sapiens—that is distinguished from the rest of the zoological kingdom by self-awareness but also the conduct expected of individual members of that species. Christopher McLeod distinguishes those as human-kind and human-nature respectively.9 Giorgio Agamben argues that man [sic] is ‘a field of dialectical tensions’ separating ‘animality and the humanity’ that takes bodily form in it.10 This ‘means that man is the being which recognizes itself as such, that man is the animal that must recognize itself as human to be human’.11 In that way, humanity as a term occupies a junction between norm and value, or law and fact. Consequently, a crime against humanity simultaneously legitimates the exercise of jurisdiction over a universal class while articulating normative standards applicable to the exercise of that jurisdiction over that class. This is how the classification of enslavement as a crime against humanity after the fact is instructive of the contemporary self-definition of the category of humanity. Which is to say the normative expectation that human beings are not to be bought or sold because they are human says something about contemporary understandings of what it means to be human. However, as long as and insofar as that normative expectation is violated, it means that humanity as a class continues to fall short of humanity as a standard of conduct.

8 See Evelyne Schmid, Taking Economic, Social and Cultural Rights Seriously in International Criminal Law (CUP 2015) 271 (hereafter Schmid, Taking ESCR Seriously). 9 Christopher Macleod ‘Towards a Philosophical Account of Crimes Against Humanity’ (2010) 21(2) European J of Intl L 281, 283. 10 Giorgio Agamben, The Open: Man and Animal (first published 2002, Kevin Attell (tr), Stanford UP 2004) 12 (hereafter Agamben, The Open). 11 ibid 26 (emphasis in original).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

364 Edwin Bikundo The next part then brings international criminal law and international human rights law in close dialogue to examine how this two-fold favouring of one limb of the definition of slavery over another works out in detail, with particular regard to the ideological disputes between the universality of rights and a hierarchy or priority of some rights over others. The latter view notably prevented the Universal Declaration of Human Rights (UDHR) from leading to a single instrument and instead led to a bifurcation of rights in two separate instruments: the International Covenant on Civil and Political rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). This separation, among other things, fractured the right not to be enslaved and in the process impoverished its understanding. That bifurcation is connected to the practice in some leading nations in the West and elsewhere in the world of considering ESCR as more a form of legally recognized entitlements than rights in the truest sense, that is to say in comparison to the CPR. Hope Lewis sees it as ‘no accident’ that ‘[e]conomic and social rights . . . still occupy a second-class, “outsider” status in official United States domestic and foreign policy’.12 This is in her view because ‘they threaten the deeply held belief that our [sic] country has achieved a truly representative, human rights-based society’.13 Philip Alston has noted for instance that the United States has found occasion to prioritize civil and political rights, rejected their equivalence to economic, social, and cultural rights, and expressed concern about ‘the justiciability of economic and cultural rights’.14 Australia too has been reluctant to embrace economic, social, and cultural rights to the same extent as civil and political rights.15 Once that split has been demonstrated and accounted for with regard to enslavement, the next part emphasizes the theoretical implications of this by revisiting the thesis of the first African to go to a Western university (who was himself enslaved), Anton Wilhelm Amo’s Dissertatio Inauguralis De Jure Maurorum in Europa (1729). It does so in order to single out the dual and ambivalent role that law has played and continues to play in the progression of our understanding of becoming human by granting legal rights to persons—a project that as such remains unfinished.

12 Hope Lewis, ‘ “New” Human Rights: U.S. Ambivalence Toward the International Economic and Social Rights Framework’ in Cynthia Soohoo, Catherine Albisa, and Martha F. Davis (eds), Bringing Human Rights Home: A History of Human Rights in the United States (Praeger 2007) 103. 13 ibid. 14 Philip Alston, ‘Putting Economic, Social, and Cultural Rights Back on the Agenda of the United States’ (2009) NYU School of Law, Public Law Research Paper 09–35, Center for Human Rights and Global Justice Working Paper 22/2009, at 6 accessed 16 December 2018. See also Philip Alston, ‘U.S. Ratification of the Covenant on Economic, Social and Cultural Rights: The Need for an Entirely New Strategy’ (1990) 84(2) American J of Intl L 365. 15 Peter Bailey, ‘The Right to an Adequate Standard of Living: New Issues for Australian Law’ (1997) 4(1) Australian J of Human Rights 25.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Enslavement as a Crime against Humanity 365

II. Doctrinal Underpinnings, ‘Humans’ and ‘Persons’ Doctrinally, as we shall see, slavery as a legal construct depended upon a basic distinction between a (or the) human (homo) and a person (persona). Roman jurists consequently deployed the human (as opposed to the person) precisely ‘as a largely extralegal being’, ‘the material support for the attribution of all rights’, or ‘the physical individual to whom legal titles could be linked’.16 To emphasize this specific point, Heller-Roazen notes that: [T]he ancient jurists consistently opposed the terms ‘human being’ (homo) and ‘person’ (persona). They wrote of ‘human beings’ when designating living individ uals, considered in the near absence of legal qualification, while they invoked ‘persons’ or ‘personalities’ (personae) when alluding to individuals insofar as they laid claim to rights, titles and prerogatives.17

Importantly ‘in Roman legal discourse, the term homo, when used in isolation, meant simply “slave or servant” ’.18 As a consequence, slaves then were juridical non-persons.19 Slaves were human beings distinguished not only by being without rights but as incap able of having rights, lacking as they did legal personality. Roberto Esposito makes the point that the term ‘person’ not only separates ‘servi [slaves] and liberi [free men]’ but also further separates liberi ‘between ingenui [freemen born free] and liberti [those manumitted from legal slavery]’.20 Slavery’s definition has maintained remarkable consistency with this approach in not mentioning humans once but only speaking to persons as clearly seen in the introduction of Article 1, of the Slavery Convention of 1926 (subsequently reproduced in Article 7 of the Slavery Convention of 1956): For the purpose of the present Convention, the following definitions are agreed upon: Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised. Crucially Esposito points out that recognizing or granting the status of ‘person’ is a purely legal process and therefore not a descriptive statement of bald fact, but instead a case of the law conjuring both what it sees and what it sees with: Such a characterization [as a person] doesn’t have meaning outside of the ius, which is to say that the homines take on the guise of personae only de iure (and therefore 16 Daniel Heller-Roazen, The Enemy of All: Piracy and the Law of Nations (Zone Books 2009) 148. 17 ibid. 18 ibid. 19 ibid 99. 20 Roberto Esposito, ‘The Dispositif of the Person’, (2012) 8(1) Law, Culture and The Humanities 17, 22.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

366 Edwin Bikundo are situated in distinct categories) is further proof of the performative power of law [diritto] in general and of the notion of person in particular.21

This chapter consequently argues that slavery—regardless of whether it is by status or condition—is matter of law. However, in examining the phrase ‘status or condition’ in the first clause of Article 1, Jean Allain, a noted expert in the law of slavery recognized as such by the ICC, concludes in his paper titled ‘The Definition of “Slavery” in General International Law and the Crime of Enslavement within the Rome Statute’ that ‘slavery as “status” is a recognition of slavery in law; and slavery as “condition” is to be understood as slavery in fact’.22 His argument runs as follows: This interpretation is confirmed first by the dichotomy put forward by Viscount Cecil between the suppression of slavery in law: ‘written legislation’ and in fact: ‘the custom of a country’. It is also manifest in the 1926 submission of the Union of South Africa to the League of Nations’ request for comment on the draft Convention, when that State reworded the definition including the phrase ‘status or condition’ to read: ‘In other words, a person is a slave if any other person can, by law or enforceable custom, claim such property in him as would be claimed if he were an inanimate object’.23

He justifies this argument in the following way that assimilates what he terms as ‘enforceable custom’ to fact instead of to law.24 But why would ‘enforceable custom’ be fact and not law? Written law is after all opposed to unwritten law not to fact. Allain does not explain the basis of construing condition and status differently as fact and law instead of both being either matters of law or matters of fact. What he does is to combine a plain language analysis relying on the dictionary meaning of both status and condition coupled with a consultation of the travaux préparatoires of the Slavery Convention. He does this even when there is no demonstrated or claimed ambiguity or obscurity of meaning nor any presence of a manifestly or patently absurd or unreasonable result to justify such an approach. Under Article 31(1) common to both the 1969 Vienna Convention on the Law of Treaties and the 1986 Vienna Convention on the Law of Treaties, it is provided that the terms of treaties generally are in the first instance to be interpreted according to their ordinary meaning.25 This lack of explanation acquires more significance particularly when we recall that the phrase ‘are exercised’ is included in Article 1(1) of the 1926 Slavery Convention of 1926. That phrase is the one whose plain meaning would ordinarily reference a matter of fact, i.e., whether the evidence indicates 21 ibid. 22 Jean Allain, ‘The Definition of “Slavery” in General International Law and the Crime of Enslavement within the Rome Statute’ (Guest Lecture Series of the Office of the Prosecutor, The Hague, 26 April 2007) 12 accessed 16 December 2018. 23 ibid (emphasis and footnotes omitted). 24 ibid 10. 25 See Olivier Corten and Pierre Klein (eds), The Vienna Conventions on the Law of Treaties: A Commentary (OUP 2011) 805, 838.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Enslavement as a Crime against Humanity 367 an instance where a person was acting as if he had the power of ownership over a human. Such an instance is to be proven through evidence as opposed to whether a certain form or slavery is either a status or a condition that would, by contrast, be a matter of defining technical legal terms. What is more, an examination of the method and the sources relied upon by Allain reveals that they support both status and condition as being matters of law. That is, once the distinction between written or positive law, referencing legally bestowed ‘status’, and unwritten or natural law, referencing an imputed ‘condition’ recognized in law, is taken into account. There is a different, if more involved, explanation that highlights the slippage from fact to law discernible in the shift from ‘the custom of a country’, based on fact, to ‘enforceable custom’ that invokes customary law emphatically as law and not as fact. Recall that the distinction between law and fact is not a factual distinction based on evidence but a legal distinction based on doctrine. Recall too that slavery was passing over from a legal institution sanctioned by law to an illegal institution now sanctioned against by law. This was a legal solution to a problem engendered by law in the first place. During that passage, slavery moves from a matter of sanctioned law to a matter of objectionable fact through a legal operation (the entry into force of the Slavery Convention). Condition and status are then rendered nothing more than the erstwhile justifications for enslavement that are now equally prohibited. Because the law as such is indispens able through and through in this process, it is better to say that slavery as status is a matter of positive law, and that slavery as condition is a matter of ‘enforceable custom’ that is now much more akin to erstwhile customary international law than it is to fact. The survey of the law below will show that, although the courts have had recourse to both the civil and political, as well as the economic, social, and cultural aspects of slavery, their decisions have only turned on legal protections of civil and political rights while treating deprivations of the economic, social, and cultural rights as matters of fact and not as breaches of law. To start from the present day law (in order to avoid teleo logical retellings of the enslavement’s legal history), the Rome Statute’s Article 7(2)(c) defines enslavement as ‘the exercise of any or all of the powers attaching to the right of ownership over a person’. Clearly, this wording paraphrases the first article of the Slavery Convention of 1926 encountered above, defining ‘slavery’ as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’. The Rome Statute merely added exercising those powers to the list of criminal acts under crimes against humanity. This similarity of approach is unsurprising and even welcomed given the undesirability of the fragmentation of international law, particularly so for the narrow purpose of governing individual criminal responsibility. It should not be taken for granted however. Article 10 of the Rome Statute (which is the only Article that the table of contents to the Rome Statute does not summarize) provides that Part II of the Rome Statute defining the crimes under the jurisdiction of the International Criminal Court (which also contains Article 7) is not to ‘be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute’. In essence, Article 10 states that nothing in Part II of the Rome Statute shall restrict the development of international criminal law elsewhere.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

368 Edwin Bikundo Giving it its full import therefore makes the Rome Statute a key and logical reference point, but not the last word on the matter. The UN International Law Commission (ILC), which is, among others, tasked with ‘the identification of customary law’,26 has included crimes against humanity in its programme of work since 2014.27 The ILC notes that concerted international efforts to abolish the slave trade date back to the Congress of Vienna (1814–15).28 In draft articles provisionally adopted by the Commission at its 67th session, the definition of crimes against humanity included, among others, ‘enslavement’ ‘when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’. Turning then to the statutes of the ICTY and ICTR, predating the Rome Statute of 1998 in 1993 and 1994, (all three of which would of course be available to the ILC and it does seem the ILC drafters considered the wording of Article 7(1) of the Rome Statute as a codification of customary law for the chapeau elements of crimes against humanity) we find that these courts exercised jurisdiction over enslavement as a crime against humanity in strikingly different ways. The Rome Statute’s Article 7(1) prefers a definitional approach to ‘crime against humanity’ as meaning certain ‘acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’ to the ICTR Statute’s jurisdictional approach in Article 3 which provided that tribunal with the power to prosecute ‘enslavement’ and other crimes ‘when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds’. The ICTY Statute also had a jurisdictional approach to crimes against humanity in Article 5 which provided that tribunal with the power to prosecute ‘enslavement’ among other crimes ‘when committed in armed conflict, whether international or internal in character, and directed against any civilian population’. Despite these differences, both the ICTR and ICTY statutes contain a catch-all phrase ‘other inhumane acts’ that provides a characterization of all the different categor ies of crimes against humanity as united in being inhumane acts (although Article 7 of the Rome Statute does adopt the ‘other inhumane acts’ formulation, it appends ‘of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health’ to it). In sum, by then it was clearly inhumane as a matter of law to exercise powers analogous to ownership over a ‘person’ (in the explicit wording of the Rome Statute’s Article 7), not a ‘human’ which is not referenced at all in this context by any of the statutes except perhaps at best only by implication. That distinction between the person and the human, as we shall see in this chapter, has always mattered and deserves to be specifically addressed at customary international law, because whereas persons are bearers of rights and responsibilities within a given legal system, 26 ILC, ‘Summary of the Work of the International Law Commission: Identification of Customary International Law’ (last updated 24 September 2018) accessed 16 December 2018. 27 ILC, ‘Summary of the Work of the International Law Commission: Crimes against Humanity’ (last updated 9 August 2017) accessed 16 December 2018. 28 ILC, ‘About the Commission: Origin and Background’ (last updated 31 July 2017) accessed 16 December 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Enslavement as a Crime against Humanity 369 humans do not have the same recognition unless and until they are granted personality as a matter of legal status. We can in any event now readily identify therefore that when it came to the ILC, the wording of the ICTY Statute regarding armed conflict was abandoned in favour of that of the ICTR Statute (while discarding ‘on national, political, ethnic, racial or religious grounds’), and that the Rome Statute’s Article 7 added ‘with knowledge of the attack’ to the ICTR’s formulation while switching it from an element of jurisdiction of the Court to one of the definition of the offence. This variation in contextual elements moreover does not go to the essence of enslavement as such, but only to when the ICTR and ICTY could exercise their jurisdiction or to the definition of crimes against humanity (not enslavement) in the Rome Statute. Therefore to seek anything approaching the essential elements of enslavement, we have to look elsewhere, firstly by turning to judicial decisions. The ICTY Trial Chamber judgment in Kunarac, Kovac and Vokovic, is a leading authority on the customary international law of the matter at hand.29 While explicitly reliant on the ICCPR, that decision did not mention once the ICESCR.30 That neglect of economic, social, and cultural rights has been duplicated in subsequent cases. In that foundational case, the bench observed that enslavement was not defined for the ICTY Statute and the Tribunal consequently had to formulate a definition of its own by looking, among others, to ‘international humanitarian law and human rights law’.31 In doing so, it found that ‘enslavement as a crime against humanity in customary international law consisted of the exercise of any or all of the powers attaching to the right of ownership over a person’.32 It held that the actus reus of enslavement ‘is the exercise of any or all of the powers attaching to the right of ownership over a person’, and the mens rea ‘consists in the intentional exercise of such powers’.33 The judgment did caution though that it was ‘not intended to be an exhaustive pronouncement on the law of enslavement’.34 The basic approach in Kunarac, Kovac and Vokovic was subsequently followed and confirmed in Krnojelac,35 which went on to find that although slavery was not enumerated under Article 3 referencing violations of the laws or customs of war, slavery may still be punishable under that article.36 The Trial Chamber as a consequence satisfied itself that the offence of slavery under Article 3 and under Article 5 was the same, which meant that slavery occupied an area overlapping war crimes and crimes against humanity. For the Court: ‘[T]he exaction of forced or compulsory labour or service’ was an ‘indication of enslavement’, and a ‘factor to be taken into consideration in determining 29 Prosecutor v. Kunarac, Kovac and Vukovic (Judgment) IT-96–23 and IT-96–23/11, (22 February 2001) (ICTY, Trial Chamber) (hereafter Prosecutor v. Kunarac and others (Trial Judgment)) (examining enslavement as a crime against humanity at paras 515–43). Those findings were confirmed by the Appellate Chamber in Prosecutor v. Kunarac, Kovac and Vukovic (Judgment) IT-96–23 and IT-96–23/1-A, (12 June 2002) (ICTY, Appeals Chamber) paras 106–24 (hereafter Prosecutor v. Kunarac and others (Appeals Judgment)). 30 Prosecutor v. Kunarac and others (Trial Judgment) (n 29) para 533. 31 ibid para 518. 32 ibid para 539. 33 ibid para 540. 34 ibid para 177. 35 Prosecutor v. Krnojelac (Judgment) IT-97–25, (15 March 2002) (ICTY, Trial Chamber II). 36 ibid paras 350–51, 356, 359.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

370 Edwin Bikundo whether enslavement was committed’. This is notable of an economic and social aspect of enslavement. The case of Naletilic and Martinovic in turn found that: In order to establish the mens rea requirement for the crime of unlawful labour, the Prosecution must prove that the perpetrator had the intent that the victim would be performing prohibited work. The intent can be demonstrated by direct explicit evidence, or, in the absence of such evidence, can be inferred from the circumstances in which the labour was performed.37

These circumstances have been found by the courts to include duration, lack of resistance, lack of consent, control both physical and psychological, or forced labour as all indicating slavery without being it specifically.38 These circumstances in and of themselves do not distinguish between civil and political aspects and economic, social, and cultural aspects of enslavement. Importantly not even deprivation of liberty in itself will prove enslavement without other indicia.39 Indeed, even the lack of consent is not an element of the crime of enslavement.40 Moreover the Trial Chamber in Kunarac, Kovac and Vukovic concluded that ‘socio-economic conditions’ may render the enslavement victim’s ‘consent or free will’ ‘impossible or irrelevant’.41 Surely the deprivation of the ICESCR Article 11(1) rights to food, clothing, and shelter whereby slavery is established would be a prominent example of socio-economic conditions that render any talk of consent or free will impossible. What needs noting however is that although in the examples above courts have, as a matter of fact, had recourse to both civil and political rights violations as well as economic, social, and cultural rights violations, as a matter of law they have only referred to civil and political rights legal instruments in defining enslavement and totally ignored economic, social, and cultural rights enshrined in law. That shows a clear bias in favour of one set of rights over another. Had they also looked at violations of social, economic, and cultural rights, by the same token, they would not only be more ideologically neutral but more in keeping with human rights law. It would also be more in keeping with the lived experience of the African would-be migrants, who only fall prey to human traffickers (or sometimes drown at sea or freeze to death on ship decks in the Mediterranean, or even die of thirst in the Sahara desert, all exclusively ESCR violations) because they pursue a better life elsewhere. To put it differently, courts have recognized as a matter of fact that enslavement violates both sets of rights, but as matter of law they have only cited legal authority referencing civil and political rights. Granted, this would not make any real difference to the results of the criminal trials discussed, whose focus is on a verdict of either guilty or not guilty. It would however make a fundamental difference to the 37 Prosecutor v. Naletilić and Martinović (Judgment) IT-98–34, (31 March 2003) (ICTY, Trial Chamber) para 260. 38 Prosecutor v. Kunarac and others (Appeals Judgment) (n 29) para 119. 39 Prosecutor v. Kunarac and others (Trial Judgment) (n 29) para 542. 40 Prosecutor v. Kunarac and others (Appeals Judgment) (n 29) para 120. 41 Prosecutor v. Kunarac and others (Trial Judgment) (n 29) para 542.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Enslavement as a Crime against Humanity 371 reasoning behind the decisions. That difference in reasoning would not unduly concern a parochially-focused criminal lawyer but would definitely concern anyone with an appreciation of sound jurisprudence or with a respectful attitude toward the indivisibility of human rights.42 To put it baldly, to ‘observe that the law does not know of “a right of ownership over a person” ’43 displays a certain legal amnesia and is, as a consequence, less accurate than to state that the law no longer recognizes a right of ownership over a person although it once did. Strictly speaking, ‘the exercise of any or all of the powers attaching to the right of ownership over a person’ does not in itself necessarily imply any hierarchy or priority of one set of human rights over the other. A more legally sound approach would consequently be to read the 1926 Slavery Convention with both sets of rights in mind. That way, economic, social, and cultural factors leading to the condition of slavery would be given at the very least equal weight to civil and political violations.

III. Historical Sources: Roman Law’s Enduring Influence Historically, as we have seen so far, the doctrinal distinction between humans and persons was born of Roman law and reliant upon a split and opposition between natural law (governing all humans collectively) and positive law (recognizing persons as bearers of rights and duties within a specific legal system). Arthur Nussbaum noted that ‘Roman law not only supplied the nascent international law with terms and captions, but also imbued it with fertile impulses’.44 Slavery is no exception, quite to the contrary in fact. Indeed Buckland, one of Allain’s sources above, noted that slavery in Roman law was justified on the following basis: Slavery is the only case in which, in the extant sources of Roman law, a conflict is declared to exist between the Ius Gentium and the Ius Naturale. It is of course inconsistent with that universal equality of man which Roman speculations on the Law of Nature assumed, and we are repeatedly told that it is a part of the Ius Gentium, since it originates in war. Captives, it is said, may be slain: to make them slaves is to save their lives.45

42 It could also lead to a broader understanding of ‘the fear of persecution’ under the Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137 (as amended by the Protocol Relating to the Status of Refugees, in force 4 October 1967) (the Refugee Convention). 43 Prosecutor v. Kunarac and others (Appeals Judgment) (n 29) para 118. 44 Arthur Nussbaum, The Significance of Roman Law in the History of International Law (1952) 100(5) U of Pennsylvania L Rev 678, 682. See more generally Hersch Lauterpacht, Private Law Sources and Analogies of International Law (With Special Reference to International Arbitration) (Longman 1927); Randall Lesaffer, ‘Argument from Roman Law in Current International Law: Occupation and Acquisitive Prescription’ (2005) 16 European J of Intl L 25. 45 Buckland, Roman Law of Slavery (n 4) 1.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

372 Edwin Bikundo This is in keeping with the English case of Somerset v. Stewart that stated slavery was only supportable through positive law: The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it’s so odious, that nothing can be suffered to support it, but positive law.46

The point to be made though is that law (regardless of whether it was natural law or positive law) is actually necessary for slavery to take place. Slavery was a legal institution that the law has sought to undo by progressively rendering it illegal. In Rome, it did not necessarily imply any difference of race or language. Any citizen might conceivably become a slave: almost any slave might become a citizen.47 Lack of sufficient juridical personality was the key distinguishing factor of slavery—over a wide range of law the slave was not only without right but was also without duties.48 Even in early discussions of the ICCPR’s Article 8 outlawing slavery, ‘it was pointed out that slavery, which implied the destruction of the juridical personality, was a relatively limited and technical notion’.49 That aspect of the law recognizing the slave as a juridically emptied out being directly invokes and relates to Article 16 of the ICCPR that states ‘Everyone has the right to recognition everywhere as a person before the law’. Hannah Arendt would have described this as the right to have rights.50 The evolution of Article 16 is intriguing. At the first session of the drafting committee, it read as: ‘No person shall be restricted in the personal exercise of his civil rights or deprived of judicial personality’. It then shifted to: ‘No person shall be restricted in the personal exercise of his civil rights or deprived of juridical personality’, and on to: ‘No person shall be deprived of his juridical personality’, then to: ‘No one shall be deprived of his juridical personality’,51 before settling into the current form of words that prefers ‘recognition’ over ‘deprivation’ of personality but leaves intact the proposition that law can both deprive and recognize personality and therefore the capacity to enjoy rights as such. The basis of the final draft was Article 6 of the UDHR, which (unlike the ICCPR and the ICESCR) was ‘understood to apply to human beings, not to “juridical persons” ’.52 This is why ‘[t]here was general agreement that article 16 was intended to ensure that every person would be a subject, and not an object, of the law’.53 In opposing the juridical protection of economic, social, and cultural rights, the delegate of the United Kingdom expressed the view that ‘the world needed free men and not well fed slaves’; consequently, for him ‘economic and social rights and social security rested 46 Somerset v. Stewart (1772), 98 ER 499 (KB), 510. 47 Buckland, Roman Law of Slavery (n 4) 5. 48 ibid 3. 49 M J Bossuyt, Guide to the ‘Travaux Préparatoires’ of the International Covenant on Civil and Political Rights (M Nijhoff 1987) 167 (hereafter Bossuyt, Travaux Préparatoires). 50 Hannah Arendt, ‘The Rights of Man: What Are They?’ (1949) 3 Modern Review 4. See also Frank Michelman, ‘Parsing “A Right to Have Rights” ’ (1996) 3(2) Constellations 200. 51 Bossuyt, Travaux Préparatoires (n 48) 335. 52 ibid 336. 53 ibid.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Enslavement as a Crime against Humanity 373 primarily on the affirmation of freedom of speech and the right to association’.54 This expressed view and attitude that granting legal protection of civil and political rights would somehow lead as a matter of fact to the enjoyment of economic, social, and cultural rights has held sway to the present day and influenced the development of international criminal law. While slavery, servitude, and forced or compulsory labour are prohibited under Article 8 of the ICCPR as a negative right, the positive aspect of this, being the right to work, is recognized elsewhere: Article 6 of the ICESCR, which includes the right of everyone to the opportunity to gain a living by work which is freely chosen or accepted; Article 7, which provides everyone the right to enjoy just and favourable working conditions; and Article 8, which provides for safe and healthy working conditions.55 The overlap between international criminal law and international human rights law with regard to slavery is consequently most apparent not in human labour that can be paid for, but in human chattelhood for which there is no longer any excuse. In terms of human rights law that definition has been interpreted, as we saw above, in a way that favours civil and political rights over economic, social, and cultural rights.56 Reading ESCR into the definition of international crimes might help conceptualize and understand slavery as particular combinations of denial of both civil and political, and economic, social and cultural rights.

IV. Theoretical Framework: Natural Life and Political Life Agamben’s forays into, among others, Roman law and Greek philosophy have yielded at least three insights relevant to this discussion: anthropogenesis, the malleability of slavery, and the split of life into natural life and political life. In The Use of Bodies, Agamben clearly describes the special status of slaves who were both excluded and included in humanity in the sense that a free man implies a slave as a necessary condition of its possibility.57 Jurisprudence too is ‘drawn and suspended in the difference between man and animal’.58 With regard to the split between natural life and political life Agamben explains that: The Greeks had no single term to express what we mean by the word ‘life’. They used two terms that, although traceable to a common etymological root, are semantically and morphologically distinct: zoē, which expressed the simple fact of living common

54 W Schabas (ed), The Universal Declaration of Human Rights: the Travaux Préparatoires (CUP 2013) 1318. 55 See generally Schmid, Taking ESCR Seriously (n 8). 56 See generally ibid. 57 Giorgio Agamben, The Use of Bodies (Adam Kotsko (tr), Stanford UP 2015) 20. 58 Agamben, The Open (n 10) 22.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

374 Edwin Bikundo to all living beings (animals, men, or gods), and bios, which indicated the form or way of living proper to an individual or a group.59

What is more, Agamben cites Aristotle’s Politics regarding the oikos, or homestead, as being excluded from the polis, or city, as the space of politics although he does not see it fit to mention too Aristotle’s views on the naturalness of slavery expressed in the same source and at the same place.60 The point here, though, is that by demarcating polis from oikos, both women and slaves are in effect banished from the public sphere of politics and confined to the private sphere of the homestead. It is law as an apparatus that makes and remakes that banishment in the political sphere which produces the private sphere because the distinction between public and private is a public distinction, not a private one. For Agamben the term ‘apparatus’ designates that in which and through which one realizes a pure activity of governance devoid of any foundation in being. This is the reason why apparatuses must always imply a process of subjectification. That is to say, they must produce their subject.61 To be clear, ‘juridical measures’ are precisely such type of apparatus.62 The law therefore is perfectly ambivalent with regard to slavery only undoing what it itself once did. In law, it is not humanity that produces legality but legality that produces humanity. This was clear very early on in the anti-slavery struggle. Anton Wilhelm Amo, a sometime slave, was the first African to study and teach at a European University. Courtesy of an education provided by his owner and then patron Anthony Ulrich, Duke of Brunswick-Wolfenbüttel, Amo became a noted legal thinker and philosopher at the universities of Halle, Wittenberg, and Jena in the 18th century. The summary of his thesis in the Yearbook of the University of Halle strikes a biographical note: In this very place a baptized Moor by the name of Mister Anton Wilhelm Amo, in the service of His Highness the Duke of Wolfenbüttel, spent some years for the purpose of studying. And after he had attained a proficiency in the Latin language, he showed such dedication and success in the lessons of private and public law that he became very well versed in this field. After this, with the consent of his most merciful Highness, who had supported him until now, he was permitted by the Chancellor von Ludwig to hold a public disputation under his [the Chancellor’s] presidency. So that the argument of the disputation should be appropriate to his situation, the topic De iure Maurorum in Europa, or the law of Moors, was chosen. Therein it was not only shown from books and from history, that the kings of the Moors were enfeoffed by the Roman Emperor, and that every one of them had to obtain a royal patent from him, which Justinian also issued, but it was also investigated how far the 59 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (first published 1995, Daniel HellerRoazen (tr), Stanford UP 1998) 9. 60 ibid 9–10. 61 Giorgio Agamben, ‘What Is an Apparatus?’: and other essays (David Kishik and Stefan Pedatella (trs), Stanford UP 2009) 11. 62 ibid 14.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Enslavement as a Crime against Humanity 375 freedom or servitude of Moors bought by Christians in Europe extends, according to the usual laws.63

Despite this exemplary display of legal erudition, Amo is far much better known in the disciplines of history, philosophy, anthropology, and African studies than in law. Regrettably, the original manuscript of Amo’s first work, Dissertatio Inauguralis De Jure Maurorum in Europa (1729), an inaugural law dissertation on the rights of Africans in Europe, is lost. The text was, however, summarized in the Annals of the University of Halle as arguing that African kings, similarly to their European counterparts, had been vassals of Rome. Therefore, the principle that all the Roman citizens were free, including those who lived in Africa, was violated by the slave trade. That is to say, the European slave trade was a violation of the common heritage of Roman law right from the very beginning. The primary distinction in Roman law of which Amo was writing was that between slaves and freemen.64 Amo relied on the Justinian Code, particularly the Pandects, to mount the argument that Africans were vassals of Rome via their Kings who had pledged allegiance to the Roman emperor.65 This allegiance was constantly renewed through the issue of imperial patents including by Justinian himself.66 A secondary argument based on the first was that this position was essentially strengthened because the Christian emperors were precluded from enslaving their fellow Christians.67 Only after mounting these legal and theological arguments does Amo turn to the violations of elementary principles of humanity as a third justification for the criminality of slavery.68 The rationalist thinkers Christian Thomasius and Christian von Wolffe influenced Amo himself.69 There are certain readily identifiable opportunities to link Amo’s scholarship and example to the present, particularly in relation to the emancipatory potential of law with regard to the international crime of slavery. Amo proposed the novel, and not beyond doubt, assertion that slavery was already illegal under the existing law. This argument, unusual for the early anti-slavery discourse, was not based on morality or shared humanity per se but on the deprivation of personality. Currently the law puts beyond doubt what was already clearly wrong at least to some observers. The perspicacious reve lation of Amo’s work was that the concept of humanity was impoverished—deficient even—as a legal concept. This is clearly illustrated in the human right to recognition as a person. As such, it is a prerequisite to be recognized as a person in order for a human to 63 Excerpted from Wöchentlichen Hallischen Frage-und-Anzeigungs Nachrichten (28 November 1729), 271–74. Translation from with some minor grammatical changes verified by native German speaker Jens Kaiser from the University of Jena. A copy of the original document is on file with the author and editors. 64 Buckland, Roman Law of Slavery (n 4) 735. 65 Hallische Frage-und-Anzeigen Nachrichten (28 November 1729) ss 271–73 cited in William Abraham, ‘The Life and Times of Anton Wilhelm Amo’ (1964) 7 Transactions of the Historical Society of Ghana 60, 68 (hereafter Abraham, ‘Life of A W Amo’). See also William E. Abraham, ‘Anton Wilhelm Amo’ in Kwasi Wiredu (ed), A Companion to African Philosophy (Blackwell 2006) 191–99. 66 Abraham, ‘Life of A W Amo’ (n 64) 69. 67 ibid 70. 68 ibid. 69 Reginald Bess, ‘A.W. Amo: First Great Black Man of Letters’ (1989) 19(4) J of Black Studies 387, 389.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

376 Edwin Bikundo have rights. Which is to say the right to have rights in the first place. That problematic gulf between the person and the human has lost none of its contemporary relevance. This has implications for emancipation through criminalizing slavery, from the Enlightenment right up to its classification as a crime against humanity in the Rome Statute of the ICC.70 In this context, it would take a certain amount of self-reflexive reading of the law to give the person/human distinction its due weight. That way, structural conditions as well as individual acts can come into the purview of decision makers as well as of policy makers. This is emphatically not a change in the legal definition but only a gesture towards a fuller appreciation in practice of the current legal definition.

V. Conclusion This chapter began by demonstrating that enslavement is grounded on civil and political rights rather than economic, social, and cultural rights for historical and political reasons. It then examined how that favouring of one limb of human rights over another worked out in detail by splitting the notion of human through introducing the juridical concept of person. Once that split in the human was demonstrated through the example of enslavement, the chapter turned to some theoretical implications for this by engaging with the work of Agamben and revisiting the thesis of the first African to go a Western university, Anton Wilhelm Amo’s Dissertatio Inauguralis De Jure Maurorum in Europa (1729) in order to single out the dual role that law has played and continues to play in the progression of our understanding of becoming human—anthropogenesis—a project that as such remains unfinished and is still ongoing. The law both pro- and anti -slavery has been and continues to be used in many ways to obscure the otherwise mundane and unremarkable fact that we all already are and indeed have always been human. Because the Slavery Convention of 1926 does not mention humans once, it (and the instruments as well as decisions unreflectively following in its train) remains reliant on the artificial legal construct of the person to veil over, obscure, and, in the final analysis, silently exclude the actual human in a way not even Roman law did. Recognition in law can in no way substitute for the necessary material conditions of life upon which humans are dependent and whose deprivation enables enslavement.

70 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, UN Doc A/CONF.183/9 (in force 1 July 2002) arts 7(1)(c) and (g), 8(2)(b)(xxii) and (e)(vi).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Section V

MODA L I T I E S

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

chapter 16

A Cr imi nol ogica l A pproach to th e ICC’s Con trol Th eory Alette Smeulers1

I. Introduction The attribution of individual criminal responsibility for international crimes is the most essential, but also the most problematic, task international criminal courts and tribunals have to deal with. Although national judges have to accomplish a similar task, the one of their colleagues within the international criminal justice realm is far more complex. International courts focus on crimes committed within a period of structural violence in which up to several hundreds, thousands, and in some cases even millions of people are involved. The sheer number of people makes it practically impossible to figure out exactly who did what and to try everyone accordingly. Another complicating factor is that those who are most responsible for the crimes—the people at the top of the chain of command who design the policies, the so-called criminal masterminds or auctores intellectualis—are usually the ones furthest removed from the crime scene. International criminal lawyers have struggled with the question of how to qualify their role and legally construe their culpability. During the early war crimes trials in Nuremberg, the prosecutors and judges relied on theories of conspiracy and qualified a number of organizations as criminal organizations. The ICTY chose the theory of joint criminal enterprise (JCE), while the ICC

1 Alette Smeulers is professor of criminal law and criminology of international crimes at the University of Groningen in the Netherlands. She wishes to thank the editors of this volume for their useful comments on the first draft of this chapter.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

380 Alette Smeulers adopted the control theory.2 These theories have all been fiercely debated and heavily criticized within academic scholarship, and even the judges themselves do not always seem to agree on the value and practical applicability of these theories.3 Within the legal debate, one of the underlying questions is whether international crimes need a sui generis mode of liability. Some scholars argue that because international crimes constitute a different kind of criminality and the perpetrators of such crimes are subsequently a different kind of perpetrator, there is a need for a separate and new type of individual criminal responsibility.4 Others are sceptical and argue in favour of relying on liability concepts used within national criminal law systems.5 International criminal law is still struggling with the question of how to fairly attribute individual criminal responsibility for international crimes, and a satisfactory solution with unanimous support has not yet been found.6 The aim of this chapter is not to provide yet another legal analysis or to give an answer as to which theory is best from a legal perspective. The aim is to take a criminological approach to the theories of co-perpetration and, in particular, to compare the legal requirements in Article 25 of the Rome Statute (hereafter ICC Statute), and the ICC case law adopting the control theory, with the social reality in which international crimes are committed. The main question is whether Article 25 and its subsequent case law can adequately deal with its task to fairly attribute individual criminal responsibility to the different types of perpetrators involved. I will argue that most perpetrators of international crimes are ordinary and otherwise law-abiding citizens who commit their horrendous crimes within a very particular political, ideological, and institutional context.7 Without relieving the hands-on per petrators of their responsibility, I will argue that the political leaders and criminal masterminds should be held responsible for creating this context, which instigates and induces others to commit such crimes. Liability for creating such a context (which can be qualified as an atrocity-producing situation) cannot easily be fitted under the current scope of Article 25 of the ICC Statute, as the article does not explicitly refer to such a role. However, this must be done to fairly attribute individual criminal liability to those most responsible. The control theory (as adopted by the ICC) seems to make 2 See for an excellent overview Lachezar Yanev, Theories of Co-perpetration in International Criminal Law, PhD-thesis, (Tilburg University 2016). 3 See the dissenting opinions of Judge Fulford in Prosecutor v. Lubanga [2014] ICC 14 March 2014, and of Judge Van den Wyngaert in Prosecutor v. Katanga [2014] ICC 7 March 2014 and her concurring opinion in Prosecutor v. Chui [2012] ICC 18 December 2012. 4 Kai Ambos, Treaties on International Criminal Law—Volume I: Foundations and General Part (Oxford University Press 2013); Mark A. Drumbl, Atrocity, Punishment and International Law (Cambridge University Press 2007); Herbert Jäger, Makrokriminalität (Suhrkamp 1989). 5 Elies van Sliedrecht, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (Asser University Press 2003). 6 See a.o. Harmen G. van der Wilt, ‘The Continuous Quest for Proper Modes of Liability’ (2009) 7 JICJ 307, who concluded this in 2009. It is, however, still very much true today. 7 See more extensively Alette Smeulers and Fred Grünfeld, International Crimes and Other Gross Human Rights Violations—A Multi- and Interdisciplinary Textbook (Martinus Nijhoff 2011).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Criminological Approach to the ICC’s Control Theory 381 this type of liability possible, and may therefore be applauded from a criminological perspective. The second section of this chapter will focus on the nature and typical features of international crimes. The third section will focus on the perpetrators of international crimes and their role within the commission of these crimes. In the fourth section, I will assess whether the legal requirements of the control theory (as applied by the ICC) sufficiently match the social reality of international crimes. I argue for a refinement of some elements, such as ‘effective’ contribution, in order to better attribute individual criminal responsibility on the basis of actual blameworthiness.

II. International Crimes: A Different Type of Criminality? This section will focus on the features of international crimes, to assess whether they are a different type of criminality and, if so, to what extent. The first typical feature is that international crimes are by definition manifestations of collective violence, in which many people are involved. Although the underlying acts of international crimes such as murder, torture, and rape are ordinary crimes, the outstanding legal characteristic is that they can only be qualified as international crimes if they are committed as part of a more structural form of violence. This follows from the legal definitions found in Articles 6–8 of the ICC Statute: there should either be an armed conflict (war crimes), the crimes should be part of a widespread or systematic attack (crimes against humanity), or should be committed with the purpose to destroy a group in whole or in part (genocide). The second feature of international crimes, which closely relates to the first, is that they can be qualified as manifestations of system criminality, which means that col lective entities are involved in the commission of these crime. The term system criminality was used by Röling and can be defined as: ‘a situation where collective entities order or encourage international crimes to be committed, or permit, or tolerate the committing of international crimes.’8 The source of the behaviour is thus not the individual, but the collective. These collectives are hierarchically structured units in which policies developed at the top of the chain of command travel through the various units and are ultimately translated into orders given to the low-ranking officials: the foot soldiers.9 The people who physically commit international crimes do so because they operate in a collective that incites, urges, requires, or orders them to commit such 8 Andre Nollkaemper, ‘Introduction’ in Andre Nollkaemper & Harmen van der Wilt (eds.), System Criminality in International Law (Cambridge University Press 2009). 9 See, for an extreme example, the case of Nazi Germany and the role of the bureaucracy: Raul Hilberg, The Destruction of the European Jews (first published in 1961, Holmes & Meier 1985); Zygmunt Baumann, Modernity and the Holocaust (Polity Press 1989).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

382 Alette Smeulers crimes. The crimes can consequently be qualified as crimes of obedience. Kelman and Hamilton, who developed the term crime of obedience, defined it as ‘an act performed in response to orders from an authority that is considered illegal or immoral by the international community.’10 The third feature of international crimes is that they are in essence political crimes, as they are typically committed as part of a political campaign or within a political conflict. The collective entities involved in the conflict always aim to gain or maintain political power. The parties involved can be the state and state authorities abusing their power, or rebel forces, political opponents and/or terrorist groups challenging the power and legitimacy of the state. Although not every individual participant is necessarily ideo logically driven, the underlying conflict is always political and/or ideological in nature.11 If we want to understand the behaviour of the people involved, we need to take the particular political, ideological, and organizational context into account. Unlike ordin ary criminals, perpetrators of international crimes commit their crimes on instigation or with approval of their superiors in hierarchically structured collectives, and thus in line with the prevailing normative order. Consequently, the prime detriments of their behaviour are obedience and conformity rather than deviance, as is the case with most ordinary and common criminals.12 Although some ordinary crimes do share some of these features, we can nevertheless conclude that international crimes, indeed, are different from ordinary crimes. In the following subsection, I will explain the way and extent to which context can shape human behaviour.

A. The Political and Ideological Context As stated already, international crimes are always committed as part of a political campaign or within a broader political conflict. This means that they are committed in a setting in which the ordinary normative and legal framework or the norms that can be derived from this framework are set aside by either or both sides. This can mean that the warring parties: (i) either reject these norms (as the Islamic State is currently doing in relation to many human rights); (ii) give a very limited and restrictive meaning to 10 Herbert Kelman and V. Lee Hamilton, Crimes of Obedience (Yale University Press 1989). 11 See, for a typology of perpetrators reflecting the wide variation in motives, Ronald Crelinsten, ‘In Their Own Words: The World of the Torturer’ in: Ronald Crelinsten & Alex Schmid (Eds.), The Politics of Pain—Torturers and Their Masters (COMT 1993); Michael Mann, The Dark Side of Democracy— Explaining Ethnic Cleansing (Cambridge University Press 2005) and Alette Smeulers, ‘Perpetrators of International Crimes: Towards a Typology’ in: Alette Smeulers & Roelof Haveman (Eds.), Supranational Criminology: Towards a Criminology of International Crimes (Intersentia 2008). 12 Within criminological theorizing criminal behaviour is usually equated with deviant behaviour. This can explain why criminologists have ignored studying international crimes for a long time and that up until today international crimes are more extensively studied within political science than within criminology.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Criminological Approach to the ICC’s Control Theory 383 them so that their violations cannot be qualified as violations of these norms (as the United States did in the War on Terror when giving a very restrictive interpretation of the definition of torture); or (iii) believe that there are higher principles that can override these norms in particular circumstances (this is the case when states rely on the internationally widely recognized right to self-defence or national security doctrine). States faced with a political or terrorist threat they cannot handle tend to argue that because national security is threatened, the state has the right to protect itself using all possible means.13 Both the national legal framework and international human rights— which are meant to limit the state’s legitimate use of force and violence—are partially, temporarily, or sometimes completely set aside.14 Because states are sovereign, they believe they have the right to do this. Political opponents, rebel groups, and terrorist organizations who fight the state generally do so because they dispute the state’s legitimacy or deny the political powerholders’ right to rule. Just like the state, they no longer consider themselves to be bound by rules of the international community, and feel that they can legitimately violate these rules in particular situations. In other words, they rely on their right to resist an oppressive and abusive regime. Both sides feel they are involved in a fight of good against evil, but obviously have different opinions on who is good and who is evil. Usually, the violations are legitimized and justified by an ideology in which either the safety of the state (e.g. national security doctrine) or the right to resist are the overriding principles that give the warring parties, at least in their own eyes, the right to use (extreme) violence. Article 33(2) of the ICC Statute states that ‘orders to commit genocide or crimes against humanity are manifestly unlawful’. The law assumes that everybody who is faced with an order to commit an international crime recognizes that this is an unlawful order, but this is not necessarily the case. First of all, moral perceptions are not fixed and, as history has shown, can change overtime. For instance, today we qualify both torture and slavery as examples of the most extreme crimes that shock the human conscience, but for many years the practice of torture and the use of slaves was a common, perfectly legitimized, and lawful practice. This shows that there are no overriding moral prin ciples that each and every individual should at all times instinctively recognize. Secondly, people very much tend to look at others in order to figure out how to judge and qualify a situation. In other words, we tend to define what is right and wrong based to a large extent on what we see and hear around us. We look at others to judge what is right and wrong, normal and abnormal, socially acceptable and unacceptable, and what

13 There are many examples of such a political rhetoric. See for instance the US government after 9/11 when it launched the War on Terror, or more recently Al-Assad, the head of state of Syria, who is faced with a civil war in his country and Erdogan who is taking extreme measures to enhance his position after the failed coup d’état. 14 Of course the extent differs per state. Violent dictatorial states will do this to a larger extent than democracies that feel their national security is threatened.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

384 Alette Smeulers kind of behaviour is required in a specific situation.15 We learn what the prevailing socially accepted norms and values within a particular situation are via a process of socialization. Political leaders, whether the ruling elite or the political opposition, play an important role in this as they can largely shape our perception of right and wrong, especially in relation to the use of force and violence. In a political conflict we look at them for guidance, as they are vested with a kind of absolute and sovereign power and their main task is to protect us. They are thus in a position to convince subordinates that their position entitles them to authorize certain forms of violence, and that this authorization is legitimate. Ultimately, this can lead to a situation in which people can come to see extreme violence such as genocide, crimes against humanity, and war crimes as a justified and legitimate means to fight their enemies and thus no longer see the manifest illegality of such behaviour. Indeed, research on perpetrators of international crimes has shown that many of them can come to believe that, when committing horrendous crimes, they are nevertheless doing the right thing.16

B. The Organizational and Social Context In addition to the political and ideological context, the organizational context in which people operate has an enormous impact on them as well. Social-psychologists have shown that humans are social beings who are very susceptible to social influence by the people around them and the context in which they find themselves.17 Although we like to see ourselves as free and independent human beings—and the law assumes that we, indeed, are—our behaviour is largely shaped by the social context in which we operate and the people around us. Collective entities can differ very much from each other; they can differ according to size, organizational structure, legal nature, extent to which they are free or more coercive, and the overall aim of the organization. All collective entities shape the behaviour of their members, but the extent of this influence depends very much on the type of group, unit, and organization: this can vary from limited to extreme. Some groups exert extreme pressure on their members to accept certain social rules, norms, and values, and sometimes new members must pass certain tests to show they

15 Especially the research on bystanders by, amongst others, Darcy and Latané that shows that people have a very strong tendency to look at others to see how they should qualify a situation. When people are confronted with an emergency—a fire or someone drowning—bystanders tend to look at others to decide whether they indeed also qualify the situation as an emergency that requires action. If others do not seem to respond people tend to adapt their own position on how to qualify a situation and do not qualify the situation as an emergency that requires action either. John Darley and Bibb Latané, ‘Bystander Intervention in Emergencies: Diffusion of Responsibility’ (1968) 8 Journal of Personality and Social Psychology 377. 16 See for many examples of this in my earlier publications such as Alette Smeulers, ‘What Transforms Ordinary People into Gross Human Rights Violators’, in Sabine Carey and Steven Poe (eds.), Understanding Human Rights Violations: New Systematic Studies (Ashgate Publishing Ltd 2004) 239. 17 See, e.g., Elliot Aronson, The Social Animal (Worth Publishers 2011).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Criminological Approach to the ICC’s Control Theory 385 are worthy of group membership.18 In addition to the external pressure, group members also feel a strong internal pressure to adapt and conform to the prevailing norms within the groups, units, and organizations they are members of. The fact that we are social beings also means that we have a strong urge to belong and search for groups, units, organizations, or mass movements in which we feel comfortable.19 If we want to become a member of a group, we want to identify with the group and strive to prove ourselves and show that we fit in.20 We instinctively have a strong tendency to conform and accept the social norms and values that are predominant in the group. In any case, we certainly do not want to stand out, as was made explicit in many social-psychological experiments, such as the one by Asch on conformity.21 Groups, units, organizations, and mass movements—in short, collective entities—generally have a strong impact on our behaviour, sometimes without our full awareness. International crimes are usually committed by people within militarized units. Military units are well-known for controlling human behaviour. They are hierarchically structured and orders generally go through a very clear chain of command in which subordinates must obey the orders of their superiors. Defying an order usually leads to disciplinary sanctions or even criminal prosecution. In some countries, desertion or failure to obey a military order can be punished by death. Once in the army, recruits feel like they are in a completely different world. Soldiers are required to wear uniforms, which deindividualizes and depersonalizes them, making them feel less responsible as individuals, but more responsible as members of their particular military unit. Furthermore, they must go through a training programme designed to ingrain conformity and obedience. In order to stress and emphasize their transformation from civilians into soldiers, recruits generally have to go through a period of (extensive) ragging and initiation rites.22 They are told that they are now mere instruments in the hands of the state and that when they use violence they do so on behalf of the state. The whole environment in military organizations (especially in dictatorships or countries involved in military conflicts) is designed to instil obedience and conformity in the recruits and to ensure that they unquestioningly obey orders. This is important in order to make the militarized unit an effective fighting force and to ensure that soldiers fight (rather than flee) when ordered to do so in a dangerous situation. Furthermore, soldiers are trained to use force and violence and to kill.23 The training programme is set up to ensure that 18 Such tests can be formal and legitimate such as an application procedure for a job, but can for instance in violent gangs also entail a test in which a group member has to show his or her loyalty to the group by for instance using violence or even killing a fellow human being. 19 See for a more extensive description Erich Fromm, Escape from Freedom (Rinehart & Co 1941). 20 See the social identity and self-identification theory in Tajfel’s work, a.o. Henri Tajfel and John Turner, ‘The Social Identity Theory of Intergroup Behaviour’, in Stephen Worchel and Willliam Austin (eds.), The Psychology of Intergroup Relations (Nelson-Hall 1986). 21 Solomon Asch, ‘Opinions and Social Pressure’ (1955) 193 Scientific American 31. 22 Donna Winslow, ‘Rites of Passage and Group Bonding in the Canadian Airborne’ (1999) 25 Armed Forces & Society 429. 23 See, e.g., Theodore Nadelson, Trained to Kill—Soldiers at War (The Johns Hopkins University Press 2005).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

386 Alette Smeulers soldiers overcome their natural resistance to using violence and killing a fellow human being.24 Such training programmes often include elements that desensitize group members to violence and elicit automatic responses to orders to shoot and kill. Training programmes of militarized units can go to extreme ends to control the behaviour of their recruits.25 A former torturer during the Greek colonel’s regime explained that the training programme was tough and led to a feeling of utter helplessness, which ultimately resulted in complete, blind and unquestioning obedience. He explained: ‘They changed us into instruments. People without a will of their own. Who obey . . . You were trained not to think.’26 The aim of (international) criminal law is to set normative standards by qualifying certain behaviour as criminal and punishable. Individuals can only be held responsible if they have intentionally committed a crime. They can only be held responsible if they have a guilty mind and if there is a personal fault. The underlying assumption is that, to be culpable, individuals must have control and a certain level of free will to decide whether to commit a crime. The freedom of choice is, however, restricted in these situ ations, especially for recruits of militarized units. These organizations are hierarchically structured and subordinates are under a general and legal obligation to obey orders, especially in a period of armed conflict. Failure to obey orders is a serious offence and can be considered treason. It is, however, not only the coercive environment that makes people obey, but also the urge to do the right thing, to live up to the expectations. Especially in relation to an authority figure who is perceived as legitimate, people want to do the right thing, want to be good. They thus feel a strong internal pressure to obey the authority even if they are given illegal orders. Perhaps even more importantly, they may not recognize the illegality of the order when given by a figure who carries an official state function and hence is seen as a legitimate authority. In most such circumstances, the legality of an order given by a legitimate authority may be considered as granted. In addition, people have a general tendency to obey orders, as was shown by Milgram in his (in)famous ‘obedience to authority’ experiment, in which he asked subjects to give electric shocks to fellow participants, with the majority of the subjects (65 per cent) complying.27 Research also shows that once people start following orders, this leads to a diffusion of responsibility: they no longer feel responsible for the outcome of their actions.28 It is important to be aware of the fact that in some extreme cases, such as the Nazi Holocaust, the entire extermination process was organized in such a way as to 24 Dave Grossman, On Killing: The Psychological Cost of Learning to Kill in War and Society (Little, Brown and co 1996). 25 A well-documented and extreme example is the Greek torture school. Janet Gibson and Mika Haritos-Fatouros, ‘The Education of a Torturer’ (1986) Psychology Today 50, 56. Mika Haritos-Fatouros, The Psychological Origins of Institutionalized Torture (Routledge 2003). 26 Interview of Petrou in Your Neighbour’s Son. 27 Stanley Milgram, Obedience to Authority (Harper and Row 1974). 28 Emilie Caspar, Juila Christensen, Axel Cleeremans, and Patrick Haggard, ‘Coercion Changes the Sense of Agency in the Human Brain’ (2016) 26 Current Biology 1.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Criminological Approach to the ICC’s Control Theory 387 deliberately ensure that there was a division of labour in which people felt that they were no more than a small cog in a big machine. Within this bureaucratized and industrialized but genocidal process, moral responsibility was substituted by a technical responsibility. Violence, torture, and genocide became a technique; mass murder and genocide an organized routine.29 Hilberg concluded: ‘It must be kept in mind that most of the participants of genocide did not fire rifles at Jewish children or pour gas into gas chambers . . . most bureaucrats composed memoranda, drew up blueprints, talked on the telephone and participated in conferences. They could destroy a whole people by sitting at their desks.’30 This, of course, is not the case when small, independent fighting units commit atrocities, but reflects social reality when large (state sponsored) organizations are involved in the commission of international crimes.

C. The (Social-)Psychological Context As noted in the previous subsection, obeying orders sometimes leads people to withdraw into an ‘agentic state’.31 They no longer feel fully responsible for their own deeds and behaviour. Research on perpetrators of international crimes has shown that almost all perpetrators are shocked after they commit their first crime.32 They feel bad about what they did. This phenomenon is referred to in academic literature as animal pity or perpetrators disgust and leads to the nagging feeling of cognitive dissonance, which needs to be resolved.33 This sets in motion a series of defence mechanisms (some conscious, some unconscious) in which perpetrators desperately try to convince themselves that they are doing the right thing; that what they did was necessary and legitimate and, within the given situation, the behaviour is not criminal and immoral, quite the contrary. In other words: out of a psychological urge to sooth their own conscience, perpetrators who just committed a crime start to rationalize and justify their own behaviour.34 This process is supported by their environment and ultimately transforms ordinary p eople into perpetrators who can commit terrible atrocities with a clear conscience.35 Ervin Staub has called this process the continuum of destructiveness and explained that people learn by doing: each step in the continuum of destructiveness makes the following step possible, even likely. Staub explains: ‘Once perpetrators begin to harm people, the resulting psychological 29 See the work of Bauman (n 9) and Hilberg (n 9), but also Hannah Arendt, Eichmann in Jerusalem—A Report on the Banality of Evil (Penguin Books 1964). 30 Hilberg (n 9) 1024. 31 Milgram (n 27). 32 Alette Smeulers, ‘Auschwitz and the Holocaust Through the Eyes of the Perpetrators’ (1996) 50 Driemaandelijks Tijdschrift van de Stichting Auschwitz 23. 33 Ditte Marie Munch-Jurisic, ‘Perpetrator Abhorrence: Disgust as a Stop Sign’ (2014) 45 Metaphilosophy 270. 34 Ervin Staub, The Roots of Evil—The Origins of Genocide and Other Group Violence (CUP 1989). 35 See Smeulers (n 16). See also James Waller, Becoming Evil: How Ordinary People Commit Genocide and Mass Killing, (2nd ed, OUP 2007).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

388 Alette Smeulers changes make greater harm-doing probable’.36 Zygmunt Bauman agrees: ‘None of the steps was made inevitable by the already attained state of affairs, but each step rendered rational the choice of the next stage on the road to destruction.’37 According to Bauman, the key factor in the social process leading to genocide is that ‘the successive stages are arranged according to the logic of eviction from the realm of moral duty’.38 Kelman and Hamilton, too, have noted that the underlying social-psychological processes that characterize crimes of obedience are authorization, dehumanization, and routinization, which all together can explain why perpetrators can come to see the horrendous crimes they commit as something that needed to be done—as something that was good.39

D. Conclusion At Nuremberg, the judges indicated that international crimes are ‘committed by men not by abstract entities’.40 While this is true, these men do operate within a particular context, which is an abstract entity. As explained in this chapter, this context to a large extent shapes their behaviour. Within such a context, people no longer operate as fully free and independent individuals, but take up new identities: state functionaries in a bureaucracy or soldiers in an army generally tend to abide by the rules and norms required to do their jobs well. Hence, these organizations (read: abstract entities) do play an important role in the commission of international crimes. They do so not only by forcing people to conform and obey, but more importantly by ensuring that the subordinates no longer see and qualify their behaviour as criminal and immoral, but rather as necessary and legitimate. Most international crimes are crimes of obedience (committed in a context where the crimes are supported by an authority), and the perpetrators of these crimes are obedient followers rather than deviant individuals. This means that their behaviour is to a large extent shaped by the environment and context in which they operate. I am not saying that people are automatons and that within coercive military environments they completely lose their autonomy and independence; generally speaking, this is not the case. However, behavioural options are often limited within such coercive organizations. The environment is extreme and coercive and it takes a lot of courage, wisdom, and insight to escape the social pressure to conform and obey, to put oneself outside of the group, unit, or organization by disobeying an order or refusing to go with the flow. In such extreme circumstances, many just try to survive. Disobeying an order can only be done with great risk to oneself. In many cases, the pressure used can be direct threats (as for instance in the Erdemovic case),41 while in other cases the pressure and threats are more subtle and less explicit, 36 Staub (n 34) 79. 38 Bauman (n 9) 192. 40 IMT Trials 22, 466.

37 Bauman (n 9) 191. 39 Kelman and Hamilton (n 10). 41 Prosecutor v. Erdemovic (ICTY, 7 October 1997), IT-96-22-A.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Criminological Approach to the ICC’s Control Theory 389 but still powerful. And in some cases, it is just an internal pressure to conform and obey within the given context. One of the most illustrative examples described in literature on the social pressure in such situations is provided by Browning in his book Ordinary Men on Reserve Police Battalion 101. When asked why they followed the order to execute Jews, some of the recruits answered that they did so because they did not want to be seen as cowards.42 This example shows not only how extreme social and organizational pressure can be, but also how this can distort a human being’s perception of what is right and wrong and make them believe that committing genocide within the given circumstances is the right thing to do.

III. Perpetrators of International Crimes International crimes are, as stated in this chapter, manifestations of collective violence in which many different individuals are involved, sometimes even up to several millions, as in Nazi Germany. These individuals have different positions, roles, and motives. Some play a large role, others a minor one; some are close to the crime scene, others far removed; some are involved in planning and organization, and others in execution. Still, others are merely involved as accessories and accomplices offering services or delivering weapons. It is hard to compare the people involved with each other, and the more people involved, the harder it gets to figure out who did what. We should, however, distinguish between two types of perpetrators: those who control the context in which international crimes are committed, and those who merely operate within this context. In theory, this difference is very clear cut: the political powerholders like a head of the state or prime minister control the context, while the foot soldiers operate within it. In practice, this distinction might not be so clear-cut. For example, a head of state can be a figurehead and under the strong influence of others. As well, there are groups that operate within a grey zone. They are less in control than heads of state, but more so than foot soldiers. It is also true that power is never absolute (even a head of state needs support) and powerlessness is seldom complete (even a foot soldier has the power to decide how to act within a particular situation). Nevertheless, the distinction between those creating the political, ideological, and social context and those operating within it is crucial. As explained, it is the context itself that pressures individual subordinates to conform and obey, and provides the subordinates with the belief that they are doing the right thing even when obeying illegal orders. We can consequently say that political leaders and their close associates, who adhere to a violent or even genocidal policy, actually put their subordinates in an atrocity-producing situation. 42 Christopher Browning, Ordinary Men—Reserve Police Battalion 101 and the Final Solution in Poland (Aaron Asher Books 1992).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

390 Alette Smeulers If international crimes are induced and supported by the state, then the entire state can turn into a killing machine. The chain of command starts with a so-called criminal mastermind. This can be the head of state, another political powerholder, a military leader or any other high-ranking member within the government, a military unit, rebel organization, or terrorist group. The chain of command then runs through different organizations/levels such as the military and police. However, in extreme cases such as in Nazi Germany, it runs through the entire state apparatus, involving millions of people in a bureaucracy of death. Those at the top of the chain of command (head of state and, for instance, the members of the government) decide on the overall policy, while top leaders within the state bureaucracy, the military and police, and the specialized units organize and plan the execution of the policies. They are usually far removed from the crime scene. The hands-on perpetrators of international crimes are those who physic ally execute the policies: they are the ones who maim, kill, torture, and rape with their own hands. They are usually the foot soldiers close to the crime scene, and they literally have blood on their hands. They physically commit the horrendous crimes. When confronted with extreme mass atrocities, we instinctively tend to believe that the hands-on perpetrators must be mentally disturbed or insane, and certainly sadists. However, research has shown that most perpetrators of international crimes are ordin ary, average people with no criminal record or violent past; prior to the period of armed conflict, they were law-abiding citizens.43 As already explained, the low-ranking perpet rators commit their crimes in a very particular context, in which they feel a strong pressure to use (extreme) violence and also feel that there is an urgency and entitlement to do so. They feel that the violence is necessary and legitimate, and they need to protect their country and/or their people.44 In other words, they are ordinary people in extraordinary circumstances. What is actually meant by this is that the perpetrators are not necessarily born criminals, but only act criminally in a very particular context. The commission of crimes is situational and contextual rather than a result of predispositions. When studying the behaviour of the perpetrators and the context in which they operate, it becomes clear that most ordinary and average people would probably behave in a similar way. In other words, in certain circumstances, it does not take particularly vicious and cruel people to commit mass atrocities; it rather takes particularly courage ous and morally strong people not to do so. Again, this is not the same as saying that they no longer have any choice and that most perpetrators are mere automatons. They are not, and many of them (albeit not all) still have a choice. The point is that the social context is framed in such a way that some forms of extreme mass violence no longer seem to

43 Harald Welzer, Täter—Wie aus Ganz Normalen Menschen Massenmörder Werden (Fischer 2005); See Waller (n 35) and Raul Hilberg, Perpetrators, Victims, Bystanders—The Jewish Catastrophe 1933–1945 (Aaron Asher Books 1992); Smeulers (n 16). 44 See for an illustrative example the situation in Abu Ghraib: Seymour Hersh, Chain of Command— The Road from 9/11 to Abu Ghraib (Penguin Books 2004); Karen Greenberg and Joshua Dratel (eds.), The Torture Papers—The Road to Abu Ghraib (Cambridge University Press 2005); Philip Gourevitch and Errol Morris, Standard Operating Procedure (Penguin Press 2008).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Criminological Approach to the ICC’s Control Theory 391 be criminal in the eyes of the perpetrators. The people who create such a context are to a large extent responsible for the behaviour of the people operating within this context. Without denying the role and responsibility of the low-ranking foot soldiers who physically torture, maim, rape, and kill, the findings from social science research show how much the people who shape the context can influence the behaviour of those who operate within it. It follows that the people at the top of the chain of command, the crim inal masterminds and the so-called auctores intellectualis, share the heaviest burden of guilt because they created a context in which the commission of international crimes has become the natural (maybe even the inevitable) outcome of the ordinary course of events. They, rather than the low-ranking foot soldiers who are the mere instruments of the state, should therefore be qualified as the persons most responsible, and the foot soldiers as their instruments.45 The following section will focus on the ICC and the modes of liability it uses. The main aim is to assess the extent to which these modes sufficiently reflect the specific roles played by different kinds of perpetrators, and whether they sufficiently reflect the role of the political powerholders and military leaders who create the context in which others commit crimes.

IV. The ICC and the Concept of Individual Criminal Responsibility Individual criminal responsibility is defined in Article 25(3) of the ICC Statute, which is fairly detailed and longer than, for instance, Article 7(1) of the ICTY Statute. The provision in the ICC Statute distinguishes between: (a) ‘commits’; (b) ‘orders, solicits or induces’; (c) ‘aids, abets or assists’; and (d) ‘in any other way contributes’. There is thus no specific reference and mode of liability that seems to be explicitly meant for the criminal mastermind, the auctor intellectualis, who creates the context in which others commit international crimes.46 The modes of liability—planning, organizing, and conspiracy— are not specifically mentioned either.47 This is striking because, in a period of collective violence, the planners, organizers, and conspirers are usually fairly high up in the chain of command, and thus largely control the context in which others operate. If the ICC aims to prosecute the ‘most serious crimes’ (preamble and Article 1 of the ICC Statute), it must be able to focus on those who are the most responsible for these crimes, such as the criminal masterminds and their closest associates. In my view, the lack of statutory reference to these types of perpetrators should not be taken literally. From Parts II and III, it follows that without these top leaders who initiated the conflict and/or designed the genocidal or otherwise violent policies, international crimes would not have been committed. Their responsibility should be subsumed under one of the available modes 45 See also Harmen van der Wilt, Het Kwaad in Functie (Vossiuspers 2005). 47 In art 7 ICTY Statute, planning is mentioned.

46 Ibid 8.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

392 Alette Smeulers of liability. The question, however, is: how to legally construe the responsibility of these high-ranking perpetrators and which mode of liability to use? As the enumeration is exhaustive, the responsibility of the criminal masterminds needs to be construed according to one of the forms mentioned in Article 25 of the ICC Statute. In the following subsection, I will first focus on the alleged hierarchical structure of Article 25 and what the consequences of this are. I will then consider how we ought to construe the responsibility of the criminal masterminds.

A. The Difference between Principals and Accessories The detailed enumeration of the various modes of liability in Article 25(3) of the ICC Statute led to a discussion on the extent to which this paragraph is meant to represent a hierarchical structure and what the consequences of this would be. As the ICC Trial Chambers came to different conclusions,48 we can conclude that renowned inter national criminal lawyers and judges disagree on this issue.49 The consequence of acknowledging the hierarchical order would be that only ‘committing’ would entail a form of direct and principal liability, whereas all other modes of liability would be derivate and accessory.50 Specifically, ordering and inducing would then be forms of derivate liability and be less blameworthy and less morally reprehensible than committing. All scholars seem to agree that these consequences would be undesirable.51 It does not seem fair to qualify superiors who order, solicit, and induce their subordinates (the hands-on perpetrators) to commit crimes as accessories, while the hands-on perpetrators are qualified as principals. Van den Wyngaert is one of the ICC judges who has strongly voiced her opinion on this point. In her concurring opinion in the Chui case, she notes that ‘the leadership element must not necessarily find expression in a particular form of participation but can equally be reflected in sentencing.’52 This can be questioned: in order to be perceived as just by the general public, judicial decisions should attribute criminal responsibility according to the level of culpability. The criminal masterminds are the main perpetrators: they initiate, instigate, and induce others by creating such a context. 48 Trial Chamber I of the ICC concluded that art 25 ICC represented a hierarchical structure of modes of liability. Judgment pursuant to art. 74 of the Statute, Lubanga, Situation in the DRC, ICC-01/04– 01/06–2842, TC-I, ICC 14 March par. 999. whereas ICC’s Trial Chamber II concluded the opposite, in ICC 7 March 2014, Katanga Trial judgment, pp. 1383–7. 49 Kai Ambos, ‘The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehension Analysis of the Legal Issues’ [2012] JICJ 115 at 144 believes it does, while Judges Fulford and Van den Wyngaert disagree. 50 Not all countries recognize the principal difference between principal liability and derivate liability. See Yanev (n 2) 9–10. 51 Fulford and Van den Wyngaert therefore reject the proposition that there is a hierarchical order, while Ambos, who believes there should be a hierarchical order, does not agree on qualifying planning as a derivate responsibility. 52 Prosecutor v. Chui [2012] ICC 18 December 2012 [26].

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Criminological Approach to the ICC’s Control Theory 393 Consequently, they should receive the highest share of the blame: not just by giving them high(er) sentences, but also by qualifying them as such. Research has shown that for victims it is important that their victimization, as well as the wrongs and injustices committed to them, are officially acknowledged.53 It thus seems logical that pinpointing the state and its functionaries as the wrongdoers is equally important if the state and its political leaders played a crucial role. This is especially true if the state has officially sanctioned the crimes committed against them and thus provided the hands-on perpetrators with a legitimization for doing so. Also, lower ranking perpetrators would probably not consider justice as fair when they realize that they—who had such limited choices—are considered principals while the powerful people putting them in such a situation are merely considered accessories. It does not seem that the length of the sentence can make up for the loss of fairly attributing individual criminal liability on the basis of blameworthiness. If a distinction between principals and accessories is made, I suggest that it is prefer able to merely qualify the political leaders and powerholders as having principal responsibility for crimes against humanity and genocide. The responsibility of the foot soldiers and hands-on perpetrators (who are the instruments) would then be secondary in relation to crimes such as genocide and crimes against humanity. According to the current case law, the mens rea of lower-ranking perpetrators for crimes against humanity requires the ‘intent to commit the underlying offence plus the knowledge of the widespread or systematic practice constituting the general context of the offence.’54 Thus knowledge of the widespread nature enhances the guilt and blameworthiness of a lowranking officer. From a criminological perspective, this is problematic because this knowledge would increase the pressure on the individual, especially when they are lowranking. Widespread occurrence could make them believe that the ordered crimes are nothing out of the ordinary since everyone else is committing them. From a criminological and psychological perspective, such knowledge should work in mitigating the individual’s guilt rather than aggravating it. Having studied international crimes for many years, I fail to see how the lowest ranking foot soldiers can be held responsible as principals for large scale crimes such as genocide and crimes against humanity. Qualifying the criminal masterminds and their close associates as the principals and the foot soldiers as their accomplices and accessories would better reflect the social reality and the level of culpability.55 In relation to the underlying ordinary and common crimes such as murder, torture, and rape, hands-on perpetrators would, of course, have principal liability. In order to ensure that the law is understandable and just, I believe the law should take the principle of fair-labelling into account. 53 Stanley Cohen, ‘State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past’ [1999] Law and Social Inquiry 7. 54 Antonio Cassese, International Criminal Law (Oxford University Press 2003) 106. 55 I fully agree with Ambos who states that: ‘the new focus on top-down instead of bottom-up responsibility, i.e. that liability for macro criminality must be devised not as a variant of individual liability but with a focus on the criminal apparatus or organization responsible for the atrocities.’ See Kai Ambos, ‘A Workshop, a Symposium and the Katanga Trial Judgment of 7 March 2014’ [2014] JICJ 4.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

394 Alette Smeulers

B. Commission via Organizational Control? A second point of debate has been on the question of how to fit the responsibility of criminal masterminds under Article 25(3) of the ICC Statute.56 This provision explicitly states that a person can commit a crime alone, together with another or through another person. The latter is especially crucial in relation to international crimes and is generally understood as an important acknowledgement of the mode of liability of indirect perpetration or, in other words, the perpetrator behind the perpetrator. In its case law so far, the ICC has relied on the control theory to legally construct the individual criminal responsibility of criminal masterminds under this provision. The control theory was developed by the German legal scholar Claus Roxin in his seminal work ‘Täterschaft und Tatherschaft’.57 Roxin noted that the law initially recognized only two forms of indirect perpetration: via coercion and via deception. In both cases the physical perpetrator is not responsible, but merely controlled by the indirect per petrator. He argued that there should be a third form of indirect perpetration based on control via organized power structures. An important difference compared to the two other forms of indirect perpetration is that this type of perpetration does not deny the responsibility of the direct perpetrators.58 The control theory is based on the belief that people can control others via organizations and that they can thus influence and control the will of the people functioning within them. The indirect perpetrators have control over the organization and, as such, determine whether the crime is committed. The low-ranking officials and subordinates function as cogs in a machine; the outcome of the process is automatic. These subordinates do not have the power to frustrate the commission of the crime because they can easily be replaced. The indirect perpetrator does not need to personally know the hands-on perpetrator as, according to Roxin: ‘the individual is an anonymous interchangeable figure, a cog in the machine of the power structure that can be replaced at any time. . . . The decision-making freedom of an undeceived, uncoerced actor, is to the initiator, no obstacle to the criminal goal.’59 As of its very first decision, the ICC relied on the control theory to construe the individual criminal responsibility of criminal masterminds.60 Since the crucial criterion is the ‘control over the crime’, both the physical perpetrator and the masterminds (who control the perpetrator via the organization) are liable. Weigend explains that the criminal mastermind does not need to have ‘immediate personal control over each soldier who committed the crimes in question, the main issue is how they “controlled” the perpetration of offences.’61 The Pre-Trial Chamber further clarified which criteria should be met in order to conclude that criminal masterminds control their organizations: 56 This discussion is by the way closely related to the earlier one of the alleged hierarchy of art. 25 ICC. See Prosecutor v. Chui [2012] ICC 18 December 2012 [6] (Judge van den Wyngaert). 57 Gerhard Werle and Boris Burghardt, ‘Claus Roxin on Crimes as Part of Organized Power Structures’ (2011) 9 JICJ 191. 58 ibid 198. 59 Werle and Burghardt (n 57) 199. 60 Ambos (n 49). 61 Thomas Weigend, ‘Indirect Perpetration’ in Carsten Stahn (eds.), The Law and Practice of the International Criminal Court (OUP 2015) 545.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Criminological Approach to the ICC’s Control Theory 395 The chamber finds that the organization must be based on hierarchical relations between superiors and subordinates. The organization must also be composed of sufficient subordinates to guarantee that superior’s orders will be carried out, if not by one subordinate, then by another. These criteria ensure that orders given by the recognized leadership will generally be complied with by their subordinates.62

Case law has furthermore established that the indirect perpetrator’s contribution must be essential. This has been explained as sine qua non—meaning that the indirect perpet rator has the power to frustrate the commission of the crime.63 In practice, this requirement led to a heavily criticized reversal of the burden of proof. In my mind, the strength of the control theory is that it adequately reflects the social reality of state-sponsored international crimes. As explained in Parts II and III, criminal masterminds control the context in which others operate, and this context is often an organized power structure. It must be admitted, though, that the control theory is harder to apply in so-called new wars in which the state has often lost control and many different (organized but sometimes also unorganized) groups fight each other.64 Overall, it can nevertheless be said that the control theory as a mode of liability seems to represent the actual role and blameworthiness of the criminal masterminds far better than the ordinary and more direct forms, such as ordering, instigating, and inducing, especially in cases of state-sponsored violence. These latter forms (ordering, instigating, and inducing) seem to imply a direct and personal relationship between the criminal mastermind and the foot soldiers. This relationship is seldom very direct, and the criminal mastermind uses indirect rather than direct means to influence the physical perpetrators’ behaviour. From a criminological perspective, the control theory should be supported.65 It better reflects the social reality of state-sponsored international crimes than conspiracy and the JCE concept. These theories are based on an agreement and on a common plan and/or common purpose. There is, however, no such plan between the criminal masterminds at the top of the chain of command and the rank and file soldiers who physically commit the crimes. First of all, the sheer number of people involved leaves no room for a direct link between them; secondly, the way in which the top leaders shape the behaviour of the foot soldiers is not via a shared common purpose, but by means of a coercive social dynamic in which obedience, conformity, and professional duty play an important role; thirdly, the motives and reasons for rank and file soldiers to get involved can be diverse and thus very different in 62 Katanga and Ngudjolo [2008] ICC 30 September 2008, [512]. 63 See Van den Wyngaert in her dissenting opinion in the Chui case in which she rejects the essential requirement: ‘because it compels judges to engage in artificial, speculative exercises about whether a crime would still have been committed if one of the accused had not made exactly the same contribution’: para. 42. 64 Mary Kaldor, New and Old Wars (2nd edn, Polity Press 2006). 65 See, for support from lawyers, Kai Ambos, ‘Command Responsibility and Organisationsherrschaft: Ways of Attributing International Crimes to the Most Responsible’, in Andre. Nollkaemper and Harmen van der Wilt (eds.), System Criminality in International Law (CUP 2009) 127 and Harmen van der Wilt, ‘Joint Criminal Enterprise and Functional Perpetrators’, in Andre Nollkaemper and Harmen van der Wilt (eds.), System Criminality in International Law (CUP 2009) 158.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

396 Alette Smeulers nature from those of the top leaders.66 Conspiracy might be useful to prosecute the criminal masterminds, but does not show how they shape the behaviour of their subordinates; while JCE might be useful for smaller groups and units fighting in a civil war, it does not grasp the nature of collective criminality when large groups and the state bureaucracy are involved. The control theory, as it stands now within the case law of the ICC, is consequently the theory that best reflects social reality. However, it does have a number of shortcomings that need to be addressed and ultimately corrected in order to make it practically applicable to international crimes. The following subsection will focus on these shortcomings.

C. Shortcomings of the Control Theory and How to Repair Them First, the control theory seems to assume that there is just one organization involved. The problem, however, is that several organizational structures are usually intertwined with each other, and there is a long and sometimes diffuse chain of command. This is especially true if the state is involved. The head of state will direct the members of government who preside over their own departments and the state bureaucracy. Additionally, there are usually many different bureaucratic and militarized units such as the army, the police, secret services, and elite forces. The point is that there are perpetrators who, compared to the government, can be considered low-ranking and have little say in the overall state policy. However, within their organizations, they are high-ranking figures with organizational control over their subordinates. They run organizations that execute the policies and they usually have a lot of leeway and freedom in doing so. A typical example would be Adolf Eichmann, who was no more than a middle ranking perpetrator if we take the state hierarchy into account. However, due to his crucial position as head of transportation, Eichmann played a crucial role in executing the genocidal policies. The policies, however, had been designed and decided upon by people above him. In other words, Eichmann was not a criminal mastermind but nevertheless had organizational control over his organization. Ambos concluded that there is organizational control ‘at different hierarchical levels’ and people like Eichmann are ‘neither – “downwards” – the sole person responsible for the events nor – “upwards” – completely independent.’67 This leads Ambos to argue that the control theory can only be applied to men in the background, ‘whose orders and instructions cannot without any further ado be revoked or cancelled. . . This is only the case for the leadership level of the formally established government and in exceptional cases, also for the top hierarchy of the military and police forces’.68 In my view, it can be questioned whether it is wise to restrict the application of the control theory to these top leaders, as organizational control also seems to apply to middle ranking perpetrators like Eichmann. The way that the chain of command runs 66 See, for some typologies, Crelinsten, Mann and Smeulers (n 11). 67 Ambos (n 60) 153. 68 Ambos (n 60) 154.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Criminological Approach to the ICC’s Control Theory 397 through the various organizations involved should therefore be carefully assessed in each case. A person’s position, both within the state hierarchy and in the organization in which he operates, is an important indicator of his guilt and blameworthiness. Secondly, the essence of the control theory is that the criminal mastermind has control over the crime committed. I fully agree that, in order to be held responsible, the criminal mastermind should control the course of events to a large extent. However, it is important to note that no one—not even an extremely powerful dictator—can fully control the entire course of events because there are simply too many people involved. If many people are involved, then this can set in motion a chain reaction of social dynamics that even a powerful leader cannot control. For instance, Kalyvas showed that, within a period of armed conflict, many ordinary people take advantage of the situation to commit crimes that they wouldn’t have committed in peacetime. This shows that, in a period of armed conflict, the line between political violence and criminal violence becomes blurred.69 If we take this into account, we can conclude that it would be too high a burden of proof to require the prosecutor to establish the criminal mastermind’s control over each and every specific element of the crime. It would make more sense to hold him responsible for the overall commission of these crimes and thus the crime pattern. In other words, the control of the criminal mastermind would be to instigate and induce genocide rather than the killing of any specific person. We should explain this control over the crime as control over the course of events in general terms, by creating a certain context (an atrocity producing situation). When judging such situations, we should take into account that there will always be diversions of this course of events and that complete control is impossible. A third shortcoming of the control theory is that it seems to require that the execution be automatic. A better threshold would be to say that the execution could be expected in the ordinary course of events. As stated earlier, criminal masterminds can, to a large extent, create and control a situational context. This will trigger a certain social dynamic that almost inevitably leads to the perpetration of certain crimes. Shaping a certain context makes it possible to shape the behaviour of those operating within it, but this falls short of controlling the actual minds or will of the perpetrators. Human beings are not automatons and, even in a very coercive situation, it is rare for them to completely lose their autonomy, individuality, or freedom. In almost all cases, they can still think and decide independently, although their choice of action might be severely constrained by the context in which they operate, as well as by the practical implications and consequences of their choices. Consequently, it is hard to say that any execution of whatever order is automatic, nor is control in those situations ever absolute or complete. This is already the case for commanders of small units70—let alone for political leaders who are usually far removed from the crime scene. The point is that low ranking foot soldiers can frustrate certain acts, for instance, by refusing to kill, torture, 69 Stathis Kalyvas, The Logic of Violence in Civil War (CUP 2006). 70 See for instance Amelia Hoover Green, ‘The Commander’s Dilemma: Creating and Controlling Armed Group Violence’ (2016) 53 Journal of Peace Research 619.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

398 Alette Smeulers or rape a specific individual, and can thus prevent this specific crime from being committed.71 In that sense, the control of the criminal mastermind is never complete and the execution never truly automatic. However, the outcome is the ordinary and logical course of events. Individual low ranking soldiers might be able to frustrate the commission of some of the crimes, but cannot frustrate the overall crime pattern. In other words, they cannot frustrate the commission of genocide or crimes against humanity as such. Setting the standard at ‘ordinary course of events’ thus better reflects social reality than the term ‘automatic’. A fourth shortcoming is the current standard of proof for the control theory, which requires that the role of the criminal mastermind be essential in the sense that it is a sine qua non contribution. This requirement, however, leads to a reversal of the burden of proof. Judges Fulford and Van den Wyngaert have noted that this burden of proof is far too high and practically impossible to meet, and I fully agree.72 If we take doing justice seriously, then it should be possible to hold the criminal masterminds responsible as principals. The burden of proof should not be impractically high, as this would result in failures to convict the high-ranking perpetrators. I suggest that we not define ‘essential’ as ‘sine qua non’, especially not in relation to one specific crime, such as a single murder. Rather, we should define ‘essential’ in relation to the crime pattern: the genocide or crimes against humanity. Again, when we take into account the number of people involved into account and the impossibility to control everyone, we see that a contribution can be essential without being a sine qua non.

V. Conclusion Although there are many similarities between ordinary crimes and international crimes, there are also significant differences between them. The most important factors are the number of people involved, the fact that perpetrators commit their crimes on behalf of collective entities and the fact that the crimes are committed as part of a political campaign or an armed political conflict. International crimes are a different form of criminality, that can be qualified as systemic violence or collective violence 71 This by the way seldom happens. In a research project in which we tried to find low-ranking soldiers who refused to obey orders and broke the chain of command we could hardly find any examples. It turns out that foot soldiers who do not want to obey the orders find means to evade the order rather than more straightforwardly break the chain of command by refusing to obey the order. 72 See also the criticism of Judge Fulford who in his separate opinion in Prosecutor v. Lubanga [2012] ICC 14 March 2012, (01/04–01/06), para. 18 stated that it sets too high a standard as it ‘imposes an unnecessary and unfair burden on the prosecution’ with Van den Wyngaert agreeing: ‘it compels Chambers to engage in artificial, speculative exercises about whether a crime would still have been committed if one of the accused had not made exactly the same contribution.’ See concurring opinion Judge van den Wyngaert, ICC 18 December 2012, Prosecutor v. Chui, ICC-01/04–02/12, para. 42. See for a discussion of ‘essential’ a.o. Jens Ohlin, Elies van Sliedrecht, and Thomas Weigend, ‘Assessing the Control-Theory’ [2013] LJIL 725 and Yanev (n 2) 350–358.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

A Criminological Approach to the ICC’s Control Theory 399 and warrants a specific mode of liability. This mode of liability should be designed to ensure that the criminal masterminds can be prosecuted and punished as principals. They are the auctores intellectualis, the ones who are pulling the strings, and are therefore the most responsible. This mode of liability should acknowledge that there are people behind the scenes who create the atrocity-producing situation in which others commit crimes. These people are therefore the ones most responsible for these crimes. No matter how powerful a leader is, they cannot fully control the situation nor the will of their subordinates; however, by shaping a certain context, they can to a large extent shape and direct the behaviour of the people operating within that context. The control theory acknowledges that people can control others via organizations. It therefore seems to be a suitable and valid theory to use when prosecuting political leaders for their crucial role in the commission of international crimes, especially when they are state sponsored. As it stands now, the required criteria create a burden of proof that is too high; it should be lowered to make the control theory practical and applicable. The law aims to set clear-cut criteria on when, how and under what circumstances individuals can be held criminally responsible for certain crimes, and thus tries to be as specific as possible; the principle of legality requires this. However, from a sociological/criminological point of view, it is hard (if not impossible) to set such strict criteria because the human behaviour and social dynamic related to this are complex and extremely difficult to fit into absolute terms. This is particularly true when dealing with large numbers of perpetrators who play different roles, have different motives, and interact with each other. I would therefore suggest that when people at the top of the chain of command deliberately created a context in which others commit international crimes, they can be held responsible for creating this context. This is necessary because, by creating this context, they set a social dynamic in action in which, in the ordinary course of events, others commit international crimes. If the law requires excessive standards like ‘absolute control’ and ‘automatic’ course of events, this will create an undesirable situation in which hardly any leader can be held responsible. I therefore suggest that we use and apply criteria reflecting the social dynamics, which serve both justice and the principle of legality.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

chapter 17

The T wo Cu lt u r e s of I n ter nationa l Cr imi na l L aw Jean d’Aspremont*

I. Introduction International criminal law has always been shrouded in a narrative of expansion. Indeed, it has continuously been represented as a discipline, a set of rules, and a set of institutions inherently expanding in the interest of humanity. While expansionism permeates international law as a whole, the expansionist drive of international criminal law distinguishes itself by a specific faith of most professionals in the field in the ability of the rules and institutions of international criminal law to deliver justice while also deterring and bringing mass violence to an end. This chapter argues that the expansionism of international criminal law has, in the last decade, undergone some dramatic changes. In particular, it demonstrates that the advent of the International Criminal Court (hereafter the ICC) has brought about a severe alteration in how the expansionism of international criminal law is thought and practiced. This claim is articulated around the following contentions. It is argued that from Nuremberg to Rome, the modes of legal reasoning associated with the sources of international law provided the main avenues for the expansion of international criminal law. Because such an expansionist strategy is traced back to the trials of war * Professor of International Law, Sciences Po School of Law, and University of Manchester. The author wishes to thank Larissa van den Herik, Jérôme de Hemptinne, Barrie Sander, Mari Takeuchi, Marusa Veber, Tatsuya Abe, Yohei Okada, Georg Nolte, Felix Lange, Thomas Kleinlein, Andreas Zimmermann, Megumi Ochi, Anna Ledvinka, as well as the editors of this volume for their comments on an earlier draft.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Two Cultures of International Criminal Law 401 criminals by the Nuremberg Military Tribunal, the expansionist use of the sources of international law is what is called here the Franconian culture of international criminal law by reference to the specific localization of the 1945–46 Nuremberg International Military Tribunal.1 It is further argued that the codification conducted by the statute of the ICC did not put an end to the expansionism of international criminal law but made it rest on hermeneutic modes of interpretation instead.2 The resort to hermeneutics rather than modes of legal argumentation associated with the sources of international law with a view to pursuing the progressive expansion of international criminal law is what is called here the Roman culture of international criminal law by reference to the place of adoption of the statute of the ICC. This chapter thus tells the story of this shift from the Franconian culture to the Roman culture of international criminal law, that is from sources-based to interpretation-based expansionism.3 It simultaneously argues that such cultural transformation was made possible by the rewriting of one of the foundational principles that the field had given to itself, namely the principle of legality, and which, somewhat ironically, was meant to guard against the expansion of international criminal law. After a few introductory remarks on the expansionism of international criminal law (I), this chapter expounds on what is called here the Franconian culture of international criminal law and the resort to modes of legal reasoning associated with sources to sustain the expansion of international criminal law (II). The attention then turns to the cultural change brought about by the statute of the ICC and the emergence of what is called here the Roman culture of international law, whereby expansion is conducted through hermeneutics rather than sources (III). The chapter ends with a few concluding remarks on the contradictions of the field and its proclaimed maturity (IV). These variations in the expansionism at work in international criminal law are presented throughout this chapter through the lens offered by the concept of culture. It must be acknowledged that such variations in the modes of legal reasoning at the service of expansion could have been approached from alternative standpoints. Descriptive and

1 The specific reference to Franconia rather than Bavaria was suggested to me by Thomas Kleinlein, for Nuremberg is located in the part of Bavaria called Franconia. 2 It is acknowledged here that the use of modes of legal reasoning associated with the sources remain part of a, albeit distinct, interpretive process. See Jean d’Aspremont, ‘The Multidimensional Process of Interpretation: Content-Determination and Law-Ascertainment Distinguished’ in Andrea Bianchi, Daniel Peat, and Matthew Windsor (eds), Interpretation in International Law (OUP 2015) 111–29 (here after d’Aspremont, ‘The Multidimensional Process of Interpretation). 3 Findings of a decline of sources as the main tool of expansion of international criminal law in the wake of the entry into force of the statute of the ICC are certainly not unheard of. See Larissa van den Herik, ‘The Decline of Customary International Law as a Source of International Criminal Law’ in Curtis A. Bradley (ed), Custom’s Future: International Law in a Changing World (CUP 2016) 230–52, 230–1 (hereafter van den Herik, ‘The Decline of Customary International Law’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

402 Jean d’Aspremont analytical notions like law-application,4 auctoritatis interpositio,5 invisible college,6 epistemic community,7 community of practice,8 interpretive community,9 transnational advocacy networks,10 transnational power elites,11 or even ideology12 could have similarly been used to apprehend the changes in the shared consciousness of international criminal law at stake here. Irrespective of the merits of the perspectives provided by these alternative notions, this chapter favours and builds on the idea of culture with a view to offering some insights on the changes in the expansionist strategy of international criminal lawyers.13 For the sake of this chapter, culture is understood as a set of shared beliefs that are built on some self-nourishing and mutually reinforcing 4 The notion of law-applier emerged in the context of a rule-based approach to international law. It finds roots in British analytical jurisprudence as well as German legal positivism. It quickly proved insufficient as it often remained equated with the idea of judicial authority. In recent years, the concept of law-applying authority has been subject to some dilution and pluralization in the general theory of law and jurisprudence. See Keith Charles Culver and Michael Giudice, Legality’s Borders—An Essay in General Jurisprudence (OUP 2010). 5 The idea of auctoritatis interpositio is borrowed from Carl Schmitt although it is used to refer to the Kantian idea—systematized by Kelsen—that by virtue of the indeterminacy of rules, law is ultimately dependent upon human judgement. See Carl Schmitt, Politische Theologie: Vier Kapitel zur Lehre von der Souveränität (Duncker und Humblot 1979) 41. See the discussion of that question by Nikolas Rajkovic, ‘Rules, Lawyering, and the Politics of Legality: Critical Sociology and International Law’s Rule’ (2014) 27(2) Leiden J of Intl L 331. 6 Oscar Schachter, ‘The Invisible College of International Lawyers’ (1977) 72(2) Northwestern University L Rev 217. 7 Peter M. Haas, ‘Introduction: epistemic communities and international policy coordination’ (1992) 46 International Organization 1, 2–3 (Peter Haas acknowledged that the notion has some Marxist origins but that he uses it in a different way). The concept refers to a non-systematically organized network of professionals with recognized expertise and authority that allow them to contribute to the production of policy-relevant knowledge in relation to their area of expertise. The notion of epistemic community has proved appealing for many international lawyers who seek to explain some of the dynamics at work in the creation of knowledge about international law. 8 Emanuel Adler, Communitarian International Relations: The Epistemic Foundations of International Relations (Routledge 2005) (according to such a construction, international lawyers constitute a community of practice as long as they ‘are informally as well as contextually bound by a shared interest in learning and applying a common practice’ while also sharing a common ‘repertoire of communal resources, such as routines, words, tools, ways of doing things, stories, symbols, and discourse’ at 15). 9 Stanley Fish, ‘Fish v. Fiss’ (1984) 36(6) Stanford L Rev 1325, 1331—32; Stanley Fish, Is There a Text in This Class? (Harvard UP 1980) 13—14. It should be noted that the concept of interpretive community was first elaborated in Josiah Royce, The Problems of Christianity (MacMillan 1914). 10 Margaret E Keck and Kathryn Sikkink, Activists beyond Borders: Advocacy Networks in International Politics (Cornell UP 1998). 11 Niilo Kauppi and Mikael Rask Madsen (eds), Transnational Power Elites: The New Professionals of Governance, Law and Security (Routledge 2013). 12 Shirley V. Scott, ‘International Law as Ideology: Theorizing the Relationship between International Law and International Politics’ (1994) 5 European J of Intl L 313; Tor Krever, ‘International Criminal Law: An Ideology Critique’ (2013) 26(3) Leiden J of Intl L 701 (hereafter Krever, ‘ICL’). 13 For a similar approach that construes judicial law-making as a culture, see Artur Appazov, ‘”Judicial Activism” and the International Criminal Court’ (2015) iCourts Working Paper Series, No. 17 accessed 21 June 2018 (hereafter Appazov, ‘Judicial Activism’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Two Cultures of International Criminal Law 403 p roficiencies14 and that create the categories of experience of international criminal lawyers.15 Culture, for the sake of this chapter, expresses itself through the modes of legal reasoning and patterns of arguments around which a field organizes legal discourses and argumentation. This chapter thus shows how the variations that expansionism has been undergoing in the last decade, and especially the move from modes of legal reasoning associated with the sources of international law to modes of legal reasoning associated with interpretation, can be understood as a cultural transformation in the field. Three preliminary caveats are necessary to clarify the scope of the claim made in this chapter. First, it is important to stress that the two cultures of international criminal law discussed here do not correspond to the common finding of a dualistic nature of inter national criminal law. According to this latter narrative, international criminal law is said to simultaneously borrow from public international law while also developing modes of legal argumentation as well as an ethos informed by domestic criminal law.16 Indeed, it is commonly contended that, on the one hand, international criminal law shares with public international law a Rule-of-Law-project17 as well as a few key central doctrines like sources and interpretation, thereby making international criminal law formally part of public international law.18 International criminal law is said, on the other hand, to borrow from domestic criminal law specific modes of responsibility or safeguards like the principle of legality or the principle of personal culpability.19 Such a narrative about the dualistic nature of international criminal law is usually reinforced by 14 Paul W Khan, The Cultural Study of Law: Reconstructing Legal Scholarship (University of Chicago Press 2000) (culture ‘has it founding myths, necessary beliefs, and its reasons that are internal to its own norms’ at 1). 15 Lawrence Rosen, Law as Culture: An Invitation (Princeton UP 2006) 4. 16 Kai Ambos, Treatise on International Criminal Law, Volume 1: Foundations and General Part (OUP 2013) 54–5 (hereafter Ambos, Treatise on ICL); Joe Verhoeven, ‘Article 21 of the Rome Statute and the Ambiguities of Applicable Law’ (2002) 33 Netherlands YB of Intl L 3, 22 (hereafter Verhoeven); Immi Tallgren, ‘The Sensibility and Sense of International Criminal Law’ (2002) 13(3) European J of Intl L 561, 562 (hereafter Tallgren); George P. Fletcher and Jens David Ohlin, ‘Reclaiming Fundamental Principles of Criminal Law in the Darfur Case’ (2005) 3(3) J of Intl Crim Justice 539; Larissa van den Herik, ‘Book Discussion: Testing ICL’s Expressive Capacity’ (15 March 2016) EJIL: Talk! accessed 21 June 2018 (hereafter van den Herik, ‘Testing ICL’s Expressive Capacity’). In the same vein, mention has been made in this respect of the two positivist cultures of international criminal law: Dov Jacobs, ‘International Criminal Law’ in Jörg Kammerhofer and Jean d’Aspremont (eds), International Legal Positivism in a Postmodern World (CUP 2014) 451–74 (hereafter Jacobs, ‘ICL’). 17 Krever, ‘ICL’ (n 12). 18 Ambos, Treatise on ICL (n 16) 73. 19 See Theodor Meron, ‘Revival of Customary Humanitarian Law’ (2005) 99(4) American J of Intl L 817, 821–9. On the contradictions of this aspect of international criminal law, see generally Darryl Robinson, ‘The Identity Crisis of International Criminal Law’ (2008) 21(4) Leiden J of Intl L 925 (here after Robinson, ‘Identity Crisis’). On the transposition of the principle of legality from criminal law, see generally Kenneth S. Gallant, The Principle of Legality in International and Comparative Criminal Law (CUP 2009) (hereafter Gallant, The Principle of Legality). National criminal law doctrines have usually been transposed through the use of general principles or, alternatively, through customary international law. On this point, see Mary Fan, ‘Custom, General Principles and the Great Architect Cassese’ (2012) 10(5) J of Intl Crim Justice 1063, 1076 (hereafter Fan, ‘Custom’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

404 Jean d’Aspremont epistemological dynamics of the field and especially the fact that international criminal law has been the turf of public international lawyers for many decades before falling into the hands of a new group of professionals with eclectic pedigrees.20 It is important to highlight that the two cultures of international criminal law discussed in the following sections do not mirror the abovementioned narrative about the dualistic nature of inter national criminal law. These two cultures come down to two variants of the expansionism of international criminal law. A second caveat is warranted to stress that the shift from sources-based expansionism to hermeneutic expansionism is not exclusive of the resilience of the former outside the ICC framework. In other words, it cannot be excluded that what is called here the Franconian culture continues to inform legal thought and practice in relation to inter national criminal procedures located outside the regime of the ICC. Nor can it be excluded that the Franconian culture will someday return to fashion in the practice of the ICC itself. The claim made here zeroes in only on those main centres of argumentative practice in international criminal law and can thus not be generalized to the field as a whole. Thirdly, it must be made clear that this chapter does not seek to provide any precise causal explanation of the shift from the Franconian culture to the Roman culture. Such a shift most likely originates from a great variety of—sometimes contradictory or accidental—dynamics and constraints, including the inability of the Franconian culture to live up to its own self-imposed requirements,21 an attempt to redistribute power in the field, endeavours to rein in the common law,22 the greater ease with which substantive criminal rules can be opposed to states having ratified the Rome Statute without embarking on existential debates about such rules,23 or the ‘Lauterpachtan’24 traits of the dominant understanding of the judicial function in the field, etc. It is not the aim of this chapter to elucidate the causes of such a shift. It is of greater avail to show that, despite the cultural transformation discussed in the following sections, the field has remained committed to expansionism by virtue of a rewriting of the very cardinal principle of criminal law that was meant to guard against expansionism.25

20 See generally Frédéric Mégret, ‘The Politics of International Criminal Justice’ (2002) 13 European J of Intl L 1261. According to Darryl Robinson, many of the contradictions of international criminal law can be traced back to the origins of the professionals filling the field and especially their training in human rights and humanitarian law. See Robinson, ‘Identity Crisis’ (n 19). 21 Joseph Powderly, ‘The Rome Statute and the Attempted Corseting of the Interpretative Judicial Function: Reflections on Sources of Law and Interpretive Technique’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (OUP 2015) 444, 445 (hereafter Powderly, ‘The Rome Statute’). 22 ibid. 23 This is an argument that was suggested to me by the editors. 24 In the same vein, see Robert Cryer, ‘International Tribunals and the Sources of International Law’ (2012) 10(5) J of Intl Crim Justice 1045, 1048 (hereafter Cryer, ‘International Tribunals’). 25 On the idea that the ICC prolongs expansionism, see generally Appazov, ‘Judicial Activism’ (n 13).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Two Cultures of International Criminal Law 405

II. Expansionism in International Criminal Law This chapter is premised on the idea that international criminal law is, both in legal thought and practice, articulated around an expansionist drive. It is submitted that expansionism in international criminal law can be broken down into three specific and mutually reinforcing beliefs. First, international criminal law and its practice can be said to be rooted in a belief in the field’s ability—and that of it rules and institutions—to deter and end mass violence,26 and vindicate humanity.27 This belief is itself premised on the idea that mass violence and grave inhuman actions are due to the absence of adequate legal mechanisms of retribution and that it can be prevented by further legalizing and institutionalizing the punishment of individuals who are themselves held as responsive to deterrence.28 It must be acknowledged that the consequentialist and retributive premises of this belief are not self-evident,29 and it is not surprising that they have been severely contested, for instance because the cognitive element necessary to achieve deterrence is lacking,30 or because it rests on a convenient domestic analogy31 and an idealization of the domestic criminal system.32 Yet, such doubts and challenges33 have not sufficed to jeopardize the belief of many international criminal lawyers34 in the

26 See Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3, UN Doc A/CONF.183/9 (corrected on 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002, entered into force 1 July 2002), Preamble (‘[d]etermined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’) (hereafter Rome Statute). In the same vein, see M. Cherif Bassiouni, ‘Justice and Peace: The Importance of Choosing Accountability over Realpolitik’ (2003) 35 Case Western Reserve J of Intl L 191, 192. See also M. Cherif Bassiouni, Introduction to International Criminal Law (Transnational Publishers 2003) 680–82, 737. See also The Prosecutor v. Erdemović (Sentencing Judgement) IT-96-22-T, (29 November 1996) para 58 (ICTY, Trial Chamber); Chris Jenks and Guido Acquaviva, ‘The Role of International Criminal Justice in Fostering Compliance with International Humanitarian Lawm’ (2014) 96 Intl Rev of the Red Cross 775. 27 For some critical remarks on the moral agenda of international criminal law, see Sarah Nouwen, ‘Justifying Justice’ in James Crawford, Martti Koskenniemi, and Surabhi Ranganathan (eds), The Cambridge Companion to International Law (CUP 2012) 327, 329–30 (hereafter Nouwen, ‘Justifying Justice’). 28 Krever, ‘ICL’ (n 12). See also Tallgren (n 16) 593. 29 For a discussion of some of the consequentialist arguments raised by international criminal lawyers, see Nouwen, ‘Justifying Justice’ (n 27) 338–45; see David S. Koller, ‘The Faith of the International Criminal Lawyer’ (2008) 40 NYU J of Intl L and Politics 1019, 1024–32 (hereafter Koller); Jens David Ohlin, ‘Is “Jus in Bello” in Crisis?’ (2013) 11 J of Intl Crim Justice 27–45. 30 See Tallgren (n 16). 31 For a criticism, see ibid 566. 32 ibid 567. 33 This aspect of international criminal law has been criticized as ‘a kind of religious exercise of hope’. See Tallgren (n 16) 593. 34 It is acknowledged that the notion of ‘international criminal lawyer’ is all-embracing and includes a wide variety of distinct professionals. See generally Koller (n 29).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

406 Jean d’Aspremont ability of the field to deter and end mass violence through law and institutions, which remains very central in the culture of international criminal law.35 The second belief nourishing the expansionism of international criminal law bears upon the idea that international criminal law is under-developed. According to this belief, international criminal law is said to have not reached maturity and is bound to expand with a view, among others, to realizing justice as well as making a chance to deter mass violence.36 This second belief—and the historical narrative that comes with it— supplements the first belief in that it reinforces the perceived need for expansion. Interestingly, the legitimacy concerns that occasionally arise in relation to the necessity of expansion are commonly said to be outweighed by the interest of the victim37 and, more generally, what has been called victim-centrism.38 The two previous beliefs—i.e. the ability to deter mass violence through rules and the under-developed character of international criminal law that forces it into an inevitable expansion—come to coalesce into a third belief, which is the idea that the inevitable expansion of international criminal law constitutes progress.39 In other words, the two previous beliefs are prolonged by the belief that the expansion of international rogress associated criminal law is, intrinsically, a good thing.40 It is noteworthy that the p with the inextricability of the expansion of international criminal law often surfaces in a self-congratulatory tone and the celebration of expansionism that is commonly seen in the literature41—what has been called, not without irony, ‘triumphalism’ of international criminal lawyers.42 Like the first two beliefs, this third belief—and thus the idea of progress—has, unsurprisingly, been contested.43 Yet, these criticisms 35 As was pointed to me by the editors, this belief is not the only driving force behind the legalism and the push for more rules and institutions. For some other dynamics and faiths informing the field see Tallgren (n 16). See also Koller (n 29). 36 Tamás Hoffmann, ‘The Gentle Civilizer of Humanitarian Law: Antonio Cassese and the Creation of Customary Law of Non-International Armed Conflicts’ in Carsten Stahn, Larissa van den Herik, and John Dugard (eds), Future Perspectives on International Criminal Justice (TMC Asser/CUP 2010) 58–80 (hereafter Hoffmann); Fabián O. Raimondo, ‘General Principles of Law, Judicial Creativity and the Development of International Criminal Law’ in Shane Darcy and Joseph Powderly (eds) Judicial Creativity at the International Criminal Tribunals (OUP 2011) 45–59, 45 (hereafter Raimondo, ‘General Principles of Law, Judicial Creativity and the Development of International Criminal Law’); Verhoeven (n 16); Mia Swart, ‘Judicial Lawmaking at the ad hoc Tribunals: The Creative Use of the Sources of International Law and “Adventurous Interpretation” ’ (2010) 70 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 459 (hereafter Swart, ‘Judicial Lawmaking’). On the idea that there is not much convention and customary rules concerning the punishment of criminals in international law, see also Verhoeven (n 16) 18. 37 Neha Jain, ‘Judicial Lawmaking and General Principle of Law in International Criminal Law’ (2016) 57 Harvard Intl L J 111, 146 (hereafter Jain, ‘Judicial Lawmaking’); Marko Milanović, ‘Aggression and Legality’ (2012) 10 J of Intl Crim Justice 165, 169 (hereafter Milanović, ‘Aggression and Legality’). 38 Jain, ‘Judicial Lawmaking’ (n 37) 146. On this aspect of international criminal law see Robinson, ‘Identity Crisis’ (n 19). See also Nouwen, ‘Justifying Justice’ (n 27) 340. 39 See eg Milanović, ‘Aggression and Legality’ (n 37) 169; Fan, ‘Custom’ (n 19). 40 See, e.g. Swart, ‘Judicial Lawmaking’ (n 36); Hoffmann (n 36). For some critical remarks on the history of ‘success’ in the field of international criminal law, see Nouwen, ‘Justifying Justice’ (n 27) 328–30. See also the remark on the ‘faith’ that informs the field by Koller (n 29). 41 See eg Swart, ‘Judicial Lawmaking’ (n 36) 460. 42 Krever, ‘ICL’ (n 12) 701. 43 See, e.g., Jacobs, ‘ICL’ (n 16); Tallgren (n 16).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Two Cultures of International Criminal Law 407 have similarly not sufficed to undermine the contention that the expansion of international criminal law is meant to be progress as it allows an under-developed discipline, a set of rules and institutions, to dilate for the sake of deterrence and ending of mass violence. The three above mentioned beliefs are constitutive of what is called here the expansionism of international criminal law. For the sake of the discussion that follows, this three-tier description of the expansionism of international criminal law must be further substantiated. It must also be highlighted that the deployment of these beliefs is generally accompanied by the repetition of a specific genesis that places some super heroes and architects at the centre of the constitution of the field.44 These beliefs also have their own foundational principles that allow them to be continuously restated, experienced, and justified. In this respect, it is argued here that, more than the Martens Clause or Common Article 3—which constantly punctuate legal argumentation on international criminal law—it is the principle of legality through which the three beliefs that form the expansionism of international criminal law are continuously restated, experienced, and justified, despite this cardinal principle having originally been meant to rein in expansionism. In that sense, and as will be shown in the following sections, the principle of legality, far from constituting a barrier to the expansion of international criminal law, has come to constitute the very paradigm by virtue of which international criminal lawyers re-affirm, experience, and justify their faith in the ability of international criminal law to end mass violence if it is properly and duly expanded. And yet, as will also be demonstrated, the changes in the overall expansionism of international criminal law that are depicted here followed a rewriting of such a foundational principle in the Rome Statute. The argument is made that the shift from sources-based expansionism to hermeneutic expansionism has gone hand-in-hand with a rewriting and functional reversing of one of the cardinal principles of the field.

III. The ‘Franconian’ Culture of International Criminal Law: Sources-Based Expansionism The classical age of international criminal law, irrespective of earlier historical occurrences of the idea, can be located in the second half of the 20th century, starting with war criminal trials at Nuremberg.45 This classical age, according to the argument made here, was dominated by an expansionism grounded in the sources of international law. 44 Hoffmann (n 36); Fan, ‘Custom’ (n 19); Cryer, ‘International Tribunals’ (n 24). 45 For a similar historical narrative, see Nouwen, ‘Justifying Justice’ (n 27) 328. For some earlier manifestations of international criminal law, see Hans Kelsen, ‘Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals’ (1943) 31 California L Rev 530.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

408 Jean d’Aspremont It is submitted here that these sources-based modes of expansion were first the subjects of experimentation by virtue of the war crimes tribunals in Nuremberg in 1945. According to this Franconian variant of expansionism, sources were construed as the primary and most efficient tool to develop international criminal law.46 What matters for the argument made here is that this turn to the sources of inter national law as the principal mode of expansion of international criminal law traditionally then found its justification in the elevation of the principle of legality—and its various facets47—into one of the foundational principles of international criminal law. It is more particularly submitted here that Nuremberg constituted the historical moment where the principle of legality was made the paradigm of the field by reference to which subsequent generations of international criminal lawyers would restate, experience, and justify their beliefs in the ability of international criminal law to end mass violence and inhuman actions if it is properly and duly expanded.48 This can be explained as follows. It is the Nuremberg Military Tribunal that transposed, by analogy, the principle of legality (or a corresponding requirement) found in most domestic criminal proceedings and elevated it to one of the main principles of the discipline.49 Although its transposition to international criminal proceedings was far from being of inherent necessity,50 the choice made at Nuremberg in favour of the transposition of the principle of legality to international criminal proceedings has proved decisive in the development of an expansionism that is sources-driven. This is due, not only to the transposition of the principle of legality to international criminal proceedings, but also to the specific understanding that has been given to that paradigm, and in particular its interpretation requiring that any behaviour criminalized under international criminal law be grounded in formal rules ascertained through the sources of international law.51 This means that 46 Ambos, Treatise on ICL (n 16) 74. 47 On the principle of legality and its various facets, see Gallant, The Principle of Legality (n 19) 11. See also William Thomas Worster, ‘On the Purpose of Legality and its Applicability to International Law’ (2011) 9(4) J of Intl Crim Justice 973; Jacobs, ‘ICL’ (n 16); Vladimir Duro Degan, ‘On the Sources of International Criminal Law’ (2005) 4 Chinese J of Intl L 45, 51 (distinguishing nullum crimen sine legal scripta, sine legal certa, sine legel previa, sine lege) (hereafter Degan, ‘Sources of ICL’). 48 Jacobs, ‘ICL’ (n 16). For a different account of this genealogy see Powderly, ‘The Rome Statute’ (n 21) 489. The principle has been subsequently confirmed by the Universal Declaration of Human Rights, UNGA Res 217A(III), UN GAOR, 3rd Sess, Supp No 13, at 71, UN Doc A/810 (1948); the European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos 11 and 14, Council of Europe, 4 November 1950, 213 UNTS 221, Eur TS 5 (entered into force 3 September 1953); the International Covenant on Civil and Political Rights, UNGA, 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); The principle has been reinforced by the Report of the UN Secretary General Pursuant to Paragraph 2 of Security Council Resolution 808, UN Secretary-General, UN Doc S/25704, (1993) para 34; and the Rome Statute (n 26) arts 22, 23. 49 Milanović, ‘Aggression and Legality’ (n 37) 169. 50 Such a transposition has accordingly been contested. See Ilias Bantekas, ‘Reflections on Some Sources and Methods of International Criminal and Humanitarian Law’ (2006) 6 Intl Crim L Rev 121, 125 (hereafter Bantekas, ‘Reflections’). 51 In this respect, it has been claimed that embracing the principle of legality as one of the governing paradigms of the field pushed international criminal law into a more positivistic approach. This is the point developed in Jacobs, ‘ICL’ (n 16).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Two Cultures of International Criminal Law 409 the import of the principle of legality into international criminal law at Nuremberg created the necessary justificatory space for sources-based expansionism. Until the adoption of the Statute of Rome, the repetition of this requirement by international criminal lawyers has allowed a reaffirmation, experience, and a justification of the beliefs constitutive of the expansionism of international criminal law and especially of its sources-based modes of operation. It is noteworthy that the foundational value given to the principle of legality—and its justification of sources-based modes of expansion—at Nuremberg has not been without irony. While constituting a justification for the turn to sources-based expansionism, the principle of legality has simultaneously made the Franconian culture of international criminal law riven by tensions.52 Indeed, despite the fact that judges have gradually watered down their understanding of the principle of legality and their strictly sourcesbased understanding thereof,53 legal scholars simultaneously came to question whether expansionism through modes of legal reasoning associated with the sources—and especially those related to customary international law54—could be reconciled with the

52 On the contradictions of international criminal law, see generally Robinson, ‘Identity Crisis’ (n 19). 53 This is a point to which Barrie Sander drew my attention. See, e.g. The Prosecutor v. Milutinović et al. (Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction—Joint Criminal Enterprise) IT-99-37-AR72, (21 May 2003) (ICTY, Appeals Chamber) (hereafter Milutinović (Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction—Joint Criminal Enterprise)) (‘the principle of legality demands that the Tribunal shall apply the law which was binding upon individuals at the time of the acts charged. . . . It follows from this principle that a criminal conviction can only be based on a norm which existed at the time the acts or omission with which the accused is charged were committed. . . . This fundamental principle does not prevent a court from interpreting and clarifying the elements of a particular crime. Nor does it preclude the progressive development of the law by the court. But it does prevent a court from creating new law or from interpreting existing law beyond the reasonable limits of acceptable clarification. This Tribunal must therefore be satisfied that the crime or the form of liability with which an accused is charged was sufficiently foreseeable and that the law providing for such liability must be sufficiently accessible at the relevant time, taking into account the specificity of international law when making that assessment’ paras 10, 37–8); The Prosecutor v. Vasiljević (Judgment) IT-98-32-T, (29 November 2002) (ICTY, Trial Chamber II) (‘[o]nce it is satisfied that a certain act or set of acts is indeed criminal under customary international law, the Trial Chamber must satisfy itself that this offence with which the accused is charged was defined with sufficient clarity under customary international law for its general nature, its criminal character and its approximate gravity to have been sufficiently foreseeable and accessible’ para. 201); The Prosecutor v. Aleksovski (Judgment) IT-95–14/1-A, (24 March 2000) (ICTY, Appeals Chamber) (‘the principle of nullum crimen sine lege . . . does not prevent a court, either at the national or international level, from determining an issue through a process of interpretation and clarification as to the elements of a particular crime’ para 127); The Prosecutor v. Hadžihasanović et al. (Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility) IT-01-47-AR72, (16 July 2003) (ICTY, Appeals Chamber) (‘where a principle can be shown to have been so established [under customary international law], it is not an objection to the application of the prin ciple to a particular situation to say that the situation is new if it reasonably falls within the application of the principle’ para 12). 54 Bantekas, ‘Reflections’ (n 50) 121; Verhoeven (n 16) 22; Jacobs, ‘ICL’ (n 16). See the criticisms of this objection by Alain Pellet, ‘Applicable Law’ in Antonio Cassese and others (eds), The Rome Statute of the International Criminal Court: A Commentary, vol II (OUP 2002) 1051, 1057–8 (hereafter Pellet, ‘Applicable Law’). For a reaction to Pellet’s position, see Degan, ‘Sources of ICL’ (n 60).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

410 Jean d’Aspremont requirements of their self-imposed principle of legality.55 In that sense, many of the problems encountered by international criminal lawyers in living up to the requirements of that foundational principle have been self-inflicted,56 as they could have decided not to import such a requirement from domestic systems and espouse, instead, alternative readings of the principle of legality focused on foreseeability or reasonable expectations57 to protect themselves against the image of arbitrariness that all international criminal lawyers have always been dreading so much. The principle of legality—itself deemed either customary law58 or a general principle59—has thus been both the genesis and the nemesis of the Franconian culture of international criminal law, justifying the expansionist use of the sources of international law but also imposing self-defeating demands on the discipline.60 While sources-based expansionism came to light in Nuremberg with the help of the principle of legality, it was not until the 1990s that the Franconian culture of inter national criminal law reached its apex. Indeed, it is with the advent of the ad hoc Tribunals that modes of legal reasoning associated with the sources of the international law came to be systematically organized and deployed for the sake of the expansion of international criminal law, giving rise to what has been called the ‘expansionary phase’ of international criminal law.61 In that sense, the Franconian culture described here only came to reveal its thrust five decades after its inception. It is also five decades after its foundations were laid at Nuremberg that the expansionist use of sources-based modes of legal reasoning showed the necessity to adjust the modes of legal reasoning commonly associated with the sources of international law. In that sense, the Franconian culture of international criminal law, while showing loyalty to the doctrine of sources of international law and upholding the traditional kinship between international criminal law and public international law, also proved to be a culture of emancipation from public international law for the sake of expansion. The Franconian culture is emancipatory because it avowedly and unabashedly tailors the modes of legal reasoning associated with the sources through what has been called ‘innovative methodologies’62 with a view to playing down the constraints that they 55 Ambos, Treatise on ICL (n 16) 74–5. Contra Pellet, ‘Applicable Law’ (n 54) 1057–8 (Pellet argues there is no need of a detailed rule for the principle of legality to be respected). 56 See ibid (Pellet claims that the principle of legality ‘is hardly appropriate to the particularities of international law, an essential part of which is customary’1056). See also the questioning of the applic ability of the principle of legality to the ICTY by Robert Kolb, ‘The Jurisprudence of the Yugoslav and Rwandan Criminal Tribunals on Their Jurisdiction and on International Crimes’ (2001) 71 British YB of Intl L 259. 57 It is interesting to note that the judgement that is often cited to support the adoption of the prin ciple of legality by the Nuremberg tribunals refers to the necessity that ‘the attacker must know that he is doing wrong’, see Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945—1 October 1946, vol XXII (The Tribunal 1948) 462. 58 Gallant, The Principle of Legality (n 19). 59 Antonio Cassese, International Criminal Law (OUP 2003) 145. 60 In the same vein, see Robinson, ‘Identity Crisis’ (n 19). 61 Tallgren (n 16). 62 van den Herik, ‘The Decline of Customary International Law’ (n 3) 230–1.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Two Cultures of International Criminal Law 411 impose on the legal argumentation on the ascertainment of legal rules and by nurturing the expansion of international criminal law. Nowhere is this emancipatory dimension of the Franconian culture of international criminal law in relation to the sources of international law more tangible than in relation to the way in which customary rules of international criminal law have been ascertained. Such practice of custom-identification in international criminal law is wellknown and has been extensively discussed in the literature. This chapter is not the place to revisit these debates that are not specific to international criminal law.63 It suffices to recall that all sorts of gimmicks have been introduced to allow for the expansion of international criminal law through customary international law. Mention can be made of the over-emphasis on verbal practice64—the declarative being turned into the constitutive65—the over-emphasis of opinio juris, the substitution of some kind of social necessity to opinio juris and deductive processes under the guise of practice,66 amongst others. It is well-known that most of these argumentative constructions have been in intensive use in the case law of the International Tribunal for the former Yugoslavia.67 Needless to say that the emancipatory uses of the modes of legal argumentation on custom-identification have been conducive to dramatic creativity and the results achieved therewith are remarkable, not only in their extent but also with respect to the degree of acceptance they secured. Among these numerous achievements, it suffices to mention the existence of war crimes in non-international armed conflicts,68 some specific

63 See Jean d’Aspremont, ‘Expansion and the Sources of International Human Rights Law’ (2016) 46 Israel YB On Human Rights 223 (hereafter d’Aspremont, ‘Expansion and the Sources of IHRL’). 64 Milanović, ‘Aggression and Legality’ (n 37) 170. 65 On this common conflation, see the remarks of Jean d’Aspremont, ‘The Decay of Modern Customary International Law in Spite of Scholarly Heroism’ [2015] Global Community: YB of Intl L and Jurisprudence. 66 In the same vein, Cryer, ‘International Tribunals’ (n 24) 1050. 67 Whilst Tadić has been the decision where custom-making proved the most fruitful, it is in Kupreškić that the ICTY expounded the most on its approach to custom and the need to focus on opinio juris, which in turn could be derived from the Martens Clause. The Prosecutor v. Kupreškić et al. (Judgment) IT-95-16-T, (14 January 2000) (ICTY, Trial Chamber) (hereafter Kupreškić) (‘[a]dmittedly, there does not seem to have emerged recently a body of State practice consistently supporting the proposition that one of the elements of custom, namely usus or diuturnitas has taken shape. This is however an area where opinio juris sive necessitatis may play a much greater role than usus, as a result of the aforementioned Martens Clause. In the light of the way States and courts have implemented it, this Clause clearly shows that principles of international humanitarian law may emerge through a customary process under the pressure of the demands of humanity or the dictates of public conscience, even where State practice is scant or inconsistent. The other element, in the form of opinio necessitatis, crystalizing as a result of the imperatives of humanity or public conscience, may turn out to be the decisive element heralding the emergence of a general rule or principle of humanitarian law’: para. 527). It has been argued that the approach of the ICTY to customary international law is more diverse and cannot be reduced to just Tadić and Kupreškić, see van den Herik, ‘The Decline of Customary International Law’ (n 3) 237–8. 68 The Prosecutor v. Tadić, (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT-94-1-1, (2 October 1995) paras 96–136 (ICTY, Appeals Chamber). See generally Shane Darcy, ‘The Reinvention of War Crimes by International Criminal Tribunals’ in Shane Darcy and Joseph Powderly (eds), Judicial Creativity at the International Criminal Tribunals (OUP 2011) 106–28. See also Sarah Nouwen

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

412 Jean d’Aspremont types of joint criminal enterprise (JCE),69 some specific war crimes,70 the customary status of ICRC privileges as a bar to disclosure,71 and the alleged customary character of the defi nition of terrorism.72 Under the Franconian culture of international criminal law, another tool of expansion, besides the abovementioned re-invented doctrine of customary law, has been found in the general principles of law. General principles have been described as ‘vital to the lifeblood and continued growth of international criminal law’.73 It could even be said that the Franconian culture of international criminal law has offered the possibility to general principles to fulfil the gap-filling function that informed their inclusion in Article 38 of the Statute of the International Court of Justice.74 The emancipatory nature of the use of general principles is probably less tangible than that of the resort to customary law given the limited weight given to this source of law in general international law. And yet, here too, practice and scholarship have shown some very systematic75 and innovative resorts to general principles.76 The expansion achieved through general principles is not less substantial than that realized through customary international law.77 Such achievements include the criminalization of rape and sexual assault as war and Michael A Becker, ‘Tadić v Prosecutor (1995)’ in Eirik Bjørge and Cameron A Miles, Landmark Cases in Public International Law (Hart 2017) (hereafter Nouwen and Becker, ‘Tadić’). 69 The Prosecutor v. Tadić (Judgment) IT-94-1-A, (15 July 1999) paras 185–237 (ICTY, Appeals Chamber); Milutinović (Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction—Joint Criminal Enterprise) (n 66). For just a sample of the vast literature on the topic, Mohamed Shahabuddeen, ‘Judicial Creativity and Joint Criminal Enterprise’ in Shane Darcy and Joseph Powderly (eds), Judicial Creativity at the International Criminal Tribunals (OUP 2011) 184–203; Jens David Ohlin, ‘Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise’ (2007) 5 J of Intl Crim Justice 69; Mohamed Elewa Badar, ‘ “Just Convict Everyone!”—Joint Perpetration: From Tadić to Stakić and Back Again’ (2006) 6(2) Intl Crim L Rev 293. 70 In the Hadžihasanović & Kubura case, the ICTY created the crimes of wanton destruction of towns or villages, the plunder of public or private property, and the destruction of institutions dedicated to religion in non-international armed conflict. It also determined that command responsibility was an integral part of custom and could also be applied in settings of non-international armed conflict, see The Prosecutor v. Hadžihasanović and Kubura (Judgment) IT-01-47-T, (15 March 2006) paras 38, 65 (ICTY, Trial Chamber). 71 Prosecutor v. Simić et al. (Decision on the Prosecutor’s Motion under Rule 73 for a Ruling concerning the Testimony of a Witness) IT-95-9-PT, (27 July 1999) (ICTY, Trial Chamber). 72 Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11–01/I/AC/R176bis, (16 February 2011) para 102 (Special Tribunal for Lebanon, Appeals Chamber) (hereafter Interlocutory Decision on the Applicable Law (STL)). 73 Fan, ‘Custom’ (n 19) 1078. 74 Lauterpacht even considered them of a compulsory resort when confronted with a gap, see Hersch Lauterpacht, The Function of Law in International Community (first published 1933, Martii Koskenniemi ed, OUP 2011) 94. 75 As was suggested to me by the editors, this may also be explained, not only by expansionism, but also by the remarkable and rather unique bond of international criminal law with domestic criminal law. 76 See Jan Wouters and Cedric Ryngaert, ‘Impact on the Formation of Customary International Law’ in Menno T. Kamminga and Martin Scheinin (eds), The Impact of Human Rights Law on General International Law (OUP 2009) 111, 120–2; Jain, ‘Judicial Lawmaking’ (n 37); Bantekas, ‘Reflections’ (n 50) 136. 77 For a general overview, see Fabián O. Raimondo, General Principles of Law in the Decisions of International Criminal Courts and Tribunals (Brill 2008). See also Raimondo, ‘General Principles of Law,

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Two Cultures of International Criminal Law 413 crimes,78 duress as a mitigating factor in sentencing but not a complete defence against a charge involving the killing of innocent human beings,79 as well as a number of proced ural principles.80 It is interesting to note that, under the Franconian culture of international criminal law, the extensive use of modes of legal reasoning associated with the sources for the sake of expansion81 and the simultaneous emancipation from an orthodox understanding thereof have been justified by invoking some of the canonical texts of the discipline like the Martens Clause.82 Such experiments have been similarly vindicated by the necessary ‘renaissance of international criminal justice’.83 Justifications have also been found in the necessity ‘to keep up with changing configuration of violence that far outpace the slow codification of international criminal law’.84 Equally interesting has been the legitimization of these emancipatory moves through the idea of a rejuvenation of the modes of legal reasoning associated with the sources of international law deemed in disarray and threatened by desuetude.85 It is not a surprise that the Franconian culture of international criminal law and the expansionist uses of modes of legal reasoning associated with the sources of inter national law have brought about some criticisms, mostly in relation to the perceived departures from the traditional understanding of the sources of international law.86 Judicial Creativity and the Development of International Criminal Law’ (n 37); Jain, ‘Judicial Lawmaking’ (n 37) 121–9; Swart, ‘Judicial Lawmaking’ (n 36) 468–71. 78 The Prosecutor v. Akayesu (Judgment) ICTR- 96-4-T, (2 September 1998) paras 596–8 (Trial Chamber I); Prosecutor v. Furundžija (Judgment) IT-95–17/1-T, (10 December 1998) para 178 (Trial Chamber). See Niamh Hayes, ‘Creating a Definition of Rape in International Law: The Contribution of the International Criminal Tribunals’ in Shane Darcy and Joseph Powderly (eds), Judicial Creativity at the International Criminal Tribunals (OUP 2011) 129–57. 79 Prosecutor v. Erdemović (Judgement) IT-96-22-A, (7 October 1997) paras 1–10 (ICTY, Appeals Chamber). 80 Göran Sluiter, ‘Procedural Lawmaking at the International Criminal Tribunals’ in Shane Darcy and Joseph Powderly (eds), Judicial Creativity at the International Criminal Tribunals (OUP 2011) 315–31. 81 Swart, ‘Judicial Lawmaking’ (n 36). 82 Antonio Cassese, ‘The Martens Clause: Half a Loaf or Simply Pie in the Sky?’ (2000) 11 European J of Intl L 187, 213–14 (hereafter Cassese, ‘The Martens Clause’) (despite rejecting the idea that the clause elevates the law of humanity and the dictates of public conscience into distinct sources of law, Cassese contends that the clause has some indirect impact on the customary process whereby the requirement of practice may be less stringent). 83 Fan, ‘Custom’ (n 19) 1064. 84 ibid; Larissa van den Herik, ‘Using Custom to Reconceptualize Crimes Against Humanity’ in Shane Darcy and Joseph Powderly (eds), Judicial Creativity at the International Criminal Tribunals (OUP 2011) 80–105. 85 Fan, ‘Custom’ (n 19) 1064, 1071, 1075. 86 Nouwen and Becker, ‘Tadić’ (n 68); Christopher Greenwood, ‘International Humanitarian Law and the Tadic Case’ (1996) 7(2) European J of Intl L 265; Steven Powles, ‘Joint Criminal Enterprise: Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity?’ (2004) 2(2) J of Intl Crim Justice 606; Ben Saul, ‘Legislating from a Radical Hague: The United Nations Special Tribunal for Lebanon Invents an International Crime of Transnational Terrorism’ (2011) 24(3) Leiden J of Intl L 677. Matthew Gillet and Matthias Schuster, ‘Fast Track Justice: The Special Tribunal for Lebanon Defines Terrorism’ (2011) 9 J of Intl Crim J 989; Bantekas, ‘Reflections’ (n 50); André Nollkaemper, ‘The Legitimacy of International Law in the Case Law of the International Criminal Tribunal for the former Yugoslavia’ in Thomas A J A

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

414 Jean d’Aspremont It is not the place to review these criticisms. The point is that such objections have not sufficed to discontinue the Franconian culture of international criminal law and sources-based expansionism. Overall, expansion through sources has continued to be openly celebrated by international criminal lawyers.87

IV. The Roman culture of international criminal law: hermeneutic expansionism The Franconian culture of international criminal law that was described in the previous section came to be outweighed by a new form of expansionism grounded in her meneutics rather than modes of legal reasoning associated with the sources of international law. It is submitted in this section that the displacement of the Franconian culture of international criminal law by a new culture geared towards interpretation-based expansionism is not necessarily the result of the constraints on sources-based expansionism put in place by the Statute of the ICC. Instead, according to the argument made here, the shift to interpretation-based expansionism rather originated in a rewriting of the principle of legality that, in the Rome Statute, was turned into an interpretive principle.88 In other words, according to the argument made here, Vandamme and Jan Herman Reestman (eds), Ambiguity in the Rule of Law, The Interface between National And International Legal Systems (Europa Law Publishers 2001) 17; Guénaël Mettraux, International Crimes and the Ad Hoc Tribunals (OUP 2005) 13; Peter Rowe and Colin Warbrick, ‘The International Criminal Tribunal for Yugoslavia: The Decision of the Appeals Chamber on the Interlocutory Appeal on Jurisdiction in the The Tadic case’ (1996) 45(3) Intl and Comparative L Q 691, 696; Wolff Heintschel von Heinegg, ‘Criminal International Law and Customary International Law’ in Andreas Zimmermann (ed) International Criminal Law and the Current Development of Public International Law (Duncker & Humblot 2003) 27; Lindsay Moir, The Law of Internal Armed Conflict (CUP 2002) 240–2; Yoram Dinstein, ‘The Interaction between Customary International Law and Treaties’ (2007) 322 Collected Courses of the Hague Academy of International Law 245, 319–20; Christopher Greenwood, ‘Belligerent Reprisals in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’ in Horst Fischer, Claus Kress, and Sascha Rolf Lüder (eds), International and National Prosecution of Crimes under International Law: Current Developments (Spitz 2001) 539; Milanović, ‘Aggression and Legality’ (n 37) 168. 87 Fan, ‘Custom’ (n 19) 1079; Louis G Maresca, ‘Case Analysis: The Prosecutor v. Tadić: The Appellate Decision of the ICTY and Internal Violations of Humanitarian Law as International Crimes’ [1996] 9 Leiden J of Intl L 219, 223; George H Aldrich, ‘Jurisdiction of the International Criminal Tribunal for the Former Yugoslavia’ (1996) 90 American J of Intl L 64; Claus Kress, ‘War Crimes Committed in NonInternational Armed Conflict and the Emerging System of International Criminal Justice’ (2000) 30 Israel YB on Human Rights 103 (hereafter Kress, ‘War Crimes’). 88 In the same vein, see van den Herik, ‘Testing ICL’s Expressive Capacity’ (n 16) (‘[w]ithin ICL, different understandings and interpretations can be discerned, and accordingly in her exposé Evelyne oscillates between the ICTY and ICC as well as other bodies. Differences between ICTY approaches and ICC dynamics can partly be explained by the fundamentally different role which the legality principle played in the ICTY context as compared to the ICC. When the ICTY was established, the UN

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Two Cultures of International Criminal Law 415 it is a rewriting of the principle of legality—one of the foundational principle of the field through which the main beliefs of international criminal lawyers are reaffirmed, experienced and justified—that allowed the emergence of what is called here the Roman culture of international criminal law. As will also be shown in the next paragraphs, this cultural transformation has not been without irony, for this readjustment of one of the foundational principles of the discipline was originally meant to justify a restriction of expansion through interpretation and, yet, ended up comforting a new type of expansionism based on hermeneutics. Before expounding on this turn to the Roman culture and hermeneutic expansionism, three preliminary observations are warranted. First, it is important to highlight that hermeneutic expansionism cannot be conflated with the mere phenomenon of creative interpretation. Indeed, interpretation—including judicial interpretation—always is performative and constitutive of its object.89 In that sense, interpretation always and necessarily is creative and international criminal lawyers have always engaged therein. Hermeneutic expansionism differs from the mere creative and performative character of interpretation as the former rests on an attempt to push norms into radically new territories and offering new standards of conducts on which international actors are evaluated. The difference between expansionism through interpretation and creative interpretation is thus one of qualitative threshold of what is being constituted and performed. In that sense, the rewriting of the principle of legality created space where expansionism supersedes common interpretive creativity. Second, a remark is neces sary as to the temptation to historically situate the Roman culture of international crim inal law as starting with the adoption of the Rome Statute. Such a historical narrative would prove a bit too simplistic. In fact, the Nuremberg International Military Tribunal also resorted to interpretation-based expansionism. What is more, the work of the ad hoc criminal tribunals that extensively relied on interpretation-based expansionism did not cease with the entry into force of the Rome Statute, nor did the sources-based expansionist scholarship described earlier. In that sense, there is a considerable degree of chronological overlap between the Franconian and Roman cultures of international criminal law, the substitution of the former by the latter having been incremental rather than instantaneous. Third, it must be recognized that expansion of international crim inal law through modes of legal reasoning associated with interpretation was not unheard of when the Rome Statute was adopted. Although favouring sources-based Secretary-General gave the express instruction that all findings had to be grounded in customary international law and in that setting observing the legality principle thus boiled down to a law-ascertainment exercise. The reference to custom obviously left much room for creativity and this human rights-friendly environment was conducive to greater insertion of socio-economic notions. At the ICC, ICL is being applied in the context of a full-fledged and very detailed treaty which marginalizes custom, and here the legality principle, as codified in Article 22 of the Rome Statute, explicitly prescribes strict construction. In this setting the legality principle regards the interpretation of treaty rules and is thus concerned with content-determination’). 89 See Ingo Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists (OUP 2012). See also d’Aspremont, ‘The Multidimensional Process of Interpretation’ (n 2).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

416 Jean d’Aspremont expansion prior to the adoption of the Rome Statute, scholars and judges have long resorted to ‘progressive’ modes of interpretation to further promote the expansion of international criminal law.90 In this respect, it is noteworthy that the Martens Clause91 had often been found to provide guidance in the interpretation of the rules of humanitarian law applied by criminal tribunals,92 thereby supplementing the traditional ‘rules’ on interpretation of the Vienna Convention on the Law of Treaties also deemed applic able.93 It remains that, although not unprecedented, interpretation-based expansionism came to be systematized and generalized in relation to the substantive provisions of the Rome Statute at the expense of sources-based expansionism, as is explained in the following paragraphs. It is well-known that the Rome Statute entailed an exercise of codification aimed at curtailing the expansionist creativity of judges94 who had been at the forefront of expansionism under the Franconian culture.95 This meant barring the very routes that had allowed international criminal law to grow under the Franconian culture and, in particular, restricting access to sources-based modes of legal reasoning. It is this restriction of sources-based expansionism that informed the inclusion in the ICC Statute of an allegedly rigid regime of sources96—that, among others, marginalizes 90 Bantekas, ‘Reflections’ (n 50) 121–4; Jacobs, ‘ICL’ (n 16); Swart, ‘Judicial Lawmaking’ (n 36) 478–84. 91 The clause has itself been held to constitute customary law, see Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep 226 para 84. 92 Cassese, ‘The Martens Clause’ (n 96) 212–13. For an example, see Kupreškić (n 80) para 527. 93 For an illustration of the resort to Vienna Convention by the ICTY, see Prosecutor v. Jelisić (Judgment) IT-95-10-T, (14 December 1999) para. 61 (Trial Chamber). For an illustration of the resort to the Vienna Convention by the STL, see Interlocutory Decision on the Applicable Law (STL) (n 86) paras 26–32. 94 Powderly, ‘The Rome Statute’ (n 21) 444–54. The view that the drafting of the ICC Statute presents an ‘overwhelming exercise in legal positivism’ has been expressed, amongst others, by Judge David Hunt, ‘The International Criminal Court: High Hopes, “Creative Ambiguity” and an Unfortunate Mistrust in International Judges’ (2004) 2(1) J of Intl Crim Justice 56. 95 The ambition of the ICC Statute to restrict sources-based expansionism is well-documented. For an illustration of the explicit fear of the so-called Cassese approach in the preparation of the Rome Statute, see the references in Fan, ‘Custom’ (n 19) 1068 and in Heikelina Verrijn Stuart and Marlise Simons, The Prosecutor and the Judge: Benjamin Ferencz and Antonio Cassese, interviews and writings (Amsterdam UP 2009) 52–3. 96 See especially art 21 (Applicable Law) of the Rome Statute (n 26) that reads as follows: 1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions. 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Two Cultures of International Criminal Law 417 c ustomary law97 and guides the interpretation of sources themselves98—and pre-defining incriminations.99 In fact, it is the very purpose of Article 21 of the Statute—whose necessity is not self-evident100—to rein in sources-based expansion by judges,101 thereby manifesting some suspicion towards judges.102 Article 21—which can itself be considered either a mild form of lex specialis departing from the general non-hierarchical regime of sources of international law or, more plausibly, as a specific guide of interpretation of the sources of international law in the context of the Rome Statute103—sets forth a sophisticated104 regime to guide the ascertainment of the applicable rules, among others through a formal105 and possibly substantive106 hierarchy of sources.107 Interestingly, albeit unsurprisingly, the abovementioned attempt of the Rome Statute to curtail sources-based expansionism did not prove decisive in the turn away from sources-based expansionism. Like any sophisticated interpretive regulatory provision, Article 21 ends up empowering interpreters and law-appliers.108 This is particularly the case of Article 21.3109 that allows one to circumvent the strict hierarchy of Article 21.1 and Article 21.2,110 and which has accordingly been described as ‘a potential chink in the armour of this burgeoning culture of restraint’.111 The empowerment has been widely acknowledged in legal scholarship112 and is confirmed in the practice of the ICC.113 97 This has been described as the decline of customary law in international criminal law. See van den Herik, ‘The Decline of Customary International Law’ (n 3); See also Jacobs, ‘ICL’ (n 16). 98 Powderly, ‘The Rome Statute’ (n 21) 447. 99 ibid 444. 100 Verhoeven (n 16) 15. 101 van den Herik, ‘The Decline of Customary International Law’ (n 3) 241–2; Pellet has also observed that Article 21 of the Statute aims to deprive judges of their inherent powers, Pellet, ‘Applicable Law’ (n 54) 1053, 1056. 102 ibid 1056. 103 For the latter understanding, see Powderly, ‘The Rome Statute’ (n 21) 447. 104 Pellet, ‘Applicable Law’ (n 54) 1082. 105 ibid 1076–9; Appazov, ‘Judicial Activism’ (n 13); Powderly, ‘The Rome Statute’ (n 21) 473. 106 Pellet, ‘Applicable Law’ (n 54) 1079. 107 It has been acknowledged that Article 21 provides an improvement of the definition of general principles of law compared to that found in Article 38 of the Statute of the International Court of Justice and usefully distinguishes them from general principles of international criminal law. See Verhoeven (n 16) 9; Pellet, ‘Applicable Law’ (n 54) 1073. See also The Prosecutor v .Lubanga (Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial) ICC-01/04–01/06, (30 November 2007) para 44 (Trial Chamber I) (the Court confirmed the primacy of the sources mentioned in Article 21(1) and the subsidiary nature of the other sources enumerated in Article 21(1)(b) and (c)). 108 Pellet, ‘Applicable Law’ (n 54) (‘[o]ne may, thus, predict that the judges will interpret the text, at least partially, so as to recover the powers inherent in all courts, of which the drafters of the Statute clearly wanted to deprive them’ 1053). 109 Powderly, ‘The Rome Statute’ (n 21). For an illustration of the empowering effect of Article 21.3, see The Prosecutor v. Lubanga (Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006) ICC-01/04–01/06 (OA4), (14 December 2006) paras 37–9 (Appeals Chamber) (hereafter Lubanga (AJ on Jurisdiction)). 110 Powderly, ‘The Rome Statute’ (n 21) 486. 111 ibid 484. 112 ibid. See also Pellet, ‘Applicable Law’ (n 54) 1053. 113 The Prosecutor v. Katanga and Ngudjolo Chui (Decision on the confirmation of charges) ICC01/04–01/07–717, (30 September 2008) para. 508 (Pre-Trial Chamber I) (hereafter Katanga (Decision on the confirmation of charges)) (the Court used Article 21 to conclude that the Statute as a first point of

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

418 Jean d’Aspremont The futility of the constraints on sources-based expansionism put in place by the Rome Statute is reinforced by the extent to which the statute, and especially Article 21,114 does not completely exclude the resort to customary international law,115 one of the cardinal tools of the Franconian culture of international criminal law.116 The restrictions placed on sources-based expansionism in the Rome Statute have thus fallen short of setting actual constraints on modes of legal argumentation associated with the sources. As was contended earlier, the turn to hermeneutic expansionism away from sourcesbased expansionism does not find its roots in the sophisticated regime of sources put in place by the Rome Statute. Instead, and equally ironically, the turn to hermeneutic expansionism originates in the attempt of the Rome Statute to regulate its own inter pretation. This can be explained as follows. Just as it tried to regulate sources-based argumentation in the framework of the Statute, the Rome Statute provides some sophisticated argumentative engineering with a view to controlling the interpretation of the statute. As is well-known, this control over interpretation of the statute is not conducted through the traditional ‘rules’ of interpretation of the Vienna Convention on the Law of Treaties that are not mentioned by the statute, albeit their applicability has been recognized in the case law.117 Instead of leaving interpretation regulated reference and a comprehensive ‘manual’ on modes of liability makes it unnecessary to consider whether general customary international law accepts or discards some modes of liability); Prosecutor v. Ruto and Sang (Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/09–01/11–373, (23 January 2012) (Pre-Trial Chamber I) (the Court used the hierarchy of norms present in Article 21 to reach an interpretation on the modes of liability of co-perpetration and indirect perpetration); Situation in the Democratic Republic of the Congo (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) ICC-01/04101-tEN-Corr, (17 January 2006) para 47 (drawing on Article 21(1), the Court notes that the Rules of Procedure and Evidence are subordinate to the Rome Statute whose provisions cannot be interpreted in a way that narrows its scope). 114 Pellet, ‘Applicable Law’ (n 54) 1071 (Pellet has claimed that customary law is not explicitly mentioned in Article 21 because of ‘an erroneous conception of the principle of the legality of offences and punishment’). 115 On the idea that Article 21 does not exclude customary law, see Verhoeven (n 16) 9. It has also been contented that the Statute itself is declaratory of customary international law. See Darryl Robinson and Herman von Hebel, ‘War Crimes in Internal Conflicts: Article 8 of the ICC Statue’ (1999) 2 YB of Intl Humanitarian L 193, 194; Kress, ‘War Crimes’ (n 87) 109; Philippe Kirsch, ‘Foreword’ in Knut Dörmann, Elements of War Crimes Under the Rome Statute of the International Criminal Court (CUP 2003) xiii. See also this question debated in relation to the bindingness of the Statute towards the individual by Marko Milanović, ‘Is the Rome Statute Binding on Individuals? (and Why We should Care)’ (2011) 9 J of Intl Crim Justice 25–52. This was confirmed by the ICC Chambers which indicated they would apply customary law in case of a lacuna of the Statute, see Lubanga (AJ on Jurisdiction) (n 109) para 34. 116 See Part III. 117 See, e.g., The Prosecutor v. Lubanga (Judgement on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal) ICC-01/04–168, (13 July 2006) paras 33, 40–1 (Appeals Chamber); The Prosecutor v. Katanga (Judgment pursuant to Article 74 of the Statute) ICC-01/04–01/07-3436-tENG, (7 March 2014) (Trial Chamber II) (the principle dubio pro reo enshrined in article 22(2) is only applicable in cases of ambiguity and does not take precedence over the traditional methods of interpretation found in Articles 31–32 VCLT); The Prosecutor v. Katanga (Judgement on the Appeal of Mr Germain Katanga against the Decision of Pre-Trial Chamber I Entitled ‘Decision on the Defence Request Concerning Languages’) ICC-01/04–01/07–522, (27 May 2008) para 50

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Two Cultures of International Criminal Law 419 through the Vienna Convention, the Rome Statute seeks to guide interpretation through one of the very foundational principles of international criminal law, namely the principle of legality.118 In fact, under Article 22.2, the principle of legality is turned into an interpretive principle119 whereby the interpretation of the crimes found in the statute ‘shall be strictly construed and shall not be extended by analogy’. It also provides that ‘[i]n case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted’.120 Although this specific expression of the principle of legality in the Rome Statute can be construed as reflecting what is sometimes called the principle of strict construction and the principle in dubio pro reo,121 it is submitted here that this interpretive take on the principle of legality has constituted a remarkable rewriting of one of the foundational paradigms of the field that had, until then, underpinned sources-based expansionism.122 It is true that the turn to hermeneutic expansionism could have been conducted and vindicated independently of the principle of legality. Yet, according to the argument made here, it is the rewriting of the principle of legality under the ICC regime that decisively allows hermeneutic expansionism to supersede common interpretive creativity of judicial processes with a view to sustaining the expansionism at the heart of the beliefs of international criminal lawyers. This turn can be explained as follows. (Appeals Chamber); The Prosecutor v. Lubanga (Judgment pursuant to Article 74 of the Statute) ICC01/04–01/06–2842, (14 March 2012) para 621 (Trial Chamber I) (hereafter Lubanga (Judgment pursuant to Article 74 of the Statute)). See however the plea for an exclusion of the Application of the Vienna Convention on the Law of Treaties in Jacobs, ‘ICL’ (n 16). 118 On the idea that Article 22.2 was meant to constrain interpretation, see Powderly, ‘The Rome Statute’ (n 21) 497; The Prosecutor v. Ngudjolo Chui (Judgment pursuant to Article 74 of the Statute, Concurring Opinion of Judge Christine Van den Wyngaert) ICC-01/04–02/12–4, (18 December 2012) paras 18–19 (Trial Chamber II) (hereafter Ngudjolo Chui (Concurring Opinion of Judge Christine Van den Wyngaert)). This change in the understanding and role of the principle of legality towards the control of interpretation can be explained by the fact that retroactivity of prosecutions is no longer an issue under the Rome Statute. It has also been claimed that this change is informed by a vindication of the interests of some powerful states, see Powderly, ‘The Rome Statute’ (n 21) 478. 119 In the same vein, ibid 489–97. See also van den Herik, ‘Testing ICL’s Expressive Capacity’ (n 16). 120 Rome Statute (n 26), Article 22—Nullum crimen sine lege: 1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. 3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute. 121 Powderly, ‘The Rome Statute’ (n 21) 489–95. 122 This is not exclusive of the Franconian understanding of the principle of legality being resilient in the case law of domestic courts. See, e.g., Public Prosecutor’s Office, de Lois (Graciela) (intervening) and ors (intervening) v. Manzorro (Adolfo), Final Appeal Judgment, Case No 16/2005, Aranzadi JUR 2005/132318, ILDC 136 (ES 2005), 19th April 2005, Criminal Chamber; Public Prosecutor (on behalf of Behram (Hussein) and ors) v. Arklöf (Jackie), Judgment, Case No B 4084–04, ILDC 633 (SE 2006), 18th December 2006, Sweden [se].

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

420 Jean d’Aspremont As most codes on interpretation—and just like Article 31 of the Vienna Convention on the Law of Treaties—Article 22.2 opens a remarkable interpretive space for expansion and empowers any expansionist interpreter. Even if Article 22.2 is meant, as is sometimes argued,123 to override the Vienna Convention on the Law of Treaties only as far as the interpretation of those articles dealing with the criminal responsibility of individuals are concerned, the empowerment it carries is dramatic. It is no coincidence that the practice of the ICC over the last decade124 shows that this provision has often been resorted to in a way that favours ‘victim-focused teleological reasoning’.125 What is more, combined with the—now commonly acknowledged—immense creative powers delegated by Article 31 of the Vienna Convention on the Law of Treaties,126 the room for expansion through interpretation comes to be immensely bolstered by the ICC Statute and its new take on the principle of legality.127 By explicitly turning the principle of legality into a tool to control interpretation,128 the architects of the ICC came to articulate and consolidate the expansion of the field around interpretive processes away from sources-based constructions and far beyond the common interpretive creativity 123 Ngudjolo Chui (Concurring Opinion of Judge Christine Van den Wyngaert) (n 118) paras 18–19. 124 See, e.g., Katanga (Decision on the confirmation of charges) (n 113) para 448 (the Pre-Trial Chamber in the case used Article 22(1) to define/expand the meaning of ‘other inhumane acts’ in Article 7(1)(k) as ‘serious violations of international customary law and the basic rights pertaining to human beings, being drawn from the norms of international human rights law, which are of a similar nature and gravity to the acts referred to in Article 7(1) of the Statute’); The Prosecutor v. Bemba (Decision Pursuant to Article 61(7) (a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) ICC-01/05–01/08–424, (15 June 2009) paras 369, 420–6 (Pre-Trial Chamber II) (it is through the use of Article 22 that the Chamber defined the third element to be satisfied for the purpose of Article 28(a), which is that the crimes committed by the suspect’s forces resulted from his failure to exercise control properly over them (i.e., the Congolese Liberation Movement)); The Prosecutor v. Al Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir) ICC02/05–01/09–3, (4 March 2009) (Pre-Trial Chamber I) (Article 22(2) was used in relation to the definition of the crime of genocide in Article II of the 1948 Genocide Convention; the Court concluded that it does not require a contextual element which is provided for in the Elements of Crime); Lubanga (Judgment pursuant to Article 74 of the Statute) (n 117) (the Court used Articles 21 and 22(2) as interpretive tools for the definition of the three elements present in Article 8(2)(e)(vii) of the Statute, i.e., the elements of conscripting, enlisting children under the age of 15, or using them to participate actively in hostilities, which are not defined in the Statute nor the Rules or the Elements of Crimes); The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/09–02/11–382, (23 January 2012) (Pre-Trial Chamber II) (the Court used Article 22 to expand the meaning of one of the contextual elements needed for crimes against humanity, specifically that the conduct be part of ‘a State or organisational policy’); Lubanga (Judgment pursuant to Article 74 of the Statute) (n 117) (the Court used article 22(2) to test whether the interpretation of article 8(2)(e)(vii) was in order: ‘[t]herefore, consistently with Article 22 of the Statute, a child can be “used” for the purposes of the Statute without evidence being provided as regards his or her earlier “conscription” or “enlistment” into the relevant armed force or group’ para 620). 125 See the practice discussed by Robinson, ‘Identity Crisis’ (n 19) 933–8. 126 See d’Aspremont, ‘The Multidimensional Process of Interpretation’ (n 2). 127 In the same vein, Powderly, ‘The Rome Statute’ (n 21) 497. On the idea of the ICC as prolonging expansionism, even through interpretation, see Appazov, ‘Judicial Activism’ (n 13). 128 This is not exclusive that the principle of legality had occasionally been used in practice as an interpretive tool, even under the Franconian culture.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Two Cultures of International Criminal Law 421 observed in all judicial processes, thereby igniting a major change in the culture of international criminal law.129 It will not come as a surprise that the centralization and systematization of interpretation-based expansionism witnessed in the ICC practice have occasionally witnessed relapses among some international criminal lawyers that have grown more reserved to hermeneutic expansionisms as a way to serve their own beliefs in what the field ought to achieve. Yet, such growing scepticism about the beliefs of the field has not critically undermined the dominant hermeneutic expansionism witnessed in international legal thought and practice about international law. More interesting for the argument made here is the fact that hermeneutic expansionism under the ICC regime has not been spared of the objection that this new expansionism does not live up to the very requirements of the principle of legality, irrespective of its turn into an interpretive principle. In a way that is reminiscent of the objections heard under the Franconian culture, it has been contended that expansion through interpretation—and thus the Roman culture—does not meet the requirements attached to the principle of legality.130 Although the charge is probably less compelling under the Roman culture of international criminal law because retroactive prosecution is less an issue,131 it may be that, once again, the field fails to live up to the requirements of its own self-imposed foundational principles. This is a point that is discussed in the following section. What matters for the sake of the argument made in this section is that the fall of the Franconian culture and the rise of the Roman culture, in the end, originated in a major shift about what the field makes of one of its self-elected foundational principles, namely the principle of legality.

V. Concluding Remarks: Cultural Transformation and the Contradictory Beliefs of International Criminal Lawyers Cultural transformations, like all transformations, continue a certain tradition. In other words, revolutions always occur within a tradition that the revolution is not meant to reinvent but to perpetuate.132 In that sense, there can just not be an un-situated

129 For some illustrations, see n 124. 130 Swart, ‘Judicial Lawmaking’ (n 36) 485; Jacobs, ‘ICL’ (n 16). 131 Appazov, ‘Judicial Activism’ (n 13) 16. 132 Alasdair McIntyre, Whose Justice? Which Rationality? (Duckworth 1988) 351–5. In the same vein, see François Ost, Raconter la loi: aux sources de l’imaginaire juridique (Odile Jacob 2004) 264 (hereafter Ost, Raconter la loi).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

422 Jean d’Aspremont revolutionary.133 This is why revolutions are always the bellwether of what a field or a community holds as self-defining and which the revolution concerned is meant to preserve rather than reinvent. The same holds for international criminal law. If anything, the move from the Franconian culture to the Roman culture that was discussed in the previous sections confirms the field’s self-identification around a set of beliefs geared towards expansion and an allegiance to the principle of legality through which such beliefs are re-affirmed, experienced, and justified.134 The discussion simultaneously showed that the move from sources-based expansionism to hermeneutic expansionism followed a rewriting of the very credo of the field, making expansionism less explicit but not less present. Rewriting myths,135 gospels,136 or tradition137 is very common. The rewriting process of the principle of legality does not seem to call for more attention. What is more germane for the sake of the discussion conducted here is the fact that the rewriting of the principle of legality has, so far, not sufficed to iron out the fundamental contradictory nature of the culture of international criminal law. Indeed, whether the beliefs that form the expansionism of international criminal law and the central credo that international criminal lawyers found in the principle of legality can ever be reconciled seems unlikely. Expansionism, whether conducted through modes of legal reasoning associated with sources or through modes of legal reasoning associated with interpretation, is likely to lead to a denial of what is at stake behind the principle of legality. If this is the case, it is fair to say that international criminal law ends up defining itself through contradictions, and especially a contradiction between a faith in the ability of international criminal law to end mass violence if it is properly and duly expended, and the invocation of the prin ciple of legality through which this faith is reaffirmed, experienced, and justified.138 Should such contradiction be a matter of concern? Certainly not. After all, international criminal law would not be the only field to be built on contradictions.139 It remains that international criminal law, and all those professionals composing the field, would benefit from more self-awareness about the contradictions they build their discourses on. If maturity of a field means anything, it may be nothing more than some self-awareness for the contradictions punctuating one’s faith.

133 Ingo Venzke, ‘Cracking the Frame? On the Prospects of Change in a World of Struggle’ (2016) 27 European J of Intl L 831, 846–7 (‘Entirely unsituated, the subject is not capable of political action’). 134 cf with Koller (n 29). 135 See Ost, Raconter la loi (n 132) 264. 136 See generally David Friedrich Strauss, The Life of Jesus Critically Examined (4th edn, George Eliot tr, Swan Sonnenechevin 1902). 137 On the notion of invention of tradition, see Eric Hobsbawn, ‘Introduction: Inventing Traditions’, in Eric Hobsbawn and Terence Ranger (eds), The Invention of Tradition (CUP 1983) 1–14. 138 For a compelling account of some of the other contradictions informing the theory and practice of international criminal law, see Robinson, ‘Identity Crisis’ (n 19). 139 For a similar finding for the law of international organizations, see Jean d’Aspremont, ‘The Law of International Organizations and the Art of Reconciliation: From Dichotomies to Dialectics’ (2014) 11 Intl Organizations L Rev 428. With respect to the contradictions at the heart of international human rights law, see d’Aspremont, ‘Expansion and the Sources of IHRL’ (n 63).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

chapter 18

Im m u n it y a n d Impu n it y Adil Ahmad Haque

I. Introduction The past, though dead, rules us from the grave. Both during and after the Second World War, the Austrian jurist and philosopher Hans Kelsen argued at length that international law generally protects individuals from criminal prosecution for acts performed in their official capacity as state agents without that state’s consent. In particular, current and former state agents generally may not be prosecuted for violations of international law committed on behalf of their state in either foreign or international courts. On Kelsen’s view, this protection extends to members of a state’s armed forces acting under orders issued or authorized by their government. Accordingly, lawful combatants generally may not be prosecuted for such acts, even if they violate the laws of war. On this view, the immunity of lawful combatants is simply a special application of the general immunity of state agents acting as such, and therefore extends to war crimes committed as part of a state plan or policy. Today, the functional immunity—or immunity ratione materiae—of state agents with respect to international crimes performed in an official capacity remains contentious. In 2017, the International Law Commission (ILC) provisionally adopted a draft article stat ing that ‘[i]mmunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law’, namely the crime of genocide, crimes against humanity, war crimes, the crime of apartheid, torture, and enforced disappearance.1 The draft article was not approved by consensus but instead by recorded vote, with 21 votes in favour, 8 votes against, and 1 abstention. 1 ILC, Report of the International Law Commission on the Work of Its Sixty-Ninth Session, UNGAOR, 72nd Sess, Supp No 10, UN Doc A/72/10 (2017) at 176 (hereafter ILC Report on its 69th Session).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

424 Adil Ahmad Haque According to one member: ‘That debate . . . proved to be one of the most contentious within the Commission in years’.2 Similarly, in the Sixth Committee of the United Nations General Assembly, 24 states expressed general support for the draft article, while 18 states expressed general concern or disagreement.3 On this important issue, Kelsen’s view remains potent and, by some measures, ascendant.4 In contrast, the relationship between the functional immunity of state agents and the lawful combatant immunity of members of state armed forces has received little sus tained attention. The ILC’s first special rapporteur on the immunity of state officials took the view that: [T]he issue of the criminal prosecution and immunity of military personnel for crimes perpetrated during military conflict in the territory of a State exercising jurisdiction would seem to be governed primarily by humanitarian law, and to be a special case and should not be considered within the framework of this topic [of official immunity].5

At least one member suggested that the ILC study the relationship between official immunity and combatant immunity, observing ‘that it was in the field of international humanitarian law that the issue of exemptions on grounds of immunity had been dis cussed and analysed to a large extent’.6 The special rapporteur’s view carried the day, the topic was dropped, and the resulting draft articles are ‘without prejudice to the immun ity from criminal jurisdiction enjoyed under special rules of international law, in par ticular by persons connected with diplomatic missions, consular posts, special missions, international organizations and military forces of a State’.7 On this neglected issue, Kelsen’s view has yet to receive a decisive reply. Given the intrinsic complexity of these issues, readers may fairly wonder what might be gained by approaching them indirectly, through a re-examination of Kelsen. First, in 2 Sean D. Murphy, ‘Crimes against Humanity and Other Topics: The Sixty-Ninth Session of the International Law Commission’ (2018) 111 American J of Intl L 970. 3 Adil Ahmad Haque, ‘Immunity for International Crimes: Where Do States Really Stand?’ (Just Security, 17 April 2018) accessed 9 April 2019. 4 See, e.g., Rosanne Van Alebeek, ‘The “International Crime” Exception in the ILC Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction: Two Steps Back?’ (2018) 112 AJIL Unbound 27 (finding that ‘where in 2011 57 percent of the members who participated in the debate expressed support for adopting some form of “international crimes” exception de lege lata, in 2017 that support had dwindled to 21 percent’ at 30). 5 Roman Anatolevich Kolodkin, Special Rapporteur, Second Report on Immunity of State Officials from Foreign Criminal Jurisdiction, ILC, 62nd Sess, UN doc. A/CN.4/631 (10 June 2010) para 86 accessed 9 April 2019 (hereafter Kolodkin, Second Report on Immuniy of State Officials). See also Report of the International Law Commission on the Work of Its Sixty-Third Session, UNGAOR, 66th Sess, Supp No 10, UN Doc. A/66/10 (2011) (‘the Special Rapporteur also recommended that the question relating to immunity of military personnel in armed conflict should not be considered under this topic since it was covered by a special legal regime’ at 221, para. 115). 6 ibid 226, para. 138. 7 ILC Report on its 69th Session (n 1) 175.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Immunity and Impunity 425 my view, Kelsen’s defence of functional immunity for international crimes, as well as the extension of functional immunity to lawful combatants, ranks among the strongest ever offered. Second, Kelsen’s arguments are subject to objections that apply mutatis mutandis to arguments still offered today. Finally, and perhaps most interestingly, some of Kelsen’s arguments may be turned on their heads, repurposed as arguments against functional immunity for international crimes, whether committed by combatants or by other state agents. Kelsen’s writings also shed new light on the often-obscure legal positions of the United States. The United States Department of Defense’s Law of War Manual directly cites Kelsen in support of the proposition that: ‘In addition to being associated with humanitarian principles governing the treatment of POWs, the combatant’s privilege has also been viewed as an application of the immunity that international law affords states from each other’s jurisdiction’.8 The manual approvingly quotes the following passage from Kelsen: That a State violates international law if it punishes as a criminal, according to its national law, a member of the armed forces of the enemy for an act of legitimate warfare, can be explained only by the fact that the State by so doing makes an indi vidual responsible for an act of another State. According to international law, the act in question must be imputed to the enemy State and not to the individual who in the service of his State has performed the act. It cannot be considered as a crime of the individual because it must not be considered as his act at all.9

The manual neglects to mention that, according to Kelsen, a state also violates inter national law if it punishes an enemy soldier for an act of illegitimate warfare, that is, for a war crime. On this view, such punishment would also—unlawfully—make an individ ual responsible for an act of another state. For his part, Kelsen considered whether custom establishes a limited exception per mitting prosecution of enemy soldiers during international armed conflict. Kelsen insisted that, after armed conflict ends, prisoners of war may not be prosecuted or pun ished except with the consent of their state. Strikingly, this is the position that the man ual seems to adopt. The manual allows that ‘[c]ombatants lack legal immunity from an enemy State’s domestic law for acts that are prohibited by the law of war’,10 and later notes that ‘[j]urisdiction over war crimes has traditionally been exercised by belliger ents’.11 On this view, only enemy states in a belligerent relationship may prosecute

8 US Department of Defense, Law of War Manual (General Counsel of the Department of Defense, June 2015, updated May 2016) 4.4.3.2 accessed 9 April 2019 (hereafter DoD Manual). 9 Hans Kelsen, ‘Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals’ (1943) 31(5) California L Rev 530, 549 (1943) (hereafter Kelsen, ‘War Criminals’). 10 DoD Manual (n 8) 4.4.3. 11 DoD Manual (n 8) 18.21.1.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

426 Adil Ahmad Haque enemy combatants for war crimes. The manual reaches back to the Nuremberg Tribunal for the claim that: [D]uring hostilities and before their formal termination belligerents have concur rent jurisdiction over war crimes committed by the captured enemy persons in their territory or against their nationals in time of war. . . . After armistice or peace agree ment the matter of punishment of war crimes is determined by the terms thereof.12

On this view, enemy soldiers are liable to prosecution for war crimes durante bello, but immune from prosecution for war crimes post bellum without the consent of their state. Importantly, the immunities afforded to lawful combatants are typically thought to apply only in international armed conflicts between states. In contrast, the manual claims that ‘the privileges and immunities afforded lawful combatants and other State officials’ apply in noninternational armed conflict between states and organized armed groups as well: Thus, for example, members of the armed forces of a State would continue to benefit from any privileges or immunities from the jurisdiction of foreign States that sought to exercise jurisdiction with respect to the actions of such State armed forces in a non-international armed conflict.13

On this view, members of the armed forces of one state (say, the United States) engaged in a non-international armed conflict with an armed group on the territory of another state (say, Afghanistan, Syria, or Pakistan) are immune from criminal prosecution by the terri torial state for acts performed on behalf of the intervening state. This is because, accord ing to the manual, lawful combatants enjoy the same immunities as ‘other State officials’. Crucially, if there is no international armed conflict between the intervening state and the territorial state, then there is no belligerent relationship between them, and therefore no exception to the general immunity of state agents acting as such. It follows that, on this view, members of the armed forces of the intervening state enjoy immunity from pros ecution by the territorial state for international crimes committed on the latter’s territory. This Kelsenian approach may also explain otherwise mysterious elements of the United States position toward the International Criminal Court (ICC). The United States often claims to oppose the exercise of jurisdiction by the Court over nationals of non-party states who commit international crimes on the territory of states parties.14 Yet it seems doubtful that the United States would oppose the international prosecution of, say, a US national who joins the Taliban and commits war crimes in Afghanistan. 12 ‘United States v. Josef Altstoetter et al. (Justice Case)’ in Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, vol III (U.S. GPO 1951) 1189–90 (Separate Opinion of Judge Blair). 13 DoD Manual (n 8) 17.4.1.1 (emphasis added). 14 See, e.g., ‘Statement on Behalf of the United States of America’, 16th Sess of the Assembly of States Parties, 8 December 2017 accessed 9 April 2019.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Immunity and Impunity 427 This suggests that the true basis for opposition lies elsewhere. Indeed, as Ambassador David Scheffer put it before the US Senate: Our position is clear: Official actions of a non-party state should not be subject to the court’s jurisdiction if that country does not join the treaty, except by means of Security Council action under the UN Charter.15

Revealingly, at the Rome Conference, the United States offered a proposal designed to allay its concerns, namely ‘to exempt from the ICC’s jurisdiction conduct that, in the absence of a Security Council referral, arises from the official actions of a non-party state acknowledged as such by that non-party’.16 It seems that the United States does not oppose the international prosecution of non-party nationals as such, but instead opposes the international prosecution of official actions of non-party States. Presumably, the United States would similarly oppose the exercise of national crim inal jurisdiction by one state over the official actions of another state. After all, what states may do individually, they may do collectively. If states may exercise criminal juris diction over official acts of other states, committed on the territory of the forum state, then there is no obvious reason why the territorial state may not delegate the exercise of its criminal jurisdiction to an international court. Accordingly, the United States seems committed to the view that international crimes performed in an official capacity may not be prosecuted by other states, including states where such crimes occurred and whose nationals were its victims. In other words, the United States seems committed to Kelsen’s view of functional immunity, to which we now turn.

II. Immunity and Responsibility Let us begin with Kelsen’s view that states may not criminally prosecute individuals for acts performed in their official capacity as agents of another state. It is sometimes claimed that Kelsen denied the substantive responsibility of individuals for acts of state, rather than (or in addition to) insisting on the procedural immunity of such individuals before foreign courts. For example, Roger O’Keefe writes that: Kelsen, in particular, maintained that, while the laws of war bound both states and individuals, breaches of these rules committed ‘under the order or sanction of 15 David J. Scheffer, Ambassador-at-Large for War Crimes Issues and Head of the U.S. Delegation to the U.N. Diplomatic Conference on the Establishment of a Permanent International Criminal Court, ‘Statement’ (Committee on Foreign Relations of the US Senate, 23 July 1998) accessed 9 April 2019. 16 David J. Scheffer, ‘U.S. Policy and the International Criminal Court’ (1999) 32 Cornell Intl L J 529, 534. See also David J. Scheffer, ‘The United States and the International Criminal Court’ (1999) 93 American J of Intl L 12, 20.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

428 Adil Ahmad Haque government’ were formally acts of state, not of the individual concerned, and as such gave rise to the responsibility of the state alone.17

Indeed, Kelsen rejected what George Manner called ‘the orthodox principle that indi viduals are not subjects of the law of nations’ and the implication that ‘individuals, therefore, cannot be held internationally liable for their acts contrary to the law of war’.18 Instead, Kelsen understood that ‘[t]he State acts only through individuals’ and that ‘acts of State are acts performed by individuals in their capacity as organs of the State and therefore acts imputed to the State’.19 Importantly, Kelsen thought that acts imputed to the state may not be imputed to the individuals who perform them. There is no individ ual responsibility for acts of state because collective responsibility and individual responsibility are mutually exclusive.20 Accordingly, ‘a person who, in the service of a State, has violated a rule of international law is not responsible’.21 If Kelsen’s view rests on the premise that collective responsibility and individual responsibility are mutually exclusive, then it is no longer sound, if it ever was. As the International Court of Justice explains: ‘[D]uality of responsibility continues to be a constant feature of international law’.22 The laws of war bind both states and individ uals acting on their behalf.23 As a result, a single act may trigger both the collective responsibility of the state and the individual responsibility of the person acting on its behalf.24 Accordingly: ‘Today there is no doubt that individuals can bear criminal responsibility under international law even in relation to conduct performed as an organ of state’.25

17 Roger O’Keefe, International Criminal Law (OUP 2015) 78 (hereafter O’Keefe, ICL). 18 George Manner, ‘The Legal Nature and Punishment of Criminal Acts of Violence Contrary to the Laws of War’ (1943) 37 American J of Intl L 407, 408. 19 Kelsen, ‘War Criminals’ (n 9) 533. 20 Two exceptions confirm the rule. Kelsen writes that espionage and ‘war treason’ trigger individual responsibility rather than collective responsibility, ‘even if the acts concerned have been committed at the command or with the authorization of the enemy government’. The imposition of individual responsibil ity for what would ordinarily be considered acts of state apparently requires the suspension of collective responsibility. Kelsen, ‘War Criminals’ (n 9) 552. 21 Kelsen, ‘War Criminals’ (n 9) 537. See also ibid 539 (‘in national law the same principle prevails: an individual is not responsible for his act if it is an act of State, i.e., if the act is not imputable to the indi vidual but only to the State’). 22 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, [2007] ICJ Rep 43, at 116, para. 173. 23 See, e.g., Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3 (hereafter Additional Protocol I to the Geneva Conventions) art. 57(2) (‘those who plan or decide upon an attack’ shall take various precautions in attack when acting on behalf of state party). 24 Compare ibid art 85(5) (‘grave breaches . . . shall be regarded as war crimes’) with art 91 (‘[a] Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation’). 25 O’Keefe, ICL (n 17) 78.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Immunity and Impunity 429 In my view, the mutual exclusivity of collective and individual responsibility was not an indispensable premise of Kelsen’s argument but rather the implication of one. According to Kelsen: The collective responsibility of a State for its own acts excludes, according to general international law, the individual responsibility of the person who, as a member of the government, at the command or with the authorization of the government, has performed the act. This is a consequence of the immunity of the State from the jurisdiction of another State.26

On this view, the mutual exclusivity of collective and individual responsibility ‘is the consequence of the generally recognized principle that no State has jurisdiction over the acts of another State’.27 If a state may not exercise jurisdiction over the acts of another state, then a state’s courts may neither hold another state collectively responsible for its acts nor hold another state’s agents individually responsible for its acts. Since Kelsen assumed that individual responsibility may only be imposed in a judicial forum, he concluded that there is no lawful way to impose individual responsibility for acts of state. In contrast, Kelsen recognized that collective responsibility may be imposed extrajudicially, through war and reprisals, leaving open lawful ways to impose collective responsibility for acts of state.28 In this way, the procedural immunity of official acts from foreign jurisdiction explains why acts of state trigger collective rather than indi vidual responsibility. So understood, Kelsen might be charged either with logical circularity or with con ceptual confusion. Rosanne van Alebeek levels the former charge, writing that ‘the reasoning advanced by Kelsen acquires a problematic circularity’.29 On her view, the functional immunity of state agents derives from the immunity of the state itself. A state’s immunity is infringed only if that state is directly or indirectly impleaded before the courts of another state, that is, made the nominal or factual defendant in a legal pro ceeding. Put another way, a state’s immunity is infringed only if its own legal responsi bility is, in fact, the subject of adjudication in a foreign court. However, van Alebeek argues, legal proceedings directly or nominally brought against agents of a state indir ectly or factually implead their state if and only if these agents are not individually responsible under international law for acts performed in an official capacity. 26 Kelsen, ‘War Criminals’ (n 9) 540–1 (emphasis added). See also Hans Kelsen, Principles of International Law (Rinehart 1952) (hereafter Kelsen, Principles of International Law) (‘[h]ence the principle that no state has jurisdiction over another state excluded individual—civil or criminal—responsibility for acts of state. Such responsibility can be established only with the consent of the state for the act of which an individual is to be made responsible’ at 236); Hans Kelsen, ‘Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?’ (1947) 1 Intl L Q 153, 159. 27 Kelsen, ‘War Criminals’ (n 9) at 550. 28 Kelsen used ‘reprisals’ to refer to belligerent reprisals in war as well as countermeasures in peace. I will do the same in this chapter. 29 Rosanne Van Alabeek, The Immunities of States and their Officials in International Criminal Law and International Human Rights Law (OUP 2008).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

430 Adil Ahmad Haque Conversely, if these agents are individually responsible for such acts, then there is no reason to presume that the adjudication of their responsibility is a mere pretext for (or inextricable from) the adjudication of their state’s responsibility. On this view, the pro cedural immunity of officials from foreign jurisdiction presupposes the substantive non-responsibility of individuals for acts of state. By arguing that the former entails the latter, Kelsen simply begged the question. We now arrive at the familiar view that state agents are not immune from prosecution for international crimes committed in their official capacity because such prosecu tion may adjudicate their individual responsibility for such crimes without adjudicating the collective responsibility of their state.30 As we have seen, international law directly imposes obligations on individuals, including state agents. In principle, a court could find that an individual violated her obligations without finding that her state violated its obligations. Of course, the individual responsibility of a state agent acting in her official capacity may logically entail the collective responsibility of her state. However, the foreign court does not violate any immunity so long as it does not draw this logical implication. Put another way, immunity precludes a finding of state responsibility, either as a means of establishing individual responsibility or as an end in itself. However, immunity does not preclude a finding of individual responsibility even if state responsibility is among its (undrawn) downstream logical consequences. While the forgoing argument succeeds on its own terms, Kelsen would likely have denied its premise. For Kelsen, immunity precludes adjudication of acts for which another state is responsible, whether or not state responsibility is found or even implied. In other words, a court may not adjudicate acts attributable to another state, whether or not the court attributes that act to another state. According to Kelsen: ‘Since a State manifests its existence only by acts of State performed by individuals, the true meaning of the rule concerned [that no State has jurisdiction over another State] can only be that no State has jurisdiction over acts of another State’.31 Importantly, on this view, it does not matter whether an act attributable to a state is adjudicated for the purpose of establishing individual responsibility for the violation of an individual’s legal obligations, or for the purpose of establishing state responsibility for the violation of a state’s legal obligations. The act is immune from adjudication under any description, substantive legal rule, or theory of responsibility. Kelsen’s view may be false, but it is not circular. As noted earlier, Kelsen might also be accused of conceptual confusion, since he seems to argue that the procedural immunity of state agents before foreign courts pre cludes their substantive responsibility under international law. As the International Court of Justice explains, immunity is one thing and responsibility is another: 30 See, e.g., Dapo Akande and Sangeeta Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’ (2010) 21 European J of Intl L 815. 31 Hans Kelsen, ‘Collective and Individual Responsibility for Acts of State Under International Law’ (1948) 1 Jewish YB of Intl L 226, 230 (hereafter Kelsen, ‘Acts of State’). See also Kelsen, ‘War Criminals’ (n 9) 540.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Immunity and Impunity 431 ‘Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law’.32 This strict separation of substance and procedure allows the Court to accept that state agents are now responsible for international crimes committed in an official capacity, while insisting that such state agents remain immune from prosecution in foreign courts. This point is worth pausing over. Suppose that Kelsen was correct that procedural immunity negates substantive responsibility. In conditional form: If (a) individuals are immune from prosecution for international crimes performed in an official capacity, then (b) individuals are not responsible for international crimes performed in an official capacity. Yet, under the Nürnberg Principles, as formulated by the International Law Commission: 1. Individuals are responsible for international crimes performed in an official capacity.33 Obviously, 2 is the negation of (b), the consequent of the conditional claim in 1. Since the negation of (b) entails the negation of (a), it follows that: 2. Individuals are not immune from prosecution for international crimes performed in an official capacity. In this way, Kelsen’s conditional claim, originally deployed to negate substantive respon sibility for international crimes committed in an official capacity, may be redeployed to negate procedural immunity for such crimes. Call this move the Reverse Kelsen. So, is Kelsen’s conditional claim valid? Or was Kelsen conceptually confused? In my view, Kelsen’s conditional claim is best understood in the context of his general jurispru dential outlook. According to Kelsen’s Pure Theory of Law, ‘law is a coercive order [that] provides for socially organized sanctions’.34 Accordingly, ‘to “prohibit” legally a certain conduct means nothing else than to attach to that conduct a sanction’.35 In particular, ‘de lege lata, the only legal criterion of a crime as a conduct “forbidden” by law is that 32 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, [2002] ICJ Rep 3, 26, para 60 (hereafter Arrest Warrant Case). 33 ‘Report of the International Law Commission covering its second session, 5 June–29 July 1950: Formulation of the Nürnberg Principles’ in Yearbook of the International Law Commission 1950, vol II (United Nations Publications 1957) 374. 34 Kelsen, Principles of International Law (n 26) 5. 35 Kelsen, ‘War Criminals’ (n 9) 536. See also Kelsen, Principles of International Law (n 26) 7 (‘[o]nly because a certain conduct is made by law the condition of a sanction is this conduct a delict or, what amounts to the same, is this behavior legally prohibited’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

432 Adil Ahmad Haque law—national or international—attaches to the conduct a punishment’.36 Relatedly, ‘[t]hat a person is legally responsible for a certain behavior or that he bears the legal responsibility therefor means that he is liable to a sanction in case of contrary behavior’.37 Here is another way of putting the point. According to the prevailing conception of legal rights, if A (an individual) enjoys a legal immunity against C (a court) with respect to some act then it follows that C has no legal power over A with respect to that act. However, it does not follow that A enjoys a legal privilege or liberty with respect to that act. For example, A may owe a legal duty to D (say, the individual affected by the act) with respect to that act, and D may have a corresponding claim against A with respect to that act. It is just that C is legally disabled from imposing any sanction on A for violating A’s legal duty to D. A’s immunity against C may render D’s claim ineffective, but it would not render D’s claim invalid.38 In contrast, on Kelsen’s view, A is under a legal duty not to perform some act if and only if some C has the legal power to sanction A and, correlatively, A is liable to be sanc tioned by C. Conversely, if A enjoys a legal immunity against C, such that C is disabled from sanctioning A, then A is under no legal duty not to perform that act.39 On Kelsen’s view, it seems that international law cannot simultaneously criminalize and immunize official acts. If official acts are immune from prosecution, then inter national law does not attach a sanction to such acts. On the contrary, international law would prohibit states from attaching sanctions to such acts. International law would not prohibit individuals from committing acts on behalf of their state, such acts would not satisfy the legal criterion of a crime, and state agents would not be legally responsible for their commission. This would explain why Kelsen thought that procedural immunity negates substantive responsibility. On this view, if there can be no punishment, then there is no crime and no responsibility. We are now better prepared to attempt the Reverse Kelsen. If contemporary inter national law does in fact criminalize certain acts, and establish individual responsibility for such acts, then it necessarily attaches a sanction to such acts. If such acts remain 36 Kelsen, ‘War Criminals’ (n 9) 552, fn 23 (‘[t]he quality of being a crime or, in a more general sense, a delict, is a thoroughly relative one. A conduct is a delict in relation to the sanction (and especially the punishment) attached to it by a legal order, and only in relation to the legal order attaching the sanction to the conduct concerned’). 37 Hans Kelsen, General Theory of Law and State (Anders Wedberg (tr), Harvard UP 1945) 65 (here after Kelsen, General Theory of Law). 38 See generally Wesley Newcomb Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale L J 16. This paragraph assumes that procedural immunities are Hohfeldian immunities, and that a court’s exercise of adjudicative jurisdiction is the exercise of a Hohfeldian power. But nothing much changes if we conclude that procedural immunities are Hohfeldian claims, and that a court’s exercise of adjudicative jurisdiction is the exercise of a Hohfeldian privilege. The point is that, on this view, the legal relations between an actor and a court are independent of the legal relations between that actor and other individuals. 39 Again, it makes no difference if we conclude that a court’s imposition of a sanction is the exercise of a Hohfeldian privilege against which the defendant has no Hohfeldian claim. The point is that, on Kelsen’s view, an actor’s legal obligations to other individuals depends on her legal relations with the courts.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Immunity and Impunity 433 criminal, and their authors remain responsible, when these acts are performed in an official capacity, then necessarily the sanction remains attached. Any procedural immunity that might detach the sanction from the act is necessarily obliterated by the act of criminalization and the institution of individual responsibility. Now, one might immediately object that international law indeed attaches a sanction to certain official acts. It is just that the immunity of official acts creates a legal barrier to the imposition of such sanctions by other states. If the state waives the functional immunity of its agents—or, perhaps, the Security Council overrides that immunity— then that legal barrier is removed, the sanction may be imposed, the criminality of the act revealed, and the responsibility of the agent exposed. Needless to say, Kelsen took the opposite view, arguing that the waiver of procedural immunity establishes, for the first time, the criminality of the act and the responsibility of the agent. As Kelsen writes: In so far as individual responsibility for violation of the rules of warfare committed as acts of State is, according to general international law, excluded, punishment for such acts by a national court of the enemy or by an international court without vio lation of international law is possible only with the consent of the home State of the delinquent—that is to say, on the basis of an international treaty concluded with the State for whose acts the individual perpetrators shall be punished. Only by such treaty can jurisdiction over the individuals concerned be conferred upon a national court of the enemy or an international court. The norm of conventional international law establishing their individual responsibility has retroactive force.40

On this view, acts performed in an official capacity are not crimes under general inter national law, but only under the particular international law established by such a treaty after the fact, in which the state waives functional immunity and consents to the foreign or international adjudication of its official acts.41 This is because, for Kelsen, ‘[l]aw is the . . . norm, which stipulates the sanction’42 that, on this view, is retroactively estab lished by the state’s waiver of the immunity of its officials for past actions taken on its behalf. Importantly, Kelsen’s conditional claim may be valid even if his general theory of law is unsound. We need not accept Kelsen’s view that all law, by its nature, is exhausted by norms authorizing sanctions to accept that international criminal law, by its nature, is 40 Kelsen, ‘War Criminals’ (n 9) 552–3 (emphasis added). See also idid 543 (‘an international treaty authorizing a court to punish individuals for acts they have performed as acts of State constitutes a norm of international criminal law with retroactive force; for the acts were at the moment when they were committed not crimes for which the individual perpetrators were responsible’). 41 For example, while discussing the Treaty of Versailles, Kelsen writes that ‘Article 228 may be inter preted as the necessary consent of the German Government to the punishment of Germans for having committed war crimes having the character of acts of State, as the establishment by particular inter national law of the individual responsibility of the persons concerned excluded by general international law’. Kelsen, ‘War Criminals’ (n 9) 561 (emphasis added). 42 Kelsen, General Theory of Law (n 37) 61.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

434 Adil Ahmad Haque exhausted by norms authorizing sanctions. First, while authorized sanctions may not be part of the concept or nature of law in general, authorized sanctions may be part of the concept or nature of criminal law. A law that prohibits but does not authorize sanctions may be a law, but it is not a criminal law. Second, while law in general may aspire to cre ate new moral obligations for its subjects, international criminal law may aspire instead to incorporate existing moral obligations into the law. Put another way, law in general may claim that its subjects will better conform to their moral obligations by following the law than by following their own moral judgment. However, in the case of so-called ‘atrocity crimes’, it may be impossible for legal rules to improve on individual moral judgment, to tell morally decent individuals anything they do not already know. International criminal law may make no practical difference to the moral deliberations of its subjects, and perhaps it should not try. In this domain, it may be illegitimate to claim that individuals should follow legal rules rather than the moral rules that apply to them prior to and independent of the law. Accordingly, the only role left for law to play is the authorization of punishment for acts clearly prohibited by morality itself. On this view, when international law criminalizes certain inherently wrongful acts, including when committed in an official capacity, it thereby authorizes the punishment of such acts. If functional immunity would defeat that authorization, then functional immunity must be obliterated by the act of criminalization itself. As the International Law Commission observes: The absence of any procedural immunity with respect to prosecution or punish ment in appropriate judicial proceedings is an essential corollary of the absence of any substantive immunity or defence. It would be paradoxical to prevent an indi vidual from invoking his official position to avoid responsibility for a crime only to permit him to invoke this same consideration to avoid the consequences of this responsibility.43

Of course, the Commission may not have used terms such as ‘corollary’ and ‘paradoxi cal’ in their strictest sense. The Commission may have meant only that establishing sub stantive responsibility while retaining procedural immunity would be self-defeating, the latter rendering the former ineffective. As Judge Van den Wyngaert writes: ‘In theory, . . . immunity and impunity are not synonymous and the two concepts should therefore not be conflated. In practice, how ever, immunity leads to de facto impunity’.44 Indeed, whether immunity leads to de facto impunity would be left up to the state that is itself responsible for international crimes committed by its agents acting in their official capacity. After all, that state may choose 43 ‘Draft Code of Crimes against the Peace and Security of Mankind’ in Yearbook of the International Law Commission, 1996, vol. II, Part Two (United Nations Publications 1998) 27, para 6 (commentary to Article 7). 44 Arrest Warrant Case (n 32) (Dissenting Opinion of Judge Van den Wyngaert) 159, para 34. See also ibid (Dissenting Opinion of Judge Al-Khasawneh) 97, para 5 (‘[i]n other words, should immunity become de facto impunity for criminal conduct as long as it was in pursuance of State policy?’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Immunity and Impunity 435 to neither prosecute its own officials nor waive their immunity from prosecution in foreign or international courts. Impunity will result, except in the unlikely event that the Security Council agrees to directly authorize prosecution and override otherwise applicable immunities. To avoid this repugnant conclusion, when ‘[t]he effective com bating of grave crimes . . . comes into conflict with the rules on immunity, [the former] should prevail’.45 Alternatively, as one delegation proposed in the Sixth Committee, the international community should consider ‘introducing an obligation to “waive immunity-or-prosecute” ’.46 In any event, we are now considering the stronger claim that responsibility and immunity are logically incompatible, such that the former necessarily excludes the lat ter. This stronger claim requires more careful elaboration and defence than can be offered here. Still, a few threshold objections call for some comment. First, punishment may be legally authorized but impossible to impose for any number of reasons, yet these impediments would not seem to deprive the underlying acts of their criminal character. For example, the inability to locate a robber hardly seems to render his conduct non-criminal or him non-responsible. Why should we not treat functional immunity as just another obstacle to the imposition of author ized punishment? On Kelsen’s view, law is not only a coercive order but also a normative order. Accordingly, ‘[t]he connection established by a legal norm between the delict as condi tion and the sanction as consequence, is not a relation between cause and effect. . . . Its meaning is not: if a delict occurs, a sanction will—necessarily or probably—take place; but: if a delict is committed, a sanction ought to be applied’.47 Accordingly, factual con ditions that impede imposition of a sanction might not deprive conduct of its criminal character. In contrast, normative conditions that prohibit imposition of a sanction would deprive conduct of its criminal character. Immunity is a normative condition that prohibits imposing a sanction and so, on this view, immunity is incompatible with the criminality of the relevant act and the responsibility of the relevant actor. Second, a variety of legal obstacles to lawful punishment may arise during a criminal prosecution without, one might think, depriving the underlying act of its criminality. The statute of limitations may expire, or the defendant may win an undeserved acquittal and enjoy a legal right against a second prosecution. Such legal obstacles typically arise after the act in question, while functional immunity would attach at the time the official act is committed. It is in this sense that functional immunity might seem to render con duct entirely non-criminal. Third, and more to the point, it is widely accepted that high government officials enjoy personal immunity—immunity ratione personae—from foreign criminal 45 Arrest Warrant Case (n 32) (Dissenting Opinion of Judge Al-Khasawneh) 97, para 7. 46 Report of the International Law Commission on the work of its sixty-ninth session (2017): Topical Summary of the Discussion Held in the Sixth Committee of the General Assembly During Its SeventySecond Session, ILC, 70th Sess, UN Doc A/CN.4/713 (2018) at 12, para 43. 47 Kelsen, Principles of International Law (n 26) 6–7.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

436 Adil Ahmad Haque j urisdiction, including with respect to international crimes.48 On Kelsen’s view, it might seem to follow that such high officials cannot commit international crimes, strictly speaking, as any individual criminal responsibility under international law would arise only after the fact (for example, should they fall from power).49 This implication could be avoided if such high officials enjoy personal immunity from foreign enforcement jur isdiction but no immunity from foreign adjudicative jurisdiction with respect to inter national crimes. On this view, international criminalization necessarily authorizes adjudication, but does not necessarily authorize enforcement, that may implicate other rules of international law, including the prohibitions of intervention and interstate force. It is true that the practical effect of inviolability from arrest and other coercive measures will be that such high officials will never appear before foreign courts authorized to impose individual criminal responsibility. But, as we have seen, conduct may remain the normative condition for an authorized sanction despite factual conditions preventing its imposition. Finally, it may be objected that international law may attach a sanction to an official act, thereby making it an international crime, not by authorizing foreign or international courts to impose that sanction, but by requiring the official’s own state to impose that sanction. Indeed, Kelsen accepted that international law obligates states to punish their subjects—both civilian and military—for violations of the laws of war that are not acts of state. Performance of this obligation amounts to the imposition of individual criminal responsibility under international law itself, that the state merely executes.50 Kelsen scarcely considered that international law might obligate states to punish their own agents for acts of state. Perhaps, in his early writings on the topic, he simply thought that positive international law did not impose such obligations. Perhaps, in his later writings on the topic, he simply failed to appreciate the relevance of the 1948 Genocide Convention and the 1949 Geneva Conventions, which seem to impose just

48 See, e.g., Arrest Warrant Case (n 32) para 58; ILC Report on its 69th Session (n 1). 49 cf Kelsen, Principles of International Law (n 26) 229 (‘[i]t is usually contended that the individuals who enjoy the privilege of exterritoriality, being exempt from the coercive power of the state on the ter ritory of which they are staying, are nevertheless subjected to the law of this state, that is to say are obliged to comply with its provisions. This is true insofar as prosecution of these individuals for viola tions of the law committed during the time they enjoy the privilege is possible as soon as they lose this privileged status. In this sense the privilege of exterritoriality means that the exercise of coercive power against the privileged individuals is only suspended’). 50 Kelsen, ‘War Criminals’ (n 9) 536, 542, 553–4. A state’s failure to punish such acts would make the state ‘vicariously liable’ for such acts even if these acts are not otherwise attributable to the state. Notably, the injured state enjoys concurrent jurisdiction in such cases. Kelsen also accepted that international law authorizes states to punish conduct, such as piracy on the high seas, that would normally fall outside their national jurisdiction. ibid 534–36, 569. Of course, acts of state agents naturally fall within the national jurisdiction of their respective states. These states need no special authorization under international law to punish such acts. Accordingly, such punishment should not be viewed as execution of international law.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Immunity and Impunity 437 such obligations.51 Indeed, even today, the existence of a duty to punish international crimes under customary international law apparently remains controversial.52 Kelsen may have had theoretical reasons to reject the possibility that international law could make state agents individually responsible for acts of their state by requiring their state to punish them for its own acts while prohibiting all other states from doing so. In his general discussion of legal obligation, Kelsen writes that ‘[t]he legal norm does not, like the moral norm, refer to the behavior of one individual only, but to the behavior of two individuals at least: the individual who commits or may commit the delict, the delinquent, and the individual who ought to execute the sanction’.53 In one sense, this statement seems consistent with the view we are exploring. It may be that one state agent commits an act, attributable to the state, while a different state agent ought to execute a sanction against the first state agent. In another sense, however, the state both commits the act and ought to execute the sanction. Indeed, in asserting the immunity of its agent, the state claims the act as its own, denying any normative distinction between dutybearer and authorized punisher. As an international crime, the act is that of the individ ual who performs it; as an official act, the act is that of the state claiming immunity on its behalf. As Kelsen concluded, these two perspectives cannot be reconciled. The problem is not simply the principled one that no one should be the judge of their own case, or the practical one that states will seldom sanction their own acts. The problem, for Kelsen, is the conceptual one that law is a coercive order, and coercion requires a separation between coerced and coercer. No one can coerce themselves. To sum up, on Kelsen’s view, to criminalize an act is to legally authorize its punish ment. An international crime, then, is an act that international law authorizes states to punish. In contrast, functional immunity prohibits states from punishing the official acts of another state without the latter’s consent. Functional immunity erects a norma tive barrier to such punishment, which the responsible state may raise or lower as it pleases, detaching or attaching conduct and sanction at will. On this view, international criminalization and functional immunity cannot coexist within the same normativecoercive order. Kelsen thought it followed that general international law cannot crimin alize the official acts of state agents. Instead, it may follow that international law cannot extend functional immunity to international crimes. 51 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277, arts I, IV; Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31, art 49; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85, art 50; Geneva Convention (III) relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135, art 129; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287, art 146. See Additional Protocol I to the Geneva Conventions (n 23) art 85(1). 52 Compare Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, preamble (‘it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’) with O’Keefe, ICL (n 17) 121 (‘[t]he fact that a crime is a crime under customary international law does not carry with it any jurisdictional or prosecutorial obligations for states’). 53 Kelsen, General Theory of Law (n 37) 58.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

438 Adil Ahmad Haque

III. Combatant Immunity and Official Immunity Let us now turn to the second element of Kelsen’s view still relevant today, namely his claim that lawful combatant immunity is a special application of the general rule of functional immunity. On this view, lawful combatants enjoy immunity from foreign prosecution for international crimes, including war crimes, committed in international armed conflict. Kelsen acknowledged the possibility of a narrow exception permitting prosecution of enemy soldiers for war crimes during armed conflict. This exception would not apply to prosecution of enemy soldiers after the conflict ends, to prosecution by states that are not parties to the conflict, or to prosecution of war crimes committed in non-international armed conflict (including on the territory of another state). As we have seen, the United States Department of Defense appears to accept Kelsen’s general rule as well as the narrow exception that he considered but ultimately rejected. But let us consider both the supposed rule and the possible exception on their own terms. First, Kelsen asserts that the principle of state immunity that underlies functional immunity applies in war as well as in peace, writing that: Some writers maintain that the rule that no State has jurisdiction over another State does not apply in time of war, that is to say, in the relationship between belligerent States. This statement, however, has no sufficient basis in positive International Law.54

Unfortunately, Kelsen does not identify the writers to whom he referred. In similar terms, Kelsen wrote that: There is no sufficient reason to assume that the rule of general customary law under which no State can claim jurisdiction over the acts of another State is suspended by the outbreak of war, and consequently that it is not applicable to the relationship between belligerents.55

Notably, the ICJ takes the view that state immunity from foreign civil jurisdiction applies to acts performed in war, concluding that: [C]ustomary international law continues to require that a State be accorded immun ity in proceedings for torts allegedly committed on the territory of another State by its armed forces and other organs of State in the course of conducting an armed conflict.56 54 Kelsen, ‘Acts of State’ (n 31) 231. 55 Kelsen, ‘War Criminals’ (n 9) 542. 56 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, [2012] ICJ Rep 99, para 78.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Immunity and Impunity 439 The Court went on to find that ‘a State is not deprived of immunity by reason of the fact that it is accused of serious violations of . . . the international law of armed conflict’.57 The Court emphasized that it addressed ‘only the immunity of the State itself from the jurisdiction of the courts of other States’ and not ‘the question of whether, and if so to what extent, immunity might apply in criminal proceedings against an official of the State’.58 Nevertheless, if ‘the rule of State immunity . . . derives from the principle of sov ereign equality of States’,59 and the rule of functional immunity derives from the same principle, then the Court would need to explain why the former applies to international crimes committed in armed conflict on the territory of another state while the latter does not.60 The application of functional immunity in war seems even more puzzling on Kelsen’s own view that war itself involves, or ought to involve, one state sitting in judgment of the acts of another state. Recall that, on Kelsen’s view, international law authorizes states to resort to war and reprisals as legal sanctions for unlawful conduct by other states. Indeed, as we have seen, Kelsen thought that conduct is unlawful only if it is subject to authorized sanctions. Accordingly, the very existence of international law as a legal system—that is, as a coercive normative order rests on its rules authorizing states to judge each other’s acts and resort to war and reprisals, in a system of decentralized sanctions. Let us step outside Kelsen’s conceptual framework for a moment. International law authorizes states to use force in individual or collective self-defence if an unlawful armed attack occurs. Typically, this authorization requires states to attribute the armed attack that occurs to another state and determine that the other state acted unlawfully. In other words, the authorization of self-defence typically requires a judgment of state responsibility. In this respect, it does not matter whether self-defence constitutes a sanction, either in a general sense or in the specific sense intended by Kelsen. The lawful resort to interstate force requires states to judge the acts of other states, and this fact calls into question the legal basis of functional immunity during international armed conflict. If international law authorizes states to judge the acts of other states both in the resort to war and in the conduct of war (in the form of reprisals), then it may seem that the legal basis of functional immunity does not apply in time of war or to acts performed in war. Put another way, if states are authorized to judge the acts of other states for the pur pose of imposing collective responsibility, in the form of war and reprisals, then it is not clear why states may not judge the very same acts for the purpose of imposing individual responsibility, in the form of criminal punishment. In this regard, Kelsen writes that: Jurisdiction means the power of one State to decide that another State has violated the right of the former and to resort to sanction against the latter. There can be no doubt that under General International Law any State has this power according to 57 ibid para 91. 58 ibid. 59 ibid para 57. 60 As we have seen, one answer might be that international criminal law necessarily authorizes pun ishment of individual perpetrators, while the primary rules of the law of armed conflict and the second ary rules of the law of state responsibility do not necessarily authorize civil recourse.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

440 Adil Ahmad Haque the principle of self-help. Hence the rule concerned can only mean that no State has jurisdiction to be exercised by its own courts over the acts of another State, except with the consent of the latter.61

On this view, states may sit in judgment of the acts of other states, particularly in the resort to war and the conduct thereof, but not through their courts. Functional immunity does not rest on some fundamental principle, such as the equality and independence of states (which we now see is quite consistent with judging the acts of other states), but rather on a fairly narrow rule. Does this narrow rule, that national courts may not exercise jurisdiction over the acts of another state, apply in war as well as in peace? Suppose that a state decides, as a matter of its own constitutional law, that executive or legislative decisions to resort to armed force against another state must be reviewed by its national courts, to ensure conformity with international law. Necessarily, its national courts would have to determine that the other state is responsible for an unlawful armed attack and therefore liable to lawful force in individual or collective self-defence. If the rule under consideration applies in armed conflict, then this sensible arrangement would violate international law. While the defending state is permitted (indeed, required) to judge the acts of the attacking state, it would be prohibited from doing so through the judicial branch of its govern ment, which may be best positioned to deliver an impartial, well-reasoned legal judg ment. If this conclusion seems difficult to accept, then so should the premise. Now suppose that a state in an armed conflict with another state decides that military decisions to resort to reprisals against opposing armed forces must be reviewed by its national courts. Necessarily, its national courts would have to determine whether the opposing state is responsible for serious violations of the law of armed conflict for which reprisals remain a lawful response. If the rule under consideration applies in armed con flict, then this arrangement would also violate international law. Again, the conclusion calls the premise into question. Finally, suppose that, during an international armed conflict, one state prosecutes the officials of another state for war crimes in courts martial or military commissions rather than in ordinary national courts. Does it matter that the prosecution occurs under the constitutional authority of the state’s executive branch, as opposed to its judicial branch? Or are courts martial and military commissions ‘courts’ for the purposes of functional immunity? Finally, suppose that one state declares that it will punish officials of another state who commit war crimes as a form of reprisal against that other state, that is, as an act that would be unlawful were it not a proportionate response to the unlawful act of another state. Would the rule authorizing reprisals apply, or would the rule prohibiting adjudication of official acts apply? If the logic of the rule seems difficult to extend to such cases, then this may suggest that the rule itself does not apply as between opposing par ties to an international armed conflict. 61 Kelsen, ‘Acts of State’ (n 31) 230–1 (emphasis added).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Immunity and Impunity 441 For all of these reasons, functional immunity seems quite out of place in the context of international armed conflict. Nevertheless, Kelsen argues that functional immunity must apply in war because it provides the only possible legal basis for lawful combatant immunity. As Kelsen notes: [A]lmost all the acts of war, [including] the acts of legitimate warfare, constitute crimes according to criminal law, since acts of war are acts of forcible deprivation of life, liberty, property, forbidden by criminal law. Nevertheless, acts of legitimate warfare are not punishable by the courts of the State whose subjects are the victims.62

On the other hand, ‘[m]ost of the acts constituting violations of the rules of warfare are at the same time violations of general criminal law, such as murder, pillage, theft, incen diarism, violence, rape, and the like’.63 On the prevailing view, as Kelsen describes it, ‘[t]he fact that an act is permitted by international law deprives the act of its criminal character; the fact that an act is forbidden by international law maintains its criminal char acter according to national law’.64 Accordingly, states may punish enemy soldiers for violations of the rules of warfare but not for acts of legitimate warfare ‘performed in con formity with international law’.65 Strikingly, Kelsen argues that ‘[t]his doctrine is not maintainable’, for two related reasons. First, the laws of war prohibit some acts of warfare but do not positively authorize any acts of warfare. On this view, ‘[t]he statement that acts of legitimate warfare are “permitted” by international law means that international law does not “forbid” them’, that in turn means only ‘that international law does not attach to those acts any sanction’.66 However, the mere fact that international law does not prohibit an act, or authorize its punishment, does not entail that national law may not prohibit or punish that act. For example, international law may not prohibit ordinary theft, yet it would hardly follow that states may not prohibit and punish ordinary theft under national law. In Hohfeldian terms, international law may grant lawful combatants a ‘privilege’ or ‘liberty’ to perform certain acts of warfare, in the limited sense of placing them under no duty to refrain from such acts. At the same time, national law may place combatants under a duty to refrain from such acts, making them liable to pun ishment if they do so. Kelsen concedes that: [T]he term ‘permission’ may have a positive sense. It may mean ‘authorization’. The law ‘authorizes’ an individual by conferring upon the individual a legal power . . . to perform an act to which the law attaches a legal effect . . . intended by the acting individual.67

62 Kelsen, ‘War Criminals’ (n 9) 547. 65 ibid. 66 ibid. 67 ibid.

63 ibid 547.

64 ibid 548.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

442 Adil Ahmad Haque Yet, as Kelsen notes, ‘[k]illing, wounding, capturing of human beings in war are not acts by which legal effects are intended, such as by a legal transaction or an action brought before a court’.68 It follows that international law does not confer legal powers upon indi vidual soldiers to alter the legal rights or legal duties of others. Presumably, this means that soldiers cannot, by their actions, legally disable an injured state from enforcing its national law.69 To complete Kelsen’s argument, we might add that international law does not give lawful combatants a Hohfeldian claim-right to perform acts of warfare, such that no one else, least of all enemy combatants, has any legal duty to refrain from inter fering with their performance of those acts or assist their performance.70 Second, the prevailing view that states may punish soldiers for acts that international law prohibits, but not for acts that international law permits, leads to manifestly absurd or unreasonable results given the emergence of the general prohibition on the resort to war and, later, interstate force. According to Kelsen: Normal acts of warfare performed by members of the armed forces involved in an unjust war forbidden by general international law or by a particular treaty, such as the Kellogg-Briand Pact, cannot be considered to be ‘permitted’, neither in a nega tive nor in a positive sense of the term, since the war as such is forbidden and, con sequently, all the single acts which in their totality constitute the war must be considered as forbidden.

Accordingly, if states may punish soldiers for acts that international law prohibits, then it follows that states may punish soldiers for fighting in an unlawful war. Conversely, if lawful combatants enjoy immunity from prosecution only for acts that international law permits, then lawful combatants fighting in an unlawful war enjoy no such immunity. Since the conclusion is false, the premise must be false as well. What, then, explains the fact that states may not punish soldiers for carrying out acts of aggression that conform to the laws of war? According to Kelsen, this fact ‘can be explained only by the fact that the state by so doing makes an individual responsible for an act of another State’.71 On this view, acts of aggression are acts of state that trigger col lective responsibility rather than individual responsibility under general international law. Moreover, a state that punishes soldiers for carrying out an act of aggression would effectively exercise jurisdiction over that other state without its consent, which general international law forbids. Inexplicably, Kelsen does not seem to consider an obvious alternative explanation, namely that the immunity of lawful combatants arises from a special rule of the law of international armed conflict. This special rule exists for various reasons, including one identified by Kelsen as a reason to extend functional immunity to lawful combatants, namely as ‘a necessary protection of the individuals who by national law are obliged, as organs of their State, to perform this act [of warfare]’.72 The next question would be 68 ibid. 69 ibid 548–9. 70 Adil Ahmad Haque, Law and Morality at War (OUP 2017) 25. 71 Kelsen, ‘War Criminals’ (n 9) 549. 72 ibid 551.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Immunity and Impunity 443 whether this special rule applies in respect of war crimes, with both practice and principle indicating that it does not. Since Kelsen does not consider the possibility of a special rule of lawful combatant immunity, his analysis turns to the scope and limits of functional immunity in war. Unfortunately, Kelsen’s defence of soldiers who comply with the laws of war extends to those who do not. According to Kelsen: [T]he individual performing an act of war as an act of his State must not be pun ished for this act by the enemy State, even if the act constitutes a violation of inter national law, if the war as such is forbidden or the act in itself constitutes a so-called war crime.73

On this view, soldiers may not be punished either for acts of aggression or for violations of the laws of war since both are acts of state over which injured states may not exercise jurisdiction. Injured states may respond to acts of aggression with self-defence, and to violations of the laws of war with reprisals, but they may not respond to either with criminal prosecution of the soldiers involved. Naturally, Kelsen considers the possibility that, under customary international law, ‘the rule that prisoners of war be subjected to the law and jurisdiction of the captor State constitute[s], with respect to violations of the rules of warfare, a restriction to the prin ciple of the immunity of the State from the jurisdiction of another State’.74 Kelsen describes this view as ‘more than questionable’, although the same could be said of his objections to it. Kelsen writes that: Criminal jurisdiction of the captor State over war prisoners is a restriction of the rule according to which the members of the armed forces of a foreign State are exempt from the jurisdiction of the State on the territory of which they are staying. Since jurisdiction over prisoners of war is based on a restriction of another rule, a restrictive interpretation of the rule conferring jurisdiction over prisoners of war upon the captor State is adequate.

The restrictive interpretation that Kelsen has in mind is one according to which the ter ritorial state may exercise jurisdiction over prisoners of war only with respect to war crimes that are not attributable to their state. Kelsen’s argument may rest on a false premise, namely that jurisdiction over prisoners of war restricts the immunity of armed forces stationed abroad. As Lauterpacht later observed, presumably responding to Kelsen (though not by name): The issue has been occasionally obscured in reliance on the principle of immunity of armed forces on foreign soil. The ordinary rules of extraterritoriality, based on international comity and consent implied from the mutual respect for the rights of

73 ibid at 550.

74 ibid at 551.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

444 Adil Ahmad Haque sovereignty in time of peace, do not obtain in time of war. They cover armed forces present on foreign soil with the permission of the lawful sovereign.75

If the rule granting armed forces stationed abroad immunity from the jurisdiction of a consenting host state applies only in peace, then the rule granting states jurisdiction over prisoners of war is not a restriction of the former rule and need not be interpreted restrictively on such grounds. For his part, Lauterpacht argued that the ‘the rule of international law which con cedes to belligerents the right to punish such war criminals as may fall into his hands’ rests not only on the ‘uncontroverted custom of warfare’, but also on ‘the generally rec ognized right of the State to punish crimes committed within its territory as well as the right . . . to punish crimes wherever committed against the safety of the State and its nationals’.76 Anticipating this position, Kelsen notes that: ‘Among the restrictions to this principle [of territorial jurisdiction] the rule regarding the immunity of a foreign State stands certainly in first place’.77 If functional immunity prevails over territorial jurisdic tion in peace, evidence and argument are needed to show that the latter prevails over the former in war. In fact, Lauterpacht offered a number of powerful arguments regarding functional immunity with respect to international crimes in the draft speeches he composed for Sir Hartley Shawcross’s closing argument at Nuremberg.78 Lauterpacht took direct aim at the question of procedural immunity, as distinct from substantive responsibility: The argument of the defence is that according to international law individuals act ing as organs of a State are subject to the jurisdiction of that State only. If a foreign State were to assume jurisdiction over them it would, in effect, be assuming jurisdic tion over their State—an act which would clearly be contrary to the principles of State sovereignty, of State equality and of jurisdictional immunity of States in general.79

75 Hersch Lauterpacht, ‘The Law of Nations and the Punishment of War Crimes’ (1994) 21 British YB of Intl L 58, 62. 76 ibid 63. 77 Kelsen, ‘War Criminals’ (n 9) 551–2. 78 Famously, Lauterpacht took a dim view of state immunity from foreign civil proceedings that, he claimed, ‘many regard as increasingly artificial, unjust, and archaic’. Hersch Lauterpacht, ‘The Problem of Jurisdictional Immunities of Foreign States’ (1951) 28 British YB of Intl L 220, 221 (hereafter Lauterpacht, ‘Jurisdictional Immunities’). Lauterpacht took the view that the principle of sovereign equality may be fully respected by subjecting foreign states to civil proceedings on the same terms as the forum state. Any immunities granted to the former need only match the immunities granted to the latter under its national rules of civil procedure. So, it is not surprising that Lauterpacht saw no principled objection to criminal prosecution of foreign officials for the same crimes and pursuant to the same procedures as may be applied to officials of the host state. 79 Hersch Lauterpacht, ‘Draft Nuremberg Speeches’ (2012) 1 Cambridge J of Intl & Comparative L 45, 98 (hereafter Lauterpacht, ‘Draft Nuremberg Speeches’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Immunity and Impunity 445 According to Lauterpacht: [W]hatever be the rule of international law on this subject generally, there is no doubt that with regard to war crimes proper the belligerent has full and uncontested jurisdiction over the nationals of the enemy State. It is of no consequence that in committing a war crime the accused acts as the organ or on behalf of the State.80

Rather than recite state practice indicating a customary exception to the general rule of functional immunity, Lauterpacht offered a series of arguments from logic and principle. First, ‘[i]t is of the very essence of the branch of international law relating to war crimes that it is concerned primarily with acts done on behalf of the State’.81 This sug gests that, in enacting war crimes, including those attributable to the warring states, states necessarily (or, at least, presumably) intended to exclude functional immunity for such acts. As Lauterpacht later wrote (in a festschrift for Kelsen, as it happens), ‘there is a limit beyond which we should not ascribe to governments the desire to will things which are incompatible and contradictory’.82 On this view, any functional immunity that state agents might enjoy with respect to war crimes ‘must be removed by a reason able application of the principle that newly enacted law, if it is of a general and funda mental character, alters rules inconsistent with it’.83 In the previous section, we described this form of argument as the Reverse Kelsen, since it implies non-immunity from substantive responsibility, rather than following Kelsen’s implication of substan tive non-responsibility from procedural immunity. Second, Lauterpacht traces the rule of state immunity to the judgment of Chief Justice Marshall in Schooner Exchange v. McFaddon, according to which: [A]ll exemptions from territorial jurisdiction must be derived from the consent of the sovereign of the territory. . . . [T]his consent may be implied or expressed; and . . . when implied, its extent must be regulated by the nature of the case, and the views under which the parties requiring and conceding it must be supposed to act.

Marshall added further that ‘without doubt, the sovereign of the place is capable of destroying that implication’.84 80 ibid. 81 ibid 98–99 (adding that, ‘of course, it covers also private acts of lawlessness such as plunder and other crimes of lust and greed’). 82 Hersch Lauterpacht, ‘Rules of Warfare in an Unlawful War’ in G.A. Lipsky (ed.), Law and Politics in the World Community: Essays on Hans Kelsen’s Pure Theory and Related Problems in International Law (University of California Press 1953) 89, 90. 83 ibid. 84 Lauterpacht, ‘Draft Nuremberg Speeches’ (n 79) 99–100, quoting Schooner Exchange v. McFaddon, 11 US 116 (1812).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

446 Adil Ahmad Haque If states do not consent, either expressly or impliedly, to exempt war crimes committed by enemy soldiers from their territorial jurisdiction, then functional immunity (sup posedly a corollary of state immunity) would not extend to such acts.85 Indeed, Lauterpacht writes that: [T]here is every reason to assert that [Marshall] would have been astonished to find his judgment relied upon in support of the claim that, apart from the drastic remed ies of war and reprisals, a State is impotent to protect itself against unlawful acts undertaken on behalf of a foreign State.86

Third, Lauterpacht wrote that ‘[t]he decisions of English courts have invariably placed that rule of jurisdictional immunity of foreign States and their agents on the precepts of comity of nations and of peaceful and smooth international intercourse’, rather than on the principle of sovereign equality.87 This suggests that the rule of jurisdictional immun ity ceases to apply in war, when comity is abandoned, and international intercourse is neither peaceful nor smooth. Finally, Lauterpacht argues that: [C]onsiderations of common sense make such interpretation appear to be grotesque . . . . Suppose a State were to send a body of persons into the territory of another State with instructions to rob and murder, would these persons be immune from ordin ary criminal processes because, in the fulfilment of the criminal design, they were acting as organs of another sovereign State? Suppose the individuals who ordered the predatory expedition were to fall into the hands of the attacked State, would they be entitled to plead an Act of State? The analogy with the predatory aggressions of the Nazi State—that magnum latrocinium of modern times—is close.88

This passage suggests that such an apparently grotesque interpretation of official immunity should be rejected absent consistent state practice and explicit opinio juris affirming it. As Kirgis would later observe, albeit as a descriptive rather than a normative matter: ‘A reasonable rule is always more likely to be found reflective of state practice and/or the opinio juris than is an unreasonable (for example, a highly restrictive or inflexible) rule’.89 85 See also Lauterpacht, ‘Jurisdictional Immunities’ (n 78) (‘[i]t is clear from the language of that decision that the governing, the basic, principle is not the immunity of the foreign state but the full jur isdiction of the territorial state and that any immunity of the foreign state must be traced to a waiver— express or implied—of its jurisdiction on the part of the territorial state. Any derogation from that jurisdiction is an impairment of the sovereignty of the territorial state and must not readily be assumed’ at 229). 86 Lauterpacht, ‘Draft Nuremberg Speeches’ (n 79) 99. See also ibid 100 (incredulously observing that ‘these guarded and qualified propositions, in relation to a matter of limited compass, have been magni fied to embrace the impunity of acts directly injurious to the territorial sovereign and the general immunity of persons acting on behalf of the State!’). 87 ibid. 88 ibid. 89 Frederic L. Kirgis, ‘Custom on a Sliding Scale’ (1987) 81 American J of Intl L 146.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Immunity and Impunity 447 On these grounds, Lauterpacht concludes ‘that the principle of the immunity in the international sphere of persons committing criminal acts on behalf of their State is unsupported either by authority or by common sense and is a figment of half-baked learning’.90 Those words, written for delivery at Nuremberg, might seem unduly harsh in a less adversarial context. Nevertheless, in my view, Lauterpacht’s basic points stand. For better or worse, Shawcross chose to focus his closing arguments on fact rather than law, and the relevant passages from Lauterpacht’s draft were not delivered in court. We will never know whether the Tribunal would have sided with Kelsen or with Lauterpacht on the question of procedural immunities and international crimes. There is another partially overlapping reason to doubt the application of functional immunity in international armed conflict. According to the ILC’s first special rappor teur on the immunity of state officials: If a State did not give its consent to the presence of a foreign official and his activity, which led to the commission of a criminally punishable act, in its territory, there would appear to be sufficient grounds for assuming that the official does not enjoy immunity ratione materiae from the jurisdiction of that State.91

Interestingly, both the United States and the United Kingdom appear open to such a ‘ter ritorial crime’ exception to functional immunity.92 This view seems to entail that state agents enjoy no functional immunity with respect to acts of armed force performed on the territory of another state without its consent. In almost all cases, the territorial state will not have consented to the presence or the activity of foreign troops.93 On this view, state agents enjoy no functional immunity from the exercise of territorial jurisdiction 90 Lauterpacht, ‘Draft Nuremberg Speeches’ (n 79) 100. 91 Kolodkin, Second Report on Immuniy of State Officials (n 5) para 85. For skepticism, see O’Keefe, ICL (n 17) 437. 92 See, e.g., Richard Visek, Acting Legal Adviser, US Department of State, ‘Statement by the United States of America’ (72nd General Assembly Sixth Committee, Agenda Item 81 – Report of the International Law Commission on the Work of its 69th Session, 25 October 2017) accessed 12 April 2019 (‘[w]e are also concerned by the cursory explanation in the Commentary about why Draft Article 7 does not include an exception for crimes by foreign officials in the territory of the forum state. This fundamental issue of territorial conduct and its effect on criminal jurisdiction warrants much more serious attention and analysis’); United Kingdom Ministry of Justice, ‘Note on the Investigation and Prosecution of Crimes of Universal Jurisdiction’ (21 May 2018) accessed 12 April 2019 (‘[t]here may be other exceptions, for example where a crime is committed by a State official in an official act on the territory of State wishing to prosecute, but there is limited case law on these issues’ at 9 para 54). 93 In rare cases, the territorial state may consent to the presence of foreign troops subject to condi tions. If the foreign troops violate these conditions, then both their continued presence and their activity may be considered non-consensual. cf Declaration on the Definition of Aggression, GA Res 3314 (XXIX), UNGAOR, 29th Sess, 2319th Plen Mtg, Supp No 31, UN Doc. A/RES/3314(XXIX) (1974) Annex, Art. 3(e) (defining aggression to include ‘[t]he use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

448 Adil Ahmad Haque with respect to international crimes committed on the territory of the forum state without its consent. Notably, on this view, state agents might retain functional immunity from the exercise of universal jurisdiction with respect to international crimes committed outside the territory of the forum state. On the prevailing view of the law of armed conflict, any use of armed force by one state on the territory of another without the latter’s consent triggers an international armed conflict between the two states.94 On the view we are considering, agents of the intervening state would enjoy no functional immunity, since the territorial state con sents to neither their presence nor their activity. At the same time, members of the inter vening state’s armed forces may benefit from lawful combatant immunity with respect to their participation in the use of force, except with respect to violations of the law of international armed conflict. On this view, the rule of lawful combatant immunity arises from the law of international armed conflict, as a humanitarian restraint on the treat ment of persons in the power of one of the parties, not from the general rules of state immunity. Importantly, if the state agents are not lawful combatants, then they would benefit from neither the general rule of functional immunity nor the special rule of lawful combatant immunity.95 Importantly, the commission of war crimes, crimes against humanity, or genocide by agents of one state on the territory of another, without the latter’s consent, would consti tute a use of armed force by the former state against the latter. Accordingly, agents of the intervening state would enjoy no functional immunity or lawful combatant immunity from the exercise of national criminal jurisdiction by the territorial state with respect to such international crimes. Among other things, this would explain why states may dele gate the exercise of their national criminal jurisdiction to the ICC with respect to international crimes committed on their territory by agents of foreign states that have not consented to the Court’s jurisdiction. Since these foreign state agents enjoy no functional immunity before the national courts of the territorial state, they enjoy no functional immunity before the ICC either.96 To sum up, Kelsen thought that the functional immunity of state agents derives from the general principle that states may not judge each other’s acts. As we have seen, this principle has no straightforward application to the use of armed force or the conduct of hostilities. On the contrary, international law requires states to judge the lawfulness of the use of armed force before exercising their right of self-defence and to judge the law fulness of the conduct of hostilities before engaging in belligerent reprisals. There is no reason why states may not assign such judgments to their judicial branch or imply such judgments while holding state agents individually criminally responsible. To the extent 94 See, e.g., ICRC, Commentary on the First Geneva Convention (CUP 2017) 179. 95 Of course, on the minority view that not all non-consensual uses of interstate force trigger an inter national armed conflict, members of the armed forces of the intervening state would benefit from neither functional immunity nor combatant immunity. 96 See Adil Ahmad Haque, ‘At a Crossroad: The International Criminal Court’s Afghanistan Probe and the International Law Commission’ (Just Security, 19 April 2018) accessed 13 April 2019.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Immunity and Impunity 449 that, instead, the functional immunity of state agents derives from the consent of the forum state to their presence and activities, functional immunity cannot extend to the use of armed force on the territory of the forum state without its consent. Lawful com batant immunity must arise, instead, from a special rule of the law of international armed conflict. Since international crimes committed by agents of one state on the terri tory of another would almost always constitute a use of armed force, without or exceed ing the consent of the territorial state, neither functional nor combatant immunity would extend to such crimes.

IV. Conclusion What have we gained by approaching the contemporary application of functional immunity to international crimes by first stepping back, quite far indeed, and wrestling with the ideas of a dead philosopher? First, we have seen that the widely held assump tion that substantive criminal responsibility and procedural immunity are logically independent remains open to challenge. The Kelsenian view, that criminalizing conduct means authorizing its punishment by an independent agent, remains viable and worth exploring further. If this view is correct, then the international criminalization of acts performed by state agents in their official capacity obliterates any procedural immun ities that might bar their prosecution by foreign courts. Second, we have seen that, by examining the relationship between the functional immunity of state agents and the lawful combatant immunity of state armed forces, we may gain new insights into the nature and limits of both. In particular, we have seen that the functional immunity of state agents does not extend to the use of interstate armed force or to the conduct of international armed conflict. Since most international crimes committed by agents of one state on the territory of another would constitute just such a use of interstate armed force, such agents would not enjoy functional immunity from the exercise of national criminal jurisdiction by the territorial state—or by the ICC acting on the territorial state’s behalf—with respect to these international crimes. Since the current debate has no end in sight, there is little to lose and perhaps much to gain by searching for new beginnings.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

chapter 19

Epistemol ogica l Con trov ersie s a n d Eva luation of Ev idence i n I n ter nationa l Cr imi na l Tr i a l s Mark Klamberg1

I. Introduction International criminal trials are normally very complex and burdened with vast amounts of evidence. As an illustration, in the Karadžić case 11,481 exhibits were admit ted at trial and 586 witnesses were called during the 499 trials days. This begs the ques tion, how is evidence evaluated and determinations of guilt done in international criminal trials? None of the international criminal jurisdictions have in their statutes or rules of procedure and evidence detailed instructions on this issue. The required stand ard of proof for conviction—beyond reasonable doubt—provides some guidance. That is it.

1 Mark Klamberg is Professor in international law at Stockholm University, where he received his LL.D. Klamberg has an LL.M. from Raoul Wallenberg Institute and received his Candidate of Law degree from Lund University. He has also been an Associate Professor at Uppsala University, a research fellow at University of Oxford, and visiting lecturer at Edinburgh University.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Epistemological Controversies 451 As a consequence, judges have explained in the case law pertaining to international criminal trials that they have applied the principle of free evaluation of evidence.2 Does this mean that judges should be guided entirely or to a large extent by their own personal preferences? This is highly unlikely; instead, presumably judges should evaluate evi dence according to what is acknowledged under the general theory of knowledge (the nature of knowledge, justification, and the rationality of belief).3 But, in turn, know ledge may require an approach that appears to be outside traditional legal discourse. Thus, legal practitioners and scholars need to engage with other sciences in order to promote accurate fact-finding and a constructive debate on the matter. It will be argued in this chapter that judges in international criminal trials should deconstruct the pieces of evidence submitted at trial, use mathematical methods of evaluating evidence with caution as rules of thumb only, adopt the ‘alternative hypoth esis approach’ to evidence, and take due account of potential educational, cultural, and linguistic divergences between witnesses and courtroom staff. This argument is based on theoretical understandings of what evidence is as well as what judges in international criminal trials actually do. The arguments made can certainly be challenged and this chapter will thus focus on five potential controversies of an epistemological nature. First, should fact-finding be based on a holistic (intuitive) approach or deconstruction? Second, the assumption is that in order to convict, guilt must be proven ‘beyond reasonable doubt’; but is this an objective or subjective standard? Third, some scholars argue that it is possible to define and treat this standard as a numerical value, thus transforming evaluation of evidence into a quasi-mathematical exercise. This will be contrasted with non-mathematical methods, with the example of the ‘alternative hypothesis approach’. A fourth contro versy is based on the view held by some scholars that the beyond reasonable doubt standard is inherently flawed. Lastly, there is a debate on testimonial deficiencies that impede accurate fact-finding. Is there cause to disqualify previous findings of guilt in international criminal trials? And to the extent mistakes have been committed—are international criminal judges able to learn and improve fact-finding? There are certainly additional evidentiary questions. However, the five controversies covered in this chapter have been chosen for the following reasons. They all arguably 2 Prosecutor v. Dusko Tadić (Opinion and Judgment), IT-94–1, (7 May 1997) para 537 (ICTY, Trial Chamber) (hereafter Prosecutor v. Tadić); Prosecutor v. Kupreškić et al. (Judgment), IT-95-16-A, (23 October 2001) para 38 (ICTY, Appeals Chamber) (hereafter Prosecutor v. Kupreškić); Prosecutor v. Musema, (Judgment), ICTR-96-13-T, (27 January 2000) para 75 (ICTR, Trial Chamber); Prosecutor v. Katanga and Ngudjolo (Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules), ICC-01/04–01/07, (25 April 2008) paras 74–76 (ICC, Pre-Trial Chamber I); Prosecutor v. Katanga (Judgment pursuant to article 74 of the Statute), ICC-01/04–01/07, (8 March 2014) para 88 (ICC, Trial Chamber II) (hereafter Prosecutor v. Katanga (Judgment)). 3 Normally referred to as epistemology: ‘the philosophical study of the nature, origin, and limits of human knowledge’. See Avrum Stroll and A.P. Martinich, ‘Epistemology’, Encyclopædia Britannica accessed 3 September 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

452 Mark Klamberg arise at the foundation of fact-finding, and taking positions on these matters is necessary in order to judicially determine criminal responsibility in a rational, structured, and justifiable way. As will appear, there are several approaches that can be put forward and advocated for in a way acceptable to the field. There are, for example, divergent legitimate views in case law and doctrine. However, it will be argued in this chapter that the ‘alternative hypothesis approach’ follows from the legal standard ‘beyond reasonable doubt’ that has consequences, it requires deconstruction of evidence and a cautious approach to mathematical methods.

II. Intuitive Holistic Approach v. Deconstruction Judges in international criminal trials sometimes state that a holistic approach is appro priate to evaluate evidence or that they consider the evidence taken ‘as a whole’.4 What does holistic mean in the context of evaluating evidence? A caricatural way of under standing ‘holistic’ would be that the judges haphazardly go through all the evidence pre sented and, based on their intuition, determine whether they are convinced that the accused has committed the alleged conduct. This is probably not what judges mean when they write that they have evaluated the evidence in a holistic manner. ‘Holistic’ could also mean that a piece of evidence should be weighed against all other evidence when determining whether a particular fact in issue has been proven or not.5 As opposed to an intuitive holistic approach, the trier of fact may engage in a more systematic exercise of deconstruction, sometimes referred to as ‘atomism’.6 The assump tion is that a case consists of multiple facts in issue that arguably sometimes need to be proven with the same piece of evidence, but maybe more often with different pieces of evidence. Thus, the available evidence has to be deconstructed, i.e., the different pieces of evidence have to be structured, sorted, and attributed to the relevant fact in issue.7 4 Kupreškić (n 2) para 334; Prosecutor v. Martić (Judgment), IT-95-11-A, (8 October 2008) para 234 (ICTY, Appeals Chamber); Prosecutor v. Krajišnik (Judgment), IT-00-39-A, (17 March 2009) paras 135, 685 (ICTY, Appeals Chamber); Prosecutor v. Nchamihigo (Judgment), ICTR-2001-63-A, (18 March 2010) para 90 (ICTR, Appeals Chamber); Prosecutor v. Thomas Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute), ICC-01/04–01/06, (14 March 2012) paras 94 and 758 (ICC, Trial Chamber) (hereafter Prosecutor v. Lubanga); Prosecutor v. Ngirabatware (Judgement), ICTR-99–54, (20 December 2012), paras 53, 685, 1243 (ICTR, Trial Chamber); Yvonne McDermott, ‘Inferential Reasoning and Proof in International Criminal Trials: The Potentials of Wigmorean Analysis’ (2015) 13(3) J of Intl Crim Justice 507, 508 (hereafter McDermott, ‘Inferential Reasoning’). 5 Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events (Martinus Nijhoff 2013) 154, 161, 177 (hereafter Klamberg, Evidence in International Criminal Trials). 6 Yvonne McDermott, ‘Strengthening the Evaluation of Evidence in International Criminal Trials’ (2017) 17(4) Intl Crim L Rev 682, 687 (hereafter McDermott, ‘Strengthening the Evaluation of Evidence’). 7 Klamberg, Evidence in International Criminal Trials (n 5) 168–71.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Epistemological Controversies 453 McDermott similarly distinguishes between a fragmentary and a holistic analysis.8 She is an advocate of using Wigmorean analysis to ‘organiz[e] the logical structure of an argument and [link] it to the available evidence in a case, thereby breaking down the reasoning process into sequential steps’ with the purpose of elevating the process of fact-finding ‘from an intuitive or impressionistic exercise to something more concrete’.9 McDermott lists three potential drawbacks with adopting deconstruction in the con text of judicial fact-finding: 1) the exercise is excessively time-consuming; 2) it would lead to even more cumbersome judgments and the judges may lose sight of their ‘overall intuition’; and 3) deconstruction does not tell the trier of fact what weight is to be afforded to individual pieces of evidence. McDermott also offers a rebuttal to those who may point to these potential drawbacks. First, international criminal cases are complex and for that reason deconstruction and charting may be necessary, at least with evidence pertaining to key aspects of the case. Second, if judgements become longer, the interest of added clarity and depth of analysis may justify a loss in brevity. Third, deconstruction may help the trier of fact to articulate his or her thinking and thus make a more rigorous assessment of the evidence.10 By way of illustration, the discussion between Judges Diarra and Cotte on the one hand, and Judge Van den Wyngaert on the other in Katanga is instructive.11 Van den Wyngaert stated the following in her dissenting opinion: [T]he entire decision is very short on hard and precise facts and very long on vague and ambiguous ‘findings’, innuendo and suggestions. Whatever my colleagues may believe in their intime conviction, I fear it cannot stand up against the required standard of proof and the dispassionate rigour it demands.12

Judges Diarra and Cotte responded in their concurring opinion: The opinion even suggests that we have ruled on the basis of our own intimate con viction. We merely recall that the evidentiary standard based on a proof beyond reasonable doubt cannot imply that judges have reached ‘certainty’. Moreover, the approach whereby the probative value of each piece of evidence is evaluated in a fragmentary manner or one which would lead to the application of the beyond rea sonable doubt standard to all the facts in the case, and even to those not indispens able for entering a conviction, would not, in our view, be consistent with the requirements of the Statute.13

In essence, Judge Van den Wyngaert argues that the majority has based its judgement on intuition while the majority is arguing that excessive deconstruction will lead to frag 8 McDermott, ‘Inferential Reasoning’ (n 4) 533. 9 Ibid, 509; McDermott, ‘Strengthening the Evaluation of Evidence’ (n 6) 698–99. 10 McDermott, ‘Inferential Reasoning’ (n 4) 527–28. 11 See comment in ibid 529. 12 Prosecutor v. Katanga (Judgment) (n 2) Annex 1, Minority Opinion of Judge Van den Wyngaert, para 172. 13 Ibid, Annex 2, Concurring Opinion of Judges Diarra and Cotte, para. 4.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

454 Mark Klamberg mentation and an erroneous understanding of the required standard of proof. The judges on both sides also bring in the concept of ‘intime conviction’, which leads to the discussion in the next section on whether the standard of proof for conviction is sub jective or objective. As will be argued, the intuitive approach fits better with proof of conviction as a subjective standard operating under the logic of ‘intime conviction’. In contrast, deconstruction is arguably required if the proof for conviction is perceived as an objective standard.

III. Is the Standard of Proof for Conviction Subjective or Objective? This section examines whether the standard of proof for conviction is subjective or objective. Applying a subjective standard means that it is the belief of the individual judges that matters. In contrast, an objective standard entails a replicable process where it is possible to describe the different steps taken and give an account of how the conclusion was reached. The concept of ‘objectivity’ is also present in substantive criminal law as well as in private law, in common law with the concept ‘reasonable person’14 and in roman law ‘bonus pater familias’ (good family father).15 Although these concepts are used for other purposes and in other contexts, they all connect to the idea of replicability. McDermott associates methods relying on the ‘intuition of the judge’ with the French concept ‘l’intime conviction du juge’.16 This is often described as a subjective standard.17 This is relevant since some judges in international criminal courts have, as we have seen, made reference to the ‘intime conviction’ standard. The Trial Chamber in Tadić, for example, mentioned ‘intimate conviction’ when discussing free evaluation of evidence. In that context the judges made a reference to codes of criminal procedure in Belgium,

14 See, e.g., R v. Smith [2000] UKHL 49, [2001] 1 AC 146, [2000] 4 All ER 289, [2000] 3 WLR 654; ‘Reasonable person’ in Bryan A Garner (ed), Black’s Law Dictionary (8th edn, Thomson West 2004) 1294. 15 In the French civil code, the concept is ‘Bon père de famille’. However, it has recently been replaced with ‘raisonnablement’ (reasonably), Loi n° 2014–873 du 4 août 2014 pour l’égalité réelle entre les femmes et les hommes (1), art 26, available at accessed 3 September 2018. 16 McDermott, ‘Inferential Reasoning’ (n 4) 528. 17 Mirjan Damaška, ‘Atomistic and Holistic Evaluation of Evidence: A Comparative View’ in David S Clark (ed), Comparative and Private International Law, Essays in Honor of John Henry Merryman on his Seventieth Birthday (Duncker & Humblot, 1990) 91 at 92, 97 (hereafter Damaška, ‘Atomistic and Holistic’); Mustapha Mekki, ‘Preuve et Vérité en France’ in La preuve. Journées internationales 2013 d’Amsterdam, Pays-Bas et Liège, Belgique (collection Travaux de l’Association Henri Capitant, vol. LXIII, LB2V and Bruylant 2015) 813, at 827; Klamberg, Evidence in International Criminal Trials (n 5) 129.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Epistemological Controversies 455 Denmark, Germany, Greece, Italy, and Spain,18 although they did not elucidate the concept further. There is also some doctrine on the matter. De Smet has noted that the ‘intime conviction’ standard ‘describes the reflective, intro-spective, attitude the factfinder is required to adopt’.19 This understanding of the concept ‘l’intime conviction du juge’ may need to be nuanced further. Under a more modern view, this purely subjective conviction intime no longer suffices; findings of fact must now also be supported by a high degree of objective (or inter-subjective) probability.20 This modern understanding of conviction intime may actually correspond with the original meaning of the standard ‘l’intime conviction du juge’ as it was discussed during the Age of Enlightenment. The Italian jurist and Enlightenment thinker Beccaria— described as the father of modern penal law21—argued that judgments should be based on inner conviction (sentimento), common sense (buon senso), and avoid fictional sys tems (sistema fattizio) that judges may have learnt during their studies.22 This may give the impression that fact-finding should be based on intuition. However, Beccaria also advocated that the evaluation of evidence should be systematic and susceptible to repli cation, and he described different methods of combining several pieces of evidence.23 The opposition to what Beccaria described as fictional systems should be understood in its context, Beccaria was arguably challenging the fact-finding at the time and wanted to depart from medieval practices involving rigid numerical rules of how to evaluate evidence.24 The subsequent evolution of the concept of conviction intime is associated with the French revolution. The reforms adopted by the French National Assembly in August 1789 included a removal of the system based on rigid rules of how to evaluate evidence (système des preuves légales). The system of conviction intime was adopted on the prem ise that judgement was passed by citizens (a system of jurors) who did not know the law, with their conscience as their only guide. Accordingly, the decree of 16 and 29 September 1791 contains the words ‘d’intime conviction’.25 Although the concept was originally 18 Prosecutor v. Tadić (n 2) paras 537–38 (‘Article 342, Code of Criminal Procedure, Belgium; Section 896, Criminal Code, Denmark; Article 261, Criminal Procedure Code, Germany; Article 177, Code of Criminal Procedure, Greece; Article 188, Code of Criminal Procedure, Italy; Article 177, Code of Criminal Procedure, Portugal; Article 741, Code of Criminal Procedure, Spain’ at fn 34). See also the comments in Prosecutor v. Kupreškić (n 2) para 38. 19 Simon De Smet, ‘The International Criminal Standard of Proof at the ICC—Beyond Reasonable Doubt or Beyond Reason?’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (OUP 2015) 866 (hereafter De Smet ‘International Criminal Standard of Proof ’). 20 Damaška, ‘Atomistic and Holistic’ (n 17) 92, 97; Klamberg, Evidence in International Criminal Trials (n 5) 129. 21 Henri Leclerc, ‘L’intime Conviction du Juge: Norme Démocratique de la Preuve’ in Le for intérieur (Presses Universitaires de France 1995) 206, 208 (hereafter Leclerc). 22 Cesare Beccaria, Dei delitti e delle pene (dual language version: Italian and Swedish) (first published 1766, Italica (tr), 1977) 73 (hereafter Beccaria). 23 ibid 67–75. 24 Mirjan Damaška, ‘Epistemology and Legal Regulation of Proof ’ (2003) 2(2) Law, Probability and Risk 117, 129. 25 Leclerc (n 21) 208–10.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

456 Mark Klamberg designed for jury trials, its modern version also applies to professional judges.26 Article 353 of the current French code of criminal procedure provides that before the criminal trial court (cour d’assises) retires, the President reads the following instruction that ends with the question whether the trier of fact is convinced: Sous réserve de l’exigence de motivation de la décision, la loi ne demande pas compte à chacun des juges et jurés composant la cour d’assises des moyens par lesquels ils se sont convaincus, elle ne leur prescrit pas de règles desquelles ils doivent faire particulièrement dépendre la plénitude et la suffisance d’une preuve; elle leur prescrit de s’interroger eux-mêmes dans le silence et le recueillement et de chercher, dans la sincérité de leur conscience, quelle impression ont faite, sur leur raison, les preuves rapportées contre l’accusé, et les moyens de sa défense. La loi ne leur fait que cette seule question, qui renferme toute la mesure de leurs devoirs: ‘Avez-vous une intime conviction?’27

Leclerc argues that the foundation of jury trials (and the democratic principle of equal ity of persons) is based on the use of the standard conviction intime. He perceives a dan ger with calls for professional judges to use scientific methods; in essence he believes it is a resurgence of a system with rigid rules about how to evaluate evidence (système des preuves légales).28 The difference between law and scholarship in France on the one hand and Italy on the other is noteworthy, although both countries are described as civil law systems. While Article 353 of the French code of criminal procedure relies on intime conviction, Article 533 of the Italian code of criminal procedure uses the beyond reasonable doubt standard.29 Moreover, modern Italian scholars such as Ferrajoli advocate a fact-finding process that is based on eliminating alternative hypotheses,30 a process closely associ ated with the beyond reasonable doubt standard as explained later. As mentioned above, Beccaria appeared to favour deconstruction in evaluating evidence. If we add more

26 ibid 210. 27 Art 353 Code de Procédure Pénale (France), as modified by LOI n°2011–939 du 10 août 2011, art 12. English translation: ‘The law does not ask the judges to account for the means by which they convinced themselves; it does not charge them with any rule from which they shall specifically derive the fullness and adequacy of evidence. It requires them to question themselves in silence and reflection and to seek in the sincerity of their conscience what impression has been made on their reason by the evidence brought against the accused and the arguments of his defence. The law asks them but this single question, which encloses the full scope of their duties: are you inwardly convinced?’, translation available at Legislation Online, accessed 3 September 2018. 28 Leclerc (n 21) 212–13. 29 Art 533(1) Codice di Procedura Penale (Italy) (‘Il giudice pronuncia sentenza di condanna se l’imputato risulta colpevole del reato contestatogli al di là di ogni ragionevole dubbio’). 30 Luigi Ferrajoli, Diritto e Ragione—Teoria Del Garantismo Penale (Roma-Bari: Gius. Laterza & Figli 1989) 123–24.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Epistemological Controversies 457 examples, the German system hinges on freie Überzeugung (free conviction)31 while the Swedish system uses the beyond reasonable doubt standard.32 Doctrine suggests that ‘beyond reasonable standard’ was used in Italy already in 1831 as evidenced by the laws of Pope Gregory XVI. The Pope stated in Article 442 of the Rules for criminal procedure ‘that the Judge must be inner convinced by the evidence that the accused is guilty. This conviction can be interpreted as a moral certainty and it must be able to fully or sufficiently remove any reasonable hesitation’.33 In the 1990s, the case law was strongly divided on the application of the beyond reasonable standard.34 The debate was settled by the Supreme Court in 200235 in relation to the beyond reasonable doubt standard as stated in the Italian Code of Criminal Procedure.36 The People’s Republic of China has, by a revision of its Criminal Procedure Law in 2012, introduced in Article 53 (which after another revision in 2018 is Article 55) the beyond reasonable doubt standard for crim inal conviction.37 The requirements in Article 55 relate both to the ‘quantity’ and the ‘quality’ of the evidence. Case law after the revision suggests that judges to a greater

31 § 261 StPO (Ger.); Rodolphe Juy-Birmann, ‘The German System’ in Mireille Delmas-Marty and J.R. Spencer (eds), European Criminal Procedures (CUP 2005) 292, 309; Michael Bohlander, ‘Basic Concepts of German Criminal Procedure—An Introduction’ (2011) 1 Durham L Rev 1, 4 (hereafter Bohlander, ‘German Criminal Procedure’). 32 As adopted by the Supreme Court of Sweden in NJA 1980 s 725. 33 Carl Joseph Anton Mittermaier, ‘Il processo orale, accusatorio e per i giurati secondo le varie leg islazioni’ (first published 1845, Italian translation 1851) as commented by Chiara Seclì, ‘Reaching the “Beyond Reasonable Doubt” ’ ‘Standard in International Criminal Law Cases: A Comparison With Italian Doctrine and Jurisprudence’ (2019) Faculty of Law, Stockholm University Research Paper No 67, 3 accessed 8 April 2019. 34 Corte di Cassazione, Sezioni Unite, Sent. N. 21 April 1995, in Cassazione penale, p.2837, 1995; Corte di Cassazione, Sezione IV Penale, sentenza no. 29 November 2000, in C.E.D.; Corte di Cassazione, Sezione IV Penale, sentenza no. 28 November 2000, in C.E.D.; Corte di Cassazione, Sez. IV Penale, 28 September 2000, in C.E.D.; Federico Stella, Etica e razionalità del processo penale nella recente sentenza sulla causalità delle Sezioni unite della Suprema Corte di Cassazione, p.767, in Rivista italiana di diritto e procedura penale, 2002. 35 Corte di Cassazione, Sezioni Unite, sentenza no. 30328, 11 September 2002, in C.E.D. 36 Article 533 of Codice di Procedura Penale, (G.U. n.250 del 24-10-1988 - Suppl. Ordinario n. 92). 37 Article 53 (after revision in 2018, Article 55): ‘All cases shall be judged according to the principles that emphasis shall be laid on evidence, investigation and research, while credence shall not be readily given to oral statements. A defendant cannot be found guilty and sentenced to criminal punishments if there is no evidence other than his/her own statement. On the other hand, a defendant may be found guilty and sentenced to criminal punishments even without his/her own statements, as long as there is sufficient and concrete evidence. Evidence shall be deemed to be sufficient and concrete if the following conditions are satisfied: (1) There is evidence for each fact that serves as the basis for conviction and sentencing; (2) The authen ticity of evidence used for deciding the case has all been confirmed in accordance with statutory procedures; and (3) Based on the comprehensive assessment of all evidence for the case, the ascertained facts have been proved beyond reasonable doubt.’ English translation available at ‘Criminal Procedure Law of the People’s Republic of China’ (U.S. Congressional-Executive Commission on China) accessed 8 April 2019.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

458 Mark Klamberg extent are testing falsification of the indictment.38 In other words, some civil law countries diverge when it comes to the standard of conviction and method of evaluating evidence in criminal cases. As argued next, one should not exaggerate these differences. To summarize, this section has presented the tension between subjective and object ive approaches to the standard of proof for conviction. This tension may be bridged. For example, the modern understanding in Germany and France is that conviction must be based on a high degree of objective (or inter-subjective) probability. Several scholars argue that for all practical purposes the standard of proof when determining whether the accused is guilty is the same in different domestic systems—beyond reasonable doubt.39 This is also the accepted international standard. Thus, the reasonable conclu sion is that the standard of proof for conviction is objective in the sense that it entails a replicable process where it is possible to describe the different steps taken and give an account of how the conclusion was reached.

IV. Mathematical Methods in Evaluating Evidence The beyond reasonable doubt standard is sometimes described and discussed as a numerical value. It is often said to signify a 90 or 95 percent probability level.40 With such an approach to the beyond reasonable doubt standard, one is also invited to under stand the method of evaluation to be an exercise whereby the available information, or lack thereof, is transformed into numerical value that is measured against the required standard of proof. Since international trials, with very few exceptions, involve numer 38 李昌盛，反思排除合理怀疑标准。«南京大学法律评论»，2013, 年春季卷，第 182 页。(Li Changsheng, ‘Rethinking the Proof Beyond Reasonable Doubt Standard’ (Spring 2013) Nanjing University L Rev 182); Wei Hanqing, ‘The Integration and Practice of “Beyond Reasonable Doubt” in an Inquisitorial Legal System – Taking China as an Example’ (2019) Faculty of Law, Stockholm University Research Paper No 68, 4–6 accessed 8 April 2019. 39 Salvatore Zappalà, Human Rights in International Criminal Proceedings (OUP 2003) 97-ff, fn 64; Håkan Friman, ‘Inspiration from the International Criminal Tribunals when Developing Law on Evidence for the International Criminal Court’ (2003) 2(3) The Law and Practice of International Courts and Tribunals 373, 381–82; Michael Bohlander, ‘Evidence before the International Criminal Court— Basic principles’ (2005) 6(4) ERA-Forum 543, 544; Fabián O Raimondo, General Principles of Law in the Decisions of International Criminal Courts and Tribunals (Martinus Nijhoff 2008) 136; Caroline Buisman and others, ‘Principles of Civil Law’ in Karim A A Khan (ed), Principles of Evidence in International Criminal Justice (OUP 2010) 7, at 12, 37; Bohlander, ‘German Criminal Procedure’ (n 31) 4. 40 Renée C Pruitt, ‘Guilt by Majority in the International Criminal Tribunal for the Former Yugoslavia: Does This Meet the Standard of Proof “Beyond Reasonable Doubt?” ’ (1997) 10(3) Leiden J of Intl L 557, 568–70 (hereafter Pruitt); Larry Laudan, Truth, Error, and Criminal Law: An Essay in Legal Epistemology (CUP 2006) 44 (hereafter Laudan); Nancy Amoury Combs, Fact-Finding Without Facts—The Uncertain Evidentiary Foundations of International Criminal Convictions (CUP 2010) 346 (hereafter Combs, FactFinding Without Facts); McDermott, ‘Inferential Reasoning’ (n 4) 532, fn 91.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Epistemological Controversies 459 ous facts, witnesses, and documents, one would need techniques to assign numerical values to each piece of evidence and mathematical formulas on how to combine these numerical values. In this context, De Smet and McDermott point to the use of Bayesian Networks.41 Bayesian networks may be used after the evidence has been structured. They indicate the probabilities of a variety of mutually conditional outcomes.42 Bayes’ theorem (some times referred to as Bayes’ law) may be derived from the definition of conditional prob ity. The theorem expresses the posterior probability (i.e., after evidence E is abil observed) of a hypothesis H in terms of the prior probabilities of H and E, and the prob ability of E given H.43 Bayesian Networks are graphical models of the probabilistic rela tionships between hypotheses and pieces of evidence.44 If the reader finds it difficult to understand this method, you are not alone. De Smet writes the following: ‘Space does not permit to give even a basic explanation of how Bayesian epistemology works’.45 Other mathematical approaches include the Evidentiary Value Method and the Theme Probability Model, which both have been subject to substantial debate among scholars in Scandinavia since the 1960s starting with the writings of Per Olof Ekelöf. The Evidentiary Value Method and Theme Probability Method may be described as follows: The [evidentiary value method] focuses on value of the evidence for the theme, more specifically the probability that an evidentiary fact proves the evidentiary theme. The goal is to evaluate whether there is a causal relationship between the evidence, or some part of it, and the evidentiary theme in question. The probability P(e/d) is the evidentiary value which the evidence has for the theme (e), that is, the probability that the evidence proves the theme.46 41 Thomas Bayes, ‘An Essay towards solving a Problem, in the Doctrine of Chances (1763)’ in Peter Murphy (ed), Evidence, Proof, and Facts—A Book of Sources (OUP 2003) 438; Simon De Smet, ‘Justified Belief in the Unbelievable’ in Morten Bergsmo (ed), Quality Control in Fact-Finding (Torkal Opsahl Academic EPublisher 2013) 83–88 (hereafter De Smet, ‘Justified Belief ’); De Smet ‘International Criminal Standard of Proof ’ (n 19) 872–74; McDermott, ‘Inferential Reasoning’ (n 4) 528, fn 71, 532; Yvonne McDermott and Colin Aitken, ‘Analysis of Evidence in International Criminal Trials Using Bayesian Belief Networks’ (2017) 16(2–3) Law, Probability and Risk 111 (hereafter McDermott and Aitken). 42 McDermott, ‘Strengthening the Evaluation of Evidence’ (n 6) 697–99; McDermott and Aitken (n 41) 119. 43 Klamberg, Evidence in International Criminal Trials (n 5) 162. 44 McDermott and Aitken (n 41) 112. 45 De Smet ‘International Criminal Standard of Proof ’ (n 19) 872. 46 As summarized in Mark Klamberg, ‘The Alternative Hypothesis Approach, Robustness and International Criminal Justice: A Plea for a “Combined Approach” to Evaluation of Evidence’ (2015) 13(3) J of Intl Crim Justice 535, 538 (hereafter Klamberg, ‘Alternative Hypothesis Approach’). See also Per Olof Ekelöf, Rättegång IV (1st edn, Norstedt 1963); Per Olof Ekelöf, ‘Free Evaluation of Evidence’ (1964) 8 Scandinavian Studies in Law 45; Per Olof Ekelöf, ‘Topik und Jura’ in Hubert Hubien (ed), Akten des Weltkongres für Rechts—und Socialphilosophie, Brussels (Bruylant 1971); Robert W Goldsmith and Sven Ingemar Andersson, ‘Bevisvärdemetoden versus temametoden vid juridisk bevisvärdering’ (1978) 91 Tidsskrift for Rettsvitenskap 67; Robert W Goldsmith, ‘Evaluating Evidence in Criminal Cases by Means of the Evidentiary Value Model’ in Peter Gärdenfors, Bengt Hansson, and Nils-Eric Sahlin (eds), Evidentiary value: philosophical, judicial and psychological aspects of a theory: essays dedicated to Sören Halldén on his sixtieth birthday, vol 15 (C W K Gleerups 1983) 104.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

460 Mark Klamberg (…) The aim [of the theme probability model] is to asses P(t/d), the probability (P) that a given theme (t) is true on the basis of the evidence (d). This approach seeks to determine, upon examination of the evidence, how probable is that the matter in question, for which the evidence may or may not provide some degree of support, is true. Bayes’ theorem is central for the model. The theme probability model differs from the evidentiary value model in several regards. It assumes that there is an initial probability for the theme before hearing of evidence. The initial probability can be based on statistics on how frequent a certain phenomenon is in a given group. Evidence [is] lumped together. Further it concerns a two-sided prob ability: the evidentiary value both for the theme and for the non-existence of the theme.47

At least two points of criticism may be raised against these, mathematical understand ings of the beyond reasonable doubt standard. The first problem is empirical. There is very little support that judges in domestic or international trials ever engage in mathem atical analysis, even less support that they apply Bayesian Networks, the Evidentiary Value Method, or the Theme Probability Model.48 As Laudan has written on the approach of mathematical probability theory: it has ‘many advocates among academic lawyers but virtually none among judges’.49 Except for limited parts relating to forensic evidence,50 it is very difficult to find examples in international criminal trials (and domestic trials) where judges provide reasons in mathematical terms. One rare instance is the separate opinion of Judge Orie in Stanišić and Simatović. Mathematically speaking, if on five different occasions I was each time 70 per cent convinced that the Accused shared the necessary intent, this would not necessarily result in me being 100 per cent convinced, let alone 350 per cent. In fact, generally speaking, the likelihood remains at 70 per cent. An unambiguous pattern of links, assistance, presence, and involvement may of course increase the likelihood of find ing that the Accused shared the common criminal purpose.51

Although Judge Orie reasons in mathematical terms, he does not appear to argue that it is exact science. Instead, by the use of words such as ‘generally speaking’, he appears to argue that mathematical formulas for combining the probability of interrelated pieces of evidence should be perceived as thumb-rules.

47 As summarized in Klamberg, ‘Alternative Hypothesis Approach’ (n 46) 539. See also Per Olof Ekelöf, Henrik Edelstam and Lars Heuman, Rättegång IV (7th edn, Norstedts Juridik 2009) 169–72. 48 Christian Diesen, ‘Beyond Reasonable Doubt: Standard of Proof and Evaluation of Evidence in Criminal Cases’ (2000) 40 Scandinavian Studies in Law 169, at 172, 179 (hereafter Diesen, ‘Beyond Reasonable Doubt’). 49 Laudan (n 40) 36, 44, 63–88. 50 For example, ballistics, blood tests, and DNA tests. See De Smet, ‘Justified Belief ’ (n 41) 79–80; De Smet ‘International Criminal Standard of Proof ’ (n 19) 873. 51 Prosecutor v. Stanišić & Simatović (Judgment), IT-03-69-T, (20 May 2013), vol II, para 2418 (ICTY, Trial Chamber).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Epistemological Controversies 461 Even if we find that judges at present don’t engage in mathematical analysis, one could argue that this is due to lack of adequate training that could be remedied. Remedies could include training as well as use of computers.52 However, there are additional prob lem that are more fundamental. Even if the judges (or their legal officers) were trained in how to use Bayesian Networks and had appropriate computer resources at their dis posal, the utility of mathematical analysis will still be limited in the evaluation of evi dence. Numerical values on probability have to be assigned to every individual piece of evidence. The complexity of human affairs, the scarceness of relevant statistical data, and the difficulty of measuring nature and intensity of belief will still remain.53 Even if these issues could be overcome, there are inherent problems in using statistics in a crim inal trial. Cohen argues that a person’s relevant circumstances may tend, on mathemat ical analysis, to place the person on the majority side of some critical statistical division, even though he or she actually belongs to the minority.54 In the same line as Cohen’s argument, a past event may be provable, but it is less clear that it can always be described as probable.55 In other words, even the improbable may happen.56 This does not necessarily mean that mathematical methods should be discarded. An intermediate position is available: mathematical methods could be used as rules of thumb to avoid overestimation and underestimation. Three particular situations may be identified. (a) Successive (chain) evidence has in general lower probative value than direct evidence. Each link in the chain which has a probative value that is less than certain will result in a lower weight. This is an argument for the inadmissibility of hearsay evidence in English and American law. Considering that hearsay is admissible in international criminal procedure, as in several domestic proced ural systems, such evidence should normally be afforded less probative value or weight. (b) The probative value of counterevidence tends to be overestimated. The probative value of the primary evidence cannot be determined by simply subtracting the probative value of the counterevidence. The reason is that the primary evidence and counterevidence interact and should be evaluated in a context. (c) The probative value of concurrent evidence tends to be underestimated. If two or more independent pieces of evidence concurs and separately have a 52 De Smet, ‘Justified Belief ’ (n 41) (‘In fact, until fairly recently, the arithmetic involved was too com plex for Bayesian networks to have any real-life applicability. However, modern computers can now handle this and thus, the possibility of using Bayesian networks in real fact-finding situations is no longer fanciful’ at 87). 53 L J Cohen, The Probable and the Provable (Clarendon Press 1977) 270 (hereafter Cohen); Laudan (n 40) 36, 44, 63–88; De Smet ‘International Criminal Standard of Proof ’ (n 19) 873. 54 Cohen (n 53) 270. 55 Peter Murphy, Evidence, Proof, and Facts—A Book of Sources (OUP 2003) 11. 56 Diesen, ‘Beyond Reasonable Doubt’ (n 48) 175; Klamberg, Evidence in International Criminal Trials (n 5) 163.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

462 Mark Klamberg probative value supporting the fact in issue, the weight is often higher than what is normally expected.57 Already in 1766 had Beccaria formulated rules of thumb to calculate the combined evidentiary value for successive chain evidence (indicia that are dependent on each other) and concurrent evidence (two or more independent pieces of evidence that sup port the fact in issue).58 McDermott and Aitken make a similar argument: ‘Bayes Nets should be seen as a tool to assist thinking; they should not be viewed as a substitute to that thinking’.59 The Bemba Appeals Judgement may serve as an illustration on how mathematical methods and rules of thumb may—or may not—be used to calculate the combined evidentiary value of several pieces of evidence. Judge Christine Van den Wyngaert and Judge Howard Morrison were part of the majority that acquitted the defendant. They were concerned ‘that the Trial Chamber relied on a large amount of circumstantial evidence in relation to a number of key find ings’ and that the Trial Chamber conviction ‘lists eight circumstantial factors that it con sidered cumulatively proved the existence of a policy to attack a civilian population’.60 The Appeals Chambers conclusion, which may be described as applying a different rule of thumb from the Trial Chamber, was as follows: ‘By definition, drawing inferences from circumstantial evidence only adds uncertainty. Therefore, if the factual basis of the circumstantial evidence is weak, the inferences drawn from it will be even weaker’.61 Which chamber used the correct rule of thumb? The Trial Chamber was arguably using the correct rule: circumstantial pieces of evidence that are independent of each other and that alone would not be sufficient for conviction, but together their combined evidentiary weight may still be enough for conviction pursuant to the rule on corrob orative evidence. The Appeals Chambers appears instead to have erroneously used the successive (chain) evidence rule. In other words, when assessing circumstantial evi dence, the Appeals Chamber used a rule that is applicable for hearsay evidence and not the rule that is applicable for circumstantial evidence. Turning to non-mathematical methods, the ‘alternative hypothesis approach’ offers an alternative or additional method in evaluating evidence. The next section will elab orate on this approach.

57 Per Olof Ekelöf, ‘My thoughts on evidentiary value’ in Peter Gärdenfors, Bengt Hansson, and NilsEric Sahlin (eds), Evidentiary value: philosophical, judicial and psychological aspects of a theory: essays dedicated to Sören Halldén on his sixtieth birthday, vol 15 (C W K Gleerups, 1983) 9, 23–24; Klamberg, Evidence in International Criminal Trials (n 5) 177–78, 200; Klamberg, ‘Alternative Hypothesis Approach’ (n 46) 540–41. 58 Beccaria (n 22) 71–73. 59 McDermott and Aitken (n 41) 118. 60 Prosecutor v. Bemba (Judgment), ICC-01/05–01/08, (21 March 2016) paras 676–84 (ICC, Trials Chamber); Prosecutor v. Bemba (Judgment), ICC-01/05–01/08 A, (8 June 2018) paras 11–12 (ICC, Appeals Chamber). 61 ibid para 12.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Epistemological Controversies 463

V. Criticism Against the Beyond Reasonable Doubt Standard Pruitt argues that determining guilt by a majority is problematic where the required standard of proof is beyond reasonable doubt: ‘Should the finding of one judge of a three judge panel that there is reasonable doubt outweigh the findings of the other two?’62 Dov Jacobs argues in a similar vein, ‘I have always found it strange that judges could dis sent on facts. For me, judges are by definition “reasonable”. Therefore, if one judge on the bench dissents on the facts, doesn’t that ipso facto mean that there exists reasonable doubt?’.63 In Galić, Judge Nieto Navia appears to adopt a similar view in his separate and par tially dissenting opinion: The principle of in dubio pro reo is one of the foundational precepts of criminal law which can be found in domestic and international legal systems as well in the juris prudence of the Tribunal. According to this principle, the Prosecution must prove a fact aimed at a conviction beyond a reasonable doubt. I indicated to the Majority my concerns and doubts about the evidence relating to 8 out of 23 scheduled sniping incidents, 3 out of 5 scheduled shelling incidents as well as certain unscheduled incidents. I considered these doubts to be reasonable. I had expected this plural Trial Chamber to accept my doubts as sufficient to establish that the Prosecution has failed to prove an allegation beyond a reasonable doubt. The Majority did not share this expectation and I have been obliged to express separately my disagreement with its assessment of the evidence.64

How can we understand this argument? Pruitt initially makes a reference to two surveys from the US where judges were asked to quantify the beyond reasonable standard.65 I would argue that these surveys may be of scholarly interest, but they are of less relevance when discussing what the international legal standard ‘beyond reasonable doubt’ means.66 There is simply no consensus that beyond reasonable doubt is a numerical value. The fact that judges give a value, when specifically asked in a survey, does not mean that it properly reflects how fact-finding should operate or actually operates. In the context of the US system, it may be noted as an example that, in the definition of the standard ‘beyond reasonable doubt’ in the Manual of Model Criminal Jury Instructions

62 Pruitt (n 40) 572. 63 Dov Jacobs, ‘The ICC Katanga Judgment: A Commentary (part 2): Regulation 55 and the modes of liability’ (Spreading the Jam, 11 March 2014) accessed 3 September 2018. 64 Prosecutor v. Galić (Separate and Partially Dissenting Opinion of Judge Nieto Navia), IT-98-29-T, (5 December 2003) para 17 (ICTY, Trial Chamber). 65 Pruitt (n 40) 570. 66 See Part IV of this chapter.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

464 Mark Klamberg for the Ninth Circuit, no numerical values are used.67 One could argue that this lack of instruction may cause difficulties for lay persons in a jury. The particular challenges of employing lay-persons in fact-finding, however, should not be a problem in inter national criminal justice since judges—not juries—do the fact-finding and they are sup posed to know how this should be done. As already indicated, Pruitt appears to base his understanding of the beyond reason able doubt standard on a fact-finding process where judges assign a numerical value on the combined evidence presented during trial: Applying this reasoning, as well as the survey results that beyond reasonable doubt is generally seen as being at least 90% certain of the guilt of the accused, to the pro cedure employed by the International Tribunal, there is support for the argument that a judicial panel is too small to be truly representative of the international com munity and that this problem is exacerbated where it is required that proof beyond reasonable doubt be accepted by only two-thirds of the judicial panel. Assuming that one of the judges finds that the prosecution has not proved its case in relation to a specific charge (0% assurance) and the other two judges are positive of the guilt of the accused (100% assurance), the collective certainty of the panel is 67%, too low to surpass virtually any definition of beyond reasonable doubt, although the accused would be convicted under the International Tribunal’s Rules.

However, there will rarely if ever be a case where all three judges are completely— 100 per cent—convinced of either guilt and innocence. More likely is a scenario where, for example, one judge is 65 per cent convinced, one is 85 per cent convinced, and the third is 95 per cent convinced. Although most judges would not phrase their belief regarding the guilt of the accused in this manner, it provides a useful platform for discussion. The judge who is 95 per cent convinced will likely be of the opinion that she is convinced beyond reasonable doubt and vote in favour of conviction. In contrast, the judge at 65 per cent will probably conclude that the prosecution has not proved its case beyond reasonable doubt. The real problem arises with the judge who is 85 per cent convinced. As we have seen, many would believe that if they are 85 per cent certain of a fact, than that fact is proven beyond reasonable doubt. However, this judge could just as easily vote that the charge is not proven beyond reasonable doubt if his threshold for reasonable doubt is at some point above this mark.68 It has been argued in the previous section that assigning numerical values to evi dence and applying mathematical methods in evaluating evidence entails theoretical as well as practical difficulties, and as such should be used with caution.69 In the same vein, criticism may be voiced against Pruitt’s attempt to describe the flaws of the beyond son able doubt standard by using numerical values expressed in percentages. rea Further, Pruitt uses the words ‘collective certainty’ in the quote above that may be rele 67 United States Courts for the Ninth Circuit, Manual of Model Criminal Jury Instructions (2010 edn, updated 12/2017) section 3.5, 42. 68 Pruitt (n 40) 572–73. 69 See Part IV of this chapter.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Epistemological Controversies 465 vant in systems where consensus among the judges is required for conviction. However, in international criminal justice, dissenting opinions on the question of guilt are per mitted and as such it appears less relevant to discuss the bench in terms of ‘collective certainty’. In other words, Pruitt’s argument may be more relevant in domestic systems where consensus among judges is required for conviction, but not in relation to inter national criminal trials. Pruitt suggests that the ICTY should change the required standard of proof from beyond reasonable doubt to ‘a requirement that each judge (or two out of three) be firmly personally convinced of the guilt of the accused. . . . This change would have the advantage of allowing each finder of fact to evaluate their own conviction of the guilt of the accused as opposed to making a decision whether or not the proof presented exceeded that of a reasonable doubt. A standard such as this is, at least facially, much clearer and more easily applied’.70 A somewhat simplistic counter-argument to Pruitt’s approach would be that ‘if one judge of a three-judge panel finds that there is reasonable doubt, the minority judge may simply be wrong’.71 Does this mean that being ‘wrong’ also automatically means that the judge in question is ‘unreasonable’?72 A more sophisticated approach would rest on the assumption that judges generally do not and should refrain from treating fact-finding as merely a numerical exercise where they need to determine whether the evidence pre sented reaches a certain percentage ranging from 90 to 99 per cent. Instead, one could apply a different understanding of what ‘beyond reasonable doubt’ means and the method that follows from this understanding.73 I have advocated elsewhere the use of the ‘alternative hypothesis approach’. [T]he ‘alternative hypothesis approach’ . . . is based on the writings of Bacon, Mill, Cohen, Ferrajoli, Zuckerman and Diesen. The approach suggests that we should use evidential tests designed to eliminate any hypothesis that is under consideration. The hypothesis that best resists the most concerted efforts to eliminate it, as well as any other hypotheses, is the one which should have increasing confidence. This is known as induction by elimination. It involves a comparative or ordinal gradation of probability rather than a quantitative and measurable one. Considering that the standard of proof in criminal proceedings is ‘beyond reasonable doubt’ and not 70 Pruitt (n 40) 576. 71 Klamberg, Evidence in International Criminal Trials (n 5) 130. 72 De Smet ‘International Criminal Standard of Proof ’ (n 19) (‘[i]t is not clear whether Klamberg is of the view that being “wrong” also automatically means that the judge in question is “unreasonable” ’ at 862, fn 8). 73 Diesen, ‘Beyond Reasonable Doubt’ (n 48) (‘[m]ethodology applied in the evaluation of evidence is a result of the definition of the standard of proof. (…) [W]hen choosing a method for the evaluation of evidence one must always start from what the standard of proof has been meant to express. . . . [T]he standard of “beyond reasonable doubt” implies that the method shall consist in disproving alternative hypotheses, i.e. attempting to eliminate any reasonable doubt’ at 175–76); Klamberg, Evidence in International Criminal Trials (n 5) (‘[t]he method of evaluating evidence is largely a consequence of how the standard of proof is defined’ at 158); De Smet ‘International Criminal Standard of Proof ’ (n 19) (‘[u] nder any of these views, the criminal standard is not merely an indicator of a mental state to be reached by the adjudicator, but a reasoning procedure’ at 865).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

466 Mark Klamberg ‘beyond any doubt’, the prosecution arguably only needs to eliminate ‘reasonable’ alternative hypotheses. Which are these? Diesen suggests that alternative hypoth eses should be tested when they are reasonable in the sense that they are not pure scepticism or speculation. More specifically, a reasonable hypothesis is (i) compat ible with at least some of the facts in the case, and (ii) commensurable with the indictment, that is, the alternative hypothesis should be possible to formulate as a legal and evidential theme.74

This does not mean that each piece of evidence should be evaluated in isolation; rather, all pieces of evidence that are relevant for a fact in issue (for example whether the defendant was at a particular place at a given time) have to be weighed against each other.75 In the same vein, the ICTY states in Gotovina that ‘each and every element of the offences charged against an accused must be proven beyond a reasonable doubt’.76 How should the trier of fact deal with multiple alternative hypotheses that themselves are inconsistent with each other? If several of the alternative hypotheses by themselves are reasonable and survive the prosecutor’s attempts to elimination—albeit inconsistent with each other—they will lead to an acquittal. If the indictment can be defeated by more than one alternative narrative, this shows that it is weak. However, if the multiple alternative hypotheses by themselves are unreasonable, they cannot become reasonable by combining different, incompatible parts. That is why the alternative hypothesis—in order to be reasonable—should be possible to formulate as a legal and evidential theme that is commensurable with the indictment. The alternative hypothesis approach appears to have some basis in how judges actu ally evaluate evidence.77 In some cases, the judges explicitly compare different narra tives, for example in Nsengimana the ICTR Trial Chamber considered ‘two main competing narratives’.78 For a more recent example, Judge Van den Wyngaert stated in her dissenting opinion in Katanga that ‘charges must represent a coherent description of how certain individuals are linked to certain events’, that charges ‘constitute a narrative’, that ‘alternative explanations can be rejected for being unreasonable’, and that ‘the Chamber must convincingly explain why the alternative explanation is considered to be unreasonable . . . . The Defence does not shoulder any burden of proof in this regard’.79 In essence, Judge Van den Wyngaert, knowingly or not, adopts the alternative hypothesis approach and the narrative evidence theory as elaborated upon by scholars such as 74 Klamberg, ‘Alternative Hypothesis Approach’ (n 46) 542. 75 Klamberg, Evidence in International Criminal Trials (n 5) 177. 76 Prosecutor v. Gotovina et al (Judgment), IT-06–90, (15 April 2011) (ICTY, Trial Chamber). 77 Prosecutor v. Mrkšić et al. (Judgment), IT-95–13/l-A, (5 May 2009) para 220 (ICTY, Appeals Chamber); Prosecutor v. Omar Hassan Ahmad Al Bashir (Judgment on the appeal of the Prosecutor against the ‘Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’), ICC-02/05–01/09, (3 February 2010) para 33 (ICC, Appeals Chamber); Prosecutor v. Lubanga (n 4) para 111. For more examples, see Klamberg, ‘Alternative Hypothesis Approach’ (n 46) 543, fn 51. 78 Prosecutor v. Nsengimana (Judgment), ICTR-01-69-T, (17 November 2009) paras 212–25 (ICTR, Trial Chamber). 79 Prosecutor v. Katanga (Judgment) (n 2) Annex 1, Minority Opinion of Judge Van den Wyngaert, paras 32–33, 145–146.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Epistemological Controversies 467 Cohen, Allen, and Diesen.80 The approach shifts the attention away from the judges and whether they are reasonable or not, and instead it focuses on whether alternative narra tives to the charges made by the prosecution are reasonable. It is not argued that one single approach to evaluating evidence is bound to prevail and alone would be appropri ate to determine the guilt or innocence of a defendant; instead it is argued that different approaches and components should be resorted to,81 including mathematical methods as rules of thumb, but not more. Combs also adopts a critical approach to the beyond reasonable doubt standard by advocating a variable, less strict standard of proof for conviction in international crim inal trials,82 which has attracted the support of May and Fyfe.83 Combs justifies her call for a less strict standard on the basis of four arguments: 1) reasonable doubt in inter national cases is more often explained by flawed investigations than lack of sufficient evidence; 2) even if there is insufficient evidence to prove an alleged crime, there is greater likelihood that the defendant in an international case (as opposed to a domestic one) committed the same crime but in a different way; 3) even if there is insufficient evi dence to prove an alleged crime, there is greater likelihood that the defendant in inter national case (as opposed to a domestic one) committed some other crime; and 4) even if the defendant committed no crime, he may still be morally culpable.84 De Smet ques tions Combs’ empirical basis for making such sweeping claims and whether the obser vations made can be extrapolated to all international criminal cases.85 One could add that Combs’ analysis and conclusion appear to be constrained by the fact that she and the scholars she relies upon discuss the ‘beyond a reasonable doubt’ standard in mathematical terms. She appears to adopt an utilitarian approach when dis cussing the adequate standard of proof by comparing ratios of and how to balance ‘wrongful convictions’ with ‘wrongful acquittals’.86 It is in that context that one can understand her argument that a person should be convicted for a crime that has not been proven because it is likely that they have committed another crime or because they have moral culpability in it (the third and fourth reasons above). In addition to De Smet’s concerns, the alternative hypothesis approach may be used to counter Combs’ line of reasoning. The alternative hypothesis approach makes the assumption that the

80 Cohen (n 53); Ronald J Allen, ‘Reconceptualization of Civil Trials’ (1986) 66 Boston University L Rev 401; Ronald J Allen, ‘The Nature of Juridicial Proof ’ (1991) 13 Cardozo L Rev 373; Ronald J Allen, ‘Factual Ambiguity and a Theory of Evidence’ (1993) 88(2) Northwestern University L Rev 604; Diesen, ‘Beyond Reasonable Doubt’ (n 48); Mark Klamberg, ‘Recharacterisation of Charges in International Criminal Trials’ in Simon Andersson and Katrin Lainpelto (eds), Festskrift till Christian Diesen (Norstedts Juridik 2014) 342. 81 Klamberg, ‘Alternative Hypothesis Approach’ (n 46) 536, 553. 82 Combs, Fact-Finding Without Facts (n 40) 344. 83 Larry May and Shannon Fyfe, International Criminal Tribunals: A Normative Defense (CUP 2017) 160. 84 Combs, Fact-Finding Without Facts (n 40) 353–55. 85 De Smet ‘International Criminal Standard of Proof ’ (n 19) 884, 887–88. 86 Combs, Fact-Finding Without Facts (n 40) 346, 350.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

468 Mark Klamberg standard of proof in criminal cases is invariable.87 Instead of treating the beyond reasonable standard as a number, the standard should be perceived as method of fact-finding that is applicable in all criminal cases, i.e., a comparative or ordinal gradation of probability of competing hypotheses rather than a quantitative and measurable one.88 Obviously, more steps need to be taken than just applying the alternative hypothesis approach. To show that the narrative of the prosecution is superior to alternative narra tives is not enough, the evidence presented for the prosecution case must be sufficient in itself in the sense that evidence has to be put forward for all required elements of the crime, and the evidence pertaining to each element has to be weighed and determined. Different approaches and components may thus be combined to determine the guilt of a defendant, and mathematical approaches may be used with caution, as rules of thumb to avoid over- and underestimation. The evaluation of evidence may arguably involve stat istical as well as non-mathematical approaches; they are not necessarily mutually exclu sive. Different approaches may be combined to determine the guilt of a defendant.89

VI. Is Fact-Finding at the International Level Possible? The Turn to Empirical Legal Scholarship In Fact-Finding Without Facts, Combs questions the fact-finding ability of international criminal tribunals and courts based on educational, linguistic, and cultural impedi ments. The basis for her study is a large-scale review of transcripts from the ICTR, the Special Court for Sierra Leone (SCSL), and the Special Panels of the Dili District Court (Special Panels). She finds that witnesses sometimes claim not to know the information sought, whereas in other cases the communication breaks down because of the ques tioning process. The causes for testimonial deficiencies may in some instances be that witnesses lack the education and experience to be able to read maps, identify times, or answer questions about distances and dates. Cultural norms and taboos create add itional communication difficulties. Her conclusion is that eyewitness testimony before international tribunals is of highly questionable reliability. She argues that the deter minations in international criminal tribunals and courts ‘in many cases constitute little more than guesses’.90 Comb’s study has attracted some criticism. As mentioned earlier in this chapter, De Smet has questioned Combs’ empirical basis for making such sweeping claims and 87 Christian Diesen, Bevisprövning i brottmål (Norstedts Juridik 1994) 112. 88 Cohen (n 53) 40–41, 45–47, 126, 226, 246, 282–83, 345. 89 Klamberg, Evidence in International Criminal Trials (n 5) 159; Klamberg, ‘Alternative Hypothesis Approach’ (n 46) 546, 553; McDermott, ‘Strengthening the Evaluation of Evidence’ (n 6) 689 (McDermott suggests a combination of microscopic analysis and macroscopic marshalling of the evidence). 90 Combs, Fact-Finding Without Facts (n 40) 4, 179.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Epistemological Controversies 469 whether the observations made can be extrapolated to all international criminal cases.91 Ferdinandusse has raised similar concerns, questioning why Combs has included the International Criminal Tribunal for Rwanda (ICTR), hybrid internationalized tribunals such as the SCSL and the Special Panels, but excluded the International Criminal Tribunal for the former Yugoslavia (ICTY).92 Combs argues that the ICTY suffers from less educational, cultural, and linguistic divergences between witnesses and courtroom staff than the ICTR, SCSL, and the Special Panels.93 Kiyani and Tenove have also con cerns on the scope of the surveyed jurisdictions.94 Ferdinandusse challenges Comb’s claim that the norm—in contrast to international criminal tribunals—in domestic trial is a smooth flow of questions and answers in witness testimony.95 Further, he argues that inconsistencies or omissions in witness testimony do not necessarily invalidate that tes timony in its entirety.96 Combs has expanded on her work, and in a subsequent article found that the ICTR has confronted potential evidentiary deficiencies and altered for the better in its responses to those deficiencies.97 Her research is also part of a broader trend in international law scholarship, namely a turn to empirical legal scholarship.98 The approach in Combs’ article ‘Grave Crimes and Weak Evidence: A Fact-Finding Evolution in International Criminal Law’ is clearly based on social science methods as shown by its use of concepts such as ‘hypothesis’, ‘explanatory variables’, ‘dependent var iables’, ‘correlation’, and ‘cause’ that may appear unfamiliar for traditional legal scholar ship. Although the research design is presented early in the article,99 the hypothesis is somewhat loosely defined early as ‘serious inconsistencies usually reflect false testimony’100 and explicitly articulated later: ‘the hypothesis [is] that a large proportion of serious inconsistencies reflect purposefully false testimony’.101 Here it appears that Combs will investigate whether ‘false testimonies’ is the explanatory variable for the ‘serious witness inconsistencies’ (the dependant variable). Combs admits that ‘multiple causes underlie a phenomenon as multi-faceted as serious inconsistencies’.102 Combs defines ‘inconsistency’ as ‘witness testimony that was inconsistent with the witness’s pre-trial statements or previous testimony in other cases’. It is ‘serious’ either ‘if it pertained to a

91 De Smet ‘International Criminal Standard of Proof ’ (n 19) 884, 887–88. 92 Ward N Ferdinandusse, ‘Fact-Finding by and about International Criminal Tribunals’ (2013) 11(3) J of Intl Crim Justice 677, 678 (hereafter Ferdinandusse). 93 Combs, Fact-Finding Without Facts (n 40) 5. 94 Asad Kiyani and Chris Tenove, ‘Review Essays’ (2011) 5(3) Intl J of Transitional Justice 2011 519, 525–26. 95 Combs, Fact-Finding Without Facts (n 40) 22; Ferdinandusse (n 92) 679. 96 ibid 680–81. 97 Nancy Amoury Combs, ‘Grave Crimes and Weak Evidence: A Fact-Finding Evolution in International Criminal Law’ (2017) 58(1) Harvard Intl L J 47, 54 (hereafter Combs, ‘Grave Crimes and Weak Evidence’). 98 Jakob V H Holtermann and Mikael Rask Madsen, ‘Toleration, Synthesis or Replacement? The “Empirical Turn” and its Consequences for the Science of International Law’ (2016) 29 Leiden J of Intl L 1001. 99 Combs, ‘Grave Crimes and Weak Evidence’ (n 97) 53–54. 100 ibid 54. 101 ibid 114. 102 ibid 54.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

470 Mark Klamberg key issue in the trial or if it pertained to the kind of fact that one is unlikely to forget’.103 This definition is crucial since the entire data-set is coded on this definition. One potential flaw in this definition is that one could conceive of situations where a witness is inconsistent yet truthful. Combs later connects serious inconsistencies to malintent of the witness by the use of words such as ‘mendacity’.104 Here it is important to distinguish between credibility and reliability, since a witness may testify that a cer tain event occurred which at a later stage is discovered to be wrong, without the witness being deceptive. The person may have been mistaken in his/her observation due to defi ciencies in observational accuracy.105 Thus, when collecting and coding data for a study such as this, it will be necessary to distinguish between instances when the witness is deceptive on the one hand, with instances where the witness is honest but has made an erroneous observation or recollection on the other hand. Combs appears to be aware of this dilemma by having a section in which she discusses the difference between credibil ity and reliability, and how that has influenced coding of data.106 The study takes into account a comprehensive set of explanatory variables such as the witness’s gender, eth nicity, accomplice status, and imprisonment status in order to determine which factors are statistically significant predictors of serious inconsistencies.107 Turning to the findings, the incidence of serious inconsistencies was not correlated with as many explanatory variables as Combs expected, but she found support for the conclusion that serious inconsistencies usually reflect false testimony.108 As suggested above, Combs used these techniques to eliminate alternative explanations, for example accomplice status was found to have no effect on the probability of a witness testifying seriously inconsistently.109 Combs identifies the statistically significant finding ‘that wit nesses who provide more pretrial statements/testimonies are more likely to testify ser iously inconsistently’.110 It is unclear what conclusions on cause and effect can be made: does a greater number of instances when the witness is heard cause them to testify with serious inconsistencies? That is probably not what Combs means. A more logical con clusion is that witnesses who during investigations are inconsistent, will be heard more times in comparison to witnesses who are consistent. It is not the number of instances a witness is heard that will cause serious inconsistencies during the trial. The central finding is as follows: [I]f all other variables are fixed at their average levels, witnesses who testify seriously inconsistently are 44 percent less likely to be found totally credible and 35 percent less likely to be found totally or partially credible than witnesses who do not testify seriously inconsistently. Similarly, Trial Chambers were 33 percent less likely to 103 Combs, Fact-Finding Without Facts (n 40) 121; Combs, ‘Grave Crimes and Weak Evidence’ (n 97) 67–68. 104 ibid 114–15. 105 Klamberg, Evidence in International Criminal Trials (n 5) 174. 106 Combs, ‘Grave Crimes and Weak Evidence’ (n 97) 73–74. 107 ibid 53. 108 ibid 54. 109 ibid 78. 110 ibid 79–80, 109.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Epistemological Controversies 471 totally rely on the testimony of a witness with a serious inconsistency and 35 percent less likely to totally or partially rely on the testimony of a witness with a serious inconsistency.111

The difficulty is that correlation is not the same as causation. As mentioned earlier, Ferdinandusse argued that it is not enough to consider whether a testimony is consistent or not, one has to factor in to what extent it corresponds to other evidence and undis puted facts.112 A possible remedy is to more closely examine findings of courts in indi vidual cases that would entail a more qualitative analysis. Combs does examine individual cases. If one decides to do this even more thoroughly, which would be a pro ject in itself, McDermott’s method of examining the Krnojelac case may serve as an example.113 It is possible to combine quantitative methods with large amounts of data and single case studies,114 a mixed-method approach.115 This type of study would require larger research teams with different skills, a mode of research and cooperation familiar to social scientists, but less so for legal scholars. There may be good reasons for legal scholarship to evolve in this direction; for one, it would probably result in more interesting research. The turn to empirical legal scholar ship may serve at least two purposes: first, it may reveal what judges in international criminal trials actually do; second, better understanding and improved techniques of fact-finding may be fed back to the actual work of international criminal courts and thus improve their findings.

VII. Conclusions To summarize, the five controversies discussed in this chapter are to some degree inter related. Advocates for a subjective approach tend to be more favorable to an intuitive holistic approach and to be critical towards the beyond reasonable doubt standard. Conversely, if one finds the ‘alternative hypothesis approach’ sensible, it follows that evi dence needs to be deconstructed, the standard for conviction is perceived as objective, and some caution is adopted vis-à-vis mathematical approaches. The present chapter may contribute to settling some of the controversies and closing parts of the debate: it appears that there is a consensus that evidence needs to be deconstructed and that 111 ibid 102. 112 Ferdinandusse (n 92) 681. 113 McDermott, ‘Inferential Reasoning’ (n 4). 114 Stephen E Gent and Megan Shannon, ‘Decision Control and the Pursuit of Binding Conflict Management: Choosing the Ties that Bind’ (2011) 55(5) J of Conflict Resolution 710 (who first present quantitative data with a large N (at 722–728), and then reinforce their argument by studying ‘The Gulf of Venezuela Maritime Claim’ (at 728–729)); Mark Klamberg, Power and Law in International Society: International relations as The Sociology of International Law (Routledge 2015) 33. 115 cf Oran R Young, ‘Effectiveness of International Environmental Regimes: Existing Knowledge, Cutting-Edge Themes, and Research Strategies’ (2011) 108(50) Proceedings of the National Academy of Sciences 19853, 19858.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

472 Mark Klamberg fact-finding should strive to be objective in the sense that it entails a replicable process where it is possible to describe the different steps taken, and give an account of how the conclusion was reached. The debate over mathematical approaches is quite new in international criminal law scholarship. This chapter has been informed by the Scandinavian debate that started in the 1960s on mathematical approaches in which Ekelöf ’s mathematical approach may be contrasted with Cohen’s/Diesen’s ‘alternative hypothesis approach’. It is possible that the debate in relation to international criminal trials will follow the same trajectory as the Scandinavian one. Several scholars will engage in the debate and argue why their mathematical approach is superior; at the end of the debate it may be discovered that judges listened, but mathematical approaches are not be adopted in the practice of inter national criminal trials. This prognosis does not mean that the debate is unnecessary or undesirable; on the contrary, there is great need for scholars, judges, and other practi tioners to adopt more conscious views on what fact-finding and methods of evaluating evidence entail.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

chapter 20

The R ight to Tru th i n I n ter nationa l Cr imi na l L aw Leora Bilsky1

I. Introduction The last two decades have witnessed the emergence of a new human right: the right to truth. While principally elaborated by regional human rights courts, there have lately been attempts to import this right into international criminal law (ICL), in particular via the recognition of victims’ right to participate in proceedings before the International Criminal Court (ICC). This contribution exposes the little-noticed introduction of the right to truth into ICL, and suggests that it may produce significant institutional transformations in international criminal justice. In order to set the stage, I begin by locating attempts to transplant victims’ right to truth into the international criminal trial within the broader process of convergence between the fields of international human rights law (HRL) and ICL. The argument is then developed through discussion of four areas of doctrine in which lawyers and judges relied on victims’ right to truth and more broadly on the ‘truth-finding role’ of the trial as a normative source to argue for new procedural victim rights and obligations at the ICC: the victims’ ‘personal interests’ in the determination of guilt; the recharacterization of charges against the defendant; the right of victims to introduce evidence; and victims’ obligation to disclose exonerating evidence. The analysis of each of these areas reveals how behind the discourse of victims’ right to the truth lies an expansion of the Court’s discretionary powers. I conclude by presenting 1 Full Professor, Faculty of Law, Tel Aviv University. The Israel Science Foundation supported this research under Grant No. 1173/15. I thank Natalie Davidson and Rachel Klagsbrun for their excellent research assistance.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

474 Leora Bilsky the main current explanations for these doctrinal changes. I argue in particular that they fail to engage the new truth regime being introduced into the ICC, a regime that is neither a return to ordinary criminal law nor a simple imitation of the logic of truth commissions. The argument is not that the expansion of the Court’s discretionary powers is necessarily problematic. Rather, the contribution calls for an open discussion of the benefits and risks of the emerging truth regime as it affects the Court.

II. Background: The Right to Truth at the Crossroads between International Human Rights Law and International Criminal Law The convergence between HRL and ICL has been the subject of some analysis in recent years.2 Scholars point out that criminal law has become the dominant model for addressing human rights violations.3 Conversely, scholars see the formation of an informal coordination between human rights law and ICL, where international criminal tribunals attempt to align their judgments with international human rights law.4 The two fields share doctrinal concepts, leading international criminal tribunals to refer to the jurisprudence of human rights bodies in what has been seen as ‘cross-fertilization’ or ‘judicial dialogue’.5 The introduction of the right to truth in ICL is one manifestation of that convergence and cannot be understood without perspective about the process of convergence and the key role played by ‘truth’ discourse in that convergence. In HRL, the invocation of a right to truth originated as a ‘second best’ alternative to criminal prosecutions, during transitions to democracy in Latin America beginning in the 1980s, when members of the prior regimes were granted broad amnesties from prosecution.6 After struggles, the victims’ demands for truth were partly embraced by 2 Naomi Roht-Arriaza, ‘Editorial Note’ (2013) 7 International Journal of Transitional Justice 383; Ruti Teitel, ‘Transitional Justice and Judicial Activism—A Right to Accountability?’ (2015) 48 Cornell Intl LJ 385. 3 Karen Engle, ‘Anti-Impunity and the Turn to Criminal Law in Human Rights’ (2015) 100 Cornell L Rev 1069; Alexandra Huneeus, ‘International Criminal Law by Other Means: the Quasi-Criminal Jurisdiction of the Human Rights Courts’ (2013) 107 Am J Intl L 1. 4 Michelle Farrell, ‘Just How Ill-Treated Were You? An Investigation of Cross-fertilisation in the Interpretative Approaches to Torture at the European Court of Human Rights and in International Criminal Law’ (2015) 84 Nordic J Intl L 482, 486–99; Sergey Vasiliev, ‘International Criminal Tribunals in the Shadow of Strasbourg and Politics of Cross-fertilisation’ (2015) 84 Nordic J Intl L 371. 5 Elena Maculan, ‘Judicial Definition of Torture as a Paradigm of Cross-fertilisation: Combining Harmonisation and Expansion’ (2015) 84 Nordic J Intl L 456. 6 Naomi Roht-Arriaza, The Pinochet Effect: Transitional Justice in the Age of Human Rights (University of Pennsylvania Press 2005) 101; Juan E Méndez and Francisco J Bariffi, ‘International Protection of the Right to Truth’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (OUP 2011), opil.ouplaw.com/home/EPIL, [10].

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Right to Truth in International Criminal Law 475 the new regimes, which conveniently privileged truth commissions over criminal prosecutions by stressing the fragility of democratic transitions. With the establishment of the Truth and Reconciliation Commission (TRC) in South Africa, truth-seeking was eventually justified not only as ‘second best’ but as preferable to criminal trials under theories of restorative justice, according to which establishing the truth and altering attitudes towards victims and perpetrators were essential conditions for the return of democracy and the rule of law.7 Proponents of this approach argued that in criminal trials the search for the truth and the role of victims are necessarily more limited due to other values such as the defendant’s due process rights. Starting in the 1990s, ‘truth’ became increasingly juridified in HRL, particularly in the jurisprudence of the Inter-American Court of Human Rights, to a degree that it was understood to be a legal right of the individual victim to have the state conduct criminal prosecutions.8 When victims turned to regional and international institutions to pressure the state to investigate and prosecute, they formulated their demand in terms of their right to the truth.9 In order for the victims to appeal to the international community and 7 See Truth and Reconciliation Commission of South Africa, Truth and Reconciliation Commission of South Africa Report, vol 1 (Truth and Reconciliation Commission 1998–2003) ch 5 [55]: ‘the tendency to equate justice with retribution must be challenged and the concept of restorative justice considered as an alternative. This means that amnesty in return for public and full disclosure (as understood within the broader context of the Commission) suggests a restorative understanding of justice, focusing on the healing of victims and perpetrators and on communal restoration’; Naomi Roht-Arriaza, ‘The New Landscape of Transitional Justice’ in Naomi Roht-Arriaza and Javier Mariezcurrena (eds) Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (CUP 2006) 1, 4; Bronwyn A Leebaw. Judging State-Sponsored Violence, Imagining Political Change (CUP 2011)119–44. 8 The right to truth, its scope and its relationship with the duty to investigate secret detentions and renditions, and secure accountability of officials for gross human rights violations has also been the subject of litigation in the European Court of Human Rights (ECHR). Here, the juridification of the truth was achieved by relying on European Convention on Human Rights, arts 13 (right to an effective remedy, which the ECHR found includes, beyond compensation, also effective investigation of the truth, see Aksoy v Turkey, App no 21987/93, 18 December 1996 [98]), 2 (right to life), 3 (prohibition of torture), 5 (right to liberty and security), and 10 (freedom of expression). However, unlike the case law of the InterAmerican system, the ECHR refrains from recognizing a victim’s right to criminal prosecution, rather to an ‘effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure’ (but see recent judgment in Nasr and Ghali v. Italy, where the ECHR found that a thorough investigation to uncover the truth had taken place but that the executive has unduly thwarted the conviction of the persons respon sible on the grounds of ‘state secrecy’. Thus the ECHR found that Italy has violated the ‘procedural aspect’ of art 3, namely an effective investigation. This judgment brings us closer to the Inter-American requirement of a criminal investigation and conviction. See Nasr and Ghali v. Italy, App no 44883/09, 23 February 2016). The ECHR also emphasizes the collective right of society for a full and effective investigation, especially when the circumstances are those of secrecy and possible illegitimate and illegal acts by the state (Husayn (Abu Zubaydah) v. Poland, App no 7511/13, 24 July 2014). For a recent discussion of the jurisprudence of the ECHR and the emerging ‘right to accountability’ see Teitel (n 1). For relevant case law of the ECHR see Kurt v. Turkey, App no 24276/94, 25 May 1998 [140]; Association ‘21 December 1989’ and others v. Romania, App no 33810/07, 24 May 2011 [142], [144], [193]; El-Masri v. the Former Yugoslav Republic of Macedonia, App no 39630/09, 13 December 2012, [191]–[193], [255]; Husayn (Abu Zubaydah) [489], [491]; Al Nashiri v. Poland, App no 28761/11, 24 July 2014, [497]. 9 Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions are Changing World Politics (WW Norton 2011) 77–83.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

476 Leora Bilsky rely on international law, the scope of the right to truth was expanded beyond enforced disappearances, where the claims for truth had originated.10 In addition, in the context of human rights litigation, which positions victims in relation to the state, victims re-defined the right to truth not only as the collective right of society,11 but also as a private right of the victim to require the state to prosecute, deriving from the right of access to justice.12 As explained by Raquel Aldana-Pindell: ‘Victims’ claims to [criminal] prosecutions as a remedy have come to mean . . . that prosecutions become a justiciable right that victims should be able to claim against the state’.13 The Inter-American Court of Human Rights further recognized participation rights of victims in domestic criminal proceedings.14 The result is a dramatic change: in HRL as well as in the field of transitional justice,15 truth-seeking is viewed no longer as an alternative but as complementary with criminal prosecutions of the most serious human rights violations.16 Thus, the right to truth contributed to blurring the distinction between HRL and criminal law, enabling the later penetration of the right to truth in ICL. While these developments are often praised for increasing accountability,17 recent writing questions some of the implications of this convergence for HRL, highlighting 10 UN High Commissioner for Human Rights ‘Study on the Right to the Truth’ (8 February 2006) UN Doc E/CN.4/2006/91 [8], 59. See also the case of Goiburú et al v. Paraguay (Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No 153 (22 September 2006) [88], in which the Court recognized a right to truth in relation to extrajudicial executions, forced disappearances and other grave human rights abuses. For a socio-legal study of the role of NGOs connected to the victims’ families in these developments see Patricial Naftali, ‘The Subtext of New Human Rights Claims: A Socio-Legal Journey into the “Right to Truth” ’ in Matthew French, Simon Jackson, and Elina Jokisuu (eds) Diverse Engagement: Drawing in the Margins (University of Cambridge Graduate Development Programme 2010) 118. 11 See Azanian People Organization (AZAPO) v. The President of South Africa [1996] ZACC 16. For further discussion of the AZAPO case as a measure of the change of HR law towards criminalization see Engle (n 2) 118–20. 12 Bámaca Velásquez v. Guatemala (Merits) Inter-American Court of Human Rights Series C No 70 (25 November 2000). 13 Raquel Aldana-Pindell ‘In Vindication of Justiciable Victims’ Right to Truth and Justice for StateSponsored Crimes’ (2002) 35 Vanderbilt J Transnatl L 1399,1415, referring to the case of Bámaca Velásquez. 14 In Gonzalez Medina v. Dominican Republic the Inter-American Court noted that states have an obligation to allow victims to take part in proceedings, and this is in order for victims to enjoy access to justice, learn the truth about the violations, and receive just reparations. Case González Medina and Family v. Dominican Republic (Preliminary Objections, Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No 240 (27 February 2012) [251]–[54]; see also 19 Merchants v Colombia (Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No 109 (5 July 2004), [263]. 15 Roht-Arriaza (n 6) 8. 16 In Ellacuría, the Inter-American Commission on Human Rights explained that ‘the value of truth commissions is that they are created, not with the presumption that there will be no trials, but to constitute a step towards knowing the truth and, ultimately, making justice prevail’. IACHR, Report No. 136/99, Case 10.488 Ignacio Ellacuría et al (22 December 1999) [229] (fn omitted). In La Cantuta v. Perú the Inter-American Court addressed the issue directly by explaining that notwithstanding the importance of a truth and reconciliation commission, the ‘ “historical truth” contained in said report does not complete or substitute the State’s obligation to also establish the truth through court proceedings’: Case of La Cantuta v. Perú (Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No 162 (29 November 2006) [224] (fns omitted). 17 Sikkink (n 8), 129–88. Huneeus (n 2) 32–43.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Right to Truth in International Criminal Law 477 the irony of human rights activists becoming champions of criminal justice,18 and pointing to the dangers for processes of democratization at the heart of the field of transitional justice.19 What are the implications of this convergence for international criminal law and justice? In the remainder of this contribution, I expose and critique some of the institutional implications of the importation of the right to truth from HRL into ICL.

III. The Right to Truth at the ICC A. Truth and the International Criminal Trial Since Nuremberg, recognition of the collective nature of international crimes has led to an expansion of the goals of the criminal trial beyond traditional objectives such as retribution and deterrence to include an autonomous didactic objective: the clarification of history.20 Working against the background of contested historical truth, procedural rules were changed to allow the presentation of new kinds of evidence such as expert testimony from historians who were not eye-witnesses. Under this enlarged framework of ICL, it can be said that interest in the ‘truth’ was understood to be collective, the interest of society as a whole as well as the international community. This understanding is evident in a 1997 UN report prepared by Joinet: Every people has the inalienable right to know the truth about past events and about the circumstances and reasons which led, through systematic, gross violations of human rights, to the perpetration of heinous crimes. Full and effective exercise of the right to the truth is essential to avoid any recurrence of violations in the future.21

18 Engle (n 2). 19 Teitel (n 1). 20 Since collective crimes occur over an extended period of time and in various locations, and since they have a group component, trying them requires an understanding of the broader historical context. Wilson argues that history becomes ‘legally relevant’ for such crimes: ‘Demonstrating the collective aspects of crimes such as genocide requires an account of intergroup relations over time. In addition, international criminal law requires that crimes against humanity be “widespread and systematic”, which implies a close examination of both the historical and social context’ (Richard A Wilson, Writing History in International Criminal Trials (CUP 2010) 21, 18–22). Moreover, since such crimes involve large segments of society, it becomes very difficult to satisfy the retributive goals by conducting few exemplary trials, hence a new rationale for the trial has emerged—the symbolic or didactic goal of clarifying a contested, and often denied history. See Lawrence Douglas, ‘Crimes of Atrocity, the Problem of Punishment and the situ of Law’ in Predrag Dojčinović (ed) Propaganda, War Crimes Trials and International Law (Routledge 2012) 269; Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (Yale University Press 2001); Mark Osiel, Mass Atrocity, Collective Memory, and the Law (Transaction Publishers 1997). 21 ‘Question of the impunity of perpetrators of human rights violations (civil and political)’, final report prepared by Mr Joinet pursuant to Sub-Commission decision 1996/119, UN Doc E/CN.4/ Sub.2/1997/20/Rev.1., Annex I, Principle 1 (emphasis added).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

478 Leora Bilsky The search for the truth in international criminal trials was also shaped by concerns for the role of victims. The prosecution of mass crimes planned from above posed challenges in relation to eyewitness testimonies of victims, who typically witnessed only operations on the ground. In addition, the horrors and magnitude of the crimes and the traumatic experience of the victims triggered concerns that the testimonies would appear unreliable and motivated by revenge. Hence, the American prosecution at the International Military Tribunal in Nuremberg decided not to allow Jewish victims to testify at all.22 At this point the objective ‘truth’ was contrasted with the subjective emotions of the victims. A decade and a half later, during the Eichmann trial in Jerusalem, over 100 Jewish survivors were given a platform to extensively tell their stories, but precisely for this reason the trial has been considered by many at the time as a form of ‘victims’ justice’, as reflected by Hannah Arendt’s famous critique.23 Change began in the 1990s with the establishment of the ad hoc tribunals for the former Yugoslavia and Rwanda. Feminist organizations demanded that international crimes such as crimes against humanity and genocide be redefined to include sexual violence.24 Their critique was part of a larger victims’ rights movement. Specifically, feminist activists who demanded a change in prosecutorial priorities made the link between the exclusion of women-victims and the limited historical truth emerging from international criminal tribunals. They argued that the historical truth exposed by international trials was not complete as long as it did not include the special crimes against women.25 Although the ICTY and ICTR were attentive to such claims and came to heavily rely on victim-witnesses, victims’ advocates criticized the Tribunals for failing to attend sufficiently to the needs of victims and for merely viewing them instrumentally, as witnesses for the prosecution, not as full participants in the trial. According to scholars, these criticisms, together with the movement in domestic and international law to recognize victim rights, and the case law of human rights tribunals interpreting human rights conventions as conferring standing to victims, led the drafters of the Rome Statute establishing the ICC to adopt a victim-centred perspective.26 22 Douglas (n 18), 78–9; Laura Jockusch, ‘Justice at Nuremberg? Jewish Responses to Nazi WarCrimes Trials in Allied Occupied Germany’ (2012) 19(1) Jewish Social Studies 107 (demonstrating the limited role of Jewish victims in both IMT and NMT). 23 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (first published 1963, Penguin Books 2006). 24 Kelly D Askin, War Crimes against Women: Prosecution in International War Crimes Tribunals (Martinus Nijhoff 1997); Judith G Gardam and Michelle J Jarvis, Women, Armed Conflict and International Law (Kluwer 2001); Alona Hagay-Frey, Sex and Gender Crimes in the New International Law: Past, Present, Future (Martinus Nijhoff 2011). 25 In addition, they also demanded changes in procedure to protect women testifying, and the establishment of a special unit for the protection of victims. See Rhonda Copelon, ‘Gender Crimes as War Crimes: Integrating Crimes against Women into International Criminal Law’ (2000–2001) 46 McGill LJ 217, 231–2, 238–9. 26 The ICC is seen as departing from previous ICL tribunals in, among other things, its victimparticipation scheme. See, e.g., William A Schabas, An Introduction to the International Criminal Court (4th ed, CUP 2011) 347; Robert Cryer, Håkan Friman, Darryl Robinson, and Elizabeth Wilmshurst, An Introduction to Criminal Law and Procedure (2nd ed, CUP 2010), 478–81; Aldana-Pindell (n 11) 1428;

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Right to Truth in International Criminal Law 479 The result was that as in HRL, where the truth was juridified and individualized, in ICL the truth was gradually transformed from an overall goal of the trial into a right of the victim—first to voice and protection (ICTY/R) and later to active participation rights in the trial (ICC).27 The drafters of the Rome Statute debated the adversarial and inquisitorial models, and opted for a compromise.28 Thus, the ICC model adopts some civil law elements although it falls short of recognizing the victim as a full party to the trial (such as in the French or German systems).29 Instead, the Rome Statute sees the victims as participants whose ‘views and concerns’ should be given consideration but must be balanced against the right of the accused and a fair trial.30 The statute adopts vague and open-ended terms such as ‘views and concerns’ and ‘personal interests’, leaving broad discretion to the judiciary in adopting the applicable procedures.31 It is in this context that the right to truth as developed in HRL has been invoked as providing guidance for articulating the procedural rights of victims at the ICC. Unlike HRL that positions the individual against the state, until recently the framework of ICL had shaped the issue of the search for the truth as a matter of balance between the rights of the accused to a fair trial on the one hand and the rights of victims

Sigall Horovitz, ‘The Role of Victims’ in Linda Carter and Fausto Pocar (eds), International Criminal Procedure: the Interface of Civil Law and Common Law Legal Systems (Edward Elgar 2013) 166, 190. Compare to the Extraordinary Chambers in the Courts of Cambodia (ECCC) that provide an extensive victim participation scheme. The inspiration, however, came from the civil-law French-based system practiced in Cambodia. At the ECCC, the victim is given (not automatically) the status of a civil party with extensive participation rights. Nevertheless, since its establishment, experience has shown that the Court will not be able to operate on the exact basis of the domestic model. Therefore, significant changes in the procedure governing victim participation (mainly the addition of a court-appointed Civil Party Co-Lawyer) resolved in a limited participation scheme, some critiques equating it with that of the ICC and calling it ‘more symbolic than substantive’. See Susana SáCouto, ‘Victim Participation at The International Criminal Court and The Extraordinary Chambers in The Courts of Cambodia: A Feminist Project?’ (2011–2012) 18 Mich J Gender & L 297; Brianne McGonigle Leyh, Procedural Justice? Victim Participation in International Criminal Proceedings (Intersentia 2011) 222. 27 The ‘right to truth’ as a right of the victim was not recognized by the ad-hoc tribunals. These tribunals understood their role in terms of clarifying the historical truth and allowed the expert testimonies of historians. See Wilson (n 18). 28 Claus Kress, ‘The Procedural Law of the International Criminal Court in Outline: Anatomy of Unique Compromises’ (2003) 1 J Intl Crim Justice 603, 604. The adversarial and inquisitorial models, in addition to having different views on the place of victims in the trial, also have different views on the notion of truth. See Thomas Weigend, ‘Is the Criminal Process about Truth?: A German Perspective’ (2003) 26 Harvard J Law & Public Policy 157. This may explain the broader approach to truth-finding in the ICC that incorporates some inquisitorial elements. See for example art 69(3) of the Rome Statute that will be discussed later. 29 Leyh (n 26) 234. 30 The Dutch delegation recommended that a limitation be added to art 68(3) which states that participation shall take place in ‘a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial’. ibid 237. 31 This approach was dubbed ‘constructively ambiguous’ and a ‘fundamental compromise formula’. See Sergey Vasiliev, ‘Victim Participation Revisited: What the ICC is Learning about Itself ’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (OUP 2015), 1133, 1143–4.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

480 Leora Bilsky on the other.32 Truth was accordingly framed from the outset by limitations inherent to criminal justice and it was therefore difficult to accept evidence not related to the proof of innocence or guilt of the accused.33 Victims’ testimonies were understood to assist the prosecution in establishing the guilt of the accused, and victims’ rights were meant to provide protection under an adversarial framework against the danger of secondary victimization.34 In what follows I expose attempts to expand truth-seeking at the ICC beyond these traditional limitations. I present several areas of doctrine in which various actors relied on the ‘right to truth’ and more broadly on the ‘truth-finding role’ of the trial as a normative source for articulating new procedural rights and new discretionary powers for the ICC. Here we can notice a subtle change from viewing victims as passive recipients of the ‘truth’ to active participants in the truth-seeking mechanism of the Court. My interest lies less with the legal bottom line (whether the argument was accepted or rejected by the Court) and more with the justificatory discourse that accompanied this process. This discourse is important in framing the arguments of the various players (advocates, lawyers, or judges) and allowing us to glimpse changes in their understanding of the relation between the criminal trial, victims, and the search for truth. I aim to show how the convergence (or cross-fertilization) between HRL and ICL obscured important differences between the fields, thus legitimizing structural changes in the international criminal trial without a genuine debate about their potential impact on core values of ICL.

B. Victims’ ‘Personal Interests’ and the Determination of Guilt or Innocence Article 68(3) of the Rome Statute provides that: Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. 32 See Thomas Weigend, ‘Is the Criminal Process about Truth? A German Perspective’ (2003) 26 Harvard J Law & Public Policy 157, 158–61. 33 Dermot Groome, ‘The Right to Truth in the Fight against Impunity’ (2011) 29 Berkeley J of Intl L 175, 186. 34 The ICTY and ICTR respective statutes direct the judges to adopt rules and procedures for, inter alia, the protection of victims and witnesses (art 22 and art 21, respectively). The respective Rules of Procedure and Evidence of each tribunal provide for the establishment of a victims and witnesses support unit, and contain other protection measures such as non-disclosure of victim identity if they are in danger or at risk (rule 69). International Criminal Court for the Former Yugoslavia, Rules of Procedure and Evidence, U.N. Doc. IT/32/Rev. 49 (2013), entered into force 14 March 1994, amendments adopted 22 May 2013; International Criminal Court for Rwanda, Rules of Procedures and Evidence, U.N. Doc. ITR/3/Rev. 49 (2013), entered into force 29 June 1995, amendments adopted 10 April 2013.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Right to Truth in International Criminal Law 481 It thus conditions the participation of victims on showing that their ‘personal interests’ are affected. But what constitutes a personal interest, and what procedural rights are entailed by it? These questions arose before Pre-Trial Chamber I in the case of Katanga and Chui, around the issue of whether the ‘personal interests’ of the victims encompass the results of the trial pertaining to the determination of guilt and innocence. The single judge answered in the affirmative, explaining that victims have a core interest in the determination of the facts, the identification of those responsible, and the declaration of their responsibility.35 Interesting for our purpose is the role played by the ‘right to truth’ as a human rights law concept in this decision. First, the judge relied on empirical studies conducted amongst victims of serious human rights violations that indicate that victims decide to resort to judicial mechanisms against their victimizers in order to have a declaration of the truth by a competent body.36 Second, and more importantly, the judge resorted to the right to truth as interpreted by human rights tribunals, in order to decide the question at hand.37 On this basis, the judge determined that: [W]hen [the right to truth] is to be satisfied through criminal proceedings, victims have a central interest in that the outcome of such proceedings: (1) bring clarity about what indeed happened; and (2) close possible gaps between the factual findings resulting from the criminal proceedings and the actual truth.38

Thus, the judge concluded that the issue of guilt or innocence is inherently linked to the right to truth and that the search for the truth can be satisfied only if those responsible are declared guilty and those not responsible are acquitted so that the search for those who are criminally responsible can continue.39 The judge’s broad interpretation of the right to truth, together with her decision to adopt a ‘systemic approach’ by which the court can determine that the personal interests of the entirety of the victims in the pre-trial stage are affected (rather than in relation to specific victims and specific proceedings arising during the pre-trial stage or specific pieces of evidence),40 in effect nullifies the condition of ‘personal interests’ and thus tends to blur the functional distinction between a prosecutor and a victim. It therefore

35 Prosecutor v. Katanga & Chui (Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case) Pre-Trial Chamber I ICC-01/04–01/07–474 (13 May 2008) (‘Katanga victims’ rights decision’) [32], [35]–[36], [42]. 36 ibid [31]. 37 See ibid [32]: ‘the Single Judge underlines that the victims’ core interest in the determination of the facts, the identification of those responsible and the declaration of their responsibility is at the root of the well-established right to the truth for the victims of serious violations of human rights’. Here, the judge referred mainly to the case law of the Inter-American Court of Human Rights (Bámaca Velásquez v. Guatemala, Barrios Altos v. Peru, Masacre de Mapmpân v. Colombia, Almohacid-Arellano et al v. Chile) as well as to case law of the European Court of Human Rights (Hugh Jordan v. UK. See n 55). 38 ibid [34]. 39 ibid [35]–[36]. 40 ibid [45]–[51].

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

482 Leora Bilsky raises concerns that the adversarial principle of equality of arms between prosecution and defence is being undermined.41 Another implication of the judge’s transplantation of the right to truth from HRL is to broaden the scope of the truth sought to be established in the criminal trial. The interests of the victims (as articulated by human rights tribunals) go beyond finding the guilty to ascertaining the ‘actual truth’. This rationale was developed in the context of truth commissions originally understood to seek to clarify the broader historical truth as an alternative to criminal prosecutions. Here the same rationale is now being introduced into the criminal trial, via the right to truth of the victim, in ways that broaden the trial’s goal and equip new actors as its carriers. The criminal inquiry is reinterpreted to ‘close the gap’ between the ‘legal truth’ and the ‘actual truth’. We saw that since Nuremberg, ICL has gradually introduced ‘didactic’ goals such as ascertaining the historical truth, alongside traditional criminal law goals of retribution and deterrence. However, relying on Article 68(3) and linking such goals to the right to truth as it emerged under HRL subsumes the didactic goals of the criminal trial under the ‘personal interests’ of the victim. This has the potential to bring about an individu ation of the truth not present in earlier ICL jurisprudence.42 This move thus identifies the victim with the search for the truth and obscures the victim’s subjective interest as a party to the legal dispute.43 This transplantation of HRL to ICL also ignores the fact that the recognition of victims’ right to truth by human rights tribunals concerns state liability and is meant to empower the victims against a much stronger state that has failed in its duties and ensured impunity to suspected perpetrators. In contrast, the recognition of victims’ participation rights within a criminal trial addressing individual criminal responsibility typically pits a group of victims against an individual defendant. Relying on a certain interpretation of the right to truth of the victim as a normative source for recognizing participation rights of victims in the criminal trial is meant to 41 Although outside the scope of this article, I will mention that there is an evident oscillation between the way different chambers of the ICC have interpreted art 68(3) generally and ‘personal interests’ in particular, including in which stages of the proceedings these are affected. Thus one can find statements such as ‘the personal interests of victims in general are affected at the investigation stage, since the participation of victims at this stage can serve to clarify the facts, to punish the perpetrators of crimes and to request reparations for the harm suffered’ (Situation in the DRC (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) Pre-Trial Chamber I, ICC-01/04–101 (17 January 2006) [63]); as well as: ‘Clear examples of where the personal interests of victims are affected are when their protection is in issue and in relation to proceedings for reparations . . . an assessment will need to be made in each case as to whether the interests asserted by victims do not, in fact, fall outside their personal interests and belong instead to the role assigned to the Prosecutor’ (Prosecutor v. Lubanga (Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/105/06 concerning the ‘Directions and Decision of the Appeals Chamber’ of 2 February 2007)) Appeals Chamber, ICC-01/04–01/06–925 (13 June 2007) 28. For elaboration see Vasiliev (n 31). 42 In later decisions the Court ‘collectivized’ the personal interest, by demanding that the victim’s personal interest be representative of a larger group of victims, see Vasiliev (n 31), 38. 43 See Christine Van den Wyngaert, ‘Victims Before International Criminal Courts: Some Views And Concerns Of An ICC Trial Judge’ (2011) 44 Case Western Reserve J Intl L 475, 487–8.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Right to Truth in International Criminal Law 483 overcome the limits to victim participation set by Article 68(3). Indeed, the judge’s interpretation of victims’ rights could change the structure of the trial and the relative powers of the parties in a way that might undermine due process. The structural change that such interpretation entails did not go unnoticed, and was sharply criticized by Judge Pikis of the Appeals Chamber: The proof or disproof of the charges is a matter affecting the adversaries. The victims have no say in the matter. Their interest is that justice should be done, coinciding with the interest of the world at large that the criminal process should run its course according to law, according to the norms of a fair trial . . . it is not the victims’ concern, as a matter directly related to the reception of evidence, to either prove or disprove charges.44

This view, however, remained in the minority and subsequent decisions invoke the truth-finding role of the Court to justify a broad interpretation of victims’ personal interests to include an interest in the determination of guilt or innocence.45

C. New Charges Against the Accused The invocation of victims’ right to truth can also be found in case law concerning the possibility of changing the charges against the accused. Regulation 55 bestows on the Court discretion to re-characterize the charges against the defendant.46 The Trial Chamber in the Lubanga case decided in July 2009, three years after the commencement 44 Prosecutor v. Lubanga Dyilo (Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008) Appeals Chamber, ICC-01/0401/06-1432 (11 July 2008) Partly Dissenting opinion of Judge GM Pikis [19]. 45 e.g., ‘The Chamber considers that requesting the submission of incriminating or exculpatory evidence pursuant to 69(3) of the Statute would be a means for the victims to express their “views and concerns” within the meaning of article 68(3) of the Statute. Accordingly, it will allow them this possibility, subject to certain conditions set out below. In the Chamber’s view, making it possible for the Legal Representatives of the Victims to propose the submission of evidence would in fact assist it in its implementation of article 69(3) of the Statute, and hence in its search for the truth’. Prosecutor v. Katanga & Ngudjolo, (Decision on the Modalities of Victim Participation at Trial) Trial Chamber II, ICC-01/04– 01/07-1788-tENG (22 January 2010) [82]. As pointed out by Vasiliev, ‘in all cases to date, the ICC Trial Chambers have allowed the legal representatives to present [evidence on the guilt or innocence of the defendant] and to challenge its admissibility, subject to the Chamber’s authorization and the Article 68(3) requirements . . . . The Trial Chambers have uniformly done so with reference to their power to require the submission of all evidence considered necessary for the determination of the truth pursuant to Article 69(3)’. Vasiliev (n 31) 1168–9. 46 Regulation 55(2) reads: ‘If, at any time during the trial, it appears to the Chamber that the legal characterization of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective preparation or, if necessary, it may order a hearing to consider all matters relevant to the proposed change’ (Regulations of the Court 2004).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

484 Leora Bilsky of the trial, that the facts in the case were subject to ‘legal re-characterization’ under Regulation 55. The original charges related to gender-neutral offences of conscription, enlistment, and use of child soldiers. The re-characterization would have allowed the prosecution to charge Lubanga with the war crime and crime against humanity of sexual slavery and the war crime of cruel and inhuman treatment, as requested by the legal representatives of the victims who argued that the narrow set of charges against the defendant did not fully reflect the experience suffered by female victims, such as rape and other sexual crimes.47 In response, the defence argued that any re-characterization of the facts at so late a stage of the proceedings would infringe upon the rights of the accused to a trial without undue delay. Significantly, the prosecution joined the defence, arguing that such a move would raise concerns about fairness. The Trial Chamber decided to give notice of possible re-characterization to the parties, but the decision was later reversed in the Appeals Chamber on 8 December 2009. Notwithstanding the end result, the arguments put forward by the victims’ representatives are telling of the way in which the ‘truth’ is no longer linked to victims in general but to a subset of the victim group.48 Sexual crimes raise special difficulties for investigation, including the unwillingness among women to speak about sexual violence, due to associated cultural stigma and the fear of being ostracized by the community.49 As a result, some evidence of sexual violence arises only belatedly during the trial. This was a common experience at the ICTY and ICTR, that at times led to amendment of charges.50 However, the broad discretion of the ad hoc tribunals to amend charges had raised concerns about due process. The Rome Statute opted for a different remedy to address the problem of gender bias: while expanding the ICC’s jurisdiction over sexual crimes it limited its discretion to amend charges.51 The question before the ICC was how to interpret Regulation 55 in light of these restrictions. Regulation 55(1) reads: 47 Prosecutor v. Lubanga Dyilo (Joint Application of the Legal Representatives of the Victims for the Implementation of the Procedure under Regulation 55 of the Regulations of the Court) Trial Chamber I, ICC-01/04-01/06-1891-tENG (22 May 2009). See also Prosecutor v. Lubanga Dyilo (Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court) Trial Chamber I, ICC-01/04-01/062049 (14 July 2009). 48 Prosecutor v. Lubanga Dyilo (Observations from the Legal Representatives of the Victims in response to the documents filed by the Prosecution and the Defence in support of their appeals against the Decision of Trial Chamber I of 14 July 2009) Trial Chamber I, ICC-01/04-01/06-2173-tENG (23 October 2009) (hereafter ‘Lubanga Observations from the Legal Representatives’). 49 Sienna Merope, ‘Recharacterizing the Lubanga Case: Regulation 55 and the Consequences for Gender Justice at the ICC’ (2011) 22 Crim L Forum 311, 319 and references there. 50 Such was the case in Akayesu where evidence of rape emerged during the testimony of a witness and the Court responded by amending the indictment. Prosecutor v. Akayesu (Trial Judgment) Trial Chamber I, ICTR-96-4-T (2 September 1998) [687], [690] (referred to by Merope, n 49, fn 33). See also Copelon (n 23). 51 Article 74(2) of the Rome Statute provides that the final decision of the Trial Chamber must be based on an evaluation of the evidence and ‘must not exceed the facts and circumstances in the charges’. Article 61(9) reserves the power of amendment exclusively to the Pre-Trial Chamber. This restriction on

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Right to Truth in International Criminal Law 485 In its decision under article 74, the Chamber may change the legal characterisation of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28, without exceeding the facts and circumstances described in the charges and any amendments to the charges.52

The victims’ representatives in Lubanga argued that under Regulation 55 the ICC retains the power to recharacterize the facts during the trial. They argued that Regulation 55 should be read in combination with Article 69(3) of the Rome Statute that authorizes the Court to ‘request the submission of all evidence necessary for the determination of the truth’.53 Specifically, they argued that ‘changing the characterization of the facts in this way is in the interest of international public order and the victims in having the truth determined’.54 In other words, they re-interpreted the victim’s ‘right to truth’ in the context of a criminal trial to mean a right to have the guilty ‘appropriately charged’ in a way that sheds light on the truth. This change can be seen in the victims’ representatives’ words, when they specifically referred to HRL to support their claim: The right of victims to the determination of the truth is clearly one of the fundamental principles of human rights as demonstrated by the ECHR and the IACHR. This right includes specifically: (i) the right to determine the facts of the case; (ii) the right to identify those responsible for the crimes and (iii) the right to define the degree of responsibility of the perpetrators of the crimes.55

This double move of relying on the broad truth-finding role of the ICC (set in Article 69(3)) and referencing the right to truth from HRL, suggests a link between the establishment of the truth and victims’ participation (here, a specific category of women victims), as it is allegedly their participation that promotes the truth in this instance.56

the Court’s discretion, together with the complete codification of the indictable crimes in the Rome Statute (arts 5–8) both improve the situation of the defence in comparison with the Statutes of the Ad Hoc tribunals and make the ICC closer to due process guarantees in domestic criminal systems. See Kai Ambos and Dennis Miller, ‘Structure and Function of the Confirmation Procedure before the ICC from a Comparative Perspective’ (2007) 7 Crim L Rev 335, 358. 52 Regulations of the Court (n 46). 53 Lubanga Observations from the Legal Representatives (n 48) [41]. 54 ibid. 55 ibid, fn 78 and accompanying text, referring to Inter-American Court case law Bàmaca Velasquez v. Guatemala, Barrios Altos v. Peru, Mapiripán Massacre v. Colombia, Almohacid Arellano et al v. Chile; ECHR case law Hugh Jordan v United Kingdom; and scholarly writing. 56 A similar link was found in an empirical research project about victims’ right to truth in the ICC, in which truth is being linked with victim participation. Various stakeholders who were interviewed thought the new truth-promotion goal of the Court affects the participation of victims in the trial: ‘the provisions of the Rome Statute which relate to the participation of victims need to be interpreted, developed and even adjusted (by amendment) to facilitate this end’ [i.e., promotion of truth. L.B.]. See H Davis and M Klinkner, ‘A Victim’s Right to Truth and the ICC’, Summary Report (Nuffield Foundation 2013) 2.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

486 Leora Bilsky A similar justification can be found in the academic scholarship that explains the gender bias reflected by the under-prosecution of sex crimes in terms of its effect on the truth: [T]he omission of sex crimes would surely obstruct one of the key aims of the ICC, namely to expose and record the truth. Partial prosecution . . . changes the historical and legal record of the events in question and the public narrative of the culpability of the accused. In the Lubanga case . . . it risks erasing the distinctively female face of the devastating war in the DRC.57

This view casts the enhanced truth-finding powers of the ICC as a solution to gender bias, and links individual victims’ right to truth as a function of full prosecution of the perpetrators with a more general construction of historical truth in particular conflicts. Indeed, recognizing a victims’ right to truth would seem to allow the ICC to overcome a legacy of gender bias in international criminal law, and to monitor conflicts of interest, or at least divergences in strategies, between the prosecution and victims. However, the focus on gender bias obscures the risks created by the expansion in court authority to change the charges in all cases, whether or not related to sexual offenses. The result, were it accepted by the Court, would be a dilution of the institutional checks and balances put in place by the drafters of the Rome Statute.58

D. Right of Victims to Introduce Evidence We have seen that the judges relied on the ‘right to truth’, imported from HRL, in order to expand victims’ participation in ICC proceedings by interpreting their ‘personal interests’ broadly. However, the Court also increased victims’ participation by relying on its expanded ‘truth finding’ role, provided for in Article 69(3) of the Rome Statue, according to which ‘[t]he parties may submit evidence relevant to the case, in accordance with article 64. The Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth’. This mode of reasoning was tested in Lubanga, when the Court deliberated whether to allow victims to tender evidence even though Article 69(3) recognizes such a right only to ‘parties’. In answering the question in the affirmative, the Court opted for a broad teleological interpretation, despite the fact that the drafters of the Rome Statute could not agree on the issue, refrained from recognizing the victims as formal parties, and seemed to restrict the right to submit evidence to parties.59 The Court overcame 57 Merope (n 49) 323. 58 Indeed, a similar reliance on art 69(3) to allow a re-characterization of the charges to fulfill the truth-finding function of the ICC in the Katanga case has generated a strong dissent by Judge Van den Wyngaert. Prosecutor v. Katanga & Chui (Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons) Trial Chamber II, ICC-01/04–01/07-3319-tENG/FRA (21 November 2012), Dissenting Opinion of Judge van den Wyngaert [33]–[35], [54]–[56]. 59 Leyh (n 26) 296.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Right to Truth in International Criminal Law 487 these formal obstacles by subsuming the victims’ participation rights under its broad truth-finding mandate: The Trial Chamber considers that the right to introduce evidence during trials before the Court is not limited to the parties, not least because the Court has a general right (that is not dependent on the cooperation or the consent of the parties) to request the presentation of all evidence necessary for the determination of the truth, pursuant to Article 69(3) of the Statute . . . . It follows that victims participating in the proceedings may be permitted to tender and examine evidence if in the view of the Chamber it will assist it in the determination of the truth, and if in this sense the Court has ‘requested’ the evidence.60

Accordingly, the Trial Chamber held that Article 69(3) enables victims: (1) to tender evidence at trial, regardless of the fact that the onus of proof rests with the prosecutor; and (2) to challenge evidence presented by the parties. The significance of this decision is that the ICC can allow victims to develop their own strategy of the case even when it contradicts or differs from that of the prosecution as long as the Court finds their intervention to assist in determining the truth and as long as it does not undermine the Court’s obligation to assure the fair trial of the accused: The Trial Chamber has borne in mind that it has a statutory obligation to request the submission of all evidence that is necessary for determining the truth under Article 69(3) of the Statute, although this requirement must not displace the obligation of ensuring the accused receives a fair trial.61

Moreover, the Court rejected the prosecution’s submission that ‘extraordinary circumstances’ need to exist before the Article 69(3) power can be engaged. It explained that ‘the only general precondition to a Trial Chamber calling for evidence under Article 69(3), . . . is that it must be satisfied that such evidence is “necessary for the determin ation of the truth” ’.62 The Chamber’s interpretive move is another example of how the invocation of the truth as the ultimate goal of the criminal trial enables the ICC to extend victims’ participation. In doing so the structure of the criminal trial is gradually changed. While the Rome Statute envisions a bi-polar process with some corrections (allowing the victims to present their ‘views and concerns’), the interpretation given by the ICC to Article 69(3) can be seen as transforming the international criminal process 60 Prosecutor v. Lubanga (Decision on victims’ participation) Trial Chamber I, ICC-01/04-01/06-1119 (18 January 2008) [108]. The Appeals Chamber upheld the Trial Chamber’s decision on this point and clarified the difference between the role of ‘parties’ and the participation of victims in the trial. On the one hand, the Appeals Chamber emphasized that victims’ participation under art 68(3) should be meaningful, hence the permission to tender evidence pertaining to guilt or innocence: [97]. On the other hand, victims’ participation rights are not ‘unfettered’ and will be examined on a case-by-case basis: [99]. See Prosecutor v. Lubanga Dyilo (n 44). 61 Ibid [121]. 62 Adrian M. Plevin, ‘Beyond a “Victim’s Right”: Truth-Finding Power and Procedure at the ICC’ (2014) 25 Crim L Forum 441, 445, referring to Prosecutor v. Bemba in fn 20.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

488 Leora Bilsky into a multi-party structure. In this new constellation victims are presented as a new kind of expert whose local knowledge can assist the Court.63 No matter how this structural transformation of the international criminal trial is justified, the Court retains the discretion to decide when and to what extent to allow victims’ participation. The result is therefore different from civil law systems that recognize victims as ‘partie civile’ since it subordinates victims’ participation to the discretion of the Court and limits it to instances in which the Court finds such participation to support finding the truth. It should also be noticed that the invocation of the truth to justify this transformation in the structure of the trial gives the victims’ views an aura of objectivity, ignoring the victims’ possible biases, in particular given the prevalent view that victims’ possibility to receive compensation through the ICC is linked under Article 75(2) to a guilty verdict.64 (We will return to this point in the next section). The Court’s jurisprudence on the right to introduce evidence is nonetheless not uniform. While the Court adopted a broad interpretation of Article 69(3) in Lubanga and Bemba, it opted for a narrower interpretation of victims’ ability to introduce evidence in Katanga. Yet significantly, that interpretation too relied on the centrality of the truth: in 63 According to Trial Chamber II, victims may assist the Court to ascertain the truth by ‘providing it with their knowledge of the background to the case or by drawing its attention to relevant information of which it was not aware’. That is, the victims are seen as ‘local experts’ of truth providing socio-cultural background but are not permitted to question witnesses about the guilt of the accused. Katanga and Ngudjolo (Decision on the Modalities of Victim Participation at Trial), Trial Chamber II, ICC-01/04– 01/07-1788-tENG (22 January 2010), [60]. See Leyh (n 26) 300. This view on victims’ role is also supported by the results of an empirical research project, where various stakeholders explained that victims better understand the social and cultural context given that the proceedings in ICC are remote from where the alleged crimes happened. See ‘A Victim’s Right to Truth and the ICC’ (n 56) 7. 64 The notion that a guilty verdict is necessary in order for the Court to order reparations for victims was raised in the decision of the Appeals Chamber regarding reparations in the Lubanga case. There, the chamber decided that ‘reparation orders are intrinsically linked to the individual whose criminal liability is established in a conviction and whose culpability for those criminal acts is determined in a sentence’: Prosecutor v. Lubanga Dyilo (Judgment on the appeals against the ‘Decision establishing the principles and procedures to be applied to reparations’ of 7 August 2012) Appeals Chamber, ICC-01/04–01/06– 3129, 3 March 2015 [65]. In the Ruto and Sang case, Judge Fremr reiterated this and stated ‘a criminal court can only address compensation for harm suffered as a result of crimes if such crimes have been found to have taken place and the person standing trial for his or her participation in those crimes is found guilty’: Prosecutor v. William Samoei Ruto and Joshua Arap Sang (Decision on Defence Applications for Judgments of Acquittal) Trial Chamber V(a), ICC-01/09–01/11-2027-Red-Corr (5 April 2016) [149]. In the same decision Judge Eboe-Osuji opined that the principle that a conviction is pre-requisite to reparations is unnecessary and undesirable: Reasons of Judge Eboe-Osuji [199]–[202]. He added that in international law a state may be found responsible for reparations in case of committing an internationally wrongful act and asked whether Kenya’s meddling in the case to the point that it had to be dropped against the accused could not amount to an internationally wrongful act: ibid [207]. He left unanswered the question whether the ICC is placed to adjudicate such reparations but hinted that this might be the case under these circumstances: ibid [208]–[210]. Judge Fremr’s reasoning was reiterated in a subsequent decision in this case, when the same chamber denied the legal representative and the Trust Fund for Victims’ requests as the case has already been terminated; hence, victims can no longer express views and concerns in this matter: Prosecutor v. William Samoei Ruto and Joshua Arap Sang (Decision on the Requests regarding Reparations) Trial Chamber V(a)ICC-01/09–01/11–2038 (1 July 2016).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Right to Truth in International Criminal Law 489 that case, the Court explained that ‘the only legitimate interest the victims may invoke when seeking to establish facts which are subject to the proceedings is that of contributing to the determination of the truth’.65 In conclusion we see that when the ‘truth rationale’ is transplanted from HRL to the ICC via Article 69(3), the emphasis changes from recognizing victims’ rights to expanding the Tribunals’ discretionary powers, and this without accounting for the difference and without offering institutional checks on the Court’s new powers.

E. Victims’ Obligation to Disclose Exonerating Evidence Does the victims’ broad right to participate entail a correlative disclosure obligation, such as the one imposed on the prosecution? In other words, is the victim also obliged to participate in the elucidation of the truth as a sort of friend of the Court and not simply join the adversarial fray with incriminating evidence? This issue was raised when the defence argued that alongside the recognition of victims’ power to tender evidence, the Court should consider imposing on victims an obligation to disclose exonerating evidence in order to clarify the objective truth. In Katanga the defence argued that although there is no explicit obligation on victims to disclose exculpatory evidence, it would not be fair to grant them a right to tender evidence without imposing corollary obligations of disclosure. It suggested basing this obligation on the ICC’s general truth-finding role found in Article 69(3)66 and supported its claim by reference to victims’ right to truth from HRL.67 Important for our purposes is the tactical shift in emphasis in the defence’s argument from due-process rights of the accused to human rights of the victims: The accurate determination of the guilt or innocence of persons prosecuted before the ICC is important, not only for the accused who has the presumption of innocence, but also for the wider audience, in particular for victim participants ‘insofar as this issue is inherently linked to the satisfaction of their right to truth’.68

65 Katanga and Ngudjolo, ibid. 66 Prosecutor v. Katanga (Defence for Germain Katanga’s Additional Observations on Victims’ Participation and scope thereof) Defence, ICC-01/04–01/07–1618 (10 November 2009) [10]. 67 Among others the defence refers to things said by Mr Louis Joinet—the special rapporteur who was in charge, inter alia, on the publication of the ‘Set of principles for the protection and promotion of human rights through action to combat impunity’ in 1997, as an expert in an ICTY case, when he held that ‘the truth triumphs over other conflicting interests because the ultimate purpose of international justice is to find the truth’. ibid [24]. Likewise, the defence asks the Court to decide in accordance with the disclosure obligations imposed on victims in human rights courts: ‘Complainants who wish to tender evidence before the Inter-American Court of Human Rights must also disclose information concerning the source, authenticity, and chain of custody’. ibid, [28]. 68 ibid [11], referring to Katanga victim’s rights decision (n 35).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

490 Leora Bilsky However, in contrast to the benevolent view of victims’ participation as a disinterested intervention to assist the Court in establishing the objective truth, the defence calls attention to the potential partiality of victims, as their right to compensation is dependent on the determination of guilt of the accused: Yet, the question is whether victim participants are equally keen on the truth to be established if the truth does not correspond with the guilt of the accused, particularly if that would mean that they receive no financial compensation.69 The Court rejected the defence’s request. In doing so it opted for uncharacteristically formalist reasoning, explaining that just as the Court did not recognize a right of victims to tender evidence, it would not recognize a correlative obligation. Rather, in both cases the issue is left to the discretion of the Court.70 We therefore see not only that the right to truth has penetrated ICL to such an extent that even the defence uses it, instead of relying solely on due-process rights of accused. We also see that the Court associates victims so much with objective truth that it sees no conflict between them and truth-seeking, and no need to impose a duty of disclosure.

IV. Reflection Scholarship on victims’ participation at the ICC has adopted the analytical framework of victim’s rights. The main issue from that perspective is the impact of these changes on the adversarial process and the need to create a suitable balance with the rights of the accused and due process generally. However, it is hard to reconcile the victims’ rights discourse dominating that scholarship with the actual practice of the Court. Although the right to truth, and more broadly the objective of clarifying the truth, were often the justification for the recognition of victims’ procedural rights, in almost all cases in which the Court accepted the victims’ argument, it did so not by recognizing an autonomous victims’ right but by granting itself wide discretionary powers.71

69 ibid [17]. 70 ‘It notes further that, since the victims do not have the right to present evidence, only the possibility of applying to the Chamber for leave to present evidence, there is no justification for obliging them generally to disclose to the parties any evidence in their possession, whether incriminating or exculpatory’. Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Decision on the Modalities of Victim Participation at Trial) Trial Chamber II, ICC-01/04-01/07-1788-tENG (22 January 2010) [105]. 71 This conclusion is also supported by the findings of the empirical research project: ‘One of the major themes emerging from the data is the difficulty for participants at the ICC to make victim participation effective, a challenge that is expressed by the proposition that victim participation is little more than a gesture’. ‘A Victim’’s Right to Truth and the ICC’ see note 56, at 7; and: ‘Some interviewees see victim participation as a façade . . . within the judicial truth-finding process as their participatory rights are kept to a minimum taking on predominantly the role of a spectator . . . to date victim participation has provided very little opportunity to influence the processes and with it the realization of the right to truth’. ibid 10.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Right to Truth in International Criminal Law 491 Two scholars have put forward conflicting explanations for the tension between the Court’s rights discourse and actual restrictive practices toward victims’ rights. Adrian Plevin calls for abandoning the interpretive framework that sees the rights of victims as elements of the inquisitorial process being inserted into the adversarial process. He claims that this framework is misleading because it masks the fact that the more profound changes are occurring with respect to the role of the Court itself. The real conflict in his view is between a narrow approach to the criminal trial in which only the trad itional objective of establishing guilt or innocence is legitimate, and an expansive approach that sees a new role for the ICC—clarifying the historical truth. It is the expansive approach that justifies the development of new procedural tools. Thus, Plevin attaches particular importance to the Court’s reliance on Article 69 of the Rome Statute to anchor the creation of new procedural rights, all the while emptying the limits to victim participation set by Article 68. For Plevin, this process is an attempt to equip the judges with the necessary investigative powers to fulfil the Court’s ambitious goal of truth-finding.72 To achieve this goal the Court cannot settle for the recognition of victim rights to protect their own interests, but must possess quasi-investigative powers in order to go beyond the positions of the parties, and even beyond the personal interests of the victims, to reveal the truth.73 Plevin endorses this new ‘truth role’ for the Court uncritically, maybe because he does not see any meaningful difference between the transitional justice context of truth commissions (where such ‘truth’ rationale was first articulated) and international criminal trials. Therefore, he is not concerned with the possibility that the broad discretionary powers assumed by the Court may actually undermine human rights protections. An alternative explanation for the growing divergence between rights’ rhetoric and practice is that the ICC is returning to a retributive justice agenda and is distancing itself from earlier restorative justice pretentions. This position, quite incompatible with Plevin’s, was expressed by Sergey Vasiliev. Here again, the author’s starting point is that the ICC’s rulings regarding victim participation relate essentially to the question of the role of the Court and not to victims’ rights as the Court’s rhetoric might imply. However, in his view the competing models are the model of restorative justice imported from human rights and transitional justice and the traditional model of retributive justice for which the only legitimate purpose of the trial is the establishment of guilt and innocence. Vasiliev understands the shift in the Court’s jurisprudence from Article 68 to Article 69 as a return to the traditional retributive model, as the victims are expected to meaningfully contribute to ascertainment of the legal truth—understood as the question of guilt—and not just have the truth benefit their restoration. Since Vasiliev sees these developments as a ‘return’ to the retributive model of criminal law he does not inquire into the significant changes in the criminal process entailed by the centrality of 72 Plevin (n 62) 448, 464: ‘Truth-finding is a legally distinct process and its outcomes need not necessarily be limited to achieving the same results as criminal trials . . . the truth-finding mechanism offers the hope that more comprehensive, more historically accurate trial records will be produced’. 73 Plevin (n 62) 450–1.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

492 Leora Bilsky victims’ participation in ICL, such as the expanded discretion of the Court in determining the truth.74 Thus, these two authors agree on the need to go beyond the discourse of victim rights in order to understand the more profound transformations in the role of the ICC. However, they suggest contradictory explanations for the place given to the victims’ right to truth in the ICC’s rulings. Where one sees the emergence of an ambitious and expansive judicial role to explore the historical truth, the other sees disillusionment and the return to a traditional conception of the criminal trial and confinement to legal truth. The two authors, for opposite reasons, refrain from offering a critical assessment of the Court’s enhanced discretionary powers and fail to explore the new truth-regime that such changes might entail. I would like to suggest another way of understanding the inconsistency and tensions in the ICC’s case law. Underneath the rhetoric of convergence, international criminal judges might be aware of the difficulties in a wholesale adoption of legal concepts developed in human rights law or the restorative approach of truth commissions, and thus try to adapt them to criminal law. The main way to do this is to shift emphasis from the recognition of victims’ rights to the Court’s truth-finding powers under Article 69(3), which allows more discretion to the Court. In the process, a new regime of truth-seeking is being developed for ICL—a regime based on the participation of victims and the granting of broad discretionary powers to judges. While these transformations can be significant, they have been shielded from critical enquiry by the discourse of convergence with HRL and the appeal to victims’ rights, which grant these legal developments an aura of progressiveness. It is probably too early to conduct a full exploration of the emerging truth regime at the ICC. We can however already point to some potential risks and benefits as well as new questions for exploration. The link I have pointed to here, between truth and victims’ participation at the ICC certainly holds the promise of opening the international criminal process to new voices and perspectives, in particular victims of sexual violence. By listening to victims, the ICC may also gain better access to evidence, reducing its dependence on the cooperation of the state in which the crimes occurred. It is also arguable that a court investigating a small number of cases of extraordinary crimes may require broad discretionary powers, for in such exceptional cases it becomes essential to establish a broad range of facts in order to clarify history. Yet as suggested throughout this contribution, the expanded discretionary powers of the Court also raise concerns. Through the right to truth, the ICC can be seen as creating a hybrid procedural model drawing on both the adversarial and inquisitorial models, 74 However, in a recent article on cross-fertilization Vasiliev arrives at a similar conclusion to our a rticle—that underneath the rhetoric of normative cross-fertilization (informally subordinating ICL to HRL) one can notice a process of adaptation and change intended to fit the transplanted HRL norm to the ICL context. Thus, he ends the article with a call to recognize and study the ‘creative process of constructing a new legal sub-field—a branch of [international human rights law] for international criminal jurisdiction . . . [that] led international criminal judges to autonomously produce and refine [international human rights law] for the purposes of international criminal justice’. Vasiliev (n 31) 402–3.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Right to Truth in International Criminal Law 493 but without importing the checks and balances present in each model. What is more, it is not clear that increased victim participation actually empowers victims or results in more accurate or comprehensive determinations of the legal or historical truth. In a study of proceedings before various ad hoc and special international criminal tribunals, Nancy Combs argued that ‘much eyewitness testimony at the international tribunals is of highly questionable reliability’. This is due to cultural differences between court and witnesses, witnesses’ lack of familiarity with trial procedures, as well as lying based on the group loyalties that often gave rise to the crimes themselves.75 I do not purport to settle this debate. However, my contribution should encourage the readers to look beyond the prevailing rhetoric of ‘victim rights’ cast in a narrative of seamless progression of ICL towards ending impunity and to recognize how victims’ right to truth can affect basic fundamentals of the criminal trial. I believe that in order to have a frank conversation about the risks and benefits entailed by the introduction of the right to truth to ICL, we should first expose the new truth regime suggested for the ICC, and the chan ging roles entailed by it to various players.

75 Nancy A. Combs, Fact-Finding without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (CUP 2010) 4.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

chapter 21

From M achi n ery to Moti vation The Lost Legacy of Criminal Organizations Liability Saira Mohamed*

I. Introduction Criminal organizations liability represents a unique moment in international criminal law. Alongside the 22 individuals who stood trial as defendants before the International Military Tribunal (IMT) at Nuremberg, six organizations1 were indicted as well, with three of those ultimately declared ‘criminal’.2 But since that time, the notion that an organization could be criminal largely has been abandoned in international criminal law.3 Under the Rome Statute, the International Criminal Court (ICC) has jurisdiction * Professor of Law, University of California, Berkeley, School of Law. 1 The IMT took a capacious approach to the definition of ‘organization’, focusing on the notion of a defined group of individuals working toward some common purpose. See International Military Tribunal, ‘Judgment’ in Trial of the Major War Criminals Before the International Military Tribunal, 14 November 1945–1 October 1946, vol 1: Official Documents (International Military Tribunal 1947) 171, 256 (hereafter IMT Judgment) (requiring an organization declared criminal to be ‘a group bound together and organised for a common purpose’). For additional discussion on contemporary controversies in defining organizations in international criminal law, see text to n 73. 2 See IMT Judgment (n 1) 257–78. 3 A notable embrace of organizational liability arrived with the Malabo Protocol, which allows for liability for legal persons other than states in trials before the African Court of Justice and Human Rights. See Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, 27 June 2014, art 46C available at accessed 3 July 2018. The Special Tribunal for Lebanon also has seemingly embraced corporate liability, though with some controversy, and only for limited purposes. In the decisions

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Lost Legacy of Criminal Organizations Liability 495 only over natural persons—that is, individuals, not entities.4 The statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda also limited the jurisdiction of those tribunals to natural persons,5 reflecting the notion that individual responsibility represents the doctrinal and normative core of this body of law.6 It is not surprising that criminal organizations liability has faded. Vesting in the IMT the power to declare the criminality of organizations was a doctrinal innovation crafted in part to solve a unique problem of the Second World War: how to summarily try hundreds of thousands of individuals for participation in German crimes. The organizations, in this regard, were not exactly the point; they were a means to an end. Moreover, the resemblance of membership liability to guilt by association was a source of discomfort from the outset.7 One might ask, then, what purpose there is, if any, of devoting attention to the subject of criminal organizations now, at a point when it seems quite clear that international criminal law will not resurrect the Nuremberg-era notion of criminal organizations and membership liability. This chapter offers an answer to that question, contending that there is value for present-day questions of accountability after mass atrocity in reconsidering the subject of criminal organizations. Organizational liability represents much more than merely a tool for securing quick convictions of individuals—or, more precisely, organizational liability could have represented much more than merely a tool for securing quick convictions of individuals. Had that function not predominated, organizational liability could have provided a way for the law to recognize the importance of groups like political parties or military collectives in perpetrating mass atrocity. Indeed, liability for organizations was contemplated at the end of the Second World War not merely as an instrument for facilitating convictions of hundreds of thousands of Germans. It was considered also as a way to recognize the systematic nature of the Nazis’ crimes and the crucial role of certain organizations in enabling individuals to carry out a complex and massive campaign of aggression, enslavement, persecution, plunder, and murder, and to explaining this move, the Tribunal relied on both international law and Lebanese law to support its jurisdiction over corporate bodies, and it contemplated only charges of contempt for those entities. See Prosecutor v. Akhbar Beirut S.A.L. (Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings) STL-14–06/PT/AP/AR126.1, (23 January 2015) paras 15–22 (Appeals Panel). Prosecutor v. New TV S.A.L. (Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings) STL-14/05/PT/AP/AR126.1, (2 October 2014) paras 26–31 (Appeals Panel). See generally Nadia Bernaz, ‘Corporate Criminal Liability Under International Law: The NEW TV S.A.L. and Akhbar Beirut S.A.L. Cases at the Special Tribunal for Lebanon’ (2015) 13 J of Intl Crim Justice 313. 4 See Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, UN Doc A/CONF.183/9 (in force 1 July 2002), art 25(1) (hereafter Rome Statute). 5 Statute of the International Criminal Tribunal for Rwanda, UNSC Res 955, UNSCOR, 49th Sess, 3453rd Mtg, UN Doc S/RES/955, (8 November 1994); Statute of the International Criminal Tribunal for the Former Yugoslavia, UNSC Res 827, UNSCOR, 48th Sess, 3217th Mtg, UN Doc S/RES/827 (25 May 1993) (hereafter ICTY Statute). 6 See M. Cherif Bassiouni, International Criminal Law, vol 1: Sources, Subjects, and Contents (3rd edn, Nijhoff 2008) 121, 9; Antonio Cassese, ‘Reflections on International Criminal Justice’ (1998) 61 Modern L Rev 1, 6. 7 See Parts II–III of this chapter.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

496 Saira Mohamed carry it out heartened by the assertion that it was their right to do so. But this purpose was set aside, perhaps because the IMT was fearful of the potential unfairness of membership liability, or perhaps because the judges were mindful that the Tribunal had jurisdiction only over individuals, and not over legal persons, and the expressive or didactic purposes that could have been realized with declaring certain organizations to be criminal became, also, beside the point.8 Whatever the reason, organizational liability ultimately was interpreted through the cramped lens of its instrumental value for individual liability, and the notion of drawing attention to the guilt of the organizations themselves faded with a determination that mass prosecutions for membership were no longer viable or necessary.9 This chapter argues that treating criminal organizations merely as a means to secure individual criminal liability represents a loss, a missed opportunity, in international criminal law. The condemnation of organizations that can attend organizational liability creates an opportunity to expose the role of organizations in the perpetration of mass atrocity, to call attention to and analyze the institutionalized nature of mass atrocity crimes, which makes these crimes not only unthinkably destructive, but also inherently and importantly distinct from criminal wrongdoing in which a person’s conduct diverges from the standards of most of society.10 The missed opportunity of abandoning criminal organizations liability is particularly acute, this chapter contends, in light of the research in the decades since Nuremberg on how organizations affect individual behaviour. At Nuremberg, prosecutors and judges primarily characterized organizations as central to the crimes of the individual perpetrators because they represented how perpetrators committed their crimes. Organizations provided the tools, the means, the machinery that enabled individuals to achieve their destructive and cruel ends. But research in history, psychology, and sociology in the decades since the Nuremberg trials elucidate that organizations are significant in mass atrocity also because they help to explain why perpetrators commit crimes. The crimes that took place during the Second World War were troubling not only because of their unthinkable and enormous destruction and cruelty, but also because the destruction 8 See Part III of this chapter. For discussion of expressive purposes of law, see, e.g., David Garland, Punishment and Modern Society: A Study in Social Theory (U of Chicago Press 1990) 251; Diane Marie Amann, ‘Group Mentality, Expressivism, and Genocide’ (2002) 2 Intl Crim L Rev 93, 118; Matthew D Adler, ‘Expressive Theories of Law: A Skeptical Overview’ (2000) 148(5) U of Pennsylvania L Rev 1363; Elizabeth S Anderson and Richard H Pildes, ‘Expressive Theories of Law: A General Restatement’ (2000) 148(5) U of Pennsylvania L Rev 1503 (2000); Joel Feinberg, ‘The Expressive Theory of Punishment’, in Doing and Deserving: Essays in the Theory of Responsibility (Princeton UP 1996) 95, 98; Cass R Sunstein, ‘On the Expressive Function of Law’ (1996) 144 U of Pennsylvania L Rev 2021, 2025–9; Jean Hampton, ‘The Moral Education Theory of Punishment’ (1984) 13(3) Philosophy & Public Affairs 208, 212. 9 See Part III. 10 See Frank Chalk and Kurt Jonassohn, The History and Sociology of Genocide: Analysis and Case Studies (Yale UP 1990) 28, 276–279; Mark A Drumbl, Atrocity, Punishment, and International Law 24–35 (CUP 2007) (hereafter Drumbl, Atrocity); Mark Osiel, Mass Atrocity, Collective Memory, and the Law 24–44 (Transaction Publishers 1997); Laurel E Fletcher and Harvey M Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’ (2002) 24 Human Rights Q 573, 605.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Lost Legacy of Criminal Organizations Liability 497 and cruelty were carried out often by seemingly ‘ordinary’ Germans with no history of criminal behaviour, which raised distressing and perplexing questions about why individuals with no history of violence ultimately decided to participate in horrific crimes. With greater understanding in the decades since Nuremberg about the mechanisms underlying individuals’ desire to conform with peers, to obey authorities, and to rationalize their own actions, we can now see that organizations such as the Gestapo or the Leadership Corps of the Nazi Party contribute to individuals’ decisions to commit crimes by providing forums and creating environments in which individuals come to believe that criminal behaviour is necessary or normal or even good, or in which individuals fail to recognize their own part in a criminal system. The organizations provide not only the machinery for atrocity, but also the motivation. This chapter begins by briefly describing the law of criminal organizations liability as drafted for the IMT and the subsequent Nuremberg Military Tribunals and explaining two goals behind the idea of criminal organizations liability—finding a way to quickly and efficiently try numerous defendants, and bringing attention to and condemning the role of organizations in the perpetration of the Nazi crimes. The chapter then analyzes how the IMT addressed the case against the organizations, explaining that the Tribunal subordinated highlighting the role of organizations in the collective perpetration of crimes in Germany to the objective of securing liability for individuals. After establishing that legal foundation, and considering the ways in which the Nuremberg-era doctrine animates contemporary international criminal law, the chapter turns to its primary focus: what is lost by the abandonment of criminal organizations liability. The neglect of the idea that organizations should be recognized as criminal because of a need to emphasize their crucial role in mass atrocity, it argues, impedes the ability of inter national criminal law to offer a complete narrative of how and why these crimes were committed. This loss is particularly significant because of a greater understanding today that organizations not only operate as coordinating mechanisms for atrocity crimes, but also shape behaviour of individuals in a way that makes them more likely to participate in these crimes. The chapter closes with a voice of support for discussions of organizational responsibility within international criminal courts and tribunals, to the extent possible under the law; through the mechanisms courts, scholars, and practitioners use to publicize the work of international criminal law; and in other forums such as truth commissions that may pursue justice or accountability through means outside the criminal law.

II. The Origin of Criminal Organizations Liability Criminal organizations liability at Nuremberg was born of a recognition that the crimes committed during the Second World War represented a new species of wrongdoing, one

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

498 Saira Mohamed that would require a novel approach to prosecution.11 To the Allies, two features of the Nazis’ crimes stood out as distinct, and as necessitating some doctrinal innovation. First, massive numbers of individuals participated in the crimes, so massive numbers of individuals would need to be processed through criminal courts. This would require both a way to quickly prosecute numerous defendants and, given the difficulties of finding evidence of crimes, a way to prosecute defendants without resort to individualized proof of guilt in each case.12 Second, the individuals who committed crimes did so differently from typical criminal perpetrators. Instead of operating on their own, in contravention to society’s norms and in defiance of its institutions, these perpetrators worked collectively, with their conduct organized, motivated, and endorsed by the Nazi party.13 As seen by Murray Bernays, a colonel in the US Army General Staff and the chief architect of the criminal organizations doctrine, ‘the ultimate offense’ of the Nazis was not the destruction they wrought, but rather ‘the assertion of the right to do it’. Bernays was troubled particularly by Nazi ‘doctrine and policy’ that enabled criminal actors to claim that ‘that thuggery is noble’, an attitude that made them different from ‘[t]he ordinary thug’, and that demanded exposure and condemnation.14 To address both the need to try masses of individuals, and the need to address the institutions that developed and nurtured Nazi criminality, Bernays proposed a two-phase solution. First, an international criminal court would try and convict ‘the Nazi Government and its Party and State agencies, including the SA, SS, and Gestapo’, of conspiracy to commit murder and other crimes.15 This would enable the court to bring attention to the work of the German organizations’ role in the horrors of the war.16 In the second phase of the Bernays plan, members of the organizations would be tried and punished in the Allies’ courts for the offence of membership in one of those criminal 11 For a detailed discussion of the origins and development of the criminal organizations doctrine at Nuremberg, see Jonathan A Bush, ‘The Prehistory of Corporations and Conspiracy in International Criminal Law’ (2009) 109(5) Columbia L Rev 1094, 1140–1148. 12 See Jonathan A Bush, ‘Nuremberg: The Modern Law of War and Its Limitations’ (1993) 93(8) Columbia L Rev 2022 (reviewing Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (Knopf 1992)) (‘organizational charges authorizing subsequent action against individual members is a way to reach and punish individuals against whom very little evidence is shown, other than that they had clearly joined a criminal conspiracy or an organization held to be criminal’ at 2076). 13 See Murray C Bernays, ‘Trial of European War Criminals, Sept. 15, 1944’ in Bradley F Smith, The American Road to Nuremberg: The Documentary Record 1944–1945 (1982) 33, 36 (Hoover Institution Press 1982) (hereafter Bernays, ‘Trial of European War Criminals’). See also Stanislaw Pomorski, ‘Conspiracy and Criminal Organizations’ in George Ginsburgs and V N Kudriavtsev (eds), The Nuremberg Trial and International Law (Nijhoff 1990) 213 (hereafter Pomorsky, ‘Conspiracy’) (describing four unique features of Nazis’ crimes: ‘(1) the massive, wholesale nature of the crimes, as measured not only by the number of victims, but also by the number of perpetrators; (2) the systemic, highly organized manner in which these crimes were committed; (3) the fact that the crimes were planned and ordered by the leaders of a modern state and ultimately carried out by a powerful apparatus; and, (4) that most of the crimes were justified and motivated by the political and ideological tenets of national socialism’ at 213). 14 Bernays, ‘Trial of European War Criminals’ (n 13) 35. 15 Ibid 36. 16 Bernays described trials for the Germans as ‘the educational and therapeutic opportunity of our generation’, see Robert E. Conot, Justice at Nuremberg (Harper & Row 1983) 11.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Lost Legacy of Criminal Organizations Liability 499 organizations.17 Through this innovation, the Allies could secure large numbers of criminal convictions of individuals simply by establishing that those defendants belonged to the organizations, a far simpler task than proving individual participation in particular crimes in order to secure convictions.18 In the London Charter, the agreement setting out the law governing the Nuremberg Tribunal, the Allies ultimately embraced the two-step approach of criminalizing organ izations and then convicting their members. Article 9 of the Charter provided: ‘At the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization’.19 This declaration of criminality would be based upon a finding that a defendant before the Tribunal (a) was responsible for any of the crimes under the jurisdiction of the IMT— namely crimes against peace, war crimes, and crimes against humanity; and (b) was a member of the organization. In Article 10, the Charter provided that once an organization was declared criminal by the IMT, the Allies were permitted to prosecute individuals in subsequent trials for membership in those organizations. This provision also noted that once decided by the IMT, the criminality of those organizations would be ‘considered proved and shall not be questioned’.20 This meant when individual members were tried in subsequent tribunals organized by the occupying powers, there would be no opportunity to dispute the criminal nature of the organizations. Control Council Law No. 10, which provided the Allies authority to try suspected war criminals in their respective occupation zones, completed the legal foundation for the criminal organizations plan. The law included as a crime ‘[m]embership in categories of a criminal group or organization declared criminal by the International Military

17 Bernays, ‘Trial of European War Criminals’ (n 13) (‘the only necessary proof of guilt of any particular defendant would be his membership in one of these organizations’ at 36). 18 See United Nations War Crimes Commission, ‘History of the United Nations War Crimes and the Development of the Laws of War’ (1948) accessed 3 July 2018 (hereafter UNWCC, ‘History of the UN War Crimes’) (‘[t]he collection of evidence against hundreds of thousands of such accused persons . . . . . . would have required all the processes of a huge judicial machinery spread over many years of intensive work. In addition, there was a danger that . . . . . . many accused would escape justice [because] . . . . . . no further evidence of their individual complicity could be obtained. This would apply particularly in cases where the sole witnesses of the crimes were the victims, who had died’ at 290). 19 ‘Charter of the International Military Tribunal’ in Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, vol 1: Official Documents (International Military Tribunal 1947) 10, 12, art 9, (hereafter London Charter). Notably, criminal organ izations liability was missing from the Charter of the International Military Tribunal for the Far East (IMFTE), created to try Japanese individuals for war crimes, crimes against humanity, and aggression. The IMTFE Charter mentioned only that the Tribunal had ‘the power to try and punish war criminals who as individuals or as members of organisations’ were responsible for the crimes under the Tribunal’s jurisdiction. Charter of the International Military Tribunal for the Far East, Proclamation of the Supreme Commander for the Allied Powers, 19 January 1946, TIAS No 1589, 4 UST 27 (as amended 26 April 1946), art 6. 20 London Charter (n 19) 12, art 10.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

500 Saira Mohamed Tribunal’.21 It also provided that an individual had committed a crime if he was ‘a member of any organization or group connected with the commission of any such crime’.22 The law that was adopted ultimately focused on the need to prosecute masses of individuals, rather than on a need to identify the organizations as a primary motivator and mechanism for the crimes of the Holocaust. For example, the London Charter provided that organizations could be declared criminal only in connection with individual defendants’ conduct. That is, rather than looking to the organizational activities as the key to their criminality, the basis for a declaration of criminality rested on the illegal conduct of members.23 Moreover, jurists at the time saw the criminal organizations plan through the lens of its role in securing individual convictions. As noted by Herbert Wechsler, writing in 1946: ‘The point of such a declaration [of organizational criminality] was that thereafter the members of the organization might be prosecuted for their membership in “national, military or occupation courts” of the signatories’.24 The idea of the organization itself as criminal thus began to fade even before the trial’s opening arguments.

III. The Practice of Criminal Organizations Liability The prosecution’s approach to criminal organization’s liability before the IMT was in some ways quite bold. Whereas negotiations over the structure and law of the future tribunal had centred around the SA, SS, and Gestapo,25 the Allies ultimately charged those three organizations (combining the SD with the Gestapo), along with another three—the Reich Cabinet, the Leadership Corps of the Nazi Party, and the General Staff and High Command of the German armed forces—as being criminal.26 Moreover, in contrast to the significant debate that had taken place over the concept of criminal 21 Control Council Law No 10, art 2(1)(b), reprinted in Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, Nuremberg, October 1946-April 1949, vol 15 (US GPO 1949) 23 (hereafter Trials Under Control Council Law No 10). 22 Ibid art 2(2)(e). 23 The question of how to determine the guilt of an entity without resorting to attribution of individual behaviour to the entity is one that has vexed legal scholars. For various approaches, see, e.g., Peter Cane, Responsibility in Law and Morality (Hart 2002) 148–50; William S Laufer, Corporate Bodies and Guilty Minds: The Failure of Corporate Criminal Liability (U of Chicago Press 2006) 72–3; Larry May, The Morality of Groups (U of Notre Dame Press 1987) 65; Samuel W Buell, ‘The Blaming Function of Entity Criminal Liability’ (2006) 81 Indiana L J 473, 530–2; John C Coffee Jr, ‘ “No Soul to Damn: No Body to Kick”: An Unscandalized Inquiry into the Problem of Corporate Punishment’ (1980) 79 Michigan L Rev 386, 444. 24 Herbert Wechsler, ‘The Issues of the Nuremberg Trial’ (1947) 62 Political Science Q 11, 13. 25 See UNWCC, ‘History of the UN War Crimes’ (n 18) 292. 26 International Military Tribunal, ‘Indictment’ in Trial of the Major War Criminals Before the International Military Tribunal, 14 November 1945–1 October 1946, vol 1: Official Documents (International Military Tribunal 1947) 27, 28.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Lost Legacy of Criminal Organizations Liability 501 organization during the negotiations preceding the creation of the Tribunal, the prosecution argued before the IMT that criminal organizations liability represented a continuation of principles punishing membership in criminal groups in numerous states’ criminal codes, including those of the United States, France, Great Britain, India, and the Soviet Union.27 At the same time, the prosecution’s approach betrayed some hesitation about the novel approach. The prosecution was careful to note that the Tribunal had jurisdiction over only natural persons, and not organizations; accordingly, the IMT could not punish the organizations. Thus, Chief US Prosecutor Justice Robert Jackson likened the IMT’s mandate under Article 9 of the Charter to the power to make a declaratory judgment, with no punishment resulting from the declaration of criminality either against the organization or against individual members.28 Jackson further made a point to note that a defendant could defend against a criminal organizations charge by arguing that membership in the organization was not ‘intentional and voluntary’, for example by establishing ‘legal compulsion or illegal duress’.29 The IMT ultimately declared three organizations criminal: the SS, the Gestapo-SD, and the Leadership Corps of the Nazi Party.30 It took a cautious approach to the question of organizational liability in its judgment; in the estimation of historian Bradley F. Smith, this was explained by the judges’ assessment that the criminal organizations charge was ‘the most novel of the prosecutions, with no precedents in international law and few, if any, in the domestic laws of the major states’.31 Noting the novelty of the Charter’s pro cedure through Articles 9 and 10 of allowing a declaration of a criminal organization to be followed by prosecuting individuals for membership in those organizations, the IMT warned of the ‘great injustice’ that could follow if these provisions were not ‘properly safeguarded’.32 It then discussed two principles guiding its decision. First, the judgment remarked on the novelty of the concept, noting that the newness of the notion of criminal organizations should not deter the Tribunal from declaring an organization criminal if the evidence showed the declaration to be appropriate. Second, ‘the Tribunal should make such declaration of criminality as far as possible in a manner to ensure that 27 Trial of the Major War Criminals Before the International Military Tribunal, 14 November 1945–1 October 1946, vol 8: Proceedings, 20 February 1945–7 March 1946 (International Military Tribunal 1947) 361–363 (hereafter Nuremberg Proceedings); UNWCC, ‘History of the UN War Crimes’ (n 18) 304–305. 28 Nuremberg Proceedings (n 27) vol 8, 358. 29 Ibid 360; see also UNWCC, ‘History of the UN War Crimes’ (n 18) 305; Bernays had also envisioned liability for membership extending only to those who had joined voluntarily. See Bernays, ‘Trial of European War Criminals’ (n 13) 35 (explaining that individual guilt would ‘follow . . . . . . inevitably from the mere fact of voluntary membership in organisations’ declared criminal). 30 IMT Judgment (n 1) 262, 267, 273. 31 Bradley F Smith, Reaching Judgment at Nuremberg (Basic Books 1977) 156 (hereafter Smith, Judgment at Nuremberg). For a description of the judges’ deliberations leading to the decision, see Ibid 156–70. See also Shane Darcy, Collective Responsibility and Accountability Under International Law (Transnational Publishers 2007) (‘the concept of criminal organizations was not utilized to the full extent envisaged by its architects . . . . . . due to their overestimation of the evidentiary difficulties, to the [IMT’s] moderation, and to the role of denazification as the primary means of reaching a mass of lower-level perpetrators’ at 290). 32 IMT Judgment (n 1) 255.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

502 Saira Mohamed innocent persons will not be punished’.33 It further emphasized that individuals would be found guilty in subsequent trials only when the individual had knowledge of the criminal nature of the group and participated voluntarily. According to the IMT, ‘[m]embership alone is not enough’ for a determination of guilt.34 Finally, it set out principles for the organizations themselves, requiring that any organization declared criminal must be ‘a group bound together and organized for a common purpose’ and ‘must be a group formed or used in connection with the commission of crimes denounced by the Charter’.35 The Tribunal viewed the purpose of organizational liability narrowly, often interpreting its mandate to declare organizations criminal with an eye toward the goal of easing the process of prosecuting numerous defendants in subsequent trials. For example, the Tribunal held that the General Staff and High Command of the German armed forces should not be considered a criminal organization in part because the number of potential defendants was ‘so small that individual trials of these officers would accomplish the purpose here sought better than a declaration such as requested’.36 That is, because the point of declaring an organization was to facilitate the trial of the individuals in the organization for membership crimes, there was no need to declare small organizations criminal, for those members could be tried easily in the Control Council No. 10 tribunals without the declaration. Similarly, one of two reasons provided for not declaring the Reich Cabinet a criminal organization was that ‘the group of persons here charged is so small that members could be conveniently tried in proper cases without resort to a declaration that the Cabinet of which they were members was criminal’.37 Because the Tribunal could only count 23 members at most, ‘nothing would be accomplished to expedite or facilitate their trials by declaring the Reich Cabinet to be a criminal organization’.38 With its decision declaring the Gestapo-SD, SS, and Leadership Corps to be criminal organizations, the IMT had laid the foundation for the Allies to try individuals for membership liability. Ultimately, the subsequent trials were quite different in two ways from what Murray Bernays had imagined before the end of the war. First, the crime of membership in a criminal organization was more narrowly drawn than was initially sketched 33 Ibid 256. 34 Ibid. 35 Ibid. 36 Ibid 276. See also Smith, Judgment at Nuremberg (n 31) 159–60 (describing memo by James Rowe, who served as a law clerk to US Judges Francis Biddle and John J. Parker at the IMT, in which Rowe noted that the 118 High Command defendants who were still alive could be tried individually, ‘circumstances that struck at the root of the whole criminal organization trial system’). The IMT saw this as a secondary justification, however. IMT Judgment (n 1) (‘the more compelling reason’ not to find the organization criminal was that the ‘General Staff and High Command is neither an “organization” nor a “group” within the meaning of those terms as used in Article 9 of the Charter’ at 276). 37 Ibid (the Judgment also explained that ‘it is not shown that after 1937 it ever really acted as a group or organization’ at 275). 38 Ibid 276. The IMT found the prosecution’s case against the SA unsuccessful because after 1934, ‘the SA was reduced to the status of a group of unimportant Nazi hangers-on’. Even in those cases after 1934 when ‘some units of the SA were used for the commission of War Crimes and Crimes against Humanity, it cannot be said that its members generally participated in or even knew of the criminal acts’. Ibid 275.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Lost Legacy of Criminal Organizations Liability 503 by the prosecution of the IMT. Instead of a strict-liability offence, criminal membership required knowing participation in an organization whose goals and activities were criminal. Second, in part because membership required a showing of individualized guilt, very few defendants were prosecuted and convicted.39 Eighty-seven defendants were charged in the subsequent trials with membership in a criminal organization, and 74 of those were convicted of criminal membership.40 These convictions primarily included defendants who were members of organizations that had been declared criminal by the IMT,41 but the subsequent trials also expanded their reach by declaring the staff and administration of the Mauthausen concentration camp itself a criminal organization.42

IV. Criminal Organizations in Contemporary International Criminal Law Criminal organizations liability faded after Nuremberg and the subsequent trials.43 No contemporary international criminal tribunal has been empowered to declare organizations criminal as the IMT was, and membership offences have not been recognized on their own as core crimes in international criminal law. The idea was raised during negotiations over the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), when a committee of jurists organized by the French Ministry of Foreign Affairs submitted a proposal to include in the crimes under the 39 Early in the process, the U.S. war crimes program made a decision to address most of the organizational membership cases through the denazification program. That program, meanwhile, was quickly sidelined in the face of a rising Soviet threat and a more pressing desire to rebuild the German state. 40 Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (OUP 2011) 290. 41 See, e.g., ‘The Medical Case, Judgment’ in Trials Under Control Council Law No 10 (n 21) vol 2, 171, 198–297 (convicting Karl Brandt and 8 others of membership in the SS); ‘United States v Ohlendorf, Opinion and Judgment’ in Trials Under Control Council Law No 10 (n 21), vol 4, 411, 510–84 (finding 21 defendants guilty of membership in the SS and SD, and 1 convicted only of membership in the SD). 42 See Elies van Sliedregt, Individual Criminal Responsibility in International Law (OUP 2012) 33 (hereafter van Sliedregt, Individual Criminal Responsibility). 43 The Polish Supreme National Tribunal, operating in the years after the war, also declared the Auschwitz camp a criminal organization under both the Nuremberg Judgment and its own Article 4 of the Decree of 1944. See UNWCC, ‘Trial of Obersturmbannfuhrer Rudolf Franz Ferdinand Hoess Case No. 38’ in Law Reports of Trials of War Criminals, vol 7 (HMSO 1948) (discussing Supreme National Tribunal of Poland’s decision convicting Rudolf Hoess of membership in a criminal organization on the grounds that ‘the organization of the German concentration camps is a criminal group in the meaning both of the Nuremberg Judgment and of Article 4 of the [Polish] Decree of 1944’ at 20). The Israeli District Court also found Adolf Eichmann guilty under Israeli law of membership in organizations declared criminal at Nuremberg. See Prosecutor v. Eichmann, 36 ILR 5, 7, 9, 32, 252–3 (Israel, Jerusalem District Ct 1961), affd, 36 ILR 277, 289 (Israel, Supreme Ct 1962).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

504 Saira Mohamed jurisdiction of the Tribunal ‘membership in a de jure or de facto group whose primary or subordinate goal is to commit crimes coming within the jurisdiction of the Tribunal’, in the style of the subsequent Nuremberg tribunals.44 Met with considerable opposition and comparisons to ‘guilt by association’ and ‘collective guilt’,45 the French proposal was easily defeated.46 During the drafting of the Rome Statute of the International Criminal Court, France again attempted to resurrect the Nuremberg-era notion of criminal organizations. The delegation urged that the Court should be empowered to declare organizations criminal, in the style of the IMT, but this time, the proposal omitted any consequent membership crimes for individuals. That is, the Court would be allowed to declare an organization criminal and impose punishment, such as fines, forfeiture of assets, or reparations, when a defendant had committed a crime ‘on behalf of or with the assent of a group or organization’; but there would be no new crime of membership in the organization.47 This, too, was met with opposition, as were proposals to grant the Court jurisdiction over legal persons,48 and proposals to grant the Court jurisdiction over only corporations and not other entities.49 Although organizational liability has faded, one feature of Nuremberg’s criminal organizations plan persists in international criminal law: the notion that collectives are useful instruments for securing individual liability. Joint criminal enterprise (JCE), for example, holds individuals accountable through collectives based on ‘knowing and

44 Jean-Bernard Merimée, Letter Dated 10 February 1993 from the Permanent Representative of France to the United Nations Addressed to the Secretary General, UN Doc S/25266, (10 February 1993) paras 92–94, reprinted in Virginia Morris and Michael P Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia, vol 2 (Transnational Publishers 1995) 327, 343 (hereafter Morris and Scharf, Insider’s Guide to the ICTY). 45 Amnesty International, ‘Memorandum to the United Nations: The Question of Justice and Fairness in the International War Crimes Tribunal for the Former Yugoslavia’ (31 March 1993) accessed 4 July 2018, reprinted in Morris and Scharf, Insider’s Guide to the ICTY (n 44) 409, 413. For an assessment that the criminal organizations-membership liability model would have been useful in the aftermath of the Rwandan genocide, see Nina H B Jørgensen, ‘A Reappraisal of the Abandoned Nuremberg Concept of Criminal Organizations in the Context of Justice in Rwanda’ (2001) 12 Crim L Forum 371. 46 See ICTY Statute (n 5) arts 2–5 (defining crimes under the jurisdiction of the Tribunal). 47 Proposal Submitted by France, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, UN Doc A/CONF.183/C.1/L.3 (16 June 1998) 1–2. 48 See ‘Draft Statute for the International Criminal Court’, Report of the Preparatory Committee on the Establishment of an International Criminal Court Addendum, UN Doc A/CONF.183/2/Add.1 (14 April 1998) 49. 49 See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome 5 June–17 July 1998, Official Records vol 2, ‘Article 23. Individual Criminal Responsibility: proposal submitted by France’ (A/CONF.183/C.1/L), Summary Records of the meetings of the Committee of the Whole, 1st Mtg, A/CONF.183/C.1/SR.1 (29 June 1998) 133, paras 32-ff; United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Committee of the Whole, Working Group on General Principles of Criminal Law, ‘Working Paper on Article 23, Paragraphs 5 and 6’, UN Doc A/CONF.183/C.1/WGGP/L.5/Rev.1 (24 June 1998) 1–2.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Lost Legacy of Criminal Organizations Liability 505 voluntary participation in a group acting with a common purpose or plan’.50 Known as a prosecutor’s darling,51 JCE offers a way to attribute responsibility to individuals ‘who engage in criminal behavior through oppressive criminal structures or organizations, in which different perpetrators participate in different ways at different times to accomplish criminal conduct on a massive scale’.52 Perhaps because of its resemblance to the Nuremberg-era offence, courts have been careful to distinguish JCE from membership liability, insisting that unlike membership liability, JCE ‘is concerned with the participation in the commission of a crime as part of a joint criminal enterprise’.53 Moreover, the ICTY has maintained that JCE represents a version of perpetration contemplated in the language of Article 7 of the ICTY Statute, whereas membership liability ‘would constitute a new crime not foreseen under the Statute’.54 Accordingly, in the Tribunal’s view, any suggestion that the mode of liability of JCE is a recodification of a membership crime cannot stand. Notwithstanding these assertions of the daylight between JCE and liability based on membership in an organization, it remains clear that the two do resemble each other. And just like membership liability, JCE is at its core a vehicle for examining the activity of organizations in order to find individual liability.55 While JCE has been abandoned in the law of the ICC,56 the Rome Statute, too, looks to organizations as a way to secure individual guilt. Indirect perpetration through an 50 Gideon Boas, James L Bischoff, and Natalie L Reid, ‘Joint Criminal Enterprise’ in International Criminal Law Practitioner Library, vol 1: Forms of Responsibility in International Criminal Law (CUP 2008) 7, 9 (hereafter Boas, Bishoff, and Reid, ‘JCE’). See The Prosecutor v. Tadić (Judgment) IT-94-1-A, (15 July 1999) para 188 (ICTY, Appeals Chamber). 51 See Mark Osiel, Making Sense of Mass Atrocity (CUP 2009) 49; Mohamed Elewa Badar, ‘“Just Convict Everyone!” Joint Perpetration: From Tadić to Stakić and Back Again’ (2006) 6 Intl Crim L Rev 293, 301; Allison Marston Danner and Jenny Martinez, ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law’ (2005) 93 California L Rev 75. 52 Boas, Bishoff, and Reid, ‘JCE’ (n 50) 9. 53 The Prosecutor v. Simić et al. (Judgement) IT-95-9-T (17 October 2003) para 158 (ICTY, Trial Chamber II). See also The Prosecutor v. Milutinović et al. (Decision on Dragoljub Odjanic’s Motion Challenging Jurisdiction—Joint Criminal Enterprise) IT-99-37-AR72, (21 May 2003) (ICTY, Appeals Chamber) (‘Criminal liability pursuant to a joint criminal enterprise is not liability for mere membership’ para 26). 54 The Prosecutor v. Stakić (Judgment) IT-97-24-T, (31 July 2003) para 434 (ICTY, Trial Chamber II). 55 Some commentators see the second category of JCE, typically described as the concentration camp category, as particularly close to the notion of criminal organizations. See van Sliedregt, Individual Criminal Responsibility (n 42) 20 (opining that ‘Second Category JCE . . .. . . is similar to the concept of criminal organizations in Nuremberg’). But see The Prosecutor v. Krnojelac (Judgment) IT-97-25-T (15 March 2002) para 78 (ICTY, Trial Chamber II) (holding that second-category JCE cases involve circumstances in which ‘the participation of an accused person in the JCE charged would be inferred from his membership of such criminal organization’, but holding that both JCE-1 and JCE-2 cases ‘require proof that the accused shared the intent of the crime committed by the joint criminal enterprise’). 56 See The Prosecutor v. Lubanga (Decision on the Confirmation of Charges) ICC-01/04–01/06-803tEN (7 February 2007) paras 335, 342 (Pre-Trial Chamber I) (explaining the interpretation that drafters had decided not to incorporate JCE into the Rome Statute and explaining the concept of co-perpetration in art 25(3)(a)). See also Jens David Ohlin, ‘Organizational Criminality’ in Elies van Sliedregt and Sergey Vasiliev (eds), Pluralism in International Criminal Law (OUP 2014) 107, 112–13 (hereafter Ohlin, ‘Organizational Criminality’).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

506 Saira Mohamed organization provides the clearest example of this way of thinking about the nefarious activities of organizations in service of convicting individuals. This mode of liability applies when an individual—typically a collective’s leader—uses an ‘organized apparatus of power’, such as a military unit or a political group, to ensure that a crime will be carried out by some subordinate.57 Indirect perpetration through an organization represents an extension of indirect perpetration through another person, one that relies on Roxin’s theory of Organisationsherrschaft.58 In defending its interpretation that ‘control over the crime’, the standard defining perpetration under Article 25, should include ‘control over the organization’, the Chamber noted that ‘[t]he crimes falling within the jurisdiction of th[e] Court . . . will almost inevitably concern collective or mass criminality’.59 Thus, even though criminal organizations liability in its Nuremberg-era version—a declaration of an organization’s criminality, followed by convictions for the members of those organizations—has been set aside, international criminal law continues to find ways to use organizations to secure individual guilt.60 The purpose of both JCE and indirect perpetration through an organization is to convict the individual through the organization of which he is a part, not to convict—or even to condemn—the organization itself. As Harmen van der Wilt explains, concepts such as Organisationsherrschaft ‘enable courts to disentangle complex structural relationships and to identify precisely each contribution to the repressive system’.61 The work these doctrines do is critical to securing convictions, given the collective nature of mass atrocity crimes and the difficulty of identifying how individuals commit these crimes. But the organizations are the tool—not to the locus of attention.

V. Organization as Machinery, Organization as Motivator In their limited recognition in international criminal law, criminal organizations have served primarily as mechanisms for securing individual liability. This might appear entirely appropriate; in a system that treats individual responsibility as both its doctrinal 57 See The Prosecutor v. Katanga (Decision on the Confirmation of Charges) ICC-01/04–01/07–717, (30 September 2008) paras 500, 510–518 (Pre-Trial Chamber I) (hereafter Katanga (Confirmation of Charges)); Thomas Weigend, ‘Perpetration Through an Organization: The Unexpected Career of a German Legal Concept’ (2011) 9 J of Intl Crim Justice 91. 58 See Katanga (Confirmation of Charges) (n 57) paras 495–500. 59 Ibid para 500. 60 See Nina H B Jørgensen, The Responsibility of States for International Crimes (OUP 2000) 69 (describing ideas of organizational criminality since Nuremberg and assessing that ‘the notion of organizational criminality goes further in making each individual within an organization susceptible to punishment, rather than directing the punishment towards the organization as a legal entity’). 61 Harmen van der Wilt, ‘Joint Criminal Enterprise and Functional Perpetration’ in André Nollkaemper and Harmen van der Wilt (eds), System Criminality in International Law (CUP 2009) 158, 179.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Lost Legacy of Criminal Organizations Liability 507 and normative core, one might ask why organizations as organizations should merit any attention in an accounting of mass atrocity crimes. International criminal law is built on a foundation of holding individuals responsible. It is difficult to speak of Nuremberg without reference to the IMT’s statement in its judgment that ‘[c]rimes against inter national law are committed by men, not by abstract entities’.62 And the purpose of creating the IMT and conducting trials of individuals was to counter any sentiments about the collective guilt of the entire German people.63 But declaring the criminality of an organization is a far cry from declaring the collective guilt of an entire people. Indeed, we know from the very existence of the Article 9 of the London Charter that the Allies, and the judges of the IMT, saw no inconsistency between their desire to avoid collective guilt and their desire to condemn particular organizations. When Justice Jackson remarked in his opening statement that ‘the idea that a state, any more than a corporation, commits crimes, is a fiction’ and that ‘[c]rimes always are committed only by persons’, he immediately noted in the following sentence that relying on this ‘fiction’ to ‘impos[e] a collective liability’ was ‘quite proper’, as long as that collective liability did not function as an excuse for ‘personal immunity’.64 And we know as well that in other forums outside the criminal law, the Allies did not shy away from identifying Nazi organizations as responsible and dangerous. The Nazi organizations were disbanded at the end of the war, and under Control Council Law No. 9, the Allies provided for the seizure of assets of I.G. Farben, which had, among other things, produced Zyklon B for the Nazis.65 These are not examples of criminal accountability for organizations, of course, but they are examples of the larger goal of condemning the organizations for their role in the Nazis’ crimes and recognizing the culpability of the organizations themselves. Criminal organizations liability thus need not be set aside merely because of the predominance of individual liability in international criminal law. And, I argue, it need not be dismissed merely as a mechanism through which individual liability can be achieved. Criminal organizations liability indeed aimed primarily to facilitate mass convictions of individuals, but we might imagine a different legacy for criminal organizations if we consider the expressive and didactic functions of criminal law and criminal trials in the aftermath of mass atrocity. International criminal trials are widely recognized for their expressive functions—for creating history, for crafting narratives, for educating the public, for ending silence. Doctrine may be understood not merely as lending itself toward jurisdiction or dismissal, or guilt or innocence, but more broadly 62 IMT Judgment (n 1) 223. 63 See Nuremberg Proceedings (n 27) vol 2, 102 (opening statement of Justice Robert Jackson) (‘we have no purpose to incriminate the whole German people’); President Franklin D. Roosevelt, ‘Radio Address at a Dinner of the Foreign Policy Association’ (21 October 1944) accessed 4 July 2018 (‘[w]e bring no charge against the German race, as such’). 64 Nuremberg Proceedings (n 27) vol 2, 150. 65 See ‘Control Council Law No. 9’ (30 November 1945) in Enactments and Approved Papers of the Control Council and Coordinating Committee, vol 1, 225, 225–226 (Legal Division, Office of Military Government for Germany (US) 1945).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

508 Saira Mohamed as sending some message on the role of the courts or the law, or on the events those courts and body of law seek to address.66 What message can be gleaned from the IMT’s decisions on the indicted organizations?67 An examination of the indictment and the judgment of the IMT reveals an assessment that the organizations at issue merited recognition and condemnation in part because they provided the planning capacity, the financial support, the technical expertise.68 For example, the Tribunal’s judgment explains a number of functions of the Leadership Corps that were crucial to the Nazis’ larger campaign of crimes. Among others, ‘[t]he machinery of the Leadership Corps was used . . . to keep a detailed check on the political attitudes of the German People’. Different levels of hierarchy within the organization served to secure a close watch on individuals’ attitudes toward the party in each neighbourhood, and the group was able to maintain records on ‘all persons circulating damaging rumors or criticism of the regime’.69 The Leadership Corps also was used for propaganda. The judgment describes how the organization sent a confidential bulletin in October 1942 to district and county party officials providing information that ‘rumors were being started by returning soldiers concerning the conditions of Jews in the East which some Germans might not understand’ and to justify the decision to send Jews to ‘labor camps’ and to institute a program of ‘complete segregation and elimination’. As the IMT explains, the ‘machinery of the Leadership Corps’ was ‘utilized . . . to keep German public opinion from rebelling’ against the slaughter of the Jews. In addition, the Leadership Corps helped to run the slave labour programme. The Gauleiters, or district leaders, were granted authority by the organization to administer labour within their districts, and the organization used its directives to ratify cruelty in the treatment of the forced labourers under their control.70

66 See, e.g., Drumbl, Atrocity (n 10); Larry May and Shannon Fyfe, International Criminal Tribunals: A Normative Defense (CUP 2017) 61–3; Mirjan Damaska, ‘What Is the Point of International Criminal Justice?’ (2008) 83 Chicago-Kent L Rev 329, 345 (2008); David Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (OUP 2010) 569, 576; Saira Mohamed, ‘Deviance, Aspiration, and the Stories We Tell: Reconciling Mass Atrocity and the Criminal Law’ (2015) 124(5) Yale L J 628, 1670–1671. 67 See Pomorsky, ‘Conspiracy’ (n 13) 225 (noting the ‘consciousness-building’ and ‘stigmatiz[ing]’ functions of the trial and commenting that the declaration of criminal organizations ‘was to have a great symbolic, moral, political and ideological significance’). See also n 13–16 and accompanying text; Émile Durkheim, The Division of Labor in Society (George Simpson tr, The Free Press 1947). 68 See IMT Judgment (n 1) 255–79 (assessing charges against the organizations). See also ‘Final Report on the Evidence of Witnesses for the Defense of Organizations Alleged to be Criminal, Heard Before a Commission Appointed by the Tribunal Pursuant to Paragraph 4 of the Order of the 13th of March, 1946’ in Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, vol 42: Documents and Other Material in Evidence (International Military Tribunal 1949) 1, 1–153. 69 IMT Judgment (n 1) 258. See also Henri Donnedieu de Vabres, ‘The Nuremberg Trial and the Modern Principles of International Criminal Law’ in Guénaël Mettraux (ed), Perspectives on the Nuremberg Trial (OUP 2008) 213, 256–7. 70 Ibid 258–60.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Lost Legacy of Criminal Organizations Liability 509 In the decades since the IMT’s judgment, organizations have continued to provide the ‘machinery’ by which atrocities are carried out. Administrative agencies of the Rwandan government distributed hundreds of Kalashnikov automatic rifles to civilians to create ‘self-defence’ forces in the years before the genocide.71 The Yugoslav People’s Army organized transfers of arms to local Serbs in Bosnia during the civil war.72 The Mungiki coordinated the means for organized mass violence in the aftermath of the election in Kenya.73 Despite debates about whether the ‘lone génocidaire’ exists in theory,74 the fact is that genocide, crimes against humanity, systematic war crimes, and aggression are crimes perpetrated by more than one person, usually coordinated by organizations.75 At the same time, the decades since the IMT’s judgment have brought with them a broader and deeper understanding of why organizations merit attention in studies of and judgments about the perpetration of these crimes. What matters is not only the money, the guns, the patrols, the propaganda: It is also the way that organizations can and do provide the social and psychological conditions in which criminal conduct takes 71 See, e.g., Human Rights Watch, ‘Arming Rwanda: The Arms Trade and Human Rights Abuses in the Rwandan War’ (January 1994) 6(1) Human Rights Watch Arms Project 14–18 accessed 4 July 2018 (describing how the Habyarimana regime was using its administrative institutions for distribution of weapons in the months before the genocide). 72 Anton Weiss-Wendt, ‘The State and Genocide’ in Donald Bloxham and A. Dirk Moses (eds), The Oxford Handbook of Genocide Studies (OUP 2010) 81, 95. 73 See The Prosecutor v. Kenyatta (Public Redacted Version of ‘Second Updated Prosecution Pre-trial Brief ’, 26 August 2013 ICC-01/09–02/11-796-Conf-AnxA) ICC-01/09–02/11-796-AnxA-Red, (19 January 2015) (Trial Chamber V(B)). The definition of an organization for purposes of crimes against humanity and for the mode of indirect co-perpetration has generated significant debate and discussion in the ICC and on the part of observers of the Court. See, e.g., Situation in the Republic of Kenya (Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) ICC-01/09–19, (31 March 2010) paras 84–93, and Dissenting Opinion of Judge Kaul, paras 44–66 (Pre-Trial Chamber II); Ohlin, ‘Organizational Criminality’(n 56) 119–20. 74 See, e.g., The Prosecutor v. Jelisić (Judgment, Partial Dissenting Opinion of Judge Wald) IT-95-10-A, (5 July 2001) 64, para 2 (ICTY, Appeals Chamber) (‘[s]ome learned commentators on genocide stress that the currency of this “crime of all crimes” should not be diminished by use in other than large scale state-sponsored campaigns to destroy minority groups, even if the detailed definition of genocide in our Statute would allow broader coverage’ citing William Schabas, Genocide in International Law (CUP 2000) 9); The Prosecutor v .Jelisić (Judgment) IT-95-10-T, 14 December 1999, paras 100–1 (ICTY, Trial Chamber) (assessing that a lone génocidaire is ‘theoretically possible’ but would be ‘very difficult in practice’ to prove). See also Harmen van der Wilt, ‘Genocide, Complicity in Genocide and International v. Domestic Jurisdiction: Reflections on the van Anraat Case’ (2006) 4 J of Intl Crim Justice 239, 242. 75 The definitions of these crimes in the Rome Statute and the Elements of Crimes also require coord inated collective action. See Rome Statute (n 4) art 8bis (defining aggression to require that the defendant is in ‘a position effectively to exercise control over or to direct the political or military action of a State’); Ibid art 7(2) (defining crimes against humanity to require a ‘course of conduct involving the multiple commission of acts . . . . . . pursuant to or in furtherance of a State or organizational policy’); Ibid art 8(1) (providing that the Court has jurisdiction over war crimes ‘in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes’); ICC, Elements of Crimes (International Criminal Court 2011) 2–4 (requiring that genocide be based on conduct that ‘took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction’).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

510 Saira Mohamed place and even thrives. Organizations are not merely the machinery for atrocity; they are, in addition, the motivator for atrocity. When the IMT and subsequent tribunals were being planned and carried out, there was already some understanding of the role of organizations in shaping individuals’ beliefs and conduct. Speaking of the indicted organizations before the Tribunal, Justice Jackson remarked: ‘They served primarily to exploit mob psychology and to manipulate the mob. Multiplying the number of persons in a common enterprise always tends to diminish the individual’s sense of moral responsibility and to increase his sense of security’.76 The foundations for this enduring insight had been laid by thinkers such as Gustav Le Bon and Sigmund Freud, who at the end of the nineteenth and beginning of the twentieth centuries were studying the psychology of groups and how collectives changed individuals’ behaviour. In Group Psychology and the Analysis of Ego, for example, Freud assessed that while a person would think, feel, and act one way on his own, that same person ‘thought, felt and acted in quite a different way from what would have been expected’ as a result of ‘his insertion into a collection of people which has acquired the characteristic of a “psychological group” ’.77 Both Le Bon and Freud saw collectives as necessarily less rational or intelligent than individuals acting on their own.78 Reinhold Niebuhr, meanwhile, writing in the 1930s, saw collectives as necessarily more evil than individuals acting on their own.79 After the war, interest in questions about the psychology of groups and of individuals within groups heightened, driven in part by concern over how and why seemingly ordinary individuals were willing, and even enthusiastic, participants in the Nazis’ horrific crimes. I provide here a few examples of research that elucidates how organizations can make possible crimes that individuals would not consider committing on their own. First, research on diffusion of responsibility highlights how organizations’ division of the work of mass atrocity eases individuals’ involvement as indirect perpetrators of those crimes. Diffusion of responsibility was brought to the forefront of research in social psychology in the late 1960s, when John M. Darley and Bibb Latané began to study the subject of ‘bystander apathy’, inspired by the murder of Kitty Genovese while dozens of her neighbours did nothing to intervene. In their experimental work on the bystander effect, as it came to be known, Darley and Latané attributed individuals’ failure to act when surrounded by others in part to ‘diffusion of responsibility’80—the notion that an individual’s ‘belie[f] that others are around who could help . . . reduces the individual’s obligation to help because others share that same obligation’.81 Diffusion of 76 Nuremberg Proceedings (n 27) vol 8, 353. 77 Sigmund Freud, Group Psychology and the Analysis of the Ego (James Strachey tr, Boni and Liveright 1922) 3, 6. 78 See James Waller, Becoming Evil: How Ordinary People Commit Genocide and Mass Killing (2nd edn, OUP 2007) 33–4 (hereafter Waller, Becoming Evil). 79 Ibid 35–6. 80 John M Darley and Bibb Latané, ‘Bystander Intervention in Emergencies: Diffusion of Responsibility’ (1968) 8(4) J of Personality and Social Psychology 377 (1968). 81 Kipling D Williams and Alvin Ty Law, ‘Bystander Effect’ in Roy F Baumeister and Kathleen D Vohs (eds), Encyclopedia of Social Psychology, vol 1 (Sage 2007) 132, 133.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Lost Legacy of Criminal Organizations Liability 511 responsibility, however, occurs not only through mere multiplicity of actors, but also through ‘segmentation and fragmentation’ of tasks. In later work, Darley explained that ‘[w]hen death . . . is produced on assembly lines, each individual eventually concentrates on the microrequirements of his or her part in the process. . . . The fact of the eventual deaths is so remote that no participant finds it salient’.82 Organizations’ bureaucratization of atrocity thus enables individuals to ‘reduce their identification with the consequences of their actions. Once activities are routinized into detached sub-functions, perpetrators shift their attention from the morality of what they are doing to the operational details and efficiency of their specific job’.83 The prison guard who does not torture or kill, for example, thinks only about the propriety of his particular work of guarding prisoners, and does not consider his role in the larger system of torture or killing taking place at the prison, a system that could not survive without the participation of the guards—even those who do not directly perpetrate the torture or killings.84 The psychology of one’s diffused sense of responsibility thus explains how organizations that divide the work of atrocity into smaller, less horrific tasks lure individuals with no history of violence into participation. Second, socialization processes within organizations transform individuals’ beliefs so that they are willing to be direct perpetrators as well. This often takes place through the organization’s work in defining a particular group as a target and rationalizing violence toward that group in order to inculcate a culture in which those acts of violence are normalized. Darley explains that this socialization takes place through ‘cultural or small-group support for the rationalizations that supported their doings’.85 In this account, ‘organizations are required to produce sustained evil actions’. To Darley, ‘[o]ne needs a Nazi dictatorship, a Vietnam war, a Stalinist gulag, or an Argentinean military dictatorship to train, reinforce, and sustain killing activities’.86 Research on peer relationships and compliance with authority suggests that organizations are not required in the way suggested by Darley in order to produce these rationalizations. Solomon Asch’s line experiments87 focus on the impact on individuals of other individuals, apart from the organizational apparatus at work, and Omar Shahabudin McDoom’s research on the Rwandan genocide shows how social influence, and in particular interactions between neighbours and household members, motivated perpetrators.88 Still, organizations can be powerful mechanisms for disseminating messages of rationalization that ultimately convince direct perpetrators of the rightness of wrongdoing. Raul Hilberg’s work on the Holocaust provides a useful example. While Hilberg carefully demonstrates how 82 John M Darley, ‘Social Organization for the Production of Evil’ (1992) 3(2) Psychology Inquiry 199, 210 (hereafter Darley, ‘Social Organization’). 83 Waller, Becoming Evil (n 78) 248. 84 See Herbert C Kelman and V Lee Hamilton, Crimes of Obedience: Toward a Social Psychology of Authority and Responsibility (Yale UP 1989) 18 (hereafter Kelman and Hamilton, Crimes of Obedience). 85 Darley, ‘Social Organization’ (n 82) 210. 86 Ibid 204. 87 See Solomon E Asch, ‘Opinions and Social Pressure’ (1955) 193(5) Scientific American 31, 31–5. 88 See Omar Shahabudin McDoom, ‘Who Killed in Rwanda’s Genocide? Microspace, Social Influence and Individual Participation in Intergroup Violence’ (2013) 50(4) J of Peace Research 453, 464–465.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

512 Saira Mohamed institutions were used as the machinery of the Holocaust—‘the Finance Ministry went through condemnation proceedings to set up the Auschwitz complex’,89 and the Trusteeship Office in Warsaw handled the seizure of Jews’ real property,90 he explains— he also analyzes how individuals were shaped through a system of informational ‘repressions’ so that they were isolated from criticism or expressions of doubt about the destruction and cruelty of the Nazis.91 This, in turn, contributes to a normalization of violence.92 Third, organizations affect individuals so that they are willing to subordinate their own preferences to that of the organization or modify them so that they align with those of the organization. Stanley Milgram’s shock experiments led him to conclude that even though ‘[e]ach individual possesses a conscience which to a greater or lesser degree serves to restrain the unimpeded flow of impulses destructive to others’, ‘when he merges his person into an organizational structure, a new creature replaces the autonomous man, unhindered by the limitations of individual morality, . . . mindful only of the sanctions of authority’.93 That is, under particular circumstances, operating within an organizational structure impels an individual to abandon the autonomous state, in which he takes responsibility for and makes his own decisions, and to enter the agentic state, in which he carries out the will of the authority figure and attributes responsibility for those choices to the authority figure.94 Studying individual behaviour in organizations after the My Lai massacre, Herbert Kelman and V. Lee Hamilton found that organiza tions such as the military that rely on obedience and displacement of individual identity are able to transform individuals’ willingness to engage in particular actions.95 The SS, for example, trained its members to be loyal and submissive to the institution and to the person of Adolf Hitler.96 By displacing individuals’ preferences with those of the institution, the organizations succeeded in weaponizing the individuals, using them in service of the Third Reich, and creating in them enthusiastic participants. The systematicity of the crimes of the Nazis, in turn, further facilitated individual participation because of the routinization of violence. In his study of Reserve Police Battalion 101, historian Christopher Browning writes that ‘[o]nce the killing began . . . the men became increasingly brutalized. As in combat, the horrors of the initial encounter eventually became routine, and the killing became progressively easier. In this sense, brutalization was not the cause but the effect of these men’s behavior’.97 Because the violence was coordinated through the organizations of the German state, the military, and the Nazi party, individuals 89 Raul Hilberg, ‘The Nature of the Process’ in Joel E Dimsdale (ed), Survivors, Victims, and Perpetrators: Essays on the Nazi Holocaust (Hemisphere 1980) 5, 6–7. 90 Ibid 8. 91 Ibid 20–24. 92 Waller, Becoming Evil (n 78) 244 (discussing desensitizing effect of repression of conscience). 93 Stanley Milgram, Obedience to Authority: An Experimental View (first published 1974, Harper Perennial Modern Thought 2009). 94 Ibid. 95 Kelman and Hamilton, Crimes of Obedience (n 84) 88–116. 96 Ervin Staub, Overcoming Evil: Genocide, Violent Conflict, and Terrorism (OUP 2011) 170. See also Debórah Dwork and Robert Jan van Pelt, Holocaust: A History (Norton 2002) 79. 97 Christopher R. Browning, Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland 161 (1998).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Lost Legacy of Criminal Organizations Liability 513 were set up to engage in repeated criminal behaviour, and participation became each time more routine, more palatable, more normal. This brief sampling of research conducted over the past several decades points to the simple fact that organizations influence individual behaviour in atrocities. This is not to suggest that individuals do not play a role as well. To be sure, individuals—usually leaders of the organizations—are key in devising the strategies of the organization, putting those strategies into place, and carrying out their execution, and individuals use their positions of authority to affect the beliefs about right and wrong of those who listen to them and respect them.98 But the organization exists alongside those leaders as a site of transformation for the individual, a driver of individual motivation to participate in or condone atrocity.

VI. Conclusion: An Alternate Reality for Criminal Organizations Organizations thus are crucial not only in providing the guns, money, and coordination for atrocities, but in setting the scene so that individuals are walled off from criticism of their actions, are fed propaganda, are made to feel that their doubts are not shared by their peers, are convinced that they are merely a cog in the machine. Reflecting on the work of organizations in mass atrocity, and their roles as both machinery and motivator of these crimes, illuminates the loss effected by the neglect of the idea that there is expressive value in declaring organizations criminal. If we were to return to that moment in Nuremberg, then, we might imagine an alternate future for criminal organ izations liability, one in which the idea that organizations are crucial in the perpetration of atrocity, not merely as machinery, but as motivation, might prevail. In that alternate reality, international criminal courts and the field of international law can more deeply explore the activities of organizations and, where appropriate, can use the power of the law to condemn their role in atrocities. This, in turn, might help the courts perform better in their task of providing a narrative of atrocity crimes by producing a better accounting of how and why atrocities take place. Imagining this alternate reality will not change the law. The Rome Statute almost certainly will not be amended to include entity liability, even if there are movements in other forums to assign liability, whether civil or criminal, to collectives ranging from corporations to states for their role in mass atrocity crimes. But imagining this alternate reality may remind us of the value of condemning organizations as organizations and might inspire us in other ways to express that condemnation. The law provides one way. Crimes against humanity, for example, requires a state or organizational policy, and judges and prosecutors may use this doctrinal requirement as a way to bring 98 See generally Saira Mohamed, ‘Leadership Crimes’ (2017) 105 Calif L Rev 777.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

514 Saira Mohamed a ttention to the organizations that provide the machinery and the motivation for individual perpetration. Cases relying on perpetration through an organization, meanwhile, can be framed in a way to highlight not only the individual defendant who operated through the organization, but the ways in which the organization operated on the direct or indirect individual perpetrators. Some of this can be done outside the letter of the law. Perhaps this comes through the work of publicizing the law. The Special Court for Sierra Leone, for example, refers to some of its cases by the institutions they dealt with (‘The CDF Trial’,99 ‘The RUF Trial’,100 ‘The AFRC trial’101), even though those trials involved no organizational liability and only a small number of representatives of each organization as individual defendants. While each case was by no means a comprehensive trial of each organization, this naming convention suggests that the role of the organizations themselves ought to be salient in observers’ assessments of the cases. Similarly, the ICTR’s decision in the Nahimana case, which addressed the defendants’ roles in the radio station Radio Télévision Libre des Mille Collines, the newspaper Kangura, and the political party Coalition pour la Défense de la République, has come to be known—both within the Tribunal and outside of it—as the ‘Media’ trial.102 This echoes the practice of referring to a case before the Nuremberg Military Tribunal not only by a defendant’s name, but alternatively by the name of the organization at issue—the Einsatzgruppen case,103 the Justice case,104 the Medical case,105 the RuSHA case.106 This approach, reflected both in scholarly convention and in the official publications of the judgments, gives rise to a sense that those institutions—and not merely the individual defendants—have a place in the narrative of what happened and why. The ICC today can choose to publicize its work in the same way, emphasizing the organizations that have a role in the situations before the Court, just as can scholars, practitioners, and other observers of the Court. Finally, the work of bringing attention to the role of organizations in mass atrocity can be achieved through other institutions. The approach of the South African Truth and Reconciliation Commission (TRC) deserves mention here, for it held hearings and organized its report in part around the organizations that built and perpetuated the 99 See ‘The CDF Trial’, Special Court for Sierra Leone, Residual Special Court for Sierra Leone accessed 4 July 2018. 100 See ‘The RUF Trial’, Special Court for Sierra Leone, Residual Special Court for Sierra Leone accessed 4 July 2018. 101 See ‘The AFRC Trial’, Special Court for Sierra Leone, Residual Special Court for Sierra Leone accessed 4 July 2018. 102 See, e.g., ‘Nahimana et al. (Media case) (ICTR-99-52)’, United Nations Mechanism for International Criminal Tribunals accessed 4 July 2018; Allan Thompson, ‘Introduction’ in Allan Thompson (ed), The Media and the Rwanda Genocide (Pluto 2007) 1, 9; Human Rights Watch, ‘Genocide, War Crimes and Crimes Against Humanity: A Digest of the Case Law of the International Criminal Tribunal for Rwanda’ (2010) 13 accessed 4 July 2018. 103 See Trials Under Control Council Law No 10 (n 21) vol 4, v. 104 See Trials Under Control Council Law No 10 (n 21) vol 3, v. 105 See Trials Under Control Council Law No 10 (n 21) vol 1, v. 106 See Trials Under Control Council Law No 10 (n 21) vol 4, vii.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Lost Legacy of Criminal Organizations Liability 515 country’s enduring system of apartheid. The media, the armed forces, the state security services, the business sector, the legal community, and others all had separate hearings,107 which focused on the role of the organizations themselves in apartheid rather than on the individual representatives’ participation in the relevant crimes.108 Writing on efforts to address the role of organizations in perpetrating systematic violence, Sherilynn Ifill describes the TRC’s institutional hearings as ‘the most ambitious effort to address the role of institutions’ and more successful than efforts to recognize the role of organizations through the criminal law at the ICTR.109 In particular, these hearings not only exposed how these organizations provided the means for the crimes of apartheid to take place—the organizing, coordinating, and arming mechanisms—but also revealed the organizations’ role ‘in creating and supporting an environment’ in which such abuses could take place.110 Ultimately, the alternate reality may not come to pass, but this chapter has offered an argument for why we might still recognize the value of condemning organizations for their role in providing the means and motivation for mass atrocity crimes. Such thinking about mass atrocity is not meant to detract from individual liability, but rather to supplement it by providing a more complete account of how these crimes take place and offering a more detailed portrait to explain why individuals undertake the crimes they do.

107 See ‘Special Hearings Transcripts’, Truth and Reconciliation Commission accessed 4 July 2018; Claire Moon, Narrating Political Reconciliation: South Africa’s Truth and Reconciliation Commission (Lexington Books 2008) 34. 108 Annelies Verdoolaege, Reconciliation Discourse: The Case of the Truth and Reconciliation Commission (John Benjamins 2008) 13. 109 Sherilynn A. Ifill, On the Courthouse Lawn: Confronting the Legacy of Lynching in the Twenty-First Century (Beacon Press 2007) 159. 110 Ibid.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Section VI

NA R R AT I V E S

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

chapter 22

Histor ica l R eason i ng a n d J u dici a l Histor iogr a ph y i n I n ter nationa l Cr imi na l Tr i a l s Kim Christian Priemel

And history bemoans | What history postpones | The true event. (Douglas Dunn, ‘At Falkland Palace’)

I. The Flesh of History: Jurisprudence and Historiography Historians and jurists have great mutual respect for each other, which is facilitated by the fact that they rarely meet. First sorted into different disciplines and faculties, and then occupying desks in specialized libraries, their respective career trajectories take them along different roads and their paths cross but infrequently. The odd legal history conference will bring them together, though usually only the academic crowds and not the practitioners of law. The latter, historians largely know from their sources, i.e., the archives they dip into (which consist of papers lawyers no longer consider relevant) or the interviews by which they create their own primary materials. On rare occasions, however, this relation is reversed when lawyers hope to draw on historical information and historiographical insight, for instance when historians join investigation teams or appear as expert witnesses in the courtroom. The latter scenario, familiar in the context of proceedings involving war crimes, crimes against humanity,

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

520 Kim Christian Priemel and genocide, has raised serious objections. The eminent French historian Henry Rousso has powerfully argued that historiography should not pretend to be a precise science and ought to reflect on the epistemological implications of its integration in the judicial process. Historians, Rousso says, investigate specific cases from which they draw general arguments. To apply these, in reversed fashion, to other concrete cases risks falling into the trap of synecdoche, in effect confusing a part for the whole and vice versa. To avoid this quandary, Rousso maintains, the ‘craft of the historian consists precisely in verifying the extent to which the other things are in fact equal and in determining the nature of the discrepancy that can exist between the case studied and the ideal type’.1 Yet it is precisely the notion of the historian’s craft that has fuelled reflections about the proximity of both disciplines ever since the introduction of philological hermeneutics in legal and historiographical methodology.2 The question if and what common ground judges and historians share has occupied the likes of Giambattista Vico (in his Principi di Scienza Nuova), Marc Bloch (in his magisterial Apologie d’Histoire), or Carlo Ginzburg (in his Zolaesque Il giudice e lo storico).3 And ever since Leopold von Ranke introduced the notion of wie es eigentlich gewesen (‘how things actually/essentially were’),4 it has been a commonplace in academic history writing that historians should not presume to be judges, much less prosecutors or defence counsel (while in practice they are often exercising all three offices at the same time). In a similar vein, Bloch and Ginzburg have reminded their discipline that its task is one of understanding rather than judging, which includes placing the evidentiary history of individuals in the broader structural patterns of social and cultural history.5 And yet the general objectives of both professions cannot but resemble each other: if historians, as Holocaust scholar Raul Hilberg once put it, are in the ‘truth business’, so are lawyers.6 This is particularly notable when it comes to the didactic character of any 1 Henry Rousso, The Haunting Past: History, Memory, and Justice in Contemporary France (Ralph Schoolcraft tr, University of Pennsylvania Press 2002) 59–61, 61 (hereafter Rousso, Haunting Past). 2 Randall Lesaffer, European Legal History: A Cultural and Political Perspective (CUP 2009) 142–4; Jerzy Stelmach and Bartosz Brozek, Methods of Legal Reasoning (Springer 2006) 171. This was not exclusive to the Roman law and common law traditions; see, e.g., Lena Salaymeh, The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions (CUP 2016) 86ff. 3 Thorallin Bayer and Donald Phillip (eds), Verene Giambattista Vico: Keys to the ‘New Science’ (Cornell UP 2009); Marc Bloch, Apologie pour l’histoire ou Métier d’historien (2nd edn, Librairie Armand Colin 1952), translated as The Historian’s Craft (Manchester UP 1954) 114–19 (hereafter Bloch, Historian’s Craft); Carlo Ginzburg, Il giudice e lo storico. Considerazioni in margine al processo Sofri (first published 1991, Feltrinelli 2006) 16–21 (hereafter Ginzburg, Il giudice). Ginzburg’s treatise builds to some extent on Piero Calamandrei, ‘Il giudice e lo storico’ (1939) XVII Rivista di diritto processuale civile 105–28 (hereafter Calamandrei, ‘Il giudice’). 4 On the debate on whether Ranke implied that history should assemble nothing but pure facts or, on the contrary, should aim at the essence of historical evolution, see Georg Iggers, ‘Introduction’, in Leopold von Ranke, The Theory and Practice of History (Georg Iggers (ed), Routledge 2011) xi–xiv, xiv. 5 Bloch, Historian’s Craft (n 3) 10ff, 114, 118ff; Ginzburg, Il giudice (n 3) 19. 6 Yehuda Bauer, Rethinking the Holocaust (Yale UP 2001) viii. cf Bloch, Historian’s Craft (n 3) (‘their [the judge’s and the historian’s] honest submission to the truth’ 114).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Historical Reasoning and Judicial Historiography 521 (criminal) trial, a quality outlined by Lawrence Douglas when refuting Hannah Arendt’s oft-quoted admonishment—itself formulated against the backdrop of the Eichmann trial—that ‘[t]he purpose of a trial is to render justice and nothing else’.7 Beyond objectives it is precisely methodology, the tools employed by both crafts, that result in a feeling of familiarity: the forensic collection and combination of facts; textual exegesis; rhetoric and narrativity to ensure consistence, coherence, and cogency. Both historians and trial lawyers set out to (re)construct past events, try to establish causality, and, in doing so, resort to chronology as a device that offers palpable logic and a narrative grid (with storytelling serving evidentiary as well as persuasive purposes).8 If we follow Bloch, et al., however, paths divide once the ‘truth’ has been established. While judges have to decide and pass judgment on the civil parties or criminal accused, historians need to do no such thing.9 On the contrary, Paul Ricoeur has noted, historiography can avoid any determination and happily continue its ‘perpetual rewriting’ if additional facts, new methods, or different interpretations suggest a plausible case.10 In somewhat less favourable terms, William Schabas has warned his fellow international lawyers that trials ought not to ‘be allowed to stifle a constant reconsideration and reassessment of the past, something that is the essential contribution of professional historians’.11 For all their general force, these arguments overlook that a (guilty) verdict is not the only possible conclusion of any given trial and that particularly in criminal cases insufficient evidence may result in acquittal or the discontinuation of proceedings through dropping charges, nolle prosequi, etc. None of these decisions by court or prosecution constitute a finding about the defendant’s truthfulness, much less about ‘how things actually were’, rather similar to post-historicist analyses by historians. Likewise, the two disciplines’ temporalities may not differ as profoundly as has been suggested by some historians. These hold that penal law conceives of the crime as not entirely past and thus amenable to revision, annulment, and compensation through judgment and retribution, an idea that is essentially incommensurable with historical sensibility and its insistence on chronological sequence. But as victims’ experiences defy such linearity since suffering and trauma are never altogether past, while historians create their sources by conducting

7 See Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin 2006) 253; Lawrence Douglas, The Memory of Judgement: Making Law and History in the Trials of the Holocaust (Yale UP 2001) 2ff. 8 There is abundant literature both from and on the so-called Law-and-Literature field; see, e.g., Jane B. Baron and Julia Epstein, ‘Is Law Narrative?’ (1997) 45 Buffalo Law Review 141–87; Paul Gewirtz, ‘Narrative and Rhetoric in the Law’ in Peter Brooks and Paul Gewirtz (eds), Law’s Stories: Narrative and Rhetoric in the Law (Yale UP 1996) 2–13. On the narrative features specifically of criminal trials see Robert P. Burns, ‘The Distinctiveness of Trial Narrative’ in Antony Duff and others (eds), The Trial on Trial, Vol. 1. Truth and Due Process (Hart 2004) 157–77. 9 Bloch, Historian’s Craft (n 3) 115; Calamandrei, ‘Il giudice’ (n 3) 105–7; Ginzburg, Il giudice (n 3) 16–21. 10 Paul Ricoeur, Memory, History, Forgetting (University of Chicago Press 2006) 314–33, 320 (hereafter Ricoeur, Memory). 11 William Schabas, Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals (OUP 2012) 172 (hereafter Schabas, Unimaginable Atrocities).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

522 Kim Christian Priemel oral history interviews with victims, perpetrators, observers, et al., the gap appears to narrow again.12 Sincere, if unattainable, goals of ‘truth’; forensic methodology; narrative structure; didacticism; the very multiplicity of divergent stories and competing claims to truth: all these features allow for the integration of historical reasoning into judicial proceedings, while at the same time making these and their generic materials—indictments and judgments, opening and closing statements, trial briefs and transcripts—highly attractive to historians. The strange sixteenth century story of the return of Martin Guerre, after all, could not have been told without evidence from his two trials at Rieux and Toulouse.13 In fact, for two reasons the attraction is particularly evident in international criminal law with its core crimes of genocide, crimes against humanity, war crimes, and crimes against peace (in contrast to transnational crimes such as human trafficking, illegal drug trade, etc.). First, the lifting of statutory limitations, which finds parallels in many domestic criminal codes, literally invites Clio into the courtroom when long-past, complex, and often state-organized crimes are investigated and tried with the help of historians. Second, professional historians take a particular interest in these subjects because of their more often than not grizzly nature and the anthropological questions that they raise, but even more due to their contexts of (civil) war, regime change, and societal transformation. A discipline that is essentially looking for both breaks and continuities cannot but be intrigued by in-between-periods and by phenomena that chart and contribute to such transitions at the same time.14 Transitional justice settings—here narrowly understood in their legal guise of judicial proceedings—therefore see ‘the courts and the judges penetrating volens nolens into the territory of the historian before their verdicts are carved into the flesh of history as it is being made’. At the same time, historians approach their subject ‘under the pressure of a moral, legal, and political condemnation arising from the same judicial agency as the verdict of the criminal court, a verdict they, in their turn, risk reinforcing, attenuating, displacing, even subverting, because they cannot ignore it’.15 Since transitional justice betrays a presentist outlook, with its agents hoping to draw firm lines between past, present, and future, and to lend legitimation to the order-in-the-making,16 both history and historiography are called upon to offer credible narratives of the past and lend authority to the trials of the present. In other words, as all transitional trials make claims to authority over interpreting the past

12 Berber Bevernage, History, Memory, and State-Sponsored Violence: Time and Justice (Routledge 2012); Lawrence L. Langer, Admitting the Holocaust (OUP 1995) 17ff. 13 Natalie Zemon Davis, The Return of Martin Guerre (Harvard UP 1983) (hereafter Zemon Davis, Return). 14 Ruti Teitel, ‘Transitional Jurisprudence: The Role of Law in Political Transformation’ (1997) 106 Yale Law Journal 2009–80, 2078ff. 15 Ricoeur, Memory (n 10) 322. 16 Cf. Stiina Löytömäki, Law and the Politics of Memory: Confronting the Past (Routledge 2014) 125ff (hereafter Löytömäki, Law and the Politics of Memory).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Historical Reasoning and Judicial Historiography 523 (and, inversely, the future) or find they are unable to skirt such questions, history and historians cannot but enter the courtroom. This chapter sets out to show, in three steps, how judicial proceedings became a major arena in which both micro- and macro-historical narratives were forged in the second half of the twentieth century. The following section will delineate the scale and scope of personal narratives, i.e. micro-histories, in the legal proceedings that began in the wake of the Second World War and were intensely linked with the problem of ‘collaboration’.17 A third section addresses if, how, and to what extent macro-historical interpretations permeated the high-profile proceedings at Nuremberg and Tokyo and help explain their dynamics and outcomes. This pattern was repeated in domestic trials of Nazi era crimes throughout the post-war decades, yet largely overlooked in the creation and day-to-day operations of the ad hoc tribunals that sprang to life in the 1990s and early 2000s, as Part IV argues. The chapter’s conclusion suggests that this unawareness may explain some of the Tribunals’ shortcomings and needs to be reflected by both lawyers and historians if the International Criminal Court is to avoid even more criticism than that levelled against it since its inception.

II. Legal Infrastructures: Storytelling after the Second World War ‘What did you do during the war?’ became a key question as soon as fighting ceased, or even earlier when Allied troops seized control over previously Axis-controlled territories.18 Both collectively and individually, plausible accounts of what had been done by whom in the course of war and occupation had to be produced; memories had to be validated. This ‘memory work was carried out’, according to historian Robert Moeller, ‘in a range of “infrastructures” ’, resulting in a ‘usable past’ or, rather, pasts in the plural.19 A prime infrastructure was the courtroom that came into heavy use across the European and Pacific theatres. The Soviet authorities staged military trials as early as 1943, targeting both German occupants and Soviet ‘collaborators’,20 and similar proceedings would be 17 The term, though still widely used, has come under significant criticism by contemporary historians for both its imprecision and normativity; see the contributions to Christoph Dieckmann, Babette Quinkert, and Tatjana Tönsmeyer (eds), Kooperation und Verbrechen: Formen der ‘Kollaboration’ im östlichen Europa 1939–1945 (Wallstein 2003). 18 Franziska Exeler, ‘What Did You Do during the War? Personal Responses to the Aftermath of Nazi Occupation’ (2016) 17(4) Kritika: Explorations in Russian and Eurasian History 805–35 (hereafter Exeler, ‘What did you do’). 19 Robert G. Moeller, War Stories: The Search for a Usable Past in the Federal Republic of Germany (University of California Press 2001) 13. 20 Alexander Victor Prusin, ‘ “Fascist Criminals to the Gallows!”: The Holocaust and Soviet War Crimes Trials, December 1945–February 1946’ (2003) 17(1) Holocaust and Genocide Studies 1–30.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

524 Kim Christian Priemel held across Europe and Eastern Asia following German and Japanese capitulation. Numbers are notoriously unreliable as the difference between revenge, retribution, and justice was often vague at best, and it is not clear either how many investigations eventually resulted in judicial trials. Summary execution, lynching, and public shaming were widespread and accompanied executive action (e.g., stipulating the loss of civic rights, dismissals, purges and professional bans, or wholesale expulsion) as well as judicial trials before ordinary courts and extraordinary tribunals. Punishment could include death, imprisonment, loss of rights and entitlements, monetary fines, and much more. Even where judicial procedure was followed, post-war proceedings ‘adopted an amazing number of forms’.21 Recent estimates set the number of Germans and Austrians punished for Nazi-era crimes after 1944 at some 100,000 that might amount to a third of all Direkttäter (perpetrators on the ground), though excluding a far larger number of those who had authorized, ordered, enabled, or aided and abetted in the said crimes. Ironically, Germans, Austrians, Italians, Japanese, and other Axis nationals were far from constituting the majority of those investigated, tried, and penalized. The vast majority of cases, judicial or otherwise, targeted real or alleged collaboration with the Axis powers, and saw several million people prosecuted on the European subcontinent, i.e., 2 to 3 per cent of the entire population. In the Soviet Union alone about 600,000 people were arrested for either treason and/or supporting the occupiers.22 Across the Asia-Pacific region, in some 2,250 trials more than 5,700 Japanese, nearly all military men accused of war crimes, were tried, resulting in more than 4,000 convictions and one out of five defendants being executed.23 Here, too, other nationals were prosecuted for their cooperation with the occupiers, among them Korean and Taiwanese civilian employees in the

21 István Deák, ‘Introduction’ in István Deák, Jan T. Gross, and Tony Judt (eds), The Politics of Retribution in Europe: World War II and Its Aftermath (Princeton UP 2000) 3–14, 9 (hereafter Deák, ‘Introduction’). For a case study see Peter Romijn and Erik Schumacher, ‘Transitional Justice in the Netherlands after World War II’ in Nico Wouters (ed), Transitional Justice and Memory in Europe (1945–2013) (Intersentia 2014) 133–71 (hereafter Wouters (ed), Transitional Justice). 22 Deák, ‘Introduction’ (n 21) 4; Franziska Exeler, ‘The Ambivalent State: Determining Guilt in the Post-World War II Soviet Union’ (2016) 75(3) Slavic Review 606–29, 607 (hereafter Exeler, ‘Ambivalent State’); Norbert Frei, ‘Nach der Tat: Die Ahndung deutscher Kriegs- und NS-Verbrechen in Europa— eine Bilanz’ in Norbert Frei (ed), Transnationale Vergangenheitspolitik: Der Umgang mit deutschen Kriegsverbrechern in Europa nach dem Zweiten Weltkrieg (Wallstein 2006) 7–36, 30–2 (hereafter Frei (ed), Transnationale Vergangenheitspolitik). For estimates of the total number of German Direkttäter see Dieter Pohl, Holocaust: Die Ursachen, das Geschehen, die Folgen (Herder 2000) 124. 23 Philip R. Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East, 1945–1951 (University of Texas Press 1979) 48, 95, 120, 139, 141, 150–54, 173, 184, 197, 208; Eiji Takemae, Inside GHQ: The Allied Occupation of Japan and Its Legacy (Continuum 2002) 250–3 (hereafter Takemae, Inside GHQ); Yuma Totani, Justice in Asia and the Pacific Region, 1945–1952: Allied War Crimes Prosecutions (CUP 2015) 9ff (hereafter Totani, Justice in Asia). Additionally a five digit number of Japanese soldiers may have been tried clandestinely by Soviet courts and up to 3,000 executed, according to Takemae, Inside GHQ 252. Exeler, ‘Ambivalent State’ (n 22) 607, sets the figure considerably lower at close to 2,900 tried Japanese soldiers, but still well above the older calculations of Piccigallo and others.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Historical Reasoning and Judicial Historiography 525 g unzoku (Imperial Japanese Army) who faced trial before Allied and local war crimes tribunals between 1945 and 1952.24 The majority of these proceedings were strictly criminal in the sense of targeting individual offences, mostly against national rather than international law. Individual (mis)behaviour and individual biographies were at stake in these largely retributive proceedings. However, when it came to their symbolism and didactics, at least the publically held trials assumed a broader meaning. On the one hand they endeavoured to reassert governmental authority, not only through the threat of severe sentences such as life imprisonment or capital punishment but also through the very judicial procedures they applied. Even states that effectively had no fair trial and due process guarantees, as was the case in the Stalinist USSR, emphasized the legality of their approach so as to reclaim the monopoly on force, reaffirm their jurisdiction, and stress the superiority of their administration of justice to that of the former occupants (while also making pragmatic decisions on whom to spare with an eye to demands of manpower and expertise).25 Post-war trials offered stories about right and wrong decisions, about loyalty and treason, during occupation. When Vichy personnel appeared in the courts of post-war France their trials were not merely retributive but claimed political and moral authority for those who had opposed German rule and the collaborationist regime against others like Maréchal Pétain, who claimed they had acted in France’s best interest and who had declared the Free French deserters and the Résistance criminals.26 These were two starkly opposed narratives, and only one could survive in the Fourth Republic although, outside the limelight, many Vichy protagonists would easily reintegrate into the administrative quarters of successive Gaullist and socialist governments.27 This double standard would come back to haunt French politics in the 1980s and 1990s when a belated string of proceedings against former civil servants implicated in the murder of the French Jews raised doubts as to the Fourth and Fifth Republics’ politics of memory and their lopsided claims to the Résistance legacy. These investigations and trials drew heavily on historiographical expertise, and the massive public interest in cases such as Maurice Papon’s owed as much to their scandalous appeal—greatly intensified by the latter’s repressive tenure at the Paris Police Prefecture during the Algerian War of Independence—as it did to the cracks that now opened in official French policies of memory. What anyone had done during the war seemed far less unequivocal than it had

24 Research on this aspect is more limited than in the European case and very little has been translated so far; for the Korean case cf Yuma Totani, ‘Kimu wa Naze Sabakaretanoka: Chōsenjin BC-kyū Senpan no Kiseki (Why Was Kim Tried?: The Trajectory of Korean Class BC War Criminals), by Aiko Utsumi’ (2010) 13(1) Social Science Japan Journal 174–6; Takemae, Inside GHQ (n 23) 253. 25 Exeler, ‘What did you do’ (n 18) 824–6; Exeler, ‘Ambivalent State’ (n 22) 608ff, 618. 26 Julian Jackson, France: The Dark Years, 1940–1944 (OUP 2001) 127ff, 570–99 (hereafter Jackson, France); Ian Ousby, Occupation: The Ordeal of France 1940–1944 (Pimlico 1999) 41. 27 Marc Olivier Baruch, ‘Changing Things so Everything Stays the Same: The Impossible “Epuration” of French Society, 1945–2000’ in Wouters (ed), Transitional Justice (n 21) 63–93.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

526 Kim Christian Priemel half a century ago, and the answers that emerged from the courtroom in their turn triggered a new wave of historical research.28

III. Judicial Historiography: The Nuremberg Paradigm Despite their sheer numbers and the immediate relevance these thousands of trials had to the people involved, they were overshadowed by spectacular proceedings such as those against concentration camp personnel at Lüneburg and Dachau in the first year of Allied occupation, the controversial Manila trial of General Yamashita Tomoyuki, or domestically contentious cases such as the contentious 1953 Oradour Trial in Bordeaux.29 All these were dwarfed, however, by the flagship proceedings that the Allies held at Nuremberg and Tokyo from 1945 to 1949: it was here that master narratives about the recent past were crafted, shaped into the format of judicial trials, and phrased in a legal vernacular. They were widely reported—though Nuremberg disproportionately more than Tokyo—to a global audience at the time and would greatly influence historiographies of the Second World War for decades to come.30 Wartime ideas to try the Axis powers’ leaders in one comprehensive trial had not been followed up on, and instead two distinct trial series were implemented in Germany and Japan, reflecting their status as the Allies’ main adversaries, the principal aggressors, and their responsibility for the most outrageous crimes of the past decade that ranged from individual events such as the Bataan death march to wholesale genocide (a term then newly introduced by Raphael Lemkin). It was the European theatre and the fate of Nazi Germany, however, that occupied the minds of Allied politicians and the NorthAtlantic public most strongly. The London Charter signed by the four major powers, France, the Soviet Union, the United Kingdom, and the United States in August 1945, 28 Jackson, France (n 26) 615–30. It was against this backdrop that Rousso formulated his reservations as to historians’ active contribution to criminal trials; Rousso, Haunting Past (n 1) 48–83. cf Annette Wieviorka, ‘France and Trials for Crimes against Humanity’ in Austin Sarat, Lawrence Douglas, and Martha Umphrey (eds), Lives in the Law (University of Michigan Press 2002) 215–31. 29 Tomaz Jardim, The Mauthausen Trial: American Military Justice in Germany (Harvard UP 2012); John Cramer, Belsen Trial 1945: Der Lüneburger Prozess gegen Wachpersonal der Konzentrationslager Auschwitz und Bergen-Belsen (Wallstein 2011); Allan A. Ryan, Yamashita’s Ghost: War Crimes, MacArthur’s Justice, and Command Accountability (University of Kansas Press 2014); Totani, Justice in Asia (n 23) 21–40; Frédéric Mégret, ‘The Bordeaux Trial: Prosecuting the Oradour-sur-Glane Massacre’ in Kevin J. Heller and Gerry Simpson (eds), The Hidden Histories of War Crimes Trials (OUP 2013) 137–59. 30 The number of books and articles on both trial series is legion. For a starting point see Totani, Justice in Asia (n 23) 5–8; Kevin Jon Heller and Catherine E. Gascoigne, ‘Nuremberg Trials’, Oxford Bibliographies (last modified 26 October 2015) accessed 30 Mai 2018; Kim Christian Priemel, ‘Consigning Justice to History: Transitional Trials after the Second World War’ (2013) 56(2) Historical Journal 553–81.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Historical Reasoning and Judicial Historiography 527 established an International Military Tribunal (IMT) that ventured to meet a set of different expectations: to mete out due punishment to those held responsible for war and other crimes, namely the remainder of the Third Reich’s topmost leadership; to leave no doubt among the Germans of both their complete defeat and the deceased regime’s criminality; to help their re-education through the evidence presented during the upcoming trial(s); to codify existing and establish new international criminal law; and to explain why and how Germany, whose contribution to the imagined community of ‘Western civilization’ was denied by no-one, had violated the most basic codes of this very community.31 It was on the latter note that historical narratives entered the courtroom most explicitly. The Allied lawyers’ understanding of how National Socialism had come about, why it had been able to seize power, and why hundreds of thousands of Germans had contributed to or supported discrimination and persecution, aggressive war and occupation, atrocities and mass murder, were shaped by a broad, highly intense, and, through its multi-media dissemination, pervasive discourse on Germany’s historical divergence.32 Building on increasingly apprehensive nineteenth century depictions of Germany as a Prussian-dominated, authoritarian, and militaristic threat to peace and stability in Europe, a special path interpretation of German history had taken shape during the First World War, partly in the service of Entente propaganda but mostly as a serious, if lopsided attempt to account for what was increasingly seen as an outlook on society and culture that was utterly distinct from that of the ‘West’.33 Such interpret ations expectably grew in popularity after Hitler’s assumption of power in 1933 and came to dominate all kinds of reflections on the Third Reich. Whether its politics or its economics, the Wehrmacht’s role, or the mindset of German scientists and educators: the notion of a fateful divergence from an ideal path of political and economic liberalization, democratization, societal pluralization, and peaceful international relations was a staple in most enemy analyses. If a rift had long existed between West and East, Germany was now found to be firmly on the wrong side of that line.34 That key members of the prosecution, which was in charge of the trial design and able to direct the proceedings’ narrative trajectory to a large extent, though moderated by the bench and contradicted by the defence, were not only aware of this interpretation but sought to adapt it for the IMT’s purposes is evidenced by their own research. Reading up on German history and Nazi rule, prosecutors relied to a large extent on the very same authorities—historians, political scientists, economists, jurists, and the odd anthropologist—who had authored influential, special-path inspired analyses of 31 For the conceptualization of the IMT see Bradley Smith, The Road To Nuremberg (Basic Books 1981); Kirsten Sellars, ‘Crimes against Peace’ and International Law (CUP 2013) 48–123 (hereafter Sellars, Crimes against Peace). 32 For the broader argument see Kim Christian Priemel, The Betrayal: The Nuremberg Trial and German Divergence (OUP 2016) (hereafter Priemel, Betrayal). 33 Marcus M. Payk, Frieden durch Recht? Der Aufstieg des modernen Völkerrechts und der Friedensschluss nach dem Ersten Weltkrieg (De Gruyter Oldenbourg 2018). 34 Priemel, Betrayal (n 32) 24–56.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

528 Kim Christian Priemel Germany. Their memoranda, briefs, and personal notes show that they read these writings, digested their arguments, loaned articles and books to their colleagues, and ordered more copies for the Nuremberg court library. In fact, several of the very authors served as academic experts on the prosecution staff in Nuremberg, bringing along their books and thoughts. Historiographical arguments were instrumental in shaping the trial and its argumentative premises before it had even begun.35 But not all prosecutors subscribed to such broad historical generalizations; some were interested only in the strictly criminal subject matter while others found the reasoning slightly too convenient; still others entertained historical ambitions of a different kind, notably of the de lege ferenda variety: they were hoping to advance international criminal law and thus ‘make history’ in their own right. Positions also differed substantially both among and within the four Allied delegations. The British party, overall, was more concerned with doctrinal precision, procedural pragmatism, fundamental fairness, and the eventual conviction of the 24 indicted men (of whom two escaped trial through suicide and illness). Still, individual members did subscribe to the special path interpretation. The American team’s top echelons were heavily invested in outlawing aggressive war; yet again, a large faction within what was the biggest national contingent at Nuremberg appeared greatly influenced by notions of German divergence. And while some of the French rank-and-file lawyers showed little interest in such arguments, the French chief prosecutor and his right-hand men subscribed wholeheartedly to the special-path master narrative; his opening statement would render it in exemplary form. The Soviets, finally, had a different take on the trial’s historiographical agenda: given that identification with the ‘West’ was hardly an option—neither from their own perspective nor from that of their Allies where misgivings as to Soviet participation in the trial, the totalitarian record of Stalinism, and the invasion of the Baltic States and Eastern Poland were widespread—Moscow’s delegates chose to focus on ‘fascism’ as the Allies’ common antagonist. Yet, although efforts to obscure the Nazi-Soviet pact of 1939 and to blame the Katyn massacre on the German occupants were more pressing matters to the Soviet lawyers, they, too, made a point of foregrounding the historical trajectory of Prusso-German militarism that was held responsible for five wars in 70 years.36 Reflecting the different degrees to which prosecutors were invested in the historicization of Nazi criminality, the narrative’s force was uneven in court: prominent when it came to depicting the old elites in state offices, the military, and business who had lent support to the Nazi regime, sweeping historical explanations were less in demand the more the trial looked into details and particulars. Predictably, violent dissent came from the German benches, notably from the defence counsel whose primary mission was to save what was left of German reputation and honour. At times, their clients’ fate 35 Ibid, 72ff, 86ff, 95–8. 36 Ibid 106–25. For the peculiar Soviet strategies and tactics see Francine Hirsch, ‘The Soviets at Nuremberg: International Law, Propaganda, and the Making of the Postwar Order’ (2008) 113 American Historical Review 701–30; Irina Schulmeister-André, Internationale Strafgerichtsbarkeit unter sowjetischem Einfluss: Der Beitrag der UdSSR zum Nürnberger Hauptkriegsverbrecherprozess (Duncker & Humblot 2016) 339–41, 347ff, 434–56.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Historical Reasoning and Judicial Historiography 529 appeared to be afterthoughts to the defence of national pride, and accordingly the defence counsel eagerly seized each and every opportunity to attack what they con sidered historical falsehoods. Germany, their Hitler-centric explanations claimed, had never abandoned Western civilization and National Socialism had been a mere aberration from the German path, a freak accident in an otherwise proud national history.37 In the end, the last word was left to the bench, but the judges refused to give an authoritative historical reading. Instead they chose to focus on the trial’s criminal core and the already daunting legal problems they had to sort out in the face of unprecedented counts such as crimes against humanity and crimes against peace. To the chagrin of at least one of the eight judges,38 the Tribunal had little use for historical storytelling, although what private notes have survived indicate that they may have shared the prosecutors’ views more often than not. Still, the decision to leave blank pages where history might have appeared proved to be to the IMT’s benefit as the judgment was widely—indeed even by many defence attorneys39—hailed as both sober and fair. Accusations of historical prejudice were hard to substantiate when reading the text of the Tribunal’s opinion.40 If the IMT with its great diversity of backgrounds, ambitions, and objectives proved— historiographically speaking—to be a mixed bag, the follow-up proceedings were a considerably more coherent project. After the failure of the four powers to agree on a second international trial, the US prosecution went ahead with its own series of Nuremberg Military Tribunals (NMT), colloquially known as the Subsequent Proceedings, in the course of which 185 German and Austrian defendants were tried. A set of 12 separate trials, each devoted to a specific field of Nazi criminality, explored systematically how various institutions of modern German society had embarked on a fateful course away from Western standards.41 Targeting major industrial corporations, the NMT prosecutors set out to show how an illiberal variety of capitalism had emerged in the heavily cartelized and corporatist German economy, while proceedings against academics and scientists investigated the anti-humanist degradation of a science that had been serving power rather than truth. Military officers were put on trial to showcase how the German—and especially the Prussian—military tradition had been bent on aggression in its goals, and on wilful violation of the laws of war in its means, deliberately flouting the standards established at The Hague and Geneva.42 As to the SS officers on trial, no 37 Priemel, Betrayal (n 32) 125–41. For a detailed, individualized analysis of defence strategies see Hubert Seliger, Politische Anwälte? Die Verteidiger der Nürnberger Prozesse (Nomos 2016) (hereafter Seliger, Politische Anwälte). 38 H. Montgomery Hyde, Norman Birkett: The Life of Lord Birkett of Ulverston (The Reprint Society 1964) 504, 515. 39 Seliger, Politische Anwälte (n 37) 276ff, 296, 532ff. 40 Bradley F. Smith, Reaching Judgment at Nuremberg (Andre Deutsch 1977); Priemel, Betrayal (n 32) 142–6. 41 For the trials’ conceptualization as well as their outcomes see Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (OUP 2011). 42 Two companion trials to the NMT, held under French and British auspices respectively, also investigated the German business and military elites; see Priemel, Betrayal (n 32) 157, 213ff, 315–20, 328ff, 343.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

530 Kim Christian Priemel particular argument for their essential otherness seemed to be required: the wholesale identification of the SS with the Third Reich’s starkest crimes, particularly the Holocaust and concentration camp atrocities, but also the organization’s self-stylization as a ‘Black Order’ and ‘Death Head squad’ singled it out clearly and would account for the highest number of guilty verdicts in the NMT series.43 For all their systematic planning and coherent pattern, the requirements of proof as well as courtroom dynamics meant that the NMT nonetheless developed into something less consistent than envisioned. Some prosecutors were more intent on seeing as many defendants convicted as possible, sacrificing historical narratives along the way, while the defence lawyers were combating the special-path paradigm’s veracity as forcefully as ever, offering alternative stories of the perils of modernity and mass society, or comparing German felonies to Allied misdeeds.44 The Tribunals, too, were far from unified in their approach. While the majority of judges insisted that they were only dealing with criminal matters sensu stricto, repeatedly arguments articulated in majority and dissenting opinions betrayed their stance on the contested narratives. Given the judges’ frequently conservative proclivities and the mounting pressures of the nascent Cold War, this implied a greater distance to the NMT master narrative than the prosecution had assumed.45 The NMT trial design therefore proved to be a qualified success at best. While historians might have appreciated a complex pattern of 12 trials that added up to a larger picture which was more than the sum of its parts, the Tribunals looked only at their respective components and tried each case on its own merits, as required under the rule of law. And most of the judges also refused to accept—although there were exceptions—that historical explanations could bridge gaps in the criminal evidence. On the whole, defendants were found guilty of unequivocally attributable actions, notably atrocity crimes, and not of historical responsibility. From the vantage point of the prosecution, the tendency to combine historical and legal reasoning in order to boost the trials’ didactic effect proved a miscalculation: the prosecutors’ particularly strong historiographical ambition overtaxed criminal proceedings whose strict adherence to legality principles was the very basis of their didactic success.46

43 Jan Erik Schulte, ‘The SS as the “Alibi of a Nation”? Narrative Continuities from the Nuremberg Trials to the 1960s’ in Kim Christian Priemel and Alexa Stiller (eds), Reassessing the Nuremberg Military Tribunals: Transitional Justice, Trial Narratives, and Historiography (Berghahn 2012) 134–60 (hereafter Priemel and Stiller (eds), Reassessing the Nuremberg Military Tribunals). 44 See Seliger, Politische Anwälte (n 37); Priemel, Betrayal (n 32); several contributions to Wilbourn E. Benton and Georg Grimm (eds), Nuremberg: German Views of the War Trials (Southern Methodist UP 1955). 45 Priemel, Betrayal (n 32) 232–39, 259ff, 290ff, 306ff, 339–47. 46 Lawrence Douglas, ‘From IMT to NMT: The Emergence of a Jurisprudence of Atrocity’ in Priemel and Stiller (eds), Reassessing the Nuremberg Military Tribunals (n 43) 276–95. cf Priemel, Betrayal (n 32) 406–9.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Historical Reasoning and Judicial Historiography 531 By comparison, the three international trials of Japanese defendants47 offered less elaborate historical accounts for various reasons. First, both interest in and expertise on Japanese society and history was much more limited than in the German case, not least of all due to the absence of any substantial émigré community abroad (while the existing Japanese-American population was treated by the US authorities as enemy aliens, with blatantly racist overtones).48 Second and perhaps more important, the need to prove a point was far less urgent: whereas the crimes of Nazi Germany challenged European claims to civilizational superiority, evidence of Japanese offences, as outrageous as they were, did no such thing. Although the island empire had been admitted to the all-European concert of powers and thus to international law’s illustrious club of ‘civilized nations’ at the end of the nineteenth century, there were few who would have claimed that this had made Japan a Western nation.49 To most contemporaries, its oriental status appeared self-explanatory on all levels: historical, cultural, and racial. Moreover, what similarity there had been between Japan and Europe was allegedly marked by the emulation of the German Reich, i.e., the wrong variety of Europeans. Fittingly, Japanese appeared to observers on both sides of the Atlantic as the ‘Prussians of the East’.50 Divergence was thus not a major theme in the proceedings of the International Military Tribunal for the Far East (IMTFE). The IMT’s sibling, though considerably more international in terms of the nations represented both on the bench and among the prosecutors, took its cues from the first Nuremberg trial by indicting the initially 28 defendants—two of which would die while another would be dismissed on account of his failing mental health—for the same four crimes that the IMT prosecution had named: crimes against peace, war crimes, crimes against humanity, and conspiracy. And as in Nuremberg, in fact even more so, the indictment left little doubt as to what the Allies considered the gravest crime: 36 out of a staggering 55 counts outlined in the document dealt with aggressive war, a decision that reflected the intention to follow up on the Nuremberg precedent with another case that would vindicate the introduction of crimes against peace while also expressing fundamental agreement as to what had been

47 The two military tribunals that tried Lt. Gen. Tamura Hiroshi and Admiral Toyoda Soemu, former high-ranking army and navy officers, respectively, were international in their composition, however, in terms of their scope and their didactic ambition considerably less elaborate than the NMT proceedings at Nuremberg, see. Totani, Justice in Asia (n 23) 2–8, 63–76, 156–78. 48 These had not been exiled from Japan and showed a very different social composition from that of European émigrés; see Allan W. Austin, ‘Eastward Pioneers: Japanese American Resettlement during World War II and the Contested Meaning of Exile and Incarceration’ (2007) 26(2) Journal of American Ethnic History 58–84; Greg Robinson, A Tragedy of Democracy: Japanese Confinement in North America (Columbia UP 2009) 10–52. 49 See Gerrit W. Gong, The Standard of ‘Civilization’ in International Society (Clarendon Press 1984) 5–15, 24–53, 100–6; Urs Matthias Zachmann, ‘Does Europe Include Japan? European Normativity in Japanese Attitudes towards International Law, 1854–945’ (2014) 22 Rechtsgeschichte/Legal History 228–43. 50 Sarah Panzer, ‘The Prussians of the East: Samurai, Bushido, and Japanese Honor in the German Imagination, 1905-1945’ (Spring 2016) 58 Bulletin of the German Historical Institute 48–69; Joshua Rosett, ‘The Prussians of the Eastern World’ (1919) 66 The Dial 103–10.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

532 Kim Christian Priemel the Empire’s original sin. In the absence of a Holocaust-dimension crime51 this focus was plausible but it also played to American and European audiences that had suffered occupation only of their colonies, not their homelands.52 The IMTFE’s time horizon mirrored the focus on aggressive war and the alleged conspiracy in planning and preparing aggression by tracing Japanese expansion back to the late 1920s, with the bulk of the evidence concerning the 15 years from 1931 to 1945, with the so-called Mukden Incident as an obvious starting point. In fact, terminology itself was made an argument when Tokyo’s insistence on ‘incidents’ rather than wars was portrayed as deliberate deception and a means of circumventing obligations under the 1928 Kellogg-Briand pact that had rendered wars of aggression illegal among the sig natories.53 Deception also linked aggressive war and conspiracy. Together these two crimes became the backbone of the historical argument that developed in court for the better part of the two years that would pass between the trial’s opening and the completion of final arguments. The prosecution’s emphasis on militarism and aggression was countered by a defence that replied in kind and delivered ‘a particularly hardline rebuttal’, notably when it came to refuting the idea that earlier Japanese plans for aggression had merged into a wider Axis conspiracy to wage war on a global scale. Neither in political nor in military terms, both defendants and their counsel claimed, had any significant cooperation between the Axis partners occurred. In other words, there had been no grand Axis conspiracy.54 The IMTFE judges concurred or, rather, they did not find sufficient evidence to back up the prosecution’s narrative of a global conspiracy and therefore dropped the pertinent count when they delivered their judgment in November 1948. This did not mean, however, that the main narrative of a genuinely Japanese conspiracy for hegemony and military expansion in East Asia also failed. On the contrary, all remaining 23 defendants were found guilty of this accusation under (the highly symbolic) count 1 of the indictment,

51 Although the Nanking massacre of 1937 stood out, it did not have a pervasive presence in court similar to that of the murder of the European Jews at Nuremberg. Still, the Tribunal’s quasi-official interpretation of the massacre would become a major bone of contention in post-war Japanese memory pol it ics and historiography; see James Burnham Sedgwick, ‘Memory on Trial: Constructing and Contesting the “Rape of Nanking” at the International Military Tribunal for the Far East, 1946–1948’ (2009) 43(5) Modern Asian Studies 1229–54. 52 Cf Takemae, Inside GHQ (n 23) 169, 244ff; Totani, Justice in Asia (n 23) 2ff. See in detail Yuma Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II (Harvard University Asia Center 2008) 10–12, 18ff, 26–28, 82–4 (hereafter Totani, Tokyo War Crimes Trial). 53 Takemae, Inside GHQ (n 23) 247; Totani, Tokyo War Crimes Trial (n 52) 64–69, 88–97. For detailed discussions see Sellars, Crimes against Peace (n 31) 180, 185–209; Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (OUP 2008) 115–37 (hereafter, Boister and Cryer, Tokyo). 54 Daniel Hedinger, ‘A Global Conspiracy? The Berlin-Tokyo-Rome Axis on Trial and its Impact on the Historiography of the Second World War’ (2016) 14(4) Journal of Modern European History 500, 510ff (hereafter Hedinger, ‘Global Conspiracy’).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Historical Reasoning and Judicial Historiography 533 incidentally a finding far more sweeping than that applied at Nuremberg where only 12 out of 22 accused had been convicted under the equivalent counts.55 The controversies raised in the Tokyo courtroom would resonate in the scholarly debates to come. While the dismissal of the global-Axis-conspiracy narrative helped pave the way for ‘the regionalization and nationalization of the history of the Second World War’,56 the question whether or not there had been a cohesive, 15-year era of Japanese aggression was hotly debated among historians and lawyers, political scientists and politicians (many of whom relied heavily on the IMTFE records, despite their late publication), and was echoed in the different labels pinned on the period—Pacific War, Asian-Pacific War, Far East Theatre of World War II, etc.57 By comparison, the trial’s subtext of competing imperialisms and, indeed, of European racism—graphically expressed in the rigorous segregation in and outside the courtroom that sent an ‘unmistakable message to the conquered’ as well as to Europe’s colonial subjects—was submerged in the reconfigured frontlines of the Cold War. Only when Richard Minear published his landmark, if one-sided, Victor’s Justice in 1971, a study of the IMTFE through the lens of the Vietnam War, did those concerns re-enter the debate both west and east of Japan.58

IV. The Twisted Road to The Hague Many observers, among them notable jurists like Philippe Sands and Theodor Meron, have lauded the 1998 adoption of the Statute for the International Criminal Court (ICC) in Rome as the ‘the culmination of a process begun at Nuremberg’. In hindsight there appeared to have been a 50-year development that had begun in the ruins of the Second World War and, helped by the ascent of human rights discourse as well as by the crumbling of dictatorships on a global scale in the 1980s and 1990s, had led first to the establishment of international ad hoc tribunals to deal with civil war and genocide in former Yugoslavia and Rwanda, and eventually to ‘the creation of a permanent international tribunal which would have jurisdiction over the most serious international

55 Ibid 511ff. However, in contrast to the IMT the Tokyo bench was far more divided, with three sep arate opinions dissenting from the Tribunal’s majority. cf Boister and Cryer, Tokyo (n 53) 38–40, 98ff, 128–34, 210–14, 271ff, 303; Totani, Tokyo War Crimes Trial (n 52) 222–9. 56 Hedinger, ‘Global Conspiracy’ (n 54) 501. 57 See ibid 513–19; Madoka Futamura, War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the Nuremberg Legacy (Routledge 2008); Urs Matthias Zachmann, ‘Nanking, Hiroshima, Seoul: (Post-)Transitional Justice and the Wartime Memory’ (2016) 14(4) Journal of Modern European History 586–4. 58 Takemae, Inside GHQ (n 23) 249ff; Boister and Cryer, Tokyo (n 53) 242, 291, 326. For the debate sparked by Minear’s book see Totani, Tokyo War Crimes Trial (n 52) 235–44.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

534 Kim Christian Priemel crimes’.59 There is much to be said for such a perspective and in the very long run the half-century gap between the Tribunals at Nuremberg and Tokyo on the one hand and their latter-day epigones in Arusha and The Hague on the other may appear as little more than the blink of an eye.60 For students of contemporary history, however, the passing of several decades between those momentous events requires explanation and suggests sharper distinctions between process and progress. If the oft-invoked road from Nuremberg to The Hague exists it has certainly not been a highway but an uneven, rocky path or, to borrow a phrase from Holocaust historian Karl Schleunes, a ‘twisted road’ (and ‘The Hague’ may be a metonym for the Yugoslavia tribunal rather than the ICC, a very different beast). Indeed, there are even those who consider the resurgence of institutionalized international criminal law not the logical end of but a mere interlude in post-1945 history: a brief period in which transitional justice blossomed, only to fade away again with the terrorist attacks of 9/11 and the following wars in violation of United Nations law in general and the stipulations of the Rome Statute in particular.61 Indeed, Schabas’s observation that after 1949 Nuremberg appeared ‘an interesting but nevertheless isolated occurrence’ is not too wide off the mark.62 The legalistic momentum of the post-war tribunals—both international and inter-allied—was lost already before the last sentences were handed out. The Western Allies were eager to wind up their judicial programmes which were costly, increasingly unpopular in their own public but even more so in the occupied countries, and inopportune in the face of Cold War conflict lines.63 With the adoption of the Genocide Convention in 1948 and the revisions of the Geneva Conventions 1946–49, the high-water mark of international criminal legalization was passed, and the efforts of several Nuremberg and Tokyo veterans to push for an international criminal court were frustrated by the apparent lack of support from all sides—west, east, and what was to become the non-aligned countries. The existence of precedents was no help in itself for the punishable classes of crimes as defined in the London and Tokyo Charters ‘were not enumerated as in a criminal code, but simply as a specification of the jurisdictional authority of the relevant court . . . and did not purport to have a general reach’.64 Meanwhile the ascent of so-called realist interpretations of international relations, which had little regard for international law other than as an instrument or expression of national interest and power politics—formulated by theorists and practitioners who purported to analyze the international politics that they 59 Philippe Sands, Ben Barkow, and Katharine Klinger, ‘Preface’ in Philippe Sands (ed), From Nuremberg to The Hague: The Future of International Criminal Justice (CUP 2003) ix–xiii, ix. Cf Theodor Meron, War Crimes Law Comes of Age: Essays (OUP 1998) 198–203. 60 See Samuel Moyn, ‘From Aggression to Atrocity: Rethinking the History of International Criminal Law’ in this volume. 61 Pierre Hazan, Juger la guerre, juger l’Histoire: Du bon usage des commissions vérité et de la justice internationale (Presses Universitaires de la France 2007) (‘[l]e printemps de la justice transitionnelle n’aura duré que douze ans’ 227). 62 Schabas, Unimaginable Atrocities (n 11) 2. 63 See the chapters in Frei (ed), Transnationale Vergangenheitspolitik (n 22). 64 Antonio Cassese and others, Cassese’s International Criminal Law (3rd edn, OUP 2013) 5 (hereafter Cassese and others, Cassese’s International Law).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Historical Reasoning and Judicial Historiography 535 helped bring about65—discredited the intellectual appeal of legal internationalism. After years of ‘tremendous’ strides in advancing a new system of international (criminal) law, the following decades would offer but ‘bleak prospects’.66 The cul-de-sac of failed institutionalization also implied the ebbing away of judicial historiography of the Nuremberg and Tokyo variant. While there was no dearth of crim inal proceedings dealing with Nazi-era crimes, few, if any of these set out to offer broader historical narratives. Even the ostentatiously didactic Frankfurt Auschwitz trial in 1961–63 found its historical limitations in the Federal Republic’s criminal code, which insisted on pertinence and relevance, i.e., it required lawyers to focus on the crime (and the accused) at hand. The trial’s objective therefore was not to explain why Germany, of all nations, had tried to exterminate European Jewry but to confront West German society with the immensity of the crime and turn the lights on the perpetrators who had all too easily been reintegrated. Still, the trial’s architects—helped by a flock of historians who contributed extensive, widely-read, and historiographically hugely influential reports on the policies and institutions of destruction—managed to steer public discourse away from Hitler-centric accounts and helped to raise poignant questions about broader societal responsibilities.67 Likewise, the 1961 Jerusalem trial of Adolf Eichmann was very much concerned with placing victims centre stage so as to complement the perpetratorfocused depictions of the Holocaust that had resulted from (often selective) readings of the Nuremberg record.68 Historiographical adjudication would return to the international scene only with the advent of the ad hoc tribunals, which were set up in various places before and after the millennium to deal with such wide-ranging crimes as genocide, crimes against humanity, and war crimes.69 The International Tribunals for Yugoslavia (ICTY, 1993) and Rwanda (ICTR, 1994) respectively, but also the Extraordinary Chambers in the Courts of Cambodia (1997) and the Special Panels of the Dili District Court (commonly known as the SPSC, 2000), both hybrid institutions composed of local and international judges, as well as the Special Court for Sierra Leone (2002), were to administer justice but also to make up for the international community’s failure to prevent the crimes in question in the first place. If the realists had derided international law’s impotence in the face of 65 Cf Priemel, Betrayal (n 32) 369–379, with further references. 66 Mark Lewis, The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919–1950 (OUP 2014) 181–273, quote at 274. 67 See the excellent studies by Devin Pendas, The Frankfurt Auschwitz Trial, 1963–1965: Genocide, History, and the Limits of the Law (CUP 2006); Rebecca Wittmann, Beyond Justice: The Auschwitz Trial (Harvard UP 2005). 68 See Donald Bloxham, Genocide on Trial: War Criminals and the Formation of Holocaust, History and Memory (OUP 2001) 2, 132, 142; Annette Wieviorka, L’ère du témoin (Plon 1998); Rosanne Kennedy, ‘Memory, History and the Law: Testimony and Collective Memory in Holocaust and Stolen Generations Trials’ in Joan Tumblety (ed), Memory and History: Understanding Memory as Source and Subject (Routledge 2013) 50–67. 69 For an insightful analysis of how the ‘tribunals’ of the 1990s mirrored (but also differed from) the epistemological stakes of their 1940s’ predecessors, notably in their fight over truthful representations of history, see Cornelia Vismann, Medien der Rechtsprechung (Fischer 2011) 160ff, 335–57.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

536 Kim Christian Priemel national interest, the argument was now turned on its head: courts of law were to make up for the ‘impotence of diplomacy and politics’ that had stood by and watched.70 According to legal anthropologist Richard Ashby Wilson, the trials held before these tribunals have developed, though unevenly, into ‘prime venues at which a postcolonial version of history is investigated, discussed, argued over, and eventually stamped with the imprimatur of a legal judgment’.71 They have occasionally suffered, however, from an overstretching similar to that which marked (and marred) some of their Second World War era predecessors. Notably in those trials that have been dealing with former heads of state, as opposed to the rank-and-file perpetrators that have accounted for the bulk of prosecutions, historical narratives have informed and frequently shaped prosecutorial but also defence strategies. The trial of Slobodan Milošević, though cut short by the defendant’s death in 2006, was a case in point. By merging the indictments for the Bosnian, Croatian, and Kosovo crime scenes into one document, the prosecution adopted a ‘grand, sweeping metanarrative of history that led inexorably to the alleged crimes of the accused’—a long-term Serbian nationalist project, a coherent plan for aggression, and consistent policies of ethnic reordering that amounted to genocidal intent. This ‘Greater Serbia’ narrative allowed the ICTY prosecutors to assign overall responsibility for the civil war’s escalation to Milošević and his aides but proved unable to account for inconsistencies and the complexities of the Yugoslav Republic’s dissolution.72 Yet, as in Nuremberg and Tokyo, the defence—and this meant mostly Milošević himself (and, in subsequent proceedings, Vojislav Šešelj and Radovan Karadžić)—replied in kind and offered an even broader historical account of how Serbia had been victimized by Europe’s imperial powers since early modern times, with the NATO attacks as well as the ICTY proceedings concluding an anti-Serbian tradition that had formerly been pursued by Austria-Hungary, the Ottoman Empire, and Nazi Germany.73 While both sides had done their reading, neither seemed to have appreciated one of the key lessons from Nuremberg and, to a lesser extent, Tokyo: that historical narratives reflected explicit ambitions to write history in the courtroom but also found their way into legal proceedings through apparently innocuous background information; and that there were limits to how much historical storytelling criminal trials could accommodate.74 It would take a decade of fierce debate over how to frame the story of the Yugoslav wars, until the prosecution at The Hague turned from grand narratives to less sweeping micro-histories 70 Cassese and others, Cassese’s International Law (n 64) 260. 71 Richard Ashby Wilson, Writing History in International Criminal Trials (CUP 2011) viii (hereafter Wilson, Writing History). 72 See ibid 1ff, 17, 104–08, quote at 98. See also the detailed account by Gideon Boas, The Milošević Trial: Lessons for the Conduct of Complex International Criminal Proceedings (CUP 2007). Boas’s forensic bias as well as the quasi-conspiracy narrative of the prosecution in Milošević has been criticised by Frédéric Mégret, ‘Joinder, Fairness, and the Goals of International Criminal Justice’ in Timothy William Waters (ed), The Milošević Trial: An Autopsy (OUP 2013) 120–35 (hereafter Waters (ed), Milošević Trial). 73 See the contributions to Waters (ed), Milošević Trial (n 72); Robert J. Donia, Radovan Karadžić: Architect of the Bosnian Genocide (CUP 2015). 74 Cf Priemel, Betrayal (n 32) 415–18; with a different emphasis, Charles S. Maier, ‘A Surfeit of Memory? Reflections on History, Melancholy and Denial’ (1993) 5(2) History and Memory 136–52.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Historical Reasoning and Judicial Historiography 537 while the Tribunal began ‘adopting a decidedly more sceptical approach to expert testimony on historical matters’.75 By contrast, historiographical controversy at the ICTR remained fairly muted. Historical expertise at Arusha was primarily provided by human rights activist Alison Des Forges, whose comprehensive account of the 1994 civil war and genocide (backed up by 11 appearances in the witness stand) informed much of the prosecution’s and eventually also the Tribunal’s understanding of the conflict at hand. Notably in the p ivotal Akayesu decision, Des Forges’s historical explanation of how distinct ethnicities had come into existence, conceived and catalyzed by German and Belgian colonial policies, was drawn upon in order to establish the ‘stable group’ formula and meet the criteria of the UN Genocide Convention. Effectively, history was called upon to preserve supposedly objective criteria for ethnic collectives rather than reconceptualize genocidal violence as a result of subjective perception of ethnicity and race.76 However, the very success of the prosecution narrative came at a price: with the defence largely refraining from fighting what appeared a lost cause, the judgment in Akayesu and subsequent cases tended to be ‘monophonic’ rather than reflecting the historical record’s ‘contrapuntal’ character, making the ICTR even more vulnerable to victor’s justice accusations.77 This tendency was further enhanced by the Tribunal’s inclination to rely on its own precedent and the unwillingness to add additional, p ossibly repetitive expert testimony to what appeared already sufficiently established as fact. As Gerhard Anders has suggested, such scepticism might also reflect a more general wariness among the judiciary in (international) criminal trials to historians’ and anthro pologists’ inclination to cast doubts on ‘the very foundations on which the project of international criminal justice is built: the universality of legal rules and the possibility of establishing facts in a cross-cultural context’.78

75 Wilson, Writing History (n 71) 119–21; quote: Richard Ashby Wilson, ‘Propaganda and History in International Criminal Trials’ (2016) 14 Journal of International Criminal Justice 519–41, 535. 76 See Wilson, Writing History (n 71) 171–90; Ornella Rovetta, ‘Le(s) juge(s) face aux récits des parties dans le procès Akayesu: Le Tribunal pénal international pour le Rwanda comme source d’histoire?’ in Julie Allard and others (eds), La vérité en procès: Les juges et la vérité politique (LGDJ 2014) 189–207, 204ff. 77 Wilson, Writing History (n 71) 189; quote: Nigel Eltringham, ‘ “We are not a Truth Commission”: Fragmented Narratives and the Historical Record at the International Criminal Tribunal for Rwanda’ (2009) 11(1) Journal of Genocide Research 55–79, 73. On the ICTR’s critics see Nigel Eltringham, ‘ “When We Walk Out, What Was It All About?”: Views on New Beginnings from within the International Criminal Tribunal for Rwanda’ (2014) 45(3) Development and Change 543–64, 545, 552–4. See, e.g., Luc Reydams, ‘The ICTR Ten Years On: Back to the Nuremberg Paradigm?’ (2005) 3 Journal of International Criminal Justice 977–88. 78 Gerhard Anders, ‘Contesting Expertise: Anthropologists at the Special Court for Sierra Leone’ (2014) 20(3) Journal of the Royal Anthropological Institute 426–44, 441. Though not entirely opposed, Anders’s conclusions differ from those drawn in Nigel Eltringham, ‘ “Illuminating the broader context”: anthropological and historical knowledge at the International Criminal Tribunal for Rwanda’ (2013) 19(2) Journal of the Royal Anthropological Institute 338–55 (Eltringham argues that ‘concentrating on a supposed epistemological confrontation hides a more dynamic relationship between legal practice and historical and anthropological knowledge’ in the context of international trials at 340).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

538 Kim Christian Priemel Meanwhile, historiography has also suffered from the lack of polyphony in court. First civil war and genocide, then their judicial treatment at Arusha triggered massive interest in the previously rather marginalized field of Rwandan history. But the wave of new historical narratives also perpetuated myths and popularized under-reflected interpretaments—such as those of the ‘omnipotence of colonial power’, corporate ethnicity, and the ‘stop date’ of 1994—which reflected the ICTR mandate and its quasi officially-stamped take on Rwandan history rather than examining, challenging, and amending it.79 After all, the ‘battle over the first paragraph’,80 i.e., the framing of the case’s master narrative, can be won in court while the war for historical truth (if ever decided) may still be lost in the jungle of academic libraries.

V. Conclusion: The Interdisciplinary Pitfalls of Transitional Trials All criminal trials are didactic, but they are not uniformly historiographical in character or ambition. This is what sets the distinct type of the transitional trial, i.e., judicial proceedings that occur in the context of and contribute to transitional justice policies, manifestly apart from the larger category. Transitional trials set out to give meaning to previous conflicts, losses, and suffering, to contribute ‘to the construction of identities and narratives’,81 and to accomplish all this by drawing on historical reasoning. This may reflect an agreement of both transitional justice and a historiography inclined towards presentism with modernist notions of time that stress ‘rupture with regard to the past, suspension of the normal course of affairs, including legal affairs’.82 In such contexts historical arguments matter greatly to lawyers; mental maps and theoretical models serve as guidelines and heuristic devices, historical expertise is leaned upon in order to reduce complexity and claim interpretative authority. To historians, the materials as well as the explanations offered by such trials are highly attractive, and the pitfalls of interpretative circularity resulting from sources that have been compiled according to genuinely historiographical premises (and frequently by historians, too), is sometimes lost on the profession. One is tempted to see this as the revenge of structuralist ideas that narratives can be detached from their narrators because the ‘emplotment of a told story . . . reinforces the semantic autonomy of a text’,83 which have long sat uneasily with historians’ insistence on agency and authorship. Meanwhile the argument that historians can keep their distance from their lawyering colleagues by focusing on disharmony and the plurality of truths, by stressing the 79 David Newbury, ‘Canonical Conventions in Rwanda: Four Myths of Recent Historiography in Central Africa’ (2012) 39 History in Africa 41–76, 54–7. 80 Wilson, Writing History (n 71) 189. 81 Löytömäki, Law and the Politics of Memory (n 16) 121. 82 Ibid 125. 83 Ricoeur, Memory (n 10) 166.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Historical Reasoning and Judicial Historiography 539 incoherence and incongruity of different narratives,84 while apposite, only goes so far. It is not even strictly true when it comes to judges and judging: opinions can and often do articulate doubt, and separate concurring as well as dissenting opinions serve precisely the purpose of rendering the findings less absolute; appeals and revisions further complicate the picture. Judicial historiography is hardly ever unambiguous. More importantly, though, historians’ focus on the benches on the one hand, and the strict differentiation between legal ‘judging’ and historiographical ‘understanding’ on the other, tend to conflate judgement and trial. In fact, judicial proceedings are larger, and their proceedings offer precisely the disharmony and variety that is supposed to be the historian’s domain (again, the case of Martin Guerre may attest to this richness in storylines).85 The exchange of arguments and the conflict between competing narratives is what renders (criminal) trials attractive to historians and, in turn, makes trials amen able to historical reasoning. This is not to say that legal proceedings enjoy historiography’s latitude when it comes to disputes and revisions; the room for polyphony is checked by procedural restrictions on all protagonists of a trial. Neither do such proceedings, as the late Antonio Cassese formulated at the same time that the Rome Statute came into being, ‘build an impartial and objective record of events (which) has passed the rigorous test of judicial scrutiny (and) is also of crucial value as a historical account of events’.86 As another anthropologist once put it, ‘whatever it is that the law is after it is not the whole story’:87 Historiography is, although this does not mean that it ever hits the target. Jurists and historians, in particular those invested in transitional trials, may draw lessons from the records of past proceedings in order to appreciate their mutual attraction, understand the ways of interaction, and reflect on both its potential and its limitations. Despite the present decline of support for the ICC, the trajectory of international criminal justice renders it at least unlikely that their subject will disappear; the pertinent crimes certainly will not. And if law and history, jurisprudence and historiography, jurists and historians, are to keep each other company for some time they might just as well make the most of it.

84 Hedinger, ‘Global Conspiracy’ (n 54) 516. 85 Zemon Davis, Return (n 13) 67–90. 86 Antonio Cassese, ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) 9 EJIL 2–17, 9–10. 87 Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (Basic Books 2000) 173.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

chapter 23

Cr imi na l / En em y Lawrence Douglas*

I. Introduction The contact with atrocity—first in the form of Nazi crimes, and more recently in the shape of atrocities in the Balkans and genocide in Rwanda—has given birth to a branch of law essentially unknown before Nuremberg. In the decades since Nuremberg, inter national criminal law has developed a thick jurisprudence of atrocity—a complex body of law enabling the prosecution of persons accused of war crimes, crimes against humanity, and genocide. And yet turning the clock back to Nuremberg, we recall that crimes of atrocity did not constitute the gravamen of the Allies’ case against the 21 major Nazi war criminals on trial before the International Military Tribunal (IMT). Instead, the principal charge was that the accused had committed ‘crimes against peace’—had planned and waged aggressive war in violation of international law and treaties. This was understood as the Nazis’ principal international crime. Indeed, the Nazis’ crimes against humanity were justiciable before the IMT only if they could be proven to have a nexus to the Nazis’ crimes against peace or war crimes. The history of how aggression came to occupy the centre of the Allies’ case is complex, and made for sharp disagree ments among the Allied powers and between members of the American team, which pioneered the idea.1 Granted, there has been no want of discussions and critiques of Nuremberg’s concept of aggression; and yet most of these analyses have been narrowly doctrinal, focusing on whether the IMT defined ‘crimes against peace’ with adequate specificity and whether the incrimination violated nullum crimen, nulla poena sine lege,2 the most basic principle of legality. * James J Grosfeld Professor of Law, Jurisprudence & Social Thought, Amherst College. 1 Jonathan A Bush, ‘ “The Supreme Crime” and Its Origins: The Lost Legislative History of the Crime of Aggressive War’ (2002) 102(8) Columbia L Rev 2324. See also Moyn in this Volume. 2 See Robert K Woetzel, The Nuremberg Trials in International Law: with a postlude on the Eichmann case (Praeger 1962) 226–32. Also Carl Schmitt, Das internationalrechtliche Verbrechen des Angriffskrieges und der Grundsatz ‘Nullum crimen, nulla poena sine lege’ (Helmut Quaritsch ed, Duncker & Humblot 1994).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Criminal/Enemy 541 In revisiting the criminalization of aggression, I do not claim to offer a fresh look at this history or these debates. My aim, rather, is conceptual. In this chapter, I hope to demonstrate how the advent of an international law of aggression served to radically destabilize and upend the classic distinction between criminal and enemy that sub tended the post-Westphalian legal tradition. Oddly, the historical importance of the criminal/enemy dyad has been largely overlooked by legal scholars. Type the binaries ‘Public/private’, ‘speech/conduct’, ‘rights/entitlements’, ‘procedure/substance’ into any search engine, and one finds a wealth of academic work.3 A similar search devoted to the terms ‘criminal/enemy’, by contrast, generates no more than a handful of sources.4 And yet the criminal/enemy dyad has been no less central to the western legal tradition as these more familiar pairings. By attending to how rival traditions of legal theory have understood the dyad, we can best appreciate how the criminalization of aggression, first recognized at Nuremberg, marks one of the most distinctive developments in the history of international crim inal law. The importance of this development, I argue, is not to be measured in terms of its prosecutorial successes, of which there have been precious few. Rather, my goal here is to show that the criminalization of aggression has worked to deconstruct the traditional boundary between criminal and enemy, volatizing, in turn, the very dis tinction between war and policing. The criminalization of aggression marks, then, something distinct from simply a growth of international law; it signals a fundamen tal shift that has left the relations between jus ad bellum and jus in bello in a vexed and uncertain state.

II. Enemies but not Criminals To understand the traditional understanding of the dyad, Hobbes remains our best guide. In Leviathan, Hobbes famously asked his readers to imagine how people would behave in a state without government, a condition Hobbes called ‘the state of nature’.5 Because people are naturally self-protective, under conditions of perceived scarcity, or 3 See, e.g., Jeff Weintraub and Krishan Kumar, Public and Private in Thought and Practice: Perspectives on a Grand Dichotomy (U of Chicago Press 1997); Morton Horwitz, ‘The History of the Public/Private Distinction’ (1982) 130(6) U of Pennsylvania L Rev 1423–28; Ruth Gavison, ‘Feminism and the Public/ Private Distinction’ (1992) 45(1) Stanford L Rev 1; Duncan Kennedy, ‘Stages of the Decline of the Public/Private Distinction’ (1981–82) 130(6) U of Pennsylvania L Rev 1349 (1982); Frederick Schauer, ‘Internet Privacy and the Public-Privacy Distinction’ (1998) 38(4) Jurimetrics 555el. 4 See Paul Kahn, ‘Criminal and Enemy in the Political Imagination’ (2011) 99(1) Yale L Rev 48; Günther Jakobs, ‘On the Theory of Enemy Criminal’ accessed 26 June 2018 (original German version published as ‘Zur Theorie des Feindstrafrecht’ in Henning Rosenau and Sanyun Kim (eds), Straftheorie und Strafgerechtigkeit, vol 7 (Augsburger Studien zum Internationalen Recht, 2010) 167–82). 5 Thomas Hobbes, Leviathan (first published 1651, Richard Tuck ed, CUP 1996) (hereafter Hobbes, Leviathan).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

542 Lawrence Douglas in which people have imperfect information about their neighbours’ intentions, they will rightfully fear their fellow man, who likewise seeks to preserve his own life. This desire for self-protection, and not any inherent aggressiveness or greed, leads people to do more than simply adopt a defensive posture or retaliate to actual attacks. Because relying on retaliation as a strategy of defence may result in one’s annihilation, the self-protective agent suspicious of his neighbours will not wait to be attacked but instead will launch pre-emptive strikes, locally rational acts. And yet if all persons in a state of nature act in like fashion, launching pre-emptive strikes, they succeed only in creating the very evil they most fear—a horrifically irrational state of violence and peril. This is the condition that Hobbes simply calls ‘warre’. War is not, in Hobbes’s account, a state of constant bloodshed. Rather, in Hobbes’s striking formulation, as ‘the nature of Foule weather lyeth not in a showre or two of rain; but in the inclination thereto of many days together: So the nature of War, consisteth not in actual fighting; but in the known disposition thereto’.6 The state of nature is, then, most akin to civil war; active killing may be temporarily halted by a tenuous and unenforceable cease fire, but the possibility of a fresh spasm of violence always looms, rendering life full of want, deprivation, and misery. Life in this state of nature is ‘solitary, poor, nasty, brutish and short’—with the emphasis on the last of these qualities. Yet paradoxically the state of nature is without crime. There are no criminals in the state of nature, and there are no crimes. This is not to say that the state of nature is utterly lawless. Hobbes posits the existence of a natural law that controls in the state of nature. This law, however, places no restraints on people’s actions. To the contrary, the law of nature authorizes every man to do anything and everything in the interest of survival.7 Because the law of nature itself authorizes all manner of violence in the name of selfprotection, nothing is forbidden. But if there are no criminals in the state of nature, there are certainly plenty of enemies. Indeed, everyone is an enemy, at least potentially. Hobbes’s state of nature is a heuristic—a thought experiment meant to reveal the tendency of a society to unravel in the absence of a strong state. This is not to say the heuristic was meant to be entirely hypothetical. As Richard Tuck has argued, by asking his readers to weigh the fearful consequences of an unravelling of the state, Hobbes delivered a powerful argument for subjects to remain ‘in political submission to their sovereign’.8 Hobbes’s heuristic also powerfully anticipated the modelling of modern economics and Rawlsian liberal theory—in particular, the idea of a self largely evacuated of all substance beside a rational interest in its own self-preservation and interests. Absent the attachments forged by family, friendship, religion, guild, and sport, the Hobbesian world imagined people free of the associations that supply the glue of civil society. Present is only the enmity arising from the existential struggle to survive. In this struggle, everyone represents a threat and so is an enemy.

6 Hobbes, Leviathan (n 5) 88–89. 7 Hobbes, Leviathan (n 5) 91. 8 Richard Tuck, The Rights of War and Peace (OUP 1999) 8 (hereafter Tuck, The Rights of War and Peace).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Criminal/Enemy 543 Yet this enmity is without moral censure. Our enemies are adversaries in a pitted struggle to survive, not morally deficient beings. We are authorized to destroy them, but not to punish them, for in threatening our life they have done nothing wrong. Indeed, our enemy is acting in a manner fully consonant with the law of nature, and thus the very idea of punishment plays no role whatsoever in the cycle of violence. Because the enemy enjoys the identical authorization to kill that we do, our struggle against him is waged without hatred and without any sense of moral superiority or legal privilege. We kill our enemy because we fear that if we do not, he will kill us first. And so emerges Hobbes’s startling definition of equality—one based not on rights or respect but on a reciprocal vulnerability to destruction by our fellow men.9 Even if confederations and alliances emerge in the state of nature, they will remain temporary, unstable, and vulnerable to dissolution and defection, as no promise is binding without a sovereign to ‘overawe’ people into abiding by it. The person who uni laterally abides by his promises in the state of nature simply makes himself the architect of his own destruction. Despite acknowledging the possibility of fleeting confederation, Hobbes can, without contradiction, describe the state of nature as a bellum omnium contra omnes, a war of all against all—a state in which every person views his neighbour as an enemy. Only with the creation of the sovereign are enemies transformed into something altogether different—not into criminals; to assume this is to misread Hobbes. True, after the advent of the sovereign, those who continue to direct violence against their neigh bours will now be deemed criminals. They will be judged and condemned as violators of the state’s positive law. And with the advent of positive law comes the idea and possibility of justice.10 The violence directed against the criminal comes, then, in the form of pun ishment inflected with moral opprobrium. But if the state is strong, as Hobbes argues it must be, only a small segment of the population will engage in criminal acts; to put it somewhat differently, only a small number of former enemies in the state of nature will turn into criminals. The over whelming majority of those previously riven by enmity will become something altogether different—subjects and citizens. As citizens and subjects, we are now bound to the state and to each other. The sovereign secures internal order and peace, and so makes possible the flourishing of civil society. In the parlance of the neo-Hobbesian Carl Schmitt, the sovereign has made us friends. The enemy does not, however, vanish. Nor does the state of nature disappear with the creation of the Leviathan. Rather, it displaces to a different sphere—to the relations between states. Sovereigns on the international stage now confront each other precisely as did persons in the absence of a sovereign.11 In this respect, the ‘state of nature’ is again more than a mere heuristic. Indeed, instead of conceptualizing sovereigns like persons in a state of nature, perhaps it would be more enlightening to view persons in a state of a

9 Hobbes, Leviathan (n 5) 87. 11 Hobbes, Leviathan (n 5) 90.

10 Hobbes, Leviathan (n 5) 90.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

544 Lawrence Douglas nature as akin to sovereigns on the international stage.12 If we bear in mind de Gaulle’s famous line, ‘France has no friends, only interests’—an observation intended to apply generally, beyond the French case—we can think of states as possessing the kind of ‘thinness’ that Hobbes attributed to persons in the state of nature. On the international stage, no sovereign stands supreme. The international stage is a condition of equality and viciousness; every sovereign is authorized to engage in any and all acts to protect itself and its interests. As Hobbes observed in de Cive, ‘[W]hat we call a natural law in speaking of the duties of individual men is called the Right of nations when applied to whole commonwealths’.13 Here again Hobbes recognizes the possibility of alliances and pacts among nations. But in the absence of any super-sovereign capable of enforcing compliance, such agreements are binding in name only—followed when mutually advantageous, broken when not. In a speech to his generals on 23 November 1939, Hitler described Germany’s nonaggression pact with the Soviet Union in quintes sentially Hobbesian terms: ‘Agreements are to be kept only as long as they serve a certain purpose’.14 In theory if not in fact, every state may be considered an enemy to every other state. If civil society has been pacified by the Leviathan, the international stage remains an arena of enmity and peril. Indeed, as Kant observed, in the Hobbesian account there can be no end to the state of war on the level of relations between states. The law of nations, far from placing limitations on the behaviour of states, allows all possible behaviour—most notably and calamitously pre-emptive strikes. And so, as Richard Tuck has observed paraphrasing Kant, while men ‘sought to avoid death by creating leviathan states’, living in states creates a fresh risk of death, particularly as states ‘confronted each other in the circumstances of modern warfare’.15 The Hobbesian picture has exercised an enormous influence on the subsequent devel opment of political and legal theory. For our purposes, it established a sharp division between two critical powers of the state—policing and war-making, with the criminal the target of the former and the enemy the target of the latter. In this picture, the crim inal exists within the state, while the enemy assumes the form of a rival sovereign or that sovereign’s agents. The state targets both the criminal and the enemy, but the application of state violence has altogether different meanings and valences for each category. In contrast to criminals, enemies are equally and reciprocally authorized to resort to force. This Hobbesian position has at times been associated with the idea that no law governs either the decision to go to war or its waging, a notion popularly associated with the famous maxim of Cicero, inter arma enim silent leges—in times of war the laws fall silent. And yet the notion of inter arma enim silent leges is in the first instance a lament about the conduct of war, not the occasion of its waging. Cicero defended the right to 12 Consider Rousseau’s observation that the Hobbesian man was ‘really a state all along’. See Tuck, The Rights of War and Peace (n 8) 230. 13 Hobbes quoted in Tuck, The Rights of War and Peace (n 8) 129. 14 Hilter quoted by Robert Jackson in the opening address for the prosecution, Trial of the Major Nazi War Criminals before the International Military Tribunal, 14 November 1945—1 October 1946, vol II (International Military Tribunal 1947) 144 (hereafter IMT). 15 Tuck, The Rights of War and Peace (n 8) 230.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Criminal/Enemy 545 launch pre-emptive strikes, but it would be confusing to see Cicero, writing before the advent of the state system, as anticipating Hobbes. For Hobbes and the Hobbesian tradition, it is not that war takes place in a complete legal vacuum; rather, the thin law of nature, or its corollary, the equally thin law of nations, entrusts every state with the right to engage in hostilities when and how it chooses. This idea became associated with another Roman maxim, par in parem non habet imperium—the idea that ‘equals have no dominion over equals’. With the development of neo-Hobbesian and post-Westphalian theories of the state, par in parem came to be associated with notions of sovereign immunity and the proposition that the essence of sovereign power lay in the decision to militarily strike an enemy. Emblematic of this understanding was Clausewitz’s famous definition of war as policy/politics conducted by another means.16 A sovereign may, of course, violently resist another’s attack, and may seek to pre-empt any such attack, but a sovereign may not deny the right of his enemy to strike at will. This Hobbesian understanding found its most provocative latter day exposition in the work of Carl Schmitt, the Nazi jurist and legal theorist whose work has recently been the subject of a remarkable, if somewhat injudicious, renewal of attention among scholars of politics and law. In The Concept of the Political, Schmitt insisted that the distinctive qual ity of the political is not anchored in any particular normative or evaluative system. Ethics, Schmitt observes, is based on the evaluative distinction between the good and the bad; aesthetics on the distinction between the beautiful and the ugly; economics on the distinction between the efficient and inefficient.17 By contrast, Schmitt argued that the political defines itself in terms of the friend-enemy distinction, a distinction that bears no necessary connection to any of these other evaluative systems. The ‘friend’ need not be strictly good, or beautiful, or efficient. The friend is a friend and the enemy an enemy simply by virtue of having been defined as such by the sovereign. In this way, Schmitt’s concept of the political is closely tied to his conception of the sovereign as ‘he who decides on the exception’.18 As David Dyzenhaus has observed, Schmitt’s decisionism must be read alongside his belief in the primacy of the friend-enemy distinction, for ‘it follows . . . that the political sovereign is the person who is able to make that distinction, is indeed revealed in the making of that distinction’.19 Because the friend-enemy distinction is drawn in an act of sovereign decisionism, it reveals itself most clearly in times of existential struggle. Sovereigns confront each other as enemies ‘if and only if there is a possibility of war and mutual killing between them’. The political thus is defined in terms of the ‘utmost degree of intensity’.20 For Schmitt the 16 Carl von Clausewitz, On War (Michael Eliot Howard and Peter Paret trs, Princeton UP 1989) 87. 17 Carl Schmitt, The Concept of the Political (George Schwab tr, U of Chicago Press 2007) 25–27 (here after Schmitt, Concept of the Political). 18 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (George Schwab tr, U of Chicago Press 2005) 5. 19 David Dyzenhaus, ‘Kelsen, Heller and Schmitt: Paradigms of Sovereignty Thought’ (2015) 16(2) Theoretical Inquires in Law 337, 341. 20 Schmitt, Concept of the Political (n 17) 26, 38.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

546 Lawrence Douglas ‘utmost degree of association’, or friendship, ‘is the willingness to fight and die for . . . other members of one’s group’, while ‘the ultimate degree of dissociation is the willingness to kill others for the simple reason that they are members of a hostile group’.21 Schmitt’s conceptual frame derived from his mytho-historical view of post-Westphalian Europe. Schmitt understood Westphalia to create a jus publicum Europaeum—a European system of public law predicated on the idea of par in parem. In response to the standard critique of the Hobbesian picture that we have identified with Kant, Schmitt located a stabilizing virtue in the historical system in which sovereign states had ‘neither a common legislator nor a common judge’.22 In granting each sovereign ‘the same jus ad bellum’—the reciprocal right to wage war—this system, Schmitt argued, allowed for a ‘nondiscriminatory concept of war’. In ‘The Turn to the Discriminating Concept of War’, a lecture to Nazi jurists delivered in Munich in 1937, and again in his post-war book, Nomos of the Earth, Schmitt defended the system that required sovereigns to treat each other as justi hostes—as just enemies, where ‘just’ implies no normative judgment of the enemy’s cause, but simply recognizes that all enemies occupy ‘legally and morally . . . the same plane’. This idea, Schmitt insists, permits us to ‘distinguish between the concepts of enemy and criminal’, as only the enemy enjoys a reciprocal juristic right to deploy violence when and how it sees fit.23

III. Criminals but not Enemies If the enemy is authorized to choose when and, to a more limited extent, how it will use lethal force, the criminal enjoys no such privilege. In subduing civil society, the state exercises a complete monopoly on legitimate violence. This monopoly is both definitional and immanent—the state enjoys the power to define proscribed acts and to punish those who commit such acts. This one-sided relationship to authorized violence finds expression in Hans Kelsen’s observation that as the power of the state becomes more centralized, ‘The use of force [between people in civil society] is prohibited by making it the condition of a sanction . . . itself a use of force’.24 This monopoly on authorized violence reaches its pinnacle in the modern nation state, a reality captured in Kelsen’s startling and elegant observation: ‘The use of force of man against man is either a delict or a sanction’.25 The only exception to this formula is the case of self-defence—the use of force to repulse an imminent criminal attack in circumstances too exigent to call on the agents of the state.

21 ibid 32–33. See also Lars Vinx, ‘Carl Schmitt’, The Stanford Encyclopedia of Philosophy (Edward N. Zalta (ed), Spring 2016 edn) accessed 26 June 2018. 22 Carl Schmitt, The Nomos of the Earth in the International Law of Jus Publicum Europaeum (first published 1951, G. L. Ulmen tr, Telos Press 2006) 147 (hereafter Schmitt, Nomos of the Earth). 23 ibid 147. 24 Hans Kelsen, Pure Theory of Law (Peter Smith 1989) 36. 25 ibid 42.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Criminal/Enemy 547 But even here, it is the state that gets to define the circumstances in which self-help is permissible. As the point at which the delict (prohibited private force) and the sanction (authorized legal force) collide, the criminal occupies a special status in modern legality. For Schmitt, the naming of the enemy can be done by sovereign fiat; by contrast, labelling the crim inal tends to require a complex process of juridical coordination, enlisting all the branches of government—the legislature, which must define the crime and the sanction; the judiciary, which must judge who deserves a sanction; and the executive branch, which bears the responsibility of investigation, apprehension, prosecution, and punish ment. In the case of serious delicts, the state’s sanction (fine, incarceration, and even, in extreme cases, death) conveys moral blameworthiness. Condemning the criminal thus typically requires the state, at least in form, to follow elaborate procedural protocols and satisfy exacting evidentiary standards—none of which are necessary in naming and bringing to bear force against the enemy. We are left, then, with two distinct categories. The enemy, as designated by the sover eign, represents danger from without; he may pose the most dire existential threat but remains free of censure. We may seek to vanquish and destroy but not to punish him, for in naming the ‘enemy’, we recognize his reciprocal right to seek our destruction. The criminal, by contrast, represents a threat from within. Although the criminal does not typically attack the state or its organs (though, of course, he may), he challenges the state’s monopoly on legitimate force, and in doing so earns both sanction and censure. He is deserving of punishment.26 Granted, the boundary between the categories has not always been sharp. Certain domestic crimes, such as treason, erase the distinction between criminal and enemy. Also, a legal subject may look like a conventional domestic criminal—say, a looter dur ing a riot—but may turn into an enemy, should the riot escalate into an insurrection or civil war. On the international level, the hostis humani generis—the enemy of all human ity, a figure long associated with the pirate—historically represented an unusual merger of the criminal and the enemy into a being hostile to all nations and persons. The hostis humani generis was a liminal figure, neither a criminal internal to a domestic legal sys tem nor an enemy acting in the interest of a warring state; and it prefigured develop ments in international law that ultimately authorized the treatment of certain warring enemies as international criminals. These latter developments, representing an emphatic rejection of the Hobbesian vision, found early expression in the work of Hugo Grotius, whose magnum opus, De Jure Belli ac Pacis (On the Law of War and Peace), published in 1625, some 26 years before Leviathan, argued that ‘war ought not to be undertaken except for the enforcement of rights’.27 Grotius was hardly the first theorist to adumbrate a theory of ‘just war’. The notion of the ‘just war’ has a long and rich history in Christian thought beginning with Augustine,28 26 See Immanuel Kant, The Metaphysics of Morals (first published 1797, Mary J Gregor tr, CUP 1996). 27 Hugo Grotius, On the Law of War and Peace (Stephen Neff ed, CUP 2012). 28 See David Luban, ‘War as Punishment’ (2011) 39(4) Philosophy and Public Affairs 299, 300–10.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

548 Lawrence Douglas but tracing that history lies well beyond the scope of the present chapter. Instead, we can treat Grotius, and the thinkers who elaborated on his thought, as articulating a concep tual counterpoint to Hobbes and the Hobbesians. Though lacking any formal legal training, Grotius articulated a thicker conception of natural and international law than did Hobbes, one that understood unprovoked war as a violation of the law of nations. Grotius accepted and defended an idea entirely alien to the Hobbesian tradition—that war should properly serve as a punitive act in response to a violation of rights.29 No less radically, Grotius defended the concept of third party punishment. Not only could a sovereign exact punishment for wrongs against itself or its subjects, but it could also wage war to redress wrongs that ‘do not peculiarly concern them, but which are . . . grievous Violations of the Law of Nature or Nations’.30 Grotius famously argued that such puni tive wars may be rightfully launched against not only pirates, the paradigmatic violators of the law of nations, but also against ‘those who are inhuman to their parents’ and ‘those who eat human flesh’.31 This position has been understood as anticipating the contem porary war of humanitarian intervention, but before we embrace Grotius for his aggres sive defence of human rights, two points should be noted. In speaking of human-flesh eaters as targets of third-party intervention, Grotius was speaking of people living in the absence of a European-style nation-state; second, we should recall, in Robert Tuck’s quiet understatement, that Grotius’ theory of punitive war ‘neatly legitimated a great deal of European action against native peoples around the world’.32 Indeed, beginning with the publication of Tuck’s influential The Rights of War and Peace, Grotius’ reputation as the ‘father of international law’ has suffered serious erosion, as scholars have come to read the famous Dutchman as an apologist of ruthless imperial-commercial expansion and so as less a critic than an apologist of sovereign prerogative. For while Grotius pro gressively argued that war may only be properly waged in defence of a right, he allowed that no person or entity may judge the sovereign’s own assessment as to whether its rights have been violated. This has led scholars such as Hathaway and Shapiro to cast Grotius as the ultimate theorist of ‘might makes right’, an unnecessarily tendentious position that effectively erodes any normative distinction between Hobbes and Grotius.33 In any case, the Grotian understanding of the law of nations found a more subtle and systematic exposition in the work of Emer de Vattel, the great eighteenth century Swiss diplomat, jurist, and legal theorist, who brought Grotius in conversation with Locke. Vattel’s seminal work of 1758, Le droit des gens (The Law of Nations), begins with what looks like a Hobbesian view of sovereignty. ‘Of all the rights that can belong to a nation’, Vattel writes, ‘sovereignty is doubtless the most precious’.34 The sovereign has the right to treat his subjects as he sees fit, ‘If he loads [them] with taxes’ or ‘treats them with severity’, it does ‘not belong to any foreign power . . . to set himself up for a judge of his 29 Tuck, The Rights of War and Peace (n 8) 103. 30 Grotius quoted in ibid. 31 Grotius quoted in ibid. 32 ibid. 33 Oona Hathaway and Scott Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (Simon and Schuster 2017) 23 (hereafter Hathaway and Shapiro, The Internationalists). 34 Emer de Vattel, The Law of Nations (Bela Kapossy and Richard Whatmore eds, Liberty Fund 2008) 289 (hereafter Vattel, Law of Nations).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Criminal/Enemy 549 conduct’.35 In standard fashion, Vattel defines the ‘enemy’ as ‘he with whom a nation is at open war’. The enemy, he writes, ‘forms claims against us, or rejects ours, . . . by force of arms’. In a formulation that anticipates Schmitt’s notion of the justi hostes, Vattel allows that ‘[i]t is possible that that enemy does not wish us ill’.36 Yet when it comes to the sovereign’s prerogative to wage war, Vattel emphatically rejects the Hobbesian model, adopting a perspective inflected with clear accents of Locke. Like Hobbes, Locke asked his readers to imagine life in a state of nature, but offered a rather different picture of life there. For Locke, the state of nature is not a state of ‘licence’, as the actions of people must follow the most basic law of nature—to preserve life in self and other.37 Those who violate the law of nature are subject to punishment—obviously not by the state, as the state does not exist, but by one’s confed erates, every one of whom is authorized to execute the law of nature. But punishment in the state of nature is itself regulated by the law of nature, which contemplates a propor tional theory of punishment that is not retributive in nature, but directed toward restor ation and restraint.38 This, of course, is all very different from Hobbes, for whom, as we have seen, the concept of punishment and restraint in the state of nature is entirely alien. Indeed, for Locke, the state of nature was less a heuristic than a picture of how people actually live in the absence of a sovereign, and like Hobbes he understood sovereigns on the international stage as permanently occupying a state of nature. Reasoning by analogy from Locke’s discussion of persons in the state of nature, we can conclude that sovereigns are authorized to punish other sovereigns who engage in aggression (the use of ‘Force without Right’39), though here again punishment remains subject to the principle of proportionality and must be directed to restoration and restraint.40 Locke himself, however, did not write at length about the law of nations.41 It fell to Vattel to more fully elaborate the consequences of Lockean theory for the relations between sovereigns. Rejecting the Hobbesian tradition, Vattel insists: ‘It is an error, no less absurd than pernicious, to say that war is to decide controversies between those who acknowledge no superior judge’.42 Because war is a ‘so dreadful a scourge’, it may be justly waged only ‘to avenge and prevent injury’—an understanding of war’s purposes that directly applies Locke’s theory of punishment as directed not toward retribution but toward restoration and restraint.43 Vattel says as much when he writes: ‘To avenge signi fies here to prosecute the reparation of an injury’ while also ‘providing for our future safety’.44 Vattel firmly rejects the idea that sovereigns may launch pre-emptive strikes, unless the purpose is to stop a transparent act of imminent aggression. Otherwise, if a nation ‘takes up arms when she has received no injury, nor is threatened with any, she

35 ibid 290. 36 ibid 509. 37 John Locke, Two Treatises of Government (Peter Laslett ed, CUP 1988) (hereafter Locke, Two Treatises). 38 ibid. 39 ibid II, 19. 40 ibid II, 181. 41 See Lee Ward, ‘Locke on the Moral Basis of International Relations’ (2006) 50(3) American Journal of Political Science 691–705 (hereafter Ward, ‘Locke’). 42 Vattel, Law of Nations (n 34) 489. 43 ibid 487, 484. 44 ibid 484.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

550 Lawrence Douglas undertakes an unjust war’.45 By definition, then, war ‘cannot be just on both sides’.46 While both sides in a conflict may believe themselves to be waging a just war, in reality one side must be in the wrong. Typically, this will be clear. Indeed, some nations ‘are always ready to take up arms on any prospect of advantage’ and ‘seem to delight in the ravages of war’.47 Vattel calls such nations ‘monsters’, ‘enemies of the human race’.48 This notion of the ‘enemy’ is, of course, far removed from the Schmittian idea of justi hostes, and is much closer to the idea of the hostis humani generis. And yet in Vattel’s understanding, the hostis humani generis no longer simply describes the plundering pirate on the high seas; the enemy of all humankind may also assume the form of a sov ereign presiding over a bellicose nation state. Granted, in its more recent invocations, most notably at the Jerusalem trial of Adolf Eichmann, the idea of the hostis humani has been more closely associated with the perpetrator of crimes against humanity and not aggression;49 still, Vattel’s understanding remains notable and prescient as he extended the concept of the hostis humani from the stateless pirate to the sovereign himself. ‘Whoever therefor takes up arms without a lawful cause’, Vattel insisted, is ‘guilty of a crime against mankind in general’.50 While Vattel never envisioned the advent of inter national criminal courts, he insisted that it ‘is lawful to take away the property of an unjust enemy . . . in order to punish him’.51 Just war, in this understanding, begins to resemble policing. If not exactly a criminal in the sense familiar to domestic law, the sov ereign who wages unjust war is certainly an outlaw. Although Vattel allowed for, and indeed defended the waging of punitive war, his views on the subject were more temperate than Grotius’, who believed that soldiers fighting for an aggressive sovereign could be held responsible for the injustice of their nation’s war-making. Vattel, by contrast, followed the lead of Locke, who limited the responsibility of aggression to those who ‘actually assisted, concurr’d or consented’ in the attack.52 This view anticipated the Nuremberg idea that aggression constitutes a crime committed by leaders, not soldiers. This view likewise anticipates the contempor ary law of armed conflict, which, in Michael Walzer’s influential formulation, treats jus ad bellum and jus in bello as logically and morally distinct; Vattel put the matter thusly, ‘in a war which is afterwards found to be unjust, the sovereign alone is guilty . . . . The subjects, and in particular the military, are innocent: they have acted only from a neces sary obedience’.53 To hold otherwise, Vattel warned, would create an unstable situation in which subjects of a state would be ‘at liberty to weigh the justice of his [the sovereign’s] reasons, and refuse to march to a war which might to them appear unjust’.54 Vattel was also cautious in his defence of third-party intervention, as he worried that such prac tices could be abused. He counselled that third parties should treat warring nations as if

45 ibid. 46 ibid 489. 47 ibid 487. 48 ibid. 49 See, e.g., Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin 2006) 272–76. 50 Vattel, Law of Nations (n 34) 586. 51 ibid 570. 52 Ward, ‘Locke’ (n 41) (quoting Two Treatises, II, 178), 696. 53 Vattel, Law of Nations (n 34) 588. 54 ibid.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Criminal/Enemy 551 they were ‘just on both sides’.55 Here again we note the peculiarly modern notes of his sharp criticism of Spain, which he faulted for imposing its domestic legal norms on ter ritories and persons of which it could claim no legitimate jurisdiction: The Spaniards violated all rules, when they set themselves up as judges of the Inca Athualpa. . . . [T]hey accused him of having put some of his subjects to death, of hav ing had several wives, etc.—things, for which he was not at all accountable to them; and, to fill up the measure of their extravagant injustice, they condemned him by the laws of Spain.56

But if Vattel condemned the conquest of the ‘civilized empires of Peru and Mexico’, he had less respect for the native people of North America, who, by living by plunder and in preventing European settlers from cultivating the land, were guilty of a moral crime and deserved to be ‘exterminated like wild beasts of prey’.57 It would, of course, be misleading to draw a straight line from Vattel to Nuremberg. As I’ve noted, Vattel never imagined the advent of an international court; indeed, like Grotius, he may be faulted for leaving the determination of the justice of a resort to war to each individual sovereign (though here, again, our criticism should be tempered by a recognition of the absence of realistic alternatives at the time to such an arrangement). And while Vattel speaks of war as a means of punishing aggression, his understanding of punishment runs more in the direction of seizure of property than criminal prosecution. So, without tracing in greater detail the more direct antecedents in the history of the crime of aggression, we can gesture broadly to The Hague Conventions of 1899 and 1907, which stipulated that signatories submit to a mediation process before resorting to arms—when circumstances permitted. The unprecedented horrors of the First World War—its staggering cost in human life, its sheer wastefulness of men and matériel— created a further impetus to treat the launching of war, and not violations of jus in bello, as the principal catastrophe. Although this impulse foundered at the Paris Peace Conference, as did the ambitious British proposal to convene an international tribunal to try German war criminals, it was revived in the post-war years by leading inter national jurists such as Édouard Descamps, the Belgian lawyer who, as a member of the League of Nations’ Advisory Committee of Jurists, proposed the creation of a nonpermanent international criminal court with jurisdiction over both conventional war crimes and acts of aggression; Vespasian Pella, the Romanian jurist who, as a leading member of the Association Internationale de Droit Pénal, provided greater clarity to the effort to criminalize aggression by offering a detailed definition of the offence and by insisting that individuals be held responsible for its violation; and Nikolaos Politis, the Greek diplomat and jurist who helped draft the Geneva Protocol of 1924, which ambitiously—though ultimately abortively, as it was never ratified—declared a war of aggression ‘a violation of th[e] solidarity [of nations] and . . . an international crime’.58 55 ibid 589. 56 ibid 290. 57 Tuck, The Rights of War and Peace (n 8) 195, 223. 58 See Mark Lewis, The Birth of the New Justice (OUP 2014).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

552 Lawrence Douglas Also deserving mention are the Americans Salmon Levinson and James Shotwell, whose tireless effort to frame a declaration outlawing war culminated in the framing of the Kellogg-Briand Pact of 1928, which came to have 63 signatories.59

IV. Enemies into Criminals: Criminalizing Aggression Still, as a conceptual matter, the Nuremberg trial of the major Nazi war criminals stands as the most tangible expression of the triumph of the Vattelian paradigm over the Hobbesian. The 21 defendants were first and foremost charged with ‘crimes against peace’—with waging a war of aggression in violation of international law.60 Shattering the Hobbesian idea that the decision to wage war was an unassailable article of sovereign prerogative, Nuremberg transformed the unprovoked attack on an enemy into an international capital crime. Admittedly, the charge of ‘crimes against peace’ excited controversy at Nuremberg, as critics claimed the novel incrimination violated nullum crimen sine lege. The concern that ‘crimes against peace’ lacked pre-existing standing in international law was openly shared by André Gros, the French delegate to the London Conference that drafted the IMT Charter. At Conference, Gros bluntly observed that the crime of aggressive war was ‘a creation of four people who are just four people’.61 Perhaps not surprisingly, Schmitt, detained and interrogated but not charged at Nuremberg, also delivered an attack on this score—this despite the fact that Schmitt, like other Nazi apostles of jurisprudence, had previously heaped scorn on the positivist principle of nullum crimen as a hidebound constraint on the law’s capacity to organically change. Yet Schmitt’s larger critique of the crime of aggression was already essayed in his famous lecture of 1937 mentioned earlier in this chapter. In that lecture, Schmitt delivered a diatribe against the League of Nations, earning him an approving note from Nazi Foreign Minister Ribbentrop, later hanged at Nuremberg. Schmitt assailed the League for pioneering the effort that found full expression at Nuremberg—to deny nations the right to judge for themselves the justness of their use of force against other nations. Here Schmitt linked the advent of this ‘murderous self-righteousness’ not to the writings of Descamps and Pella, but to the United States’ entry into the Great War.62 In deciding that German aggression had been unjust and so deserved American military intervention, Wilson engaged in an arrogant and presumptuous act of judgment, which 59 See Hathaway and Shapiro, The Internationalists (n 33) 106–30. 60 See the Charter of the International Military Tribunal, IMT (n 14) vol I. 61 Robert H. Jackson, Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, London, 1945 (US Government Publishing Office 1949) 335. 62 Timothy Nunan, ‘Editor’s Introduction’ in Carl Schmitt, Writings on War (Timothy Nunan ed and tr, Polity Press 2011) 7 (hereafter Nunan, ‘Editor’s Introduction’).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Criminal/Enemy 553 found more egregious expression in Versailles’ war-guilt clause blaming Germany for the onset of the Great War.63 This paradigm shift—from treating enemies as jus hostis to treating them as hostis humani generis—would work to transform, Schmitt predicted, the adversary in war into ‘vermin . . . or a gangster’.64 Once the common humanity of our enemy has been denied, conflict would turn into a war of extermination. One cannot read these words without wincing, as Schmitt turned out to be prophetic in a manner altogether different than he imagined. For it was the very state that Schmitt sought to defend from the interventions of the League of Nations that came to wage an aggressive war of extermination against its verminous enemies. In 1937, Schmitt dis missed the proposition that a state can be so ‘totally criminal that . . . in its entirety [it] must be turned into a “hostis generis humanis” ’.65 But this is precisely what the Nazi state, the legal edifice of which he helped construct and defend, became. Indeed, when Schmitt returned to these themes in his work of 1955, Nomos of the Earth, he fails to devote as much as a single sentence to the possible connection between Nazi aggression and its war of extermination directed against the Jews of Europe. Instead, he continues to warn of the dangers of treating war as ‘an “offense” in the criminal sense’, and the aggressor as a ‘felon’.66 Schmitt insists that once we strip the enemy of his right to reciprocal force, the nature of war changes, as ‘the action taken against him is no more war than a police action against a gangster’.67 Such a system leaves war ‘abolished’—but not in the sense of eliminating hostilities. Rather, when ‘enemies no longer recognize each other as equal, morally and juridically’, then armed conflict takes on the character of a crusade.68 The world becomes divided in starkly Manichean terms; neutrality is no longer an option; as Schmitt had noted back in 1937, Dante himself had ‘bequeathed a unique contempt and punishment on the angels who remained neutral in the great struggle between God and the Devil’.69 With no space left for neutrals, hostilities turn into a campaign of annihilation, a global civil war, or rather, a global police raid. The enemy comes to be treated like a common murderer. The very distinction between enemy and criminal, and between war and policing, becomes hopelessly volatized. We can and should fault Schmitt for his disturbing omissions and moral blinkers. We should also note that the criminalization of aggression—the focus of his diatribe—has experienced a weak afterlife in the decades since the trial of the major Nazi war crim inals. Although crimes against peace served as the gravamen of the prosecution’s case both at Nuremberg and at Tokyo, where the International Military Tribunal for the Far East (IMTFE) tried Japanese leaders for crimes in the Pacific theatre, the incrimination has largely fell into desuetude. The 12 so-called ‘successor’ trials of Nazi functionaries staged by the American military, also in Nuremberg, included the crime of aggression in their charge sheets, but no more than a handful of figures were convicted on this count, 63 Carl Schmitt, ‘The Turn to the Discriminating Concept of War’ in Writings on War (Timothy Nunan ed and tr, Polity Press 2011) 64 (hereafter Schmitt, ‘Discriminating Concept’). 64 Nunan, ‘Editor’s Introduction’ (n 62) 7. 65 Schmitt, ‘Discriminating Concept’ (n 63) 68. 66 Schmitt, Nomos of the Earth (n 22) 122. 67 ibid 124. 68 ibid 124. 69 Quoted in Schmitt, ‘Discriminating Concept’ (n 63) 58.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

554 Lawrence Douglas with the overwhelming majority of convictions involving Nazi war crimes and crimes against humanity. In December 1946, shortly after the IMT closed shop, the UN General Assembly ‘affirmed’ Nuremberg’s recognition of the criminality of aggressive war, but efforts to build on this affirmation quickly ran afoul of escalating Cold War tensions. In the early fifties, the International Law Commission, a body of international scholars and jurists convened by the UN General Assembly, tried but failed to offer an adequate definition of aggression,70 and its ‘Draft Code of Offenses against Peace and Security of Mankind’ stalled in the General Assembly in 1954. The statutes of the UN’s ad hoc tribunals for Yugoslavia and Rwanda focus exclusively on crimes of atrocity (war crimes, crimes against humanity and genocide), and do not include aggression as a justiciable crime (an omission that can be explained by the fact that in the case of Yugoslavia, the armed conflict was originally understood to have unfolded in the context of civil war,71 while in Rwanda, the genocide occurred in the margins of armed conflict). Even on the two occasions that the UN Security Council invoked its Chapter VII powers to authorize the use of military force in response to acts of international aggression—first after North Korea’s attack on South Korea in 1950, and then again after Iraq’s invasion of Kuwait in 1990—no criminal trials followed. Tellingly, when the Coalition Provisional Authority created the Iraqi Special Tribunal to try Saddam and his confederates, it gave the court jurisdiction over war crimes, crimes against humanity, and genocide, but not crimes against peace, the very acts that triggered the bold inter national response to Saddam’s territorial grab. From its inception in 2002, the ICC has exercised jurisdiction over international crimes of atrocity but not over the crime of aggression: the enabling statute of the ICC drafted in Rome in 1998 withheld jurisdiction until the time that states parties could frame an adequate definition and agree on condi tions for the Court’s exercise of jurisdiction—something that negotiators in Rome failed to achieve. After a dozen years of difficult negotiations, jurists at an ICC review confer ence held in Kampala in the summer of 2010 finally agreed on a definition, and although state parties have voted to activate the Court’s jurisdiction of the crime,72 it is doubtful that aggression will ever develop the kind of rich jurisprudence generated by crimes of 70 ‘Report of the International Law Commission covering the work of its third session, 16 May-27 July 1951’ (UN Doc A/1858) in UN Yearbook of the International Law Commission 1951, vol 2 (UN 1957) 131–37 (UN Doc A/CN.4/SER.A/1951/Add.l). 71 This point, it should be noted, is distinct from the proposition that the Yugoslavia tribunal recog nized that crimes occurring in non-international armed conflict may nonetheless constitute inter national crimes over which an international tribunal has jurisdiction. See The Prosecutor v. Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT-94-1, (2 October 1995) (ICTY, Appeals Chamber). 72 See Matthew C. Weed, ‘International Criminal Court and the Rome Statute: 2010 Review Conference’ (10 March 2011) Congressional Research Service 7-5700, R41682 accessed 27 June 2018. See also William Schabas, An Introduction to the International Criminal Court (3rd edn, CUP 2007); Mauro Politi and Giuseppe Nessi (eds), The International Criminal Court and the Crime of Aggression (Ashgate 2004); Larry May, Aggression and Crimes against Peace (CUP 2008).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Criminal/Enemy 555 atrocity.73 For one thing, the Kampala definition, which extends criminal liability only to those acts of aggression that represent a ‘manifest violation’ of the UN Charter, remains problematically vague and vulnerable to politicization.74 The Kampala reso lution also contains a number of ‘understandings’ that, while formally separate from the definition of aggression, concern how the language is to be parsed; alas, the legal status of these understandings remains less than clear.75 Also troubling—at least from the perspective of those seeking to build on the Nuremberg and Toyko precedents—is the fact that the Court is barred from exercising jurisdiction in cases of alleged aggression if the aggressing state party has notified the registrar that it does not accept the Court’s jur isdiction over the crime.

V. Deconstructing the Criminal/Enemy Dyad But however uncertain the role that the crime of aggression will play in the future of the ICC, Schmitt was certainly prescient in insisting that the rise of international criminal law has worked to deconstruct the traditional criminal/enemy dyad. Even in those cir cumstances in which a war of aggression does not issue in an international criminal trial, the architects of hostilities are often treated as rogues or worse. Saddam’s aggres sion may never have been the subject of a criminal proceeding (Saddam ended up being tried for crimes against humanity connected with reprisal killings of his own citizens in the wake of a failed assassination attempt), the invasion of Kuwait was condemned across the globe in the most extreme terms, and the international coalition authorized by the Security Council to repulse it left the Iraqi dictator an international pariah. The fact that this coalition successfully drove Iraq out of Kuwait but left Saddam Hussein in power became the source of enduring criticism of the intervention—criticism that George W. Bush, alas, sought to answer and silence with the American invasion in 2003. Whatever else we might think of this latter conflict—and many have argued that it itself constituted an illegal recourse to arms—it can be seen as the logical consequence of con demning a regime as rogue. There can be no truck with an enemy that has been so cast. 73 Interestingly, present-day scholars working to develop a normatively compelling jurisprudence of aggressive war have, in a sense, reversed the jurisprudential profile of the IMT. At Nuremberg, as we have noted, ‘crimes against peace’ was the focus of the trial, and crimes against humanity were justiciable only inasmuch as they had a nexus to the planning or waging of aggressive war. Scholars such as Tom Dannenbaum now have reversed the argument, insisting that aggression is criminal because it is a ‘modi fied form of crime against humanity, perpetrated ordinarily through a violation of sovereignty’. Tom Dannenbaum, ‘Why Have We Criminalized Aggressive War?’ (2017) 126(5) Yale L J 1242, 1263. 74 Gerhard Werle and Florian Jessberger, Principles of International Criminal Law (3rd edn, OUP 2014) 549–50. 75 Kevin Jon Heller, ‘The Uncertain Legal Status of the Aggression Understandings’ (2012) 10 J of Intl Crim Justice 229.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

556 Lawrence Douglas In such a case, military defeat is an insufficient response; only regime change can properly solve the problem of the rogue sovereign. And yet as the world has learned the hard way, successful regime change is exceptionally difficult and costly to orchestrate. Another cost to the deconstruction of the criminal/enemy dyad is moral. We have noted that the ‘criminal’ and ‘enemy’ were traditionally defined by their radically differing access to authorized violence. The criminal was categorically barred access, while the enemy enjoyed a reciprocal right to deploy violence against its adversary. With the triumph of the Vattelian paradigm at Nuremberg, aggression became recognized as a leadership crime—only perpetrated by a state’s leader, not its soldiers.76 As Vattel once argued, soldiers must not be held responsible for the leadership’s decision to launch a war of aggression. International criminal law and the law of armed conflict thus remain committed to the logical and normative distinction between jus ad bellum and jus in bello. Soldiers of aggressing nations remain ‘privileged combatants’—the privilege being, of course, the right to kill other combatants. International law authorizes, then, properly designated combatants—those, for example, fighting for a regularly consti tuted military, in uniform, carrying arms openly—to kill, even if they are fighting on behalf of a state that is waging a war of aggression. This, at least, is the theory. In practice, when a military response to aggression comes to resemble an international police action aimed at regime change, this arrangement of risk and privilege begins to dramatically wobble. Soldiers tasked with removing a rogue regime will be hard pressed to view soldiers of an aggressing state in the same manner as they might those fighting for a jus hostis. Even if in theory, the distinction between sov ereign on the one side, and citizens and soldiers on the other, is preserved, in practice, military actions against criminal regimes will work to erode this distinction. The abuses in Abu Ghraib were the unsurprising if not inevitable result of this erosion. In the domestic context, police do not accord criminals a reciprocal right to use force and see no moral requirement to subject themselves to the same risks imposed on criminals. When war becomes a tool of policing, it is hard to keep this mentality from entering the calculus of hostilities. Indeed, as a normative matter, it becomes hard to explain why it should not. Similar observations can be extended to America’s response to jihadist terror. Since at least 9/11, the United States has been engaged in a full-scale armed conflict with the Taliban, al Qaeda and more recently with ISIS. From a Hobbesian-Schmittian perspective, those fighting for and with groups such as the Taliban, al Qaeda, and ISIS are clearly enemies. Under the international law, however, they do not satisfy the definition of priv ileged combatants and so have no right to use force against a regular military—even if deployed in self-defense (conversely, they cannot be accused of committing crimes of aggression as the ICC’s definition limits the crime to state acts). This does not mean, as the Bush administration initially and calamitously concluded, that fighters for such groups are therefore creatures utterly devoid of legal character. But it does mean that as 76 See Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (Basic Books 2015) 34–47.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Criminal/Enemy 557 unprivileged belligerents, they can lawfully be treated as criminals—they engage in war-making, but without the authorization to do so. In this regard, they have no more legal right to deploy violence than do home-grown serial killers. Without the combat ant’s privilege, an al Qaeda fighter who kills an American soldier can be treated as a mur derer. By this token, every fighter for these groups is a criminal. Here again, the criminal and enemy fuse into a single fraught legal creature. This fusing is a consequence of the very legal understanding of the armed conflict—a conflict in which, by definition, every enemy becomes a criminal by virtue of firing a weapon. Not only does such a conflict erase the distinction between criminal and enemy; as Schmitt anticipated, it erodes the very distinction between war-making and policing. Indeed, we can go one step further and say it erases the very distinction between war and peace, as the current conflict knows no geographic or temporal limits. The dangers of such fusing and erasure are real. For once the distinction between war and peace vanishes, then not only does armed conflict come to resemble a police action, but we run the risk that domestic policing may come to increasingly resemble the deployment of military force. More to the point, once we see the enemy as a criminal, we absolve our military of any need to accept the reciprocal risk of the combatant. In the fight against an enemy who is also a criminal, we are authorized to annihilate without risk to ourselves.77 Such is the logic that informs drone warfare, a practice that volatizes seemingly clear rules of jus in bello.78 Indeed, once war turns into policing—once our combatants are released from the claims of reciprocal risk—it ceases to be war altogether.79 The deconstruction of the boundary between criminal and enemy, and the resulting erosion of the distinction between war and policing, leaves us in an unmoored space, searching for new norms and law that will guide and constrain us. The effort to criminalize aggression has not, as the architects of Nuremberg might have hoped, brought an end to armed conflict. Rather, it has, to use Schmitt’s parlance, ‘abolished’ war as a morally distinctive practice. The law of armed conflict demands that combatants see each other as burdened with special and reciprocal existential risks and moral responsibilities. That demand ironically has largely fallen victim to the admirable effort to criminalize aggression.

77 See Michael Ignatieff, Virtual War: Kosovo and Beyond (Picador 2001). 78 See, e.g., US, Presidential Policy Guidance, ‘Procedures for approving direct action against terrorist targets located outside the United States and Areas of Active Hostilities’ (22 May 2013) accessed 27 June 2018. 79 See, e.g., Paul Kahn, ‘The Paradox of Riskless Warfare’ (2002) 22(3) Philosophy and Public Policy Q 2–8.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

chapter 24

The En em y of A l l H um a n it y David Luban*

. . . this new type of criminal, who is in actual fact hostis generis humani . . . Hannah Arendt, Eichmann in Jerusalem1 To confiscate the word humanity, to invoke and monopolize such a term probably has certain incalculable effects, such as denying the enemy the quality of being human and declaring him to be an outlaw of humanity; and a war can thereby be driven to the most extreme inhumanity. Carl Schmitt, The Concept of the Political2

* This chapter also appears in (2018) 47(2) Netherlands J of Legal Philosophy 112, as the centrepiece of a symposium, with critiques by Antony Duff, Sofia Stolk, Marc de Wilde, and Louis Sicking, and my own reply, ‘On the Humanity of the Enemy of Humanity: A Response to My Critics’ (2018) 47(2) Netherlands J of Legal Philosophy 187. The concurrent publication is with the kind permission of the editors and publisher of this volume, and of Luigi Corrias and Wouter Veraart, the editors of the journal symposium. The symposium may be accessed at accessed 29 April 2019. Thanks also to Brett Goodin, Jenny Martinez, and Sam Moyn for guidance, and to the editors of this book for their suggestions. I was aided and inspired by Daniel Heller-Roazen’s fascinating book The Enemy of All: Piracy and the Law of Nations (Zone Books 2009). I have also drawn throughout on Alfred P. Rubin, The Law of Piracy (revised edn, Transnational Publishers 1998) and Dan Edelstein, The Terror of Natural Right: Republicanism, The Cult of Nature, and the French Revolution (U of Chicago Press 2009). 1 Eichmann in Jerusalem: A Report on the Banality of Evil (revised edn, Viking Press 1964) 263 (hereafter Arendt, Eichmann in Jerusalem). 2 The Concept of the Political (George Schwab tr, U of Chicago Press 1996) 54 (hereafter Schmitt, Concept of the Political).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Enemy of All Humanity 559

I. Introduction Apart from pain and death and the natural forces that cause them, can there be such a thing as an enemy of all humanity? Can a human being be an enemy of all humanity? Or might it be that the ancient formula ‘enemy of all humanity’ (hostis generis humani) is—as Carl Schmitt warns in the epigraph—so dangerous that it is itself an enemy of all humanity? For that matter, what is ‘humanity’? These are questions I take up in this chapter. Of course, international law contains a concept of crimes against humanity, referring to serious violence and persecution committed by states and other organized groups against civilian populations.3 Their perpetrators are the criminals Hannah Arendt has in mind when she uses the Latin formula in Eichmann in Jerusalem, echoing the Jerusalem court. And I suppose that in Hobbes’s ‘war of all against all’, everyone would be an enemy of humanity (for all are said to be at war, and the war is against all). But for most of its legal history, the label ‘enemy of all humanity’ applied solely to pirates. Pirate thefts have little to do with crimes against humanity in the modern sense. What makes pirates enemies of all humanity, and how did the semantic shift from piracy to atrocity come about? Are there conceptual features of piracy that map onto features of atrocity crimes? Or is the genealogy that traces modern international criminals back to ancient pirates a false trail? As we will see in the following section, that trail is a crooked one, including pirates, privateers, poisoners and assassins, bloodthirsty warriors, slavetraders, génocidaires, and torturers among its way-stations. Some writers assert that the true modern counterpart to piracy is terrorism, so that terrorists are today’s enemies of humanity.4 Could that be right? These too are questions I take up. I will argue for an alternative genealogy: one that traces the enemy of humanity back to tyrants, not pirates. This conception, too, can run into the dangers Schmitt cautions against. During the French Revolution, the Jacobins used it to justify summary executions of ‘counterrevolutionaries’ who, supposedly like tyrants, usurp lawful authority.5 But I will argue that so long as we understand the enemy as a criminal, to be dealt with 3 By ‘serious violence and persecution’ I mean the 11 specific crimes against humanity enumerated in the Rome Statute of the International Criminal Court. Informally, some might label genocide as a crime against humanity, although legally they are distinct. Arendt calls genocide a crime against humanity; and, interestingly, the French criminal code places genocide in a title labeled ‘Des crimes contre l’humanité’, side by side with ‘autres crimes contre l’humanité’. 4 Douglas R Burgess Jr, ‘The Dread Pirate Bin Laden’ (Legal Affairs, July/August 2005) accessed 29 June 2018. Heller-Roazen tries to spell out the historical and conceptual connection between piracy and terrorism, but unlike Burgess, his aim is to criticize the concept of an enemy of all humanity, including its application to terrorists. 5 Dan Edelstein, The Terror of Natural Right: Republicanism, The Cult of Nature, and the French Revolution (U of Chicago Press 2009) 3, 18–19, 154–63 (hereafter Edelstein, The Terror of Natural Right).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

560 David Luban by fair trials and humane punishments—rather than as a military target or an outlaw—the metaphor poses no intractable danger. In the final sections, I will propose a conception of humanity as a normative ideal rather than a descriptive concept, and argue that this ideal lies at the very basis of international criminal law.

II. The Strange Career of the Hostis Generis Humani A. Pirates The Latin phrase is drenched in history, and before turning to the conceptual and philosophical questions it raises, we must examine that history. Here, as with so many moral concepts, genealogy is indispensable to philosophy. The story starts with Cicero. Cicero’s de officiis (on duties) takes the form of a letter to his son in an all-too-familiar parent/child imbroglio. Cicero the Younger was studying in Athens, where he indulged in ‘extravagant and riotous living’.6 He wrote home for money, and a month later Cicero responded with de officiis, an unsurpassable chiding letter running to hundreds of pages—any wayward student’s nightmare letter from dad. Several sections, on youthful folly and the perils of pleasure-seeking, are obvious admonitions to the prodigal son, but the elder Cicero embeds them in a full-scale treatise on duties in three books, lavishly illustrated with examples drawn from the lives of eminent Romans. Among them are duties of good faith and promise-keeping, not only in peaceable commerce but also in wartime between legitimate adversaries.7 Although Cicero admits a few narrowly drawn exceptions, his views on promise-keeping are stern. For example, he praises Marcus Atilius Regulus, a general who was paroled by his Carthaginian captors, but then returned voluntarily from Rome to Carthage to undergo death by torture, because he violated his parole. Regulus kept his promise to his captors, and Cicero offers Regulus to his son as a model Roman.8 But the duty of good faith even in dealings with enemies has one conspicuous exception: the pirate. The pirate, according to Cicero, is the common enemy of all (communis hostis omnium), and with such an enemy ‘there ought not to be any pledged word nor any oath mutually binding’.9 You don’t have to keep a promise you make to a pirate. 6 Walter Miller, ‘Introduction’ in Cicero, On Duties (Walter Miller tr, Loeb Classical Library edn, Harvard UP 1913) xiii (hereafter De officiis (Miller tr)). In a letter to Tiro, Cicero the Younger admits ‘errors of my youth [that] have caused me so much remorse and suffering, that not only does my heart shrink from what I did, my very ears abhor the mention of it’. Cicero, Letters (Harvard Classics 1909–14), Letter 34 accessed 29 June 2018. 7 De officiis (Miller tr) (n 6) 385. 8 Weirdly, Cicero also offers the Regulus story as an example of how virtue is in fact expedient to us. 9 De officiis (Miller tr) (n 6) 385. Cicero likewise described pirates as ‘the common enemy of every race and nation’ (communem hostem gentium nationumque omnium quisquam omnium) in his second oration against Verres, 2.5.76.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Enemy of All Humanity 561 These are, I think, two distinct claims—the common enemy claim and the no-promises claim, by which I mean the claim that the pirate is excluded from the ranks of those with whom one makes binding promises. Cicero does not say why either is true, and on its face the no-promises claim seems irrational: it would make it impossible to ransom back hostages.10 After all, if pirates know that ransom promises are worthless, they have little incentive to bargain or to spare their captives. Perhaps Cicero had in mind something like the modern ‘no negotiating with hostage-takers’ as a way of undercutting piracy’s business model. But he never says anything of the sort. Daniel Heller-Roazen draws far-reaching conclusions from Cicero’s no-promises claim: first, that Cicero’s assertion that ‘there ought not to be any pledged word nor any oath mutually binding’ pronounces a duty, not merely a permission or suggestion, to deal with pirates in bad faith. Second, that it makes the pirate an exceptional figure who is outside all law, and indeed outside what Cicero calls the ‘immense fellowship of the human species’—the domain of cosmopolitan morality, as we might say today.11 After all, a duty not to deal with someone in good faith treats them as an outcast from anything we could regard as a moral community. The no-promises claim might equally be called an exclusion claim. The figure of human beings who are outside all law—outlaws, quite literally—plays an important (perhaps outsize) role in contemporary Continental philosophy, notably Giorgio Agamben’s Homo Sacer and State of Exception. Agamben focuses not on the pirate but on a different figure who is outside all law: homo sacer, an obscure Roman legal category denoting a class of those condemned to death whom anyone can lawfully kill.12 Agamben draws a line connecting homo sacer to the inmates of Nazi concentration camps, and then to Guantánamo prisoners whom the Bush administration declared to have no legal rights. All are thrust outside the protections of law due even to ordinary criminals, and all are therefore reduced from civil status to ‘bare life’. For Agamben, the category of legal exceptions has metaphysical significance. Heller-Roazen, emphasizing that Cicero places pirates outside all law, raises a similarly metaphysical question about the enemy of all humanity, ‘Who—or what—is a speaking, acting human being who must, for reasons of moral and legal principle, be excluded from the common domain of

10 Grotius also thought Cicero’s argument was unsound, though on different grounds. Hugo Grotius, The Rights of War and Peace (Richard Tuck ed, Liberty Fund 2005) book 3, ch 19, paras III–V, 1537–9 (hereafter Grotius, The Rights of War and Peace). 11 Daniel Heller-Roazen, The Enemy of All: Piracy and the Law of Nations (Zone Books 2009) 18, 20–1 (hereafter Heller-Roazen, Enemy of All). The phrase immensa societate humani generis is in De officiis, 1.17.53. 12 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Daniel Heller-Roazen tr, Stanford UP 1998). Agamben also emphasizes the peculiar fact that homo sacer could not be sacrificed to the gods, so his killing is neither a criminal homicide nor a ritual killing: homo sacer is doubly excluded from both civil and religious law (at 81–83). The religious aspect of homo sacer (‘sacred man’), crucial to Agamben’s analysis, is not relevant to our purposes. The concept of a person who could be killed but not sacrificed was apparently considered puzzling even in antiquity (see at 72). In any case, Rome officially abolished human sacrifice in 97 bce, and Cicero denounces the ‘savage and barbarous custom of sacrificing men’ as a practice foreign to the Roman religion of his day. See Cicero, Pro Marcus Fonteius para 31.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

562 David Luban obligation that unites the many members of the species?’13 To be clear: the pirate is not homo sacer under Roman law. But both are banished from the protection of law, and both are anybody’s targets. One might object that while this intense way of reading Cicero is possible, Cicero never says that pirates belong in a separate box from the rest of humanity. Perhaps we don’t need to dig that deep to explain why Cicero called pirates the common enemy of all. The straightforward reading is Blackstone’s, ‘by declaring war against all mankind, all mankind must declare war against him [i.e., the pirate]’.14 That reading explains the common enemy claim, but it doesn’t explain Cicero’s no-promises claim, and thus Heller-Roazen is undeniably on to something. By itself, enemy status would not exclude pirates from the obligations owed to military foes. Cicero writes, ‘we have laws regulating warfare, and fidelity to an oath must often be observed in dealings with an enemy’.15 Otherwise, truces and peace treaties would be impossible. Yet Cicero does exclude pirates from those obligations, and the puzzle is why. Let’s consider some possibilities. Might it be that a pirate is an enemy (hostis) but not a lawful enemy (perduellis), a distinction Cicero makes, ‘a pirate is not included as a perduellium, but is the common hostis of all’?16 That reading might firm up the Agamben-like connection between ancient pirates and modern terrorists—after all, ‘unlawful enemy combatants’ is exactly how the Bush administration classified accused terrorists. I doubt that Cicero’s language can support conclusions about lawful and unlawful combatants, however. Although Cicero does introduce a concept of unlawful combatant status, there is no indication that hostis denotes an unlawful combatant while a perduellis is a lawful combatant. On the contrary, in a philological aside Cicero says the words are nearly synonymous (although he thinks perduellis is more accurate). And far from being someone to whom no obligations are owed, Cicero explains that the word hostis originally meant ‘guest’—and hosts owe obligations to guests.17 Second century legal sources define a hostis as an adversary against whom Rome has declared war, which would make a hostis a lawful combatant. Those same sources explicitly distinguish the hostis from the pirate or brigand.18 All this suggests that when Cicero called the pirate a common hostis of all rather than a perduellis, his word-choice was colloquial, not

13 Heller-Roazen, Enemy of All (n 11) 19. 14 Bl Comm 71. 15 De officiis (Miller tr) (n 6) 385. 16 De officiis (Miller tr) (n 6) 385. Miller translates perduellium (the genitive of perduellis) as ‘lawful enemy’, and Heller-Roazen uses Miller’s translation. Lewis and Short’s dictionary render perduellis as ‘a public enemy, an enemy actually waging war against a country’, Charlton T. Lewis and Charles Short, A Latin Dictionary (Clarendon Press 1879). 17 De officiis, 1.11.36–7, (Miller tr) (n 6) 39; 1.12.37–8, (Miller tr) (n 6) 39–41. Lewis and Short’s dictionary describes ‘perduellis’ as ‘mostly anteclassical for the classical hostis’. 18 Dig 49.15.24 (Ulpian), 50.16.118 (Sextus Pomponius). See David Lloyd Dusenbury, ‘Carl Schmitt on hostis and inimicus: A veneer for bloody-mindedness’ (2015) 28(3) Ratio Juris 438–9 (hereafter Dusenbury, ‘Carl Schmitt’).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Enemy of All Humanity 563 technical.19 Probably all he meant is that rather than being an adversary of Rome (perduellis), the pirate is an adversary of any prey he can find (hostis omnium). Shortly, we will see that the lawful/unlawful combatant distinction is important in later piracy law, but it doesn’t explain why pirates must be excluded from the community of those with whom we must deal in good faith. Why else might Cicero have thought that pirates are beyond the moral pale? What is the mysterious X (the ‘heinousness factor’) that distinguishes pirates from land-based depredators like highwaymen and kidnappers? One writer suggests that because the sea is an alien, hostile element to land-dwellers, and the confined spaces on board ship make it impossible to flee, violence at sea poses deadly risks that make it uniquely heinous.20 This argument has its attractions, but we can easily think of land-based crimes that impose equivalent dangers, and from which victims also can’t flee. In any case, even though today piracy is defined solely as depredation ‘outside the territorial jurisdiction of any State’,21 historically pirates preyed on coastal communities as well as shipping, and they often held their hostages on shore (as the Cilician pirates held Julius Caesar). Some of the Latin words for pirates applied equally to robbers on land (‘brigands’), and early modern jurists such as Christian Wolff labelled brigands hostis generis humani.22 Is X the fact that by going to sea and preying on the shipping and settlements of all nations, the pirate excludes himself from all communal life and ties? Taken literally, the phrase ‘enemy of all’ implies an isolated lone wolf. That seems unlikely. Pirates have companions, and they find hospitality in their home ports; ancient sources recognize that entire societies made their living by piracy.23 They were like the Vikings in medieval times, the Cilicians in Cicero’s, and the Barbary States until their suppression in the nineteenth century. Sea wolves weren’t lone wolves. In many cases, the turn to piracy was, and still is, an act of economic desperation by impoverished communities. In the past decade, Somali fishermen became pirates because Somalia’s collapsing government 19 Rubin believes Cicero was not offering a legal opinion, Alfred P. Rubin, The Law of Piracy (revised edn, Transnational Publishers 1998) 15–16 (hereafter Rubin, Law of Piracy). 20 Thomas J R Stadnik, ‘Pirates - The Common Enemies of All, the Enemies of the Human Race, the Law of War and The Rule of Law’ (LexisNexis®Legal Newsroom International Law weblog, 5 May 2009) accessed 29 June 2018. See also HellerRoazen, Enemy of All (n 11) 176–80. 21 United Nations Convention on the Law of the Sea, 1982, 1833 UNTS 3 (in force 1994), art 101. This article also includes within the definition of piracy ‘any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft’. 22 Heller-Roazen, Enemy of All (n 11) 35 (Latin words); Christian Wolff, Law of Nations Treated According to a Scientific Method [Jus Gentium Methodo Scientifica Pertractatum] (first published 1749, Joseph Drake tr, Oceana 1964) para 627 quoted in Edelstein, The Terror of Natural Right (n 5) 29 with additional sources. 23 See, e.g., Thucydides, History of the Peloponnesian War (‘[t]hey would fall upon a town unprotected by walls (. . .) and would plunder it; indeed, this came to be the main source of their livelihood, no disgrace being yet attached to such an achievement, but even some glory’ §1.5); Thucydides, The Landmark Thucydides: A Comprehensive Guide to The Peloponnesian War (Robert Crowley tr, Robert B. Strassler ed, Free Press 1996) 6.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

564 David Luban disbanded its navy, and opportunistic outsiders rushed into the naval vacuum to poach on their fishing grounds and deprive them of their livelihood. Cicero’s ‘common enemy of all’ claim was false unless we read it non-literally, as I think we must, as ‘common enemy of all outsiders to pirate society’.24 Here is another possibility: one difference between land and sea is that the open seas don’t lie in any state’s territory. In Roman law too, the high sea was a commons. This is the usual explanation the law books give about why piracy is a universal jurisdiction crime, meaning that any state that captures pirates can try and punish them. By contrast, thieves on land are always in some state’s territory, and that state has primary jurisdiction over them.25 Although it’s anachronistic to refer Cicero’s ‘common enemy’ language to modern universal jurisdiction, the root idea—that on the high seas whoever can successfully repress piracy should do so—evidently lies behind both.26 This argument explains why piracy might fall under universal jurisdiction. But it does not explain why one ought not deal in good faith with pirates. We still haven’t solved for X, the extra factor that makes the pirate more evil than the highwayman. One might spin out other conjectures, for example that piracy’s assault on foreign commerce threatened civilization itself (or at least Roman authority);27 or that pirates were notoriously cruel. I find neither of these very convincing, because both are equally true of brigands, especially in lawless regions where state power is weak or non-existent. More promising is this: while the robber on land challenges one state’s authority—the territorial state’s—the pirate challenges all states’ authority, because he attacks all states’ shipping and seacoasts. Doing so, the pirate disrespects state authority as such. To those who revere state authority, the insult is intolerable, and perhaps Cicero thought that dealing in good faith with pirates would give the unseemly appearance of ignoring that which must never be ignored: lèse-majesté, understood as a kind of blasphemy against the order of rulers and ruled.28 On this interpretation, X is not some special heinousness 24 Reflection on the literal phrase leads Heller-Roazen to the paradoxical question ‘Is the “enemy of all” one, or not one, of “all”?’ Heller-Roazen, Enemy of All (n 11) 18–19. If we read the phrase less literally, the implied paradox disappears, along with the dangerously dehumanizing conclusion ‘not one of “all” ’. Heller-Roazen, who is fully aware of the danger, rightly rejects that conclusion. 25 An exception that confirms the rule is the law of the medieval Italian city-states, establishing universal jurisdiction among them over crimes committed by vagabonds (people of no fixed abode) who roamed between cities the way that pirates roamed the seas. Luc Reydams, Universal Jurisdiction: International and National Perspectives (OUP 2003) 29. 26 A British Privy Council Report of 1934 asserts that the pirate ‘has placed himself beyond the protection of any State. He is no longer a national, but “hostis humani generis” and as such he is justiciable by any State anywhere’. Privy Council, In re Piracy Jure Gentium, [1934] AC 586 accessed 29 June 2018. This report attributes the view that the hostis humani generis is not any state’s national to Grotius, but in fact Grotius never says this. Grotius does assert universal jurisdiction to punish pirates, but he does not strip them of all nationality. Grotius, The Rights of War and Peace (n 10) book 2, ch 20, para XL, 1021. 27 See, e.g., Rubin, Law of Piracy (n 19) 92. 28 Cicero, a political supporter of Pompey, nevertheless criticized him for making a deal with the Cilician pirates, in which he offered them clemency in return for surrender. De officiis 3.49, (Miller tr) (n 6) 319. On Pompey’s dealings with the pirates, and his relationship with Cicero, see Philip de Souza, Piracy in the Graeco-Roman World (CUP 1999) 170–7 (hereafter de Souza, Piracy). On the importance of

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Enemy of All Humanity 565 of pirate thefts, kidnappings, and violence over and above land-based thefts, kidnappings, and violence. Rather, X is the insult to state authority as such, manifest in the pirate’s way of life. In short, X consists in the pirate’s generalized lèse-majesté. That makes the pirate the common enemy of all states—but not necessarily of all people.29 I find this lèse-majesté theory the most plausible account of X. Whether or not that is what Cicero had in mind, his special animus toward pirates survived in the law. The medieval jurist Bartolus reworded Cicero’s formula to the modern hostis generis humani, and later Bacon and Coke used Bartolus’s phrase, in contexts suggesting it had become stock legal language for pirates.30 Nevertheless, there is a subtle but important difference between ‘common enemy of all’ and ‘enemy of all humanity’ or ‘(. . .) of the human species’. As I’ve interpreted Cicero, his point is straightforward: because pirates prey on everyone, everyone is at war with pirates. This is, we have seen, a broadly jurisdictional point. Bartolus’s formula seems to say more: not only are pirates the enemy of everyone, taken severally; they are also the enemy of humanity, the human species, taken collectively. There is more metaphysics packed into Bartolus’s formula than Cicero’s, even if Bartolus and Coke meant to say no more than Cicero. Cicero’s dictum about no good-faith dealing with pirates becomes reified into the concept of an enemy of the human species.

B. Privateers Ironically, European and American states that officially deplored piracy also recognized its usefulness in wartime, and early modern states legalized the practice of hiring pirates as private military contractors, authorized to prey on enemy shipping in wartime by state-issued letters of marque. These naval mercenaries were privateers. In today’s international law privateering is illegal; but in the centuries before the 1856 Declaration of Paris outlawed it, privateering was accepted state practice, and many notorious buccaneers of the Golden Age of Piracy were on-again-off-again privateers.31 the state, see Cicero, De Re Publica (On the Republic) 1.25–6 (Clinton Walker Keyes tr, Loeb Classical Library edn, Harvard UP 1928) 64–5 (hereafter Cicero, De Re Publica (Keyes tr)). 29 Brett Goodin, a historian of piracy, suggests that in the political rhetoric of the day, pirate served the same function that terrorist does today, ‘you’ll never go broke in politics by building up a barbaric “other” and declaring them such a threat that they transcend state-based legal norms’. Personal communication (30 August 2017). Notably, in his prosecution of Verres, the corrupt and venal governor of Sicily, Cicero repeatedly calls him a pirate (praedo), and also accuses him of taking bribes from pirates. See the two orations against Verres, and de Souza, Piracy (n 28) 150–7. 30 Bartolus of Saxoferrato, ‘De Captivis et Postliminio Reversis Rubrica’ in Apostillo domini Baroli de Saxoferato super secunda parte Digesti novi (Johannes Antoni de Donato 1486) a reference gratefully taken from Heller-Roazen, Enemy of All (n 11) 103, 216 n. 3. Coke uses the expression pirata hostis humani generis in Co 3rd Inst 113. See Rubin, Law of Piracy (n 19) 17, n 61. 31 In 1856, a handful of states issued a joint declaration against privateering, and within a few years more than 50 states had ratified it (the United States was and remains a prominent holdout). Paris Declaration Respecting Maritime Law, 16 April 1856. For the list of ratifications, see ICRC, ‘Treaties,

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

566 David Luban Here, the difference between lawful and unlawful combatants becomes crucial. Pirates were criminals, enemies of humanity. A letter of marque commissioning a pirate as a privateer magically wiped the criminality away and turned an unlawful combatant into a lawful combatant. Privateering was piracy made kosher. Eugene Kontorovich points to this remarkable cleansing of piracy as decisive evidence that states saw nothing intrinsically evil about the act of sea theft.32 This is plausible, although to assume that states never authorize intrinsically evil acts gives governments more credit than they deserve. But Kontorovich is certainly right that robbery at sea is not morally equivalent to the core international crimes, for which the ICC was created, and which the Rome Statute calls ‘the most serious crimes of international concern’.33 Robbery seems closer to everyday crime than radical evil. Kontorovich concludes from this difference that modern universal jurisdiction over extraordinary crimes rests on a mistake, namely analogizing those crimes to piracy. Once we understand that states never thought piratical acts were radically evil, the analogy collapses. The sole reason for universal jurisdiction over piracy was that the pirate operates outside the territorial jurisdiction of any state, which perpetrators of core international crimes do not. But notice that on the lèse-majesté interpretation, insulting state authority as such is the radical evil that distinguishes the pirate from the highwayman. Once the pirate becomes a privateer, a state agent, the insult to state authority vanishes and with it the heinousness. If the lèse-majesté interpretation is right, Kontorovich is mistaken to think that states saw nothing distinctively evil in un-marqued piracy.

C. Terror tactics and unbridled aggression How did the notion of hostis generis humani expand beyond the crime of piracy? We find one move in that direction in Vattel’s 1758 Law of Nations, which tells us that professional poisoners, assassins, and arsonists are ‘villains, who, by the nature and habitual frequency of their crimes, violate all public security, and declare themselves the enemies of the human race (les ennemis du Genre-humain)’; they may therefore be ‘exterminated wherever they are seized’ regardless of territorial jurisdiction.34 What makes these specific categories of malefactors the enemies of the human race? Here, it seems, the important point is not the killing and burning, but that poisoners, assassins, and arsonists do it frequently, habitually, and as a profession; furthermore, States Parties and Commentaries’ accessed 1 July 2018. 32 Eugene Kontorovich, ‘The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation’ (2004) 45(1) Harvard Intl L J 184. 33 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3 (in force 1 July 2002), art 1. 34 Emer de Vattel, The Law of Nations (Béla Kapossy and Richard Whatmore eds, Liberty Fund 2008) 227–28, book 1, para 233 (hereafter Vattel, Law of Nations).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Enemy of All Humanity 567 that these are sneaky, perfidious forms of lethal violence. As professionals, they will do it to anyone regardless of personal enmity. They violate all public security because they present an invisible lurking menace that aims to kill and destroy without exposing itself to the risks of honourable warfare. Kant concurred: he called poisoning and assassination ‘infernal arts, vile in themselves’. If used in war, poisoning and assassination would make peace hard to maintain because the tactics would undermine confidence in the adversary; furthermore, ‘when once used, [they] would not be confined to the sphere of war’.35 Here, it seems that the nearest modern counterpart is the terrorist, who commits crimes that inspire fear that far amplifies the harm they inflict. The X factor of the crimes themselves is neither evil over and above ‘everyday’ murders and arsons, nor lèse-majesté, although assassination undeniably has lèse-majesté overtones. Rather, it’s the perfidy of the crime, regardless of its objective harmfulness. The invisible menace undermines public security and provides the X factor. In another passage, Vattel called nations that take pleasure in ‘the ravages of war’ for its own sake ‘monsters, unworthy the name of men’. His examples are the armies of Attila, Genghis Khan, and Tamerlane. Vattel continues: They should be considered as enemies to the human race, in the same manner as, in civil society, professed assassins and incendiaries are also guilty, not only towards the particular victims of their nefarious deeds, but also towards the state, which therefore proclaims them public enemies. All nations have a right to join in a confederacy for the purpose of punishing or even exterminating those savage nations.36

One might easily place Nazi Germany in this category, and read Vattel’s dictum as an anticipation of the Article 6 crimes in the Nuremberg Charter. Doing so harmonizes nicely with his call for an international effort to punish them. On the other hand, Vattel’s alternative of exterminating those nations is itself an invitation to genocide, and a first hint at the dangers that come from labelling an entire people ‘monsters, unworthy the name of men’ (more on this later). In this way Vattel gives us two additional hostes generis humani besides pirates: terrorists (if I may use this anachronistic word for poisoners, assassins, and incendiaries) and military aggressors who unleash Ares, the god of boundless war, as distinct from Athena, the goddess of rationally governed warfare for legitimate ends.37 35 Immanuel Kant, ‘Toward perpetual peace’ 8:346–7 in Practical Philosophy (Mary J Gregor ed and tr, CUP 1996) 320. 36 Vattel, Law of Nations (n 34) 487, book 3, para 34 (emphasis added). Notably, Alberico Gentili also called Attila ‘general enemy of mankind’ in De Iure Belli Libre Tres (first published 1612), ch 7, 32 accessed 1 July 2018 (hereafter Gentili, De Iure Belli Libre Tres). Gentili uses the word inimicus rather than hostis. Nothing substantive seems to turn on this word choice. See Dusenbury, ‘Carl Schmitt’ (n 18) who demonstrates that the great weight Schmitt places on the word-choice is exaggerated and disingenuous. 37 Here I am borrowing from Stephen C Neff, War and the Law of Nations: A General History (CUP 2005) ch 1 (Neff shows, interestingly, that many cultures had separate deities for boundless violence and rationally governed war).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

568 David Luban

D. Slave trading A more significant broadening of the hostis generis humani category came in the nineteenth century effort to suppress the slave trade. The simplest route to punishing slavers was to declare them pirates. That way, suspected slave ships could be lawfully boarded in peacetime on the suspicion of piracy. The United States declared slave-trading to be a form of piracy in 1820, and Britain adopted the idea in a number of its bilateral treaties soon after. It was a convenient legal fiction. In that nearly haphazard way, slavers inherited the pirate’s title of hostis generis humani.38 Here, for the first time, states themselves broadened the label hostis generis humani to perpetrators of what we now recognize as a core international crime. That, more than Vattel’s offhand remarks, broke a certain kind of conceptual ice. It doesn’t matter that the reason for affixing the label had to do with the legal formalities of boarding commercial ships in peacetime, rather than with the evils of slavery. Looking only at the legal formalities is too superficial: the reason for establishing that jurisdictional right was the effort to stamp out slave-trading because it is evil. Significantly, even at that time some publicists were referring to slavery as a ‘crime against humanity’.39 In an early draft of the American Declaration of Independence, Thomas Jefferson accused King George of promoting the slave trade and thereby ‘wag[ing] cruel war against human nature itself (. . .) in the persons of a distant people who never offended him’, which Jefferson also called ‘piratical warfare’.40 Remarkable words from the pen of a slaveholder! And in 1860, the platform of the Republican Party in the US presidential election called slavetrading a crime against humanity.41 This raises an interesting linguistic point. Semantically, ‘enemy of humanity’ and ‘crime against humanity’ fit together like hand and glove: it makes intuitive sense to call the perpetrator of crimes against humanity an enemy of humanity, and vice-versa. In fact, however, the phrase ‘crimes against humanity’ has a different history, unrelated to that of hostis generis humani. The label was never attached to piracy. Only when the hostis generis humani label attached to evils that we now recognize as core international crimes do the terms converge. Vattel wrote that ‘whoever takes up arms without lawful cause (. . .) is guilty of a crime against mankind in general’—another anticipation of Nuremberg; but Vattel doesn’t connect the term with his two categories of hostis generis humani, and he doesn’t develop a systematic account of what a crime against mankind in general is.42 As we’ve seen, ‘laws of humanity’ and ‘crimes against humanity’ were used in polemics against slavery; later, Russian jurists used the phrases to condemn the 38 Jenny Martinez, The Slave Trade and the Origins of International Human Rights Law (OUP 2012) 124–9 (hereafter Martinez, The Slave Trade). 39 ibid 115–16. 40 The Writings of Thomas Jefferson, vol 2, (Paul Leicester Ford ed, G.P. Putnam’s Sons 1893) 52. Unsurprisingly, this portion never made it to the final draft. 41 ‘Republican Party Platform of 1860’, 17 May 1860 accessed 1 July 2018. 42 Vattel, Law of Nations (n 34) 586, book 3, paras 183–84.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Enemy of All Humanity 569 oppression of Christians in the Ottoman Empire.43 In 1915, Russia proposed trying the perpetrators of the Armenian genocide for ‘crimes against humanity’, a proposal that was scuttled by US opposition.44 By the end of the Second World War, the terms had found their way into international humanitarian law and international criminal law. One more point should be added. I’ve speculated that the special heinousness of piracy in the eyes of Cicero and later lawyers lay in the pirate’s disrespect for state authority—not just one state’s authority, but all states’ authority. I labelled this disrespect ‘generalized lèse-majesté’, and suggested that it is what made the pirate a common enemy of all. One might ask: who are the ‘all’? And the answer would be: all states. That would not yet make the pirate a common enemy of all humanity, of the human species, unless we commit the ontological sin of identifying the community of human beings with the community of states. But calling slave traders hostis generis humani because of the radical evil of slavery has a different significance. Here, it makes genuine sense to speak of an offence against Cicero’s ‘immense fellowship of human beings’, regardless of whether slavery is an offence against the order of states. Slavery is not a statist offence, but a human offence.

E. The Eichmann trial Step by step, we are zeroing in on the use of the hostis generis humani label in contemporary international law, to denote the perpetrators of core crimes, that is, of radical evil. Curiously, the phrase was never used at Nuremberg, though it certainly could have been, inasmuch as the Nuremberg Charter set out the first legal definition of crimes against humanity. To my knowledge, the first appearance of ‘hostis generis humani’ in modern international criminal law was at the trial of Adolf Eichmann. Israel’s Attorney-General Gideon Hausner introduced the pirate analogy to establish Israel’s competence to try Eichmann under universal jurisdiction. ‘There are definitions of hostis humani generis. There are definitions of people of whom, in biblical language, it might have been said that they bore the mark of Cain on their foreheads’.45 The biblical reference is telling: Cain is at once the primordial ‘restless wanderer on this earth’ (Gen. 4:15) and the primordial criminal: everyone’s enemy, and fratricidally evil. The jurisdictional claim and the moral claim go together. 43 Peter Holquist, ‘ “Crimes Against Humanity”: Genealogy of a Concept (1815–1945)’ (unpublished manuscript, 2012). ‘Laws of humanity’ appears in the Martens Clause of the 1899 Hague Conventions, proposed by Russia’s delegate Fyodor Martens. However, Antonio Cassese argued that Martens proposed the clause to ward off more demanding humanitarian requirements. Antonio Cassese, ‘The Martens Clause: Half a Loaf or Merely Pie in the Sky?’ (2000) 11 European J of Intl L 193–202. 44 Ironically and perhaps tellingly, Turkish publicists during the 1919–22 civil war accused the Western occupiers of a crime against humanity. Banu Turnaoğlu, The Formation of Turkish Republicanism (Princeton UP 2017) 208 (Great Britain was, in their eyes, ‘an enemy of mankind’ at 209). 45 AG of the Government of Israel v. Eichmann (Trial Transcript) Criminal Case No 40/61, session 4, 12 April 1961 (District Court of Jerusalem, Israel) accessed 1 July 2018.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

570 David Luban The Eichmann court adopted Hausner’s piracy analogy, and its judgment invoked the hostis generis humani concept to justify universal jurisdiction.46 Though the judgment never explicitly labels Eichmann a hostis generis humani, the unspoken premise is obvious: perpetrators of genocide are hostis generis humani. Otherwise, the pirate analogy would be irrelevant to Eichmann.47 Hannah Arendt seized on that premise when she described Eichmann and those like him as hostis generis humani. For her, this was a moral and political point, not a jurisdictional one. In fact Arendt rejected the piracy analogy as a basis for universal jurisdiction over Eichmann’s crimes: in a letter to Karl Jaspers, she explained that pirates are private actors, which would make their crimes solely crimes against the victims, not against humanity itself. She writes, ‘although the crime at issue was committed primarily against the Jews, it is in no way limited to the Jews or the Jewish question’.48 Her distinction is based on a domestic law analogy. An intentional injury is a private wrong against the victim, but also a public wrong against the state, perpetrated on the body of the victim. In the same way, Arendt thought that the distinctive feature of crimes against humanity and genocide is that they are wrongs inflicted on the bodies of their victims, but they are crimes against humanity. In her imaginary sentencing speech to Eichmann, Arendt tells him that because of his crime, ‘no one, that is, no member of the human race, can be expected to want to share the earth with you’.49 That curiously fussy phrase ‘no one, that is, no member of the human race’ indicates that the interested party is not only the victims, nor is it the order of states. It is humanity itself. (For Arendt, the Nazi offence against the order of states was not the murder of the Jews but expelling the Jews onto the territory of other states).50

F. Torture and other core crimes Two more steps will complete our genealogy of the hostis generis humani. In 1979, the parents of Joelito Filártiga, a Paraguayan youth who had been tortured to death by Stroessner’s police, successfully sued the torturer in a US court under an obscure federal statute establishing jurisdiction over torts in violation of international law. The Filártigas’ counsel (human rights lawyers Rhonda Copelon and Peter Weiss) argued that ‘torture is in international law today what piracy was in 1789, i.e., the grossest, most universally recognized international violation, the international crime par excellence’. 46 AG of the Government of Israel v. Eichmann (Judgment), Criminal Case No 40/61, 36 ILR 5 (District Court of Jerusalem, 12 December 1961) para13, affd Criminal Appeal 336/61, 36 ILR 277 (Israel S. Ct., 29 May 1962). 47 Kontorovich’s argument is precisely that the pirate analogy is irrelevant to modern universal jurisdiction. Arendt made the identical argument in Eichmann in Jerusalem (n 1) 261. Kontorovich does not discuss the Eichmann case, so I don’t know whether he would accuse the Israeli court of a fallacy. 48 Letter from Arendt to Jaspers (5 February 1961) in Lotte Kohler and Hans Saner (eds), Hannah Arendt-Karl Jaspers Correspondence 1926–1969 (Robert and Rita Kimber trs, Mariner Books 1992) 423. 49 Arendt, Eichmann in Jerusalem (n 1) 279. 50 ibid 268.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Enemy of All Humanity 571 Thus, ‘the torturer is today the most heinous international outlaw’, an ‘extraordinary villain’ who falls into the category of hostis generis humani.51 The court agreed, ‘the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind’.52 The Filártiga case was a landmark in both US and international law. In practical terms, it allowed victims of core international crimes committed anywhere to gain a hearing in a US court under universal jurisdiction. At first, the defendants were impecunious thugs and fugitive warlords, and US courts seemed receptive to the largely symbolic lawsuits. Alas, when plaintiffs began suing multinational corporations that were complicit with the thugs, and that have assets to attach, the courts swiftly pivoted, and began to close the courthouse door by interpretively narrowing the Alien Tort Statute. Today the door is mostly shut. Nevertheless, what matters for our genealogy is that Filártiga broadened the meaning of hostis generis humani, opening the way to applying it to all the core international crimes. That is the final step in our genealogy. As a judge on the International Criminal Tribunal for the Former Yugoslavia explained, today’s core-crime ‘offenders are perceived as hostis humanis generis, because the norms breached by the conduct protect universal values’. This is because of ‘the character of the crime as one that by reason of its gravity and scale offends international public order’.53 At last, the perpetrator of any core crime—not only torture—is a hostis generis humani, because the crime’s gravity and scale offend the international public order. Surprisingly, the literal phrase hostis generis humani almost never appears in the jurisprudence of international tribunals.54 I suspect that Arendt’s famous description of 51 Brief for Appellant, Filártiga v. Peña-Irala, 630 F2d 876 (2d Cir 1980) 26, 38. The brief may also be found in William J Aceves, The Anatomy of Torture: A Documentary History of Filártiga v. Peña-Irala (Brill 2007). 52 Filártiga v. Peña-Irala, 630 F2d 876, 890 (2d Cir 1980). The phrases ‘enemies of all people’ and ‘common enemy of mankind’ subsequently appeared in several US judicial opinions, often quoting Filártiga or each other. The phrase ‘enemies of all mankind’ likewise appears in the famous UK House of Lords Pinochet decision: Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet [1999] UKHL 17 (speeches of Lord Browne-Wilkinson and Lord Millett), as a quotation from one of the US opinions, Demjanjuk v. Petrovsky, 776 F.2d 571, 582 (6th Cir 1985). 53 The Prosecutor v. Milutinović, Ojdanić, and Šainović (Decision on Motion Challenging Jurisdiction) IT-05–87, (6 May 2003) separate opinion of Judge Robinson, para 7 (Trial Chamber). 54 Or perhaps not surprisingly: none of the international tribunals needed universal jurisdiction, so there was no need for the pirate analogy. Apart from the opinion quoted and cited in the preceding note, the phrase seems to have been used only one other time in the ICTY/ICTR jurisprudence, and that second appearance is a direct quote from Filártiga. See The Prosecutor v. Furundžija (Judgment) IT-95– 17/1-T, (10 December 1998) para 147, which adds that in addition to torture, crimes of this abominable character are ‘genocide, slavery, racial discrimination, aggression, the acquisition of territory by force and the forcible suppression of the right of peoples to self-determination’. This is a slightly eccentric list of core crimes, and no international tribunal includes the last item on the list in its subject-matter jurisdiction. To the best of my knowledge, the phrase hostis generis humani does not appear in the decisions of the Nuremberg or Tokyo Tribunals, the SCSL, the Cambodian Extraordinary Chamber, or the ICC. My thanks to Georgetown law librarian Mabel Shaw for locating the uses of ‘hostis generis humani’ in the Tribunal jurisprudence.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

572 David Luban Source

Class of criminals

Heinousness (‘X’) factor

Cicero, Bartolus, Coke

Pirates

lèse-majesté (common enmity to the authority of any state)

Vattel

Professional poisoners, assassins, incendiaries

insidiousness + habitual frequency of crimes, undermining common security

Vattel

Ruthless aggressors

Violently disrupting the order of states

British and U.S. law, antislave-trading treaties

Slave traders

Enslavement as a ‘crime against human nature’

State of Israel v. Eichmann; derivatively, Arendt

Génocidaires

Murder of an entire collectivity as a ‘universal evil’

Filártiga brief and judgment, ICTY Furundzija judgment para 147

Torturers

Cruelty as ‘extraordinary villainy’

ICTY Milutinović, Robinson opinion para 7, Demjanjuk, Pinochet

Violators of ‘norms that protect universal values’ and jus cogens norms

‘by reason of its gravity and scale it offends international public order’

Figure 24.1 The Rogue’s Gallery of Hostes Generis Humani

Adolf Eichmann as a ‘new type of criminal, who is in actual fact hostis generis humani’ had more to do with popularizing the Latin formula than any international legal judgment. Nevertheless, it is now incontrovertible that the modern paragon of the hostis generis humani is no longer the pirate but the torturer, the génocidaire, and the murderous warlord. Let me summarize our legal genealogy in tabular form. The first column of the Figure 24.1 identifies the author or authors who describe a class of criminals as hostis generis omnium or communis hostis omnium. The second column identifies the crime to which each source attaches the label. (It should be understood that all of them include pirates in addition to the crimes named in the table). And the third column identifies the special heinousness—the X factor—that makes those criminals enemies of all mankind.

III. An Alternative Genealogy I’ve suggested that Cicero’s treatment of piracy rests on statist premises, in that the kind of evil that excludes the pirate from the domain of good-faith dealing is the pirate’s contempt for state authority. The same might be said of leaders and planners who commit the modern crime of aggression, which is fundamentally an affront to state sovereignty. By contrast, the modern enemies of humanity—génocidaires, torturers, perpetrators of crimes against humanity—earn that label because of their violations of human rights

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Enemy of All Humanity 573 and human dignity, not because of their affront to states. After all, in many cases it is states that commit these crimes, against their own minority groups or against peoples whose territory they have conquered, as the Nazis did in their General Government of occupied Poland. The claim of state sovereignty is often raised as a shield by states to impede outside interference in their persecutions and depredations, as in Syria and Myanmar today. For this reason, the pirate analogy is something of a linguistic false friend. As it happens, we can find an alternative Ciceronian genealogy for crimes of state. In Book 3 of De officiis, Cicero considers the question of whether it is ever permissible to wrong another out of self-interest. His overall answer is no, not even in cases of necessity, because doing so would ‘uproot the fellowship which the gods have established between human beings’.55 But (he asks) might there be an exception if the victim was ‘the cruel and inhuman tyrant Phalaris?’56 To this, Cicero answers with an emphatic yes. The ‘decision is quite simple: we have no ties of fellowship with a tyrant, but rather the bitterest feud’. The tyrant is ‘a man whom it is morally right to kill;—nay, all that pestilent and abominable race should be exterminated from human society. (. . .) Those fierce and savage monsters in human form should be cut off (segreganda) from what may be called the common body of humanity’.57 Curiously, then, the tyrant shares with the pirate (and, perhaps, with homo sacer) exclusion from human fellowship and human obligation. Cicero likens the tyrant to a diseased limb that must be amputated. Like the pirate, the tyrant is the enemy of the common body of humanity, someone ‘we’ (humanity? good Roman citizens?) must exterminate, extirpate, and exclude.58 The pirate has placed himself outside the law; the tyrant places himself above it, as the classical political philosophers made clear. For both Plato and Aristotle, the rule of law means that rulers and magistrates are servants of the law, but tyranny inverts that relationship.59 Although Plato does not label the tyrant an enemy of all humanity, he does call him the enemy of all the virtuous. Out of political necessity (Plato explains), 55 Cicero, De officiis 3.6.28, (Miller tr) (n 6) 295. 56 Cicero, De officiis 3.6.32, (Miller tr) (n 6) 297. cf Cicero, De Re Publica, 1.28.44, (Keyes tr) (n 28) 69 (on the deterioration of admirable monarchies like that of Cyrus to ‘the utterly cruel Phalaris’). 57 ibid. 58 Perhaps with Cicero as precedent, Pliny described the emperor Nero as hostem generis humani (and explained why he turned out that way: he was born feet first, which is contra naturam). Pliny the Elder, Natural History 7.8.45–6, accessed 1 July 2018. On tyrants as the enemy of humankind, see Edelstein, The Terror of Natural Right (n 5) 31–3. 59 Plato, Laws, 715d; Aristotle, Nicomachean Ethics 8.10, 1160a36-1160b11, Politics 3.16, 1287a19-22. Plato warned that radically democratic citizens who chafe at the laws because they resent being told what to do are for that reason potential tyrants, any of whom would become an actual tyrant if he could seize power. This confirms that Plato identified tyrants as those who place themselves above the law. Republic, 563d-e. Cicero quotes and endorses this argument of Plato’s in his own De Re Publica, 1.42.65–1.43.66, (Keyes tr) (n 28) 99–101. A similar parallel between the mob and the tyrant appears in Locke’s Second Treatise, §230: anyone, ‘either Ruler or Subject’, who ‘by force goes about to invade the Rights of either Prince or People (. . .) is justly to be esteemed the common Enemy and Pest of Mankind; and is to be

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

574 David Luban the tyrant purges the virtuous, whom he fears as potential rivals and insurrectionaries.60 In Aristotle’s more elaborate analysis, tyrants secure themselves through the triple strategy of taking away their subjects’ power, humiliating them, and sowing mutual mistrust among them.61 For John Locke, a ruler who takes away his subjects’ recourse to law is ‘a declared Enemy to Society and Mankind’.62 We may be skeptical that the tyrant is a precursor of the modern criminal against humanity or génocidaire. In ancient political thought, tyranny is the worst form of government because of the outrages tyrants commit to secure their own power, not because they massacre or persecute civilian populations. When Hitler set up a police state, and murdered and imprisoned his political opponents, he was behaving like a classical tyrant. But the Final Solution and the other Nazi mass murders were crimes of a different order, having nothing to do with securing power. Arendt rightly warns against false analogies between ancient tyrannies and modern totalitarianism.63 Perhaps, then, tracing these modern atrocities back to ancient tyranny is just as misleading as tracing them back to piracy. Not that ethnic extermination was foreign to the ancient world— far from it. But these ancient atrocities typically followed military conquests; rulers did not inflict them on their own people.64 Yet there is a connection between the crimes of tyrants and crimes against humanity: both are pathological forms of state politics, and it is hardly a coincidence that Hitler and Stalin had to become tyrants before they could turn to mass murder.65 Aristotle explains that to secure his power the classical tyrant deliberately destroys the elementary bases of political life: he forbids all forms of association (common meals, clubs, discussion circles), and stirs up quarrels and mistrust among friends and between classes. This is a telling observation, because for Aristotle, the polis rests on friendship.66 In that way the tyrant assails one of the fundamental aspects of humanity: our character as treated accordingly’. John Locke, The Second Treatise of Government in Two Treatises of Government (Peter Laslett ed, CUP 968) 418, §230 (hereafter Locke, The Second Treatise of Government). 60 Plato, Republic, 567c. Literally, Plato says the tyrant is the enemy of all the brave, the generous, the wise, and the rich. So too Xenophon, Hiero or Tyrannicus, 5.1 in Leo Strauss, On Tyranny (revised edn, Free Press 1963) 10; and Aristotle, Politics 5.11, 1313a38-1313b1. 61 Aristotle, Politics, 5.11, 1313a34-1314a29. 62 Locke, The Second Treatise of Government (n 59) 328, §93. 63 Hannah Arendt, Origins of Totalitarianism: Introduction by Samantha Power (first published 1951, Schocken 2004) xxvi, 14–15 (hereafter Arendt, Origins of Totalitarianism). cf ibid 594–5. See also Arendt, Eichmann in Jerusalem (n 1) 267. 64 Rome annihilated and razed Carthage, and in the Book of Samuel God dethrones Saul for disobeying a divine order to commit genocide (1 Samuel 15:1–26)—evidence that there was no anti-atrocity norm in the ancient Middle East. We also learn that during his pre-kingship career as a mountain bandit, David made a practice of murdering everyone in the towns he raided so there would be no witnesses (1 Samuel 27:9–11). At sea, David would have been the classic hostis generis humani; today he would be candidate for an international tribunal. On genocide in the classical world, see Ben Kiernan, Blood and Soil: A World History of Genocide and Extermination from Sparta to Darfur (Yale UP 2007) 43–71. 65 As Arendt recognizes in Origins of Totalitarianism (n 63) 600. 66 Aristotle, Politics, 5.11, 1313b3-5, 18. On friendship as the basis of political community, see, e.g., Aristotle, Nicomachean Ethics 8.9, 1159b25-1160a30.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Enemy of All Humanity 575 political animals, what Cicero calls ‘a certain social spirit which nature has implanted in man’ and which cannot be reduced to practical imperatives of survival.67 Aristotle, whose political inquiries focused on ethnically homogeneous Greek polities, emphasized the tyrant’s fomenting of class hatreds; but the modern tyrant in multi-racial or multi-ethnic nations foments hatreds on ethnic and racial grounds as well, and Aristotle’s model of how tyrants deliberately set groups of citizens against each other can readily be extended from classes to races and ethnic minorities. Once they have stirred up hatred, the criminal against humanity and génocidaire assault the political aspect of humanity in a different way: they turn the territory in which the victims live from a sanctuary into a trap.68 Instead of protecting people who must, necessarily, live in a political community if they are to live at all, they persecute and annihilate them. Alternatively, they drive them from the territory, assaulting another fundamental aspect of political life: a shared place in the world. In short, not only is tyranny the precondition of genocide and crimes against humanity, they both assault our character as political beings—tyranny by sowing isolation, fear, and mutual mistrust, and genocide and crimes against humanity by turning homelands into killing fields. As a matter of positive law, it is untrue that crimes against humanity can be committed only by a state and its agents. Indeed, the International Criminal Court’s Pre-Trial Chamber has held that the organization that plans and executes crimes against humanity need not even be state-like.69 Nor is it true that such crimes are committed only in territory the organization has under its effective control: bombing a civilian population in another country is, legally, a crime against humanity as well as a war crime. Historically, however, Nazi persecutions and exterminations in Germany and occupied territory are the paradigm crimes against humanity, and abuse of state power is the conceptual heartland of such crimes.70 Paradigmatically they are statist offences, committed by states or state-like entities like warlords who control territory, combining tyranny with terror.71 67 Cicero, De Re Publica, 1.25.39, (Keyes tr) (n 28) 65. 68 The imagery is that of Richard Vernon, ‘What Is a Crime Against Humanity?’ (2002) 10 J of Political Philosophy 245 (hereafter Vernon, ‘What Is a Crime Against Humanity?’). My own metaphor is that of politics gone cancerous, Luban, ‘A Theory of Crimes Against Humanity’ (2004) 29 Yale J of Intl L 116–19 (hereafter Luban, ‘Theory of Crimes Against Humanity’). 69 Situation in the Republic of Kenya (Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) ICC-01/09–19, (31 March 2010) (Pre-Trial Chamber II) (hereafter Kenya Article 15 Decision). 70 So Vernon and I have both argued. Luban, ‘Theory of Crimes Against Humanity’ (n 68) 108–09, 117; Vernon, ‘What Is a Crime Against Humanity?’ (n 68) 242, 244–5. 71 Thus, I am inclined to agree with Judge Kaul’s dissent in the Kenya Article 15 Decision (n 69), dissenting opinion of Judge Han-Peter Kaul (Kaul argues ‘that the historic origins are decisive in understanding the specific nature and fundamental rationale of this category of international crime [i.e., crimes against humanity]’ at para 65. Judge Kaul argues against broadening the focus from state-like organizations to any organization that ‘has the capability to perform acts which infringe on basic human values’. He warns that doing so blurs lines ‘between international crimes and human rights infractions; between international crimes and ordinary crimes; between those crimes subject to international jurisdiction and those punishable under domestic penal legislation’ at paras 52–53, 65). Similarly, Antonio

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

576 David Luban In short, the modern hostis generis humani shares far more DNA with the ancient tyrant than with the ancient pirate, and his misdeeds are more likely offences committed by and through states than against states.

IV. Analyzing the Hostis Generis Humani The time has come to move from genealogy to analysis. The concept of hostis generis humani is ambiguous along three dimensions. First, recall that all the legal expansions of the concept beyond the original restriction to pirates occurred for jurisdictional, not substantive, reasons. Piracy was a universal jurisdiction offence, for two reasons we have already seen: first, the pirate threatens the ships and coastal settlements of all states (Cicero’s common enemy claim); and second, pirate attacks on shipping occur on the high seas, outside any state’s territorial jurisdiction. Universal jurisdiction provides legal convenience in the effort to suppress piracy, and it does so without stepping on any state’s territorial toes. When Great Britain labelled slave-traders pirates, when Gideon Hausner invoked the pirate analogy in the trial of Eichmann, and when Filártiga’s counsel likened torturers to pirates, it was always in the context of an argument for universal jurisdiction. On the other hand, the basis for calling someone hostis generis humani arises from the substantive character of the evils the criminal inflicts, and both the Eichmann and Filártiga courts emphasize the fundamental evil of genocide and torture to justify the pirate analogy. For Arendt too, the significance of the label hostis generis humani is wholly substantive, not jurisdictional.72 (Recall that she rejects the pirate analogy and universal jurisdiction). Hence the first dimension of ambiguity: is hostis generis humani primarily a substantive or a jurisdictional concept? The second ambiguity is even more important. ‘Enemy’ is war talk, not law talk; ‘crime’ is law talk. Is the hostis generis humani a military enemy or a criminal (against humanity)? Or, as a third possibility, are such hostes outlaws, neither adversary nor criminal, and therefore deserving neither belligerents’ rights nor the rights of criminal defendants—as the Bush Administration described Guantánamo captives? Are hostes to be tried and punished (if found guilty), or militarily attacked, or disposed of as their captor sees fit? Recall Vattel’s pronouncement: ‘All nations have a right to join in a confederacy for the purpose of punishing or even exterminating’ enemies of the human species. Which is it, punishment or extermination? Cassese warns against expanding the category of crimes against humanity to include international terrorism in Antonio Cassese, ‘Terrorism is Also Disrupting Some Crucial Legal Categories of International Law’ (2001) 12(5) European J of Intl L 994–5. 72 I analyze what she takes the nature of that substantive evil to be in David Luban, ‘Arendt on the Crime of Crimes’ (2015) 28(3) Ratio Juris 307.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Enemy of All Humanity 577 Finally, and most obviously, what does ‘humanity’ mean? Schmitt warns that any existing political group that claims to speak in the name of humanity is trying to cheat by denying its enemies the quality of being human—a warning we must take to heart.73 But we can still ask whether there is a legitimate concept of humanity that doesn’t carry such baggage. Is it the set of all living human individuals (or, alternatively, the set of all past, present, and future human individuals)? Or does ‘humanity’ name a property or quality, as Arendt implied when she described genocide as a ‘crime against the human status’?74 Or, finally, does it mean something closer to what Cicero meant: a universal or cosmopolitan community? I start with the second question, which will shed light on the first and third as well. It’s useful to consider Antony Duff ’s criticism of the hostis generis humani concept. According to Duff ’s well-known theory of criminal trials and punishments, the point of domestic criminal justice systems is to call errant members of their community to account for violating norms that all members can be counted on to share. Duff objects to the legal concept of hostis generis humani because it signifies exclusion from all communities, and therefore it has nothing to do with members calling other members to account. Duff therefore understands the term to refer solely to military enemies or outlaws, where an ‘outlaw’ is not a criminal but, literally, someone outside of a community’s law. Outlaws of all humanity would be those so far beyond the human pale that no human communities share norms with them. Under either interpretation, military enemy or outlaw, the hostis generis humani cannot be called to account in a court of law, only killed or immobilized.75 It follows that when Arendt called Eichmann a new kind of criminal, but also hostis generis humani, she contradicted herself—he could be one or the other, but not both.

73 Schmitt, Concept of the Political (n 2) 54. Would that Schmitt took his warning to heart when, the same year as Kristallnacht, he labelled Jews the enemies of all state vitality? Carl Schmitt, The Leviathan in the State Theory of Thomas Hobbes (first published 1938, George Schwab and Erna Hilfstein trs, U of Chicago Press 2008) 9, 60, 70. 74 Arendt, Eichmann in Jerusalem (n 1) 257. Arendt tells us that she takes the phrase from the French prosecutor at Nuremberg, François de Menthon. See Trial of the Major Nazi War Criminals before the International Military Tribunal, 14 November 1945–1 October 1946, vol V (International Military Tribunal 1947) 405 (afternoon session of 17 January 1946) (hereafter Nuremberg Trial Proceedings). In fact, Menthon’s phrase was la condition humaine. (For the French original, see the Gallica database, at 410, accessed 1 July 2018). Presumably, Arendt followed the English translation as ‘human status’ to avoid confusion with her own concept of the human condition in her eponymous book. What Arendt means by ‘the human status’ is the fact that we live in a plurality of peoples, and genocide assaults a people as such. Menthon meant something entirely different, namely that human beings are both material and spiritual beings, see Nuremberg Trial Proceedings, vol V, 406–7. He asserted that ‘the sin against the spirit is the original sin of National Socialism from which all crimes spring’, ibid 372 (morning session of 17 January 1946). Menthon’s philosophical background was Catholic personalism, see Samuel Moyn, Christian Human Rights (U of Pennsylvania Press 2015) 89–90. His emphasis on the spirit is decidedly not Arendt’s view. 75 Antony Duff, ‘Authority and Responsibility in International Criminal Law’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (OUP 2010) 593–97, 602–3 (hereafter Duff, ‘Authority and Responsibility’).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

578 David Luban If that truly were the significance of hostis generis humani, it would be conceptually absurd to put pirates, slave-traders, or torturers on trial as hostes generis humani. Vattel’s alternatives of punishment or extermination would present no alternative at all: only extermination, or at least incapacitation, would be permitted. The Israelis should have killed Eichmann on the spot—for, if Eichmann was truly hostis generis humani, the court had no business putting him on trial. But that conclusion seems absurd, and Duff concludes that rather than accept absurdity we should expunge the concept of hostis generis humani from the law. It is incoherent and dangerous. Why ‘dangerous’? A dramatic illustration is the use of the epithet ‘enemy of humanity’ by the most radical factions of the French Revolution to denounce their opponents. It culminated in the March 1793 decrees by which the Jacobins declared counterrevolutionaries hors-la-loi—outside the law, outlaws—who could be executed without trial.76 Undoubtedly, calling someone an enemy of all humanity risks dehumanizing him. The most extreme example is a non-legal usage of hostis generis humani I have not previously mentioned: it was one of the names of Satan in medieval demonology.77 Remember that Cicero called tyrants monsters in human form, and Vattel used similar language for aggressors. The Nazis called Jews bacilli; Hutu Power demagogues called Tutsis inyenze, cockroaches. Animalizing or demonizing human beings makes genocide easier, just as it made colonial conquest of ‘savages’ easier in the Age of Exploration.78 Duff is right that such toxic metaphors should be expunged from the vocabularies of law and war. Yet does the concept of hostis generis humani really pose such a threat to legality? It has been in the vocabulary of the law for nearly 600 years, and only the most radical Jacobins thought it ruled out criminal prosecutions.79 Quite the contrary: the modern 76 Here I rely on Edelstein, The Terror of Natural Right (n 5) 154–65. 77 ibid 31 (Edelstein finds more than 230 uses of the phrase in medieval texts to refer to the devil; and in exorcism manuals, ‘enemy of all mankind’ is one of the 13 names of Satan used to summon him—a label that made it easier to torture and kill the possessed. The early seventeenth century, when these manuals were written, was the peak age of witch-panic and witch-hunts in Europe). 78 Francis Bacon applied the label hostis generis humani to ‘such routs and shoals of people, as have utterly degenerate from the laws of nature’. These ‘may be truly accounted (. . .) common enemies and grievances of mankind’. Francis Bacon, Advertisement Touching a Holy War (first published 1622) in James Spedding, Robert L Ellis, and Douglas D Heath (eds), Works of Francis Bacon, vol 13 (Houghton, Mifflin and company) 213 accessed 1 July 2018. Chillingly, he was referring to the West Indians, to justify colonial conquest, see ibid 219. 79 Robespierre, who favoured immediate execution of the king with no trial, called him a ‘criminal against humanity’ and his royalist supporters ‘enemies of humanity’. Speech of 3 December 1792, reprinted in Michael Walzer (ed), Regicide and Revolution: Speeches at the Trial of Louis XVI (CUP 1974) 137–8 (hereafter Walzer (ed), Regicide and Revolution). Rousseau had declared that ‘every evil-doer who attacks social right becomes a rebel and a traitor to the fatherland by his crimes, by violating its laws he ceases to be a member of it, and even enters into war with it’, The Social Contract, book 2, ch 5, in Rousseau, The Social Contract and other later political writings (Victor Gourevitch ed and tr, CUP 1997) 64–5. One Montagnard deputy read this passage aloud at the trial of the king. Edelstein, The Terror of Natural Right (n 5) 156. Saint-Just echoed Rousseau’s reasoning in his speech to the Convention on why Louis must be tried by the Convention itself rather than a tribunal—but unlike Robespierre, he did favour a trial. Speech of 13 November 1792, reprinted in Walzer (ed), Regicide and Revolution (n 79) 125.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Enemy of All Humanity 579 motivation to use the label hostis generis humani has been to put radical evil on trial, not to preclude such trials. The point is to expand, not contract, the rule of law. Duff argues that this is a conceptual mistake, but perhaps the mistake is reading hostis generis humani to apply only to outlaws or military enemies. Notwithstanding Vattel’s dehumanizing language and his talk of extermination, there is no reason to suppose that he favours extermination over criminal punishment. In contemporary parlance, Vattel proposes a ‘capture or kill’ policy, where capture entails a subsequent fair trial. Admittedly, declaring a wrongdoer to be an ‘enemy of humanity’ issues a licence to use force against the enemy if that is the only way to suppress his evil deeds. But it is not a demand for killing rather than capture, let alone killing at the moment of capture. Early modern writers including Gentili and Grotius defended the justness of humanitarian military interventions to punish a foreign prince’s tyrannical cruelties.80 I dis agree that war is ever a legitimate instrument of punishment—say rather that it may be a legitimate instrument to end the cruelties and bring the tyrant to account before a tribunal.81 The tribunal matters, and in this connection Hausner’s ‘mark of Cain’ language is very much to the point. We must not forget how the biblical story continues. God calls Cain to account and banishes him from human society. But Cain protests that the punishment is too harsh—it would make him fair game for anyone to kill. And God agrees: God protects Cain by threatening sevenfold punishment of whoever spills his blood (Gen. 4:15-16). Hausner must have realized that the mark of Cain is the sign of Cain’s protection, not of his homo sacer-like removal from all protection. Only putting Eichmann on trial, not gunning him down in Buenos Aires, reflects the full import of the Cain story. The mark of Cain is, metaphorically, the protection offered by the rule of law. Suppose we purge dehumanizing analogies from our moral vocabulary, and limit the implications of hostis generis humani designation to fair trial and punishment (allowing violent repression only when capture is impossible). In that case, Schmitt’s concern about ‘extreme inhumanity’ against the enemy no longer seems pressing. Even so (one might object), given its amazing potential for abuse, why not expunge the inflammatory concept of an enemy of all humanity from our moral vocabulary? The answer is that no other term quite captures the twin nature of atrocity and persecution crimes that makes the idea of international criminal justice imperative: that they are radically evil, and that they are everyone’s business. ‘Crime against humanity’ might do, but the law has assigned it a more restricted scope, as a term of art for one species of the core crimes. To see how ‘enemy of humanity’ can be purged of its poisonously dehumanizing connotations, we must confront the third question mentioned above: what is ‘humanity’? 80 See Gentili, De Iure Belli Libre Tres (n 36) ch 7 (‘On Defending the Subjects of Another Sovereign’); Martinez, The Slave Trade (n 38) 117–18; Grotius, The Rights of War and Peace (n 10) book 2, ch 20, para XL, 1021 (‘grievous Violations of the Law of Nature and of Nations’). 81 David Luban, ‘War as Punishment’ (2011) 29 Philosophy & Public Affairs 299. See also Steven Galoob, ‘Retributivism and Criminal Procedure’ (2017) 20 New Crim L Rev 465 (demonstrating that retributive punishment requires due process of law).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

580 David Luban Humanity cannot simply be the set of all human beings; a mathematical set has no moral or legal significance. Nor can ‘humanity’ be a political community, because of course there is no political community of humanity. There is a so-called international community, meaning a rudimentary political organization of states, but I have insisted that it is an ontological and moral error to subsume human beings to their states. Duff himself provides the answer to our question. He argues, correctly, that ‘humanity’ is a moral community, if not a political community. That answer was already implicit when Cicero spoke of the ‘immense fellowship of the human species’. One might object that there is no moral community of human beings, nor has there ever been. The pull of particular communities overpowers the pull of the universal. To this, Duff responds— again correctly—that the moral community of human beings is ‘embryonic’. It is ‘as much a matter of moral aspiration as empirical fact’.82 It is a project, and we further this project by articulating cosmopolitan norms to which the enemy of humanity will be held accountable, whether or not he recognizes them. It might be objected that, by definition, a moral community can tender only moral judgments, not promulgate criminal laws and hold people accountable for violating them. A proper system of criminal justice can spring only from a constituted political community, else it is mere vigilantism. Certainly, vigilantes claiming to punish on behalf of humanity are a frightening prospect. At the same time, I think the objection rests on two false assumptions. First, it wrongly supposes that moral communities only judge, not act. But moral communities are more than scorekeepers of good and evil, and moral judgment is more than commentary—it is action-guiding. One way a moral community acts is by working through the channels of existing political structures (domestic legal systems, the United Nations, the Rome Treaty) to institutionalize its judgments. That is not vigilantism. Second, the objection wrongly assumes that only a full-service world government would have the authority to create cosmopolitan norms for calling radical evil to account—as though a moral community, lacking authority to govern everything, cannot govern anything. In reality, there is little difference between a moral community enlisting pre-existing state or international institutions to further criminal accountability and actions by those institutions. What I have just described in abstract terms is, concretely, nothing less than the project of international criminal justice as it has developed from Nuremberg to the present. In his opening statement at the Nuremberg Trial, prosecutor Robert Jackson posed a possible objection to the trial: ‘It may be said that this is new law, not authoritatively declared at the time [the defendants] did the acts it condemns, and that this declaration of the law has taken them by surprise’. Jackson responded: ‘I cannot, of course, deny that these men are surprised that this is the law; they really are surprised that there is any such thing as law’.83 I remarked earlier that tyrants are above the law; they understand their own sovereignty along Schmittian lines, as the power to declare the exception. No 82 Duff, ‘Authority and Responsibility’ (n 75) 599, 601 n 41. 83 Nuremberg Trial Proceedings (n 74) vol 2, 143 (21 November 1945).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

The Enemy of All Humanity 581 wonder, then, that tyrants are surprised and resentful when outsiders hold them to account. How dare an outsider hold me to account! I am the sovereign; I am the state. I declare the exception, so I am above the law and beyond its grasp. We create the moral community of humanity by insisting that there is no power to declare the exception to norms against radical evil. By establishing a practice of calling tyrants to account, we create those norms as norms. We insist that the enemy of all humanity is, in fact, a member of humanity and accountable to humanity. In that way, by adopting what I will call the standpoint of humanity, we further the normative project of creating humanity as a moral community.84 This answers Duff ’s conceptual objection: that calling someone an ‘enemy of all humanity’ means we cannot call him to account as the criminal process requires. Duff ’s reason, recall, is that we have excluded him from any community whose shared norms are the basis of criminal accountability—an exclusion that echoes Cicero’s no-promises claim about pirates, because their conduct removes them from the immense fellowship of human society. Adopting the standpoint of humanity rejects such exclusion claims. It insists that the enemy of humanity belongs to a cosmopolitan community that can hold him or her to account. The 1949 Geneva Conventions adopted the standpoint of humanity when they established universal jurisdiction over ‘grave breaches’, in effect conscripting war fighters and those who control them into a cosmopolitan community, whether they recognize it or not. Adopting the standpoint of humanity is not without its costs. Perceptively, Arendt once wrote of ‘the terror of the idea of humanity’. What she meant is the terror that comes with accepting the perpetrator of radical evil as one of us, not a monster or a wild animal. ‘For the idea of humanity, when purged of all sentimentality, has the very serious consequence that in one form or another men must assume responsibility for all crimes committed by men and that all nations share the onus of evil committed by all others’.85 The new type of criminal she recognized in Adolf Eichmann is a more or less ordinary man recruited to an extraordinary project of radical evil. He is in actual fact hostis generis humani, but he is no less one of us. Arendt remarks: ‘Shame at being a human being is the purely individual and still non-political expression of this insight’. This is not to say, fatuously, that we are all Eichmanns. By luck or by choice, we did not do what Eichmann did. The cost of holding an Eichmann to account is accepting him as part of the immense fellowship of the human species, not dismissing him as a monster. The reason to call him an enemy of humanity is that his crimes negate the very possibility of that fellowship and the political responsibilities it imposes. If, as I suggest, ‘humanity’ names a normative project rather than a fully formed moral community, we can resolve the ambiguity between ‘enemy of all humanity’ as a substantive and jurisdictional concept. The answer is that it is both. Substantively, the enemy of all humanity is someone who assaults our nature as political beings through tyrannical cruelties. Jurisdictionally, ‘humanity’ bootstraps itself into existence by 84 Adopting this standpoint is, I take it, Ruti Teitel’s aim in Humanity’s Law (OUP 2013). 85 Hannah Arendt, ‘Organized Guilt and Universal Responsibility’ in Essays in Understanding 1930–1954 (Jerome Kohn ed, Harcourt Brace 1994) 131.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

582 David Luban recognizing him as a communis hostis omnium, and calling him to account. Universal jurisdiction does not rest on the hostis’s location outside the territorial jurisdiction of states, as the pirate analogy suggests; rather, it is based on the practical exemption from his state’s territorial jurisdiction because he runs the state.86 Establishing such jurisdiction is a decision to simultaneously establish a practice of accountability and to create norms against radical evil to which anyone, including heads of state, may be called to account. I have argued elsewhere that the legitimacy of the practice comes from its fairness—its strict adherence to the familiar procedural demands of natural justice and the requirements of humane punishment without which the repression of cruelty becomes itself a practice of cruelty.87 To call the enemy of all humanity to account before humane law, using fair procedures, is to undo the exclusion claim—to reclaim him for humanity and to affirm humanity in the teeth of radical evil.

86 On this point, see the illuminating defence of universal jurisdiction over crimes against humanity by Richard Vernon, ‘Crime Against Humanity: A Defence of the Subsidiarity View’ (2013) 26 Canadian J of L and Jurisprudence 229–41. 87 Luban, ‘Theory of Crimes Against Humanity’ (n 68) 141–6; David Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’ in Samantha Besson and John Tasioulas, The Philosophy of International Law (OUP 2010) 577–88 (I argue that only states have the institutional capacity to do natural justice, so that ‘humanity’ requires using existing state and international institutions for its mission).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

chapter 25

Mov i ng I m age s Modes of Representation and Images of Victimhood in Audio-Visual Productions Sofia Stolk and Wouter Werner

I. Introduction Nuremberg 1945; the screening of the documentary film Nazi Concentration Camps shocks audiences inside and outside the palace of justice. Nuremberg shortly after 1945; the trials themselves become the topic of several documentary films, aimed at educating the German population. Fast forward to the new millennium; Ben Ferencz, chief US prosecutor in the Einsatzgruppen case, appears in several documentaries on the International Criminal Court (ICC) and sets up his own website filled with short documentary films on international criminal justice.1 Former Chief Prosecutor of the ICC Moreno Ocampo attends the Movies that Matter festival to promote a documentary about the work of the ICC, which figures himself as one of the main characters.2 The online campaign Kony2012 spreads images of maimed children and mass graves throughout the world to urge the arrest of Ugandan rebel leader Joseph Kony.3 These are just some examples to illustrate that the life of international criminal law not only takes place in courtrooms or at diplomatic conferences. Audio-visual materials are not just important within the courtroom; they also play a significant role in sending out messages about the work of courts and tribunals. International criminal law is also a field of audiovisual representations, where the main topics, subjects, and categories of international criminal justice enjoy a second life on screen.

1 accessed 6 June 2018. 2 Movies that Matter accessed 6 June 2018. 3 Invisible Children inc., Kony 2012 accessed 6 June 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

584 Sofia Stolk and Wouter Werner In this chapter we will examine the audio-visual life of one of the emerging core subjects or categories of international criminal law: the victim.4 In this context, it is important to note that the victim is not a pre-given entity for (international) criminal law.5 The victim herself is very much created by international criminal law. Through its provisions and proceedings, and through its discourses, international criminal law constitutes its own victims. It is through the act of representation that an individual appears as a victim under the rules and discourses of criminal law; as if the representation created that which it presents anew.6 In this context, it is useful to recall Nouwen and Kendall’s distinction between two types of victims that are represented and created in international criminal law.7 The first is the victim as a participant in trials. As Nouwen and Kendall argue, international criminal law is highly selective when it comes to this type of victim. Not all individuals suffering from injustices enter legal proceedings: only some forms of violence count as international crimes, courts and tribunals have limited temporal and territorial jurisdiction, only some of the many international crimes are prosecuted. In this way, the rules and proceedings of international criminal law determine who can act as participating victim and who is left out. The second is the ‘abstract victim’ that underpins the ethos and mission of international criminal law. The abstract victim is an icon of victimhood that transcends the experiences of specific individuals and indeed of the juridical victim. Moreover, even if concrete individuals appear (e.g., on fundraising posters), they appear as typical victims, not as persons with their own 4 The explicit victim-centred approach of the ICC marks this fairly recent development. Previously, other ICL tribunals such as the IMT and ICTY have been criticized for their marginal attention to the victims. See, e.g .,Yael Danieli, ‘Reappraising the Nuremberg Trials and their Legacy: The Role of Victims in International Law’ (2005) 27 Cardozo Law Review 1633; Suzanne Karstedt, ‘From Absence to Presence, from Silence to Voice: Victims in International and Transitional Justice since the Nuremberg Trials’ (2010) 17 Intl Rev of Victimology 9; Carolyn Hoyle and Leila Ullrich, ‘New Court, New Justice? The Evolution of “Justice for Victims” at Domestic Courts and at the International Criminal Court’ (2014) 12 J of Intl Crim Justice 681. 5 Victims are often invoked as the driving force of the ICC’s Chief Prosecutor, in press releases, trials, and interviews. See, e.g., The Prosecutor v. Lubanga (Transcript) ICC-01/04–01/06-T-107 (26 January 2009) 34–35 (Trial Chamber I). Rick Gladstone, ‘A Lifelong Passion Is Now Put to Practice in The Hague’ The New York Times (New York, 18 January 2018); ICC, ‘Statement to the Press by the Prosecutor of the International Criminal Court (Press Release, Abidjan, Côte d’Ivoire, 20 July 2013) accessed 6 June 2018. On the victim as ICL’s raison d’être see also Sara Kendall and Sarah Nouwen, ‘Representational Practices at the International Criminal Court: The Gap Between Juridified and Abstract Victimhood’ (2014) 76(3) Law and Contemporary Problems 235 (hereafter Kendall and Nouwen, ‘Representational Practices’); Peter Dixon and Chris Tenove, ‘International Criminal Justice as a Transnational Field: Rules, Authority and Victims’ (2013) 7 Intl J of Transitional Justice 408; Jens Meierhenrich, ‘The Practice of International Law: A Theoretical Analysis’ (2014) 76(3) Law & Contemporary Problems 76 (2013); Wilfred Nderitu, legal representative for the victims in The Prosecutor v. Ruto and Sang (Transcript of Opening Statement) ICC-01/09–01/11-T-27 (10 September 2013) (Trial Chamber V(A)) quoting in his opening statement a victim of Kenya’s post-election violence of 2007/2008: ‘[i]f there were no victims, there would be no case. If there was no suffering, would there be any reason to accuse the accused? We are the ones who experienced the atrocities. The Court sits because there were atrocities and there was pain suffered by the victims’ at 36. 6 For a deeper analysis of the constitutive force of representation and repetition see Sarah Gendron, Repetition, Difference and Knowledge in the Work of Samuel Becket, Jacques Derrida and Gilles Deleuze (Peter Lang 2008). See also Wouter Werner, ‘Play It Again, Sam; Practices of Repetition in the Security Council’ (forthcoming). 7 Kendall and Nouwen ‘Representational Practices’ (n 5) 235–262.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Moving Images: Modes of Representation 585 biography and context. The abstract victim exists by virtue of its representation by others (such as NGOs, the prosecution, academics).8 Invoking the abstract victim generally comes with a claim to authority, a claim that one is entitled to speak on behalf of the category of the abstract victim. This authority is also a claim to ‘authorship’, namely the power to write the story and history of victims in a particular way. What counts for criminal proceedings also applies to audio-visual productions: victims and victimhood are not pre-given, but constituted via acts of representation. In other words: victims are not simply copy-pasted onto the screen, but created and presented anew, this time in an edited story underpinned by sound, text, and moving images. This raises the question how specific modes or methods of audio-visual representation affect the way in which victims are represented. In this chapter we will take up this question in relation to two forms of audio-visual material that share the same topic but have a different aim and production process: (a) documentary films on the ICC produced by independent film-makers; (b) audio-visual material produced by the ICC itself. Both forms of audio-visual materials engage with representations of victims in relation to the ICC. Documentaries about the ICC are made by ‘outsiders’, who nevertheless cooperate with ICC staff members, ICL experts and—to a lesser degree—victims, to construct their stories. The audio-visual materials produced by the ICC signify the ‘insider’ perspective; the institution has a direct influence on the content of the videos. However, it still is a separate audio-visual team who takes up the task of making the video. In both cases, the representation of victims in these audio-visual products results from a balancing act between substantive and aesthetic concerns, and objectives of different parties, with different—and sometimes remarkably similar—outcomes. Based on a typology of modes of representation in documentary film theory, we will discuss how the materials represent, and thus produce, specific forms of victims and victimhood in international criminal law. As we will show, audio-visual productions have created different types of victims, varying from ‘ideal’ victims in advocacy documentaries, argumentative victims in critical documentaries, translated victims in observatory documentaries, to bureaucratized victims in audio-visual materials produced by the ICC itself.

II. Representation in Documentary Film A. Attracting Audiences and Representing Reality In 1922, Robert Flaherty produced Nanook of the North, one of the first documentary films ever made.9 The film depicts the life of an Inuit fur trader ‘Nanook’ and his family 8 On the representation of the victim for fundraising purposes see Christine Schwöbel-Patel ‘Spectacle in international criminal law: the fundraising image of victimhood’ (2016) 4(2) London Rev of Intl L 247. 9 Robert J. Flaherty, Nanook of the North (1922) accessed 6 June 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

586 Sofia Stolk and Wouter Werner in Northern Quebec. It soon became a box office success internationally and has since then acquired almost iconic status. The film is mentioned in almost every introduction to documentary film theory and was one of the first to be selected for preservation in the United States National Film Registry.10 However, the film was not free from controversy. As it turned out, many scenes were staged and re-enacted, the name of the main character faked, the woman depicted wasn’t Nanook’s wife, and the ‘traditional’ methods of hunting showed in the film had long ago been replaced by the use of modern guns. The story of Nanook illustrates at least two important aspects of documentary film. First, the success of Nanook of the North shows the potential of documentary films to reach broad audiences and to focus public attention. The success of Nanook was partly due to the innovative character of the documentary genre at the time. However, even today documentary films manage to attract broad audiences and sometimes successfully mobilize social, legal, or political action. Some examples are Al Gore’s An Inconvenient Truth, Errol Morris’s The Thin Blue Line (leading to the release of a person innocently sentenced to death), or the recent Netflix series Making a Murderer. The potential of documentary film has not gone unnoticed in the field of international criminal law. In the recent past, some close ties have been established between filmmakers, human rights organizations, criminal courts and tribunals, and media companies. The producers of the ICC documentary The Reckoning, for example, established an advisory board with seats for influential human rights and transitional justice organizations, which in turn helped to disseminate the film. In addition, the documentary makers managed, in their own words, to establish ‘common ground’ with the Office of the Prosecution, something they believed was key to the success of the film.11 Markus Vetter, one of the directors of another documentary on the ICC, The Court, was even more open about his warm relations with the Office of the Prosecution. In a 2013 interview Vetter explained: ‘Ocampo was very welcoming, we even slept at his place. We actually became friends with everyone at the criminal court’.12 Of course, the example of Vetter and his crew sleeping over at the prosecutor’s house is a bit of an exceptional case. Not all documentaries on the ICC are built on such close ties between filmmakers and the Chief Prosecutor. Still, the example does illustrate that the Office of the Prosecution is well aware of the fact that we ‘live in a visual age, in which life takes

10 See, inter alia, Bill Nichols, Representing Reality: Issues and Concepts in Documentary (Indiana UP 2001) (hereafter Bill Nichols, Representing Reality); Bill Nichols, Introduction to Documentary (Indiana UP 2001); Patricia Aufderheide, Documentary Film: a Very Short Introduction (OUP 2008). For the complete list of the United States National Film Registry see Library of Congress accessed 6 June 2018. 11 Robyn Hillman-Harrigan, ‘The Reckoning—Interview with Director Pamela Yates’ Huffington Post (13 August 2009, updated 6 December 2017) accessed 6 June 2018. 12 ‘The Court’ (Science Guide, 3 April 2009) accessed 6 June 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Moving Images: Modes of Representation 587 place on a screen’.13 Especially the former Chief Prosecutor, Moreno Ocampo, has enthusiastically solicited collaboration with visual artists and organizers of film festivals, emphasizing that filmmakers ‘can spread the truth beyond the courtroom’ because ‘movies are connecting us, movies are building a new community’.14 Human rights organizations have also played a crucial role in propagating, dissemin ating, and sometimes defending documentary films.15 One of the most important tools at their disposal is human rights film festivals, such as the Human Rights Watch Film Festival or Movies that Matter, which is sponsored by Amnesty International. In the past few years, several documentaries on the ICC have been launched at such festivals, which subsequently opened doors to television broadcasting companies as well as providers such as Netflix.16 As a result, broad audiences have learned about the ICC through the lens of advocacy documentary makers. While court proceedings are often poorly attended, documentary films attract many people at film festivals, numerous hits on the internet,17 and sometimes a considerable audience on television. Secondly, the criticism of Nanook of the North illustrates an important assumption at work in documentary film. As Thor Jensen put it: ‘When we sit down to watch a documentary film, we enter into a social contract with the moviemakers: what they’re about to show us is true, to the best of their abilities’.18 Failure to live up to this contract will generally elicit criticism; while parading under the banner of a documentary, the film in question was actually fiction. Whereas it is evidently fair practice for fiction films to use actors, staged scenes, and re-enactments, the expectation of documentary viewers is that they get the ‘real thing’: on-site shots, the actual people involved in events, real archival material. Documentary film, in the words of Bill Nichols, asks us to ‘consider it as a representation of the historical world rather than a likeness or imitation of it’.19 Of course, filmmakers can deliberately choose to play with the boundaries between fiction and documentary film, e.g., by using re-enactments or animations. Examples include Errol Morris’s The Thin Blue Line (using re-enactments) or Rithy Panh’s The Missing Picture (using clay figures to recreate the events in Cambodia under Pol Pot). However, it is not for nothing that these techniques are considered as exceptions that should be openly accounted for by the documentary maker. As Eitzen has put it, ‘a 13 Cynthia Weber, Imagining America at War: Morality, Politics and Film (Routledge 2006) 137 paraphrasing and quoting Nicholas Mirzoeff, An Introduction to Visual Culture (Routledge 1999). 14 Luis Moreno Ocampo, Cinema for Peace Gala Speech 2011 accessed 6 June 2018. 15 For an example of Human Rights Watch defending Kony 2012 see Anneke Van Woudenberg, ‘How to Catch Joseph Kony’ Human Rights Watch (Salon, 9 March 2012) accessed 6 June 2018. 16 See, e.g., Edet Belzberg, Watchers of the Sky (2014). 17 The classical example is Kony 2012, which went viral shortly after it was released. As of April 2016, the film has reached over 100 million viewers. 18 K. Thor Jensen, ‘5 controversial documentaries that blurred the line between fact and fiction’ (IFC, 1 September 2015) accessed 6 June 2018. 19 Bill Nichols, Representing Reality (n 10) 110.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

588 Sofia Stolk and Wouter Werner documentary is any motion picture that is susceptible to the question, “Might it be lying?” ’20 Thus, while both Netflix series such as Crossing Lines and documentaries such as The Reckoning or Prosecutor claim to be about the ICC, the former works with actors, sets, and (very) fictional cases, whereas the latter use representations of the actual building of the ICC, shots and interviews with people who actually suffered from crimes, and who actually work for the ICC.

B. Combining Presentation and Representation Documentaries do more than represent reality, however. Documentary films on inter national criminal law, for example, do not depict actual victims, court buildings, or prosecutors just for the sake of it. The representations of reality are used to tell a story, and to develop an argument about international criminal law. Documentary film, to quote Nicholls again, ‘is destined to bear propositions. “This is so, isn’t it?” is the gist of the common and most fundamental proposition we find’.21 Documentary films thus combine representations of the world with presentations of an argument about that world. This implies that yet another form of representation is at work: documentary film somehow makes the claim that it is authorized to speak on behalf of the people and events it depicts—or, at least, that it enjoys authority to let people speak in the story presented on screen. This form of representation is not fundamentally different from representations in the political or legal realm, where someone is (or feels) authorized to act in the name of others. As we set out in the introduction, this form of representation often also means that the represented entity is constituted through the act of representation. Thus, through its nostalgic depiction of Inuit life, Nanook of the North also created the typical noble savage inhabiting the barren landscape of the Arctic. Or, more recently, through their depiction of a progressive history of international criminal law, advocacy documentary films evoke and bring about the liberal-minded ‘humanity’ that supposedly drives the fight against impunity. This is not to say that documentary films’ claims to authority are always successful. For example the short documentary film Kony 2012 claimed to provide authoritative representations of the situation in Northern Uganda, as well as a morally uncontestable message: capture Joseph Kony and send him to the ICC. However, when the film was screened in the region, the population was offended by what it perceived as misrepresentations in the film.22 As the film proceeded, more and more people expressed their dissatisfaction, and ‘the event ended with the angrier 20 Dirk Eitzen, ‘When is a Documentary?: Documentary as a Mode of Reception’ (1995) 35(1) Cinema Journal 81–102. 21 Bill Nichols, Representing Reality (n 10) 114. 22 Elizabeth Flock, ‘Kony 2012 screening in Uganda met with anger, rocks thrown at screen’ Washington Post (15 March 2012) accessed 7 June 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Moving Images: Modes of Representation 589 members of the audience throwing rocks and shouting abusive criticism, as the rest fled for safety, leaving an abandoned projector, with organizers and the press running for cover until the dust settled’.23 Some documentaries explicitly problematize their authority to represent. This is done, for example, in Dziga Vertov’s classic Man With a Movie Camera (1929). At one level, the film shows different aspects of city life in the Soviet Union. However, at another level, the film problematizes what it is to represent social life in film: it contains several shots showing how sets are staged or how the film is shot and edited. In line with Bertolt Brecht’s idea of the alienation effect in theatre, the point of these techniques was to spur critical reflection in the audience and to make it aware that the world presented on screen is the result of a series of artistic decisions. However, when it comes to documentaries in the field of international criminal law, such modes of representation are absent.24 As we will set out in this chapter, most documentaries on international criminal law use the so-called ‘expository mode’, that is centred around a verbal central argument or message about the represented world. Some common ways to communicate arguments and knowledge in expository documentaries are the use of text appearing before images are shown,25 the use of an impersonal, invisible voice-over (‘voice of God’ narration),26 and the construction of a coherent argument via the voice of one of the main characters of the film.27 Expository documentaries show representations of the world in order to confirm and illustrate the main argument; they privilege ‘saying’ over ‘showing’.28 Less frequently, documentaries about international criminal law themes use techniques of the so-called ‘observational mode’.29 This mode of representation privileges ‘showing’ over ‘saying’30 by letting the presented world speak ‘for itself ’, as if the camera, editor, and film-makers were just flies on the wall that did not interfere with the way in which reality unfolded. An example of the observational mode outside the field of international criminal law can be found in Armadillo, a documentary on Danish troops in Afghanistan that contains no voice-over, verbal narration, or interviews. Through the use of observational techniques, the audience gets the feeling that it is co-present at the events represented on screen and able to form its own interpretations about the represented world. Of course, the feeling of authenticity and co-presence is also the result of artistic and political decisions made by filmmakers, camera crew, and editors. After all, even observational documentaries seek to do more than simply represent facts; 23 ibid. 24 In documentary film theory such documentaries are labelled as ‘reflexive’ documentaries; Bill Nichols, Introduction to Documentary (2nd edn, Indiana UP 2010). This is not to say that reflexivity as such is absent in documentaries on international criminal law; however, this specific mode of documentary representation has not been used so far. 25 E.g. documentaries from the 1930s produced to propagate and educate the American people about the New Deal, including The River, The Plough that Broke the Plains, and The City. 26 E.g. The Reckoning and The Prosecutor. 27 E.g. The Court and Watchers of the Sky. 28 Carl Plantinga, ‘What a Documentary Is, After All’ (2005) 63(2) The Journal of Aesthetics and Art Criticism 105, 114–15 (hereafter, Plantinga, ‘What a Documentary Is’). 29 Bill Nichols, Representing Reality (n 10). 30 Plantinga, ‘What a Documentary Is’ (n 28).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

590 Sofia Stolk and Wouter Werner they too aim to say something about the world, albeit in an often more indirect and ambiguous way.

III. The Representation of Victims in Documentary Film A. Ideal Victims As we have set out so far, expository documentaries revolve around verbal messages or arguments. One of the techniques often used in such documentaries is the presentation of contrasts.31 This can be seen, for example, in Frank Capra’s Why We Fight, Prelude to War (1942),32 the first in a series of documentary films commissioned by the US government to solicit support for its involvement in the Second World War. The film is structured around an opposition between the ‘free world’ and the ‘slave world’. People from the free world are portrayed as hard working individuals, whereas inhabitants of the slave world are shown as masses, with the exception of their leaders who are depicted as the embodiment of evil (‘Remember their faces. Remember them well. If you ever meet them, don’t hesitate’). In similar fashion Kony 2012 builds up its argument around contrasting images and propositions. One crucial contrast is that between ‘old’ and ‘new’, where the old world stands for inaction and impunity, and the new world for a caring active world community connected via social media. Another contrast is that between the victims and the documentary maker who comes to the rescue of those suffering from the crimes committed by Kony and his army. Where victims appear as vulnerable and in need of external intervention, the documentary maker himself appears as active, caring, and ready to step in. At 7:22 of the documentary, for instance, we see a child victim of Kony telling the story about his killed brother. After a little while, the child breaks down and starts crying. The screen turns black and we hear the comforting voice of the documentary maker, seemingly appearing out of nowhere: ‘It’s okay; Jacob it’s okay’; followed by a part where the documentary maker actively explains his promises and plans to the audience. Similar contrasts can be found in several documentary films on the ICC, such as The Reckoning, The Court, Prosecutor, and Watchers of the Sky. While not identical of course, these four films all contain comparable storylines and largely the same central message.33 The viewers are called upon to actively support the ICC, not to stop believing 31 For an analysis of the use of contrast in documentary film see Louise Spence and Vinicius Navarro, Crafting Truth; Documentary Forms and Meaning, (Rutgers University Press 2011) 113–120. The example of Why We Fight is taken from their analysis. 32 accessed 7 June 2018. 33 For a more in-depth analysis of these four films see Wouter G. Werner, ‘Justice on Screen - A Study of Four Documentary Films on the International Criminal Court’ (2016) 29(4) Leiden J of Intl L 1043.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Moving Images: Modes of Representation 591 in its importance despite the numerous challenges and criticisms. After all, the success of the Court is under constant threat: from unwilling US administrations, from warlords, from African states granting immunity to suspected criminals, from the human tendency to go around in endless circles of violence and revenge. These threats are shown abundantly in ICC advocacy documentaries, often with shocking imageries of violence and their effects. The point of showing these threats is to solicit support for the Court: although the ICC is presented as the outcome of a progressive history, it is also shown as vulnerable. The danger that societies lapse into primitive, violent modes of conflict resolution always looms large; and without support (including that of the viewer), the ICC is unable to complete the natural course of history. Thus, at the end of documentaries such as The Reckoning, Prosecutor, The Court, or Watchers of the Sky the viewer is confronted with a similar message, each time delivered by former Nuremberg prosecutor Ben Ferencz against the background of wide, open spaces. After having shown the history of inter national criminal law, the workings of the prosecution, and the endless threats to the success of the Court, the documentaries end with a personal message from an iconic figure in the field: as history has taught us, our orientation should be towards the future. And as exemplified by the life and persona of Ben Ferencz, the viewer should feel proud, concerned, and ready to act at the same time. This message is developed throughout the films via a series of contrasts. One prominent example is the opposition between victims and the ICC. Of course, the point that these documentaries try to drive home is that there is no opposition between the two: the struggle against impunity is fought by the ICC for the benefit of the victims. However, in order to make this point, the films present all kinds of contrasts between the ICC and victims. Victims are often portrayed as ‘local’, suffering, bodily, and lacking appropriate voice. The ICC, by contrast, appears as global, rational, disembodied, and possessing a voice that matters. Take for example the opening scene of The Reckoning, which shows two people walking in a field of high grass in total silence, apart from the soft sounds of crickets and birds. One person leads the way and shows to the other, who is carrying a notepad, the exact location of a skull and the remains of a skeleton in the field. Then tragic, slow music sets in, followed by images of a line of men walking through the field. The men all appear to be survivors or first-hand witnesses to mass atrocities. However, true to the expository nature of the documentary, viewers are immediately reminded of what these images of mass atrocities stand for. First by one of the men walking through the field, who explains to the audience: ‘In this place killers go unpunished. Without justice people have no respect for each other. If this goes unpunished, it will happen again. Communities will go on killing each other’ (1:30). Subsequently, images of suffering are directly linked to images of the ICC. After the brief testimony of the man in the field, the tragic music grows louder, and we see the tormented face of the survivor from the opening scene. Then, immediately, we hear a chairman’s hammer, and the survivor looks up as if he is hearing the same sounds. Coming from afar, we hear a voice from The Hague, declaring the birth of a new era: ‘[t]he International Criminal Court is now in session’,

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

592 Sofia Stolk and Wouter Werner followed by images of the courtroom, and the voice of the prosecutorial team putting the local suffering in global and historical perspective: ‘During the previous century millions of people were the victims of unimaginable atrocities’ (1:52). It was the realization that such crimes concern the international community and should not go unpunished, the prosecutor continues, that led to the creation of an independent, permanent criminal court. Shortly after this message, we see images of the old ICC building (taken from below, looking up to the top), and shots from lawyers at work in the rooms and corridor of the building. The opening scene mobilizes two oppositions, the earlier discussed opposition between victims and the ICC, and another opposition in the presentation of history as both an endless cycle of violence and revenge and a progressive development towards the end of impunity. The opening scene starts out with images of intense suffering taking place in a specific, yet unnamed location that apparently is rooted in a cyclical history of violence and revenge. The film then moves to the prosecutor’s speech, which reframes the suffering shown in the first shot as exemplary, as representative of the harm done to millions of people throughout history. Subsequently, we are asked to view the suffering as contributing to a different kind of history: no longer cyclical and violent, but progressive and peaceful. Confronted with the suffering of so many people, the inter national community has come to realize that the time has come for a new way of dealing with mass atrocities; that the rule of law should replace cycles of revenge. In this way, advocacy documentaries have helped produce what Kendall and Nouwen have called the ‘abstract victim’; a victim that is made present through the discourses of international criminal law. In this context, it is worth recalling that documentaries not only seek to make a rational argument about the world. Especially advocacy documentaries are also meant to cultivate emotions, to educate audiences on how to feel about certain issues. Through a combination of sound, image, and narration, the documentary teaches its audience a certain attitude, a ‘proper’ state of mind when it comes to victimhood and international criminal law. This implies that not just any kind of victim will do for advocacy documentaries. In order to drive home a message about international criminal law as a redemptive force in history, such documentaries tend to create so called ‘ideal victims’; archetypical victims that come across as vulnerable and dependent.

B. Alternative Messages As we stated earlier, documentaries use representations of reality in the function of arguments or propositions about the world. This means that similar representations of the social world can be used to communicate quite different messages. Take for example Peace vs Justice, a documentary film on the intervention of the ICC and the peace process in Uganda. This film, too, uses images of victims of the Lord’s Resistance Army to underpin a central argument about the role of the ICC. However, this argument is diametrically opposed to the one put forward in, for example, The Reckoning, The Court,

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Moving Images: Modes of Representation 593 Prosecutor, or Watchers of the Sky. The ICC is not portrayed as a redemptive force in history, but as a threat to the peace process in Uganda. Victims and their suffering are shown to illustrate the importance of making peace with the Lord’s Resistance Army as well as the need to ensure that fighters feel safe enough to leave the bush and reintegrate in society. The imagery of victims thus partly overlaps with what is shown in pro-ICC advocacy documentaries, but what the images stand for differs fundamentally. Victims and images of victimhood are shown to illustrate what happens if the ICC meddles with the peace process, not to solicit support for criminal prosecutions. For that reason, victims also appear as more vocal and outspoken than in pro-ICC documentaries. They make a case for forgiveness and reconciliation that underpins the more general, critical message of the documentary as a whole. Yet another portrayal of victims can be found in Carte Blanche, a documentary film on the Bemba trial before the ICC. The documentary is predominantly filmed in the observational mode, without voice-overs, music, text on screen, or an explicitly spelled-out central argument. As a result, the viewer gets a ‘sense of intimacy with the material documented’, as well as the impression that ‘it is not the filmmaker but the event that determines the length and nature of [a] shot’.34 This impression is confirmed by the inclusion of relatively long shots of seemingly mundane activities such as making food, setting up a building, or preparing for a field trip. Watching these long episodes can even create feelings of uneasiness in the audience, because the viewer may feel that she is intruding in the private lives of the people represented. In one of the final shots, for example, the documentary shows how a mother washes her daughter’s wounds—wounds that were caused by crimes committed when the daughter was young, and that would never heal because the family was too poor to pay for proper treatment. Without any commentary or music, the film follows the mother’s preparations and documents the girl’s screams of pain and fear. Precisely because there is no apparent intervention from the filmmaker, the viewer gets the feeling she is copresent at a place where she does not belong. The observational style makes it virtually impossible to portray victims as ‘ideal’ victims, as icons for victimhood. Instead, because of the attempt to privilege ‘showing’ over ‘saying’, the documentary zooms in on the social and political environment of the victims and offers them a platform to discuss what the crimes committed mean for their lives. However, the documentary does more than show contextualized lives of victims. Although its techniques are observational, the documentary does tell a story, and provides an argument about international criminal law. The story is one about the creation of victims in international criminal law and fits the analysis of the ‘victim participant’ by Kendall and Nouwen.35 Carte Blanche too is structured around a set of contrasts, in particular the contrast between the experiences of people living in a village that has been attacked by Bemba’s troops and the attempts of different experts that try to articulate what happened in terms 34 Louise Spence and Vinicius Navarro, Crafting Truth: Documentary Form and Meaning (Rutgers UP 2010) 195. 35 See Introduction (n 5).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

594 Sofia Stolk and Wouter Werner fitting international criminal law. The documentary follows witness experts, who explain the difficulties involved in translating personal experiences into testimonies that hold up in court. Moreover, the film portrays the work of forensic experts, who are equally aware of the processes of selection and reframing that come with criminal investigations. Finally, the film shows how legal experts are bound to translate the experiences of victimized communities into questions of jurisdiction, rules of procedure, elements of crimes. The film thereby portrays victims in two different ways: as people with specific experiences that try to retake their lives and as a category of international criminal law, produced through a process of translation by different experts.

C. The Bureaucratic Victim Not only documentary makers but also the ICC and other international criminal tribunals themselves have taken up the practice of making and distributing videos of their work;36 a practice that is directly connected to an explicit commitment to transparency37 and the ICL mantra that ‘justice must be seen to be done’. In May 2008, the ICC’s Public Information and Documentation section started an audio-visual project.38 Their audiovisual team regularly publishes videos on the ICC’s YouTube channel, t can be viewed worldwide and further transmitted by international and regional media.39 The channel presents a mix of different types of videos: trial summaries, Q&As with courtroom staff, announcements, event registrations, and informative videos about the purpose and work of the Court. The self-produced videos about the ICC are primarily characterized by images of the institution’s daily work. They show courtroom proceedings, offices, and explain proceedings or cases. The set of clips labelled ‘institutional videos’ also include a short history of the ICC, its goals, and its values, comparable to the presentation of the Court in expository documentaries such as The Reckoning.40 Still, these more contextual videos largely consist of the visualization of the Court’s everyday bureaucratic reality. In these documentary videos, the victim is part of the bureaucracy. The ICC’s YouTube channel includes a separate playlist entitled Victims at the ICC,41 and the video 36 See, e.g., the media page of the ICC ; the self-produced documentaries of the ICTY ; the online video archive of the ECCC all accessed 16 December 2018. 37 See, e.g., the recurring references to transparency in Office of the Prosecutor of the ICC, ‘Strategic Plan 2016–2018’ (16 November 2015) accessed 7 June 2018. 38 A video about this Public Information and Documentation section can be found on YouTube, see ‘The ICC audio visual project’ (29 March 2010) accessed 7 June 2018. 39 accessed 7 June 2018. 40 These videos are grouped in the playlist ‘about the court’: accessed 7 June 2018. 41 accessed 7 June 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Moving Images: Modes of Representation 595 entitled ‘Victims’ participation before the International Criminal Court’ is the video that was selected as the opening video on the channel’s homepage.42 However, while victims and affected communities are central in the presentation of the ICC’s raison d’être, they only marginally appear in the ICC’s self-produced videos, in a supportive rather than a central role. For example, the homepage video opens with multiple images that show the courtroom in The Hague, but also local communal gatherings and operative armed forces. However, after this introduction the video immediately turns into a technical story when the outreach coordinator takes the viewers on a tour in the ICC building while she explains the victim participation procedure. After that, images of ICC staff members ‘in the field’ become more prominent, but the bureaucratic story prevails. Repeatedly, a split-screen shows images of villagers in affected areas who are sitting in rows while listening to an ICC staff member on one side, and the headshot of an ICC staff member who explains the proceedings to the YouTube viewers from an office environment on the other. The emphasis lies on the bureaucratic process and expert commentary, not on the crimes, the suffering, or the opinions of the victims. Illustrative is the scene where two NGO workers interview a victim who potentially wants to participate at the ICC. Probably for security reasons we see only the interviewers’ faces, not of the victim. The conversation concerns only procedural issues of protection for the participating victim, and while it unfolds, the camera zooms in on a shelf with legal books in the office. Here, the victim appears as part of the procedural machinery. Not the suffering ‘ideal’ victim nor the vocal argumentative victim but the bureaucratic victim is central to these promotional materials. A similar representation of the victim appears in the Court’s informative YouTube programmes such as Ask the Court, In the Courtroom, and ICC at a glance. These informative programmes aim to explain the courtroom proceedings in laymen terms and emphasize the good work the Court is doing. The majority of the programmes are set up as static Q&A sessions, suggesting that victims and members of the affected communities can submit their questions to the ICC. In these Q&A videos, characteristically, a question will appear written in white letters on a black screen and be read aloud, after which an ICC staff member will answer the question.43 These videos give the impression that the ICC is directly answering questions from people from affected communities who follow the proceedings from afar, adhering to the Court’s ideal of an ‘effective system of two-way communication’.44 What it also suggests, is that the same local people are 42 Victims’ participation before the International Criminal Court (ICC) (23 April 2013) accessed 7 June 2018. 43 See for example one of the first episodes ‘Les Congolais demandent à la Cour pénale internationale’ (4 October 2009) ; ‘Kenya situation - Ruto and Sang case: Ask the Court programme’ (28 August 2013) ; ‘Affaire Bosco Ntaganda : Programme “Demandez à la Cour” ’ (9 June 2014) all accessed 7 June 2018. 44 ICC, ‘Strategic Plan for Outreach of the International Criminal Court’, Assembly of States Parties, 5th session, ICC-ASP/5/12 (29 September 2006) at 3 accessed 7 June 2018 (hereafter ICC,

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

596 Sofia Stolk and Wouter Werner watching the videos to obtain the answers to their questions. In a very early episode, the ones who ask the questions actually appear on the screen and ask their question themselves. However, most recent videos are limited to projecting the questions on the screen, while the source of the question remains unclear and there is no explanation of how these questions reach the Court and whether it is possible to submit a question. The Ask the Court videos usually explain the judicial terms, decisions, and unfolding procedures. In the early episodes, different staff members address different questions, usually from their offices. In more recent videos, the questions are mainly or exclusively answered by the ICC spokesperson. Questions are for example: What is the International Criminal Court? Is the ICC an office or an agency of the United Nations? How long will the process against Thomas Lubanga Dyilo last? Why did the ICC reject the request to hold the hearings in Kenya or in Tanzania? Will there be any breaks when the trials begin, or will they continue uninterrupted? What did the Appeals Chamber decide regarding Mr Ruto’s presence at the hearings? Who can be prosecuted by the ICC for the crimes in Mali? While the questions are presented as rather straightforward issues about the ICC procedures to which the Court has an objective or ‘neutral’ response, the answers, clearly, and perhaps unsurprisingly, send out an unequivocal message of support for the ICC. As with the documentaries, these audio-visual productions contain an argument about the meaning of ICL. Rather than a conversation between Court and audience, these are promotional videos that match the ICC’s strategic plan for outreach and its objectives to ‘promote greater understanding of the Court’s role during the various stages of proceedings with a view to increasing support among the population for their conduct’ and to ‘counter misinformation’.45 The latter is interesting in light of the increasing critique on the ICC’s bias, which is firmly rejected by the Court itself.46 For example, in one episode of Ask the Court about the situation in Mali, the following question is displayed: ‘there are allegations that the ICC is only targeting African countries. Is that true?’47 The ICC spokesperson responds by saying that ‘[t]he ICC is a judicial institution that is permanent and independent. It is not subject to any political control’. He states the facts that portray the ICC in the most favourable light, for example that four out of eight investigations in Africa were self-referred by the states and two were opened based on Security Council resolutions. Furthermore, he sums up the preliminary investigations that are conducted outside of Africa, and emphasizes the strong African support for the ICC at the Rome conference and the continuing support from African civil society. The question is phrased as a ‘yes/no’ question, as if there is a zero-sum answer, and the Court is presented as the authority to answer this question. The ICC is ‘Strategic Plan for Outreach’). See also Sofia Stolk, ‘The Victim, the International Criminal Court and the Search for Truth: On the Interdependence and Incompatibility of Truths about Mass Atrocity’ (2015) 13(5) J for Intl Crim Justice 973, 980 (hereafter Stolk, ‘The Victim’). 45 ICC, ‘Strategic Plan for Outreach’ (n 44) 5 (emphasis added). 46 Jillian Dobson and Sofia Stolk, ‘The Prosecutor’s Important Announcements; the Communication of Moral Authority at the International Criminal Court’ (2016) Law, Culture and the Humanities accessed 7 June 2018 (hereafter Dobson and Stolk, ‘The Prosecutor’s Important Announcements’). 47 ‘ “Ask the Court” programme – Situation in Mali’ (18 January 2013) accessed 7 June 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Moving Images: Modes of Representation 597 not engaging in dialogue that takes the origins of this critique seriously, but rather evades making any substantive response by simply rejecting the Court’s relation to politics.48 The videos are part of the ‘activities to provide information to victims and witnesses and other members of affected communities’,49 but do not take the form of the ideal twoway communication.50 In these videos, the victims and affected communities are invis ible enablers who ask the questions but are not invited to give their own opinion, and are not allowed to talk back. The representation of the victim as an invisible person with questions to the Court facilitates the presentation of the Court as an authoritative and respected institution. The replacement of real people asking real questions with a more sterile verbalization of what an abstract viewer presumably asked to the Court signals an increasing emphasis on technicalities and emphasizes the bureaucratic function of the victim. The victims assist the Court, their questions enable the Court to explain its work and to elaborate on its ideal. In these instructive videos, the invisible victim gives voice to the Court rather than the other way around. The static setting of the Q&A videos departs from the idea of moving images. While there is some ‘movement’ in the videos through the inclusion of real talking heads, these audio-visual productions are closer to a Frequently Asked Questions list than to a movie. The textual content is more important than the images. Bureaucracy prevails over people. A clear choice of focus was made in these videos: they depict the practical work of the Court and its staff, not the victims and their stories. Attention to the individual suffering of the victim, other than some introductory images, cannot be appropriately placed in a video that focuses on the institutional reality of the Court and its procedures. In that sense, these videos reflect a balancing act that also takes place in the ICC’s courtrooms. The tension between text and image resembles the constant struggle of international criminal trials to translate stories of unimaginable, unspeakable suffering into technical legal language.51 The victim-centred approach demands that experiences of victims must be seen, heard, and acknowledged, but the form of a criminal trial affects the presentation of their stories. The image of victimhood has a place in the introduction of trial and video alike, but ‘[w]hen the judicial plot takes the overhand, the bigger picture and the contextualization of the suffering itself is pushed aside’.52

IV. Conclusion In this chapter, we have examined the audio-visual life of victims of mass atrocity in documentaries and self-produced videos about the ICC. Two aspects of documentary 48 This seems to be the dominant strategy in ICC communication, for example in the OTP press releases, see Dobson and Stolk, ‘The Prosecutor’s Important Announcements’ (n 46). 49 ICC, ‘Strategic Plan for Outreach’ (n 44). 50 ibid 3. 51 Stolk, ‘The Victim’ (n 44) 985. On the inexpressibility of suffering, see, e.g., Iain Wilkinson, Suffering: A Sociological Introduction (Polity Press 2005); Elaine Scarry, The Body in Pain: The Making and Unmaking of the World (OUP 1985). 52 Stolk, ‘The Victim’ (n 44) 989.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

598 Sofia Stolk and Wouter Werner film gain an interesting meaning in light of the ICC’s ideals: they attract audiences and they are presumed to tell the truth. Equally so, the ICC aims to reach an audience as large as the whole world and claims to present to us the truth about mass atrocity. Not surprisingly, the ICC makes use of video to spread its message and has been depicted by documentary makers. The ‘second’ life of international criminal law’s subjects on the screen might even be the primary way in which they reach the audience that inter national criminal law aims to serve. This includes a representation of the victim that is not merely an authentic reflection of ‘reality’ but always part of an argument, part of a story that means to say something about the work of the Court and its place in the world. The majority of documentaries about the ICC are expository rather than observatory or reflexive. They show an ‘ideal’ victim who is waiting for the Court to be saved. These stereotypical victims are silent stereotypes that legitimize the ICC’s redemptive force and its ability to bring justice, peace, and individual as well as collective restoration. Similar images of victims can however also be integrated in a different argument: an argument that undermines the ideals of the ICC, or one that estranges the audience from the victim as an icon and points to the difficulty of translating victims’ stories into international criminal law’s categories. Finally, the video productions of the ICC itself show us a bureaucratic victim. A victim that enables the Court to do its work and to explain its work in the most favourable terms. This is an active victim, a participating victim, but still a victim that can be represented by the Court only as long as it fits within the procedural box. In its most extreme form, the image of the victim who interacts with the Court is replaced by text. Paradoxically, this means that the ultimate representation of the victim in the ICC’s audio-visual productions is an invisible one.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Section VII

A N X I ET I E S

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

chapter 26

I n ter nationa l Cr imi na l Tr ibu na l Back l ash Henry Lovat1

I. Introduction After promising beginnings, post-Cold War international criminal tribunals have increasingly faced strident criticism from important constituencies, including previously supportive governments. This has prompted concern about declining support for and ‘backlash’ against such tribunals,2 amidst broader debates about similar tendencies affecting international adjudication more generally.3 Despite the hand wringing involved, however, backlash remains a poorly understood, ill-defined term, typically utilized as loose shorthand for a range of misgivings about, and forms of opposition to, aspects of international tribunal conduct on the part of a widely disparate range of actors. As interest has grown, however, a more sophisticated literature has developed

1 Lord Kelvin Adam Smith Research Fellow, School of Law, University of Glasgow. I am grateful to Anne van Aaken, Pierre d’Argent, Franzizka Boehme, Geoff Dancy, Cian O’Driscoll, Courtney Hillebrecht, Kurt Mills, Ian Paterson, Yael Ronen, Yuval Shany, Ty Solomon, Scott Strauss, Shaina Western, colleagues at the University of Glasgow International Law Working Group, as well as the volume editors, for helpful comments and discussions. 2 See, e.g., Florian Jessberger and Julia Geneuss, ‘Down the Drain or Down to Earth? International Criminal Justice under Pressure’ (2013) 11(3) J of Intl Crim Justice 501 (and others in same volume). 3 See ‘The Observer View on the Effectiveness of International Law: Observer Editorial’ (The Guardian, 17 December 2017) accessed 20 October 2018; Mark J Osiel, ‘The Demise of International Criminal Law’ (Humanity Journal, 10 June 2014) accessed 20 October 2018; David Luban, ‘After the Honeymoon: Reflections on the Current State of International Criminal Justice’ (2013) 11(3) J of Intl Crim Justice 505.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

602 Henry Lovat examining backlash, its manifestations, causes, and implications in the context of criminal and other international tribunals.4 Part II of this chapter reviews historical and more recent examples of opposition to international criminal tribunals. Part III then considers recent scholarly approaches to international tribunal backlash and presents a working definition of this phenomenon. The following part draws on International Relations (IR) theory to identify a set of potential drivers of international criminal tribunal backlash, enabling structured, crosscase comparison. Part V to VII apply this theoretical framework, examining drivers (and inhibitors) of backlash against the ICC, the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the Special Tribunal for Lebanon (STL) from South African, Serbian, and Lebanese governments respectively. A concluding discussion follows.

II. International Criminal Tribunals: Opposition (and Backlash) Opposition to international criminal tribunals, and indeed to international adjudicatory bodies generally, is not a new phenomenon.5 The prototypical Nuremberg trials were controversial even amongst the Allied powers that established the International Military Tribunal,6 while the counterpart Tokyo tribunal was famously subject to criticism from

4 For recent examples see, e.g., Mikael Rask Madsen, Pola Cebulak, and Micha Wiebusch, ‘Backlash against International Courts: Explaining the Forms and Patterns of Resistance to International Courts’ (2018) 14(2) Intl J of L in Context 197 (hereafter Madsen and others, ‘Backlash against Intl Courts’) (and accompanying articles in special issue); David Caron and Esme Shirlow, ‘Dissecting Backlash: The Unarticulated Causes of Backlash and Its Unintended Consequences’ in Andreas Follesdal and Geir Ulfstein (eds), The Judicialization of International Law: A Mixed Blessing? (OUP 2018) 159 (hereafter Caron and Shirlow, ‘Dissecting Backlash’); Laurence R Helfer and Anne E Showalter, ‘Opposing International Justice: Kenya”s Integrated Backlash Strategy against the ICC’ (2017) 17 Intl Crim L Rev 1; Wayne Sandholtz, Yining Bei, and Kayla Caldwell, ‘Backlash and International Human Rights Courts’ ([NOTE – NOW PUBLISHED AS CHAPTER IN: Contracting Human Rights: Crisis, Accountability, and Opportunity, EDS. Alison Brysk, Michael Stohl, ELGAR 2018. PP. 159–178. ALL REFERENCES NOW UDPATED TO REFLECT.) (hereafter Sandholtz and others, ‘Backlash and IHR Courts’); Karen J Alter, James T Gathii, and Laurence R Helfer, ‘Backlash against International Courts in West, East and Southern Africa: Causes and Consequences’ (2016) 27(2) European J of Intl L 293. 5 See, e.g. Jean Kirkpatrick’s 1984 (in)famous characterization of the International Court of Justice as a ‘semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don’t’ cited in Roman Rollnick, ‘World Court Has Prestige but Little Power’ (UPI Archives, 12 May 1984)

accessed 20 October 2018. 6 Kirsten Sellars, ‘Imperfect Justice at Nuremberg and Tokyo’ (2010) 21(4) European J of Intl L 1085; Francine Hirsch, ‘The Soviets at Nuremberg: International Law, Propaganda, and the Making of the Postwar Order’ (2008) 113(3) The American Historical Rev 701; Sheri Rosenberg, ‘An Introduction’ (2006) 27 Cardozo L Rev 1549; Telford Taylor, ‘The Nuremberg Trials’ (1955) 55(4) Columbia L Rev 488.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Tribunal Backlash 603 its own bench.7 State and non-state resistance also marked the work of the ad hoc international criminal tribunals established in the wake of the Cold War, the ICTY and ICTR encountering overt, robust opposition from (various) Bosnian, Croatian, Serbian, and Rwandan communities and governments at different times, particularly from constituencies targeted by these institutions.8 The hybrid tribunals established during the 1990s and since have also experienced varying degrees of opposition from state and non-state parties. As with the ad hoc tribunals, this has been most evident amongst groups targeted (or that have perceived themselves as likely to be targeted) by these institutions: Hezbollah in the case of the STL and the Indonesian leadership in the case of the Special Panels for Serious Crimes in Timor Leste.9 Domestic opposition similarly stymied a 2000 UNMIK initiative to establish a Kosovo War and Ethnic Crimes Court with jurisdiction over crimes committed against ethnic Serbs. The Specialist Chambers established in 2015 as part of the Kosovo court system remain controversial, moreover, and have yet to hear any cases.10 The experience of the Extraordinary Chambers in the Court of Cambodia is comparable, with a reluctant government dragging its feet in pursuing indictees and displaying little commitment to sustaining the court financially.11 7 Radhabinod Pal, International Military Tribunal for the Far East: Dissentient Judgment of Justice RB Pal (Kokusho Kankokai 1999). 8 See generally Victor Peskin, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation (CUP 2008) (hereafter Peskin, International Justice in Rwanda and the Balkans). See also James Gow, Rachel Kerr, and Zoran Pajic (eds), Prosecuting War Crimes: Lessons and Legacies of the International Criminal Tribunal for the Former Yugoslavia (Routledge 2013). 9 Caitlin Reiger and Marieke Wierda, ‘The Serious Crimes Process in Timor-Leste: In Retrospect’ (International Center for Transitional Justice, March 2006) accessed 20 October 2018; Herbert D Bowman, ‘Letting the Big Fish Get Away: The United Nations Justice Effort in East Timor’ (2004) 18 Emory Intl L Rev 371; ‘Justice Denied for East Timor: Indonesia’s Sham Prosecutions, the Need to Strengthen the Trial Process in East Timor, and the Imperative of U.N. Action’ (Human Rights Watch, 20 December 2002) accessed 20 October 2018. 10 ‘New Prosecutor Named as Kosovo War Crimes Court Keeps Working on First Indictments’ (Reuters, Amsterdam, 7 May 2018) accessed 20 October 2018. 11 Jonathan Birchall, ‘Concerns over Bid to Wrap Up Outstanding Investigations at Cambodia’s ECCC’ (International Justice Monitor, 16 June 2017) accessed 20 October 2018. The Special Court for Sierra Leone and AU/Senegal Extraordinary African Courts have been held up as more successful hybrid institutions. See ‘Making Justice Count: Assessing the Impact and Legacy of the Special Court for Sierra Leone in Sierra Leone and Liberia’ (No Peace Without Justice, September 2012) accessed 20 October 2018; Jason Burke, ‘Hissène Habré Trial Provides Model for International Justice’ (The Guardian, 30 May 2016). Caution should also be observed in these instances, however: the trials of Charles Taylor and Hissène Habré took place in institutions established in partnership with states other than Liberia and Chad, the states from which those individuals originated. Important constituencies in both men’s home states also adopted at best ambiguous attitudes towards these trials. See Pierre Hazan, ‘The Trial of Hissène Habré: A Pivotal Case for International Justice in Africa’ (The Conversation, 16 June 2016) accessed 20 October 2018; Randy Kreider, ‘Liberia: Opposition Would Welcome Warlord Charles Taylor Home’, ABC News, 11 October 2011, accessed 30 September 2019. 12 For a helpful overview, see Sanji Mmasenono Monageng, ‘Africa and the International Criminal Court: Then and Now’ in Gerhard Werle, Lovell Fernandez, and Moritz Vormbaum (eds), Africa and the International Criminal Court (T.M.C. Asser Press 2014) 13. 13 Related distinctions might be drawn between (potentially widespread) government ambivalence or wariness about international adjudication generally and instances of (e.g.) objection, contestation, resistance, and backlash. See Ximena Soley and Silvia Steininger, ‘Parting Ways or Lashing Back? Withdrawals, Backlash and the Inter-American Court of Human Rights’ (2018) 14(2) Intl J of L in Context 240 (here after Soley and Steininger, ‘Parting Ways’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Tribunal Backlash 605 to international courts’,14 while Madsen, Cebulak, and Wiebusch refer to ‘ordinary resistance occurring within the confines of the system but with the goal of reversing developments in law as constituting “pushback” rather than backlash’.15 Backlash, in contrast, is more extensive in nature. For Sandholtz and others, backlash comprises ‘actions that go beyond resistance and aim to reduce the authority, competence, or jurisdiction of the court’.16 Madsen and colleagues define backlash as ‘extraordinary resistance challenging the authority of an [international court] with the goal of not only reverting to an earlier situation of the law, but also transforming or closing the [court]’.17 These are significant improvements on previous, looser understandings of backlash. Nevertheless, they are limited in important respects. Perhaps the principal challenge is that tribunals and their governing instruments are invariably in a continued process of interpretive and institutional flux as internal and external stakeholders challenge the extent of courts’ (and states’) legitimate authority and exert different forms of pressure on one another and on institutions. Though perhaps rare, states can also withdraw from courts’ jurisdiction for reasons that are not always solely or primarily related to court conduct.18 In short, to define backlash as embracing action challenging the authority of a court and aimed at refashioning, withdrawing from, or closing a tribunal may be overly broad. Operationalizability presents a further difficulty: the above definitions require accurate assessment of actors’ aims in resisting tribunals. This, however, is a problematic endeavour: information available on individual, institutional, and social beliefs, ambitions, and intentions is likely to be incomplete, with primary and secondary accounts possibly biased and partial. Indeed, even triangulating sources is an imperfect means of reducing uncertainty in such circumstances.19 Accordingly, as the primary objective of the present 14 Sandholtz and others, ‘Backlash and IHR Courts’ (n 4) 160. 15 Madsen and others, ‘Backlash against Intl Courts’ (n 4) 203. 16 Sandholtz and others, ‘Backlash and IHR Courts’ (n 4) (examples provided are, ‘When a state acts, or threatens, to: 1. Cease completely to cooperate or comply with the court; 2. Narrow the court’s jurisdiction; 3. Restrict access to the court (limit standing); 4. Withdraw from the court’s jurisdiction or denounce its underlying treaty; 5. Abolish the court’ at 160 (semicolons added)). 17 Madsen and others, ‘Backlash against Intl Courts’ (n 4) 203. Elsewhere, Madsen and others refer to backlash as ‘resistance that goes beyond the ordinary playing field of law and includes a critique of not only law but also the very institution—the court—and its authority’ (ibid 199). This wording omits explicit reference to aims and motivations, but nevertheless also presents difficulties, particularly in respect of identifying the ‘ordinary playing field of law’ in any given instance. See n 21. 18 As observed by Andreas Hofmann in the context of Brexit: ‘The CJEU hardly topped the list of villains in the “Leave” camp’ in ‘Resistance against the Court of Justice of the European Union’ (2018) 14(2) Intl J of L in Context 259 (hereafter Hofmann, ‘Resistance against the CJEU’) This is not to say that CJEU conduct was not a factor in the formation of UK negotiating ‘red lines’, but rather that (likely) withdrawal probably has less to do with the conduct of the CJEU per se than with the UK’s troubled relationship with the European Union. 19 As put by Jacobs: ‘[T]he most readily interpretable manifestation of actors’ cognitive commitments— their own verbal expressions of their ideas—is often a systematically biased indicator . . . . Politics generates strong pressures for actors to employ verbal communication to strategically misrepresent the reasoning underlying their choices’. Alan M Jacobs, ‘Process Tracing the Effects of Ideas’ in Andrew Bennett and Jeffrey T Checkel (eds), Process Tracing: From Metaphor to Analytic Tool (CUP 2015) 45.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

606 Henry Lovat exercise is to explain the causes and dynamics of backlash across multiple contexts, and with a view to facilitating future in-depth case studies and potential quantitative analysis, a definition that reduces the need to decipher intentions and ambitions may hold advantages. One option in this regard is to seek to identify backlash primarily by reference to the means and methods employed rather than to protagonists’ aims. Building on a definition of backlash proffered by David Caron and Esme Shirlow for example, adapting work by Cass Sunstein, we may consider defining international criminal tribunal backlash as ‘intense and sustained government disapproval of tribunal conduct, accompanied by aggressive steps to resist such conduct and to remove its legal force’.20 Before continuing, one element of this proposed definition bears highlighting: in this view, backlash is explicitly manifested in individual government behaviour rather than in the activity of sub-state or transnational groups, or of multiple governments acting in concert. This position reflects a mix of principled and pragmatic considerations. Perhaps most importantly, the privileging of government conduct is consistent with the traditional state-centred nature of international law: as Soley and Steininger succinctly observe: ‘State backlash constitutes the greatest challenge to the authority of an [international court]’.21 Additionally, while the ultimate outcomes of backlash (such as court reform or termination) may depend on the behaviour of multiple governments, individual governments remain the primary agents responsible for bringing about such measures, and states may also withdraw unilaterally from tribunals.22 Last, and with a view to enabling structured, focused comparison of cases, individual government conduct and policy decisions provide a distinct, clear focus for the identification and comparative analysis of backlash as an empirical phenomenon, enabling the same ‘standardized, general’ questions to be asked of cases.23 In short, even if ultimate outcomes depend on a range of actors, it makes sense to look to the behaviour of individual governments in identifying the presence or absence of backlash. See also Andrew Bennett and Jeffrey T Checkel, ‘Process Tracing: From Philosophical Roots to Best Practice’ in Andrew Bennett and Jeffrey T Checkel (eds), Process Tracing: From Metaphor to Analytic Tool (CUP 2015) 27–8. 20 Cass R Sunstein, ‘Backlash’s Travels’ (2007) 42(2) Harvard Civil Rights-Civil Liberties L Rev 435 (emphasis added); Caron and Shirlow, ‘Dissecting Backlash’ (n 4) 160. In a similar vein drawing on Caron and Shirlow, Soley and Steininger define backlash as ‘a process of systematic and consistent criticism of the institutional set-up of an [international court] as well as severe instances of non-compliance’. Soley and Steininger, ‘Parting Ways’ (n 13) 241. 21 ibid 238. Similar sentiments are expressed by Madsen and others in ‘Backlash against Intl Courts’ (n 4) 199 (though as the latter acknowledge, it is also important to look (as the present examination does) beyond government conduct to understand processes of resistance and backlash, ‘[A] state-centric approach to backlash is insufficient, as it tends to reduce the complexity of the processes of resistance to [international courts] to mainly (or only) the final actions of governments. The processes leading to government [actions], such as pulling the trigger on an [international court] or clipping its wings, are crucial for understanding both pushback and backlash’ at 204). 22 See related discussion in ibid 204. 23 Alexander L George and Andrew Bennett, Case Studies and Theory Development in the Social Sciences (MIT Press 2005) 69.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Tribunal Backlash 607 Arguably the principal advantage of the above definition of backlash, however, is its focus on the means and methods employed rather than on actor aims, ambitions, or intentions. Put differently, this definition enables more straightforward assessment of the presence or absence of backlash by focusing attention on a relatively narrowly delineated set of more—albeit potentially still imperfect—objectively identifiable characteristics of ‘backlash’. This definition requires rather that disapproval of court conduct be ‘intense and sustained’—which may be satisfied by such disapproval forming a continuing, high profile (and likely public) element of policy—and that this be accompanied by ‘aggressive’ steps to resist court conduct and to remove its legal force. The latter requirement underlines that to constitute backlash, behaviour should be an explicitly unfriendly act towards an institution, rather than a ‘business as usual’ challenge to tribunal conduct and authority. Context accordingly remains critical to assessing whether disapproval and accompanying steps in any given instance should properly be considered to constitute backlash. Directing attention to characteristics that may readily (and relatively objectively) be identified from secondary journalistic and historical material, as well as first-hand accounts of events, should, however, enable more consistent and reliable recognition of backlash than may be possible with a definitional focus on actor aims, ambitions, and intentions.24 The above notwithstanding, this definition does imply that not all experiences typically so characterized will constitute backlash sensu stricto: popular or domestic elite opposition to a tribunal that fails to translate sufficiently into official disaffection will, for example, fall outside this definition. This should not be understood, however, as implying that issues highlighted in such discussions are not deserving of closer investigation, particularly where these may form part of the potential explanans of backlash.25 Last, it bears noting that although backlash is necessarily conceived as a reaction to a tribunal on the part of a government, previous government support for a tribunal is not

24 Given that backlash in this formulation requires tribunal opposition to be sustained, high profile, and accompanied by aggressive steps to resist, this might also be expected to normally encompass the challenges to institutional authority highlighted by Madsen and others. An additional advantage of the present formulation is that it does not require a potentially problematic conceptual distinction to be drawn between ‘seeking to reverse . . . practices . . . within the accepted field of the [court’s] institutional framework’ and seeking ‘to clip the wings of [a court] by limiting its powers or altogether eliminating its authority’ (Madsen and others, ‘Backlash against Intl Courts’ (n 4) 204). Though behaviour may often clearly fit into one or the other category, there are also likely to be significant analytic grey areas between these, reflecting difficulties in accurately assessing actors’ aims and in identifying the outer bounds of the ‘accepted field’ of a court’s ‘institutional framework and authority’ as these vary over time in respect of different groups of actors. 25 For examples of media, popular, and other manifestations of backlash (more broadly defined), see, e.g., Hofmann, ‘Resistance against the CJEU’ (n 18); Eric A Posner, ‘Liberal Internationalism and the Populist Backlash’ (2017) 49 Arizona State L J 795; Susan Marks, ‘Backlash: The Undeclared War against Human Rights’ (2014) 4 European Human Rights L Rev 319 (hereafter Marks, ‘Backlash’); Michael Waibel, Nigel Blackaby, and Gabriel Bottini (eds), The Backlash Against Investment Arbitration: Perceptions and Reality (Kluwer Law International 2010).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

608 Henry Lovat considered to be a prerequisite for backlash.26 There are two reasons for this: first, official expressions of support for a tribunal may be disingenuous, and more importantly, government support and opposition are arguably better viewed as points on a spectrum, capable of varying in degree, rather than as a binary pair of opposing categories. Accordingly, while instances where a state has gone from being a strong supporter of a court to a protagonist of backlash certainly present valuable ‘hard’ cases for examination, in the following discussion these are considered alongside cases in which official support for tribunals has been variously grudging, pro forma, and even absent altogether.

IV. A Theory-Informed Approach to International Criminal Tribunal Backlash If there is little agreement over how to define tribunal backlash, there is still less consensus as to its primary drivers, particularly in respect of international criminal tribunals. One promising approach, however, is to draw on what has been termed the ‘pluralist turn’ in IR theory, harnessing together insights derived from multiple IR research traditions to identify potential factors in tribunal backlash.27 Theoretical pluralism is not an unproblematic endeavour.28 Combining insights drawn from what might be termed ‘mainstream’ theoretical traditions, however—that is, realist, institutionalist, positivist constructivist, and liberal theoretical approaches to international politics—has much to commend it, in particular recognizing that these traditions persist precisely because they each encapsulate important analytic insights into international affairs. While these approaches present a wide range of theoretical 26 Marks succinctly characterizes backlash as ‘a striking back in the form of a strongly negative reaction against something which is deemed to have gained popularity, prominence, influence or power’ (Marks, ‘Backlash’ (n 25) 322). See also the discussion in Madsen and others, ‘Backlash against Intl Courts’ (n 4) 200–1. 27 Whereas previous generations of IR scholarship were dominated by a series of ‘paradigm wars’ amongst proponents of different theoretical approaches, the ‘pluralist turn’ reflects growing recognition that complex empirical phenomenon are more likely to be effectively explained by combinations of insights drawn from multiple theoretical traditions, than by a limited set of insights drawn from a single such tradition. The approach presented in this chapter arguably reflects most closely Sil and Katzenstein’s vision of ‘analytical eclecticism’, insofar as existing bodies of theory are used as parts of a ‘toolkit’ to better understand a complex empirical puzzle. Peter Katzenstein and Nobuo Okawara, ‘Japan, Asian-Pacific Security, and the Case for Analytical Eclecticism’ (2002) 26(3) International Security 177; Rudra Sil and Peter Katzenstein, Beyond Paradigms: Analytic Eclecticism in the Study of World Politics (Palgrave Macmillan 2010). 28 One challenge, for example, is tracing interaction amongst causal factors. See, e.g., more generally discussions in Jeffrey T Checkel, ‘Theoretical Pluralism in IR: Possibilities and Limits’ in Walter Carlsnaes, Thomas Risse, and Beth Simmons (eds), Handbook of International Relations (2nd edn, Sage 2012) 220; Laura Neack (ed), ‘Forum: Pluralism in IR Theory’ (2015) 16(1) Intl Studies Perspectives 1.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Tribunal Backlash 609 facets, it is also possible to identify a subset of particularly relevant insights that can be derived from each approach, tailored to the subject under examination. These can then be applied together to provide more comprehensive analyses of the drivers and dynamics of international criminal tribunal backlash than may be gleaned from the application of any one such perspective in isolation.29 The traditional centrality to realist thought of material state power and interests, for example, suggests that the more materially powerful a state is, absent strong countervailing interests, the less likely its government will be constrained by inconvenient international legal niceties and the more likely it will be to author backlash.30 Material power differentials amongst states may also affect the likelihood of backlash arising from less powerful states: backlash may be inhibited where great powers are supportive of proceedings in a third country, and more likely where there is great power disinterest in, or opposition to, proceedings.31 Accordingly, a realist perspective suggests both that more powerful states may more readily author backlash than less powerful states, and that the prospects of backlash from less powerful states may be limited by the preferences and interests of more powerful states. Further rationalist insights may be gleaned from institutionalist theory. This approach views institutions such as international criminal tribunals as established to solve collective action problems.32 From this perspective, defection from an institution is likely to reflect shifts in the anticipated costs and benefits of participation, potentially embracing relatively remote international reputational considerations as well as more pressing local concerns (e.g., where participation or support has domestic political implications). Accordingly, we would expect to see government decisions to author tribunal backlash (or not) reflecting a potentially broad-ranging cost-benefit analysis, with relative state power one—but potentially not a determinative—consideration.

29 One advantage of such a pluralist approach is that it provides a structured taxonomy to situate and build on existing work on the nature and causes of tribunal backlash, much of which implicates factors and mechanisms that can be situated in these traditions. See, e.g., Madsen and others, ‘Backlash against Intl Courts’ (n 4) (‘[w]hat seems to have the most influence on the direction of pushback and backlash are a set of contextual factors, including institutional factors, the constellation of actors involved in resisting or counter-resisting [international courts], and the broader social and political contexts of the processes’ at 215). See also Henry Lovat, ‘International Adjudication and Its Discontents: A Pluralist Approach to Tribunal Backlash’ (Unpublished manuscript 2018). 30 John Mearsheimer, ‘The False Promise of International Institutions’ (1994) 19(3) Intl Security 5. See also Stephen D Krasner, ‘Global Communications and National Power: Life on the Pareto Frontier’ (1991) 43(3) World Politics 336. 31 Strongly-held US preferences may, for example, colour Afghan government attitudes towards the prospect of an ICC investigation (and associated prospects for cooperation). 32 See Barbara Koremenos, The Continent of International Law: Explaining Agreement Design (CUP 2016); Lisa Martin, ‘An Institutionalist View: International Institutions and State Strategies’ in T V Paul and John A Hall (eds), International Order and the Future of World Politics (CUP 1999) 78; Robert Keohane, After Hegemony: Cooperation and Discord in the World Political Economy (Princeton UP 1984).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

610 Henry Lovat What has been termed ‘conventional’ constructivism furnishes a third mainstream theoretical approach to IR.33 At the heart of much literature in this vein is the idea that governments can be guided by a ‘logic of appropriateness’, typically contrasted with a ‘logic of consequences’.34 Where the former operates, rather than pursuing pre-determined rationally-derived objectives and (rationally) adjusting to the similarly pre-existing preferences of other governments, state behaviour is likely to be affected by the application by other governments and transnational non-state actors (including civil society) of forms of social pressure such as persuasion, ‘naming and shaming’, and rhetorical entrapment aimed at eliciting ‘target state’ conduct consistent with one or another set of favoured international norms of behaviour.35 In short, where a ‘logic of appropriateness’ operates, we would expect to see state behaviour reflecting the normative expectations of other governments and transnational civil society groups. Liberal IR theory forms a fourth research tradition. This approach directs attention to the domestic determinants of state behaviour, disaggregating the interests and preferences of sub-state and transnational groups, and highlighting how domestic governance structures mediate between these and policy decisions.36 A focus of liberal research, for example, is the extent to which foreign policy preferences can be linked to democratic or authoritarian forms of national governance. In the present context, a liberal approach suggests that close attention be paid to the governance structures and domestic political drivers of foreign policy. More specifically, we would expect backlash (or its absence) to reflect the strongly held preferences of sub-state elites, set against the backdrop of dominant domestic social and cultural norms and mediated through governance structures. The following parts of this chapter consider the salience of the propositions highlighted above to the presence and absence of backlash against the ICC, ICTY, and STL from South African, Serbian, and Lebanese governments respectively.

33 See Ted Hopf, ‘The Promise of Constructivism in International Relations Theory’ (1998) 23 Intl Security 171. 34 See James March and Johan Olsen, ‘The Institutional Dynamics of International Political Orders’ (1998) 52(4) Intl Organization 943. 35 Norms, in this context, should be understood as sets of ‘collective expectations for the proper behavior of actors within a given identity’ (Peter J Katzenstein, ‘Introduction: Alternative Perspectives on National Security’ in Peter J Katzenstein (ed), The Culture of National Security: Norms and Identity in World Politics (Columbia UP 1996) 5). In much (though not all) of this literature, the ‘constructivist moment’ lies ‘in the process of persuasion, which contradicts the rationalist assumption that states act on the basis of fixed preferences’ (Caroline Fehl, ‘Explaining the International Criminal Court: A “Practice Test” for Rationalist and Constructivist Approaches’ (2004) 10(3) European J of Intl Relations 365). See, e.g. more generally Thomas Risse, Stephen C Ropp, and Kathryn Sikkink (eds), The Persistent Power of Human Rights: From Commitment to Compliance (CUP 2013). 36 Andrew Moravcsik, ‘The New Liberalism’ in Christian Reus-Smit and Duncan Snidal (eds), The Oxford Handbook of International Relations (OUP 2008) 234; Oona Hathaway, ‘Why Do Countries Commit to Human Rights Treaties?’ (2007) 51(4) J of Conflict Resolution 588; Gary Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton UP 2001).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Tribunal Backlash 611

V. South Africa and the International Criminal Court: Archetypal Backlash A. Background The behaviour of recent South African governments towards the ICC provides perhaps the best-known instance of what many understand by international criminal tribunal backlash. South African antagonism towards the ICC has endured over several years, moreover, and has become increasingly aggressive and high profile with the passage of time, to the point where it is now government policy to withdraw from the Rome Statute, satisfying the definition of backlash above. In this case, having commenced the new millennium as one of the foremost sup porters of the new court, following the transition from the Mandela government to that of Thabo Mbeki, and then to Jacob Zuma and more recently Cyril Ramaphosa, South Africa’s enthusiasm for the ICC has waned dramatically, culminating (so far) in 2016’s abortive withdrawal from the Rome Statute. The 2015 South African failure to arrest Sudanese (then-) President Omar al Bashir presents a particularly clear inflection point given Zuma’s 2009 commitment to arrest the former. Viewed in context, however, this was merely one episode in a long-running process of disillusionment.37 By any account, the drivers of backlash in this instance are complex. Some, for example, have identified longer-term shifts in South African foreign policy as a key factor, with the South African government increasingly ‘choosing Africa’ in a turn to ‘revolutionary’ regional multilateralism.38 Others have pointed to norm ‘antipreneurship’ as an underlying factor, highlighting the casting by powerful domestic actors of resistance 37 Reflecting the prominence of this case, there is a vast and growing literature on South African and broader African backlash against the ICC. See, e.g., Kurt Mills and Alan Bloomfield, ‘African Resistance to the International Criminal Court: Halting the Advance of the Anti-Impunity Norm’ (2018) 44 Rev of Intl Studies 101 (hereafter Mills and Bloomfield, ‘African Resistance’); Max du Plessis and Guénaël Mettraux, ‘South Africa’s Failed Withdrawal from the Rome Statute: Politics, Law, and Judicial Accountability’ (2017) 15(2) J of Intl Crim Justice 361; Franziska Boehme, ‘ “We Chose Africa”: South Africa and the Regional Politics of Cooperation with the International Criminal Court’ (2017) 11 Intl J of Transitional Justice 50 (hereafter Boehme, ‘We Chose Africa’); Erika de Wet, ‘The Implications of President Al-Bashir’s Visit to South Africa for International and Domestic Law’ (2015) 13(5) J of Intl Crim Justice 1049; Tim Murithi, ‘The African Union and the International Criminal Court: An Embattled Relationship?’ (Africa Portal, 1 March 2013) accessed 20 October 2018. 38 Max du Plessis and Christopher Gevers, ‘South Africa’s Foreign Policy and the International Criminal Court: Of African Lessons, Security Council Reform, and Possibilities for an Improved ICC’ in Jason Warner and Timothy M Shaw (eds), African Foreign Policies in International Institutions (Palgrave Macmillan 2018) 199 (hereafter du Plessis and Grevers, ‘South Africa’s Foreign Policy’); Boehme, ‘We Chose Africa’ (n 37).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

612 Henry Lovat to the ICC as consistent with international norms of sovereignty and regional norms of African solidarity that should trump ‘Western, imperialist’ anti-impunity norms.39 The pluralist theoretical approach set out above enables more nuanced analysis, however, identifying a range of potential determinants of South African attitudes towards the ICC.

B. Choosing Africa: A Pluralist Approach Rationalist approaches to South African backlash against the ICC highlight a series of important considerations. Perhaps most critically, as Mills and Borer have observed, South Africa is ‘a regional power with regional power interests’.40 This observation in turn reflects two distinct elements: first, that though not comparable with the more traditionally conceived great powers, South Africa is perhaps (and certainly militarily) the most powerful African state. At the same time, the traditional great powers, including France and the UK as ICC member states, have espoused little interest in facilitating ICC operations in Africa beyond lending verbal and financial support. The combination of relatively weak and remote international interest, few regional constraints, and little prospect of meaningful sanction for non-compliance with ICC requirements suggests that, all else being equal, South African governments are in any case unlikely to be closely constrained in dealing with the ICC. Building on the second limb of Mills and Borer’s observation, institutionalist thought provides further refinement: given South Africa’s status as a regional power, its foreign policy interests are similarly likely to be regionally focused.41 This view, moreover, appears largely to have been borne out, as South African foreign policy has evolved from an early focus on universal human rights under Mandela to an emphasis on regional solidarity under Mbeki and Zuma, with the al Bashir affair only one illustration of this trend.42 Several more specific interest-based drivers of this orientation have also been identified. Perhaps foremost amongst these is a striving for regional pre-eminence, with symbolic leadership becoming an increasingly important element of the South African effort to build regional primacy, as economic and foreign policy hegemony remains incomplete.43 In this reading, the drive for symbolic leadership has manifested in initiatives 39 Mills and Bloomfield, ‘African Resistance’ (n 37). 40 Tristan Anne Borer and Kurt Mills, ‘Explaining Postapartheid South African Human Rights Foreign Policy: Unsettled Identity and Unclear Interests’ (2011) 82 J of Human Rights 82. 41 See discussion of South African multilateralism in du Plessis and Grevers, ‘South Africa’s Foreign Policy’ (n 38). 42 See, e.g., Merle Lipton, ‘Understanding South Africa’s Foreign Policy: The Perplexing Case of Zimbabwe’ (2009) 16(3) South African J of Intl Affairs 331. See also Karen Smith, ‘South Africa and the Responsibility to Protect: From Champion to Sceptic’ (2016) 30(3) Intl Relations 391; Laurie Nathan, ‘Interests, Ideas and Ideology: South Africa’s Policy on Darfur’ (2011) 110(438) African Affairs 55; Eduard Jordaan, ‘Fall from Grace: South Africa and the Changing International Order’ (2010) 30 Politics 82. 43 Karen Smith highlights, for example, ‘the image of South Africa as a champion of the causes of Africa and the developing world’ and ‘its bridge-building role between North and South’ (Karen Smith,

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Tribunal Backlash 613 such as Mbeki’s ‘African Renaissance’ and participation in and leadership of regional institutions such as the African Union. Put simply, from this perspective, over time support for the ICC has come to be increasingly costly (and to yield relatively remote benefits) to South African governments, to the point where the costs of continued support are outweighed by the advantages of regionally aligned opposition. A rationalist explanation alone is not persuasive, however, failing to provide a convincing explanation for why South African governments ‘bandwagoned’ with the governments of states such as Kenya and Zimbabwe, rather than ‘balancing’ against these governments, alongside more ICC-supportive states such as Botswana.44 International social and domestic political and cultural considerations assist, however, in making sense of this puzzle. In this case, two such factors can be identified: social pressure from other regional governments for South Africa to display ‘appropriate’ regional solidarity, and cultural alignment on the part of domestic elites. Both tendencies can be seen, for example, in Mbeki’s encouraging: ‘South Africans to embrace an African identity and [promoting] the continent’s political, economic and social renewal’.45 The Mbeki government was similarly a leading actor in the establishment of the African Union and in its promotion as the primary vehicle for regional cooperation. Accordingly, taking into account the expectations and preferences of other prominent African governments to maintain notional regional leadership, South African governments have had little option but to align with dominant regional views of the ICC as these have evolved over time, in light of, for example, Burundian, Kenyan, Sudanese, and Ugandan government experiences.46 In short, in this reading South African policy choices regarding the ICC have primarily reflected regional normative expectations.47 That said, it is unlikely that external expectations would have had quite so much bearing on South African foreign policy choices, had the experiences of much of the ANC ‘Soft Power: The Essence of South Africa’s Foreign Policy’ (2012) South African Foreign Policy Rev 73, quoted in du Plessis and Grevers, ‘South Africa’s Foreign Policy’ (n 38) 203). See also Chris Alden and Maxi Schoeman, ‘South Africa’s Symbolic Hegemony in Africa’ (2015) 52(2) Intl Politics 239. On regional suspicion of South African intentions, see Alexander Beresford, ‘A Responsibility to Protect Africa from the West? South Africa and the NATO Intervention in Libya’ (2015) 52(3) Intl Politics 288. 44 Stephen M Walt, ‘Alliance Formation and the Balance of World Power’ (1985) 9(4) Intl Security 3. 45 Adekeye Adebajo, ‘Mbeki’s Dream of Africa’s Renaissance Belied South Africa’s Schizophrenia’ (The Conversation, 24 April 2016) accessed 20 October 2018. 46 See Mills and Bloomfield, ‘African Resistance’ (n 37); Jean-Baptiste Jeangène Vilmer, ‘The African Union and the International Criminal Court: Counteracting the Crisis’ (2016) 92(6) Intl Affairs 1319; Kurt Mills, ‘ “Bashir Is Dividing Us”: Africa and the International Criminal Court’ (2012) 34(2) Human Rights Q 404. 47 See also Max du Plessis, ‘Shambolic, Shameful and Symbolic: Implications of the African Union’s Immunity for African Leaders’ (Institute for Security Studies Paper 278, November 2014) accessed 20 October 2018; Garth Abrahams, ‘Africa’s Evolving Continental Court Structures: At the Crossroads?’ (South African Institute for International Affairs, Occasional Paper 209, January 2015) accessed 20 October 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

614 Henry Lovat leadership during apartheid not also inculcated a widespread predisposition towards anti-colonialism and regional solidarity. This affinity, in this account, resulted in a widespread domestic political preference for regional, African initiatives over broader multilateral solutions to cooperation problems, and discomfort with Westerndominated approaches.48 In respect of the ICC, accordingly, it seems reasonable to view South African government preferences as having been closely affected by dominant regional views of the court, in large part owing to the socialized preference for regional solidarity on the part of the ANC leadership, against a background of minimal great power engagement and a rational privileging by successive South African governments of regional interests. Taken together, these factors may also assist in explaining individual manifestations of backlash, such as the evident readiness of the South African executive to override domestic judicial actors (and international and local human rights organizations) in permitting al Bashir to leave South Africa in 2015.49

VI. Serbia and the ICTY: Persistent Backlash A. Background If South African obligations to the ICC have over time become honoured more in the breach than in the observance, the evolution of Serbian government attitudes to the ICTY illustrates the opposite dynamic, with persistent, aggressive opposition fading with time into grudging compliance and latterly tactical support. The Serbian case also illustrates well the extent to which backlash can be constrained by strong countervailing interests and engaged great powers, notwithstanding the domestic dominance of ‘non-compliance constituencies’.50 The tortured path of Serbian and other Western Balkan governments’ compliance with the ICTY has been the subject of innumerable scholarly and policy tracts.51 In brief, however, it was evident when the ICTY was established in 1993 that there was little 48 See Christopher Vandome, ‘Consistent or Confused: The Politics of Mbeki’s Foreign Policy 1995–2007’ (2018) 94 Intl Affairs 214–15. See also Boehme, ‘We Chose Africa’ (n 37) 61. 49 On ‘non-compliance constituencies’, see Mark S Berlin, ‘Why (Not) Arrest? Third-Party State Compliance and Noncompliance with International Criminal Tribunals’ (2016) 15(4) J of Human Rights 509. 50 ibid. 51 See, e.g., Diane Orentlicher, Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia (OUP 2018) (hereafter Orentlicher, Some Kind of Justice); Nikolas Rajkovic, The Politics of International Law and Compliance: Serbia, Croatia and The Hague Tribunal (Routledge 2011); Peskin, International Justice in Rwanda and the Balkans (n 8); Rachel Kerr, The International Criminal Tribunal for the Former Yugoslavia: An Exercise in Law, Politics, and Diplomacy (OUP 2004); ‘Suspension of U.S. Aid to Serbia and Montenegro for Noncooperation with ICTY’ (2004) 98(4) American J of Intl Law 850; ‘U.S. Pressure on Serbia to Transfer ICTY Indictees’ (2002) 96(3) American J of Intl L 729.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Tribunal Backlash 615 prospect of the Milošević-dominated Yugoslav government recognizing the court’s legitimacy, let alone cooperating with the court, even though ‘Serbian war crimes [lay] at the epicenter of the Balkan wars and comprise[d] the primary focus of the Tribunal’s prosecutions’.52 This position evolved little during Milošević’s period of dominance, with a minimal number of ‘voluntary surrenders’ from Serbia to The Hague between 1993 and 2001.53 Rather, throughout this period, Milošević and domestic partners sought to cast the ICTY ‘as a political anti-Serb Tribunal, one more instrument that other nations would use to victimise the Serbs’.54 The prospects for Serbian cooperation were not improved by the Tribunal’s indictment of Milošević in the midst of NATO’s military intervention in Kosovo in March 1999, nor by the subsequent refusal by ICTY prosecutors Louise Arbour and Carla del Ponte to investigate the NATO conduct during that conflict.55 Matters improved in fits and starts following Milošević’s removal from power, however, as the US and EU increasingly utilized conditionality to promote Serbian cooperation, resulting in the surrender to the Tribunal of Milošević (2001), Radovan Karadžić (2008), and Ratko Mladić (2011). The Serbia-ICTY case provides a particularly interesting illustration of a situation where backlash was essentially the default setting throughout most of the relevant period, with national authorities persistently refusing to recognize the Tribunal’s authority.56 This enables the Serbian case to be examined to highlight not only drivers of tribunal opposition, but also factors contributing to what might be termed the eventual ‘normalization’ of government attitudes towards the ICTY.

B. ‘It is an incredible situation. We always have a problem with Serbia. Always’57 In terms of realist factors, the Serbian experience highlights the importance of great power engagement in enabling or preventing backlash. In this instance, the coalition of great powers responsible for establishing the Tribunal via the UN Security Council displayed relatively little concern to ensure Serbian cooperation with the court for several years. Instead, the Clinton administration initially promoted the Milošević government as an interlocutor for the Bosnian Serbs, prioritizing peace in Bosnia over justice.58 52 See also Orentlicher, Some Kind of Justice (n 51) 61. 53 Milošević was President of Serbia from 1989–1997 (until 1991 within the Socialist Federal Republic of Yugoslavia), and latterly President of the rump Federal Republic of Yugoslavia (1997–2000). 54 Dan Saxon, ‘Exporting Justice: Perceptions of the ICTY Among the Serbian, Croatian, and Muslim Communities in the Former Yugoslavia’ (2005) 4(4) J of Human Rights 566 citing interviews with Mirko Kların and Predrag Dojcinovic (The Hague, 4 and 11 May 2004). 55 Peskin, International Justice in Rwanda and the Balkans (n 8) 58. 56 Bosnia and Croatia adopted domestic legislation implementing the ICTY statute in 1995 and 1996 respectively. Serbia and Montenegro adopted a law on cooperation with the ICTY only in 2003. 57 Former ICTY Prosecutor, Carla Del Ponte (December 2003). Quoted in Peskin, International Justice in Rwanda and the Balkans (n 8) 29. 58 Peskin, International Justice in Rwanda and the Balkans (n 8) 35.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

616 Henry Lovat The Dayton Agreement, moreover, led to US pressure on Serbia lessening, with a series of wartime sanctions lifted.59 The situation began to shift with the Kosovo conflict, with NATO governments increasingly seeing value in the ICTY.60 Following opposition victory in the 2000 elections, the US and EU then began to tie the provision of financial aid, potential NATO membership, and closer regional integration to the surrender of indictees to The Hague. There is consensus, for example, that the 2001 arrest of Milošević resulted specifically from the prospect of the US withholding a $100m aid package.61 Compliance with arrest warrants (and requirements for provision of records) then continued to improve over time as Serbia was ‘exposed to the full force of international conditionality’,62 culminating in the surrender to the ICTY of Karadžić and Mladić, along with other longstanding indictees. Shifts in external pressure on Serbia were also mirrored by shifts in the decisional calculi informing Serbian government decision-making. Viewed by the US and allies as a necessary interlocutor with the Bosnian Serb leadership at the time, for example, the Milošević government risked little by non-compliance with ICTY demands in the immediate post-Dayton environment, and indeed stood to gain in terms of domestic and wider regional support from continued, high profile defiance. This view changed over time, however, with the Kosovo conflict and subsequent deposal of Milošević amid growing popular discontent with his leadership. The former raised the costs of continued non-cooperation, refocusing international attention on Serbian obligations to the ICTY, particularly in respect of high-profile indictees such as Milošević, and foreshadowing US and European conditionality to come. The latter, meanwhile, reduced the domestic costs and highlighted benefits of cooperation with the ICTY, as the Milošević-era political leadership was, over time, marginalized. Indeed, while not without setbacks, in the aftermath of the 2003 assassination of Zoran Đinđić (the reformist post-Milošević Serbian prime minister), in an operation titled by its authors ‘Stop The Hague’, the successor government led by Zoran Živković (a Đinđić ally) went as far as to utilize cooperation with the ICTY tactically, requesting that the Tribunal indict former senior members of the state security service, subsequently transferred to The Hague.63 With respect to international and transnational social pressure, the Serbian experience highlights the limits of such pressure in ameliorating backlash in a political environ ment with marginal aligned domestic support and limited support from powerful states. More specifically, despite extensive use by the ICTY and civil society supporters, the Milošević government proved largely immune to transnational civil society’s usual technique of ‘naming and shaming’,64 failing to make even the instrumental adaptation that 59 See ibid 47–53. 60 ibid 55–60. 61 ibid 68. 62 M Spoerri and A Freyberg-Inan, ‘From Prosecution to Persecution: Perceptions of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Serbian Domestic Politics’ (2008) 11(4) J of Intl Relations and Development 365; Peskin, International Justice in Rwanda and the Balkans (n 8) 76. 63 See Peskin, International Justice in Rwanda and the Balkans (n 8) 81. 64 ibid, 35.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Tribunal Backlash 617 might in other circumstances be expected.65 Underlying this lack of impact would appear to be Serbia’s pre-existing international pariah status, and Milošević’s ability to retain the support of key domestic elites despite this, alongside the ‘ambivalent and at times seemingly contradictory approach’ of the international community to the issue of Serbian cooperation with the ICTY.66 At the same time though, the case also highlights another indirect avenue for such pressure: ultimately tribunal requirements and Serbian obligations were adopted by policy makers in the US and EU following extensive lobbying and the garnering of domestic support in key states by the ICTY itself, most visibly through the activities of its chief prosecutors.67 It was only when pressure exerted by the ICTY and transnational civil society actors on the Serbian leadership was allied to the support of powerful states that persuasion began to bear fruit—though polling data suggests that even following Milošević’s deposition there was minimal popular support within Serbia for the ICTY on the grounds that ‘cooperation would be “just” ’.68 On occasion, moreover, the postMilošević Serbian government appeared to engage in normative pressure of its own: attempting to shame the ICTY and its supporters by highlighting the risk of instability following further cooperation with the court.69 As this discussion illustrates, domestic politics formed a key determinant of Serbian attitudes to the ICTY throughout its life. A combination of determined elite opposition to cooperation, with broad popular support for this position (and minimal visible dissent), made a predisposition to backlash all but inevitable during the period of Milošević’s dominance, with little opening for transnational advocacy, particularly in the absence of committed support from strong, engaged great powers.70 Perhaps more puzzling from this perspective, however, is the persistence of backlash beyond the fall of Milošević, especially with political change accompanied by an apparent increase in the strength of domestic liberal sentiment.71 Again, however, domestic political structures and arrangements were critical: even after Milosevic’s loss in elections, key political actors, with popular and elite support,72 were strongly opposed to improving cooperation with the ICTY—famously, the post-Milošević Yugoslav government under Vojislav Koštunica initially favoured the continuation of Milošević’s oppositionist 65 See Thomas Risse, Stephen Ropp, and Kathryn Sikkink (eds), The Power of Human Rights (CUP 1999) ch 1. 66 Peskin, International Justice in Rwanda and the Balkans (n 8) 38; Christopher K. Lamont, International Criminal Justice and the Politics of Compliance (Ashgate, 2010) 66 (hereafter Politics of Compliance). 67 See generally Peskin, International Justice in Rwanda and the Balkans (n 8) ch 3. 68 Belgrade Center for Human Rights polling data cited in Lamont, Politics of Compliance (n 66) 67, fn 20. 69 Peskin, International Justice in Rwanda and the Balkans (n 8) 91. 70 Izabela Steflja, ‘Identity Crisis in Post-Conflict Societies: The ICTY’s Role in Defensive Nationalism among the Serbs’ (2010) 22(2) Global Change, Peace & Security 240. 71 See ‘Analysis: Otpor’s Challenge to Milosevic’ (BBC News, 15 May 2000) accessed 20 October 2018. 72 See Rory Carroll, ‘Serbs Split over Fate of Milosevic’ (The Guardian, 6 June 2001) accessed 20 October 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

618 Henry Lovat position.73 Indeed, the halting progress towards cooperation under Đinđić and successors illustrates well the fragile and primarily instrumental (rather than principled) basis of post-Milošević Serbian acquiescence to US and European demands to cooperate with the ICTY.74

VII. Lebanon and the Special Tribunal: Absent Backlash In contrast to permanent or externally-imposed ad hoc courts, hybrid tribunals may be more likely to be designed collaboratively between international and domestic actors to fit individual sets of circumstances, and so may be expected to be less likely to experience backlash than the former. That said, the extent of domestic assent to such courts may vary: in this regard, the STL presents a particularly interesting case, having been established by the UN Security Council, rather than jointly by international and domestic authorities. Accordingly, compared to the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia, the legal basis of the STL does not include domestic primary legislation (though its jurisdiction does include some domestic offences). Rather, in formal terms the court more closely resembles the externally-imposed ad hoc tribunals. This is of course only part of the story, though: the Lebanese government under Fouad Siniora was instrumental in establishing the Tribunal, efforts to establish a domestic legal basis for the court failing due to parliamentary paralysis. The failure to achieve parliamentary ratification, however, is itself testament to the domestic tensions that have affected the STL from the outset. Despite significant domestic pressure, primarily from Hezbollah, successive Lebanese governments have continued to provide nominal support to and participation in STL activities, including providing Lebanese judges to the court as well as ongoing financing. Accordingly, the Lebanese attitude to the STL cannot be said to constitute an example of backlash. However, given the limited extent of Lebanese cooperation with the STL, this case presents a valuable opportunity to consider the extent to which the pluralist taxonomy assists in understanding the absence as well as the presence of backlash.

73 See, e.g., Steven Erlanger, ‘Yugoslav Chief Says Milosevic Shouldn’t Be Sent to Hague’ (The New York Times, 3 April 2001) accessed 20 October 2018. See also Peskin, International Justice in Rwanda and the Balkans (n 8) ch 3; Orentlicher, Some Kind of Justice (n 51) chs 5, 7; Lamont, Politics of Compliance (n 66) 66. 74 See Orentlicher, Some Kind of Justice (n 51) 66; Lamont, Politics of Compliance (n 66) 70; Peskin, International Justice in Rwanda and the Balkans (n 8) 64–65, 75.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Tribunal Backlash 619

A. Background The STL was established in the aftermath of the 14 February 2005 assassination of Lebanese former Prime Minister Rafic Hariri. At the time of the assassination, there was growing international concern (primarily from the US and France) and domestic dissatisfaction with continued Syrian domination of Lebanon, with Hariri at the forefront of efforts to diminish this influence. Unsurprisingly, there was initially a widespread view amongst the ‘March 14’ Lebanese anti-Syrian coalition,75 and French and US officials, that Syria was responsible for Hariri’s assassination.76 With support from France and the US, and amidst Syrian military withdrawal from Lebanon, in April 2005 the Security Council established an international Commission to support anticipated domestic prosecutions. At the request of then-Prime Minister Fouad Siniora and March 14 allies following parliamentary opposition from Hezbollah and Syrian opposition, the Security Council subsequently proceeded to establish the STL without Lebanese legislative consent, the court commencing operations in March 2009.77 The work of the STL during its first several years has been described in detail elsewhere.78 For present purposes, however, it is important to bear in mind that while the Tribunal pursued its mandate at a deliberate pace, events in Lebanon moved much more rapidly. Indeed, even before the STL formally commenced work, growing tension between a weakened March 14 coalition and an increasingly assertive Hezbollah-led opposition (‘March 8’) led to the 2008 Doha Accords, resulting in a government of national unity led by Siniora but with Hezbollah participation, in a settlement providing each bloc a veto over government initiatives. At the same time, the US and France (March 14’s primary foreign backers) shifted position, signalling growing rapprochement with Syria. Reflecting these developments, by September 2010 then-Prime Minister Saad al-Hariri, Siniora’s successor and Rafic Hariri’s son, distanced himself from earlier accusations of Syrian involvement in the 2005 assassination.79 With domestic politics dominated by an uneasy coexistence between March 14 and Hezbollah/March 8, the January 2011 issuance by the STL of indictments against four Hezbollah members heralded crisis. Fuelled by a breakdown in a Saudi-Syrian mediation process over how to handle the indictments, Hezbollah-aligned ministers withdrew 75 Named for the date of mass anti-Syrian protests that followed the Hariri assassination. 76 ‘Trial by Fire: The Politics of the Special Tribunal for Lebanon’ (International Crisis Group, 2 December 2010) 2 accessed 21 October 2018 (hereafter ICG, ‘Trial by Fire’). 77 See Nicolas Michel, ‘The Creation of the Tribunal in its Context’ and Bahige Tabbarah ‘The Legal Nature of the Special Tribunal for Lebanon’ in Amal Alamuddin, Nidal Nabil Jurdi, and David Tolbert (eds), The Special Tribunal for Lebanon: Law and Practice (OUP 2014) 10, 32. 78 See, e.g., William Harris, ‘Investigating Lebanon’s Political Murders: International Idealism in the Realist Middle East?’ (2013) 67 The Middle East J 9. 79 See ICG, ‘Trial by Fire’ (n 76) 7; Ronen Bergman, ‘The Hezbollah Connection’ (The New York Times, 19 January 2018) accessed 21 October 2018 (hereafter Bergman, ‘The Hezbollah Connection’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

620 Henry Lovat from the Hariri government, causing its collapse and the formation of a government under Najib Mikati, more closely aligned with Hezbollah and March 8. The Mikati government in turn collapsed in March 2013 following further cabinet splits, having failed to agree a unified position on handling the STL, though in the meantime having maintained financial support for and judicial participation in the Tribunal at Mikati’s insistence.80 Tammam Salam, appointed to succeed Mikati in April 2013, included in his government members of both the March 14 and March 8 coalitions, and continued Mikati’s provision of support to the STL.81 At the same time though, there was little indication during either premiership that the Lebanese government would be able to detain any indictees given vociferous Hezbollah opposition.82 In consequence, there was evidently little surprise in Lebanese government circles when the STL opened trials in absentia in January 2014.83 Salam resigned in December 2016 in the wake of growing tension between Saudi Arabia and Hezbollah,84 and was replaced as prime minister by Saad al-Hariri,85 with trials in absentia continuing to progress in The Hague. There has been little indication, however, that al-Hariri’s reappointment is likely to result in a revised approach to the STL, to date signified primarily by continued financial support, but with little readiness (let alone ability) to entertain detaining indictees over Hezbollah objections.

B. Lebanon and the STL: reassuringly undemanding Since its establishment, the P5 and regional powers have taken relatively little interest in the work of the STL, focusing attention more on preventing a recurrence of violence and promoting narrower interests in the Lebanese arena. The US, for example, has most recently viewed Lebanese politics primarily through Syrian and Iranian lenses. Similarly, while successive French governments have voiced support for the STL, France has more recently focused on maintaining Saad al-Hariri in power domestically, and both Syria and Saudi Arabia (the dominant regional actors) have to date favoured 80 See: ‘Lebanon: Mikati to Quit If STL Funding Fails’ (Arab American News, 28 November 2011) accessed 21 October 2018 (hereafter ‘Lebanon: Mikati to Quit If STL Funding Fails’). 81 Ernst Dijxhoorn, Quasi-State Entities and International Criminal Justice: Legitimising Narratives and Counter-Narratives (Routledge 2017) 125. 82 Bergman, ‘The Hezbollah Connection’ (n 79). 83 On trials in absentia and legal and broader implications for the STL, see Göran Sluiter, ‘Responding to Cooperation Problems at the STL’ and Paolo Gaeta, ‘Trial In Absentia Before the Special Tribunal for Lebanon’ in Amal Alamuddin, Nidal Nabil Jurdi, and David Tolbert (eds), The Special Tribunal for Lebanon: Law and Practice (OUP 2014) 134, 229. 84 Toi Staff, ‘Lebanon’s PM Issues Ultimatum over Hezbollah’ (Times of Israel, 26 February 2016) accessed 21 October 2018. 85 ‘New Government Announced under PM Saad Al-Hariri’ (Al Jazeera, 18 December 2016) accessed 21 October 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Tribunal Backlash 621 continuing current Lebanese ‘undemanding cooperation’ with the STL. Given the extent to which successive Lebanese governments have been fractured and hamstrung by internal divisions, it is accordingly relatively straightforward to understand Lebanese policy towards the STL as dominated by the views of stronger regional and international players. That said, it is also important to note that the Tribunal itself has not so far required Lebanese governments to take measures comparable to those which proved so problematic (for example) for the post-Milošević Serbian government. In particular, the STL accepted in fairly short order following the indictments that there was little likelihood of either the voluntary surrender of indictees, or of any of those concerned being detained by Lebanese forces.86 Indeed, the explicit inclusion of trials in absentia in the STL’s repertoire (in contrast to the options available to other international tribunals) appears to have been critical to the continued ability of the STL to claim successful Lebanese cooperation, without actually requiring Lebanese governments to take more than de minimis steps to support the Tribunal. This last observation is also important in respect of the calculations that have been made by successive Lebanese premiers to maintain support for the STL in line with Western and regional government preferences, but in a manner that manages disruption to relations with Hezbollah. Instructive to this end is (March 8-aligned) Mikati’s threatened resignation in 2001 over the issue of Lebanese financing for the STL, taking the view—potentially with Syrian assent—87 that Lebanon should comply with its obligations to fund the STL, but also committing to ‘protecting the Resistance’.88 While successive Lebanese governments have sought to square the circle of cooperating with the STL without causing a violent reaction from (a domestically increasingly powerful) Hezbollah and further destabilizing Lebanese politics,89 the ambivalent official Lebanese position on the STL also reflects a relative absence of transnational pressure from the STL and broader transnational human rights communities for more extensive cooperation with the Tribunal.90 To a degree, this may simply reflect broader 86 See Gilbert Kreijger and Jon Boyle, ‘Lebanon Tribunal Asks for Hariri Trial in Absentia’ (Reuters, 17 October 2011) accessed 21 October 2018; ‘Rafik Hariri Murder: Suspects to be Tried in absentia’ (BBC News, 2 February 2012) accessed 21 October 2018. 87 Fidaa Itani, ‘Funding the STL: Mikati’s Gains, Hezbollah’s Losses, and the Role of Syria’ (Al Akhbar English, 1 December 2011) accessed 21 October 2018. 88 ‘Lebanon: Mikati to Quit If STL Funding Fails’ (n 80). See also Wafiq Qanso, ‘Hezbollah vs Mikati: The Inside Battle Over STL Mandate’ (Al Akhbar English, 15 January 2012) accessed 21 October 2018. 89 See, e.g., ‘Can There Be Justice as Well as Stability?’ (The Economist, 11 November 2010) accessed 21 October 2018. 90 The publications list of No Peace Without Justice, for example, contains extensive commentary on the ICC and Sierra Leone tribunals, and more generally on transitional justice, but no thematic publications on Lebanon (see ‘List of NPWJ Thematic Publications’ accessed 21 October 2018). Similarly, of the 23 reports that

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

622 Henry Lovat international normative shifts since the Tribunal was established.91 Even then, however, domestic civil society initiatives that might in other circumstances be expected to support more extensive cooperation with the Tribunal have also been thin on the ground.92 This ‘missed point of entry’ for the STL, however, makes more sense when the constellations of domestic actors supportive of or opposed to the Tribunal are mapped. Put simply, cooperation with the STL has become a domestically politicized issue, with the extent of cooperation at any given time hostage to continued internal and external efforts to avoid a recurrence of violence by maintaining the fragile equilibrium between March 8 and March 14, entrenched in the Doha Accords.93 In other words, whereas backlash may well have resulted from unfettered Hezbollah and March 8 dominance of Lebanon,94 as long as the current power-sharing structures endure, bolstered by more or less supportive external governments, and the STL itself does not make more extensive osition demands on the Lebanese government, it seems likely that the current Lebanese p of providing minimally domestically intrusive support to the Tribunal will continue.

VIII. Conclusion If current trends are anything to go by, international criminal tribunal backlash is likely to remain a focus of concern amongst practitioners, governments, and scholars for some time to come. Against this backdrop, the means-and-methods-focused definition of backlash and accompanying pluralist theoretical framework presented in the present chapter have much to commend them. The former builds on existing work on backlash to provide a clear, workable focus for empirical research, particularly into the causal factors explaining this phenomenon. The adoption of a pluralist theoretical approach then provides a framing device capable of

Human Rights Watch have published since 2006 on Lebanon, none focuses on the STL ( accessed 21 October 2018). A search for Amnesty International reports on international justice in Lebanon similarly produces a single report on the STL: Both the latter organizations also have, moreover, extensive publications on other courts, particularly the ICC. The reasons for this relative lack of engagement are beyond the scope of this chapter: this presents a potentially interesting topic for future investigation, however. 91 See observations in ‘The Special Tribunal for Lebanon and the Quest for Truth, Justice and Stability: Meeting Report’ (Chatham House, 16 December 2010) 11 accessed 21 October 2018. 92 Are Knudsen and Sari Hanafi, ‘Special Tribunal for Lebanon (STL): Impartial or Imposed International Justice?’ (2013) 31(2) Nordic J of Human Rights 178. 93 See Tamirace Fakhoury, ‘Assessing the Political Acceptance of Hybrid Courts in Fractured States: The Case of the Special Tribunal for Lebanon’ in Susanne Buckley-Zistel, Friederike Mieth, and Marjana Papa (eds), After Nuremberg: Exploring Multiple Dimensions of the Acceptance of International Criminal Justice (International Nuremberg Principles Academy 2017) 2. 94 See ICG, ‘Trial by Fire’ (n 76) 14.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Tribunal Backlash 623 identifying a range of factors potentially explaining the prevalence and/or absence of backlash in individual cases. Indeed, in the three cases examined, this framework draws attention to critical domestic, international, and transnational drivers and inhibitors of backlash. Domestic politics and the preferences of powerful sub-state elites emerge as key, for example, in the Serbian and South African experiences of backlash. The framework similarly directs attention to the manner in which attitudes to international courts are capable of shifting over time as governments’ decisional calculi and the associated costs and benefits of tribunal support or backlash evolve, with (for example) ICC support becoming increasingly costly within the context of an increasingly regional-focused South African foreign policy, and ICTY compliance becoming increasingly attractive to Serbian governments as the costs of non-cooperation rose sharply following the Kosovo conflict. The framework also highlights the importance of external actors, particularly the governments of more or less-closely engaged regional and great powers, in catalyzing (regional governments in the South Africa case) or limiting the prospects of backlash (the US and EU in post-Milošević Serbia and the US, France, Syria, and Saudi Arabia in Lebanon), illustrating the importance of taking into account relative state power differentials, as well as foreign policy situations and calculations, as factors in backlash. At the same time, while transnational social pressure can be seen to have played an important role in shaping South African and (indirectly) Serbian attitudes to the ICC and ICTY respectively, the absence of such pressure, including from domestic civil society, is initially puzzling in respect of Lebanon and the STL—until the Lebanese domestic political constellation is taken into account, highlighting the co-option of the STL as a partisan issue in Lebanese politics, dividing March 8 and March 14. It does not follow from this discussion that these findings are generalizable to other cases. Nevertheless, the salience of the four sets of factors in all three instances suggests it will be worth exploring the extent to which similar constellations of factors are together capable of explaining the dynamics of backlash in other cases. In particular, to the extent that hybrid tribunals involve closer ‘target’ state participation in tribunal design and operation than might otherwise be the case, it would be instructive to examine whether the former are indeed less susceptible to backlash than ad hoc or permanent courts, and if so what the drivers of this tendency might be.95 The contrast between the ‘slow-burn’ of South African backlash against the ICC and persistent Serbian backlash against the ICTY similarly invites further consideration of the extent to which backlash might be more inhibited where a state has voluntarily acceded to a court’s jurisdiction than where this has been externally imposed.96 It may also be worth considering the utility in other contexts of the governmentfocused ‘means and methods’-based definition of backlash presented above, and the 95 It would similarly be interesting to explore how backlash against international criminal tribunals compares in these regards with backlash against international tribunals in other sectors. 96 That said, a comparison between the Serbian and South African experiences may be less valuable in this respect than one between Serbia and e.g. Kenya (where there has been an ICC investigation into the commission of ‘core crimes’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

624 Henry Lovat scope this presents to enable more rigorous qualitative and potentially quantitative analysis of this phenomenon, including thinking methodically about the mechanisms linking causal drivers and manifestations of tribunal backlash. Improving understanding of the drivers and dynamics of backlash should also enhance understanding of the implications of this tendency for individual courts and so aid tribunals and supporters in seeking to ameliorate backlash in individual instances and more generally. The definition and theoretical approach presented here also point the way towards additional questions and issues for future consideration. The chapter has focused on backlash as manifested in the attitudes of individual governments towards individual tribunals: this leaves open, however, the question of how widespread such backlash may need to be in the context of different types of court to significantly impede tribunal operations or to effect institutional reform or closure. It is conceivable, for example, that a ‘norm cascade’ might operate in certain contexts, with antipathy towards a tribunal diffusing over time across governments, making institutional failure increasingly likely if not checked.97 It is also important not to neglect the role of tribunals themselves in provoking or forestalling backlash. In the present instance, the extent of tribunal demands on states has been treated as one background condition amongst others informing government positions. Tribunals are political as well as judicial actors, however, and the discretionary demands of judges and prosecutors—regardless of whether framed as more or less inflammatory—are also likely to be calibrated to and considered in light of assessments of their likely success or failure, as well as broader implications for the institutions and cases involved.98 The experience of the STL suggests, for example, that a ‘low-aiming’ court is less likely to provoke backlash than an institution that makes heavier demands on domestic interlocutors: in contrast, the ICC and ICTY encountered significant resistance from South African and Serbian authorities facing unpalatable demands. This in turn, however, invites consideration of whether a criminal tribunal that does not provoke some degree of serious opposition—at least from targeted constituencies—can be said to be performing effectively. As such, while there may be advantages in bracketing the drivers of judicial decisions and actors’ behaviour for some purposes, it will also be helpful to investigate how assessments and expectations of target-state behaviour colour tribunal conduct, and the extent to which internal tribunal actors consider anticipated responses in framing decisions and measures. Understanding of the manifestations, drivers, and implications of international crim inal tribunal backlash continues to evolve, with scholarship in this vein potentially cap able of enabling enhanced, better-calibrated government and judicial behaviour. With this last in mind, and building on existing research on international tribunal backlash, 97 Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’ (1998) 52(4) Intl Organization 887. 98 See related discussions in Madsen and others, ‘Backlash against Intl Courts’ (n 4), 212–14; Jed Odermatt, ‘Patterns of Avoidance: Political Questions before International Courts’ (2018) 14(2) International Journal of Law in Context 221–36.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Tribunal Backlash 625 the present chapter provides a set of tools designed to move debate towards methodical, evidence-based assessment of the dynamics of international criminal tribunal backlash. The first element in this ‘toolkit’ is the provision of a definition of backlash conducive to structured, focused empirical analysis and comparison; the second is the provision of a theoretical framework enabling the derivation and testing of hypotheses about the drivers and inhibitors of international criminal tribunal backlash. The three instances considered are, of course, examined all too briefly: nevertheless, these discussions helpfully illustrate the scope for a methodical, theoretically-informed approach to specific empirical puzzles to improve understanding of the trials and tribulations of international criminal tribunals.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

chapter 27

The Cr ise s a n d Cr itiqu es of I n ter nationa l Cr imi na l J ustice Sergey Vasiliev*

[T]he generally observable need of any power, or even advantage of life, [is] to justify itself. Max Weber1 [A] utopian ideal had become a real and tangible reality which would, from that point onwards, need to be combined with international relations. Why has this Court suddenly come under such virulent attack, criticised for rendering justice that is partial, selective, discriminatory and even racist and unequal? HE Sidiki Kaba, President of the ICC ASP2

* With big thanks to Kevin Jon Heller, Mark Drumbl, Immi Tallgren, Harmen van der Wilt, Frédéric Mégret, Darryl Robinson, and Christine Schwöbel-Patel for stimulating chats and for their inspiring scholarship to which I owe countless intellectual debts. I am also grateful to Judge Bertram Schmitt (ICC) and the participants of the June 2018 ICC Scholars’ Forum in The Hague for their input on the preliminary draft, and to the editors for their helpful comments and gracious deadline extensions. The chapter covers key developments up to 11 April 2019. 1 Max Weber, Economy and Society: An Outline of Interpretive Sociology, vol. I (Guenther Roth and Claus Wittich (eds), University of California 1978) 953. 2 Sidiki Kaba, Speech of the President of the Assembly of States Parties, Mr Sidiki Kaba, fifteenth session of the Assembly of States Parties, 16 November 2016, para. 3 accessed 17 March 2019 (hereafter Kaba, Speech).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Crises and Critiques of International Criminal Justice 627

I. ‘You and Whose Army?’: International Criminal Law’s Curse At least one thing is constant about the turbulent field of international criminal justice: the ever-recurring and intractable question of legitimacy. It has surfaced in the manifold critiques of institutions, practices, rhetoric, and impacts of international criminal law (ICL). Every international criminal tribunal, past or present, has had to face charges of legality and fairness deficits, victor’s justice, selectivity, neo-colonialism, or other criticisms jarring to the liberal ear. Such critiques are particularly stinging and unsettling for they aim at exposing the project’s intimacy with hegemonic power: its provenance, embedding, and complicity in the structures of geopolitical (economic, cultural, gender-based) domination. Ruptures and aggravations rooted in this association are often framed as ‘crises’ in today’s parlance. Despite the transience the language of crisis suggests, the malaise has haunted the project from the start and appears chronic. No institution was granted remission of the ‘original sin’ and each had to scramble to earn legitimacy. The tribunals are perennially caught in the Koskenniemian double bind. Instituted by states directly or via international organizations, their authority comes with strings attached. It can only be enforced on the strength of donors’ continued operational, political, and financial support. At the same time, courts pretend that authority to be transcendent, decoupled from any one stakeholder, and universal in addressees. They purport to do justice pro omnibus, in the name of the ‘international community’, ‘humanity’, ‘civilization’ or ‘us’—the subjects they themselves constitute.3 Their brand of justice is erga omnes and dispensed, among others, vis-à-vis the powers-that-be on which they depend for functioning and survival. Creatures and purveyors of cosmopolitan liberal legalism,4 international criminal justice institutions are aware of the political spaces they navigate. They seek to transcend politics by proffering justice as a superior alternative.5 But the rhetoric of legalism holds 3 Luigi Corrias and Geoffrey Gordon, ‘Judging in the Name of Humanity: International Criminal Tribunals and the Representation of a Global Public’ (2015) 13 J of Intl Crim Justice 97; Immi Tallgren, ‘The Voice of the International: Who is Speaking?’ (2015) 13(1) J of Intl Crim Justice 131; Frédéric Mégret, ‘In Whose Name? The ICC and the Search for Constituency’ in Christian de Vos and others (eds), Contested Justice: The Politics and Practice of the International Criminal Courts Interventions (CUP 2016) 27–31, 44–5. 4 Hereby defined as: an ideology or mindset shared among international lawyers postulating that rules must be followed for its own sake (legalism), provided that the rules possess a certain normative quality of liberal justice standards, i.e. deontic principles demanding respect for the dignity, rights, and autonomy of individuals as moral and rational subjects (liberal), and are valid across the board being irreducible to parochial interpretations (cosmopolitan). For a classic exposition of ideological legalism: Judith Shklar, Legalism: Law, Morals, and Political Trials (Harvard UP 1964) (hereafter Shklar, Legalism). 5 Sarah Nouwen and Wouter Werner, ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’ (2010) 21(4) European J of Intl L 942; Joseph Hoover, ‘Moral Practices: Assigning Responsibility in the International Criminal Court’ (2013) 76 Law and Contemporary Problems 263, 265–66, 281.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

628 Sergey Vasiliev little sway. Although power camouflages itself artfully in technical juridical enterprises hinging upon expertise and rule-following, the courts are inevitably political actors that pool, process, and deploy power. Their inability to pull themselves by the bootstraps and sever the umbilical attachment to their enablers is hard to conceal and fuels disbelief about the viability of the project of ICL.6 Indeed, its track record of standing up to hegemony is unimpressive. Rather than ‘speaking truth to power’, the tribunals have mostly piggybacked on the latter, with their pursuit of justice only extending as far as political expedience permits. Selectivity and unequal enforcement—regular features of the international criminal justice landscape—cannot be entirely explained by mere jurisdictional and admissibility constraints, despite bona fide attempts. Those features may flow from the anticipation of backlash and internalization of outside pressures being, in that sense, of the courts’ own making.7 A retort: ‘You and whose army?’—is doubly embarrassing for any court when made by a patron with a hand on the switch; the same feeding hand it much rather avoid biting. One can understand if not accept this reality. The project’s champions play this down as a temporary shortcoming, maintaining that some justice is better than none and preaching faith in universality as a valid goal or even an inevitable end-state. However, to the critics, selectivity is a fatal system error, ‘ “some justice” may not be justice at all’.8 Mainstream accounts paint international criminal law’s history as indivertible and irreversible progress from the heroic primitivism of Nuremberg (and the less present able Tokyo) to the conveyor belt and technocratic punctilio of modern judicial bureaucracies to the glorious culmination in eternity, the permanent International Criminal Court (ICC).9 Such linear master-narratives, which are also eagerly sustained by the institutions and their insiders themselves, cast the journey ‘from Nuremberg to The Hague through Rome and beyond’ as an aspect and the premise of the humanity’s progress.10 However, the credibility of sanitized and self-serving histories has increasingly been questioned.11 6 For an early warning, Georg Schwarzenberger, ‘The Problem of an International Criminal Law’ (1950) 3(1) Current Legal Problems 263. 7 Frédéric Mégret, ‘International Criminal Justice: A Critical Research Agenda’ in Christine Schwöbel (ed), Critical Approaches to International Criminal Law (Routledge 2014) 32–34 (hereafter Schwöbel (ed), Critical Approaches); Grietje Baars, ‘Making ICL History: On the Need to Move Beyond Pre-fab Critiques of ICL’ in ibid 208 (hereafter Baars, ‘Making ICL History’). 8 Adam Branch, Displacing Human Rights: War and Intervention in Northern Uganda (OUP 2011) 206–7. 9 Immi Tallgren, ‘Foreword’ in Morten Bergsmo and others (eds), Historical Origins of International Criminal Law, vol. 1 (Brussels: TOAEP, 2014) xvii; Gerry Simpson, ‘Linear Law: The History of International Criminal Law’ in Schwöbel (ed), Critical Approaches (n 7) 159. 10 Fatou Bensouda, Address at the First Plenary (ICC, Assembly of States Parties, 15th Sess, delivered at the World Forum, The Hague, 16 November 2018) (hereafter Bensouda, Address) (‘[the ICC] meets vital needs for humanity’s progress in the modern era; . . . . . . without the ICC, we will regress into an even more turbulent world where chaos, volatility and violence take the upper hand as inevitable norms’ at 8)

accessed 17 March 2019. 11 Frédéric Mégret, ‘International Criminal Justice as a Juridical Field’ (2016) 13 Champ Pénal/Penal Field, para 2; Barrie Sander, ‘International Criminal Justice as Progress: From Faith to Critique’ in Morten

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Crises and Critiques of International Criminal Justice 629 The turn to the critical history of the discipline brings to light blind spots, untested assumptions, and epistemological twists of the mainstream takes.12 With forgotten histories to counter the progress narratives comes the promise of a more earnest methodical engagement with the legitimacy shortages in the field. Paradoxically, its coming of age—signalled by doctrinal finesse, institutional proliferation, and professionalization of practice—has rather exacerbated the problem. Normalcy of domestic systems seems even less attainable than in Nuremberg.13 International criminal justice is in a particularly tight spot nowadays because despite all the advances, it is ill-equipped to challenge power inequalities and address structural injustices of the international order.14 This chapter is centred not on the legitimacy (or otherwise) of international criminal justice as much as on the discourse about legitimacy and on what it may bode for the future. There has lately been more engagement with the critiques from the mainstream positions than ever before. Are the ‘mainstream defenders’ and ‘radical critics’ of inter national criminal justice engaged in a genuine conversation and is rapprochement in sight? Can critical sensibility infiltrate the enterprise and repair it from within, or will it just be co-opted and lose transformative edge upon entering mainstream? Have critics tapped into the emancipatory potential of the project and do mainstream responses effectively address their concerns? This chapter steers clear of pursuing any causes and refrains, to the best of its author’s abilities, from taking sides with either camp when commenting on their claims, tropes, and tactics.15 It preoccupies itself with the questions of what the mainstream makes of the critiques and whether (and why) at least some of its common defensive impulses may be missing the mark. The next part provides a status quo snapshot taking cue from the serial invocation of ‘crisis’ as the standard framing of the recurring legitimacy shortfalls. Part III glances at some of the demands and tactics of ‘radical critics’ and highlights a number of least effective responses of the mainstream as a way to gauge the quality of their communication. Part IV ventures the idea that even if the legitimacy ‘crises’ of international criminal law cannot be undone, they could be managed more effectively if the mainstream and critical camps were genuinely invested in pursuing dialogue and finding common ground—which often does not appear to be the case.

Bergsmo and others (eds), Historical Origins of International Criminal Law, vol. 4 (TOAEP 2015) 751–52 (hereafter Sander, ‘International Criminal Justice as Progress’). 12 Kevin Jon Heller and Gerry Simpson (eds), The Hidden Histories of War Crimes Trials (OUP 2013); Frédéric Mégret and Immi Tallgren (eds), The Dawn of a Discipline: International Criminal Justice and Its Early Exponents (CUP 2020) (hereafter Mégret and Tallgren (eds), Dawn of a Discipline). 13 Shklar, Legalism (n 4) (‘[i]t is hopeless to try and squeeze this [Nuremberg] Trial into the pattern of trials held under a continuous, regular system of adjudication and law enforcement’ at 157). 14 Julien Pieret and Marie-Laurence Hébert-Dolbec, ‘International Criminal Justice as a Critical Project’ (2016) 13 Champ Pénal/Penal Field, para. 3 (hereafter Pieret and Hébert-Dolbec, ‘International Criminal Justice’). 15 It should be possible to see merit in a critique (or a defence) without adopting all aspects of it or internalizing a political or ideological agenda animating it.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

630 Sergey Vasiliev

II. Of Crises and Critiques The sentiment that a given institution, and by extension the larger project it represents, is facing a ‘crisis’ is commonplace. Judging by the news headlines, and conference and publication titles, it is the main leitmotif in the present discourse about the ICC. The field is hooked up on ‘crises’ and increasingly shows symptoms of paranoia and fatigue. Signs of an imminent collapse are discernible in almost every setback and the observers have seen courts totter from one ‘crisis’ to another long enough to grow numb to the crisis talk. The language of crisis is a cliché that has mostly been used as a click-bait rather than an analytical lens.16 What is behind the crisis binge, how does it relate to critique, and what are the effects of this framing?

A. Crisis, Again? In international criminal justice, crises come and go, some more paradigmatic than others. The crisis-framing dominated commentary in the wake of the announcements of withdrawal from the ICC Statute by three African states parties (South Africa, Burundi, and The Gambia) in October 2016.17 This was widely seen as a watershed moment, a crisis par excellence for the Court and for the system as a whole.18 A backdrop to this aggravation was the African Union’s (AU) entrenched hostility towards the ICC over its arrest warrants against the then President Al Bashir of Sudan and cases against Kenyatta and Ruto, who went on to become President and Deputy President of Kenya. The AU opposition was coterminous with individual states’ counter-narratives of the ICC as a neo-colonial institution, an ‘International Caucasian Court’ that selectively

16 Notable exceptions: Matiangai V S Sirleaf, ‘Regionalism, Regime Complexes, and the Crisis in International Criminal Justice’ (2016) 54 Columbia Jl of Transnational L 699, 706–9; Sara Kendall, ‘Critical Orientations: A Critique of International Criminal Court Practice’ in Schwöbel (ed), Critical Approaches (n 7) 57–59 (hereafter Kendall, ‘Critical Orientations’). 17 Kaba, Speech (n 2) (‘an almost permanent strain in the relations between Africa and the ICC’ that ‘has developed into a crisis which must quickly be contained following the withdrawal of three States from the ICC’ para 4); Patryk Labuda, ‘Africa and the ICC: Shattered Taboos, and the Status Quo’ (EJIL:Talk!, 23 November 2016) (‘withdrawal crisis’) accessed 17 March 2019; Marieke de Hoon and Kjersti Lohne, ‘Negotiating Justice at the ASP: From Crisis to Constructive Dialogue’ (EJIL:Talk!, 29 November 2016) (‘existential crisis’) accessed 17 March 2019; Alexandre Galand, ‘A Global Public Goods Perspective on the Legitimacy of the International Criminal Court’ (2018) Loyola of Los Angeles Intl and Comparative L Rev 125, 126 (‘worst crisis since [the ICC’s] creation’). 18 But see Bensouda, Address (n 10) (‘[d]espite the sensational headlines, this is not a crisis for the Rome Statute system, but a set-back in our joint efforts towards achieving a more peaceful and just world’ at 4).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Crises and Critiques of International Criminal Justice 631 targets African leaders.19 Since the AU Assembly failed to have the ICC cases deferred by the UN Security Council (UNSC) or suspended by the Court, it decided that AU member states should not cooperate with the ICC in executing the Al Bashir warrants and that President Kenyatta should not appear before the Court. The AU also devised a collective withdrawal strategy. Three withdrawal notices, endorsed by the AU, did not bode well for the Court’s standing, which then was at an all-time low. In 2016 further AU members (Kenya, Namibia, and Uganda) considered pulling out. Threats to withdraw have since become the norm of the day.20 From the peak of the crisis marked by these developments, the situation de-escalated somewhat in the subsequent period. The 15th session of the Assembly of States Parties held at the height of tensions in November 2016 could unravel into a series of deadly confrontations, but state delegations managed to conduct a constructive dialogue trying to pave the way out of the ICC-Africa ‘crisis’.21 In 2017, South Africa and The Gambia rescinded their withdrawal notices for internal constitutional and political reasons. Despite the still militant rhetoric, the AU’s January 2017 ‘ICC Withdrawal Strategy’ was not nearly as hard-hitting as expected and support for it was not unanimous. Key countries in the anti-ICC camp (e.g. Kenya) have walked back on their threats. Other than Burundi’s departure, the much-feared domino effect and mass exodus of African states did not take place. The Court recoiled from the abyss and something akin to normalcy set in, only to give way to ‘crises’ on other fronts. In 2017 and 2018, it got confronted with unsavoury questions about the integrity and accountability of its former elected officials and current staff, internal mismanagement, and related litigation before the ILO Administrative Tribunal.22 But the former issue was overshadowed and pushed into near-oblivion by the prosecutor’s request for judicial authorization to open an investigation in Afghanistan after a decade-long preliminary examination.23 The Philippines’ withdrawal announced in March 2018 was not seen to be nearly as damaging as the 19 Siobhan O’Grady, ‘Gambia: The ICC Should Be Called the International Caucasian Court’ (Foreign Policy, 26 October 2016) (‘an International Caucasian Court for the persecution and humiliation of people of color, especially Africans’) accessed 17 March 2019. 20 The Philippines deposited a withdrawal notice on 17 March 2018 upon the Prosecutor’s announcement of a preliminary examination of President Duterte’s ‘war on drugs’, with the withdrawal becoming effective after one year. In September 2018, the DRC also announced the possibility of withdrawal. 21 African Union, Decision on the International Criminal Court, AUOR, 28th Ordinary Sess of the Assembly of the Union, 30–31 January 2017, Addis Ababa, Doc. EX.CL/1006(XXX) (‘the enabling environ ment for a constructive dialogue on Africa’s concerns with the ICC as a catalyst for further open and transparent engagement’ para 7) accessed 17 March 2019. 22 ICC, ‘ICC Statement on Recent Media Allegations’ (Press Release, 5 October 2017) accessed 17 March 2019; Stéphanie Maupas, ‘ICC under fire for internal mismanagement’ (JusticeInfo.net, 26 February 2018) accessed 17 March 2019. 23 Situation in the Islamic Republic of Afghanistan (Public redacted version of ‘Request for authorisation of an investigation pursuant to article 15’, 20 November 2017, ICC-02/17-7-Conf-Exp (ICC, OTP). The Pre-Trial Chamber denied this request in a belated and widely criticized decision holding that the investigation would not be in the ‘interests of justice’: Situation in the Islamic Republic of Afghanistan

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

632 Sergey Vasiliev AU-orchestrated backlash. The acquittal on appeal of Bemba in June 2018 and the January 2019 ‘no case to answer’ judgment acquitting Gbagbo and Blé Goudé added fuel to the debate as to whether the Court is in a profound crisis and in dire need of reform. This pattern may be revealing of how the field rolls. First, it speaks volumes about its elasticity and resilience in face of ‘crises’ to which it is so peculiarly prone. The ICC constantly walks on a tightrope and its course of business is ever-vulnerable to destabilization. But it has ways of miraculously navigating the challenges, regaining public trust and avoiding a full-fledged bankruptcy, often without meaningfully dispelling the critiques or addressing the underlying problems. Second, the attitudinal twists and turns described so far show that there is no hard formula for affixing the ‘crisis’ label to specific events. Comparable developments occurring in different contexts, chronology, and time periods may attract (or not) such characterization. It is unclear what constellation of triggers, behaviours, and effects constitute a ‘crisis’, or what degree of gravity and devastation should accompany any given debacle for it to degrade into one. The underlying facts, causation, and their meaning are bound to be disputed by various actors and the authorship of ‘crisis’ will be attributed differently. It matters who handpicks relevant facts and what point the resulting narrative is intended to make. Does an individual state’s decision to withdraw from the ICC Statute qualify as a crisis in se, calling for the mobilization of ICC supporters and states parties’ deployment of the full arsenal of diplomacy and mediation? Or is the backstory—any past incidents building up to that decision, including the ICC’s own conduct—also encompassed within ‘crisis’? Third, the resurgence of ‘crisis’ in mainstream commentary and reporting is curious in itself. The field of international criminal justice has an intimate relationship with ‘crisis’, in the sense that its rationale is to address extraordinary crimes that are often committed in the context of political and humanitarian crises.24 There is some irony in this gradual shift of emphasis: something that has always been marketed as the ultimate crisis-solving tool now itself needs to be salvaged. Finally, the pervasive crisis-framing captures the attitude of certain observers and audiences towards the status quo and their sense of alarm about where the field is headed. A matter of processed rather than objective reality, ‘crisis’ resides in those observers’ minds. It says more about the socio-psychological configuration of the field than about the actual state of affairs. The crisis reiterations strike a sharp contrast to the assured tone of the heady days of international criminal justice and point to a widelyshared perception of its current precarious condition. (Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan), 12 April 2019, ICC-02/17-33 (ICC, PTC II). 24 Michelle Burgis-Kasthala, ‘Holding Individuals to Account beyond the State? Rights, Regulation, and the Resort to International Criminal Responsibility’ in Peter Drahos (ed), Regulatory Theory (ANU Press 2017) 434; Edwin Bikundo, ‘Saving Humanity from Hell: International Criminal Law and Permanent Crisis’ (2013) 44 Netherlands YB of Intl L 89. Critical of this attachment to crisis situations, see Sonja Starr, ‘Extraordinary Crimes at Ordinary Times: International Justice beyond Crisis Situations’ (2007) 101(3) Northwestern University L Rev 1260.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Crises and Critiques of International Criminal Justice 633

B. Critical Turn What are the causes of the discursive shift to crisis and what is one to make of it? The answer arguably lurks in the relationship between crisis and critique. As Kendall notes, the etymology of crisis (from the Greek word krisis) alludes to a conflictual and controversial process or event demanding ‘judgments and decisions’.25 The question marks over the progress narrative of international criminal law can be related to the rise in volume and prominence of the critiques of international criminal justice. Since its revival in the 1990s after five decades of hiatus, the project confidently charged ahead and had little time for detractors. In what some call the ‘honeymoon phase’ (while its existence is open to doubt),26 the architects and supporters of the tribunals were preoccupied with constructing its doctrinal, normative, and institutional frameworks. The critique was often seen as an unworthy business, also in academia, given the concern for what was an essentially righteous yet still fragile enterprise.27 Increasingly, international criminal law scholarship has opened itself up to critical voices and become more introspective.28 Accounts highlighting aspects of courts’ underperformance have multiplied and criticisms grown ever more strident, which also had an influence on how practitioners and insiders positioned themselves in the debate. The internal (efficacy) critiques belonging to the liberal type and its derivative a-liberal genre have focused respectively on the instances when the law or practice fell short of liberal justice principles or was constrained by their domestic articulations too unreflectively.29 The liberal (‘pre-fab’) critiques are essentially benevolent and often practised by the actors of the ‘mainstream’, i.e. those situated professionally and ideologically within the project.30 Even more consequential has been the coming to the fore of the so-called ‘radical critiques’: a mixed bag of approaches interrogating international criminal law from the Third World Approaches to International Law (TWAIL), postcolonial, Marxist, feminist, and other angles.31 This genre of critiques fundamentally questions the project’s moral 25 Kendall, ‘Critical Orientations’ (n 16) 59. 26 David Luban, ‘After the Honeymoon: Reflections on the Current State of International Criminal Justice’ (2013) 11(3) J of Intl Crim Justice 508. 27 Christine Schwöbel, ‘Introduction’ in Schwöbel (ed), Critical Approaches (n 7) 3. 28 Darryl Robinson, ‘Inescapable Dyads: Why the International Criminal Court Cannot Win’ (2015) 28(2) Leiden J of Intl L 323, 324; Sander, ‘International Criminal Justice as Progress’ (n 11) 752, 833. 29 e.g., Allison Danner and Jenny Martinez, ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law’ (2005) 93 California L Rev 75; Darryl Robinson, ‘The Identity Crisis of International Criminal Law’ (2008) 21 Leiden J of Intl L 925; Brad Roth, ‘Coming to Terms with Ruthlessness: Sovereign Equality, Global Pluralism, and the Limits of International Criminal Justice’ (2010) 8 Santa Clara J of Intl L 231; Mark Drumbl, Atrocity, Punishment, and International Law (CUP 2007). 30 Baars, ‘Making ICL History’ (n 7) 197, 206–7; Pieret and Hébert-Dolbec, ‘International Criminal Justice’ (n 14) para 14. 31 See Schwöbel (ed), Critical Approaches (n 7); Symposium on ‘Third World Approaches to International Criminal Law’ (2016) 14(4) J of Intl Crim Justice 915; Symposium on ‘TWAIL Perspectives on ICL, IHL, and Intervention’ (2016) 109 AJIL Unbound 252; Tor Krever, ‘Dispensing Global Justice’

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

634 Sergey Vasiliev and epistemic credentials, its rationality, and virtuousness. Such structural critiques upset the field’s certainties, lay bare its contradictions, and arouse its anxieties.32 By unpacking its contentious origins, workings, and effects, those accounts expose the extent to which international criminal justice may be a part of the problem rather than solution.33 This agenda entails methodologies and analytical devices different from those of the traditional accounts, whose very axioms, biases, and real-life implications come under a magnifying glass.34 Mainstream takes and liberal critiques generally do not question the law’s protective power and emancipatory potential: most problems, goes the refrain, can be solved with more law, stronger institutions, and their wider reach.35 Such accounts operate comfortably within the confines of doctrinal, non-empirical methods, and revolve around a deontic conception of justice centred on rights. By contrast, the radical critics are no adepts of liberal legalism and formalism.36 They may resist the opponents’ tactics to force them to ‘think like a lawyer’ and ‘play by the rules’. They engage their objects of critique ideologically and empirically, using out-of-box metrics and yardsticks extraneous to the law. They also espouse a broader conception of ‘justice’ as community, distributive, social, gender justice that is distinct from the narrow legalistic framing of justice.37 The critique’s confident entry into the scholarly domain, and the ‘rise of the critic’ in the international criminal law discipline, are impossible to ignore. The partial takeover by the critical scholars of academic production outlets, for example journals which previously cultivated traditional approaches, as well as the increased visibility of those scholars and research groups combined with a growing interest in their output, point to the headlong break of the ‘critical approaches’ into the mainstream. It is yet to be seen whether the rise of critique will bring about an epistemological renewal of the discipline.38 But it has certainly succeeded in shifting the parameters of relevance and setting the tone for the future. The critique of international criminal justice is now in itself a prominent object of epistemic inquiry. As for the practice, the effects of the ‘critical turn’ have not been immediately felt or, at least, been very visible. As the proverbial dogs bark, the caravan of international justice goes on. The professionals in The Hague and elsewhere have been carrying on with their chores. If repeat players internalize the critical ethos, it may come to bear upon praxis in (2014) 85 New Left Review 67 (hereafter Krever, ‘Dispensing Global Justice’); Tor Krever, ‘International Criminal Law: An Ideology Critique’ (2013) 26(3) Leiden J of Intl L 701 (hereafter Krever, ‘ICL’). 32 Frédéric Mégret, ‘International Criminal Justice: A Critical Research Agenda’ in Schwöbel (ed), Critical Approaches (n 7) 46; Kendall, ‘Critical Orientations’ (n 16) 60. 33 e.g., Krever, ‘ICL’ (n 31) 702. 34 ibid 702–4. 35 Baars, ‘Making ICL History’ (n 7) 207. 36 Kendall (n 4) 60–2. 37 Sarah Nouwen and Wouter Werner, ‘Monopolizing Global Justice: International Criminal Law as Challenge to Human Diversity’ (2015) 13(1) J of Intl Crim Justice 157; Kamari Maxine Clarke, Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (CUP 2009) 13. 38 Michelle Burgis-Kasthala, ‘Scholarship as Dialogue? TWAIL and the Politics of Methodology’ (2016) 14 J of Intl Crim Justice 921 (hereafter Burgis-Kasthala, ‘Scholarship as Dialogue?’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Crises and Critiques of International Criminal Justice 635 a subterranean way. Any such impact would be constrained, however, by the existing legal and institutional structures and, except anecdotally, would be hard to ascertain or measure. It is evident though that, faced with growing intellectual opposition, the field has been thrown off balance and is struggling to regain it in a changed discursive context. Its proponents have been compelled to marshal forces to defend the project.39 Pushed out of its comfort zone, the field has set out on the quest for fresh arguments and empirical grounds to justify its worth.

C. What Crisis Does In this transitional phase, ontological anxieties in the field of international criminal justice have grown deeper and started to shape the attitudes and self-perception of its agents.40 Events that cannot be squared into the progress narrative will make the critiques loom larger. ‘Crisis’ is a neurotic language projecting this newly discovered insecurity about the standing and legitimacy of the project. The standard take on any given ‘crisis’ is that it is a temporary disruption of the normal state of affairs; a short-lived and acute ailment—not necessarily fatal although warranting intervention. This diagnosis comes with a longing for recovery and a comforting belief that normalcy will be restored. On the one hand, invocations of ‘crisis’ throw the existing problems into sharper relief and create room for debate and soul-searching. ‘Crises’ force the project supporters to reconsider their terms of engagement with the critics and possibly start reforming institutions and practices. The rhetoric of crisis offers the benefit of instantly capturing the imagination of decision-makers, commentators, and the general public, so more attention is directed to the struggles and setbacks the institutions are facing. This helps them mobilize political support and have their differences arbitrated in a more open and inclusive manner in forums such as the Assembly of States Parties. This is demonstrated, for instance, by the ICC’s engagement with states parties at the height of the ‘crisis’ around the African withdrawals and, more recently, the states’ renewed assurances of commitment to the Court in the aftermath of the infamous September 2018 speech by US President Trump’s National Security Advisor, John Bolton.41 Critical situations, far from having a demoralizing effect, may unite the ICL community, consolidate it around the institutions, and reinforce their supporters’ sense of shared 39 e.g., Larry May and Shannon Fyfe, International Criminal Tribunals: A Normative Defence (CUP 2017); Res Schuerch, ICC at the Mercy of Powerful States: An Assessment of Neo-Colonialism Claim Made by African Stakeholders (TMC Asser Press 2017). 40 See also Frédéric Mégret, ‘The Anxieties of International Criminal Justice’ (2016) 29 Leiden J of Intl L 197. 41 Judge Silvia Fernández de Gurmendi, Presentation of the Court’s annual report to the Assembly of States Parties (16 November 2016) at 1 accessed 17 March 2019; Alex Moorehead and Alex Whiting, ‘Countries’ Reactions to Bolton’s Attack on the ICC’ (Just Security, 18 September 2018) accessed 17 March 2019.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

636 Sergey Vasiliev experience. It is on such occasions that professional membership and ideological fault lines become more sharply defined, as different camps regroup, alliances form, and actors are pushed to ponder issues of identity and belonging. A visible split not only along legal but also ideological lines occurred in the wake of the above-mentioned highprofile acquittals at the ICC, for example. While the segments of the legal commentariat accepted the Bemba outcome as legitimate even if certain aspects of judicial reasoning deserved criticism, some of the initial reactions to the acquittal among the ICC support community were emotional and rejected it as a priori unacceptable and all but iniquitous. On the other hand, the crisis optics has blind spots. First, while a compelling way to spark conversations on legitimacy, it may be not an optimal framework for conducting them. It is distortive much in the same way as the sensationalist preoccupation with crises impairs the understanding of systemic issues in the international law discipline more generally.42 The serialization of ‘crisis’ deflates the gravity of situations requiring meaningful action and obfuscates the true nature of the underlying discontents. In the shadow of drama, hard questions of causality and complicity of the project in injustices are conveniently glossed over. This makes it difficult to identify the contours of disagreement and address the existing grievances in a cardinal way. Second, the crisis rhetoric recasts the moments of rupture and conflict as one-off, never-happened-before events, instead of seeing them as part of the historical continuum of legitimacy contestation. This encourages myopia about the conditioning and recurrence of ‘crisis’ and short-circuits the debate into its constant rediscovery. Third, the alarmist framing of crisis suggests quick fixes to win reprieve from whatever terminal event looming on the horizon (the domino effect of state withdrawals, debilitating budget cuts, denial of the necessary support, devolution of the Rome Statute system, and so on). The panic mentality dictated by the need to divert an impending collapse at all costs hardly promotes sustained deliberation about lasting solutions for the field’s structural afflictions. Contrary to the original meaning of krisis as the moment of decision, the ‘crises’ befalling international criminal justice never meet satisfactory resolution. Rather, every scandal is quickly overshadowed by the next one in line. Institutions survive crises and barely escape bankruptcy by wait-and-see or by letting significant developments (filing a long-awaited request to authorize an investigation, unsealing an arrest warrant, etc.) take over the news cycle. Finally, the ‘crisis’ framing can be used as a defensive smokescreen and function as an extension of the mainstream’s discursive power. The ‘crisis’ label comes with a default set of value judgments and interpretations that may offer a slanted perspective on the meaning of events and their root causes. While the project supporters present the crisis situations as unforeseen emergencies to be urgently handled, ‘crits’ see in them the symptoms of a long diagnosed chronic disease. Insofar as ‘crisis’ implies an extraordinary state, it is a misnomer for what is a congenital and permanent condition. Throwing critics a bone and acknowledging that something is wrong—only ‘here and now’—may 42 Hilary Charlesworth, ‘International Law: A Discipline of Crisis’ (2003) 65(3) Modern L Rev 377.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Crises and Critiques of International Criminal Justice 637 be one of the last lines of defence enabling the defenders to dodge tough questions about the project’s history of failing to challenge power and address structural inequalities. Some critiques can sink in eventually and trigger a reappraisal and a valid response. But a rhetorical admission of a critical state of affairs backed by a standard iteration of commitment to ‘continue a dialogue’ will often fall short of true engagement. If so, ‘crisis’ then becomes nothing else but a stratagem to supplant and forever postpone genuine endeavours to start bridging the legitimacy gaps. Ultimately, the ‘crisis’ framing does not bring the field further epistemically or in terms of problem-solving. It may even be counterproductive and distracting. The field will do itself a service by liberating itself from the hysteria of crisis. The debates about the current afflictions and potentialities of international criminal justice should delve deeper and be oriented towards structural questions, for example the root causes of persisting legitimacy deficits and the existing scope for tackling them. But moving forward is easier said than done. Going beyond the obsession with ‘crises’ would require reconnecting two sides engaged in parallel discourses. What demands do ‘critics’ advance and what responses do ‘defenders’ offer? Is there a true dialogue—and any commonalities—between them that could push them together? The next section turns to discursive tactics and tropes used to construct, contest, and reclaim legitimacy in the field.

III. Legitimacy Skirmishes and Mediatory Spaces The field would set about curing its neuroses if both ‘critics’ and ‘defenders’ took the oft-stated need for dialogue further and pondered their own agendas, rules of engagement, and modalities of communication with those on the other side of the fence.43 More than anything, the dialectics between the two sides in affirming or contesting the project’s legitimacy may indicate whether the discipline is thriving or stagnating and whether the field of international criminal justice can inch towards a solution for its legitimacy conundrum.

A. What Critics Want Radical challenges to international criminal justice are too varied to yield an exhaustive taxonomy or be addressed in one place. The label of critique is a broad one that does not 43 The following descriptions of the tactics and positions of different sides to the debate are deliberately kept general. They are mostly based on spoken word, anecdotal evidence, and personal impressions. Any resemblance to real persons is coincidental and unintended.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

638 Sergey Vasiliev lay claim to ideological unity.44 The critical accounts each offer incommensurable angles, although they may co-exist in one body of critique without cancelling one another. Their common denominators—the systemic character of grievances they bring to the fore and distinctive ethos and means of engaging the objects of critique— nonetheless make it possible to group them together.45 In relation to ICL specifically, radical critiques seek to expose its linkages to the dominant global (or localized) geopolitical, economic, and socio-cultural power structures, and its role in perpetuating rather than remedying injustices and inequalities of the existing order. Insofar as these accounts bring into sharper relief its perceived irrelevance (moral bankruptcy, vacuity, hypocrisy, and irrationality), they are potentially far deadlier to the legitimacy of the international criminal justice enterprise than the critiques performed within a liberal frame of reference, which presume that any defect can be repaired through a stricter adherence to law and/or expansion of its reach. How these goals translate into a critical agenda and method can be shown through the examples of TWAIL and feminist legal approaches. The intellectual tradition of TWAIL goes as far back as the independence movements in Latin America and the decolonization of Asia and Africa in the post-Second World War period.46 In provenance and content, there is much affinity and overlap between TWAIL, post-colonial, and critical race theory perspectives. Third World Approaches to International Criminal Law (TWAICL) and post-colonial critiques demystify ICL as a Western imposition and an oppressive tool deployed by global powers or their local proxies against the poorer and weaker nations in the former colonies and elsewhere in the world.47 Dissenting Justice Radhabinod Pal at the Tokyo IMT was the first notable exponent of such a critique specifically in relation to the deployment and practice of international criminal law.48 Scholars working within the TWAIL tradition quarrel with the ‘neo-imperialist’ connotations in the discourses that implicitly portray the Global South as a lawless, barbarian space—‘dark corners’—and communities to be salvaged by 44 For disclaimers to that effect, see, e.g. Antony Anghie and BS Chimni, ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’ (2003) 22(1) Chinese J of Intl L 77, 77–78, 100 (hereafter Anghie and Chimni, ‘TWAIL’). In ICL, see Christine Schwöbel, ‘Introduction’ in Schwöbel (ed), Critical Approaches (n 7) 12; Frédéric Mégret, ‘International Criminal Justice: A Critical Research Agenda’ in Schwöbel (ed), Critical Approaches (n 7) 17. 45 The moniker ‘Critical Approaches to International Criminal Law’ (CAICL)—an umbrella for this type of critiques of international criminal justice—attests to this: Christine Schwöbel, ‘Introduction’ in Schwöbel (ed), Critical Approaches (n 7) 1. 46 Obiora Okafor and Uchechukwu Ngwaba, ‘The International Criminal Court as a “Transitional Justice” Mechanism in Africa: Some Critical Reflections’ (2015) 9 Intl J of Transitional Justice 90, 91–92 (hereafter Okafor and Ngwaba, ‘The ICC’). On the history of TWAIL (I and II), see Anghie and Chimni, ‘TWAIL’ (n 44) 79ff. 47 Makau Mutua, ‘Never Again: Questioning the Yugoslav and Rwanda Tribunals’ (1997) 11 Temple Intl and Comparative L J 167, 170ff; Asad Kiyani, ‘Third World Approaches to International Criminal Law’ (2016) 109 AJIL Unbound 255, 255–56 (hereafter Kiyani, ‘TWAICL’). 48 ‘Dissenting Opinion of the Member from India (Justice Pal)’ in Neil Boister and Robert Cryer (eds), Documents on the Tokyo International Military Tribunal: Charter, Indictment and Judgments (OUP 2008) 810–1426.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Crises and Critiques of International Criminal Justice 639 turning them into the beneficiaries of the West’s ‘civilizing mission’ and receptacles of its patented ‘global’ ideals and techniques. Such can be, for example, specific constructions of human rights, rule of law and good governance, liberal economy, and international criminal justice.49 TWAICL challenges international criminal law’s presentation as enlightened justice intervening in ‘underdeveloped’ societies to halt cyclic, self-perpetuating violence from which the imperialist legacies and post-colonial politics are bracketed out. These critiques aim at exposing how the project is biased against the Global South and used as a tool by autocrats in post-colonial states. They also rail against what is perceived as persistent lopsidedness in enforcement. Unequal application of law across comparable situations may be a corollary of the UN Security Council’s role in setting up the tribunals and its power to refer (or not) situations to the ICC prosecutor as well as to defer investigations. Selectivity can also stem from a skewed prosecutorial focus reflecting the distribution of power in the global order and local power imbalances, and translating external expectations toward the functioning of judicial institutions.50 The geopolitical bias could also lurk at the level of design of norms, institutions, and practices, and in the way norms are given effect through discretionary decision-making. Crime definitions, attribution doctrines, procedural norms, and institutional designs are not neutral but historically contingent. As such, they may reproduce and impose values, concepts, and approaches of the Global North, including the former colonial powers, under the guise of the ‘universal’ or the ‘consensual’.51 TWAICL seeks to decolonize the conceptual and normative apparatus of international criminal law, by interrogating assumptions of geopolitical neutrality, universality, and moral immaculacy of its standards, practices, and impacts.52 The project, it is argued, is complicit in the maintenance of asymmetric distribution of political and economic power between the ‘core’ and ‘periphery’.53 The critical sensibility is to be applied to deconstruct patterns and modalities of continued subjugation of, and discrimination against, the Third World subjects through international judicial institutions as (essentially Western-driven) legalist enterprises.54 The ultimate objectives vary by account. While some TWAIL critics remain invested in making international criminal law truly inclusive

49 Makau Mutua, ‘Savages, Victims, and Saviours: The Metaphor of Human Rights’ (2001) 42(1) Harvard Intl L J 201; Anghie and Chimni, ‘TWAIL’ (n 44) 84–86; John Reynolds and Sujith Xavier, ‘ “Dark Corners of the World”: TWAIL and International Criminal Justice’ (2016) 14 J of Intl Crim Justice 959, 961 (hereafter Reynolds and Xavier, ‘ “Dark Corners” ’). 50 Anghie and Chimni, ‘TWAIL’ (n 44) 91-99; Reynolds and Xavier, ‘ “Dark Corners” ’ (n 49) 961, 969–76; Asad Kiyani, ‘Group-Based Differentiation and Local Repression: The Custom and Curse of Selectivity’ (2016) 14 J of Intl Crim Justice 939. 51 James G Stewart and Asad Kiyani, ‘The Ahistoricism of Legal Pluralism in International Criminal Law’ (2017) 65 American J of Comparative L 391; Anghie and Chimni, ‘TWAIL’ (n 44) 93. 52 Kiyani, ‘TWAICL’ (n 47) 259. See also Okafor and Ngwaba, ‘The ICC’ (n 46) 92; Anghie and Chimni, ‘TWAIL’ (n 44) 84, 89. 53 Reynolds and Xavier, ‘ “Dark Corners” ’ (n 49) 963. 54 Anghie and Chimni, ‘TWAIL’ (n 44) 89–90; Okafor and Ngwaba, ‘The ICC’ (n 46) 92.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

640 Sergey Vasiliev and are hopeful about its emancipatory potential, others tend to be more sceptical and may consider disengaging.55 Taking another example, the feminist legal critiques engage international criminal law from a different angle dictated by the specific interests and grievances they channel. Feminist legal theory was an intellectual force the mainstream disciplines of (domestic) criminal law and international law had to reckon with before its encounter with inter national criminal justice.56 The thrust of feminist approaches was primarily the endeavour to demonstrate that women can experience the institutional structures and practices as oppressive. Feminist lawyers have focused on how women and female perspectives were systemically sidelined in the design, operations, and historic representations of international criminal justice.57 One structural flaw this genre of critiques targeted in particular was the tendency to neglect and downplay in the law, and prosecutorial and adjudicatory practice, sexual and gender-based violence during conflict and in other oppressive settings.58 Due to scholarly and advocacy efforts pushing forward the ‘reformist’ feminist agenda in inter national criminal justice, there has been a gradual shift in the way the project conceives of and tackles sexual violence against women.59 This is made evident by the increase in prosecutions of rape, sexual slavery, and forced marriage as core crimes before the ad hoc tribunals, legislative innovations in the Rome Statute, institutional developments and know-how regarding the protection of and assistance to victims of sexual violence, procedural facilitation of their testimony, and a more general policy recognition of feminist concerns.60 The feminist approaches have made it into the mainstream, propelling reforms with some degree of success. 55 See, e.g., Reynolds and Xavier, ‘ “Dark Corners” ‘ (n 49) 963; Kiyani, ‘TWAICL’ (n 47) 259. See also Anghie and Chimni, ‘TWAIL’ (n 44) 79. 56 Hilary Charlesworth, Christine Chinkin, and Shelley Wright, ‘Feminist Approaches to International Law’ (1991) 85(4) American J of Intl L 613; Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester UP 2000). 57 Immi Tallgren, ‘Absent or Invisible? Women Intellectuals and the Dawn of a Discipline’ in Mégret and Tallgren (eds), Dawn of a Discipline (n 12). 58 Anne-Marie de Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and ICTR (Intersentia 2005); Beth Van Schaack, ‘Obstacles on the Road to Gender Justice: The International Criminal Tribunal for Rwanda as Object Lesson’ (2009) 17(2) American University J of Gender, Social Policy and the Law 362; Anne-Marie de Brouwer and others (eds), Sexual Violence as an International Crime: Interdisciplinary Approaches (Intersentia 2013). 59 Doris Buss, ‘Performing Legal Order: Some Feminist Thoughts on International Criminal Law’ (2011) 11 Intel Crim L Rev 409, 409–10 (hereafter Buss, ‘Performing Legal Order’). 60 Janet Halley, ‘Rape at Rome: Feminist Interventions in the Criminalization of Sex-Related Violence in Positive International Criminal Law’ (2008) 30 Michigan J of Intl L 1; ICC-OTP, Policy Paper on Sexual and Gender-Based Crimes (June 2014) accessed 17 March 2019; Valerie Oosterveld, ‘Procedural Steps Addressing Sexual and Gender-based Violence: the Legacy of the International Criminal Tribunal for Rwanda and its Application in the Special Court for Sierra Leone’ (2014) accessed 17 March 2019; Serge Brammertz and Michelle Jarvis (eds), Prosecuting Conflict-Related Sexual Violence at the ICTY (OUP 2016).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Crises and Critiques of International Criminal Justice 641 However, the gains of feminist lawyering in the international criminal realm have been subject to mixed assessments.61 The ‘mainstreaming’ effect led to a sense of unease in feminist legal circles. By letting itself get absorbed into the ideological and operational setup of the project, feminism may have simply been co-opted as part of its expansionist logic and reduced to a building block in the mainstream legitimacy-construction effort. Therefore, a more ‘radical’ sub-genre (or generation) of feminist approaches sought to advance the critical agenda beyond (and against) mainstreaming of feminist concerns into the legal and institutional infrastructure by merely ‘improving the numbers’ of sex crime prosecutions. This strand of feminist scholarship looks into how international criminal law practices of framing and narrating sexual and gender-based violence reinforce the same gendered stereotypes and oppressive patterns feminism set about to combat.62 For instance, such practices can reduce women to the role of innocent and passive victims while glossing over instances of their involvement in atrocities, or they can serve to downplay the dimensions of sexual victimization of boys and men in conflict.63 These two examples of radical challenges to international criminal justice may indicate that the line between liberal and radical critiques is not always easy to draw: they may overlap and interpenetrate to form hybrid accounts. Aspects of radical c ritique can be performed organically within the liberal framework. At least some of the radical critics’ demands overlap with the liberal demands: ensuring a certain normative quality of the law and its non-selective and consistent application.64 Radical critical accounts can also be purposely packaged as liberal critiques and advance distinctly legalistic arguments, if opportunistically so. It is not unusual for ‘crits’ to challenge the legality of the establishment of the tribunals by the UNSC, emphasize the need for stability and predictability of the law, or criticize the courts’ failure to strictly adhere to nullum crimen sine lege and personal culpability principles.65 Such appeals to legalist values are not an end in themselves. They do not reflect a primary commitment but rather are a conduit for complaints against victor’s justice (neo-colonialism, racism, patriarchy). Thus, TWAIL objections to the judges’ hermeneutic freedom are advanced not for their own sake but because expansive interpretations work to disadvantage the Third World peoples and reinforce the patterns of hegemonic power TWAIL opposes.66 By resorting 61 Niamh Hayes, ‘Sisyphus Wept: Prosecuting Sexual Violence at the International Criminal Court’ in William Schabas, Yvonne McDermott, and Niamh Hayes (eds), Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate 2013). 62 Nicola Henry, ‘The Fixation on Wartime Rape: Feminist Critique and International Criminal Law’ (2013) 23(1) Social and Legal Studies 93; Karen Engle, ‘Feminism and its (Dis)Contents: Criminalizing Wartime Rape in Bosnia and Herzegovina’ (2005) 99(4) American J of Intl L 778; Buss, ‘Performing Legal Order’ (n 59) 415; Baars, ‘Making ICL History’ (n 7) 207; Burgis-Kasthala, ‘Scholarship as Dialogue?’ (n 38) 930. 63 See, e.g., Sandesh Sivakumaran, ‘Sexual Violence against Men in Armed Conflict’ (2007) 18(2) European J of Intl L 253; Alette Smeulers, ‘Female Perpetrators: Ordinary or Extra-ordinary Women?’ (2015) 15 Intl Crim L Rev 207. 64 See, e.g., Anghie and Chimni, ‘TWAIL’ (n 44) 91–92. 65 ibid 94, 98. 66 ibid 99, 101.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

642 Sergey Vasiliev to legalist devices, the ‘crits’ attempt to beat the mainstream at its own game: the legal form in which their grievances are wrapped makes it harder for the opponents to shrug them off. Still, these tactics are deployed in the service of a critical agenda: critique is first and foremost a ‘political project’.67 Other than the motive of unsettling the orthodoxies of the field that animates all radical critiques, there exists no unity regarding the ultimate goals of the critical project, the admissible extent of participation and engagement, or the question of whether critics should invest in improving and reforming the enterprise that is being critiqued. For some, the goal is epistemic: production of transformative knowledge needed to rebuild ICL on new, fairer foundations.68 Getting closer creates a risk of losing critical detachment and compromising critical identity: a critic ‘selling out’ for relevance and becoming complicit with the object of critique.69 Others will pursue engagement beyond critical knowledge production and invest in a ‘constructive’ agenda to spawn reform and ‘fix’ the system. Those who still harbour faith in the emancipation and empowerment through international (criminal) law take its transformative promise seriously and are determined to hold it to its professed ideals.70 They are not prepared to withdraw just yet.71 In channelling the critical concerns to the other side, form may be as decisive as content. Understandably, the provocative tone and subversive tactics the critics adopt from time to time—especially if their agenda is not of a ‘constructive’ kind in the sense of offering solutions to the problems they identify—work as irritants for the ‘mainstream’ and are bound to slant the reception of the critiques. Some of the tactics may be deemed excessive and counter-productive if the objective is to convince rather than antagonize.72 Imagine the effects on its addressees of a critique ‘for the sake of critique’ delivered accusingly and acrimoniously in the midst of a ‘crisis’ (and there is always one). Sometimes such a critique would echo and advance the self-serving objections to international criminal justice put forward by the (powerful) domestic elites targeted for prosecution and arm them with legal strategies and policy arguments reinforcing those objections. It is not beyond reason if the mainstream camp would perceive this as an

67 Christine Schwöbel, ‘Introduction’ in Schwöbel (ed), Critical Approaches (n 7) 6. 68 Baars, ‘Making ICL History’ (n 7) 207; Frédéric Mégret, ‘International Criminal Justice: A Critical Research Agenda’ in Schwöbel (ed), Critical Approaches (n 7) 21. 69 Michelle Farrell, ‘Critique, Complicity and I’ in Schwöbel (ed), Critical Approaches (n 7); Frédéric Mégret, ‘International Criminal Justice: A Critical Research Agenda’ in Schwöbel (ed), Critical Approaches (n 7) 45. 70 Anghie and Chimni, ‘TWAIL’ (n 44) 101, 103. 71 Kiyani, ‘TWAICL’ (n 47) 255–56, 258. 72 See, e.g., Frédéric Mégret, ‘International Criminal Justice: A Critical Research Agenda’ in Schwöbel (ed), Critical Approaches (n 7) (‘the critique should . . . instill fear where [the discipline] becomes hegemonic; use the arms of the powerful against it when it can, and unconventional tactics when it must; and retreat and regroup when it has little to contribute to the debate save its own uncertainties’ [emphasis added] at 46); Christine Schwöbel, ‘Introduction’ in Schwöbel (ed), Critical Approaches (n 7) (‘a temptation to overstate, to essentialize, to provoke, or to shock in order to make a point’ at 8).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Crises and Critiques of International Criminal Justice 643 ‘unholy alliance’ and see in critics the fellow travellers of those very powers that the project was meant to contain and which now seek to bring it down. The political power of critiques is amplified when they resonate with an ‘antimainstream’ and ‘counter-hegemonic’ pushback by individual states, intergovernmental organizations, and other actors defying international criminal justice in its current form.73 Whenever it converges with the politics of structural resistance to the project, the critique itself becomes deeply political and starts being seen as a threat, and not just rhetorically. The critics’ situational alignment with those wishing the project’s demise may be in discord with their prior involvement with the project and engender mistrust about their loyalties, agendas, and motivations. Some defenders might also still expect the critics to be less vocal in their critiques so as not to further exacerbate the position of the institutions as the real underdogs in their clashes with recalcitrant sovereign powers. The critical agenda of challenging the hegemony incarnated in international criminal justice, they will reason, should logically extend to all hegemons, including those who attack the project.74 The Al-Bashirs, Dutertes, Boltons, and Putins of this world, who oppress subjects on whose behalf the critics engage (developing peoples, poor classes, people of colour, women, victims of state-sponsored violence), are now trying to beat the ICC into submission. It is those hegemons, and not the ICC, that ought to become primary targets of critique. There is an expectation that critics would form a tactical alliance with the defence camp particularly when the project is threatened; this is not unreasonable, unless one embraces the dubious wisdom that ‘an enemy of an enemy is a friend’. Directing the sword of critique to the project’s ‘foes’ does not render the critic complicit, because a critique of those who attack it is not the same as defending it; it simply means being true to one’s own method. This is why the defenders may consider it inconsistent if the critics do not turn against the powerful detractors of the institutions, and if they do not use their celebrated critical sensibility as readily in order to expose and condemn those attackers’ self-interest, hypocrisy, and track record of oppression, exclusion, and atrocity. While the most radical of the critical projects would be to demand the dismantling of the system of international criminal justice,75 few critics, if any, would contemplate this ependent— outcome or be prepared to push for it to the end. As critique is ontologically d some would say parasitic—on its object, many ‘crits’ are in fact quite invested in the project that they need as an indispensable target, or a ‘convenient punch-bag’. With it gone, they would have to move on to greener pastures. It is also true that some ‘crits’ can never be won over and hold no illusions as to whether international criminal law would 73 See, e.g., Krever, ‘Dispensing Global Justice’ (n 31) (‘[t]he notion that ICL is a neo-colonial impos ition is no longer limited to critical international legal theorists; it is now heard most loudly from the post-colonial elites of Addis Ababa and other African capitals’ at 93). 74 Anghie and Chimni, ‘TWAIL’ (n 44) (‘Third World states often act in ways which are against the interests of their peoples’ at 78). 75 Christine Schwöbel, ‘Introduction’ in Schwöbel (ed), Critical Approaches (n 7) 8 (per Gerry Simpson).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

644 Sergey Vasiliev one day become what it pretends to be. They will still deploy it to promote a specific agenda—for example, in strategic litigation—albeit without a true attachment to the discipline.76 Yet, a significant number of critics stop short of rejecting the foundational ideas and rationales underlying international criminal justice.77 Rather, they endorse it insofar as it carries, if theoretically, a promise for at least starting to address the systemic causes for exclusion and oppression. International criminal justice continues to be seen as a potentially transformative and critical project in itself; a tool that can be wielded by the weak in order to constrain power, not only by the powerful in order to oppress the weak. This is partly a reason why some critics have not abandoned it and still bother to critique it: theirs is ‘a struggle for international criminal justice rather than against it’.78 Is this also not what the ‘defenders’ in the mainstream mean to do when repelling attacks against the project?

B. The Mainstream Strikes Back Turning to the mainstream, what are the standard legitimation tactics and responses to the critiques? A rapprochement between the two sides would be easier to achieve if the concerns channelled by the critics were acknowledged and acted upon in earnest by those with reins in their hands. On the contrary, prospect for constructive dialogue and meaningful action on grievances will be bleak if the critiques fall on deaf ears or get swept under the rug. Whether or not the project insiders and proponents accept the critiques as fully justified, their dominant position imposes on them a responsibility to take those seriously and act accordingly. The crisis binge that has engulfed the field may indicate that such engagement has not been particularly effective and the culture of counter-critique remains underdeveloped. The project’s lines of defence are plenty and multifarious, spanning discursive, institutional, and operational spheres. While some of the responses are meaningful and valid, others will not be directed to underlying concerns, fail to take into account the opponents’ premises and frames of reference, or will be based on a misreading of their motives. This will be demonstrated on a few examples of select discursive practices that are least compelling. Firstly, the mainstream’s persistence in the tired rhetoric of legalism (‘the Prosecutor/ Court only applies the law’) is like a red cloth to a bull to the critics. The persuasive power of conventions to the effect that international criminal justice agents are enslaved by the law in each and every fateful decision has grown thin over the years. It is a classic example of an avoidance tactic in the defenders’ arsenal. In a liberal discourse, reminders about the law’s neutrality are meant to end the discussion. But this is a non-starter for 76 I am grateful to Immi Tallgren and Christine Schwöbel-Patel for these points. 77 See, e.g., Anghie and Chimni, ‘TWAIL’ (n 44) 95; Kiyani, ‘TWAICL’ (n 47) 259. 78 Frédéric Mégret, ‘International Criminal Justice: A Critical Research Agenda’ in Schwöbel (ed), Critical Approaches (n 7) 46; e.g. Anghie and Chimni, ‘TWAIL’ (n 44) 101.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Crises and Critiques of International Criminal Justice 645 the critics who deem legalistic recitals disingenuous and are unimpressed when positivism is thrust under their noses.79 Unless the purpose is to abort the dialogue at the very outset, the mainstream camp, particularly ICC officials, should be prepared to shed the skin of legalism and delve into the anatomy of discretionary decision-making in their discourse. Secondly, defenders increasingly appeal to critics to be more cautious and measured, especially during a ‘crisis’ when the courts’ authority or credibility is hanging by a hair. Critique has consequences, they say, as it damages the legitimacy of the institutions. A cost-benefit analysis is warranted: she who holds the project dear must be careful not to furnish its enemies with rhetorical and legal ammunition. Calls for self-imposed censorship will likely have a chilling effect, although they could also intensify resistance and critique. The underlying assumption here is that whoever such calls are addressed to will share the view that, in a perceived state of emergency, criticisms are best withheld; that their concerns may be not a priori genuine but dictated by those attacking the courts; and that saving institutions from hegemonic onslaughts should be prioritized over the need to continue pushing for the recognition of grievances that animate the critiques. However, many critics will think it preposterous that they should abdicate their agency, retreat from their front, and suspend or withdraw their longstanding demands now just because the ICC happens to be under a political attack from outside. If they do so, this would only release the pressure on the Court to reform, making it ever less accountable. To them, tocsin calls for consolidated support and quotas on criticism during ‘crises’ only strengthen the impression that the state of emergency is declared to reduce room for debate and dissent, entrenching resistance and antagonism. A similar effect can be observed where the defenders seek to deflect a critique by impeaching the originator’s credibility through what may come close to a character assassination. It is one thing to point out the self-interested behaviour of states, regional organizations, or individual leaders who defy the courts’ authority as a way to avoid an investigation or prosecution and who do not speak for the victims, civil society, or indeed the general population in the countries concerned. But it is quite another to insinuate about the critics’ motives (morality, commitment to justice and human rights, empathy with the victims), which borders on implying they are all but ‘Al Bashir stooges’ and mass atrocity apologists.80 Targeting the critic and not the critique is neither a dignified nor an effective response. It signals an antagonistic mentality even though critics are no ‘enemies’ seeking the project’s death. Most will have principled and genuine concerns about how the system currently operates, and how it should be redesigned to give voice to the voiceless and realize its transformative potential. The next set of standard legitimation practices relates to the mainstream’s invocation of time. One trope typically used to deflect unfavourable comparisons of the ICC with the ad hoc tribunals justifies the former’s dysfunction with reference to its ‘young’ age, and 79 See, e.g., Anghie and Chimni, ‘TWAIL’ (n 44) 98 (on positivism as part of the problem). 80 Christine Schwöbel, ‘Introduction’ in Schwöbel (ed), Critical Approaches (n 7) 3 (reporting ‘the suspicion that those practising critique were somehow endorsing mass atrocities’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

646 Sergey Vasiliev hence inexperience, and needing the time to learn its lessons. Such arguments should have little purchase over one and a half decade into the ICC’s operation. But one corollary of its permanence is its long-drawn-out youth: it might never grow old enough to be treated as an adult. Another practice playing with the temporal dimension is the serial use of various field-specific anniversaries. In 2017 and 2018, the international criminal justice ‘community’ celebrated the 15th anniversary of the ICC and the 20th anniversary of the Rome Statute respectively. Those anniversaries were marked by countless commemorative events, conferences, and receptions in The Hague and elsewhere.81 What is striking about this—at first glance perfectly normal—practice is how the progression of time and its social construction (anniversary cycles) are enlisted in the service of legitimation and weaved into the comforting progress narrative: ‘all in all, things aren’t bad: 20 years down the line, the ICC is a reality and we will still be there for the next anniversary’. The loop of round numbers also gives a cadence to eternity that mortals cannot share with the institution. Thus, commemorative events create a shared nostalgic experience for those in attendance, strengthen their sense of belonging, and underwrite continuity. This practice taps into the sentimentalism of human beings ageing together with others belonging to the same professional community who have dedicated their careers and lives to the project. Coming together to celebrate professional anniversaries and reminisce the great moments lived in Rome in the summer of 1998 imparts a sense or illusion of security, stability, and permanence—despite human finiteness and any present-day ‘crises’. This also reaffirms the virtue and worth of the project in the eyes of the new generation to whom the baton of responsibility for it is being passed. The organizers sometimes take pains not to make anniversary events appear as jolly celebrations (‘fiddling while Rome burns?’) and recast them as critical stocktaking or even brainstorming exercises. Despite these intentions, the majority of such social occasions turn out to be ceremonial, decorous, and (at best moderately) self-congratulatory.82 Attended by tribunal officials, dignitaries, like-minded NGOs, and carefully selected ‘outsiders’, with dissenting and critical voices missing or getting little air time during the second-day after-lunch panel, these meetings are a priori not designed as platforms for critical reflection and dialogue. Instead, these encounters between ‘dear excellencies, dear friends and colleagues’ are seldom more than echo chambers and occasions for mutual back-patting. If mentioned, any problems are watered down and narrated as lessons to be learnt for the future while the issues of accountability for past mistakes are typically circumvented. This way of dealing with the past may inhere in the very genre of ‘stocktaking’—a type of exercise that nowadays consumes considerable resources in both policy and academic 81 See an incomplete list: ICC, 20th Anniversary Events accessed 17 March 2019. 82 This is also the case with special anniversary issues and symposia in mainstream journals: Joseph Powderly, ‘Editorial: International Criminal Justice Scholarship in an Age of Perpetual Crisis’ (2019) 32(1) Leiden J of Intl L 1.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Crises and Critiques of International Criminal Justice 647 work on international criminal justice. Stocktaking is directed more towards the future than the past and can be facilitated, rather than hindered, by a light form of selective amnesia. The curious case is the ‘legacy projects’ which the ad hoc tribunals were pre occupied with in the final years of their existence, having dedicated resources, time, and staff to help produce their own (semi)official institutional histories. Those legacy initiatives were meant to equip the tribunals to shape narratives and public debates about their own achievements (and, less so, failures) in the years to come. One is bound to question the need for, and viability of, such oddly anthropomorphic undertakings when pursued or orchestrated by the institutions themselves. The legacy projects are nothing else than attempts by the courts to control their own posthumous reputation. The focus is on fixing perceptions and appearances, not on getting to the bottom of legitimacy challenges that are the reason why the institutional reputation may have become vulnerable in the first place. A trump card and oft-used tactic in the mainstream toolkit is the invocation of one specific constituency for legitimacy-building purposes: victims. Victims and affected communities are routinely foregrounded in ICC discourse, as evidenced by the Court’s public communications and speeches of elected officials.83 The rhetorical predilection for victims as the raison d’être of international criminal justice (‘justice for the victims’) elevates them to the status of a ‘master constituency’ in whose name and on whose behalf courts exercise their mandates. There are reasons why, at the most critical moments, this constituency is typically invoked. Of course, courts principally depend on, and regularly appeal to, other actors for support: sovereign states and their representatives, the UN Security Council, and the international civil society. But it is the ontological anchoring in the concern for the victims that imbues the project with a degree of ethical clarity and unimpeachable power no other constituent will ever be able to confer on it. That said, an ongoing concern is the extent to which the legal recognition of victims’ status and their right to be heard and represented before the ICC actually empowers them.84 The ICC’s representational practices, as embodied in common legal representation and group participation, are not necessarily grounded on genuine consent. Rather than representing the individuals on whose behalf it pretends to speak, a

83 S Fernández de Gurmendi, ICC President, ‘Keynote speech at Event marking Day of International Criminal Justice’ (delivered at The Hague, 26 June 2015) at 2 accessed 17 March 2019; ICC-OTP, ‘Statement of ICC Prosecutor, Fatou Bensouda, on the recent judgment of the ICC Appeals Chamber acquitting Mr Jean-Pierre Bemba Gombo’ (Press Release, 13 June 2018) accessed 17 March 2019; ICC-OTP, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, regarding Trial Chamber’s decision to vacate charges against Messrs William Samoei Ruto and Joshua Arap Sang without prejudice to their prosecution in the future’ (Press Release, 16 April 2016) accessed 17 March 2019. 84 Sara Kendall and Sarah Nouwen, ‘Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood’ (2014) 76 Law and Contemporary Problems 233.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

648 Sergey Vasiliev user-friendly, easily manipulable constituency is artificially constructed: an imagined and abstract ‘statistical victim’ as opposed to a real one.85 In doing so, the ICC runs the risk of hijacking the agency and voice of the subjects it claims to empower. It can also become liable to accusations of hypocrisy on account of using the exact same paternalistic trope as those of its indictees who, in protesting ICC intervention, appropriate to themselves the right to speak on behalf of broader constituencies they ostensibly represent. Prioritization of one constituency over the ‘less significant’ others is also problematic due to its exclusionary logic. ICC justice is meant to benefit multiple recipients, in particular the accused. Insofar as different constituencies are pitted and played against one another, the Court’s ontological emphasis on ‘victims’ will come to haunt it in the form of liberal or hybrid critiques. A more effective legitimacy practice would be to devise ways for the Court to engage and communicate effectively with all of its constituents. Speaking to them in the idioms they understand without demoting any of them to second-rate category and without contradicting itself is, however, an almost impossible feat. Finally, a special place in the pantheon of legitimacy practices is reserved to the promise of universality. The discourse of universality (or quasi-universality) buttresses the project’s claim that the constitution and authority of its institutions are not particular or sectarian but are sourced from a global constituency (‘international community’); it also serves as a shield against the selectivity critique. This faith in universality as a necessary and inexorable result of the movement to end impunity for international crimes is an integral part of the narrative that sees the expansion of the jurisdictional reach of the system as progress while its shrinking (for example, as a result of state withdrawals) as a rupture of progress and ‘crisis’. Both intuitive premises are questionable. For one thing, even the most hopeful of realists would know by now that the ICC will likely never become universal, despite how hard the ICC accession campaigners may try to persuade the authorities in the US, China, Russia, India, Indonesia, Israel, and Turkey to join. Nevertheless, a solemn restatement of commitment to full universality serves as a rite of passage for new converts.86 As matters stand, even qualified suggestions that universality is a prospect that can be seriously discussed and doggedly pursued, let alone that it can be achieved at some point, are a red herring. The fact that this mantra continues to feature prominently in the ICC discourse may hint at a state of denial or deliberate obfuscation. It is arguably an irresponsible miscalculation to make legitimacy contingent on full universality. The sooner advocates of the Court come to terms with the reality that it is destined to be non-universal, the sooner it will redirect its energies to solving the hardest theorem: how to ensure the legitimacy of a non-universal court and what

85 Sarah Nouwen, ‘Justifying Justice’ in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (CUP 2012) 340; Emily Haslam and Rod Edmunds, ‘Whose Number Is It Anyway?’: Common Legal Representation, Consultations and the “Statistical Victim” ’ (2017) 15(5) J of Intl Crim Justice 931. 86 See, e.g., ICC, ‘ICC welcomes El Salvador as a new State Party’ (Press Release, 2 June 2016) accessed 17 March 2019.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Crises and Critiques of International Criminal Justice 649 strategies and political and operational support systems need to be put in place to achieve that?

C. Diagnosis What verdict would a Martian, or an earthly go-between, pass on the state of the field, having witnessed the back and forth of legitimacy debates between the mainstream and the ‘crits’? Most likely, one expressing a serious concern about the present condition and the future of the field. It is a playground of group alliances and a minefield of rivalries defined to a significant extent by ideological identity politics and professional and personal loyalties. The prospects of this changing soon appear dim considering the polar ization and institutional entrenchment. Most of the time, the opposing ‘camps’ exist parallel to, and at a safe distance from, one another. Encounters are few and there is limited contact except at the time of ‘crises’, when they engage in performative skirmishes over legitimacy. Each camp dedicates itself lovingly to the expansion of its ideological and political capital and social spheres of influence through the cultivation of distinct, only marginally overlapping, networks. Each has vested interests and runs separate economies of knowledge production and discourse regeneration; their epistemic bubbles rarely interlock. Even though they may speak at the same forums, write in the same journals, and end up going to the same conferences (mostly by accident), there seem to be limited incentives, will, and patience to converse and think together. There is also the centripetal force of peer pressure. Reaching out to the other ‘camp’ for candid exchanges, collaboration, or problem-solving may be seen as a suspect activity possibly not worth the time. Other than for ‘free particles’ belonging nowhere and roaming across the front lines, cross-partisan interactions tend to be superficial and timeserving. The mainstream and the ‘crits’ do not hear each other not because they speak softly but because they do not listen. When the dialogue happens, it stops or turns bitter rather quickly. The sides have a long memory and little mutual trust, and at times they speak of each other with thinly veiled disdain. Both may be guilty of provocative flourish and argumentative excesses and unprepared to admit to transgressions. Those in the ‘mainstream’ call out ‘crits’ for sins ranging from toxic cynicism to moral vacuity to apologia of atrocity. The ‘crits’ do not mince words and blame their opponents for naiveté and blindness, or hypocrisy and conformism. It does not have to be this way. There are commonalities and mediatory spaces between the two camps that could be explored to move the legitimacy debate and practice forward. The agendas and sensibility of the more ‘constructive’ of the critics and of the more critical on the mainstream side have certain affinity. They are not dissimilar in part of the normative expectations towards the project and long-term plans for it. Indeed, some of their shared goals clearly overlap: eradicating selectivity, ensuring the even-handed and accountable administration of justice, accommodating diversity, and realizing the reformative and emancipatory potential of international criminal law. At least within this mediatory space, a rapprochement could be possible and is arguably

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

650 Sergey Vasiliev necessary. Admittedly, far from all will see meaning and be interested in this search for a common denominator. But for those who will, the next step would be to build (tactical) coalitions around consensual goals and principles that can help push the project where both ‘camps’ want to take it. Both share the concern about the erosive character of selectivity, which delegitimizes the enterprise and has demoralizing effects on the believers on either side of the fence. Thinking how courts can strategically resist the hegemons that expect loyalty and ‘self-induced’ selectivity, and how they can play or rebel against the patronage system of which they are a part, could well be the discipline’s most important project. A movement towards those objectives will require joint mainstream and critical efforts to occupy a mediatory space in which constructive agendas coalesce, interpenetrate, and reinforce each other, a space that has so far mostly been deserted.

IV. Legitimacy as Crisis Management Is there a solution to the never-ending legitimacy crises of international criminal justice? The project may well be impossible by design, premised on the idea whose time might never come. Its main leverage is in its transformative potential yet to be realized; in what it could have been or what it might still become. International criminal justice gave many a hope for empowerment; it inspired resistance and action. The genie is out of the bottle. But hopes have also been dashed along the way. The projected transformations— creating sites for justice, speaking truth (and law) to power, and the legal corseting of political spaces—have proven more difficult to effect than was initially thought. Due to the contested politics of its existence and due to its homelessness—the price of nonembeddedness in a sovereign and coherent community—international criminal justice might never be able to meet the demands upon which its legitimacy is contingent. However, discarding the project’s emancipatory promise would mean throwing the baby out with the bathwater. It is the reason why the project continues to arouse strong emotions and interest in those who want to see its promise fulfilled. Some of the ‘radical critics’ challenge it precisely because they believe it could be reinvented or refashioned as an instrument of justice and equality to the benefit of the invisible, voiceless, and downtrodden. The courts can do little to fix the global power structures of which they are a progeny. But critical sensibility could infiltrate the mainstream and permeate the intimate sphere of decision-making. If and when the project’s insiders come to be sensitized to the critical concerns to the point of making them their own, this could become the tipping point for the genuine transformation of institutional politics of international criminal law. The courts would walk the walk on the principles they proclaim. They would be more subversive, rebellious, and bold in overcoming internal resistance and in challenging hegemonic structures, even at a price. Maybe—just maybe—the ICC would then stop being afraid of itself. It would abandon the sticky ‘African rebel court’ hypostasis and move on to investigate in Afghanistan, Ukraine, and other places overshadowed by ‘great powers’. This would be a convincing operational response to some of the radical

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Crises and Critiques of International Criminal Justice 651 critiques—only if the ICC does so because and when it must, and not because and when the Realpolitik and the discursive context overdetermined by ‘crisis’ render such action auspicious or tactically necessary.87 To most of the radical critiques, there are no persuasive and ready-made answers (yet). The legitimacy curse of international criminal justice can hardly be undone and most of the available solutions will be partial and attitudinal. That said, the legitimacy ‘crises’ can be managed more expertly than has been the case so far. Legitimacy is a plant that needs to be watered regularly. It is not a fixed state but a continuous exercise in persuasion; its parameters are in constant flux and liable to contestation and re-negotiation. There is a need for an open, inclusive, and genuine dialogue in which the participants are prepared to listen. Those in charge of the institutions must allow room for dissent and welcome critiques in earnest while taking underlying concerns seriously, as deserving a meaningful response and appropriate action. Legitimation practices aimed at reinforcing the field’s orthodoxies by means of repetition, retouching of images, and fixing of appearances through PR stunts and legacy initiatives are less worth investing in. Pretending that problems do not exist does not make them go away. This chapter’s objective was neither to develop a legitimacy theory for international criminal law nor to advance specific critiques or defences. Rather, it pursued a more limited observational or psychoanalytical purpose: to diagnose the condition of the field by looking at the prevalent crisis-framing and discursive contestations between its ‘centre’ and ‘margins’. The legitimacy debate should be more than a blame game or a battleground between cynicism and hypocrisy that the sides are calling each other out for. In the current configuration, nothing precludes the two camps from reiterating their ‘commitment to dialogue’ while continuing to waste opportunities for meaningful engagement despite shared normative expectations towards international criminal justice. Wasting such opportunities, however, comes at the expense of the project in which they are invested, albeit in different ways. If this is allowed to continue, the melancholy tone of this chapter would prove justified, bringing consolation to no one. International criminal law would then remain a splintered field that has lost itself and is forever caught in the pangs of ‘crisis’—up to the moment the last believer in its emancipatory potential will stop caring anymore.

87 cf Christine Schwöbel, ‘Introduction’ in Schwöbel (ed), Critical Approaches (n 7) 4 (the ICC’s move out of Africa responds to an effectiveness rather than a radical critique). Since the two may overlap, the ICC’s looking to situations outside of Africa is a progressive step that arguably responds to both. Admittedly, however, suspicions that the move is motivated by expansionism or power-grabbing, as opposed to an even enforcement, will persist.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

chapter 28

H a ngm a n ’s Perspecti v e Three Genres of Critique following Eichmann Itamar Mann*

The trial is the important thing, not the penalty…1 David Ben-Gurion

I. Introduction If capital punishment is ever acceptable, a possible precautionary rule against its misuse could be that judges deciding to employ it would be obliged to perform executions themselves.2 After reading the verdict, the judge would step down from the bench and neatly fold the robe. He or she would then walk alongside the convict to the gallows. Imagine Moshe Landau, the trial court judge who sentenced Adolf Eichmann to death, * Senior lecturer, the University of Haifa, Faculty of Law. The chapter is based on lectures delivered at the University of Haifa on 2 November 2017 (hosted by the Haifa Center for German and European Studies); and at Leuphana University of Lüneburg on 23 June 2018 (hosted by the research group on Cultures of Critique). It was also workshopped at the Haim Striks School of Law and the College of Management, Rishon LeZion. Thanks to the participants of the three events for their useful engagement. I would also like to thank Irit Ballas, Orna Ben-Naftali, Ioannis Kalpouzos, Kenneth Mann, Liron Mor, Sherally Munshi, Shira Shmuely, and Lihi Yona for their insightful comments on early drafts; and Netalie Braun, for a useful conversation on her work. Special thanks go to the editors of this volume for their outstanding intellectual support and generosity during the (long) writing process. 1 Quoted in Yosal Rogat, The Eichmann Trial and the Rule of Law (Center for the Study of Democratic Institutions 1961) (hereafter Rogat, Eichmann and Rule of Law). 2 International law has generally abolished the capital punishment. See William Schabas, The Abolition of the Death Penalty in International Law (CUP 2002).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Hangman’s Perspective 653 morosely listening from the audience as the Israeli Supreme Court rejects Eichmann’s appeal. Wiping perspiration from his forehead, he repockets a handkerchief and dispassionately carries on with the killing. ‘You must hang’ says philosopher Hannah Arendt to Eichmann towards the end of her book Eichmann in Jerusalem: A Report on the Banality of Evil.3 Contrary to a number of her contemporaries, Arendt preferred that Eichmann’s death be decided by judicial panel, not by the agent of an unnamed security force. In an astonishing epilogue to the book, she imagines herself replacing Landau’s presiding role.4 It is safe to assume that just like in Landau’s reality, in her imagination too, the practical details of implementing the decision would be taken care of—by others. The Eichmann trial is one of the most iconic and foundational criminal cases in which state authorities adjudicated mass atrocities. Israeli agents had kidnapped the suspect from his domicile in Argentina in 1960, and secretly delivered him to their country. Eichmann was subsequently tried for crimes he committed during the Second World War, when he participated in the Nazi programme of extermination of Jews and other groups. His case began on 11 April 1961, at the Jerusalem District Court, where he was charged under the Nazi and Nazi Collaborators Law of 1950.5 Shalom Nagar, a prison guard for the Israeli Prisons Service, placed the noose around his neck shortly after the rejection of his appeal, a few minutes past midnight, on 1 June 1962. True to the case’s historic status, it generated copious commentary touching upon the most fundamental questions of legal and political theory.6 Its importance owes much to Arendt’s classic account.7 Although Eichmann is central to a tradition of scholarship, following Arendt or often arguing against her, scholars have not yet fully exhausted its interpretation. Based on the Eichmann affair, this chapter distinguishes three genres of critique directed towards the adjudication of mass atrocity, domestic or international.8 3 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (The Viking Press 1971) 279 (hereafter Arendt, Eichmann in Jerusalem). 4 See analysis in Judith Butler, ‘Hannah Arendt’s Death Sentences’ (2011) 48(3) Comparative Literature Studies 280 (hereafter Butler, ‘Arendt’s Death Sentences’). 5 Sefer Ha-Chukkim No. 404 of the 26th Av, 5723(16 August 1963) p. 140. For the text of the statute online, see also Israel Ministry of Foreign Affairs Archives accessed 24 December 2018. 6 Among many, see e.g. William Schabas, ‘The Contribution of the Eichmann Trial to International Law’ (2013) 26(3) Leiden J of Intl L 667; Leora Bilsky, ‘In a Different Voice: Nathan Alterman and Hannah Arendt on the Kastner and Eichmann Trials’ (2000) 1(2) Theoretical Inquiries in Law 509; Leora Bilsky, ‘The Eichmann Trial: Towards a Jurisprudence of Eyewitness Testimony of Atrocities’ (2014) 12(1) J of Intl Crim Justice 27. 7 Arendt’s account continues to draw attention among legal scholars. See, e.g., David Luban, ‘Hannah Arendt as a Theorist of International Criminal Law’ (2011) 11(3) Intl Crim L Rev 621 (hereafter Luban, ‘Hannah Arendt’). More generally on Arendt in contemporary legal thought: Jan Klabbers, ‘Possible Islands of Predictability: The Legal Thought of Hannah Arendt’ (2007) 20(1) Leiden J of Intl L 1; Christian Volk, ‘From Nomos to Lex: Hannah Arendt on Law, Politics, and Order’ (2010) 23 Leiden J of Intl L 759. 8 As Jean François Lyotard writes, a ‘genre of discourse determines what is at stake in linking phrases’. There could thus be deep divides between different genres of thinking: ‘The stakes implied in the tragical genre, its intended success (shall we say, the feelings of fear and pity on the part of its addressees), and the stakes implied in the technical genre, its own success (shall we say, the availability of the referent for

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

654 Itamar Mann Each of these genres answers differently a basic set of questions, namely: what are the unarticulated assumptions the adjudication of mass atrocity rests upon? What injustices can such prosecutions generate or perpetuate? And perhaps most importantly, what is the relationship between criminal law and those who carry out violence in its name?9 Rather than an emphasis on judicial opinions, these critiques focus on the event of such adjudication—on the trial.10 They are ‘critical’ (1) in that they challenge us to view such trials not only as delivering justice, but also, at times, as sources of injustice or violence; and (2) in that they cumulatively provide a set of prescriptive precautionary principles that should be followed in any new prosecution of mass atrocity today. If for no other reason, the three genres are worth grouping together for their common historical root. This chapter thus offers a modest corrective to a history of previous understandings of the Eichmann trial, and of the adjudication of mass atrocities. Each of the three g enres developed below reflects a different understanding of trials dealing with ‘core crimes’ and their potential pitfalls. Each of them is introduced through a thinker taken to be one of its most important proponents; but they all go beyond the theoretical intervention of any individual commentator, and amount to three distinct formations of legal culture.11 Through an appeal to one remarkable film by director Netalie Braun, The Hangman (2010), the chapter points towards a novel direction of critique: one offered from the perspective of Eichmann’s prison guard and executioner.12 This third critique exposes not only shortcomings of Eichmann and potentially of mass atrocity trials more generally. It also exposes blind spots of the two former critical genres. First (Part II), the chapter recounts Arendt’s critique of the trial in Eichmann in Jerusalem. I cannot do justice to her work in this context and will only offer a simplified distillation. Following legal scholar Yosal Rogat, this genre is labelled the rule of law.13 Within this genre, mass atrocity trials are criticized for veering towards a show designed to shape public opinion and constitute a political community. This tendency generates tension with basic rule of law values, held dear within liberal legalism, such as individual accountability in criminal procedure and judicial independence. Several other prominent the addressor’s wants) are, for their part, incommensurable’. Jean François Lyotard, The Differend: Phrases in Dispute (Georges Van Den Abbeele (tr), University of Minnesota Press 1988) 128. On ‘genres of critique’ as part of a critical legal methodology, see Karin Van Marle and Steward Motha (eds), Genres of Critique: Law, Aesthetics and Liminality (Sun Press 2013). To some extent, the dynamics described in this chapter may occur in any criminal trial. 9 Compare ‘genres’ to ‘visions of fairness’ in Mirjan Damaška, ‘The Competing Visions of Fairness: The Basic Choice for International Criminal Tribunals’ (2011) 36(2) North Carolina J of Intl L and Commercial Regulation 365. 10 The three by no means furnish a comprehensive account of critical approaches to international criminal justice; nor do they canvass the rich literature in the field. For more see the essays in Christine Schwöbel-Patel, Critical Approaches to International Criminal Law (Routledge 2014); and Tor Krever, ‘International Criminal Law: An Ideology Critique’ (2013) 26(3) Leiden J of Intl L 701. 11 On legal culture generally, see Paul W Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (University of Chicago Press 2000). 12 The film at the centre of this chapter is Hangman (2010), directed by Netalie Braun. 13 Rogat, Eichmann and Rule of Law (n 1).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Hangman’s Perspective 655 authors share the related concern that the adjudication of mass atrocity is very likely to become unduly ‘political’.14 Second (Part III), the chapter describes an influential type of response to Arendt. According to this genre of critique, trials of mass atrocity may prevent the victims of such crime from having their voices heard in court. The most familiar examples of legal processes that generated such an injustice are the Nuremberg trials. Literary theorist Shoshana Felman advanced a mode of critique in which the Eichmann trial’s theatrical aspect—just what Arendt so vehemently rejected—becomes its ‘revolutionary’ contribution to criminal justice.15 But the ramifications of Felman’s intervention go far beyond a response to Arendt. Her work both reflects and influences a reorientation of law towards narrative, central to the intellectual history of mass atrocity adjudication.16 In this genre of critique, closely tied with feminist critiques of criminal law and with transitional justice, adjudication becomes the basis for a collective process of community or state building. This line of argument can be called a genre of catharsis.17 Third (Part IV), the chapter develops a perspective based on The Hangman.18 Braun offers a cinematic portrait of Shalom Nagar. The implicit critique of mass atrocity adjudication is presented in Nagar’s own voice.19 Unlike Arendt and Felman, Nagar is not a theorist of politics or culture (though Braun does contribute to these fields with her film). The figure at the centre of this third genre of critique is a traditional Kosher butcher working in Israel. He is a man of modest means, but of significant wisdom and remarkable humour; and he has many interesting things to say about Eichmann, based on his experience as Eichmann’s guardian in prison and his hangman. You may think it a stretch to call his perspective a genre, mainly because it is rather personal. Nagar’s views, as narrated in the film, nevertheless form a third perspective that can be carefully generalized, and juxtaposed with Arendt’s and Felman’s. It exposes aspects of the trial that neither of them noticed, but that are relevant for the assessment of their positions; particularly, it shows how the social construction of a distinction between punishment and revenge may itself become a form of oppression. I try to capture this by proposing a particular notion of sacrifice. Part V further elaborates the notion of sacrifice through an 14 One assumption this genre of critique makes—explicitly or implicitly—is that the realms of law and of politics are meaningfully distinguishable. On the risks of trials becoming political see, e.g., Eric A Posner, ‘Political Trials in Domestic and International Law’ (2005) 55 Duke L J 75. 15 Shoshanah Felman, ‘Theatres of Justice: Arendt in Jerusalem, the Eichmann Trial, and the Redefinition of Legal Meaning in the Wake of the Holocaust’ [2000] 1.2 TIL. 16 The turn to narrative in legal theory is associated with Robert Cover, who Felman often cites. See Robert Cover, ‘Foreword: Nomos and Narrative’ [1982–1984] HLR 97. 17 The Greek term signifies a purgation or cleansing of negative emotions through the viewing of tragedy. Aristotle writes in his Poetics: ‘A tragedy, then, is the imitation of an action that is serious and also, as having magnitude, complete in itself [. . .] with incidents arousing pity and fear, wherewith to accomplish its catharsis of such emotions.’ 18 Netalie Braun, The Hangman (2010) (hereafter Braun, The Hangman). 19 A documentary film is never free of interpretation or bias; the third genre might therefore be best understood as my own interpretation of Braun’s rendering of Nagar’s story. It is thus a mediated and synthetic register of discourse and should be understood as such.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

656 Itamar Mann account of the secondary and tertiary social harms that mass atrocity trials can generate, according to this third view. To conclude, the chapter outlines the questions and precautionary principles Nagar teaches us to direct towards trials seeking accountability for mass atrocity. These are largely about the hierarchies between the actors whose work is necessary to carry criminal justice forward; and about exclusions that historically momentous trials can generate when they are designed to midwife collective political change. I argue that the hangman’s perspective holds in store a significant lesson for lawyers seeking account ability for mass atrocities today.

II. Hannah Arendt: The Rule of Law Arendt was not the first to articulate ‘the rule of law genre’. In preparation of her manuscript, Arendt read a 1961 booklet by Stanford legal scholar Yosal Rogat, titled The Eichmann Trial and the Rule of Law.20 Rogat made a more distinctly legal argument against Israel’s decision to try Eichmann. Primarily through an analysis of the inter national law of the time, he claimed the decision was inimical to the rule of law, focusing on three basic points, ‘1) the question of his abduction; 2) the retroactive application of law; 3) the basis for Israel’s claim of jurisdiction over crimes committed outside its territorial limits’.21 While his analysis showed that each of the three issues generated considerable legal difficulties, Rogat did not think these necessarily invalidated criminal proceedings against Eichmann. He rather took a position Arendt later adopted: the case should be adjudicated before an international tribunal. The stakes were high. Absent such a plan, ‘the “interests of legality” were subordinated, and perhaps sacrificed’.22 Rogat concluded: ‘It has never before . . . been so important for nations . . . to satisfy these requirements and become capable of making the decision Israel failed to make’.23 The New Yorker initially published Eichmann in Jerusalem as a series of articles for more-or-less popular consumption in 1963. Eichmann’s execution is the last scene in the book version, just before the aforementioned epilogue and a postscript. The phrase ‘the banality of evil’ appears only here. Arendt uses it to describe the ‘grotesque silliness’ of Eichmann’s last words: ‘After a short while, gentlemen, we shall all meet again. Such is the fate of all men. Long live Germany, long live Austria, long live Argentina. I shall not forget them’.24 Arendt pokes fun at Eichmann: so tempted by ceremonial fanfare, he seemed to have mistaken the moment for someone else’s funeral. Yet in her description of the rush from 20 Rogat, Eichmann and Rule of Law (n 1). Arendt, Eichmann in Jerusalem (n 3) 27. 21 Rogat, Eichmann and Rule of Law (n 1) 23. 22 ibid 5. 23 ibid 43. 24 Arendt, Eichmann in Jerusalem (n 3) 252.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Hangman’s Perspective 657 death sentence to execution—only two days separated between them—she too has her omissions. She mentions objections to the death penalty by Jewish dignitaries such as philosopher Martin Buber and his colleagues at the Hebrew university. She describes how Eichmann’s ashes ended up in the Mediterranean Sea. But she pays no attention to the practical aspects of killing Eichmann. The men who had to carry out this task make no appearance in the book, nor are their voices heard elsewhere in the copious scholarship surrounding the trial. Arendt’s ‘report’ immediately became controversial, specifically among Jews, both inside and outside of Israel.25 It is easy to sense why the book rubbed parts of its readership in the wrong way. Consider how Arendt mockingly reiterated that, for the Israeli prosecution—and for Prime Minister Ben-Gurion’s government—this became a ‘show trial’.26 Rather than a criminal process aimed at determining guilt or innocence, she explained, the event was a theatrical and essentially political instrument. It was ‘cheap rhetoric and bad history’27—a spectacle designed for consumption by an audience, not a laborious process of determining facts and interpreting the law. As such, the trial was objectionable: [T]he central function of criminal proceedings, according to Arendt, consists in determining the criminal culpability of the suspect and not in giving expression to the severe suffering of the victims, unless the latter is instrumental to the main aim of the trial.28

While the details of Arendt’s legal theory remain a matter of debate, her argument here rings familiar to lawyers. She speaks in the name of a defence of the rule of law from the usurpation of politics. She thus insists on the idea that a criminal trial must focus not on the victims or their society, but on ‘the accused’.29 Particularly, the procedural aspect of the rule of law is relevant. When a court is designed to accomplish the political ends of a society, doubt is cast on whether it can truly be independent and impartial; and on whether its judgment will ultimately be established upon an existing legal rule and the formal presentation of evidence.30 If mass atrocity trials can go forward, they must constantly be guarded against the lurking shadow of show trials.31

25 As amusingly captured in the film Hannah Arendt (2012), directed by Margarethe von Trotta. 26 Arendt, Eichmann in Jerusalem (n 3) 9. 27 ibid 19. 28 Thomas Mertens, ‘Memory, Politics, and Law – The Eichmann Trial: Hannah Arendt’s View on the Jerusalem Court’s Competence’ (2005) 6(2) German L J 410. 29 Arendt, Eichmann in Jerusalem (n 3) 19–35. 30 Written very much within the rule of law genre, a recent article highlights the evidential challenges in mass atrocity trials in particular (partially stemming from the demands of the second genre described in Part III): Nancy Amoury Combs, ‘Deconstructing the Epistemic Challenges to Mass Atrocity Prosecutions’ (2018) 75 Washington and Lee Law Rev 233. 31 See generally Gerry Simpson, Law, War, and Crime (Polity Press 2007).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

658 Itamar Mann Arendt struggles with the need to punish a defendant who displays only a very fragile criminal intent;32 one who has acted legally in terms of the law of the Third Reich. The rule of law only allows for retribution inasmuch as it is strictly set apart from revenge. Lacking clear illegality at the time of the crime, sentencing Eichmann may amount to revenge. But does this mean that Eichmann should not be punished?33 Arendt followed Rogat in arguing that an international rather than a domestic tribunal could solve the conundrum. As he put it: ‘Perhaps the simple desire for revenge, the feeling that Eichmann must somehow be punished, should be recognized and acknowledged in some way’.34 For both authors, Israel’s foundational political objectives presented a risk of tainting Eichmann’s conviction. Conscious of this risk, Israeli authorities prepared a bulletproof glass box for Eichmann to sit in during court hearings.35 Arendt mentions that the trial was held in Beit Ha’am. The Jerusalem theatre was transformed into a courthouse in anticipation of the trial. But when Arendt listened to Gideon Hausner, the Israeli prosecutor, she was convinced that the place remained a theatre, never fully managing the conversion into a courtroom. Hausner presented dramatically a theory devised by Ben-Gurion.36 The only defence for legalism that Arendt saw in the room was the panel of judges, and particularly judge Moshe Landau. His explanations of the procedure in their native German allowed Arendt to feel at home.37 In particularly infamous passages, Arendt referred to ‘the police’ complaining that ‘[i]t speaks only Hebrew and looks Arabic. Some downright brutal types among them’ (a contemporary writer might have used the word ‘thugs’). And she described the hustle of people waiting to enter the court as an ‘oriental mob’.38 These much-commented-upon 32 David Luban explains: ‘This is the biggest challenge that Arendt poses to international criminal law. When faced with a criminal state, and “banal” perpetrators who recognize evil only when it deviates from prevailing norms, the basis for criminal punishment must somehow be severed from subjective mens rea’. Luban, ‘Hannah Arendt’ (n 7) 639. See also Martti Koskenniemi, ‘Between Impunity and Show Trials’ (2002) 6 Max Planck YB of United Nations Law 8 (hereafter Koskenniemi, ‘Between Impunity and Show Trials’) (explaining the problem of ‘banality’ as a problem of mens rea). 33 Arendt writes: ‘A trial resembles a play in that both begin and end with the doer, not with the victim . . . In the center of the trial can only be the one who did – in this respect, he is like the hero in a play – and if he suffers, he must suffer for what he has done, not for what he has caused others to suffer’ (italics added). Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (The Viking Press 1963) 9. 34 Rogat, Eichmann and Rule of Law (n 1) 12. 35 An inability to bring the trial to conclusion without the defendant being shot would surely serve as further indication that Israel was not, in fact, the appropriate forum. 36 His famous opening words are telling: ‘As I stand before you, Judges of Israel, to lead the prosecution of Adolf Eichmann, I do not stand alone. With me, in this place and in this hour, stand six million accusers’. See Gideon Hausner, Justice in Jerusalem (Harper & Row 1966) 323. 37 Seyla Benhabib described this as a display of ‘childish partisanship’. See Seyla Benhabib, ‘Identity, Perspective and Narrative in Hannah Arendt’s Eichmann in Jerusalem’ (1996) 8(2) History and Memory 35. 38 Yehouda Shenhav quotes this letter to Arendt’s friend Karl Jaspers, and comments: ‘Arendt does more here than just mark the Arabness of Arab Jews. As a European Jew (of German origin), she expresses a quintessential orientalist reading of Israeli society, one that could come directly from Edward Said’s Orientalism’. Yehouda Shenhav, The Arab Jews: A Postcolonial Reading of Nationalism, Religion, and Ethnicity (Stanford UP 2006) 6.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Hangman’s Perspective 659 remarks are delivered as one more aspect of how the trial, set against a ‘colourful’ background, devolved into theatre. As will become clear, however, her sneer at the non-European backdrop of the trial becomes key to its understanding in a third genre of critique. The trial was undeniably part of a political process, which aimed to consolidate society in the new Israeli state (established in 1948).39 By exposing the trial’s theatrical aspect, Arendt seemed to pitch herself against this political project.40 Her argument in Eichmann in Jerusalem is ultimately much subtler and more complex than simply the critique of a show trial. It is nevertheless worthwhile to note that this simplified version of her ideas had considerable purchase. Around the world, attempts to establish accountability for mass atrocities and core crimes remained dogged by the suspicion of amounting to show trials. As Martti Koskenniemi noted in an essay published at the heels of the Slobodan Milošević trial in 2002, international criminal law ‘oscillates ambivalently between the wish to punish those individually responsible for large humanitarian disasters and the danger of becoming a show trial’.41 When legally charged, former despots and suspected war criminals almost invariably reiterated a complaint for being accused in a show trial. Arendt’s insistence on rule of law values furnishes a first genre of critique based on the Eichmann trial. The rule of law genre displays faithfulness to law and its procedures. The perpetrator of mass atrocity is ideally treated as an ordinary criminal.42 Moreover, the rule of law genre reflects a certain preference that the defendant be investigated, tried, and ultimately punished by a disinterested party, external to the events at issue. His or her crime may be considered as having enormous gravity. But there is no qualitative legal difference between mass atrocity and ordinary crime, no matter how absolutely out of the ordinary the allegations may be.43 The rule of law genre of critique seeks to limit criminal law to its role of determining guilt or innocence. A criminal trial is not thought of as a forum for writing history, deliberating morality, or generating social transformation. Such varied purposes have become central to mass atrocity adjudication in the second half of the 20th century. Keeping such developments in mind, Arendt’s critique seems as salient and timely as ever.44 39 Tom Segev, The Seventh Million: The Israelis and the Holocaust (Picador 2000) (hereafter Segev, The Seventh Million). 40 Arendt was of course critical of Zionism in other contexts too. See, e.g., Hannah Arendt, ‘The Crisis of Zionism’ in Jerome Kohn and Ron H Feldman (eds), Jewish Writings (Random House 2007) 329. 41 Koskenniemi, ‘Between Impunity and Show Trials’ (n 32) 1. 42 Arendt’s willingness to justify the trial with what she thought of as no clear showing of mens rea is surely a significant diversion from this general observation. See n 32 earlier. 43 The magnitude of atrocity crimes militates toward an international rather than a national trial only in one fundamental sense: internalization is conceived of as an assurance of judicial objectivity, which may in such cases be beyond the capacity of a domestic system. 44 Practically speaking, this genre probably has the most to say about the importance of suspect and defendant rights in the criminal process.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

660 Itamar Mann

III. Shoshana Felman: Catharsis Like Arendt returned to several of Rogat’s key observations on the rule of law, Felman too only came second to the notion of catharsis. Before her, in Reflections on the Deputy (1966), literary critic Susan Sontag articulated central tenets of the genre: As Hannah Arendt and others have pointed out, the juridical basis of the Eichmann trial, the relevance of all the evidence presented and the legitimacy of certain procedures are open to question on strictly legal grounds. But the truth is that the Eichmann trial not only did not, but could not have conformed to legal standards only . . . . The function of the trial was like that of the tragic drama: above and beyond judgment and punishment, catharsis.45

In a 2002 book, Felman seizes upon this passage.46 She questions Arendt’s ‘jurisprudentially conservative’ assumptions and those common to the rule of law genre.47 What Arendt found particularly disturbing about the trial is precisely what Felman finds ‘revolutionary’ about it.48 The genre of catharsis gives different answers to the questions this chapter began with: what are the unarticulated assumptions the adjudication of mass atrocity rests upon? What injustices can such prosecutions generate or perpetuate? Here, law and theatre are no longer opposites.49 Trials seeking accountability for mass atrocity gain their meaning from their affinity with theatre (and with politics). The victims of mass atrocity become protagonists. Taking her cue from Robert Cover, Felman emphasizes how the trial casts law in narrative form.50 When mass atrocity is at issue, tragedy in particular becomes a relevant register of narration. In the tragedy-come-trial, an ‘encounter between law and art’ adequately testifies to the ‘abyssal meaning of the trauma’.51 In the face of such an abyss, narrative serves the community. It helps the community define itself in terms of shared values and shared moral convictions. Consider the testimony of Yehiel Dinoor, better known by his pen name, K-Zetnik. Felman reads the testimony as well as Arendt’s commentary following it, and the surrounding events:

45 Susan Sontag, Against Interpretation (Penguin Classics 2009) 124. 46 Shoshana Felman, The Juridical Unconscious: Trials and Traumas in the Twentieth Century Felman (Harvard UP 2002) 162 (hereafter Felman, Juridical Unconscious). 47 Shoshana Felman, ‘Theatres of Justice: Arendt in Jerusalem, the Eichmann Trial, and the Redefinition of Legal Meaning in the Wake of the Holocaust’ (2000) 1(2) Theoretical Inquiries in Law 492. 48 ibid. 49 One commentator goes as far as identifying a ‘theatrical’ history of the Eichmann trial. See Michael Bachmann, ‘Theatre and the Drama of Law: A “Theatrical History” of the Eichmann Trial’ (2010) 14 Law Text Culture 94. 50 Robert Cover, ‘Foreword: Nomos and Narrative’ (1983) 97 Havard L Rev 4. 51 Felman, Juridical Unconscious (n 46) 165.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Hangman’s Perspective 661 He was called to testify because he was a crucially relevant eye witness. He had met Eichmann in Auschwitz. But he collapsed before he could narrate this factual encounter. His testimony thus amounted to a legal failure, the kind of legal failure Jackson [the American prosecutor at Nuremberg] feared.52

Felman zeros in on this ‘legal failure’ in Nuremberg to reinterpret what mass atrocity trials are all about. The death camp survivor who became a Jewish-Israeli author dedicated much of his literary career to his experience during the Shoah. Arendt, for her own part, thinks of his testimony as a particularly vulgar part of the show. ‘The narrative of his collapse becomes, in Arendt’s hands, not an emotional account of human testimonial pathos but a didactic tale that illustrates ironically what accidents can happen when a witness is, quite paradoxically, too eager to appear’.53 K-Zetnik’s testimony was supposedly irrelevant for establishing the guilt of this individual defendant. It contaminated rule of law values, which the trial is supposed to embody. Dinoor famously fainted on the witness stand. For Arendt, he serves as a caricature of Israel’s dizzy conflation between law and politics. He embodies a visceral and abject emotional reality that Arendt is not happy to admit into the hall of justice. Arendt’s passage, which Felman quotes, is remarkably sarcastic. For her, the drama of the witness’s somatic response to the questioning seems like part of a script: [E]ven Mr. Hausner felt that something had to be done about this ‘testimony’, and very timidly, very politely interrupted: ‘Could I perhaps put a few questions to you if you will consent?’ Whereupon the presiding judge saw his chance as well: ‘Mr. Dinoor, please, please listen to Mr. Hausner and to me’. In response, the disappointed witness, probably deeply wounded, fainted and answered no more questions.54

Felman’s take is different. Rather than dismissing such performative aspects of the trial, she thinks of them as revealing an important truth about law. While Arendt’s irony is rooted in her legally ‘positivistic’55 position, Dinoor introduces into the courtroom the perspective of radically oppressed victims. Such victims’ language, Felman says, has been destroyed, and it is in the risk of being pathologized when it comes before a court of law: ‘in the oppressor’s language, the abused will sound crazy, even to himself, if he describes himself as abused’.56 It is thus the role of the Eichmann trial to invent a ‘new language’, one in which even the collapse of a witness can bear meaning: To enable such writing through which the mute bearers of traumatizing destiny become the speaking subjects of history, the Eichmann trial must enact not simply memory, but memory as change. It must dramatize upon its legal stage before the audience nothing less than the conceptual revolution in the victim. And this, in 52 ibid 135. 53 ibid 142. 54 Arendt, Eichmann in Jerusalem (n 3) 224. 55 Felman, Juridical Unconscious (n 46) 146. 56 ibid 125.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

662 Itamar Mann fact, is what the trial does. In this sense the Eichmann trial is, I would submit, a revolutionary trial . . . . This historically unprecedented revolution in the victim which was operated in and by the Eichmann trial is, I would suggest, the trial’s major contribution not only to Jews, but to history, to law, to culture – to humanity at large.57

In Nuremberg, documentary and visual evidence was infamously preferred over personal testimony and the human voice. The decision aimed to ensure the objectivity of those historical trials.58 But because the Nuremberg tribunals did not give an oppor tunity for the victims to tell their stories, they could not ultimately provide a forum for justice in the full meaning of the term. Affective responses and the human body are, to the contrary, central to Felman’s feminist thinking.59 Felman’s trial is not about revenge, which implies a private urge to see a responsible party suffer and thus ‘pay the price’ for its wrongdoing. It nonetheless should be charged with emotional content and with the subjective experience of the victim. She acknow ledges that a difference always remains between art and law. As Cover famously wrote, law ‘takes place in field of pain and death’.60 Felman explains, ‘[A] work of art cannot sentence to death. A trial, unlike art, is grounded in the sanctioned legal violence it has the power (and sometimes the duty) to enact’.61 Yet ultimately Felman gives surprisingly little attention to the death penalty in her account of Eichmann. It is almost as if she mentions legal violence only to shrug it away and focus on what more intensely interests her: the truth revealed in the victim’s testimony. A certain diminution of the violence involved in criminal enforcement is characteristic of the entire genre of catharsis. The genre moves from a focus on the defendant to an increased focus on victims (and their societies). Arendt’s observation that the trial was a state-building project (related to its sovereign violence) is also conveniently occluded. The label of catharsis is intended to emphasize how the collective moral character of the audience is revealed and vindicated. The cogency of the community and a set of ethical convictions are reaffirmed. One must understand the elevation of trauma to catharsis against the backdrop of rejection and humiliation that survivors of the Holocaust had previously experienced.62 Built around the ‘negation of diaspora’,63 Israeli society in its early years fashioned itself around the work of farmers and warriors. In highlighting the dignity of victims, the second genre of catharsis rejects such an Israeli identity to include victims and place them at the centre of society. In doing so, it shuns any exclusive or formalistic focus on the rule of law. At the heart of its concerns are the humans law is supposed to serve, their 57 ibid 133. 58 See Felman’s quotation of Justice Robert Jackson, ibid 131–2. 59 See, e.g., Shoshana Felman, What Does a Woman Want?: Reading and Sexual Difference (Johns Hopkins UP 1993). 60 Robert M. Cover, ‘Violence and the Word’ (1986) 95 Yale L J 1601. 61 Felman, Juridical Unconscious (n 46) 152. 62 Segev, The Seventh Million (n 39). 63 See, e.g., Amnon Raz-Karkozkin, ‘Diaspora in Sovereignty: Towards a Criticism of “The Negation of Diaspora” in Israeli Culture’ (1993) 4 Teoria Uvikoret 23.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Hangman’s Perspective 663 perceptions, emotions, and sense of self-worth.64 The trial and its emissaries are granted with a kind of constituent power, inasmuch as their testimonies help build a new social contract. At the same time, in Felman’s work, there is no real concern about the traditional liberal worry that too much attention to victims may risk an illiberal trial; nor is there engagement with the corollary question—who may be excluded from this victimcentred constitutionalism, or pay its price? Before moving on to the third genre—the one I identify with Nagar—note that Felman connects with a broad orientation towards mass atrocity trials, dominant in the intellectual history of the discipline. This orientation is reflected in three of the main conceptual developments in the field during the previous few decades: 1. The rise of victim rights. Closely related to the emergence of feminist approaches to international law, this trend has resulted in the expansion of procedural rights for victims during several stages of the international criminal process. Felman’s theory of narrative, when generalized, can be understood both as a reflection and an articulation of this important development.65 2. Transitional justice. The field of transitional justice conceptualizes the ways in which trials and other legal and quasi-legal procedures help a society heal after periods of conflict or oppression, and establish its new identity. A writer such as Ruti Teitel, writing within the international legal discipline, can therefore also be thought of as a central contributor to this second genre of critique.66 3. Related to transitional justice, international criminal law is often conceived as having the role of creating a record of history. Following Walter Benjamin, Felman goes so far as saying that the Eichmann trial allowed the presentation of the standpoint of the oppressed’s history. This is a big claim that will have to be examined in this chapter against other understandings of oppression and social harm.67 The genre of catharsis, in Felman and other writers, brings together these three different strands of literature. To be sure, writers within this genre in legal academia do not 64 See recently, Marie Soueid, Ann Marie Willhoite, and Anne E. Sovick, ‘The Survivor-Centered Approach to Transitional Justice: Why a Trauma-Informed Handling of Witness Testimony is a Necessary Component’ (2017) 50 George Washington Intl L Rev 125. 65 See, e.g., M. Cherif Bassiouni, ‘International Recognition of Victims’ Rights’ (2006) 6 Human Rights L Rev 203; George P. Fletcher, ‘Justice and Fairness in the Protection of Crime Victims’ (2005) Lewis & Clark L Rev 547; Wayne A. Logan, ‘Confronting Evil: Victims’ Rights in an Age of Terror’ (2008) Georgetown L J 721 (particularly the discussion of the relevance of Eichmann at 722–26). For a critical appraisal, see Sara Kendall and Sarah Nouwen, ‘Representational Practices at the International Criminal Court: The Gap Between Juridified and Abstract Victimhood’ (2013) 76 Law and Contemporary Problems 235 (hereafter Kendall and Nouwen, ‘Representational Practices’). 66 See, e.g., Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Beacon Press 1998); Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities in International Law (Clarendon Press 1997); Ruti G. Teitel, Transitional Justice (OUP 2000). 67 See, e.g., Mark Osiel, Mass Atrocity, Collective Memory, and the Law (Transaction Publishers 1999); Tzvetan Todorov, ‘Memory as Remedy for Evil’ (2009) 3(1) J of Intl Crim Justice 447.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

664 Itamar Mann typically write about catharsis and prefer to choose vocabularies from within the discipline: the typical terms include victimology, restorative justice, or a reference to ‘feminism’ more generally. They engage more directly with discourses centred on the rule of law.68 Felman’s account is nonetheless a powerful distillation of what is at stake in this large body of literature. And it is a compelling critique of Arendt, whose mocking gestures toward both the prosecutor and the victims may indeed reveal an artificial insistence on a distinction between law and politics. As will become clear, both Arendt’s distinction between the two, and Felman’s conception of their affinity, may also generate injustice.

IV. Netalie Braun: Sacrifice The third perspective can only tentatively be called a ‘genre’. Its basic tenets have, as far as I know, not been articulated in scholarship. Yet they are incredibly important to grasp. This genre of critique casts a shadow both on Arendt and the notion of the rule of law, and on Felman’s emphasis on catharsis. Just as Felman developed her perspective through a critique of Arendt, this genre too is implicitly critical not only toward mass atrocity trials: it amounts to a critique of their critique. Shalom Nagar, when listened to carefully, leads towards a cautionary theory on mass atrocity trials, warning lawyers involved in such trials of the expanding circles of harm they may generate. Nagar is a Kosher butcher living in the Israeli city Holon. Before becoming a butcher, he held another job as a prison guard for the Israeli prison service. In this role, back in the early 1960s, he was given one assignment that ended up changing the course of his life. After the Israeli secret service kidnapped Eichmann from Argentina and placed him in pre-trial detention, Nagar was tasked with guarding his cell. When the trial was over and Eichmann received the death sentence by hanging, Nagar was tasked with carrying the sentence out. His following transformation from hangman to butcher informs this third, perhaps inchoate, genre coming out of the Eichmann trial. Like the rule of law genre, this genre too may help conceptualize the price of a conflation between legal accountability and collective foundation. Like the genre of catharsis, this genre too is closely intertwined with the psychological experience of trauma. As these two detrimental consequences of the mass atrocity trial will be unpacked, they will come to appear as a kind of sacrifice. My reading of Nagar’s trajectory is informed by The Hangman (2010), directed by Netalie Braun. The documentary tells the story of Nagar’s life, and is built around s everal poignant and at times funny interviews with him.69 The camera follows Nagar attentively 68 See Leora Bilsky’s distinction between a ‘political trial’ and a ‘show trial’ in Leora Bilsky, Transformative Justice: Israeli Identity on Trial (University of Michigan Press 2004). 69 Compare Nagar’s humour with Arendt’s often-funny irony, which in both cases have a profound relationship with the practice of critique they choose. As Lyndsey Stonebridge writes, ‘[I]f irony turns out to be a kind of kernel of the historical and remembering self and not merely a protective shell, it is perhaps because the ironic voice positions the subject in a distinctive relation to historical injury – not

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Hangman’s Perspective 665 as he works in his shed, surrounded by stray cats; as he spends time with his wife in their tiny apartment; and as he accompanies his son, who is in his thirties and terminally ill. Nagar’s slightly high-pitched tone and his child-like laughter, from behind his beard, are the voiceover gently leading between his elderly friends and clients, and historical material from the Eichmann trial. Nagar was not always as religious as he is in his present practice as a Kosher butcher. As he explains very straightforwardly, his turn to religion and to his current line of work are a direct result of the trauma of having to perform Eichmann’s execution. Since he came back home from work one day, stained with Eichmann’s blood, he had a hard time finding solace. Only religious practices such as keeping the Sabbath could help. A very important aspect of Nagar’s story is his personal ethnic background as a Yemenite Jewish Israeli. Nagar’s non-European identity is key to understanding why he became so badly injured. He is a member of a group that the major thinkers of both previous genres either regarded in condescension (Arendt) or ignored (Felman); Arendt may have noticed him delivering Eichmann in or out of his glass box when she referred to the police that ‘speaks only Hebrew and looks Arabic’. During the 1960s, Jewish Israeli society was composed mainly of immigrants, who had come to the new state from many different parts of the world.70 Eichmann’s victims, Felman’s victims-heroes, were Ashkenazim—immigrants from Europe. With exceptions concerning Jews from North Africa, only European Jews had suffered Nazi persecution.71 Yet in Israel, European Jews who had arrived since the Ottoman period had established dominance over other groups of Jews and over Arab Palestinians.72 They largely composed the upper social-economic class, and through institutionalized discrimination,73 came to own a disproportionate part of the most valuable land in Israel’s small territory.74 They built a cultural identity in which Arabic-speaking Jewish traditions were rejected only as suffering, but as a political, moral and, crucially in Arendt’s later writing on judgement, thinking witness’. Lyndsey Stonebridge, ‘Hannah Arendt’s Testimony: Judging in a Lawless World’ (2009) 67 New Formations 78, 79. 70 ‘From its proclamation in 1948 to the end of 1964, Israel absorbed 1,213,555 immigrants, of whom 648,160 (53%) were from Muslim countries, divided between 294,722 who came from Asia and 353,438 from North Africa’. See Sammy Smooha, ‘The Mass Immigrations to Israel: A Comparison of the Failure of the Mizrahi Immigrants of the 1950s with the success of the Russian Immigrants of the 1990s’ (2008) 27(1) J of Israeli History 3 (hereafter Smooha, ‘Mass Immigrations to Israel’). 71 For a recent novelistic account of the genocide of North African Jews, see Yossi Sucary, Benghazi— Bergen-Belsen (CreateSpace Independent Publishing Platform 2016). 72 Smooha, ‘Mass Immigrations to Israel’ (n 70) 8. 73 On the complexities of Mizrahi discrimination in Israeli law, see Yifat Bitton, ‘Mizrahis and Law: Absence and Existence’ (2011) 51 Mishpatim 455 (in Hebrew); Lihi Yona, ‘The Color of Dignity: Examining Israeli Dignity Through Critical Race Theory’ (on file with the author). 74 See Oren Yiftachel, ‘Nation-Building and the Division of Space: Ashkenazi Domination in the Israeli “Ethnocracy” ’ (1998) 4(3) Nationalism and Ethnic Politics 33; Oren Yiftachel, ‘Social Control, Urban Planning and Ethno-Class Relations: Mizrahi Jews in Israel’s “Development Towns” (2000) 24(2) Intl J of Urban and Regional Research 418; Alexandre (Sandy) Kedar and Oren Yiftachel, ‘Land Regime and Social Relations in Israel’ in Hernando De Soto and Francis Cheneval (eds), Realizing Property Rights (Frank/Wynkin de Worde 2006) 127.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

666 Itamar Mann or granted only secondary status.75 And they established disproportionate presence in military, political, professional, and academic elites.76 Nagar does not belong to this group. He emigrated from Yemen and, following the Eichmann affair, became acutely aware of his own subordination as a Mizrahi. It was precisely because of this Mizrahi background that Nagar was chosen for the dubious task of executing Eichmann. But this outcome is not simply a result of discrimination. A more interesting dynamic is at play, intimately tied with the conditions that the ‘rule of law’ and ‘catharsis’ genres expect a mass atrocity trial to fulfil. ‘Since I’m Yemenite, I didn’t know who Eichmann was’, explains Nagar. ‘Only later, when I guarded him, I found out who Eichmann was’.77 In one of the most fascinating conversations in the film, Nagar describes the process of his selection as hangman. He recounts a conversation with his commander at the prison service, Mr Merhavi. The latter explained that if indeed Eichmann was convicted, and received the death penalty, one of them would have to execute the high-profile prisoner. When Merhavi asked members of the unit, ‘Who would like to be assigned the task?’, the latter proved extraordinarily coveted. As Nagar recalls, all members of the unit expressed enthusiasm and immediately volunteered. The only one who had no desire to carry out the job was himself. But following a lottery among the Mizrahi prison guards, Nagar was chosen.78 Why this utter disregard to Nagar’s personal preference, especially after going through the trouble of finding it out? Underlying the decision there was a certain understanding of the relationship between punishment and criminal justice. From Eichmann’s arrival, Ashkenazim would not be let into his cell. Like the bulletproof glass, Nagar was chosen due to the imperative of keeping criminal punishment and revenge strictly distinct. Consider one philosopher’s observation: ‘Revenge involves a particular emotional tone, pleasure in the suffering of another, while retribution either need involve no emotional tone, or involves another one, namely, pleasure at justice being done’.79 Prison authorities apparently suspected that if a European Jew would serve as the guard for Eichmann, there would be a risk that the trial would not reach its conclusion; it could ultimately become an act of revenge.80 An Ashkenazi guard might not be able to wait 75 Smooha, ‘Mass Immigrations to Israel’ (n 70) 8. 76 ibid. 77 Braun, The Hangman (n 18) 53:24. 78 Interestingly, film director Braun has expressed doubt on whether this story was in fact accurate. She surmises that the story about the lottery was a lie that Nagar heard, when in fact Merhavi had chosen him for a task that nobody wanted to carry out, and he was naïve enough to be tricked into doing. It appears this is an alternative account Braun heard from Nagar’s friends and others involved in the execution. The film’s narrative, which Nagar believes, is nevertheless relevant here. 79 Robert Nozick, Philosophical Explanations (Harvard UP 1981) 366. cf with an imperative in post1967 Israeli culture to ‘weep’ upon ‘shooting’, implying a need to shun trigger-happiness in the military context. See, e.g., Ian Black, ‘Shooting and Weeping: The Unending Legacy of the Six Day War’ (1997) 44(3) Jewish Quarterly 5. 80 Compare with Saddam Hussein’s execution, in which the Shiite executioners cheered. See Sabirna Tavernise, ‘For Sunnis, Dictator’s Degrading End Signals Ominous Dawn for the New Iraq’ The New York Times (Baghdad, 1 January 2007) accessed 26 December 2018.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Hangman’s Perspective 667 patiently until the legal procedure reached its conclusion, and instead assassinate Eichmann in his cell; or possibly, he would allow someone else to enter the cell and carry out the task. That, of course, would be a national calamity. It would destroy the trial’s appearance as an authentic legal process and a ‘world trial’ (‘mishpat olami’—a phrase Nagar reiterates). And it would eliminate Israel’s high-stakes political claim, directed both domestically and internationally. At the same time, we may also assume that an assassination before the trial concludes would destroy the theatrical role of the trial, as an opportunity for collective catharsis. Could the victims be vindicated if the witnesses would be heard, and then the defendant assassinated?81 Having a Mizrahi prison guard do the job was essential from the perspectives of both genres characterized earlier. Note, however, that this practical condition—the availability of someone such as Nagar—is basically taken for granted in both genres. The question how the violence of law is wielded, and who must pay the price for carrying it out, is left unacknowledged. Israeli prison authorities decided: assigning guardianship to Mizrahim (the majority of the prison guards) who would have no family connections to the Holocaust would greatly diminish the risk of revenge. As the film suggests, it was precisely because Nagar didn’t want the task of executing Eichmann that he was perceived as particularly fit for it. This would help achieve a condition of justice that remains firm both in Arendt’s and in Felman’s perspectives: a clean and strict separation between punishment and revenge (even after the conviction). But, to return to the philosophical observation: what is the price of assuming that someone would lack ‘emotional tone’ in executing another?82 In practice, such a separ ation between punishment and revenge demands a decision within a particular social context. It implicates questions of material rather than formal equality. Here, separating between punishment and revenge rests upon existing ethnic and economic inequality. The ‘dirty work’ of execution is imposed on a relatively disempowered member of the society; and it’s given with an implicit acknowledgement: you are not truly a member of our community; your membership rests on your biographic detachment from our founding trauma.83 For Ben-Gurion, a chief target of Arendt’s critique, the Eichmann trial was much about ‘educating the masses’. As Rogat explains, Ben Gurion meant ‘[t]o restore a vital 81 There is a deep interdependence between the two genres, ‘rule of law’ and ‘catharsis’, as a minimal level of rule-of-law is often necessary for a felicitous poetics of founding. Indeed, a number of authors can be categorized as combining aspects of these two ‘genres’ as mutually dependent. 82 Note that this reverses otherwise socially accepted stereotypes, according to which Mizrahim are ‘hot headed’ and Ashkenazim are rational and cool. 83 As Mehager writes following Arendt: ‘The trajectory that was drawn for Mizrahi youth as the “dirty workers” of the Zionist regime did not only direct them towards inferior economic class, and towards life in Israel’s geographic and cultural periphery; not less importantly, it intentionally designed a morally inferior class’. Tom Mehager and Mati Milstein (photos), ‘Maraa Shkhora’ (Ha’oketz, 2 September 2015) (author’s translation from Hebrew) accessed 26 December 2018. On ‘our’ founding trauma, cf with Hannah Yablonka, Harchek Me-Hamisla: Hamizrahim Ve-Hashoah (Ben-Gurion UP 2008).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

668 Itamar Mann part of their past to the younger generation and to the Asian and African Jews, who constitute about one half of the population of Israel’.84 Clearly, through a Zionist understanding of the Holocaust, Mizrahim were offered, and often times actively shaped, the new Israeli citizenship.85 But if we follow Felman, this educating mission did not mean Mizrahi Jews would also be included in catharsis. They were not part of the downtrodden and heroic group of victims who suffered the unspeakable trauma and therefore deserved to be ‘cleansed’. Nagar recounts how Eichmann and he spent long days together throughout pre-trial detention and the entire trial. Nagar humorously recalls how he discovered that even a Nazi has his human needs and must urinate and defecate. He accompanied him to the toilet, shackled him and unshackled him, so as not to let anything happen to the precious prisoner while he’s busy there. Nagar further laughs about how he was impressed by the way that Eichmann kept himself remarkably clean (‘they are evil!’). And Eichmann would often thank Nagar for such assistance: ‘Gracias’ was the closest he could get to Nagar’s preferred Yemenite Arabic. The two got along, and generally enjoyed each other’s company. Nagar would also deliver Eichmann’s food to his cell, and in order to prevent Eichmann’s poisoning, Merhavi ordered Nagar to eat some of it first.86 Once, Nagar asked Merhavi why he should eat Eichmann’s food before Eichmann did. Nagar paraphrases Merhavi’s reply: ‘If we lose one Yemenite, it’s no great loss. . . [laughter]. A lot of Yemenites died, so another will die. But with Eichmann it was a problem because it was a world trial’.87 The need to try the perpetrator of atrocity—conceived of in terms of the rule of law or in terms of catharsis—is elevated above contemporary human life. After the conviction, Nagar held Eichmann with the noose around his neck. He describes his pale complexion and bulging eyes and tongue. Nagar relates that Eichmann probably tried to say something while he was hung. Arendt quoted his celebratory words about Germany, Austria, and Argentina. Nagar, for his own part, remembers things a little differently. Perhaps Eichmann planned to curse, or something similar, he guesses. When his body fell and lost its life, part of the air he had in his lungs was still trapped there. Nagar obeyed Merhavi’s order and moved the fresh corpse. The air was released from the lungs, emitting a bizarre babbling sound. This voice was not produced by a living body or a willing person, but was simply a mechanical discharge. While Nagar tells the story to a friend with a smile, it is clear this voice haunts him. ‘There goes another Yemenite’, he chuckles.88 The visceral description shines a different light on Felman’s emphasis on narrative. Felman’s centring of the literary categories of catharsis ends up bifurcating the enactment of the law from its fundamental relationship to violence. For Felman, narrative is the ultimate cure against trauma; the trial is about telling stories. As I have argued, the emphasis on narration results in a distraction not only from the accused, but also 84 Rogat, Eichmann and Rule of Law (n 1) 18. 85 Yochai Oppenheimer, ‘The Holocaust: A Mizrahi Perspective’ (2010) 51 Hebrew Studies 303. 86 Braun, The Hangman (n 18) 50:17. 87 ibid 49:52. 88 ibid 37:57.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Hangman’s Perspective 669 from the coercive mechanisms of enforcement.89 Nagar’s story brings law back to its fundamental relationship with violence. The execution of Eichmann profoundly traumatized Nagar. In the film, he colloquially describes the symptoms of post-traumatic stress disorder (PTSD)—an ongoing sense of ‘fear’ that didn’t leave him ever since, as well as recurring nightmares and sleeplessness.90 To put it simply, the construction of a narrative that helped in healing Ashkenazi victims of the Holocaust ended up transferring the trauma to this Mizrahi executioner. The ironic outcome became possible only because Nagar was deemed unrelated to the original trauma—a ‘disinterested’ third party; such a third party is a necessary condition for a trial in the rule of law genre, and to some extent is a requirement of catharsis as well. From Nagar’s own perspective, positioning him as a third party external to the trauma was a measure of de-humanization.91 The trauma of having to carry out Eichmann’s sentence never leaves Nagar. After the mission is accomplished, he sinks into depression. It is from here that his turn to religion begins. Only by following tradition and faith can he reconstruct his life. The film returns time and time again to Nagar’s words of blessing and to the craft involved in slaughtering lambs and chicken for Kosher consumption. This constant focus on the work of slaughter charges it with multiple layers of meaning. A metaphoric relationship is implied with the traumatic act of executing the convicted Nazi, which is constantly re-enacted. Nagar described how he had come home filthy with Eichmann’s blood. Now he chooses to spend his days in a blooded apron. And of course, there is an ironic allusion to the atrocity that Eichmann himself had perpetrated. In the Zionist culture of the time, Holocaust victims were looked down upon for having gone ‘like lambs to the slaughter’.92 But why is Nagar so traumatized? He is determined that the execution was in fact the right thing to do.93 Still, at the centre of Nagar’s trauma is the moral relationship between himself and the individual, Adolf Eichmann. This is a relationship between two men 89 Signalling what is a remarkable difference between Felman and an author she relies on, Robert Cover. 90 Braun, The Hangman (n 18) 36:21. For the definition of PTSD, see the DSM-5 criteria as summarized in National Center for PTSD, ‘PTSD and DMS-5’ (US Department of Veteran Affairs, last updated 28 September 2018) accessed 26 December 2018. 91 Hannah Arendt is often criticized as relegating labour and the human body, and with them women and slaves, to inferior and non-political roles. For a critique of Arendt, see, e.g., Jacques Rancière, ‘Who is the Subject of the Rights of Man?’ (2004) 103(2) South Atlantic Q 297. This raises the question whether there is any relevant difference between Nagar and other labourers whose work is necessary for criminal justice but who are not acknowledged as agents of such justice (e.g. the cleaning person). The present perspective, however, focuses on those who are required to carry out the violence of criminal justice. 92 Segev, The Seventh Million (n 39) 110. 93 Nagar explains this by reference to the Biblical imperative to annihilate the nation of Amalek (see, e.g., Deuteronomy 25:17–19). The rule has often been regarded as controversial, as it seems to impose an obligation to commit genocide. The association of the Nazis with Amalek is not unique to Nagar, it reflects a meta-historical understanding of persecution against Jews starting from ancient times. In a way, this reflects an internalization of the understanding of the Holocaust that Ben-Gurion had advanced, transferred from the realm of political theology to theology proper.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

670 Itamar Mann who experienced intimate proximity between their bodies, in which one ends up taking the life of another (with the requirement that this be punishment under law). It is entirely possible that having to kill another person in the name of the law at times ends up mentally scarring the executioner.94 This may remain true even if the latter believes that the execution was warranted.95 Like in Felman’s work, somatic experience is emphasized; but here it promises no rise from the ‘abyss’. Another aspect of the violence that Nagar experienced is the kind of social rejection that led him to carry out the dubious task. It is because of a hierarchical relationship between himself and the Ashkenazi guards that this unwelcomed task ultimately falls in his hands. He explains that his colleagues at the prison knew full well that he might be ‘sacrificed’ by having to perform this act. But they could not have cared less about such a result, at least as far as he’s concerned. After all, he was ‘just a Yemenite’. As a Mizrahi Jew, he was not granted the status of a full member of the group this trial was designed for. His own life and his own mental integrity could be wasted for the sake of achieving the kind of catharsis that Felman describes.

V. Outer Circles of Harm In his essay Between Impunity and Show Trials, Koskeniemmi offers insight into what is at stake.96 As he explains, in mass atrocity trials there’s almost always a controversy on an overarching historical narrative in which the relevant events take place. While the 94 Note that according to a recent study conducted in the US, rates of PTSD among prison guards may be equal to or higher than those among soldiers coming back from combat (the occupation of Iraq and Afghanistan). According to the study, female and black prison guards are at relatively higher risk of PTSD. See Lois James and Natalie Todak, ‘Prison Employment and Post-Traumatic Stress Disorder: Risk and Protective Factors’ (2018) 8(1) American J of Industrial Medicine 1. An earlier study found that rates of PTSD among prison guards typically double those among military personnel. Caterina G. Spinaris, Michael D. Denhof, and Julie A. Kellaway, ‘Posttraumatic Stress Disorder in United States Corrections Professionals: Prevalence and Impact on Health and Functioning’ (National Criminal Justice Reference Service, 2012) accessed 26 December 2018; Jason Leopold, ‘Guantanamo’s Untold Trauma’ (Vice News, 25 October 2016) accessed 26 December 2018. cf with Michael J. Osofsky, Albert Bandura, and Philip G. Zimbardo, ‘The Role of Moral Disengagement in the Execution Process’ (2005) 29(4) Law and Human Behavior 371. 95 As one NGO explains: ‘Because death row guards can develop empathy towards prisoners, a separate team often conducts execution. Giving small roles to different guards (such as walking the prisoner to the execution spot or putting a hood over the prisoner’s head) aims to reduce the emotionally damaging effects of executions . . . . The emphasis on working “efficiently” and “professionally” also aims to reduce feelings of culpability, with execution teams trained to focus not on “the meaning of their activity, but on performing the sub-functions proficiently” ’. Prison Reform International, ‘Prison Guards and the Death Penalty’ (2015) accessed 26 December 2018. 96 Koskenniemi, ‘Between Impunity and Show Trials’ (n 32).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Hangman’s Perspective 671 prosecution interprets such events to frame them as crimes, the defendant will likely interpret them as legitimate policies of war, viewing prosecuting authorities instead as criminal. In the Eichmann trial, a related disagreement on what constitutes law became visible when the defendant claimed he was acting legally under the law that applied in the Third Reich. For Koskeniemmi, in order to truly hear a defendant’s testimony, the court is obliged to consider such an alternative interpretation of history. This often involves casting the tribunal as siding with the aggressor. If it refuses to hear such objections to its own authority, the tribunal will lose its status as truly representing the rule of law. Defendants in mass atrocity trials often find themselves before tribunals that cannot assess their responsibility in terms they can accept. Shunned out of the tribunal’s discourse, Koskenniemmi explains, defendants enter the circle of those who are, in fact, being harmed by the trial.97 This is the position philosopher Jean François Lyotard first developed, calling it Le Différend. Remember that Felman employs a similar theoretical apparatus on a different ‘actor’ in the trial: a history of oppression destroyed the victims’ language, and they are the party made to appear before the tribunal at a loss for words. Through her portrait of Nagar, Braun captures a related insight, but shifts its relative location yet again. At the time, Nagar’s perspective too could not be heard before the tribunal, or anywhere in the proceedings before the Jerusalem court. Indeed, if there is a kind of harm inflicted by becoming voiceless before the tribunal, Nagar the executioner is far more radically harmed than the defendant (Eichmann). Within the rule of law genre, ensuring that the defendant is granted an opportunity to speak is a necessary condition for an acceptable trial. This is not something the genre of catharsis takes issue with or denies.98 No (legalist) conception of criminal justice exists without the right to present a defence before the tribunal. The tribunal, in turn, must at the very least make an attempt to hear the perspective the defendant conveys and consider reality from their standpoint. Such thinking from the point of view of the defendant may occur during the trial itself or in the sentencing phase, and ideally will be a part of both. Within the catharsis genre, Felman articulates the role of the court as inventing a new language for the victim.99 No similar aspiration to empower Nagar or the class he represents can be identified, even though they are adversely affected by the trial. The agents tasked with enforcing the law are in a very different position when compared to the defendants’ and the victims’ (recognized) muteness. As Penal Reform International has noted, prison guards’ work ‘often goes unrecognised despite the vital role of prison staff in the achievement of the aims of criminal justice, notably the

97 A discussion of perpetrator trauma is also ultimately relevant to expanding the ‘circles of harm’. Saira Mohamed, ‘Of Monsters and Men: Perpetrator Trauma and Mass Atrocity’ (2015) 115 Columbia L Rev 1157 (and her discussion of An Act of Killing (2012), Directed by Joshua Oppenheimer at 1161ff). 98 The two first genres described in this chapter are ultimately interlinked and often analytically interdependent. 99 Felman, Juridical Unconscious (n 46) 133.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

672 Itamar Mann rehabilitation of offenders, as well as in the meeting of prison standards’.100 Whether in the investigation stage, pre-trial detention stage, during the trial, or finally when implementing the sentence, their wellbeing is taken for granted.101 Within a rule of law framework, the hangman’s perspective is basically external to the process of criminal justice. The authorities implementing the punishment and allowing for it to proceed are understood in instrumental terms. They are there to carry out a task but are not imagined as having a claim upon the proceedings—even if the proceedings are expected to help constitute the community. One might even argue that the entire tradition of criminal law is oblivious and blind about its consequences towards the class of ‘hangmen’ it must necessarily rely upon. This is particularly remarkable against the backdrop of a history of criminal law shaped by the need to protect judges from the sin of meting out unwarranted punishment.102 Braun shows us how not only defendants, but an entire class of enforcement agents can also be rendered inaudible by the criminal procedure. For all his disarming charm and profound sensitivity, Nagar does not represent a singular case. He rather reveals structural class and race dynamics that are ordinarily left un-problematized in the theory of punishment.103 Such dynamics are outside the circle of potential harms we usually imagine as unwanted potential consequences of criminal adjudication (not only when capital punishment is at issue, but in the criminal context generally).104 In the rule of law genre, critical of show trials, mass atrocity adjudication is constantly suspected of devolving into politics. The characteristic concern is that punishment and revenge become indistinguishable. Nagar’s story demonstrates a completely different insight, worth reiterating: the social construction of a distinction between punishment and revenge may itself become a form of oppression. It was precisely in his attempt to uphold such a distinction that Merhavi chose Nagar. This choice rested upon the social and economic subordination of Mizrahi Jews in general: a class that is not part of the group that is expected to experience catharsis. The linguistic analysis Koskenniemmi and Felman offer following Lyotard identifies the potential harms of criminal adjudication. But it does not suffice to reveal such harms. One must return to an account of legality’s violence (as distinct from its words). And one needs to insert the social, economic, and 100 Penal Reform International, ‘Prison Staff: Overworked and Underpaid?’ in Global Prison Trends 2016 (2016) pull-out section at 2 accessed 26 December 2018. 101 This is reflected in low salaries and high representation from minority groups. ibid 3. 102 James Q. Whitman, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (reprint edn, Yale UP 2016). 103 See also Shubhangi Agarwalla, ‘The Hidden Cost of the Death Penalty in India’ (Oxford Human Rights Hub, 2 March 2018) accessed 26 December 2018. 104 For a related argument, see Frédéric Mégret, ‘Pénalité Et Familles: A Propos Des Victimes Collatérales de la peine (Punishment and Families: A Look at the Collateral Victims of Sentencing) (13 November 2017) accessed 26 December 2018 (Megret considers whether the real-life effects of punishment on family members amount to a form of de-facto collective punishment).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Hangman’s Perspective 673 historical context in which the role of wielding legality’s violence is allocated among different social strata. In their insistence upon a strict separation between punishment and revenge, rule of law orientations ignore the prices that punishment may inflict upon members of disempowered classes and ethnic groups. The ‘sacrificed’ hangman is exposed to moral injury because he or she belongs to a group that suffers from structural discrimination.105 Yet this harm comes to appear as part of an attempt to ensure a fair and objective process; it becomes invisible because it is thought of as a necessity of the legitimate rule-of-law and political goals of the trial. Just when Commander Merhavi was most sensitive to the concern that the Eichmann case will end up devolving into revenge, he inflicted trauma upon the hangman, Nagar. Progressive and left-leaning critics of criminal law have often emphasized that subordinated classes and ethnic groups are those who end up finding themselves as defendants. In mass atrocity trials, the analysis may be different. Here, perpetrators are not as often members of a disempowered class or race (at least not within their own political communities). Whether we are thinking of Post-Second World War trials, or more contemporary trials such as those of the ad hoc tribunals or the ICC, they more often come from positions of power in the ranks of a defeated opponent. Disempowered members are those who end up implementing law’s violence—police officers, prison guards, and other ‘hired guns’. Such people perform their tasks because they need the monthly salary. A genre of sacrifice focuses on the injustices that mass atrocity trials disseminate in their attempts to rise above such ‘banal’ concerns. These injustices are generated as by-products of attempts to construct seemingly objective standpoints from which not only individual defendants, but entire histories, can be judged. They may be the starkest when the trial amounts to an attempt to constitute a political community (acknowledged or not). Nagar figures as a kind of scapegoat: in order for Ashkenazi victims of the Shoah to experience catharsis, trauma has to be transferred onto a third ‘disinterested’ party. Collective catharsis does not emerge ‘for free’. By asking who pays the price of the rule of law—and who pays the price of catharsis—sacrifice becomes an important contemporary genre of critique. The accused no longer stands—exclusively—at the centre of the analysis, as Arendt insists within a rule of law framework. The victim too loses their ambiguously sovereign position, as an underdog-hero, which Felman thoroughly theorizes. This genre emphasizes the victimization of individuals who must carry out the violence of law, but who are left unacknowledged as willing and thinking agents of the law (as judges and prosecutors are). Theirs is alienated legal labour. Considering the Eichmann trial through the lens of sacrifice, one comes to see that Israeli society is far from a cathartic community that has overcome its traumatic past. Trauma continues 105 ‘Moral injury’ occurs when an individual experiences distress or trauma after having performed acts against their conscience and is often associated with military service, where it is also the most studied. See, e.g., Rita Nakashima Brock and Gabriella Lettini, Soul Repair: Recovering from Moral Injury After War (Beacon Press 2012). This chapter focuses on its intersection with race and class dynamics that may make particular kinds of moral injury less visible and less recognizable as such.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

674 Itamar Mann and is shifted among members of the society. It becomes an unwanted weight, the tracking of which illustrates the internal and subterranean tensions and conflicts that society rests upon. Far from any cleansing understanding of history, we are left with history as a site of struggle in which the question whose trauma is recognized as such is constantly up for wrestling. Given this fundamental orientation toward violence and conflict, one may ask where the Palestinians are in this story. Arguably, the dispossession and oppression of Palestinians in Israel and the Occupied Palestinian Territories represent the starkest price any group ever paid for Jewish victimization during the Shoah. Perhaps surprisingly, Nagar’s story allows a tiny glimpse of this issue too, further expanding a theoretical understanding of the circles of potential harms of criminal adjudication.106 In one of his interviews, Nagar describes his experiences when he was positioned as a prison guard in a facility in the West Bank city of Hebron. This was early after the occupation of the West Bank began in 1967. Israeli authorities often inflicted physical violence on Palestinian detainees, during interrogation and otherwise.107 Nagar shares his memory of having heard the Palestinian detainees cry and shout in pain when they were beaten. These nightly voices become yet another aspect of the service that mentally scarred him.108 Yet he made a real attempt to stop the beatings and treat the Palestinians humanely. One main way of doing that, for him, was sharing jokes in the facility’s yard. While not mentioned in the film, the reference to detainee abuse is historically connected to Judge Landau. Remember that in Arendt’s reporting from the trial, Judge Landau was described as a beacon of rule of law values. Years later, the Eichmann case became one of two important moments in Israeli history in which Landau’s name was central. The other was the 1987 Landau Commission Report, which approved what the committee euphemistically called ‘moderate physical pressure’ on detainees as a measure of interrogation.109 The committee is largely understood to have legalized torture, at least until the 1994 Israeli Supreme Court ruling that invalidated its findings. Symbolically, Nagar encountered Landau’s legacy twice, not once, in his lifetime. Once was when he carried out the death sentence that Landau decided upon. Another was when he heard the sounds of detainees being beaten—a practice Landau later rubber stamped. Both instances contributed to his traumatization and left the reputation the German-Jewish judge largely intact. Lastly, the recurring image of chicken, sheep, and goats being slaughtered is not only a metaphor for Eichmann’s crimes or for the victims of Nazi extermination. It must also 106 Compare this expansion to Kendall and Nouwen’s ‘narrowing of the pyramid’ in Kendall and Nouwen, ‘Representational Practices’ (n 65) 241–52. 107 Itamar Mann and Omer Shatz, ‘The Necessity Procedure: Laws of Torture in Israel and Beyond, 1987–2009’ (2010) 6 Unbound: Harvard J of the Legal Left 59. 108 Braun, The Hangman (n 18) 30:00. This of course does not mean that Nagar’s trauma is comparable to that presumably sustained by victims of torture. 109 State of Israel, Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity (Government Press Office (tr), Jerusalem, 30 October 1987) accessed 26 December 2018.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Hangman’s Perspective 675 be taken literally—an outer limit of the circles of harm the film directs one to consider. It thus stands for yet another aspect of victimization, in which animals are sacrificed. In other words, these animals are made to pay with their lives for Nagar’s own process of healing from his trauma. In the opening scene of the film, Nagar holds a live chicken above the head of an elderly woman, mumbling the words of a prayer for atonement: ‘This chicken will be your surrogate and your atonement’. This is the ceremony of Kaparot, which traditionally occurs in the Jewish Day of Atonement, Yom Kipur. Many Jews pray on this day to be forgiven for their sins. When the ceremony is over, Nagar ceremoniously informs the old woman: ‘This chicken will now go to the slaughter, and you, to a good life, a long life, and good health. . . Amen’. The ritual, recalling the mythic scene of the bonding of Isaac, is premised on the idea that an animal is ‘punished’ instead of a person. The chicken supposedly suffers a divine ‘death penalty’ to substitute the human who has sinned (and who will nevertheless be allowed to survive). It is not merely by chance that this scene starts the movie. There is an implicit parallel here between the chicken and Nagar himself. Arendt identified a way in which the Israeli state has ‘sinned’: it executed Eichmann after a process that was seemingly designed to apply the law, but that diverted from rule of law principles and became a show trial. Nagar was assigned with concluding this process and was consequently ‘killed’ (mentally if not physically).110 By delegating the task of execution to Nagar, his person became a substitute for the State of Israel, or more concretely, for the Zionist designers of the trial, Ben-Gurion and Hausner; the two never ‘paid’ for the wrongdoing that Arendt identified. ‘The Sheep is as innocent as I am’, says Nagar in one scene. Thanks to his new role as Kosher slaughterer, Nagar is rehabilitated and empowered. But just like Nagar became the victim of the victims’ catharsis, one must also ask who the victims of his religious cleansing are.111 The latter is intimately related to Nagar’s own personal pain and suffering, but is not ultimately articulated as an injustice perpetuated by the trial. While the death and suffering of animals appear in the images of the film, they are never discussed or prob lematized. And Nagar is far from being portrayed as a villain in his relationships with animals. He is rather gentle and avuncular in his affection towards the animals he slaughters as well as the stray cats. Perhaps the most challenging aspect of critique the genre of sacrifice demands is to direct attention to this kind of ‘transparent’ violence too when considering injustices that mass atrocity trials disseminate. The film offers no 110 Edwin Bikundo has theorized the accused in international criminal trials as being sacrificed. See Edwin Bikundo, The International Criminal Court and Africa: Exemplary Justice (2012) 23 Law and Critique 21. My own focus is on the less acknowledged sacrifice of persons who may seem to be standing outside the criminal process or simply implementing its forgone conclusions. 111 It is here that Arendt’s framing of the ‘banality’ of evil in Eichmann in Jerusalem becomes salient. Rather than belittling Eichmann’s wrongdoing, Arendt’s important philosophical challenge was to expose how evil acts can and do become accepted as obvious, transparent acts of the day-to-day. By returning to the act of slaughtering in The Hangman, Braun gently brings up a similar aspect of our own societies: the acceptability of animal death and suffering.

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

676 Itamar Mann formula for how to do so; and animals may not be the only creatures pushed to this position of the transparent victims of the criminal process. But they are unquestionably there.

VI. Conclusion Recall the provocation this chapter began with: instead of Nagar, it proposed that Landau should have bloodied his hands in the name of law. The proposal inserts an ethical and personal dimension into criminal procedure.112 Such a thought experiment need not be limited to the death penalty. If the violence of criminal law extends to prison sentences, one might expand and expect judges to become not only executioners but also populate the ranks of prison guard services. But of course, criminal enforcement de-personalizes such violence and allocates it to supposedly abstract entities through a social division of labour. Mass atrocity trials are no exception in this regard; perhaps just a radical case in which the burden of giving meaning to an entire history is particularly cumbersome. This chapter has analyzed three genres of critique directed towards mass atrocity adjudication, which all relate to this underlying de-personalization. The first, which I have called the rule of law genre, is an attempt to explain it and insist upon it as a normative imperative. The court or tribunal ideally becomes a disinterested third party that can punish even the most heinous crimes objectively, based on the defendant’s criminal actions, as revealed by evidence. Hannah Arendt’s reading of Eichmann was central to this first genre. Ultimately, however, the claims of the rule of law genre are never air-tight. By speaking in the second person (you must hang)—but from behind the judicial panel’s veil— she too betrays that this is a very personal affair.113 The second, labelled the genre of catharsis, emerges precisely as a rejection of such abstraction. According to this view, de-personalized abstraction and its purported objectivity are not only impossible: They also serve to deny justice, turning criminal procedure into a rigidly formal exercise, wholly alienated from the people it should serve. Shoshana Felman was the main protagonist in a story largely about the turn to victims’ rights, transitional justice, and narration of history. The intellectual terrain in this context is vast and variegated, and other authors could have been chosen just as well. The contribution of this chapter is its introduction of a third genre of critique that I label as sacrifice. The point of this genre of critique is to inquire how legal violence is allocated to seemingly abstract entities. It is never merely by chance that one person can 112 Elsewhere, I have attempted to elucidate the importance of such encounters for human rights law. Itamar Mann, Humanity at Sea: Maritime Migration and the Foundations of International Law (CUP 2016). 113 See Butler, ‘Arendt’s Death Sentences’ (n 4).

OUP CORRECTED PROOF – FINAL, 02/05/2020, SPi

Hangman’s Perspective 677 judge and another must execute (in the dual sense of ‘kill’ and ‘implement’). Such divisions rest on pre-existing inequalities, economic or ethnically-determined, either within a society, or on the transnational level. They need to appear as part of the stories we tell ourselves about criminal law, domestic or international: who determines the transnational allocation of risk, mental and physical, associated with the need to carry out criminal justice? Sentencing in international criminal justice institutions (primarily the ICC), may currently tend to leniency, and may not seem to involve an incredible amount of legalized violence. Yet my sense is that on the transnational level, there are many unacknowledged agents of violence that ultimately determine who gets tried and who doesn’t—whether this ends up happening in an international or a domestic forum. A novel approach to the discipline would study the consequent global allocation of violence, and who ends up suffering its moral injuries. A critique focused on such questions would aim to shed light on the material underbelly of criminal justice. A rule of law orientation towards adjudication conceals the background hierarchies that any allocation of legal violence rests upon. It may even be the case that it is precisely when legal institutions try to ensure the ‘objectivity’ of disinterested parties that they rely most on such hierarchies (this hypothesis needs to be researched further). On the other hand, an orientation toward catharsis is revealed as an extreme abstraction of its own kind.114 Its emphasis on narrative aestheticizes legal violence and distracts us from the inequalities enforcement rests upon. Its pretence to purge trauma may simply transmit it to others. Lawyers should try to expand their view of the potential harms momentous trials can generate, including upon groups that may at first blush seem external to the alleged crimes. Let us not resign ourselves to saying: ‘There goes another Yemenite’.

114 Kendall and Nouwen, ‘Representational Practices’ (n 65) 253–8.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Chapter 29

I n equa lit y of A r ms R ev er sed? Defendants in the Battle for Political Legitimacy Marlies Glasius and Tim Meijers

I. Courts as Communicative Institutions Putting ourselves in the shoes of first-time visitors without expert knowledge, we explored the ICC’s website in April 2017. We watched a brief animation explaining the work of the ICC, in which a voiceover spoke of ‘ratifying’, ‘states parties’, ‘retroactive jurisdiction’, and ‘2010 amendments’. Both the ‘news’ and the ‘highlights’ section told us that the ‘International Criminal Court marks Genocide Awareness and Prevention Month: Victims must come first’. Invited by a tweet to view the latest instalment of an ‘in the courtroom’ programme on YouTube, we watched an intro of split screen images of people in robes, accompanied by chase-scene music. This was followed, anti-climactically, by a drowsy male voiceover with a French accent, while the camera panned around the courtroom, showing three blue-robed judges (all white men), sundry black-robed officials, and an African man in a suit staring at a computer screen—we think he may be the defendant. Next we saw a pixelated image representing a protected witness, a radio operator, we were told. The rest of the visuals oscillated between pixelated witnesses and people in robes watching computer screens. Our experience illustrates a common finding of social scientists across different international criminal courts: they are typically not good at telling a compelling story about what they do to a wider audience. They seem committed to being as boring and impenetrable as possible.1 1 See also Chapter 25 by Wouter Werner and Sophia Stolk, ‘Moving Images: Modes of Representation and Images of Victimhood in Audio-Visual Productions’ in this volume.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Inequality of Arms Reversed? 679 Nevertheless, we consider international criminal courts as in essence communicative institutions. As we have argued elsewhere, international trials and punishments can constitute suitable responses to episodes of mass violence through their expressive potential.2 The meticulous presentation of evidence and witness statement communicates truths about at least some of the events that happened during a conflict, and who is—or is not—responsible. It also expresses condemnation of the acts committed. We emphasize the importance of the trial, not just the punishment, as a form of expressive messaging, insisting on the communicative aspects of the judicial process: it can communicate by example how to conduct a fair trial. This communicative potential goes beyond simply sending messages. Rather, as institutions of transitional justice, courts ideally have the potential to contribute to—or should at least aim to contribute to—the transition of violent or repressive contexts to human-rights respecting polities. We do not take the expressive function of international criminal justice for granted. Instead, we attempt to disentangle what courts should aim to communicate from what messages they actually communicate, and to what audiences. There are multiple obs tacles to realizing the expressivist potential of international criminal proceedings occurring at different steps in the communicative process. Sometimes the problem is the absence of appropriate means of communication. In certain countries, there might be no critical press to speak of, or there is only limited press freedom. Communication with a population living in poverty, with a limited infrastructure, and low literacy rates raises additional challenges. In this chapter, we focus on the main ‘sending side’ obstacle to courts serving their expressive function: due to the adversarial nature of criminal justice proceedings, the messages coming out of the court are not univocal but multi-vocal and often conflicting. Even if we assume that prosecutors and judges can be interested in, and adept at, communicating factual truths and procedural fairness, theirs are not the only voices emer ging from the courtroom. The trial offers a stage not just for messages conducive to confronting and overcoming the past, but also to the alternative readings and messages voiced by the defence. Defendants, especially high-profile defendants like Karadžić, Taylor, or Milošević are not passive bystanders listening to the charges made against them. Rather, they seize the opportunity offered by the proceedings to send alternative messages. To be sure, this is not true for all cases. Before the Kenya cases, most defendants at the ICC did not challenge the legitimacy of the Court. When they do mount such a challenge, however, defendants often excel at putting their finger on the weak spots not

2 Tim Meijers and Marlies Glasius, ‘Trials as Messages of Justice: What Should Be Expected of International Criminal Courts’ (2016) 30(4) Ethics and International Affairs 429 (hereafter Meijers and Glasius, ‘Trials as Messages of Justice’). For similar expressivist defences of international criminal justice, see also Mark Drumbl, Atrocity, Punishment and International Law (CUP 2007); Robert Sloane, ‘The Expressive Capacity of International Law’ (2007) 43 Stanford J of Intl L 39; Diane Marie Amann, ‘Group Mentality, Expressivism, and Genocide’ (2002) 2(2) Intl Crim L Rev 93; Mirjan Damaska ‘What is the Point of International Criminal Justice?’ (2008) 83 Chicago-Kent L Rev 329; Bill Wringe ‘Why Punish War Crimes’ (2006) 25(2) Law and Philosophy 159.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

680 Marlies Glasius and Tim Meijers just in the prosecution’s case and rhetoric, but in the international criminal court’s right to operate. We focus on these ‘defiant defendants’.3 In our next section, we will elaborate on why this is so, referring to this structural advantage of defendants in international criminal trials as ‘inequality of arms reversed’: while defence teams in international trials regularly complain that they cannot match the legal resources of the office of the prosecution, we insist that when it comes to communicative resources,4 defendants have certain typical advantages. Indeed, Martti Koskenniemi5 has suggested that international criminal trials, faced with high-profile and charismatic defendants, are basically doomed: either they silence the defendant’s political rhetoric and become show trials, or they let him pinpoint the bias and inconsistencies in their institutional set-up, and their legitimacy will equally be imperilled. In our next section, we will consider this ‘inequality of arms reversed’ from the perspective of defendants, from the perspective of prosecutors, and—zooming out—from the perspective of the political contexts in which international criminal courts and trials operate. We will illustrate how defendants Charles Taylor and Radovan Karadžić have used these advantages. However, contra Koskenniemi, we do not believe the message-sending potential of international criminal courts to be doomed by reverse inequality. In Parts III, IV, and V we will put forward three arguments for believing that communicative outcomes of international criminal trials are contingent, not predetermined. In Part III, we will suggest that judgments about the legitimacy of such trials are neither binary nor definitive, audiences and their interpretations vary over time and place. In Part IV, we will argue that, despite certain disadvantages, it is a mistake to think that prosecutors are inevitably incapable of making arguments politically and culturally attuned to local, conflict-affected audiences. We will illustrate this point by drawing on the prosecution’s discourse regarding the charge of ‘acts of terror’ in the Taylor case. In Part V, we will turn to the defence, and suggest that the defendant’s own position during a long drawn-out trial rarely remains immutable, the procedure itself may very well have an effect on his attitude. This is exemplified by charting Radovan Karadžić’s demeanour over the course of his trial. In our conclusion, we will contend that pro erhaps should, acknowledge the political dimension of secutors and judges can, and p international criminal justice procedures, and confront the politics of the defendant head on. This does not, in a context of procedural fairness, turn international criminal trials into show trials.

3 Frédéric Mégret, ‘ “Bring Forth the Accused!” Defendant Attitudes and the Intimate Legitimacy of the International Criminal Trial’ (2005) 36(3) Ariz. J. Int’l & Comp. L. 397 (hereafter Mégret, ‘ “Bring Forth the Accused” ’). 4 By communicative resources, we mean rhetorical advantages, not actual monies that a defendant may be able to spend on communication outside the courtroom. 5 Martti Koskenniemi, ‘Between Impunity and Show Trials’ (2002) 6 Max Planck YB of United Nations Law 1 (hereafter Koskenniemi, ‘Between Impunity and Show Trials’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Inequality of Arms Reversed? 681

II. Equality of Arms Reversed A. Defiant Defendants Defence teams often complain that the principle of equality of arms is violated in international criminal courts: the defence team is relatively small, it has a limited budget, it does not have enough time to prepare given the enormity and complexity of the charges.6 These complaints have merit in many cases when it comes to the legal battle fought out in court. The office of the prosecutor may well have larger resources to draw on.7 But when it comes to the political battle the defendant engages in, both about the conflict and the legitimacy of the Court itself, it is actually the defence that has a clear advantage. For defiant defendants, the primary audience they seek to address is not necessarily the judges on the bench, but their local constituency. They have a longstanding relationship with that audience, and know how to address it. The prosecution, and sometimes the entire Court, is fitted into their political story about the conflict, and associated with the defendant’s pre-existing enemies. Obviously, given that this is primarily what the trial is about, defendants will present a competing reading of the truth of the counts in the indictment, going against the pros ecution’s reading of the defendant’s guilt. In doing so, they will often construct an alternative reading of the events that occurred during the conflict, and their role. This alternative reading of who did what to whom during the conflict is not just heard by the judges, but by local audiences as well, either directly through court transmissions, or more often via local media. Indeed, it may be tailored to them. Much more than the prosecution, defendants seize this opportunity to bring the politics of the conflict into the courtroom. But defendants can go beyond merely presenting an alternative reading of the sources and development of the conflict, they can also aim to depict the Court and—in particular— the prosecution as being part of, and partial in, the conflict that provides the context for allegations of war crimes or crimes against humanity. They not only try to undermine the narrative of the prosecution, but—beyond that—try to delegitimize the prosecution, and even the Court. The most famous defiant defendants, including Hermann Göring, Slobodan Milošević, Vojislav Šešelj, Nuon Chea, and most recently Laurent Gbagbo, were all leading figures on their own country’s political stage for many years before coming to trial. They are skilled at political oratory and know their own constituencies. Moreover, defendants’ courtroom discourses do not come out of nowhere: there are important continuities with their earlier rhetoric as politicians which 6 Karadžić complained several times about inequality of arms, for example by pointing out that his family is translating documents for him. See The Prosecutor v. Karadžić, IT-95–5/18, 991/3–8; 991/17– 992/3; 2376/7–8; 2380/4–14; 2382/9–10; 2260/17–18; 2261/1–2; 12,945/1–2. 7 See for instance Geert-Jan Alexander Knoops, ‘The Dichotomy Between Judicial Economy and Equality of Arms Within International and Internationalized Criminal Trials: A Defense Perspective’ (2005) 28(6) Fordham Intl L Rev 1566.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

682 Marlies Glasius and Tim Meijers may give them a certain authority with some constituencies. We will illustrate these points by examining the defence strategies of Charles Taylor before the Special Court for Sierra Leone, and Radovan Karadžić before the Yugoslavia Tribunal, from a communicative, political perspective. In the Taylor case, his lawyer Courtenay Griffith put Taylor on the stand and examined him as a defence witness in his own case for more than six months, thus giving him a platform to speak in court. Together, they depicted the prosecutor as being partial in the conflict, siding with one of the warring parties, and being of bad moral character. Particularly telling is Griffiths’ reference to the slave trade when describing how Taylor was brought to court in The Hague, ‘he was taken in chains from the shores of Africa to Holland, thousands of miles away. The country of one of the colonizers of the black race for centuries. A historically familiar journey for some’.8 Additionally, the prosecution is portrayed as trying to delegitimize attempts at African emancipation.9 Taylor went a step further: the prosecution, in his representation, was not merely a political opponent, it represented the continuation of the conflict by other means. The US turned against Taylor, the Taylor defence argued, because he stood up for Liberia, defending its economic interests:10 ‘The United States was not used to Liberian governments before mine telling them yes or no. It was, “Yes, sir. Yes, sir. Yes, sir.” And I guess to a great extent they were stunned. And so the decision [to oust Taylor from power] was taken’.11 The Taylor prosecution is an instrument of regime change,12 a continuation of the US’s past attempts to get Taylor out of the way. The largely American prosecutorial team is referred to as ‘political’,13 and—more colourfully—as an ‘American Goon-Squad’.14 Moreover, Taylor argues that the prosecution is engaged in racist and demonizing as well as neo-colonial practices. Griffiths puts to Taylor that the prosecution depicts him as a ‘a bloodthirsty, sadistic African’, to which Taylor replies: This is racist. I can say it. It is as racist as it ever gets. David Crane goes before the US House of Representatives and is saying the best way to get to an African leader is through his pocket. All the murderous regimes of Europe throughout World War II coming on, nobody is eating human beings and burying pregnant women and being as sadistic as this. It’s an African—this is as racist as it gets and that’s how I feel about it.15 8 The Prosecutor v. Charles Ghankay Taylor (Trial Transcript) SCSL-2003-01-PT, (13 July 2009) 24294, lines 8–13 (Trial Chamber II). 9 The Prosecutor v. Charles Ghankay Taylor (Trial Transcript) SCSL-2003-01-PT, 29970, lines 10–12. 10 For Taylor’s perspective on his conflict with Mobil Oil, see The Prosecutor v. Charles Ghankay Taylor (Trial Transcript) SCSL-2003-01-PT, 32151, lines 17-ff. 11 The Prosecutor v. Charles Ghankay Taylor (Trial Transcript) SCSL-2003-01-PT, 31368, line 4. 12 Taylor and Griffiths use this term 36 times during the trial, see master frame, attachment to Marlies Glasius and Tim Meijers, ‘Constructions of Legitimacy: The Charles Taylor Trial’ (2012) 6(2) Intl J of Transitional Justice 229 (hereafter Glasius and Meijers, ‘Constructions of Legitimacy’). 13 The Prosecutor v. Charles Ghankay Taylor (Trial Transcript) SCSL-2003-01-PT, 49397, line 8. 14 The Prosecutor v. Charles Ghankay Taylor (Trial Transcript) SCSL-2003-01-PT, 32283, lines 19–23. 15 The Prosecutor v. Charles Ghankay Taylor (Trial Transcript) SCSL-2003-01-PT, 29904, lines 23–29. As we have pointed out elsewhere, this charge on behalf of the defence team does not fit the prosecution’s narrative: it does not depict Taylor as barbaric or sadistic, but rather as a rational and calculating villain (Glasius and Meijers, ‘Constructions of Legitimacy’ (n 12) 250).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Inequality of Arms Reversed? 683 Karadžić argued that the prosecution used Muslim ‘war tricks’ and thus became a ‘participant in the war’ trying ‘to draw this Chamber and this Tribunal into a war that seems to be ongoing in that way’.16 In an interview Karadžić emphasized that he saw the trial as a continuation of the war, claiming that ‘this trial is my shift on the front lines’.17 Another way Karadžić tried to delegitimize the prosecution was by claiming that the accusation was in fact accusing the entire Serbian population of Bosnia-Herzegovina. He claimed, up to the very last moments of the trial, that the indictment falsely accused him ‘and Serbs in general’.18 Of course, this is technically false, the indictment is about Karadžić’s role in the conflict, not about all Serbs or even all Serbs involved in the conflict. But what matters is not so much the truth of the claims, but rather that they are believed. By sketching a picture of the prosecution as an enemy of the Serb people, Karadžić was actively trying to delegitimize the Court in the eyes of the Serbs. The main defendant can, then, present himself as a martyr, facing the Court in order to defend the honour of his people and sacrifice himself to make sure the truth about the case is heard even if this will most likely lead to conviction.19 Mostly, it is the prosecution that is identified with the enemy, but occasionally the accusation extends to the Court as such. Karadžić said early on in his case that he was ‘deeply convinced that this court is representing itself falsely as a court of the inter national community, whereas it is in fact a court of NATO whose aim is to liquidate me’.20 The Taylor defence remained a little more ambiguous, especially in court. But in an interview, Taylor’s lawyer Courtenay Griffiths did hint that the ‘judges are under considerable pressure to convict. A lot of money has been invested in these proceedings by the United States, the United Kingdom and other western countries’.21 That Karadžić’s and Taylor’s team had audiences outside of the courtroom in mind manifests itself in their attitude to the press. Karadžić saw this battle outside of the courtroom as one of the central aspects of the trial, as he emphasized on several occasions. He was clearly aware that the antagonistic nature of the trial gave him a podium. In the closing statement, he remarked somewhat sarcastically that ‘it is a shame that this is not a trial by jury because the OTP would fare better. Such courts do not judge the accused. They judge the skills of the parties, whereas the accused sits there like a potted flower just listening. So if this was a trial by jury, Mr. Tieger [the prosecutor] would easily win

16 The Prosecutor v. Radovan Karadžić (Trial Transcript) IT-95–5/18, (1 March 2010) 841, lines 1–5. 17 Marcus Papadopoulos, ‘Interview with Radovan Karadzic: the other side of the Bosnian Story’ (Serbianna,14 May 2011) accessed 28 June 2018. 18 The Prosecutor v. Radovan Karadžić (Trial Transcript) IT-95–5/18, 48,027, line 3. 19 Karadžić pointed out, in his closing statement, that he knew that having a lawyer would have served his case better. The Prosecutor v. Radovan Karadžić (Trial Transcript) IT-95–5/18, 48,030 (‘I care more about the truth than about the form. I know that justice and the law are not always the same thing, but I care more for justice and the truth, and that’s why I chose to represent myself, not because I’m such a fool’ lines 19–24). 20 The Prosecutor v. Radovan Karadžić (Trial Transcript) IT-95–5/18, (29 August 2008) 30, lines 17–22. 21 Thijs Bouwknegt, ‘Taylor Trial under Spotlight: Interview’ (Radio Netherlands Worldwide, 25 August 2010) accessed 28 June 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

684 Marlies Glasius and Tim Meijers against me’.22 Karadžić was far from a potted flower. Besides being a dominant presence in court, he went to great lengths to get access to the media. Tellingly, he titled his motion requesting access to the media equality of arms in contact with the media:23 this is where, for him, the real fight was fought. The trial, as far as he was concerned, was really not so much about him and his role, but about getting the truth about the conflict out, and thus contributing to a sustainable peace in Bosnia Herzegovina: [F]irst of all, to determine the truth, the truth about our conflict, to determine the truth as I say, and then to defend myself in the second place. I’m not defending myself in actual fact. What I am defending are the people over there who suffered.24

He insisted that ‘if I can have a fair trial and bring out the truth, it will be a step towards reconciliation’, whereas the prosecution’s ‘lies’ and ‘false indictment’ were a threat to peace.25 Taylor too, through his charismatic lawyer, Courtenay Griffiths, clearly aimed to address audiences outside of court with his messages about his role in the conflict and the illegitimacy of the prosecution and—at times—the bench. Griffiths knew how to get Taylor’s case into the spotlight. He managed to steal the lime-light from the prosecution on the day of their closing statement by walking out of court, officially because the judges had not allowed him to deliver his final brief.26 But the effect was that Griffiths was being held in contempt and the Wiki-leaks cables were the talk of the day, and not the prosecution’s closing statement. We see then, that defendants set great store by (continued) communication with local audiences outside of the Court, that in doing so they have a clear story to tell about the trial as a continuation of the conflict by other means, and the prosecution and sometimes the entire Court as being in league with the enemy.

B. Prosecutors Some international criminal prosecutors are more rhetorically gifted than others. But even when they are excellent speakers, their expertise is in legal, courtroom rhetoric. In some countries, prosecutors regularly go on to have political careers, but it is never the 22 The Prosecutor v. Radovan Karadžić (Trial Transcript) IT-95–5/18, 48,025, lines 12–16. 23 Karadžić requests for open communication with the press: The Prosecutor v. Radovan Karadžić (Motion for equality of Arms in contact with news media) IT-95–5/18-PT, (1 May 2009); see also The Prosecutor v. Radovan Karadžić (Pre-Trial Transcript) IT-95–5/18-PT, (6 May 2009) 228–9 for Karadžić’s arguments with regard to publicity. 24 Prosecutor v. Radovan Karadžić (Trial Transcript) IT-95–5/18, 43, lines 13–17. 25 Prosecutor v. Radovan Karadžić (Trial TranscriptIT-95–5/18, (1 March 2010) 840, lines 19–24. 26 See, e.g., Afua Hirsch, ‘Charles Taylor’s defence lawyer storms out of war crimes court’ (The Guardian, 8 February 2011) accessed 28 June 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Inequality of Arms Reversed? 685 other way around: unlike defiant defendants, international criminal prosecutors are never ex-politicians. As a consequence of their legal training and lack of political experience, they tend to think of themselves as being concerned solely with the application of the law: they do not see themselves as political actors.27 Their primary focus is to get the defendant convicted, not to win the hearts and minds of local audiences. Even a relatively showy prosecutor like the ICC’s Moreno-Ocampo, for example, when asked in an interview about criticisms to the effect that the prosecution should provide more information to journalists, responded: ‘My main objective is to apply the law. I help journalists, but I’m not responsible for communication!’28 It is not the case that prosecutors refrain from constructing a political narrative altogether: they clearly tell a story—one that is radically different from the story the defence tells—about the role of the defendant in the conflict. But when it comes to the legitimacy of the trial itself, and the alleged political nature of the trial and the prosecution, the prosecution remains virtually silent. There is great asymmetry, for instance, between the elaborate reflections by Karadžić29 and Taylor30 on the nature of the ICTY and SCSL respectively, and the almost complete silence on these issues on the side the prosecution.

C. Political Contexts of Courts Beyond the political talent, experience, and familiarity of defiant defendants, and the self-limitation by prosecutors in telling a story about their own political position regarding the prior conflict, reverse inequality is in part due to the inevitably political circumstances in which international criminal courts operate, that manifest themselves in three ways. First of all, there is the fact that the creation of international criminal courts is often a political act. This was certainly true for the Yugoslavia Tribunal, the Rwanda Tribunal, and the Special Court for Sierra Leone. Although the ICC, due to its permanent nature, can perhaps shed some of this political pedigree, the cases where the Court prosecutes after a referral from the Security Council have an undeniable political genesis.

27 See, e.g., Sarah Nouwen and Wouter Werner ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’ (2010) 21(4) The European J of Intl L 941, 942. Although the ICTY did get involved considerably in politics, for example by playing a role in the admission talks of Serbia to NATO and the European Union. See Marlene Spoerri and Annette Freyberg-Inan ‘From Prosecution to Persecution: Perceptions of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Serbian Domestic Politics’ (2008) 11(4) J of Intl Relations and Development 350. 28 ‘Moreno Ocampo: Impunity was once the rule, now it’s the exception’ (Radio Netherlands Worldwide) accessed 28 June 2018. 29 Tim Meijers and Marlies Glasius, ‘Expression of Justice or Political Trial? Discursive Battles in the Karadžić Case’ (2013) 35(3) Human Rights Q 720, 742–5. 30 Glasius and Meijers, ‘Constructions of Legitimacy’ (n 12) 240–1.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

686 Marlies Glasius and Tim Meijers S elf-referral situations also come with ready-made suspicions of bias in favour of government agents and against government opponents. Second, the courts invert within political constraints. For the special courts, their jurisdiction is limited and not all prosecutions that might conceivably fall within their jurisdiction may be politically prudent. A prime example here is of course the ICTY’s controversial decision not to open investigations into the NATO bombings in Kosovo. The ICC faces similar jurisdictional and political limits. Beyond the eye-catching threats of withdrawal by several African states, the ICC depends on state cooperation—both from signatories and other states, such as the United States—when it comes to arrests, witnesses, and evidence. It is possible that the re-opened preliminary examination of UK actions in Iraq, or the Mavi Marmara incident, may yet lead to investigations being opened and trials pursued, but at the time of writing the ICC was still failing to get out of Africa. Third, there is the budget. The SCSL never had stable funding and was dependent on donations. These came mostly from one particular country, namely the United States. This of course lent credibility to Taylor’s narrative that the US had been out to get him from the very beginning. The SCSL may be an extreme case, but even in the case of the much more multilateral funding for the ICC, political agendas cannot be absent from the Assembly of States Parties’ oversight over the budget.31 As we have shown, defiant defendants have clear advantages over the prosecution in the battle for political legitimacy. They are experienced politicians who know their prospective audiences; while the prosecution and the bench alike consist of professional lawyers who typically have neither the skill nor the intention to focus on making their discourses resonate with populations outside the courtroom. In addition, defendants get to focus and embellish on the political roots, constraints, and biases of legal institutions. Does it matter whether these obstacles are overcome? Overcoming them is not crucial to delivering a fair trial to the defendant, or to securing conviction of those guilty of the crimes listed in the indictment. So, from a strictly legalistic view of international criminal courts, this kind of inequality of arms is not particularly worrisome. This is not what the trial is about. But if one believes that courts have an expressivist mission,32 and potentially have a role to play in post-conflict transitions and entrenchment of the rule of law, successful messaging to politically undermine the messages of the prosecution and—ultimately—the 31 Sara Kendall, ‘Commodifying Global Justice: Economies of Accountability at the International Criminal Court’ (2015) 13 J of Intl Crim Justice 113. 32 We defend our particular version of the expressivist role for international courts in Meijers and Glasius, ‘Trials as Messages of Justice’ (n 2) in which we argue that international criminal trials might— and should aim to—contribute to transitional justice by sending messages that reaffirm the legal order, establish truths, recognize the wrong done to the victims, and educate the general public. These messages are primarily aimed at contributing to the (re-)establishment of well-functioning societies (437–38). However, the concern raised here is a worry for expressive and communicative views on the goal of criminal justice proceedings more generally.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Inequality of Arms Reversed? 687 judges is very problematic. For courts to play an expressive and potentially transformative role, it matters that they are seen as legitimate by audiences in post-conflict situations. These audiences are unlikely to accept and internalize messages from a discredited institution. We have shown that, due to their own characteristics, the characteristics of prosecutors, and the character of international criminal courts, defiant defendants have distinct advantages in the battle for political legitimacy. However, we do not conclude that the communicative outcome of international criminal trials is bound to favour the defendant. In the next three parts, we will elaborate and illustrate three counter-arguments: legitimacy is multi-faceted and fluid, not binary; prosecutors can and do sometimes produce discourses that resonate with post-conflict audiences; and defiant defendants may find it hard to keep up their defiance through years of trial.

III. Legitimacy is Multi-Faceted, Contingent, and Fluid As we have argued so far, the primary threat to the realization of the expressive and symbolic potential of courts stems from the defendants’ capacity to question and create doubt about the legitimacy of the case presented by the prosecution, and the Court in general. Elsewhere we have elaborated on the normative legitimacy of international criminal courts,33 but here we are primarily concerned with unpacking sociological legitimacy. Sociological legitimacy, or acceptance of the authority of courts and their trials and verdicts, we argue, is not binary. International criminal justice has multiple audiences, each of which may be internally divided, and their assessment of legitimacy will vary depending on who and where they are, but also when they are, i.e., over time. Those who argue that international criminal justice has an inherent legitimacy problem, ripe for political exploitation by defendants, tend to focus on short-term and local legitimacy. Koskenniemi for instance wrote at the beginning of the Milošević trial that: ‘[i]f Milošević succeeds in becoming a representative of one, perhaps disputed but still respectable, view of [Balkan] history he will have attained two victories’, namely to deprive a judgment against him of moral rightness as well as achieve martyrdom for himself.34 As it happened, Milošević managed to deprive the ICTY from even handing down any verdict, but the point here is that Koskenniemi’s ‘if ’ should in fact be read as an open question, the answer to which may vary within and between audiences as well as over time. The history of international criminal justice is still relatively short, but the Nuremberg experience would suggest that the hindsight reputation of a Tribunal may improve spec33 Meijers and Glasius, ‘Trials as Messages of Justice’ (n 2). 34 Koskenniemi, ‘Between Impunity and Show Trials’ (n 5) 32.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

688 Marlies Glasius and Tim Meijers tacularly even with the very group that the defendant claims to represent.35 A close reading of the Göring trial especially shows his discursive tactics to be very similar to those of today’s defiant defendants. The normative legitimacy of the Nuremberg Tribunal he disputed was in many ways more problematic than that of the ICTY or the ICC. Yet Göring’s view of history has not become respectable in Germany (although its currency may again be on the rise!), and he is not remembered as a martyr today. Milošević’s legacy and that of the ICTY will not necessarily follow the same path, but they could do so, depending on social, political, and cultural developments in Serbia and its neighbours. While the show trials of Zinoviev and Kamenev are unlikely to ever be revisited and rehabilitated, in Russia or beyond, the long-term acceptance of the ICTY trials in the region is still an open possibility. In the short term, the question whether ‘inequality of arms reversed’ has an impact on the way local populations think of courts is more easily assessed. Thanks especially to the Human Rights Center at Berkeley, there are numerous surveys and some more indepth insights into the attitudes of violence-affected populations to transitional justice in general and international criminal justice in particular. Their most consistent finding, however, seems to be that local populations typically have little awareness or knowledge of international criminal trials at all.36 Moreover, these surveys give us relatively little insight into the resonance of specific discourses by defendants and prosecutors in specific cases. Still, there is plenty of anecdotal evidence that in some cases, the defendants are absolute winners with their local constituencies. This has often been the story in the successor states to the former Yugoslavia, but the strongest example perhaps is that of former ICC indictees William Ruto and Uhuru Kenyatta, both charged with crimes related to electoral violence. Despite early popular support for prosecutions,37 these reconciled rivals appear to have won national elections primarily because of their joint opposition to the ICC.38 While it is clear that local legitimacy is heavily contested, and defendants may often have an advantage as well as a stronger interest in winning over this audience than the prosecution, we know next to nothing about legitimacy with non-local audiences. Stepping away from our own professional preoccupations, we may safely assume that 35 Susanne Karstedt, ‘The Nuremberg Tribunal and German Society: International Justice and Local Judgement in Post-conflict Reconstruction’ in David A Blumenthal and Timothy L H McCormack (eds), The Legacy of Nuremberg: Civilising Influence or Institutionalised Vengeance? (Brill 2007). 36 Phuong Pham and others, ‘Forgotten Voices: A population-based survey of attitudes about peace and justice in northern Uganda’ (1 July 2015) accessed 28 June 2018; Patrick Vinck and others, ‘Living with Fear: a population-based survey on attitudes about peace, justice, and social reconstruction in eastern Democratic Republic of the Congo’ (19 August 2008) accessed 28 June 2018; Patrick Vinck and Phuong Pham, ‘Outreach Evaluation: The International Criminal Court in the Central African Republic’ (2010) 4(3) Intl J of Transitional Justice 421. 37 Frédéric Mégret ‘Practices of Stigmatization’ (2013) 76(3–4) Law and Contemporary Problems 287, 315 fn118 (hereafter Mégret, ‘Practices of Stigmatization’). 38 Sara Kendall ‘ “UhuRuto” and other Leviathans: the International Criminal Court and the Kenyan Political Order’ (2014) 7(3) African Journal of Legal Studies 399, 406–12.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Inequality of Arms Reversed? 689 most of the world population most of the time does not know or care about the particular discourses of defendants and prosecutors in international criminal justice cases beyond their own polities. They simply have other priorities. More interesting unknown territory are the views of ‘international justice elites’ who may have a stake in, and influence on, international criminal justice. These include policy-makers in justice department, diplomats, officials at intergovernmental organizations, human rights defenders, academics, and practising lawyers. We do not know how well these elites follow individual trials, and what informs their views. They may be the liberal ideologues, with a natural bias against human-rights violating ‘others’, and a blind spot for structural causes of violence, that critical legal scholars sometimes make them out to be,39 or they may have more nuanced or divided views. If there is disenchantment, has it preceded or followed the political disavowal of the ICC in recent years, particularly but not exclusively in Africa? There is simply no empirical baseline of surveys or structured interviews equivalent to the work of Pham, Vinck, and Stover that focuses on these elites. This should be an urgent area of further empirical research for those who take a sociological view of international criminal justice.

IV. Resonant Prosecution Discourses There is a view in the critical literature on international criminal justice that prosecutors are often either unwilling or unable to appeal to local audiences, and prefer to address these international justice elites instead. Kelsall has devoted a book-length study to the various ways in which the Special Court for Sierra Leone, and its prosecution in particular, failed to understand and appeal to local norms and understandings of violence.40 Mégret, while recognizing that the outcome of what he calls ‘stigmatization practices’ remains contingent, also assumes the ‘inability of the ICC to speak quite the language of stigma spoken within given societies’.41 Kendall and Nouwen42 argue that the Rwanda Tribunal’s legacy work has been ‘primarily oriented toward international criminal law’s sites of production in The Hague and elsewhere, and even more broadly toward global policymakers, who establish and fund international criminal tribunals’. It is intuitive that prosecutors may be more attuned to the norms and ways of thinking of international justice elites than to those of local audiences, and there is much anecdotal 39 See for instance Immi Tallgren, ‘The Sense and Sensibility of International Criminal Law’ (2002) 13(3) European J of Intl L 565; more recently Christine E. J. Schwöbel ‘The Comfort of International Criminal Law’ (2013) 24(2) Law and Critique 169. Both texts tend to conflate characteristics of inter national criminal law with the imputed ideology of its practitioners. 40 Tim Kelsall, Culture under Cross-Examination (CUP 2009) (hereafter Kelsall, Culture). 41 Mégret, ‘Practices of Stigmatization’ (n 37) 317. 42 Sara Kendall and Sarah Nouwen, ‘Speaking of Legacy: Towards an Ethos of Modesty at the International Criminaly Tribunal for Rwanda’ (2016) 110(2) American J of Intl L 212, 230–1.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

690 Marlies Glasius and Tim Meijers evidence pointing in this direction. If it were the case that international prosecutors always—consciously or unconsciously—aim to appeal to international justice elites, whereas defendants just aim to appeal to their own local support base, the answer to the legitimacy conundrum would be as analytically elegant as normatively troubling. If this were so, ‘equality of arms’ would be the wrong metaphor altogether, because prosecutor and defendant would only appear to be doing battle. In reality, they would be talking past each other, each addressing, beyond the judges sitting before them, an entirely different audience. But like any other stylized local/global opposition, this is too pat, too deterministic. In order to demonstrate the more open, less predetermined nature and reception of rhetorical struggles between prosecutor and defendant, we will present a case that can serve as a counterexample: the discourses43 surrounding ‘acts of terrorism’ in the Special Court for Sierra Leone (SCSL)’s case against Charles Taylor, and their reception by local elites in Liberia. We present this as a ‘Sinatra case’44: a least-likely case for the local resonance of a prosecutorial discourse, for several reasons. The main financial backer of the SCSL, which largely relied on voluntary contributions, was the United States, and despite the formal hybridity of the Court, the prosecutorial team was almost entirely made up of Americans. As mentioned earlier, it had a well-documented history of failing ‘in crucial ways to adjust to the local culture in which it worked’,45 and more particularly to recognize the local political ramifications of its prosecutorial strategies. While the SCSL’s outreach in Sierra Leone was better thought-out and more grounded in local civil society than the outreach efforts of the ICTY or the ICC,46 its outreach in Taylor’s home country Liberia was virtually non-existent.47 Liberia, moreover, founded by African Americans without consultation of the majority indigenous population, has a more problematic relation with the United States than any other West African nation. Moreover, the first charge against Charles Taylor was the peculiar crime of ‘acts of terrorism’, which could easily be considered as more connected to the US obsession with terrorism than to the interrelated wars of West Africa’s recent past, and would therefore be an unlikely crime to find local resonance.

43 See Glasius and Meijers, ‘Constructions of Legitimacy’ (n 12) for a longer discussion of our approach to discourse analysis. 44 Jack Levy, ‘Case Studies: Types, Designs, and Logics of Inference’ (2008) 25(1) Conflict Management and Peace Science 1 (‘if I can make it there, I can make it anywhere’) 12. 45 Kelsall, Culture (n 40) 3. See also Sara Kendall, ‘Contested Jurisdiction: Legitimacy and Governance at the Special Court for Sierra Leone’ (PhD Thesis, U of California, Berkeley 2009) especially ch 4. 46 Rachel Kerr and Jessica Lincoln, ‘The Special Court for Sierra Leone: Outreach, Legacy and Impact: Final Report’ (February 2008) War Crimes Research Group, Department of War Studies, Kings College, London accessed 28 June 2018; Donna Arzt, ‘Views on the Ground: the Local Perception of International Criminal Tribunals in the Former Yugoslavia and Sierra Leone’ (2006) 603 The Annals of the American Academy of Political and Social Science 226; Michael Scharf and Ahran Kang, ‘Errors and Missteps: Key Lessons the Iraqi Special Tribunal Can Learn from the ICTY, ICTR and SCSL’ (2005) 38(3) Cornell Intl L J 911, 917–18. 47 Marlies Glasius, ‘ “it Sends a Message”: Liberian Opinion Leaders’ Responses to the Trial of Charles Taylor’ (2015) 13(3) J of Intl Crim Justice 419 (hereafter Glasius, ‘ “It Sends a Message” ’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Inequality of Arms Reversed? 691 Nonetheless, the prosecution in the Taylor case did make a concerted effort to ‘vernacularize’ the concept of terror and relate it to local idioms. While the defence engaged in the opposite move of associating terror with terrorists and with antagonism to the United States, we found the prosecution’s framing clearly resonated with local elite respondents.48 Like the defendants in the three preceding group trials at the SCSL, Charles Taylor was charged with ‘acts of terrorism’, with a reference to the Geneva Conventions and Additional Protocols. And as with the defendants in the AFRC and RUF trials, with whom he was alleged to be acting in a joint criminal enterprise, it was the first count listed against him. In her summary of the prosecution case, prosecutor Hollis at once transposed the term ‘terrorism’ from the indictment into ‘terror’, and argued that ‘terror may also mean or include extreme fear’.49 The prosecutor went beyond the case’s temporal and territor ial jurisdiction to argue that instilling fear was Taylor’s primary tactic, in the Liberian as in the Sierra Leonean war. She also cross-examined Taylor himself at some length on the meaning of terror, and got him to agree that ‘terror is fear’50 and that to ‘instill fear, that’s an act of terror’.51 The allegation of the use of terror, intended to create or instil fear, was then associated in the prosecution’s speeches with a phrase from the RUF rebels’ own vocabulary, ‘making fearful’, which could apply to people, areas, or the campaign itself. A few themes related to ‘making fearful’ were evoked by the prosecutors. The first was the AFRC/RUF attack on Freetown of January 1999 that, according to various prosecution witnesses, Taylor ordered should be made ‘more fearful than any other’, either to save ammunition or to assure victory,52 particularly by burning down houses and killing civilians. The second theme was that of the RUF’s practice of amputations,53 the ‘trademark atrocity of Sierra Leone’,54 and of carving its initials into people’s skin with a knife.55 The third referred to the RUF practices of displaying human body parts at crossroads and checkpoints.56 The fourth was a single, particularly gruesome incident used 48 For a more detailed discussion of prosecution and defence discourses on terror, see Marlies Glasius, ‘Terror, Terrorizing, Terrorism: Instilling fear as a crime in the cases of Radovan Karadzic and Charles Taylor’ in Dubravka Zarkov and Marlies Glasius (eds), Narratives of Justice In and Out of the Courtroom (Springer 2014) 45–61. 49 The Prosecutor v. Charles Ghankay Taylor (Trial Transcript) SCSL-2003-01-PT, 24135, line 18. Transcripts available at accessed 28 June 2018; coding frames available at authors’ personal websites. 50 The Prosecutor v. Charles Ghankay Taylor (Trial Transcript) SCSL-2003-01-PT, 31585, line 29; 31588, line 5. 51 ibid 31,588, lines 28–29. 52 ibid 24,139, lines 29 to 24,140 line 1; 24,169, line 7; 24,175, line 12; 24,176, line 16; 24,184, line 8; 49,160, lines 29 to 49,161, line 1; 49,167, line 6. 53 A direct connection to instilling fear is made in ibid 24,136, lines 28–29; 24,137, line 25; 24,138, lines 3–4; 49,227, line 26. For the numerous other references to amputations, see coding frame. 54 The Prosecutor v. Charles Ghankay Taylor (Trial Transcript) SCSL-2003-01-PT, 24331, lines 26–27. 55 A direct connection with instilling fear is made in ibid 303, lines 7–11; 24,138, lines 3–4, 7–11; 31,591, lines 13, 16, 19–20. Other references to the practice are made at 303, lines 1–4; 24,151, lines 6–9; 49,149, lines 7–8; 49,204, lines 7–8. 56 ibid 5863, lines 7, 12–13; 24,138, lines 16–19, 27–28; 24,139, lines 13–14, 22–23; 31,592, lines 2–4; 46,192, lines 24, 29; 49,179, lines 13–14, 17–19; 49,180, lines 4, 6–7.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

692 Marlies Glasius and Tim Meijers by the prosecution to symbolize the ‘terrorism’ or fearfulness of the RUF, and hence also of Charles Taylor: it concerns the testimony of a woman who heard the cries of children being killed, was forced to carry a bag filled with human heads, discovered her own children’s heads among them as she was made to empty the bag, and was forced to laugh about the discovery.57 Thus, the prosecution made a skilful effort to ‘vernacularize’ the charge of terrorism, by attaching it to the phrase ‘making fearful’, which it demonstrated was widely used by the RUF, and using Charles Taylor’s cross-examination to strengthen the credibility of this connection. Indeed, Liberian opinion-leaders, asked about their perceptions of the Charles Taylor trial,58 nearly all had a strong, sometimes visceral reaction to the question: ‘What does the word “terror” mean to you?’ A youth leader said it meant ‘[e]xtreme wickedness, lack of fear of God. Terror, terrorism, it comes from Al-Qaeda, we didn’t know it was also in Africa. It gives me the jitters, it makes me reflect on the past’.59 A young NGO worker paused before saying ‘[i]t means a lot. To clearly define what it is, what it does, I cannot say because there is so much trauma. I can say it is the worst side of human beings’.60 According to a student leader and strong critic both of Charles Taylor and of the United States, it meant ‘destruction of lives, killing indiscriminately, civilians in the community, defenceless, harmless people. It is not having the right to freely express yourself, having your civil liberties trampled upon’61. A women’s rights activist said ‘[t]error is so frightening, so intimidating, without sensitivity, cold’.62 In answering the question whether Charles Taylor was a terrorist, respondents were clearly aware of the post 9/11 global context of such a designation, but disagreed about whether it was appropriate to apply it to Charles Taylor. The women’s rights activist cited above said that ‘[t]errorist is a different thing [from terror]. It is a phrase that we have heard since 9/11 . . . I wouldn’t call Taylor a terrorist, not in the same context as Zarkawi’.63 Similarly, the student leader said ‘[s]o he wreaked terror, but again, the word has so many different meanings. Post 9/11 it has a different connotation. For the Americans the

57 Described by prosecutors in ibid 24,136, lines 8–18; 31,589, lines 7 to 31,591, lines 6–9. Prosecutors describe an apparently separate incident of a mother forced to laugh as her child is buried alive in ibid 31,589, line 4; 49,180, lines 19–20. 58 We base our analysis on 20 interviews conducted in 2011, with individuals who, in one sense or another, could be considered opinion leaders within Liberia, and all of whom had followed the Taylor trial that was then in progress to some extent. The individuals interviewed included men and women ranging in age from their 20s to their 60s, including youth and student leaders, employees of non-governmental organizations, radio and print journalists, businessmen and women, politicians, religious leaders, and a senior civil servant. They held a variety of views regarding Taylor, ranging from being direct opponents and victims to close associates, but the majority of respondents had mixed views and no direct experience of Taylor. See Glasius, ‘ “It Sends a Message” ’ (n 47) for a longer discussion of the fieldwork and sampling. 59 Interview with AZ, youth leader (23 May 2011). 60 Interview with JS, NGO worker (20 May 2011) (hereafter Interview with JS). 61 Interview with JJ, student leader (20 May 2011) (hereafter Interview with JJ). 62 Interview with MF, women’s rights activist (16 May 2011). 63 ibid.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Inequality of Arms Reversed? 693 definition is anyone with an explosives jacket’.64 According to a human rights worker too, ‘[w]hat it means is someone out of touch with the US’.65 On the other hand, another NGO worker held that ‘[b]ecause the definition of terror was not in the public language, [Taylor] has not been seen as a terrorist, but from the perspective of where we are now, of course he is a terrorist’.66 And a development worker believed that ‘[t]errorists are people who go into another country, disturb peaceful citizens, destabilize’,67 a guarded but clear enough reference to Taylor. We do not try to argue here that the prosecution and conviction of Charles Taylor was broadly construed as legitimate in Liberia. Instead, we make a smaller and more precise claim that has a direct bearing on the ‘inequality of arms reversed’ problem: even in the most unlikely circumstances, prosecutorial teams can be interested in, and indeed cap able of, making locally resonant arguments. Even a defendant with vastly superior local knowledge, considerable rhetorical skills, and extensive leeway to tell his story in court, such as Charles Taylor, cannot be assumed to have an automatic competitive advantage in resonating with the local audience he may be seeking to address.

V. Defendant Tamed by the Process In this part we want to explore another mechanism that may affect the impact of ‘inequality of arms reversed’ on the expressive potential of international criminal courts. The defiant defendant, while initially coming into the courtroom with the single-minded aim of exposing the illegitimacy of the proceedings, may over the long months and (usually) years of trial sessions get drawn into the procedural games he set out to reject, and be tamed by them. We will illustrate this point by looking closely at the shifting attitude of the self-representing defendant Radovan Karadžić during his trial. As we have noted above, Karadžić early in his trial seemed to follow a similar strategy to Milošević, Šešelj, and later Mladić: full-blown defiance in the face of the Court. In the pre-trial proceedings, he attacked the Court head on: I’m deeply convinced that this Court is representing itself falsely as a court of the international community, whereas it is in fact a court of NATO whose aim is to liquidate me. It is, therefore very hard for me to express my standpoint on anything before this is cleared up. I have stopped using a false name so I think all parties should do the same.68 64 Interview with JJ (n 73). 65 Interview with DJ and HG, human rights workers (16 May 2011). 66 Interview with JS (n 72). 67 Interview with LT, development worker (19 May 2011). 68 The Prosecutor v. Radovan Karadžić (Trial Transcript) IT-95–5/18, (29 August 2008) 30, lines 17–22. Also quoted in Mégret, ‘ “Bring Forth the Accused” ’ (n 3) 425.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

694 Marlies Glasius and Tim Meijers And: I will defend myself before this institution as I would defend myself before any natural catastrophe, to which I also deny the right to attack me.69

Additionally, Karadzic asked to have one of the judges removed because of a worry about partiality.70 Yet already in his opening statement, we find a different defendant. Although Karadžić continued to challenge the jurisdiction of the Court over his case, based on the alleged deal with Richard Holbrooke that granted him immunity, he no longer pointed his arrows at the judges and the Court in general. It was—as we pointed out earlier—the prosecution that received Karadžić’s scorn, and the prosecution that was being accused of betraying the ideals of international justice. Indeed, Karadžić moved on to that it ‘is with great enthusiasm that I [Karadžić] am preparing for these proceedings’, and that he has been ‘acting in good faith in order to create a process, a trial, that is going to be important to us, the people back there, and also for international justice and international law’.71 In the closing statement, finally, Karadžić and his lawyer Robinson behaved very ‘professionally’—i.e., they focused almost exclusively on the terms of the indictment. It is only at the very end that Karadžić took a few stabs at the prosecution—repeating his complaints that they tried to incriminate ‘me and Serbs in general’.72 It was the prosecu tion that through its unfair treatment risked undermining the point of international criminal justice.73 He affirmed the importance of having accountability through inter national criminal justice, and at no moment attacked either the legitimacy or the legality of the Court itself: I am in favour of international justice. There must be courts that would make sure that a criminal who gets into power does not kill people, but it would be a huge failure of that international justice if wrong decisions were made by a court like that.74

We do not, of course, know why Karadžić opted not to obstruct the Courts’ proceedings during the entire trial. Perhaps it is because continued non-cooperation with the Court, even if appreciated by his target audience, would effectively deprive him of the oppor tunity to tell his story about the conflict and the case. Or perhaps Karadžić could not resist showing off his rapidly achieved legal prowess. Whatever the reason, this formal cooperation inevitably sent a message. A defendant taking the stand as a witness, or engaging with the evidence offered by the prosecution, as spokesperson of his own 69 The Prosecutor .v Radovan Karadžić (Trial Transcript) IT-95–5/18, (31 July 2008) 20, lines 16–18. 70 ICTY President Fausto Pocar did indeed reassign the case to a different chamber, but gave a tech nical reason to avoid acknowledging the charge of bias. 71 The Prosecutor v. Radovan Karadžić (Trial Transcript) IT-95–5/18, (2 March 2010) 990, lines 23–24. 72 ibid 48027. 73 ibid 48027, 48029. 74 ibid (2 October 2014) 48031, lines 10–15.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Inequality of Arms Reversed? 695 defence team, grants an air of legitimacy to the proceedings and constrains the extent to which he can undermine the proceedings as such. Given the length and nature of the proceedings, they may ‘tame’—or at least constrain—the defendant to some extent. At the same time, in our other exemplary case, Charles Taylor remained antagonistic towards the Court and the prosecution until the very end. Both Taylor and his team backed off from attacking the judges’ partiality head on in court, but then Griffiths did cast aspersions on the impartiality of the bench in the media. While we should not generalize too much from just two cases, it is remarkable that it is the self-representing Karadžić who is to some extent transformed through the trial, while Taylor, supported by his flamboyant QC, remained defiant from beginning to end.

VI. Conclusion To conclude, we think that high-profile defendants do have the upper hand in the battle for local legitimacy, and that this poses a considerable threat for the expressivist enterprise. If the defiant defendant succeeds in undermining the perceived legitimacy of the international criminal justice institution in the eyes of key local audiences, the Court’s messages—about what happened during the conflict, who is guilty, and how to respond to violence through impartial procedures—will not be heard or internalized. Yet we have also tried to show that there are reasons not to be deterministic about this outcome. Insofar as audiences for international criminal trials have been researched, the focus has been too exclusively on the short-term responses of directly affected communities, not on longue durée interpretations or broader audiences. We have also shown that prosecutors can connect to local populations even if faced with a high-profile defendant with plenty of ammunition to shed doubt on the legitimacy of the Court. Finally, we have suggested that by having to interact in a courtroom situation on a daily basis for an extensive period of time, some defiant defendants (such as Karadžić) come to implicitly or even explicitly affirm the legitimacy of the Court. These mechanisms may balance out inequality of arms reversed without requiring the prosecutor or the judges to engage directly with the political challenges raised by the defence. In addition, we would suggest that, rather than continuing to claim that international criminal prosecutions have nothing to do with politics, prosecutors and to some extent even judges should play a more active role in countering the political and delegitimizing messages of the defendants. An expressivist understanding of the function of inter national criminal justice would have them explain that the trial does have a political purpose, to teach the rule of law by example, but that this purpose can only be achieved through procedural fairness and acceptance of the possibility of acquittal. Such an understanding of politics in the courtroom need not turn international criminal trials into show trials.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

696 Marlies Glasius and Tim Meijers The exact direction and limits of a more political conception of international criminal justice, the tensions and prioritization between procedural and expressivist demands, and the proper distinctions between prosecutorial and judicial responsibilities all require more work in legal theory and philosophy. Nonetheless, some steps are unproblematic. While high-profile defendants do an excellent job of pointing out structural biases in international criminal justice, they also cross the line into innuendo and falsehood. Prosecutors and judges often remain passive in light of such challenges. They can do much more to counter such misinformation, without turning their case into a polit ical trial. They could defend the purposes of trial as they see them, and make their case to publics outside the courtroom, using the Court as a stage to address these audiences but also by following the lead of the defiant defendant by engaging actively with the media. Judges and prosecutors should articulate and communicate a vision about what they wish their trial to express. This could change the way international courts are perceived and understood by different present and future audiences. But it requires them to get out of their comfort zones, recognizing, reflecting on, and embracing the extra-judicial dimension of international criminal trials.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Section VIII

BOU N DA R I E S

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Chapter 30

I n ter nationa l Cr im i na l L aw a n d th e Su bor di nation of Em a ncipation The Question of Legal Hierarchy in Transitional Justice Laurel E. Fletcher*

I. Introduction Transitional justice is an area of study and practice that addresses the question of how societies that experience mass violence or periods of repression should engage these episodes. International criminal law occupies a privileged place within that field. Criminal prosecutions of those responsible for causing widespread bloodshed and destruction have come to be understood as a moral imperative. The international legal regime governing transitional justice places accountability—the pursuit of individual criminal sanction—at the apex of its normative response to mass violence. The argument advanced here is that this preference for international criminal law obscures or comes at the expense of other responses or priorities for post-conflict societies. The international commitment that perpetrators of international crimes be put in the dock diverts attention from broader, emancipatory, social justice goals to address rights of victims or the structural, systemic dimensions that fuelled mass violence. The paradox is that transitional justice aspires to achieve both legal justice and social justice. This chapter will thus examine how the paradigm of transitional justice contains these different goals and produces competition between them. It argues that the international legalism that undergirds the dominant approach to transitional justice produces a legal hierarchy * University of California, Berkeley, School of Law, [email protected].

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

700 Laurel E. Fletcher that, in turn, configures the relationship between international criminal law and other, more emancipatory goals for transitional justice. Identifying that there is a transitional justice hierarchy of norms and how it produces a preference for individual criminal accountability over social emancipation requires understanding the development of the field. The concepts of social emancipation and social justice are used interchangeably here and refer in this context to a desired endstate: societies in which the full range of human rights—economic, cultural, and social, as well as civil and political—are realized, in which conflict is managed without violence, and governance structures promote the health and welfare of individuals and communities.1 There are lively debates among transitional justice scholars and practitioners about the goals that drive the field—reconciliation, peace, rule of law (all contested terms). These maximalist goals in which substantive rights are realized are interrogated most prominently by a set of critical transitional justice and human rights scholars who may not use the terms ‘social emancipation’ and ‘social justice’ explicitly, but who question the dominance of legalistic approaches to mass violence and introduce alternative approaches to advance these aims.2 Accountability for international criminal wrongdoing is a part of moving away from a past period of bloodshed and is consonant with that broader transitional justice ambition; but the goal of social emancipation is also more than the absence of terror. It is securing conditions in which systemic barriers to equality are dismantled and a life with dignity is guaranteed. Transitional justice developed as a distinct concept from the political opening created by the fall of dictatorships in Latin America and the collapse of the Soviet Union to hold perpetrators of past violence accountable.3 Human rights advocates justified specific forms of accountability in political transitions as necessary to consolidate rule of law, democratic change, and promote social reconciliation. Criminal trials were considered the best method to achieve these aims. ‘Justice’ and ‘reconciliation’ were coupled as joint goals in the Security Council resolutions creating the ad hoc criminal tribunals for the former Yugoslavia and Rwanda.4 However, over time diplomats, practitioners, and scholars have come to give multiple, divergent, and competing meanings to these concepts. Nevertheless, international discourse and institutions increasingly have consolidated transitional justice as a rights-based, international, rule of law project. Ending impunity for atrocity crimes is central to its mission, and agendas that prioritize other goals, such as structural changes and victim redress, are less successfully realized. 1 Paul Gready and Simon Robins, ‘From Transitional Justice to Transformative Justice: A New Agenda for Practice’ (2014) 8 Intl J of Transitional Justice 339. 2 Wendy Lambourne, ‘Transitional Justice and Peacebuilding after Mass Violence’ (2009) 3 Intl J of Transitional Justice 28 (hereafter Lambourne, ‘Transitional Justice and Peacebuilding after Mass Violence’); Lisa J Laplante, ‘Transitional Justice and Peace Building: Diagnosing and Addressing the Socioeconomic Roots of Violence through a Human Rights Framework’ (2008) 2 Intl J of Transitional Justice 331 (hereafter Laplante, ‘Transitional Justice and Peace Building’). See generally, Karen Engle, Zinaida Miller, and D M Davis (eds), Anti-Impunity and The Human Rights Agenda (CUP 2016). 3 Paige Arthur, ‘How “Transitions” Reshaped Human Rights: A Conceptual History of Transitional Justice’ (2009) 31 Human Rights Q 321 (hereafter Arthur, ‘How “Transitions” Reshaped Human Rights’). 4 United Nations Security Council, Resolution 827, UNSCOR, 3217th Mtg, UN Doc S/RES/827, (25 May 1993); United Nations Security Council, Resolution 955, UNSCOR, 3453rd Mtg, UN Doc S/RES/955, (8 November 1994) (hereafter UNSC Res 955).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

ICL and the Subordination of Emancipation 701 Thus, this chapter analyzes the normative hierarchy of transitional justice to expose the relative nature of the norms and values that define the field. Despite critiques of international criminal justice,5 the values represented by international criminal accountability continue to enjoy a power that the other human rights that undergird transitional justice—the rights to truth, reparation, and structural reforms to guarantee the crimes of the past will not be repeated—do not command. The dominant frame for understanding mass violence is to see these incidents as international atrocity crimes, which ineluctably leads to a discussion of the need for (but not necessarily implementation of) criminal accountability for these acts. Indeed, transitional justice’s great success is that over the last 25 years, it has succeeded in switching the default normative presumption of how societies should respond to mass violence from impunity for past atrocities to accountability for these acts. At the same time, the momentum for account ability has not, or at least has not yet, brought equal progress toward achieving the other social justice aims of transitional justice. The Security Council has used its Chapter VII powers to establish international criminal tribunals and has acted to refer situations to the international criminal court for investigation. However, it has only moved once and with an ambiguous basis, in the case of the first Gulf War, to exercise such Chapter VII powers to enforce non-prosecutorial transitional justice measures on a state.6 Security Council measures imposed post-conflict to maintain international peace and security exhibit a preference for international criminal accountability over truth-seeking measures, reparations, and structural reforms. Certainly, there would be legal questions about the limits of the Security Council’s Chapter VII powers to act in these ways, but the point is that it has not developed a practice to do so. To identify this international preference for international criminal responsibility to mass crimes, this analysis examines international legal texts, statements of international officials, and examples of Security Council practice to theorize the normative relationship between international criminal law and transitional justice.7 The chapter opens in Part II by illustrating the normative hierarchy in action, using the example of the Security 5 There is a wide literature on this topic, for a sample of the range of critiques see ‘Special Issue: The Role of International Criminal Justice in Transitional Justice’ (2013) 7 Intl J of Transitional Justice. 6 At the conclusion of the Iraqi war with Kuwait, there were no international criminal trials of Iraqi officials responsible for alleged war crimes. Rather, the Security Council relied on its Chapter VII powers to establish a compensation system for Iraq to pay damages claims related to its invasion and occupation. However, Iraq accepted its responsibility to pay compensation, providing an additional, consent-based, legal justification for the imposition of a compensation scheme, thus undercutting claims that the repar ations were based on Chapter VII. Hans Van Houttee, Hans Das and Bart Delmartino, ‘The United Nations Compensation Commission’ in Pablo de Greiff (ed), The Handbook of Reparations (OUP 2006) 321, 324–27. 7 Transitional justice and international criminal law are not the exclusive purview of the international community. Regional institutions and states are important actors and innovators in this arena. While the dynamics of the interaction between international practice on the one hand and regional and national practices on the other hand is important and may affect the international normative hierarchy over time, this analysis focuses on international discourse for study. Nevertheless, state practice suggests that the essential normative hierarchy is reproduced at the national level—the defeat of the Colombian peace referendum on the basis that its criminal accountability provisions were too lenient being a case in point. Julia Symmes Cobb and Nicholas Casey, ‘Colombia Peace Deal Is Defeated, Leaving a Nation in Shock’ New York Times (New York, 2 October 2016) accessed 1 July 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

702 Laurel E. Fletcher Council referral of the situation in Darfur to the International Criminal Court (ICC). Part III reviews the creation of this hierarchy within the transitional justice paradigm and explores its dynamics and implications. The fourth part puts the Darfur referral in a larger theoretical context by examining how the international transitional justice framework is constituted as a right-based approach. This legal framework, based on international human rights, functions through a hierarchy of legal norms that privileges international criminal law over norms that advance the more emancipatory ambitions of transitional justice. The fifth part raises the question of whether the emancipatory goals of transitional justice are forever doomed to subordination by the international community’s pursuit of criminal accountability. The final part assesses the opportunities for progressive development of the lower rungs of the hierarchy through a human rights approach.

II. Transitional Justice Hierarchy in Action: Sudan Referral The dominant approach to transitional justice frames the international response to mass human rights violations as one aimed at ending impunity for international crimes. Time and again, international documents endorsing or initiating international processes to hold wrongdoers legally accountable follow a similar pattern of argumentation. Prior to activating international criminal law, UN bodies establish independent fact-finding commissions or expert groups to document the abuses and to make a determination as to whether there is evidence of international crimes.8 Affirmative findings provide a credible prima facie record that acts constituting genocide, crimes against humanity, and/or war crimes have taken place. The implication of such findings compels a legal and moral conclusion: these acts are so horrific in nature and scope that they are of concern to all humanity and require the imposition of criminal sanctions on specific individuals. At the same time, measures to attend to the underlying drivers of the violence and prevent its recurrence, even when they have been stressed by internationally mandated experts, are marginalized. The example of the UN Security Council referral of Sudan to the ICC illustrates this dynamic. In September 2004, the Security Council tasked the Secretary-General with commissioning a report of independent experts to investigate the situation in Darfur. In particular, experts were to determine whether acts of genocide occurred and if so, to identify the perpetrators ‘with a view to ensuring that those responsible are held

8 For example, fact-finders appointed by the Security Council, UN Human Rights Council, or General Assembly conducted independent assessments that supplied the evidentiary predicate for internationallysponsored criminal prosecutions in the Balkans, Rwanda, Sierra Leone, and Cambodia, and supported the Security Council referral of the situation in Darfur to the ICC.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

ICL and the Subordination of Emancipation 703 accountable’.9 The mandate for the International Commission of Inquiry on Darfur immediately directed the group’s efforts toward criminal accountability, which narrowed the range of responses the international community might consider appropriate. It is noteworthy that the experts nevertheless went beyond their remit in finding that the evidence of widespread and grievous human rights abuses required legal action beyond criminal accountability for those responsible. The Commission report stated that ‘measures to bring relief and redress to the victims must be initiated to complete the process of accountability’.10 The Commission reviewed the development of international law on reparations for war crimes and concluded that traditional conceptions of state responsibility had shifted. State reparation for violations of human rights and humanitarian law was no longer an obligation owed strictly to other states. The Commission concluded that as a matter of customary law, states must pay victims compensation for damages inflicted by perpetrators who are nationals and acted at the behest of the state.11 Accordingly, the Commission recommended, in addition to referring the situation to the ICC, that the Security Council establish an International Compensation Commission, financed by Sudan.12 The Commission drew on the Secretary-General’s transitional justice report, released just months prior, to argue for the need for a compensation commission as a complementary mechanism to judicial accountability for individuals.13 This mechanism was necessary to fulfil the victims’ right to a remedy, even in the absence of accountability of the specific wrongdoer.14 The Commission also suggested a range of structural reforms within Sudan. For example, it recommended abolishing special courts, strengthening the independence of the judiciary, and repealing laws that effectively shield members of the security forces from prosecution15—measures that attend to systemic dimensions of mass violence.16 Most immediately, these interventions would have removed barriers to access to justice, enabling victims to access their right to a remedy. They would also have contributed to the broader substantive rule of law goals of the international transitional justice project. Yet, despite the attention the Commission of Inquiry devoted to the rights of victims and their connection to structural issues of transitional justice, the Security Council’s 9 International Commission of Inquiry on Darfur, ‘Report to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004’ (25 January 2005) para 2 accessed 1 July 2018 (hereafter Darfur Commission). The Commission found evidence that Sudanese government and rebel forces had committed international crimes and recommended a referral on this basis. The Commission did not find evidence of a state policy of genocide, but did not rule out that genocidal intent might be present in individual cases. ibid para 4. 10 ibid para 565. 11 ibid para 588. While the Commission found that states did not owe a legal obligation to compensate victims of non-state perpetrators, it recommended that third-party states finance such compensation for the proposed Compensation Commission. ibid para 608. 12 ibid para 590, conclusion. 13 ibid para 599. 14 ibid para 597. 15 ibid paras 622–25. 16 United Nations Human Rights Council, Report of the Special Rapporteur on the Promotion of Truth, Justice and Guarantees of Non-recurrence, Pablo de Greiff, UNHRCOR, 30th Sess, UN Doc A/HRC/30/42 (7 September 2015) paras 15–19 (hereafter SR on Transitional Justice Report on Guarantees of Non-Repetition 2015).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

704 Laurel E. Fletcher resolution made no mention of the proposed Compensation Commission.17 In the discussion by state representatives after the vote, only the representative of Algeria, Mr Baali, mentioned the issue of victim compensation, and only in passing.18 Nor did any member of the Council take up any of the experts’ recommendations for institutional and legal reforms to strengthen the country’s national legal and judicial system.19 In short, comparison of the expert report to the Security Council resolution suggests the relative insignificance of values other than international criminal accountability.

III. Conceptual Background and Legal Origins: Legal Accountability and Social Emancipation How might one explain the international preference for criminal accountability over all other forms of transitional justice? How did the discourse of international criminal justice become so dominant? This part charts the transitional justice paradigm’s fraught relationship to criminal justice.

A. The Rise of Transitional Justice The normative priority on individual accountability, manifest in the Sudan referral, derives in part from the origins of transitional justice itself. While international criminal law as a field was born with the prosecutions in Nuremberg and Tokyo after the Second World War, transitional justice emerged as a distinct concept with the geopolitical realignment at the end of the Cold War.20 In its early stages, transitional justice was a 17 However, the Commission of Inquiry recommended that the government of Sudan pursue development of a truth and/or reconciliation commission, which the Security Council did endorse. United Nations Security Council, Resolution 1593, UNSCOR, 5158th Mtg, UN Doc S/Res/1593, (31 March 2005) para 5 (hereafter UNSC Res 1593). 18 UNSCOR, 5158th Meeting, UN Doc S/PV.5158, (31 March 2005) 3 (Algeria abstained from the vote, citing concerns that the role of the African Union in mediating the conflict had not been adequately considered. However, Mr Baali spoke about the shared objectives the international community must pursue including ‘compensating [victims] for the moral and material damages they have suffered’). 19 ibid. 20 Pursuant to the terms of Germany’s surrender, the allies undertook a series of structural reforms to ensure the crimes of the Third Reich would not recur but these measures were not understood at the time as ‘transitional justice’ interventions. The Potsdam agreement called for the allies to draft a new constitution and to ensure demilitarization and denazification of the country. These are the types of systemic changes that transitional justice proponents now would embrace as ambitious forms of guarantees of non-recurrence. Laurel E Fletcher, ‘A Wolf in Sheep’s Clothing? Transitional Justice and the Effacement of State Accountability for International Crimes’ (2016) 39(3) Fordham Intl L J 447, 468, 512–14 (hereafter Fletcher, ‘A Wolf in Sheep’s Clothing?’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

ICL and the Subordination of Emancipation 705 justice, i.e., a criminal justice project for times of political transitions. Supporters of newly democratic governments argued for legal accountability of past leaders responsible for state-sponsored terror and repression as part of the larger project of democratic state-building. Criminal sanctioning of past leaders was to not only remove them from political power, but also to signal an irrevocable break with the past by demonstrating that no one was above the law and providing healing for victims. Accountability was thought potentially to facilitate a process of enabling former enemies to live peacefully together again.21 Countries turned to truth commissions and lustration or vetting when political exigencies precluded criminal prosecutions and thus were seen as second best alternatives.22 So conceived, early transitional justice efforts were synonymous with the pursuit of a criminal accountability project. This early ambition has had an enduring effect on the field. The idea that past perpetrators of state-sponsored terror should be held accountable for their crimes found increasing international resonance in a context where it fitted well with a broader geopolitical international peace and security agenda. The conflict in the Balkans galvanized this new thinking. In 1993, the Security Council established the International Criminal Tribunal for the Former Yugoslavia to prosecute perpetrators of international crimes. A year later, in the wake of evidence of genocide in Rwanda, the Security Council established a second ad hoc criminal tribunal. These tribunals ushered in a period of intense international attention to accountability for international crimes, which involved the UN in establishing tribunals to prosecute mass violence in Cambodia, Sierra Leone, Kosovo, and East Timor. The rise of international justice as a global concern made possible the establishment of the permanent ICC, which began operations in 2002. Although the idea of criminal accountability in transitions was one of the most not able progenies of the transitional justice paradigm, ‘justice’ expanded as a concept and transitional justice mechanisms quickly grew to encompass more than criminal trials. Non-carceral mechanisms became accepted as part of transitional justice practices in their own right and valorized for pursuing distinct goals. Notably, the South African Truth and Reconciliation Commission (TRC) disrupted the assumption that criminal trials were the preferred transitional justice tool, with TRC supporters defending the Commission as better suited to African values than retributive justice.23 Instead of seeing non-carceral interventions as ‘lesser’ alternatives to criminal accountability, by the mid-2000s, the conventional wisdom had galvanized around a conception of transitional justice as consisting of a ‘toolkit’ of possible interventions, each suited to particular goals that advocates saw as necessary for societies to aim for in the aftermath of mass violence. For example, truth commissions are able to articulate structural contributors to conflict—discrimination, concentration of land ownership, social 21 Arthur, ‘How “Transitions” Reshaped Human Rights’ (n 3). See Laurel E Fletcher and Harvey M Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’ (2002) 24 Human Rights Q 573. 22 ibid 583. 23 Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Beacon Press 1998) 52.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

706 Laurel E. Fletcher marginalization—and make recommendations for legal and social reforms. Lustration and vetting excises tainted officials from the former state administration so that legitimacy and public trust can be restored and state institutions reformed. Restorative justice approaches to low-level offenders are thought to be desirable alternatives to criminal trials because they may be better able to shift community attitudes towards these perpetrators such that social (re)integration is achieved. Memorialization aims to shape collective memory of the past in ways that honour victims and consolidate social attitudes that reject the values that nurtured past bloodshed. The acceptance of multiple mechanisms reflects the extent to which the practice and the goals of transitional justice have expanded. The proliferation of interventions speaks to a recognition that societies addressing episodes of mass violence require not just legal accountability for wrongdoing; but forms of truth beyond that which emerge from prosecutions; redress to individuals and communities directly impacted by attacks that retributive justice typically does not deliver;24 and deeper reforms that will fix the underlying drivers of conflict, etc. If multiple mechanisms foster rule of law and reconciliation in various ways, how should the international community think about their differential contributions? In 2004, the UN Secretary-General issued a report that ratified the ‘tool kit’ approach and put the international imprimatur on a pluralistic conception of transitional justice. The Secretary-General defined transitional justice as ‘the full range of processes and mech anisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation’.25 These interventions are derived principally from a pre-set, rights-based menu of ‘individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals’.26 The policy formally adopts an ecumenical approach to these various measures—trials, truth commissions, etc.—each making distinct contributions. Moreover, few restrictions are imposed on which of these tools to apply, in what sequence, and under what conditions. Nevertheless, the normative foundation of the policy is human rights-based and, as will be elaborated in this chapter, the norms skew toward criminal accountability.

24 The creation of the Trust Fund for Victims that provides material assistance to victims on behalf of the institution and complements the powers of the permanent international criminal court to award reparations reflects this trend. Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, UN Doc A/CONF.183/9 (in force 1 July 2002), arts 75, 79 (hereafter Rome Statute). 25 Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UNSCOR, UN Doc S/2004/616 (23 August 2004) para 8 (hereafter Sec-Gen Report on TJ Policy). Acceptable practices included prosecutions, reparations, truth commissions, institutional reform, vetting and lustration, pursued singly or in combination. 26 Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and PostConflict Societies, UNSCOR, UN Doc S/2011/634, (12 October 2011) para 17; Sec-Gen Report on TJ Policy (n 25) para 8.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

ICL and the Subordination of Emancipation 707

B. Rights-based Transitional Justice: Accountability vs Emancipation? The UN has further consolidated and institutionalized the transitional justice policy laid out in the Secretary-General’s 2004 report. In 2011, the UN Human Rights Council established the mandate for the first Special Rapporteur on the promotion of truth, justice, reparations and guarantees of non-recurrence (‘SR on transitional justice’),27 and appointed long-time transitional justice practitioner and scholar, Pablo de Greiff, to the position. He was tasked with elaborating norms and best practices to contribute to the goals of preventing recurrence of conflict and human rights abuses as well as promoting ‘social cohesion, nation-building, ownership and inclusiveness at the national and local levels and . . . reconciliation’.28 He embraced this mission as promoting a rightsbased approach, specifically the rights to ‘truth, justice, reparations, and guarantees of non-recurrence’.29 These rights, also referred to as ‘pillars’, are to be brought together in a ‘comprehensive approach’ and are believed to be mutually reinforcing to ‘ensure accountability, serve justice, provide remedies to victims, promote healing and recon ciliation, establish independent oversight of security system and restore confidence in the institutions of the State and promote the rule of law in accordance with international human rights law’.30 These ambitions are the realization of human rights restated as policy goals. As the SR makes clear, redressing the legacy of massive human rights violations means ‘primarily giving force to those human rights norms that were systematically or grossly violated’.31 The vision of rights realization is substantive and emancipatory: de Greiff makes clear that ‘rule of law’ is not simply formal adherence to norms, but ‘has to be understood in a way that coheres with an understanding of its ultimate aim, promoting a just social order’.32 Thus, the UN policy approach to transitional justice is aligned with many aspects of international peacebuilding frameworks, which recognize that the ‘rule of law’ needed after conflict is a thick version, capable of creating the conditions under which long term stability and social well-being may flourish.33 In this way, transitional justice shares with other types of justice an emancipatory aspect: a desire to transform the social world to secure substantive freedom and equality. In this context, the emerging discourse forged by social justice proponents of transitional justice makes it clear that emancipation will not come simply from prosecutions and that multiple transitional justice 27 United Nations Human Rights Council, Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, HRC Res 18/7, UNHRCOR, 18th Sess, 35Mtg, UN Doc A/ HRC/RES/18/7 (13 October 2011). 28 United Nations Human Rights Council, Report of the Special Rapporteur on the Promotion of Truth, Justice and Guarantees of Non-Recurrence, Pablo de Greiff, UNHRCOR, 21th Sess, UN Doc A/HRC/21/46, (9 August 2012) para 12 (hereafter 2012 Report from SR on TJ). 29 ibid para 10. 30 ibid para 12. 31 ibid para 2. 32 ibid paras 44–45; Sec-Gen Report on TJ Policy (n 25) para 4. 33 For scholars who have elaborated this approach see for example, Lambourne, ‘Transitional Justice and Peacebuilding after Mass Violence’ (n 2); Laplante, ‘Transitional Justice and Peace Building’ (n 2).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

708 Laurel E. Fletcher interventions are needed. Criminal justice is but one goal, distinct from redress for victims, reconciliation, realization of human rights, etc., all of which are encapsulated within de Greiff ’s framework. This broad UN transitional justice framework advanced by de Greiff is sufficiently capacious that it absorbs much of the criticism of scholars and practitioners who argue that international criminal accountability exerted too great an influence in the field and skewed attention toward criminal accountability and away from other types of interventions. Scholars have pointed for example to the ways in which international criminal law narrowly focuses on particular types of harms—violations of rights to physical integrity that are manifest in genocide, crimes against humanity, and war crimes—and ignores economic harms of mass violence such as those arising from forced displacement, systemic discrimination, or social marginalization.34 Others have examined the empirical evidence regarding the extent to which international trials succeed in achieving the broader social justice goal of contributing to reconciliation and found the record decidedly mixed.35 Still others have seen the problems of international criminal trials as a symptom of the larger problem of conceiving of transitional justice as predominantly a liberal legal project. For example, Kieran McEvoy argues that an uncritical embrace of criminal trials leads to unhelpful, apolitical abstraction. Criminal accountability is seen as a manifest ation of the state’s commitment to rule of law and the ‘seduction’ of legalistic thinking leads one to sidestep critical questions about the social and political contexts of transitions in which these events unfold.36 To the extent that advocates for transitional justice assume that criminal accountability is indispensable to respond to mass violence (essentially merging the international criminal justice movement with transitional justice), they fail to ask the prior question of what intervention makes sense for a particular locality. This encourages a false faith in legal solutions, or ‘magical legalism’,37 to achieve the emancipatory, social justice ambitions for transitional justice. Rosalind Shaw and Lars Waldorf share McEvoy’s skepticism of liberal legalism. Liberal legalism categorizes the deep, structural problems of marginalization and powerlessness (of which mass violence is a symptom as well as a cause) as violations of legal rights. So configured, realization of rights in these contexts demands interventions that may exacerbate rather than ease social tensions.38 For example, requiring victims to step forward and vocalize their suffering in a court or a truth commission to serve the rights to justice or truth may 34 Zinaida Miller, ‘Effects of Invisibility: In Search of the “Economic” in Transitional Justice’ (2008) 2 Intl J of Transitional Justice 266; Evelyne Schmid and Aoife Nolan, ‘ “Do No Harm”? Exploring the Scope of Economic and Social Rights, in Transitional Justice’ (2014) 8 Intl J of Transitional Justice 362. 35 Eric Stover and Harvey Weinstein (eds), My Neighbor, My Enemy (1st edn, CUP 2004). 36 Kieran McEvoy, ‘Letting Go of Legalism: Developing a “Thicker” Version of Transitional Justice’ in Kieran McEvoy and Lorna McGregor (eds), Transitional Justice from Below: Grassroots Activism and the Struggle for Change (Hart Publishing 2008) 15, 19–21. 37 Kieran McEvoy, ‘Beyond Legalism: Towards a Thicker Understanding of Transitional Justice’ (2007) 34(4) J of L and Society 411, 421. 38 Rosalind Shaw and Lars Waldorf (eds), ‘Introduction’ in Localizing Transitional Justice (Stanford UP 2010) 3–26.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

ICL and the Subordination of Emancipation 709 raise false expectations that the state is capable of responding to their material distress.39 Thus, the predominance of legalism in transitional justice, of which the enforcement of international criminal law is the most prominent and dominant manifestation, crowds out other perspectives to analyze and address the conundrum of how to restore peace and stability after mass violence. The approach advanced by the Special Rapporteur on Transitional Justice does not so much take sides in these debates about these trade-offs between international criminal accountability and non-carceral transitional justice tools as aim to rise above them by promoting a comprehensive, holistic, and mutually reinforcing approach that includes all of these mechanisms, and more.40

IV. Legal Hegemony of International Criminal Law in International Transitional Justice Yet for all the relative enrichment of the transitional justice paradigm, criminal account ability for international crimes continues to hold a unique purchase on international attention. For example, as has been seen, despite the recognition by the Commission of Experts for Sudan that victims were entitled to reparation, this claim fell on deaf ears at the Security Council: only activation of international criminal accountability received the green light. In part, this result can be explained by the hegemony of universalizing and legalistic approaches to societies in transition, but it also reflects that within the legal paradigm, how the value of accountability telescopes blame to individuals and is able to exclude the rights claims of victims. Law makes it possible to speak of justice without recognizing the rights of victims.

A. Darfur Referral Revisited We revisit the narrow result of the Darfur resolution for the insights it offers into why international criminal accountability remains at the top of the transitional justice normative hierarchy. Framed within the limited vocabulary of liberal legalism, the mandate for the Commission of Inquiry focused on criminal sanctions to the exclusion of other options. The Security Council could have emphasized pursuit of the emancipatory ambitions of transitional justice. This approach might have resulted, for example, in the 39 Rosalind Shaw, ‘Memory Frictions: Localizing the Truth and Reconciliation Commission in Sierra Leone’ (2007) 1 Intl J of Transitional Justice 183, 199–202. 40 For example, in a recent report, the SR on transitional justice focuses on the role of education and cultural interventions in contributing to peace. SR on Transitional Justice Report on Guarantees of NonRepetition 2015 (n 16) paras 116–21.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

710 Laurel E. Fletcher Security Council initiating a robust consultation process under international auspices that would surfaced local priorities for peace, justice, and effective measures to secure them. Even when the Commission broke with the strict terms of its mandate and recom mended victim reparation, it did so by interpreting victim redress as a necessary, legal component of state accountability.41 Consideration of measures that could promote a positive peace—42 measures that would go beyond rule of law reforms for the judiciary to include dismantling state structures and institutions that produced the ‘socio-economic and political marginalization of Darfur and its people’, which led to the outbreak of violent conflict—were off the table from the beginning.43 The emancipatory ambition of transitional justice receives only indirect attention in the Security Council referral. Reconciliation is understood to be a by-product of the primary recommendation: international criminal accountability.44 Even the comparatively more expansive discussion by the Commission reflects only a portion of the relevant, rights-based framework the UN itself has standardized when it comes to transitional justice. For example, although it moved to articulate why the right to compensation is a customary norm, the Commission could have elaborated on the human rights basis for structural reforms—the transitional justice pillar of guarantees of non-recurrence. The ambition of this fourth pillar is to rectify the underlying factors that contributed to the conflict to prevent mass violence in the future.45 The Commission’s decision to push the limits of its mandate with regard to victim compensation and not structural reform points to the contingency of international scrutiny. The point is not that the Commission focused on victim compensation and not structural reform; rather, that non-retributive transitional justice goals recede from view when the international community activates its discourse on international criminal accountability. This singular focus on inter national criminal law illustrates the hegemony of accountability in the international transitional justice framework over the broader human rights of victims.

B. Accountability as an Unassailable Norm Anti-impunity is the central norm in international justice discourse and it occupies pride of place in international transitional justice discourse, overshadowing other normative commitments. The UN Secretary-General exhorts that accountability for mass violence lies at ‘the very heart’ of the UN mission.46 International texts invoking 41 Darfur Commission (n 9) para 565. 42 While ‘negative peace’ refers to the absence of violence, i.e., cessation of hostilities, the term ‘positive peace’ refers to a more fulsome concept of peace that includes reestablishment of social relations and social systems that support communities and conflict resolution. 43 Darfur Commission (n 9) para 62. 44 The Security Council resolution referring the situation to the ICC ‘emphasizes the need to promote healing and reconciliation . . . in order to complement judicial processes and thereby reinforce the efforts to restore long-term peace’, UNSC Res 1593 (n 17) para 5. 45 For further exploration of this approach see Fletcher, ‘A Wolf in Sheep’s Clothing?’ (n 20) 512–17. 46 Sec-Gen Report on TJ Policy (n 25) para 6.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

ICL and the Subordination of Emancipation 711 accountability for international crimes routinely justify such calls based on the need to ‘end impunity’ and/or ‘bring to justice’ the perpetrators of such misdeeds.47 Ban Ki Moon’s 2010 declaration that we are in the ‘age of accountability’48 is an official acknowledgment that the international normative landscape has irrevocably shifted, even if implementation of the prohibition against impunity remains a work in progress. In recent years, legal tools that prevent prosecutions of international crimes have been curtailed, further signalling international support for accountability. Legal immunities for state officials do not bar prosecution under the Rome Statute and UN policy rejects the inclusion of amnesties into peace agreements.49 The policy of the ICC Prosecutor is to reserve its investigations and prosecutions to the narrow category of ‘most responsible’ offenders for international crimes of sufficient gravity,50 sending the signal that those in the highest echelons of power will not escape justice. On the heels of the establishment of the Court, the UN General Assembly adopted the International Principles to Combat Impunity, and the Basic Principles and Guidelines on the Right to a Remedy that synthesize human rights and international humanitarian law and conclude that states have a duty to investigate, prosecute, and punish those responsible for acts that constitute crimes under international law.51 47 Selected examples include: United Nations Security Council, Res 808, UNSCOR, 3175th Mtg, UN Doc S/Res/808, (22 February 1993) (hereafter UNSC Res 808); ‘Letter Dated 1 October 1994 from the Secretary-General Addressed to the President of the Security Council’ (4 October 1994) UN Doc S/1994/1125; UNSC Res 955 (n 4) preamble; ‘Identical Letters Dated 15 March 1999 from the SecretaryGeneral to the President of the General Assembly and the President of the Security Council’ (16 March 1999) UN Docs A/53/850, S/1999/231, 3 (hereafter Identical Letters Dated 15 March 1999); United Nations General Assembly, Situation of Human Rights in Cambodia, GA Res 56/169, UNGAOR, 56th Sess, UN Doc A/Res/56/169, (28 February 2002) preamble, 3, 4–5; United Nations Security Council, Statement by the President of the Security Council, UNSCOR, 4679th Mtg, UN Doc S/PRST/2002/41, (20 December 2002) 1; United Nations Human Rights Council, Promoting Reconciliation, Accountability and Human Rights in Sri Lanka, HRC Res 25/1, UNHRCOR, 25th Sess, UN Doc A/HRC/Res/25/1, (9 April 2014) preamble, para 2. 48 ‘In “New Age of Accountability”, International Criminal Court, Security Council Can Work Together to “Deliver both Justice and Peace”, Secretary-General Says’ (United Nations Press Release, 17 October 2012) accessed 1 July 2018. These remarks illustrate how the commitment to accountability has expanded from the context of political transitions to become arguably an independent international criminal justice agenda. The Security Council initiated the ad hoc tribunal for the former Yugoslavia in the midst of conflict as a peace and security measure and the ICC has institutionalized this practice. 49 Rome Statute (n 24) art 27; Sec-Gen Report on TJ Policy (n 25) para 64(c). 50 ICC Office of the Prosecutor, ‘Policy Paper on Case Selection and Prioritisation’ (15 September 2016) accessed 1 July 2018, paras 35–44; ICC Office of the Prosecutor, ‘Strategic Plan, 2016–2018’ (16 November 2015) accessed 1 July 2018, 15–16 paras 35–36. International prosecutions are thought to spur domestic prosecutions of lesser offenders. 51 Diane Orentlicher, ‘Promotion and Protection of Human Rights, Impunity’, UNESCOR, Commission on Human Rights, 60th Sess, UN Doc E/CN.4/2004/88, (27 February 2004); United Nations General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, GA Res 60/147, UNGAOR, 60th Sess, 64th Plen Mtg, UN Doc A/Res/60/147, (16 December 2005) 21.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

712 Laurel E. Fletcher International law and institutions manifest this international commitment to accountability. While it is beyond the scope of this discussion to offer a definitive explan ation for why accountability and anti-impunity have so captured the international discourse, a few observations are in order. First, accountability for international crimes draws legal and discursive strength from its unique ability to speak to the collective desires of humanity. Many incidents that constitute international crimes—genocide, some acts constituting crimes against humanity, and torture—are jus cogens norms and are violations of obligations erga omnes.52 Breach of these norms violates the duties of states not just to individuals or to an injured state, but to the collective of states: humanity as a whole.53 As such, instantiation of the norm of accountability demonstrates an international commitment to the idea of a universal rule of law and discursively consolidates and constitutes a unified front against a specific kind of illegal violence.54 Second, accountability for international crimes is constantly linked to the value of international rule of law. Prosecutions are necessary to end impunity for particular acts and to help establish rule of law, which is thought to contribute to peace and reconcili ation.55 This ‘instrumentalization’ of accountability serves as a justification for criminal responsibility, curiously immune to discursive demands for evidence or necessary claims to demonstrate its superiority over other alternatives like truth commissions.56

C. Victims’ Rights Subordinated By comparison, the norms that bolster the other transitional justice pillars are less compelling. If accountability for international crimes defends the interests of humanity as a formal matter, the other measures that implement the rights in the transitional justice pillars—the rights to truth, reparations, and guarantees of non-repetition—are conceived of primarily as human rights owed to individuals,57 notwithstanding the arguably collective dimensions to these rights.58 Resolutions creating or activating internationallysponsored criminal tribunals are virtually silent on the need for contribution of other

52 Restatement (Third) Foreign Relations Law of the United States § 702, comment O (1987). 53 United Nations General Assembly, Responsibility of States for Internationally Wrongful Acts, GA Res 56/83, UNGAOR, 56th Sess, UN Doc A/Res/56/83, (28 January 2002) arts 40, 42(b), 48(1)(b). 54 This is not to say that every situation in which the international community has substantial evidence of atrocity crimes results in prosecutions (international or domestic)—indeed only a fraction of such incidents is subjected to judicial scrutiny. 55 See eg UNSC Res 808 (n 47) preamble; UNSC Res 955 (n 4) preamble. 56 Samuel Moyn, ‘Anti-Impunity as Deflection of Argument’ in Anti-Impunity and the Human Rights Agenda (CUP 2016) 68, 71–75. 57 SR on Transitional Justice Report on Guarantees of Non-Repetition 2015 (n 16) paras 15–19; 2012 Report from SR on TJ (n 28) paras 13–14; Sec-Gen Report on TJ Policy (n 25) paras 54–55. 58 For example, the state may owe society as a whole the right to truth about past incidents of state violence. UNCHR, ‘Study by UN High Commissioner for Human Rights on the Right to the Truth’ (8 February 2006) UN Doc E/CN.4/2006/91 para 4.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

ICL and the Subordination of Emancipation 713 measures, like reparations or institutional reform.59 Further, these institutions, constituted as criminal tribunals, exclude jurisdiction over states responsibility. Thus, within the transitional justice framework, duties to the international collective outweigh those to the individual: human rights are claims against the states, while accountability is what humanity owes itself. In other words, as the Darfur referral indicates, there is little chance the international community’s vindication of the full rights of victims of mass violence will approach the level of its commitment to accountability.60 International justice is constituted discursively as accountability for international crimes, full stop. The right to reparation for such acts is nearly invisible next to calls to end impunity for them. International criminal accountability eclipses additional, and arguably more directly emancipatory, measures in these moments. The legal duty to prosecute may be rooted in state obligations to individuals, but the international power of the prohibition against impunity stems from its imbrication in maintenance of international rule of law and the UN legal order. The non-prosecutorial components of transitional justice, in contrast, rely on individual rights and fade into the background.

V. Abandon Rights? The Power of Human Rights in Transitional Justice The Darfur referral raises the question of whether the emancipatory goals of transitional justice are forever doomed to subordination by the international community’s rhet orical fealty to legal justice and rule of law. If so, should transitional justice supporters reject international criminal law for its hegemonic capacity to crowd out the social justice aims of transitional justice? Before answering this question, it is important to consider the extent to which the legal basis of transitional justice has succeeded in nudging the 59 For example, the Security Council resolutions establishing the ICTY and ICTR, respectively, frame justice for international crimes strictly in terms of carceral sanction, with no suggestion that justice includes reparations for victims. The rules of evidence and procedure for the Tribunals permit victims to bring separate civil actions for damages against the accused. International Criminal Tribunal for the former Yugoslavia, Rules of Evidence and Procedure, UN Doc IT/32/Rev.7, (1996) Rule 106; International Criminal Tribunal for Rwanda, Rules of Evidence and Procedure, UN Doc ITR/3/REV.1 (1995) Rule 106. Judges of the ad hoc tribunals recognized the difficulties of victim recovery and recommended the UN establish a special mechanism for victim reparations that would function alongside the Tribunals. Sec-Gen Report on TJ Policy (n 25) para 55 (citing to ‘Letter Dated 2 November 2000 from the Secretary-General Addressed to the President of the Security Council’ (3 November 2000) UN Doc S/2000/1063 (hereafter Sec-Gen’s November 2000 Letter) and ‘Letter Dated 14 December 2000 from the Secretary-General Addressed to the President of the Security Council’ (15 December 2000) UN Doc S/2000/1198 (hereafter Sec-Gen’s December 2000 Letter)). 60 The institutional separation of the ICC and the Trust Fund for Victims further evidences the bifurcation and budgetary de-prioritization of the right to reparations relative to retribution. Rome Statute (n 24) art 79; International Criminal Court, Rules of Procedure and Evidence (2013) Rule 98, accessed 26 December 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

714 Laurel E. Fletcher international community to implement the social justice aspects of transitional justice. A brief review of some of the major normative developments provides reason for cautious optimism. To the extent that transitional justice has made inroads to expand the international approach beyond criminal accountability, it has done so through human rights. Most visibly, the right of victims of international crimes to reparation has received increased international attention and support. In light of the record of ad hoc international criminal tribunals, a chorus of researchers and advocates criticized international penal institutions for being insufficiently responsive to the needs of victims of atrocities.61 The role of victims in international justice was to serve as its moral basis and to adduce evidence. Victims of the Balkans conflict and the Rwandan genocide might testify about their suffering but had no opportunity to seek reparations through those criminal tribunals, a fact that judges from those ad hoc tribunals criticized as a shortcoming of the institutional design of those mechanisms.62 Advocates and experts relied on international consolidation of the victims’ right to a remedy to expand the role of victims as rightsbearers and secure their right to reparation in transitional justice contexts. These efforts bore fruit. The 1998 Rome Statute provides for victims to seek reparation after the Court renders its judgment.63 The statute also creates the Court’s Trust Fund for Victims to pay awards to victims in the case of indigent perpetrators, and to finance interim assistance measures for victims and their families.64 The following year, the UN-appointed international experts on Cambodia recommended that an international tribunal be established to prosecute former Khmer Rouge leaders. Based on the ICC and ad hoc tribunals, they also recommended that this mechanism include the opportunity to provide victims reparation,65 and this feature ultimately was incorporated in the hybrid court.66 The 2004 Secretary-General Report relied on the Basic Principles on the Right to a Remedy to argue that states must provide reparations to victims of international crimes to comply with the international law of transitional justice as well as to meet the goals for reconciliation.67 Sri Lanka is the most recent international case to benefit from incorporation of this approach. The UN High Commissioner for Human Rights recom mended, and the UN Human Rights Council incorporated, a ‘comprehensive’ approach to transitional justice in Sri Lanka. The government endorsed transitional justice measures to address the legacy of the civil war and supported the Human Rights Council resolution 61 See ‘Special Issue: Reconsidering Appropriate Responses to Victims of Conflict’ (2016) 10 Intl J of Transitional Justice 1. 62 Sec-Gen Report on TJ Policy (n 25) para 55 (citing to Sec-Gen’s November 2000 Letter (n 59) and Sec-Gen’s December 2000 Letter (n 59)) (judges of the ICTY and ICTR suggested that the UN consider a special mechanism for reparations that would function alongside tribunals). 63 Rome Statute (n 24) art 75. 64 ibid art 79. 65 Identical Letters Dated 15 March 1999 (n 47) paras 211–12. 66 The Court may award civil parties collective and moral reparations. Extraordinary Chambers in the Courts of Cambodia, Internal Rules (Rev.9), (16 January 2015) Internal Rule 23 quinquies. 67 Sec-Gen Report on TJ Policy (n 25) paras 19, 54.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

ICL and the Subordination of Emancipation 715 that called for Sri Lanka to establish a reparations mechanism, along with a full range of transitional justice initiatives, including the creation of a hybrid criminal tribunal.68 The trend toward including procedures to enforce the rights of victims to reparation within the range of planned transitional justice mechanisms suggests the strength that human rights norms exert in this area. These efforts may succeed in redefining ‘justice’ for mass atrocities to include reparative or restorative justice measures. Yet currently, the international consensus regarding accountability is far stronger than these broader, victim-oriented human rights norms. States find it politically acceptable to establish international criminal courts. They have not, and are unlikely to, agree to a permanent international enforcement mechanism to enforce the state obligation to provide repar ation, let alone create one to tackle broad structural reforms.69 It is easier to agree that international rule of law should apply to a narrow category of unassailably reprehensible, individual wrongdoers than it is for states to agree to apply the rule of law to institute mass reparation schemes on states emerging from the ravages of violent conflict. Partly, this has to do with the nature of the law and our aspirations for what it can achieve. Even if criminal accountability and state responsibility for international crimes could be joined in a robust enforcement mechanism, as contemplated by the proposal for the African Court on Human and People’s Rights,70 would this facilitate the emancipatory ambitions of transitional justice? Doubling down on the rights-based approach would put pressure on the human rights framework to secure the social justice goals of transitional justice. Rectifying economic and social marginalization, eradicating systemic discrimination, and restructuring state institutions to guarantee members of societies emerging from conflict and periods of repression the power to achieve their freedom is the ambition of human rights as envisioned by de Greiff. But the legal measures contemplated under the rubric of guarantees of non-recurrence as currently developed favour legal reforms and hardly go far enough to equalize systemic power imbalances.71 For example, the constitutional guarantees of individual human rights recommended by the SR on transitional justice are unlikely to cure the endemic distrust of the state born of decades of marginalization of victim populations, although it may be a start in this direction. Moreover, it is important to consider whether pursuit of rights-enforcement may distort or hamper other efforts at social mobilization, which might bear more

68 United Nations High Commissioner for Human Rights, Comprehensive Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka, UNHRCOR, 30th Sess, UN Doc A/HRC/30/61, (28 September 2015) para 80; United Nations Human Rights Council, Promoting Reconciliation, Accountability and Human Rights in Sri Lanka, HRC Res 30/1, UNHRCOR, 30th Sess, 40th Mtg, UN Doc A/HRC/30/1, (1 October 2015). 69 Reparations against Germany after the Second World War and the reparation scheme imposed on Iraq after the Gulf War were ad hoc proceedings. For a fuller exploration of the challenges to develop these efforts into an accepted practice see, Fletcher, ‘A Wolf in Sheep’s Clothing?’ (n 20). 70 African Union, Draft Protocol on the African Court of Justice and Human and Peoples’ Rights, EX.CL/731 (XXI)a (2012); Ademola Abass, ‘Prosecuting International Crimes in Africa: Rationale, Prospects and Challenges’ (2013) 24 European J of Intl L 933. 71 Fletcher, ‘A Wolf in Sheep’s Clothing?’ (n 20) 502–25.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

716 Laurel E. Fletcher meaningful fruit.72 International criminal law and human rights fit comfortably within the legal framework of transitional justice, but the rights-based pursuit of transitional justice may rob the emancipatory aspects of the framework of the oxygen they need to thrive.

VI. What Does This Critique Tell Us? The rights-based nature of the international response to mass violence means that transitional justice ultimately cannot succeed as an international social justice project. Legal liberalism renders invisible to transitional justice many other ways of thinking about and acting in response to mass violence. The privileging of international criminal accountability is the most prominent example of this bias. This is the critique of the hegemony of international criminal law within transitional justice that many scholars and practitioners have advanced.73 The discursive push for a prohibition against impun ity and enforcement of accountability for international crimes shapes the international imagination about what the field of transitional justice is and can be. Adherence to these rule of law principles, in turn, frames the international response to mass violence as one in which international obligations must be enforced. Thus, the problems of abuse of power and subordination, the symptoms of which manifest as mass violence, become reinterpreted as human rights violations. Even under a broad interpretation of violations and their causes, addressing systemic violence through the rubric of individual rights has the effect of favouring legal responses. Political, social, and economic dynamics that produce, configure, and maintain the power structures that led to mass violence are often obscured, if not made invisible. Instead of mobilizing to address power imbalances as such, those who directly suffered from violence become ‘victims’ who must rely on experts in international law to seek rights enforcement, draining energy from non-legal forms of action for social change.74 Pressing for human rights mechanisms, like regional human rights courts, to do more to enforce the human rights remedies of victims of atrocities may mitigate the current imbalance, but still requires those impacted to seek help through a rights framework that constitutes them as victims rather than, for example, as citizens.

72 David Kennedy, ‘The International Human Rights Regime: Still Part of the Problem?’ in Rob Dickinson and others (eds), Examining Critical Perspectives on Human Rights (CUP 2012) 19, 24; David Kennedy, ‘The International Human Rights Movement: Part of the Problem?’ (2002) 15 Harvard Human Rights J 101, 108–9. 73 See, e.g., the contributions to Kieran McEvoy and Lorna McGregor (eds), Transitional Justice From Below: Grassroots Activism and the Struggle for Change (Hart Publishing 2008). 74 Harvey M Weinstein, ‘Victims, Transitional Justice and Social Reconstruction: Who Is Setting the Agenda?’ in Inge Vanfraechem and others (eds), Justice for Victims: Perspectives on Rights, Transitions and Reconciliation (Routledge 2014) 161–82.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

ICL and the Subordination of Emancipation 717 Nevertheless, as the political philosopher Judith Shklar famously observed, just because legalism is incapable of achieving its narrow goals of rigid application of norms should not blind us to its contributions.75 Its real value lies in its capacity to awaken and instil a commitment to rule of law values that, if consolidated, are capable of managing political conflict without resort to violence and terror. Legalism has operated to inspire international commitment to anti-impunity and its achievement in establishing the ICC is striking. At the same time, the limited vision of legalism as ideology is on full display in the transitional justice tool kit, each mechanism anchored in a legal duty but none able to break free. Anti-impunity and accountability are noble international values, adherence to which militates in favour of international criminal law. If the legalism of transitional justice stopped there, there might be room to pursue with equal vigour non-legal contributions to building a society with the aim to expand freedom, liberty, and security in the aftermath of mass violence. But transitional justice has been built as a rights-based project. The international rule of law approach endows the field with a universal character as well as moral urgency, and makes it capable of being applied by the community of nations. However, transitional justice as an international rule of law project loses sight of the particular, idiosyncratic context of every situation that rises to international attention, and of the possibility that criminal accountability might not be the best option. Can we appreciate the strength and achievements brought by international legalism while we also reject its power to lead us to believe that the inevitable choice the international community confronts with mass violence is between criminal justice and impunity? Can we think of other configurations? Skhlar valued the Nuremberg trials not because enforcement of criminal account ability could be thought of as justice, but because the choice to hold trials could catalyze further political consolidation to reject authoritarianism and build democracy in postwar Germany. So too, should scholars, practitioners, and advocates of transitional just ice resist the impulse to reject the international legalism of transitional justice but rather harness it to pursue its social justice dimensions. This does not require ideological adherence to rule of law, but a continuing skepticism of the ability of legalism, particularly of international criminal law, to achieve social justice. Such skepticism may provide needed space to consider the appropriate sequencing of goals and help to escape the false trap of seeing criminal accountability and other transitional justice mechanisms as either/or propositions. Activating such skepticism also helps ensure that international responses to mass violence remain grounded in the lived experiences of those most affected. Attention to the ways in which pursuit of international criminal justice does not address issues of structural power imbalances helps to ensure that criminal trials do not overshadow the need for other interventions. In addition, the relative gains that transitional justice has made to advance its social justice goals have been secured through strengthening adherence to human rights norms. This suggests that strategic pursuit of transitional justice as a rights-based project may 75 Judith N Shklar, Legalism: Law, Morals, and Political Trials (revised edn, Harvard UP 1986) 145.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

718 Laurel E. Fletcher continue to bear fruit. Should an international transitional justice framework succeed in making reparations a normative feature of post-conflict reconstruction policies in the same way that criminal accountability is now a background expectation, this will be an important advance for victims and transitional justice’s social justice aims. Nevertheless, an instrumental legalist approach to the field requires a clear-eyed understanding that pursuit of human rights enforcement is not the same thing as advancement of social mobilization. The latter is needed to secure the emancipatory promises of transitional justice and hold political actors accountable. In resource-constrained environments, for example, pressing for the ICC to award victims of child soldiers reparations after a judgment in a particular case may undercut efforts to mobilize communities affected by the violence to press the government to provide rehabilitation and reintegration services to child soldiers and their victims. Ultimately, what this critique of international criminal law and transitional justice asks is that we understand the power of legalism to redress violence in ways that tend to obscure attention to issues of power, culture, and context. The international rule of the law framework constrains and configures the space available to pursue the social emancipation aspirations of transitional justice. It also invites us to harness the power of the vision of rule of law as social justice to inspire recalibration of the normative hierarchy of transitional justice in its favour.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Chapter 31

I n ter nationa l Cr im i na l J ustice a n d H um a n ita r i a n ism Sara Kendall and Sarah MH Nouwen1

For a fleeting moment we had the illusion that we shared a common human condition. Didier Fassin2

I. Introduction The term ‘humanitarian’ is familiar to the field of international criminal justice. For example, the full official title of the International Criminal Tribunal for the former Yugoslavia (ICTY) reflects its task of prosecuting ‘Persons Responsible for Serious Violations of International Humanitarian Law’. International criminal justice focuses on enforcing international criminal law, and international criminal law’s oldest recognized crimes are violations of international humanitarian law. The connections between

1 The authors thank the Handbook editors and Devon Curtis for their close and critical reading of an earlier version of this text and for their constructive comments. They also thank the Faculty and PhD students of the Law Faculties at the European University Institute, the Graduate Institute of International and Development Studies and Tel Aviv University where earlier versions of this chapter were discussed. This research was supported by Nouwen’s grants from the Economic and Social Research Council (ES/ L010976/1), the Leverhulme Trust (PLP-2014–067), and the Isaac Newton Trust (RG79578). 2 Didier Fassin, Humanitarian Reason: A Moral History of the Present (Rachel Gomme (tr), University of California Press 2012) xi (hereafter Fassin, Humanitarian Reason).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

720 Sara Kendall and Sarah MH Nouwen the two bodies of law have been well documented.3 If the field of international criminal justice were represented as a circle with porous boundaries, part of that circle would contain the substantive norms of international humanitarian law whose violation can lead to individual criminal responsibility.4 But international humanitarian law is not the exclusive domain of lawyers; it has also been considered part of the broader field of humanitarianism. The 1859 Battle of Solferino has become the symbolic origin of both the first Geneva Convention, a foundational text for international humanitarian law, as well as the International Committee of the Red Cross (ICRC), the most emblematic humanitarian organization.5 Reflecting what it refers to as ‘the dual nature of its work’, the ICRC combines developing and promoting international humanitarian law with practical activities to alleviate suffering, such as providing medical care, clean drinking water, and food aid.6 Animated by sentiments of care, these concrete interventions are characteristic of the broader field of humanitarianism: a field populated by thousands of organizations—governmental and non-governmental, international and non-international—who share the objective of alleviating suffering. Unlike the ICRC, however, most of these humanitarian organiza tions do not actively promote international humanitarian law. If humanitarianism were represented as a circle with porous boundaries, international humanitarian law would form a relatively small part of it. The relationship between the fields of international criminal justice—understood here as the enforcement of international criminal law through proceedings in inter national courts and tribunals—and humanitarianism depends to a large extent on one’s understanding of humanitarianism. In operational practices, the term has traditionally been used by organizations and agencies that provide relief aid in times of emergency 3 See, e.g., Frits Kalshoven, ‘From International Humanitarian Law to International Criminal Law’ (2004) 3 Chinese J of Intl L 151–61; Robert Cryer, Håkan Friman, Darryl Robinson, and Elizabeth Wilmshurst, An Introduction to International Criminal Law and Procedure (3 edn, CUP 2014) 15–16 and ch 12. 4 Not all international humanitarian law is subject to enforcement through international criminal law; violations of many provisions of international humanitarian law do not lead to individual criminal responsibility. 5 Humanitarianism’s lineage goes back to earlier social reform movements and efforts to abolish slavery that were then not yet conceived of as ‘humanitarianism’ but that were inspired by similar sentiments. Michael Barnett notes humanitarianism’s indebtedness to eighteenth-century Enlightenment conceptions of humanité, which Emmerich de Vattel built upon in claiming that nations are bound by humanitarian obligations (offices d’humanité). Michael Barnett, Empire of Humanity: A History of Humanitarianism (Cornell UP 2011) 50 (hereafter Barnett, Empire). Historian Thomas Laqueur also notes the ‘vastly expanded ethical category of the “human(e)” ’ in the eighteenth-century, ‘to include animals as a limit case, but more centrally humans unseen and unheard, those who suffer across what would seem to be unimaginable distances, geographical and cultural’. Thomas Laqueur, ‘Mourning, Pity and the Work of Narrative in the Making of “Humanity” ’ in Richard Ashby Wilson and Richard D. Brown (eds), Humanitarianism and Suffering: The Mobilization of Empathy (CUP 2009) 45. See also Richard Ashby Wilson and Richard D. Brown, ‘Introduction’ in Humanitarianism and Suffering: The Mobilization of Empathy (CUP 2009) (‘[h]umanitarian sentiments have motivated a variety of manifestations of pity, from nineteenth-century movements to end slavery to the creation of international humanitarian law’ at 2). 6 Assembly of the ICRC, ‘The International Committee of the Red Cross: Its Mission and Work’ (2009) 91(874) Intl Rev of the Red Cross 399, 401.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Justice and Humanitarianism 721 (classic examples are the ICRC, Médecins Sans Frontières, the World Food Programme, and the United Nations Office for the Coordination of Humanitarian Affairs). However, with some humanitarian organizations also expanding their activities in order to address presumptive root causes of suffering, the boundaries of the field have widened to include peacebuilding, development, and human rights promotion. Even military interventions carried out to save foreign lives have been labelled as ‘humanitarian’. In this expanded understanding, sometimes referred to as the ‘new humanitarianism’,7 humanitarianism can also encompass international criminal justice.8 While international criminal lawyers have engaged with international humanitarian law, they have had little concern with the broader field of humanitarianism. The two spheres of activity rarely speak to each other, whether in scholarship or in practice. This chapter brings these two fields together, arguing that international criminal justice can learn from critical and diagnostic reflection on and within humanitarianism. Despite relatively limited dialogue between scholars and practitioners within these fields, they share some objectives, sentiments, and criticisms. Both fields have become prominent responses to violence and suffering. Anthropologist Didier Fassin’s characterization of humanitarianism could be applied to international criminal justice as well: ‘Whereas volunteers eager to come to the aid of victims of conflict and oppression would previously have done so through political and sometimes military struggle, . . . today they do it via humanitarian assistance and advocacy.’9 Both fields are idealistic. And both have encountered strong reproaches, many of which are remarkably similar: of failing to fulfil their ambitious ideals; of addressing immediate events rather than structural conditions; of producing unintended consequences; of being too ‘political’, in the sense of being selective and vulnerable to strong state interests; or, by contrast, of not being ‘political’ enough, in lacking accountability to affected constituencies. As an older and more established field than international criminal justice, humanitarianism has experienced phases of idealism, criticism, self-reflection, adjustment, and continued debate. A rich literature has emerged from humanitarian workers compiling reflective accounts of their own practices as well as scholars within anthropology, international relations, and other diverse backgrounds analyzing the practices of humanitarianism. This chapter contends that this reflective literature on humanitarianism offers critical reserves for understanding ongoing challenges in the work of international criminal justice. Exploring the reasons for the limited dialogue between relief workers and inter national criminal justice advocates, this chapter first acknowledges and illustrates some 7 On ‘new humanitarianism’, see, inter alia, Fiona Fox, ‘New Humanitarianism: Does It Provide a Moral Banner for the 21st Century?’ (2001) 25(4) Disasters 275 (hereafter Fox, ‘New Humanitarianism’). The label is controversial since its newness is contested: see Barnett, Empire (n 5). 8 Our focus is on international humanitarianism; that is, humanitarianism carried out by actors from outside the state where the humanitarian acts are received. With respect to international criminal justice, our focus is also on the enforcement of international criminal law at the international plane. International criminal law is also enforced at the domestic level, but those practices are much more diverse than those of international criminal tribunals and therefore less generalizable. 9 Fassin, Humanitarian Reason (n 2) 7.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

722 Sara Kendall and Sarah MH Nouwen of the tensions between the two fields. It considers how humanitarianism and international criminal justice are diametrically opposed from some perspectives within these fields (international criminal justice against humanitarianism). It explores differences in mandates and operational practices that contribute to their tensions, but concludes that they nevertheless share certain attributes and challenges. Building on these parallels, the following part illustrates two central issues faced by both fields: their relationship to and enactment of politics and their accountability to various constituencies (international criminal justice and humanitarianism). Finally, in addition to facing analogous challenges, the fields may in fact overlap when international criminal justice addresses humanitarian concerns by undertaking relief provision, or when lawyers use international criminal justice as a practice to alleviate suffering (international criminal justice as a form of humanitarianism). We conclude with a call for further reflexivity in the field of international criminal justice, inspired by developments in humanitarian scholarship and practice.

II. International Criminal Justice Against Humanitarianism The opposition between these two fields is evident from the standpoint of their practitioners. With their interests in upholding rights and duties rather than meeting immediate basic needs, international criminal lawyers appear to have little in common with humanitarians.10 For their part, some humanitarians may be inclined to reject the premise of their field’s relevance to international criminal justice out of hand, recalling experiences where international criminal justice seemed an obstacle to humanitarian work. Humanitarian aid workers in post-conflict settings often deliberately attempt to avoid encounters with representatives of international criminal courts due to conflicting short-term objectives and different worldviews. As one observer evocatively notes, some aid workers would ‘rather have a beer with a soldier than a human rights activist’, which would likely apply even more to international criminal lawyers.11 Despite their historical connections in international humanitarian law and their shared aim of responding to armed conflict, international criminal justice and humani tarianism govern in distinct ways, at times appearing to work at cross-purposes. This part of our chapter illustrates these tensions and explores their underlying reasons. Part of the explanation is operational: international criminal justice and humanitarian 10 For example, some international criminal lawyers would agree with Hannah Arendt’s claim that ‘[t]he purpose of a trial is to render justice, and nothing else; even the noblest of ulterior purposes . . . can only detract from the law’s main business: to weigh the charges brought against the accused, to render judgment, and to mete out due punishment’. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin 1977) 253. 11 Barnett, Empire (n 5) 16–17.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Justice and Humanitarianism 723 agencies are easily conflated by those who encounter them. Their shared outward appearance creates associations that can hamper humanitarian work. We then consider whether the explanation lies at a more fundamental level, residing in the fields’ different temporalities, objectives, values, and logics. International criminal justice and humanitarianism could be seen as fundamentally distinct in these respects, yet beyond these fundamental spaces of tension lie shared challenges. For outward similarities, we can go to the African continent, the host of many postcolonial interventions from both of these fields. In northern Uganda in the mid-2000s, international criminal justice and humanitarianism travelled in the same style: by white SUV.12 When commencing its activities in what its employees call ‘the field’, the International Criminal Court (ICC or the Court) elected to use the same vehicles as the many aid agencies who had arrived before it, and its presence appeared as yet another in a series of interventions from abroad.13 Unlike humanitarian organizations, the ICC’s vehicle had no logo for security reasons. But after a local radio programme had broadcast the number on its licence plate, many people learned of the vehicle’s affiliation with mixed reactions. The Court was a divisive presence in the Acholi region of northern Uganda, with some community members feeling that amnesty was a more appropriate response to the ongoing conflict than criminal accountability in The Hague.14 In Darfur as well, the ICC’s intervention divided people, especially through its request for an arrest warrant against the Sudanese President. Those supportive of the rebel armed movements welcomed the Court, hoping that it would bring about the aspired regime change; others

12 Lisa Smirl has been one of the first to theorize the meaning of the SUV in humanitarianism, observing, ‘The white sports utility vehicle (SUV) has become a symbol of international humanitarian presence; in many countries better recognized than the symbol of the blue helmet of UN peacekeepers. To humani tarian workers, it represents physical safety both in terms of its large frame and on-road visibility, and the protection that had historically been derived from its symbolic values of neutrality, impartiality and universality. However, to the Third World it has arguably come to represent the petroleum-fuelled inequality that has led to a situation in which a self-appointed few behave in a way that damages their surroundings and others. More recently, the SUV may also be seen as a symbol of hybridity, and the cooption by local power brokers, of Western elite dominance’. See Lisa Smirl, Spaces of Aid: How Cars, Compounds and Hotels Shape Humanitarianism (Zed Books 2015) 101 (hereafter Smirl, Spaces of Aid). See also Lisa Smirl, ‘Drive by Development: The role of the SUV in international humanitarian assistance’ (2011) accessed 15 December 2018. 13 See Adam Branch, Displacing Human Rights: War and Intervention in Northern Uganda (OUP 2011). 14 See for example Lucy Hovil and Zachary Lomo, ‘Whose Justice? Perceptions of Uganda’s Amnesty Act 2000: The Potential for Conflict Resolution and Long-Term Reconciliation’ (2005) Refugee Law Project Working Paper 15 accessed 15 December 2018. In 2005, a delegation of Ugandans including Acholi leaders visited the court and asked the ICC to be attentive to the ongoing peace process; see ICC, ‘Delegation from Uganda Holds Talks with the Registrar of the ICC’, (Press Release ICC-CPI-20050318–94, 18 March 2005) accessed 15 December 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

724 Sara Kendall and Sarah MH Nouwen opposed the Court for exactly that reason, regarding it as yet another external intervention aimed at changing the Sudanese government.15 Precisely because of such controversies, humanitarians working in situations of armed conflict have often tried to distance themselves from international criminal justice.16 Many humanitarian organizations do not want to be associated with anything that suggests political intervention, whether Security Council sanctions, a peacekeeping force, or even an international court, because such associations could be seen as compromising their respect for the core humanitarian principles of neutrality and independence. Perceived respect for these principles is key to creating ‘humanitarian space’, that is, access to those in need in a way that is secure for both staff and beneficiaries.17 Humanitarian space is endangered when belligerents or the public regard humanitarian organizations as facilitating the involvement of international criminal courts, as happened in Sudan—perhaps unsurprisingly in light of the ICC’s public acknowledgement of aid agencies in providing critical information and referencing such information.18 Humanitarian operations, staff, and beneficiaries may also be at risk when belligerents fear that relief agencies will assist courts in enforcing arrest warrants or might provide evidence against them in court.19 One instance of such an ensuing threat to humanitarian

15 Sarah M.H. Nouwen and Wouter G. Werner, ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’ (2010) 21(4) European J of Intl L 941 (hereafter Nouwen and Werner, ‘Doing Justice’). 16 Fabrice Weissman, ‘Humanitarian aid and the International Criminal Court: Grounds for divorce’ (Centre de réflexion sur l’action et les savoirs humanitaires (CRASH) 2009) 3 accessed 15 December 2018. 17 Kate Mackintosh, ‘Note for humanitarian organizations on cooperation with international tribunals’ (2004) 86(853) Intl Rev of the Red Cross 131 (‘[p]ublic cooperation with an international court . . . may compromise the organizations’ abilities to provide those life-saving services’ at 145). For tensions between accountability mechanisms and humanitarians and ways of addressing them, see also Emanuela-Chiara Gillard and Dapo Akande, ‘Humanitarian Actors’ Engagement with Accountability Mechanisms in Situations of Armed Conflict’ (2016) Workshop Report, European University Institute accessed 15 December 2018. 18 Humanitarian organizations ‘were appalled that the ICC publicly thanked aid organizations operating in Darfur for providing critical information and felt no surprise when Sudanese President Omar al-Bashir evicted nearly a dozen aid agencies on the grounds that they were not keeping people alive but rather helping Sudan’s enemies’ (Barnett, Empire (n 5) 16). For examples of referencing information likely to be provided by aid agencies, see Situation in Darfur, The Sudan (Public Redacted Version of the Prosecutor’s Application under Article 58, Annex A) ICC-02/05-157-AnxA, (12 September 2008) (ICC, OTP) 53–6. 19 Pursuant to Rule 73(4) of its Rules of Procedure and Evidence, the ICC has to regard information coming from the ICRC, including its officials, as privileged. This does not cover other humanitarian organizations. Moreover, even for the ICRC the privilege is not absolute. Rule 73(6) provides that: ‘If the Court determines that ICRC information, documents or other evidence are of great importance for a particular case, consultations shall be held between the Court and ICRC in order to seek to resolve the matter by cooperative means, bearing in mind the circumstances of the case, the relevance of the evidence sought, whether the evidence could be obtained from a source other than ICRC, the interests of justice and of victims, and the performance of the Court’s and ICRC’s functions.’

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Justice and Humanitarianism 725 space is when humanitarians are denied access to detention facilities out of a concern that information might be shared for purposes of prosecution.20 Even when making their best efforts to distance themselves, humanitarians are still often associated with international criminal justice. Belligerents and the public seldom read official mandates; they draw conclusions on the basis of what they see and hear. As illustrated by the white SUV, both the organizations and the people working for them can appear remarkably similar. Individual criminal accountability and humanitarian ism are often pursued by people who seem to enjoy similar expatriate privileges and appear to be supported by many of the same states. In local newspapers, radio programmes, and television bulletins, ‘ICRC’ is easily confused with ‘ICC’.21 At the operational level, this perceived similarity with and support for international criminal justice can impede humanitarian work. In some instances it has led to denial of access, fewer permits, physical attacks, and expulsion of staff.22 Even humanitarian organizations that promote humanitarian law are not by definition positive about the effects of international criminal justice, particularly when international criminal justice is perceived as a tool for regime change and therefore as political. One representative of a humanitarian organization in Sudan observed: Now with the ICC, it is over. The request for the arrest warrant against Bashir was a turning point, for Sudan, and for African states more generally. They now say, ‘We cannot commit ourselves to any new convention, agreement, related to inter national humanitarian law’. These fields have been politicized and this will backlash on our work.23

Another aspect of tensions between international criminal justice and humanitarianism can be found at a level that is more fundamental than the operational dimension. Traditionally the two fields have differed in their temporalities, objectives, values, and logics, which we consider in turn.

20 We thank Andrew Clapham for this example. 21 Nouwen’s interview with a representative of a humanitarian organization (Sudan, Khartoum, November 2008). 22 With respect to Sudan, see for instance, UNSG, Report of the Secretary-General on the Deployment of the African Union-United Nations Hybrid Operation in Darfur, UN Doc S/2009/201, (14 April 2009) (‘on 4 March, the Sudan’s Humanitarian Aid Commission revoked the registrations and expelled 13 international NGOs as well as dissolved 3 national NGOs working in north Sudan with immediate effect, for allegedly collaborating with International Criminal Court investigations. As part of this process, Government officials also requested the organizations in question to hand over an inventory of assets, gathered banking details, confiscated office equipment such as laptop computers, and seized project materials . . . . On 5 March, during an address to the Council of Ministers and a crowd of a few thousand people in Khartoum, high-ranking officials, including President al-Bashir and the Commissioner of Humanitarian Aid, confirmed the expulsion of the NGOs on the grounds that they had acted outside their mandate’ para 26). 23 Nouwen’s interview with a senior representative of a humanitarian organization (Sudan, Khartoum, October 2008).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

726 Sara Kendall and Sarah MH Nouwen International criminal justice and humanitarianism take distinct relationships to time: the objective of emergency relief is the provision of aid in response to a present need. By contrast, international criminal justice aims to hold individuals accountable for past wrongs. This also reveals a difference in objectives. Humanitarianism aims to relieve suffering, and, in the case of ‘emergency humanitarianism’, to protect life and health. International criminal justice is sometimes justified as a means of preventing international crimes, and by extension of saving lives, but its direct aim is to hold individuals to account. The different objectives stem from distinct animating values: empathy in the case of humanitarianism; responsibility in the case of international criminal justice. One of the foremost theorists of humanitarianism, Didier Fassin, gives the cases of Augusto Pinochet and Maurice Papon as examples of the invocation of humanitarianism to ‘exempt individuals accused or convicted of crimes against humanity from facing justice or punishment’.24 Finally, humanitarian logics appear distinct from—and perhaps opposed to—claims that are based upon legal rights and conceptions of justice. For example, Fassin juxtaposes the humanitarian mobilization of empathy and compassion with the recognition of rights or justice: ‘What, ultimately, is gained, and what lost, when we use the terms of suffering to speak of inequality, when we invoke trauma rather than recognizing violence, when we give residence rights to foreigners with health problems but restrict the conditions for political asylum, more generally when we mobilize compassion rather than justice?’25 Humanitarianism and international criminal justice also appear to address different audiences. Humanitarianism is addressed to the vulnerable, whereas the law that inter national criminal justice enforces—international criminal law—is addressed to everyone in theory, including those holding political power. Meanwhile, each field imagines the agency of its addressee in distinct terms. In humanitarian logics, Fassin observes, ‘[i]nequality is replaced by exclusion, domination is transformed into misfortune, injustice is articulated as suffering, violence is expressed in terms of trauma’.26 The subject of humanitarian care may appear within this frame as a passive victim awaiting assistance. With its focus on individual accountability, by contrast, international criminal justice tends to treat the alleged perpetrator as a strongly agentic subject, with little regard for the broader structural conditions that may have also contributed to alleged crimes.27 Yet these values, temporalities, objectives, and logics are less distinct than they may first appear. Empathy may not be the primary value of international criminal justice, but it does play a prominent role in the way in which the accountability project is promoted, especially with the increasing symbolic and procedural roles of victims in international criminal justice.28 Criminal accountability may not feature among the core values of the humanitarian field, but some actors have re-interpreted the principle of neutrality as 24 Fassin, Humanitarian Reason (n 2) xi. 25 ibid 8. 26 ibid 6. 27 Kamari Maxine Clarke, ‘Refiguring the Perpetrator: Culpability, History, and International Criminal Law’s Impunity Gap’ (2015) 19 Intl J of Human Rights 592. 28 Sara Kendall and Sarah Nouwen, ‘Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood’ (2013) 76 Law & Contemporary Problems 235 (hereafter Kendall and Nouwen, ‘Representational Practices’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Justice and Humanitarianism 727 compatible with ‘bearing witness’, which can involve exposing the commission of international crimes.29 A present humanitarian need may be the product of a past wrong, such as a breach of the laws governing armed conflict. Meanwhile, the call to redress past wrongs through international criminal law may be connected to a present (political) need. The contrast between the addressees of both fields is also not as stark in practice. In principle, international criminal law may be addressed to everyone, including the powerful, but the writ of international criminal justice, as a form of this law’s enforcement, often does not reach the nationals of powerful states. Furthermore, international criminal justice also seems to focus on those who might consider themselves to be ‘vulnerable’ in a political sense, in that they lack the protection of strong states. There are also shared challenges in empowering the individuals and populations in whose name these fields claim to act. Since the 1990s, the humanitarian field has increasingly attempted to address those in need as bearers of rights.30 Meanwhile, the field of inter national criminal justice has granted participatory and reparative rights to victims in some institutional contexts such as the ICC, yet it frequently struggles to implement these rights in practice.31

III. International Criminal Justice And Humanitarianism In light of these overlapping areas of concern, we turn to two of the more prominent challenges shared by both fields: first, the extent to which humanitarian organizations and international criminal law enforcers act as political agents, exercising power in making decisions over lives and priorities; and second, their accountability to different constituencies.

29 The ICRC undertakes its work with the understanding that it will not speak out publicly against the parties in a conflict (unless a set of strict criteria have been fulfilled or if it waives an ICRC official’s privilege in court), whereas other humanitarian relief organizations such as Médecins du Monde (MDM) denounce parties who breach international law and abuse human rights, even as they do not take sides in a conflict. For a nuanced account of the position of Médecins Sans Frontières, in between that of the ICRC and MDM, see Rony Brauman, ‘Médecins Sans Frontières and the ICRC: Matters of Principle’ (2012) 94(888) Intl Rev of the Red Cross 1523 (hereafter Brauman, ‘Médecins Sans Frontières and the ICRC’). 30 Devon Curtis, Politics of Humanitarian Aid: Debates, Dilemmas and Dissension (Overseas Development Institute 2001) 15 (hereafter Curtis, Politics of Humanitarian Aid). 31 Christine van den Wyngaert, ‘Victims before International Criminal Courts: Some Views and Concerns of an ICC Trial Judge’ (2011) 44(1/2) Case Western Reserve J of Intl L 475. See also Sara Kendall, ‘Archiving Victimhood: Practices of Inscription in International Criminal Law’ in Stewart Motha and Honni Van Rijswijk (eds), Law, Memory, Violence: Uncovering the Counter-Archive (Routledge 2016) 156.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

728 Sara Kendall and Sarah MH Nouwen

A. Politics and Power Humanitarian and international criminal justice actors alike often define their e nterprise as apolitical; that is, as not interested or involved in politics.32 Humanitarianism foregrounds impartial interventions in the interests of those who suffer;33 proponents of international criminal justice make similar arguments about the apolitical and victimoriented nature of their work.34 Unlike other ways of framing violence and suffering—as part of revolutionary and counter-revolutionary political struggles, for example, or as the remnants of imperial formations that continue into the present35—humanitarian ism and international criminal justice are conceived as separate domains from the polit ical. The boundary is presented as one to be guarded, if not sealed.36 This distancing from the political is considered necessary in both fields because polit ical concerns are thought to be fundamentally at odds with the core values of independence and impartiality in international criminal justice as well as with humanitarian neutrality. As discussed earlier, being seen as ‘apolitical’ has been considered essential for many humanitarian relief operations in order to secure their humanitarian space. For international criminal justice, a perceived lack of independence could lead to accusations that legal procedures are used toward political ends, and thus to ‘political justice’,37 thereby threatening the legitimacy of the entire enterprise. While claiming apoliticality may be operationally necessary for both humanitarian organizations and international criminal courts,38 it does not enhance the understanding 32 For humanitarianism, see Michael Barnett and Thomas G. Weiss, ‘Humanitarianism: A Brief History of the Present’ in Michael Barnett and Thomas G. Weiss (eds), Humanitarianism in Question: Politics, Power, Ethics (Cornell UP 2008) 1, 36 (hereafter Barnett and Weiss, Brief History). For inter national criminal justice, see Nouwen and Werner, ‘Doing Justice’ (n 15). 33 Fassin, Humanitarian Reason (n 2) 7. See also Bronwyn Leebaw, ‘The Politics of Impartial Activism: Humanitarianism and Human Rights’ (2007) 5(2) Perspectives on Politics 223. 34 For example, the first ICC prosecutor claimed that ‘[m]y mandate is justice; justice for the victims’, and his successor claimed ‘politics have no place and will play no part in the decisions I take’. See ‘ICC Prosecutor Visits Egypt and Saudi Arabia’ (Press Release ICC-CPI-20080509-MA13, 9 May 2008) ICCCPI-20080509-MA13, accessed 15 December 2018; ‘Statement of Prosecutor Fatou Bensouda to the 12th Session of the Assembly of States Parties’ (The Hague, 20 November 2013) para 14 (emphasis in original) accessed 15 December 2018. 35 Anne Laura Stoler, Duress: Imperial Durabilities in Our Times (Duke UP 2016); Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (CUP 2007). 36 When asked ‘you’re a trained lawyer, are you becoming a politician at the ICC?’, the ICC’s first prosecutor answered: ‘On the contrary. I am putting a legal limit to the politicians. That’s my job. I police the borderline and say, if you cross this you’re no longer on the political side, you are on the criminal side. I am the border control’. See Patrick Smith, ‘Interview: Luis Moreno-Ocampo, ICC Prosecutor’ (Africa Report, 21 September 2009) accessed 15 December 2018. For humanitarianism, see Barnett and Weiss, Brief History (n 32) 4. 37 See Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends (Princeton UP 1961). 38 Barnett, Empire (n 5) 34.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Justice and Humanitarianism 729 of the character of their work. Defining humanitarianism and international criminal justice as apolitical fields prevents us from understanding the various ways in which both fields are enmeshed with politics.39 Indeed, denying the political fuels accusations of hypocrisy. Both fields are political in that they enact certain politics; for instance, both fields promote moral claims and, as Barnett and Weiss observe, ‘defending moral claims is always political because one set of moral claims is invariably being advanced over another set’.40 Claims of apoliticality are also criticized for failing to recognize the importance of political context. David Rieff observes: For the humanitarian movement, the morality play is one of predators and victims to whom the humanitarians need . . . unfettered access. . . . For the human rights international, the canonical account is one of criminals and criminal justice, as if the political context in which Slobodan Milosevic could arouse the Serbs was less important than the fact that he was guilty, as an individual, of certain war crimes. In both cases, there is the pretense that somehow it is possible to stay outside politics.41

Moreover, both fields have political consequences. For instance, providing ‘mere’ humanitarian relief can still fuel war economies and prolong or intensify war.42 Interventions by international criminal courts can make peace-making efforts more difficult.43 The labelling of a situation as ‘humanitarian’, and by implication as apolitical, has also served as a ‘humanitarian alibi’—an excuse for states not to take more costly political action.44 International criminal justice has also been considered an excuse for failing to intervene in more demanding ways.45 Humanitarianism and international criminal justice share at least one ground on which this claimed apoliticality is based: universality. Just as humanitarian values are often presented as universal and therefore render humanitarianism apolitical, inter national criminal justice is presented as being based on universal international criminal law and thus distanced from politics despite the political foundations of particular institutions. The other ground for apoliticality invoked in humanitarianism is that it aims to 39 See also Nouwen and Werner, ‘Doing Justice’ (n 15) 943. 40 Barnett and Weiss, Brief History (n 32) 38. 41 David Rieff, A Bed for the Night: Humanitarianism in Crisis (Simon and Schuster 2003) 75 (here after Rieff, A Bed). 42 Alex de Waal, Famine Crimes: Politics and the Disaster Relief Industry in Africa (James Currey & Indiana UP 1997) (hereafter De Waal, Famine Crimes); Curtis, Politics of Humanitarian Aid (n 30) ch 2; Rieff, A Bed (n 41) 22–6. 43 On the tension between the ICC and peace negotiations, see inter alia Sarah Nouwen, ‘The International Criminal Court: A Peacebuilder in Africa?’ in Devon Curtis and Gwinyayi A. Dzinesa (eds), Peacebuilding, Power and Politics in Africa (Ohio UP 2012) 180–1. 44 De Waal, Famine Crimes (n 42) 217, 220; Barnett and Weiss, Brief History (n 32) 25; Rieff, A Bed (n 41) 87; Barnett, Empire (n 5) 174–80. 45 See Adam Branch, ‘Neither Liberal nor Peaceful? Practices of “Global Justice” by the ICC’ in Susanna Campbell, David Chandler, and Meera Sabaratnam (eds), A Liberal Peace?: The Problems and Practices of Peacebuilding (Zed Books 2011) 121, 134 (hereafter Branch, ‘Neither Liberal nor Peaceful’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

730 Sara Kendall and Sarah MH Nouwen save individual lives rather than to transform societies.46 This argument is less readily available to international criminal justice, but international criminal justice has its own additional ground: positivism. In the positivist understanding, politics may have led to the creation of an international criminal court, but the court then leaves politics behind. In the words of one former international criminal prosecutor, ‘[T]he justice ship . . . floats away and leaves the political process’ that led to the court’s establishment.47 In both fields, the claim of universality has been regarded as shallow and hypocritical. Even if humanitarian values are universal, they do not result in equal responses to equal needs. Similarly, international criminal justice has been criticized on the ground of unequal enforcement. In other words, international criminal law may be universal and possibly beyond politics (although this is contested), but international criminal justice is not: the enforcement of international criminal law depends heavily on political decisions. For both humanitarianism and international criminal justice, then, the question is not whether the fields are political or apolitical, but rather to what extent politics shape their work, or what degree of independence they may enjoy from political actors or political decisions. Over the decades, scholarship in the field of humanitarianism has developed a rich body of literature engaging with these questions. While scholarship on humanitarianism has enhanced understanding of the field’s political dimensions, aid agencies themselves have become more overtly political in their operations. This stemmed from dissatisfaction with keeping people alive so that they might die tomorrow,48 and a recognition that ‘there are no humanitarian solutions to humanitarian problems’.49 The ICRC has continued to disavow political consider ations, interpreting the principle of neutrality as one that requires it not to be ‘in any way connected with the dispute giving rise to the conflict, or with any elements that may be construed as being associated with it’.50 Other organizations, most famously Médecins sans Frontières, have departed from the ICRC’s style of humanitarianism in that they wanted to be able to ‘bear witness’ and speak out publicly about what they observed, including human rights violations.51 Organizations such as Médecins du Monde have expanded their activities beyond emergency relief to address the structural and political 46 Barnett and Weiss, Brief History (n 32) 38. 47 Interview with former Special Court for Sierra Leone prosecutor David Crane, in Tim Kelsall, ‘Politics, Anti-politics, International Justice: Language and Power in the Special Court for Sierra Leone’ in Tom Young (ed), Readings in the International Relations of Africa (Indiana UP 2015) 267–8. 48 Or, in the words of one of David Rieff ’s interlocutors, putting ‘Band-Aids on malignant tumors’. Rieff, A Bed (n 41) 307. 49 Vivian Tan, ‘Ogata Calls for Stronger Political Will to Solve Refugee Crisis’ (UNHCR UK, 27 May 2005) accessed 15 December 2018. 50 Cornelio Sommaruga, ‘Humanitarian Action and Peace-Keeping Operations’ (Conference on Humanitarian Action and Peace-keeping Operations, Singapore, 24–26 February 1997) accessed 15 December 2018 (hereafter Sommaruga, ‘Humanitarian Action’). 51 But see Brauman, ‘Médecins Sans Frontières and the ICRC’ (n 29) for an account of how the differences on this point are not as stark in practice as in the historical ‘myth’ of MSF’s origins.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Justice and Humanitarianism 731 conditions of humanitarian emergencies.52 Some have even advocated for military interventions on humanitarian grounds, a position that appears paradoxical for organ izations traditionally involved in trying to reduce the suffering caused by war. With humanitarian organizations entering into human rights promotion, development, peacebuilding, and democratization, the humanitarian field broadened considerably. As a result, the term also began to encompass human rights organizations, development work, peacebuilding missions, democracy initiatives, and even military operations.53 This has led one President of the ICRC to lament ‘the indiscriminate use of the term “humanitarian” ’ given that ‘much of today’s international response to a conflict is labelled “humanitarian” ’.54 By moving into development, rule-of-law building, human rights promotion, peacebuilding, and democratization, and by supporting military operations, humanitarians have even greater difficulties in defending a claim of apoliticality on the ground of merely aiding individuals. Aiming at treating causes instead of symptoms, these programmes are projects of societal transformation.55 Moreover, as Barnett and Weiss argue, these projects often support the politics of transformation ‘that diffuses and protects values associated with the West’.56 But humanitarian organizations not only share interests with Western governments;57 they have also begun actively to collaborate with them. In the ‘coherence agenda’ that has become dominant in Western governments for dealing with humanitarian crises, emergency relief forms part of an ‘integrated approach’ that aims to deal both with the causes and the consequences of the crisis. In this approach, humanitarian relief is one of many instruments to be employed. However, this integration also means that humani tarian objectives are subsumed under (other) foreign policy objectives. In the words of Colin Powell while acting as US Secretary of Defence, ‘NGOs are such a force multiplier for us, such an important part of our combat team’.58 Humanitarianism becomes an instrument of political agendas with other overriding objectives: combating terrorism, regime change, and even preventing migration. When combined with other objectives, humanitarian relief loses its deontological rationale, or the idea that it must be carried out for the sake of saving individual lives. In this ‘new humanitarianism’,59 humanitarian 52 Barnett and Weiss, Brief History (n 32) 3. For humanitarian organizations opposing this tendency, see MSF. 53 Barnett, Empire (n 5) 10 (Barnett points out that humanitarianism has always encompassed efforts to address root causes of suffering, but argues that for a long time the branches of emergency relief and addressing root causes were separate, with the former dominating the definition of humanitarianism and the latter often staying clear from using the term). 54 Sommaruga, ‘Humanitarian Action’ (n 50). 55 See also Barnett and Weiss, Brief History (n 32) 4. 56 ibid 7. 57 Rieff, A Bed (n 41) 314; Hugo Slim, ‘With or Against? Humanitarian Agencies and Coalition Counter-Insurgency’ (2004) 23(4) Refugee Survey Q 34 (hereafter Slim, ‘With or Against?’). 58 Colin L. Powell, ‘Remarks to the National Foreign Policy Conference for Leaders of Nongovernmental Organizations’ (Washington, 26 October 2001) accessed 15 December 2018. See also Slim, ‘With or Against?’ (n 57) 43–4. 59 See text to n 7.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

732 Sara Kendall and Sarah MH Nouwen relief is subject to a broader political agenda and is made conditional upon criteria stemming from that agenda rather than on the basis of need.60 It has been criticized for making relief an instrument of states, abandoning the core principles of traditional humanitarianism.61 Critics admit that traditional humanitarianism may never have been as politically pure as its ideals suggested, but argue that it was at least not intentionally subordinated to political agendas. The debate continues within the field and among its observers as to whether and how humanitarianism can be brought into a relationship with political considerations. International criminal justice could learn from the experiences with more overt pol iticization in humanitarianism. Many of the criticisms that led humanitarianism to become more openly political have also been levied at international criminal justice. Like humanitarianism, international criminal justice works in conflict rather than on conflict; in other words, it does not address ‘root causes’ (unless impunity is considered to be a ‘root cause’).62 Another example of a charge levied at both fields is that of focusing on emergencies and events rather than on a baseline situation of extreme vulnerability.63 Finally, international criminal justice also risks fostering a delusion that Alex de Waal has observed with respect to humanitarian aid, namely, misleading Western governments and donating publics into ‘believing the fairy tale that . . . aid can solve profound political problems, when it cannot’.64 Some of the responses to these criticisms suggest that international criminal justice could be moving in a similar direction as the field of humanitarianism; for example, by presenting itself as part of Western governments’ integrated approach to armed conflicts abroad. In a piece presented to the Review Conference of the Rome Statute, Juan Méndez, Special Adviser to the ICC Prosecutor on Crime Prevention, conceptualized international criminal justice as one of the ‘tracks’ followed by ‘the international community’ when it pursues ‘comprehensive solutions’, complementing the political, security and humanitarian ‘tracks’.65 While he emphasized the valuable contributions that ICC 60 See Rieff, A Bed (n 41) 315–18; Fox, ‘New Humanitarianism’ (n 7) 279 (illustrating the point with a quote from a 1999 discussion paper of the European Commission’s Humanitarian Office, ‘From a rights perspective, access to victims of [a] humanitarian crisis is not an end in itself, and will therefore not be pursued at any cost. Access will be sought if it is the most effective way to contribute to the human rights situation’). The newness is easily exaggerated: Alex de Waal gives an example of Henry Kissinger declaring already in the 1970s that ‘disaster relief is becoming increasingly a major instrument of our foreign policy’ (De Waal, Famine Crimes (n 42) 67). 61 Rieff, A Bed (n 41). 62 For a challenge to the dominant assumption that it is necessary or possible to identify ‘root causes’ of conflict, see Susan Woodward, ‘Do the Root Causes of Civil War Matter? On Using Knowledge to Improve Peacebuilding Interventions’ (2007) 1(2) J of Intervention and Statebuilding 143. 63 For this criticism of humanitarianism, see Freddie Carver, ‘A “Call to Peacebuilding”: Rethinking Humanitarian and Development Activity in South Sudan’ (2017) 68 Humanitarian Exchange 7. 64 De Waal, Famine Crimes (n 42) 221. 65 Juan E. Méndez, ‘The Importance of Justice in Securing Peace’ (Review Conference of the Rome Statute, Kampala, Uganda, 31 May – 11 June 2010) ICC Doc RC/ST/PJ/INF.3 (30 May 2010) para 3 accessed 15 December 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Justice and Humanitarianism 733 involvement can make to peacebuilding, he also advised against the instrumentalization of justice.66 Similarly, in a text elaborating the idea of justice as one of several parallel peace-making ‘tracks’, Méndez and Jeremy Kelley quote Prosecutor Bensouda to the effect that ‘the ICC’s work must remain independent of other interests’, but add ‘yet in working towards its objective of criminal accountability, it still contributes to peace and security’.67 Their conclusion promotes international criminal justice as part of a broader agenda (the ICC ‘should not be regarded as an isolated legal institution but rather as part of a dynamic and multi-tracked peace-making process’),68 while at the same time resisting its instrumentalization (‘justice contributes to conflict prevention when it is pursued for its own sake’).69 This promotion of international criminal justice as valuable to another agenda is a way to harness other actors to the agenda of international criminal justice. Humanitarians’ experience with the coherence agenda reveals the attendant risk of simultaneously harnessing oneself to other actors’ agendas. Inherent in the coherence agenda is a contest for dominance: both humanitarians and politicians think they can use each other to enhance their own agenda. Commenting on the expansion of the humanitarian mandate into peacebuilding and humanitarians’ support for military intervention, Michael Barnett asks rhetorically: ‘Did these developments humanize the world of politics or did they politicize the world of humanitarianism?’70 For David Rieff the answer is clear: as soon as ‘humanitarianism is enlisted as part of the army of peace . . . its autonomous interests will count for less than those of the “mission” ’.71 With respect to ‘humanitarian intervention’ specifically, he concludes, ‘the point about humanitarian war is that invariably it is the logic of war, not the logic of humanitarian ism, that prevails. Time and time again . . . the soldiers have called the tune’.72 Just as humanitarianism has at times offered a thin veneer for militarism, ‘humanitarian militarism’,73 international criminal justice has in some situations also become the cloak of further militarization,74 or what we might call ‘justice militarism’. Similar questions of dominance over the agenda can be asked with respect to instances in which prosecutors of international criminal courts have collaborated with political leaders. The Ugandan government’s referral of the situation in northern 66 ibid (‘[f]or justice to have an impact, the most important condition is that justice follows its own rules, without interference and without being subject to political considerations. Justice contributes to peace and prevention when it is not conceived as an instrument of either and on condition that it is pursued for its own sake’ para 26). 67 Juan E. Méndez and Jeremy Kelley, ‘Peace Making, Justice and the ICC’ in Christian de Vos, Sara Kendall, and Carsten Stahn (eds), Contested Justice: The Politics and Practice of International Criminal Court Interventions (CUP 2015) 479, 494. 68 ibid 495. 69 ibid 494. 70 Barnett, Empire (n 5) 5. 71 Rieff, A Bed (n 41) 286. 72 ibid 289. 73 David Chandler, ‘The Road to Military Humanitarianism: How the Human Rights NGOs Shaped a New Humanitarian Agenda’ (2001) 23(3) Human Rights Q 678, 698 (‘Humanitarian militarism, widely advocated during the 1999 Kosovo war, would have been an oxymoron before the 1990s; today it has become a tautology’). 74 Branch, ‘Neither Liberal nor Peaceful’ (n 45) 132.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

734 Sara Kendall and Sarah MH Nouwen Uganda to the ICC was a ‘marriage of convenience’ between then ICC Prosecutor Ocampo and Ugandan President Museveni in which each partner believed they exercised ultimate control.75 Thus far the relationship has been one of accommodation; Museveni supported the ICC in its cases against the LRA; the Office of the Prosecutor has respected Museveni’s red lines around the Uganda People’s Defence Forces and others protected by the Ugandan President. David Bosco has argued that the ICC Prosecutor’s interaction with the world’s major powers has equally resulted in ‘mutual accommodation’.76 Yet in other areas the ICC seems to have lost the contest for domin ance. In Libya, it obtained support as long as it was seen as instrumental in Westernmandated regime change; support diminished once that regime change had taken place. This presentation of international criminal justice and humanitarianism as d ependent on great powers risks obscuring the power wielded in the name of international criminal justice and humanitarianism themselves.77 Ethnographic and historical works have explored how humanitarianism transforms compassionate sentiments into political forces and governs vulnerable populations. To claim that humanitarianism governs is not to condemn it or to question its animating sentiments, but rather to observe that when sentiment is transformed into practice, it also takes on relationships of power, ranging from the interpersonal to the geopolitical. Providing assistance requires determining what form it should take and who should receive it. In this sense humanitarianism engages in classifying and managing its beneficiaries.78 Fassin uses the term ‘humanitarian government’ to describe ‘the set of procedures established and actions conducted in order to manage, regulate, and support the existence of human beings’.79 International criminal justice also governs: it determines what conduct gets pros ecuted as ‘the most serious crimes of concern to the international community as a whole’, which people are held to account, and in the case of the ICC, which victims can participate in court proceedings and which victims receive reparations. In both humani tarianism and international criminal justice, the recognition that actors in these fields exercise power raises the question of in whose name they can claim to govern and how they can be held to account for their exercise of that power. 75 Sarah M. H. Nouwen, Complementarity in the Line of Fire (CUP 2013) 116–20 (hereafter Nouwen, Complementarity in the Line of Fire). 76 David L. Bosco, Rough Justice: The International Criminal Court in a World of Power Politics (OUP 2014) (hereafter Bosco, Rough Justice). 77 See also Barnett, Empire (n 5) 33 (‘humanitarian organizations tend to be more sensitive to the power that others have over them than they are to the power that they have over others’); David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton UP 2004) xxiv–xxv (hereafter Kennedy, The Dark Sides of Virtue), (‘[t]oo often, we have become rulers in flight from rulership. The pragmatic expertise we have developed seems to take us ever further from the responsible exercise of power’). For the power wielded by humanitarianism, see Barnett and Weiss, Brief History (n 32) 9. 78 Miriam Ticktin, Casualties of Care: Immigrants and the Politics of Humanitarianism in France (University of California Press 2011); Ilana Feldman and Miriam Ticktin, ‘Government and Humanity’ in Ilana Feldman and Miriam Ticktin (eds), In the Name of Humanity: The Government of Threat and Care (Duke UP 2010). 79 Fassin, Humanitarian Reason (n 2) 1.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Justice and Humanitarianism 735

B. Accountability to Constituencies Humanitarianism and international criminal justice address many of the same constituencies—groups of people or entities with shared interests or political desires— on whose behalf or for whom they work, whether rhetorically or in practice. While the figures of ‘the victim’ and of ‘humanity’ have substantial symbolic and rhetorical value for international criminal justice as well as humanitarianism, in practice both fields are strongly oriented towards states, donors, and their own institutions. Humanitarianism would have no clear objective were it not for the victims of armed conflict, famine, and natural disasters in need of assistance. Proponents of international criminal justice have claimed that victims form the raison d’être of their work.80 In humanitarianism, the victim is the recipient of aid; in international criminal justice, the beneficiary of a criminal justice process. In both fields, the figure of the victim plays a key justificatory role.81 The more metaphysical concept of ‘humanity’ plays a similar role, with both inter national criminal justice and humanitarian aid delivered in its name. The confrontation with suffering, whether as a result of armed conflict or natural disasters, raises uncomfortable questions about the relationship between the observer and those suffering: to what extent is there a shared humanity if there is so much inequality in the distribution of this very evident suffering? Humanitarianism and international criminal justice are both responses to that questioning. Humanitarian relief has had its greatest impetus when there was most reason to doubt the bonds that are supposed to unite humanity.82 The image of Alan Kurdi on Turkey’s coastline prompted a surge in donations to humanitarian organizations precisely because this young child’s body represented a ‘humanity washed ashore’.83 International criminal justice has also received its greatest support, concretely or rhetorically, when the existence of an international community representing humanity was in doubt. The international criminal tribunals for the former Yugoslavia and Rwanda were championed by state actors who did not act decisively while hundreds of thousands of people were being slaughtered.

80 See for example ICC prosecutor Bensouda: ‘The sole raison d’être of the ICC’s activities in Côte d’Ivoire is the victims and the justice they deserve’. Office of the Prosecutor, ‘Statement to the Press by the Prosecutor of the International Criminal Court’ (Press Release, Abidjan, Côte d’Ivoire, 20 July 2013) accessed 15 December 2018. 81 For the victim as justification of the field of international criminal justice, see generally Kendall and Nouwen, ‘Representational Practices’ (n 28). 82 Barnett, Empire (n 5) 239. 83 For the surge in donations, see Patrick Kingsley, ‘The Death of Alan Kurdi: One Year On, Compassion Towards Refugees Fades’ (Guardian, 2 September 2016) accessed 15 December 2018. For a photograph of a sand sculpture of the image of Alan Kurdi’s body by the artist Sudarsan Pattnaik, with the text ‘Humanity washed ashore: shame, shame, shame’, see Joel Gunter, ‘Alan Kurdi: Why One Picture Cut Through’ (BBC News, 4 September 2015) accessed 15 December 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

736 Sara Kendall and Sarah MH Nouwen This rallying around humanitarianism or international criminal justice by ‘the international community’ at ‘the moment that its humanity is most suspect’84 can be explained by the fact that both fields foster the idea of a shared humanity. As Fassin argues, humanitarianism summons a ‘global moral community’ to bridge difference and produce a sense of solidarity despite extreme inequalities, ‘however ephemeral this awareness is, and whatever limited impact this necessity has’.85 International criminal justice is carried out in the name of a humanity that may not have been able to prevent the crimes, but that unites in its condemnation.86 Rather than a raison d’être or founding constituency, the concept of humanity thus operates largely as an aspiration of both fields. The victim and humanity serve as key rhetorical and aspirational constituencies, yet in practice the state remains a central figure for both fields. At first sight the role of the state in which the intervention takes place may seem marginal: both humanitarianism and international criminal justice operate in situations in which the state is considered either unwilling to or incapable of providing relief or criminal accountability. Instead of the state, non-governmental organizations provide food, medical care, and emergency housing; instead of the state, an international criminal court holds alleged perpetrators to account. Some commentators have noted how such external interventions may unintentionally reinforce neoliberal projects to cut public spending and to outsource traditional state functions to third parties, particularly when undertaken in the Global South.87 However, while their activities may encroach upon state responsibilities, their externally oriented public statements are often critical of incumbent governments,88 and as they seek to transcend sovereignty, humanitarianism and international criminal justice can also shore up sovereignty. Both fields often depend on state support; without it they

84 Barnett, Empire (n 5) 15. 85 Fassin, Humanitarian Reason (n 2) xii. 86 Luigi Corrias and Geoff Gordon, ‘Judging in the Name of Humanity: International Criminal Tribunals and the Representation of a Global Public’ (2015) 13(1) J of Intl Crim Justice 97 (‘in representing humanity as a whole, international criminal tribunals engage in a constitutive act by which they embody and thereby establish that which they purport to represent’); Martti Koskenniemi, ‘Between Impunity and Show Trials’ (2002) 6 Max Planck YB of United Nations Law 1, 11 (‘[w]hen trials are conducted by a foreign prosecutor, and before foreign judges, no moral community is being affirmed beyond the elusive and self-congratulatory international community’). 87 See Barnett and Weiss, Brief History (n 32) 17 (‘[s]ome suggest that the when, where and why of humanitarian action can be reduced to economic imperatives. In the global South, a stripped-down state pursuing structural adjustment programs increasingly is obliged to call on humanitarian organizations to provide basic social services. At such moments NGOs are performing statelike functions and might be characterised as “parastatal”. Aid agencies, in short, are becoming welfare workers as the neoliberal state outsources its basic welfare functions while focusing on the needs of the private sector’). Fiona Terry warns: ‘If aid organizations pursue conflict resolution and peace-building activities, they are likely not only to increase the negative consequences of humanitarian action, but to further exonerate states of their responsibilities in these realms’. Fiona Terry, Condemned to Repeat?: The Paradox of Humanitarian Action (Cornell UP 2002) 245. See also De Waal, Famine Crimes (n 42). 88 For humanitarianism, see Christopher Clapham, ‘Rwanda: The Perils of Peacemaking’ (1998) 35(2) J of Peace Research 193, 194–5.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Justice and Humanitarianism 737 have difficulties in accessing and operating effectively in a state’s territory.89 When they do attempt to operate in an unsupportive state, or when they want states to assist in facilitating their work, their dependence may lead to sovereign concessions: deference to the state in implementing the humanitarian or international criminal justice mandate. Accordingly, although states have managed to outsource some responsibilities to external actors in exchange for rent—what Jean-François Bayart describes as ‘extraversion’90—they have also succeeded in wielding varying degrees of control over the parameters of these interventions. In Uganda, the ICC’s intervention was not seen as an encroachment upon state sovereignty, but rather as an enhancement of it: the Court’s pursuit of the LRA helped transform a domestic enemy into a global one, with ensuing military support for the Ugandan army.91 This argument of humanitarianism and inter national criminal justice potentially shoring up sovereignty can also apply to de facto sovereigns: non-governmental armed movements who have succeeded in controlling people on a certain territory.92 From the other side, humanitarianism and international criminal justice are shaped by a broader political economy of donor objectives. Donor states may have an interest in promoting themselves as active global philanthropists and leaders in peace and justice, as with Norway, Switzerland, and the Netherlands, or in maintaining geopolitical influence, as with the United States. In addition to these states drawn overwhelmingly from the Global North, other key actors include international organizations and non-governmental organizations. This assemblage of state and non-state actors, referred to by some commentators as ‘the Humanitarian Club’, controls much of the agenda and resources.93 Humanitarianism has grown into its own industry: as Stephen Hopgood writes, ‘now there is serious money, corporate firms, interested and powerful states, a hugely augmented network of United Nations and nongovernmental organizations, and the constant glare of global coverage’.94 This set of economic relations and their political implications bear upon humanitarian work in practice, reflecting donor priorities and 89 For example, ICTR witnesses’ visas were withheld by the Rwandan government. See Victor Peskin, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation (CUP 2008) 2. 90 Jean-François Bayart, The State in Africa: The Politics of the Belly (Longman 1993) 21–4; JeanFrançois Bayart, ‘Africa in the World: A History of Extraversion’ (2000) 99(395) African Affairs 217. 91 Nouwen and Werner, ‘Doing Justice’ (n 15); Nouwen, Complementarity in the Line of Fire (n 75) ch 3. 92 For humanitarian aid, see Mary B. Anderson, Do No Harm: How Aid Can Support Peace—or War (Lynne Rienner Publishers 1999) 50 (‘aid agencies, operating in areas controlled by factions, must often make “legitimate” payments to those in power in the form of taxes or fees for services . . . . When they control a given geographic area, commanders have the right to expect that external aid agencies will comply with the rules and restrictions they impose in their area of command’). 93 Michael Barnett and Peter Walker, ‘Regime Change for Humanitarian Aid: How to Make Relief More Accountable’ (2015) 94(4) Foreign Affairs 130. 94 Stephen Hopgood, ‘Saying “No” to Wal-Mart?: Money and Morality in Professional Humanitarianism’ in Barnett and Weiss (eds) Humanitarianism in Question: Politics, Power, Ethics (Cornell UP 2008) 98. See also Craig Calhoun, ‘The Imperative to Reduce Suffering’ in Barnett and Weiss (eds) Humanitarianism in Question: Politics, Power, Ethics (Cornell UP 2008) 73, 89; De Waal, Famine Crimes (n 42).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

738 Sara Kendall and Sarah MH Nouwen protecting strategic interests. ‘No matter how independent humanitarian organizations try to be’, David Rieff observes, ‘both institutional and funding realities often make them effectively subcontractors of donor governments and the United Nations system’.95 Whereas reflexive humanitarian scholarship and practice have recognized donor interests, this is less common in the younger field of international criminal justice, where the broader political economy of criminal accountability is seldom discussed. Yet donor concerns course through the accountability project as well, influencing not only institutional budgets and resources but also the nature of activities enabled through state-designated funding.96 State and donor interests are sometimes in tension with the core normative aim of international criminal justice, accountability, and the increasingly significant role of victim constituencies. Acknowledging these tensions and political dimensions can aid in understanding the contours of the field, including its presumptions and limits. As humanitarian practice has shown, relationships with states—as both sites of intervention and as donors—have shaped the nature and breadth of assistance. Characterizing debates within the humani tarian field at the turn of the millennium, Devon Curtis argued that ‘[h]umanitarian agencies should be more politically conscious of their role. They must decide whether they want to be co-opted by the state, act as a substitute for it where there is a vacuum, or contest its assumptions’.97 Following on this reflexive turn in humanitarianism, inter national criminal justice could reflect more critically upon the constituencies that enable it—materially rather than symbolically—and how they influence the field’s work in practice. In enabling humanitarians and international criminal justice officials to carry out their work, states and other donors wield authority through their ability to withdraw access or resources. Other groups have less de facto authority to hold these actors to account even as they arguably form their most important constituencies from an ethical perspective. Critical accounts of the humanitarian field observe how responders ‘spend much of their time reporting back to their headquarters and their donors’ while recipients ‘lament in one survey after another that relief agencies remain disconnected from their needs’.98 In Alain Finkielkraut’s words, the global doctor ‘is too busy feeding rice to hungry mouths to listen to what those mouths are saying’.99

95 Rieff, A Bed (n 41) 118. See also De Waal, Famine Crimes (n 42). 96 At the ICC for example, earmarked funds have been directed toward witness relocation in Kenya, contributions to the costs of the proceedings in the Security Council-referred Darfur situation, and Trust Fund assistance for victims of sexual and gender-based violence. See Sara Kendall, ‘Commodifying Global Justice: Economies of Accountability at the International Criminal Court’ (2015) 13(1) J of Intl Crim Justice 113. David Bosco has argued that the Security Council, by referring situations to the Court but not paying for the proceedings, influences how and where the ICC’s limited budget is spent, and thus how criminal justice is delivered. Bosco, Rough Justice (n 76) 113. 97 Curtis, Politics of Humanitarian Aid (n 30) 17. 98 Barnett and Weiss, Brief History (n 32) 47. 99 Alain Finkielkraut, In the Name of Humanity: Reflections on the Twentieth Century (Judith Friedlander (tr), Columbia UP 2000) 89.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Justice and Humanitarianism 739 Despite victims serving as the primary justification for humanitarianism, they have traditionally had few avenues for holding their purported benefactors to account. As Barnett and Weiss observe: Most relief agencies now sheepishly confess that they have largely proceeded without much input from those who are supposed to benefit from their concern. The reasons for this omission are many. Aid workers assume that the vulnerability of recipients owes to their general lack of power. There is a sense that aid workers know more and know better, caused by the presumption that beneficiaries’ poverty, situ ation, illiteracy, and provincialism make them incapable of making informed decisions.100

The distance between aid worker and beneficiary has been increased by the field’s push towards professionalization, which favours ‘technical’ and generalizable knowledge over knowledge of local communities. Lisa Smirl has described the ‘auxiliary space’ of humanitarianism, characterized by fluidity and distance from the local community, where: [R]apacious demand from headquarters for field reports, best practices, lessons learnt and situation reports encourages a spectacle of development as constructed from within the humanitarian enclave [and] local challenges to the humanitarian project . . . are interpreted through global frames of reference.101

There are clear parallels with international criminal justice: populations who are often politically and economically vulnerable are addressed by a professional class of relatively empowered legal technocrats and support staff, whose juridical framework further compounds the challenge of being responsive and accountable to this constituency. Institutional statutes divide conflict-affected populations according to temporal and subject-matter jurisdictions.102 Furthermore, the division between sites of production (often emanating from The Hague) and sites of reception (often in the Global South) enforces power differentials between the agents of international criminal justice and their presumed beneficiaries.103 Although courts and tribunals have developed outreach practices in order to engage directly with conflict-affected communities, with efforts to adapt strategies and operations based upon community interactions, these practices tend toward information provision rather than offering an avenue for revisiting

100 Barnett and Weiss, Brief History (n 32) 47. 101 Smirl, Spaces of Aid (n 12) 206–7. 102 For how this bears out across victim populations, see Kendall and Nouwen, ‘Representational Practices’ (n 28). 103 On power differentials between The Hague and what is referred to as ‘the field’, see Sara Kendall, ‘Critical Orientations: A Critique of International Criminal Court Practice’ in Christine Schwöbel (ed), Critical Approaches to International Criminal Law (Routledge 2014) 54 (hereafter Kendall, ‘Critical Orientations’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

740 Sara Kendall and Sarah MH Nouwen the core assumptions upon which the institution works.104 As with humanitarianism, the institutional centre is treated as the site of authority, whose knowledge and law is applied in ‘the field’, a place that de facto serves as a peripheral space to be developed. Through decades of practice, humanitarianism has acquired an awareness that organ izations should be more accountable to recipient populations.105 The field has responded through changing descriptions of their conduct: the use of terms such as ‘participation’ and ‘partnership’ have become more commonplace, much like ‘local ownership’ appeared in the discourse of international criminal justice. Yet these terms also reflect an interest in altering how humanitarians are perceived, revealing more concerns about ‘the distance between themselves and local populations than about the provision of remedies for the maladies’.106 To the extent that the field of humanitarianism has introduced programmes to enhance accountability,107 many are still primarily oriented towards donors rather than aid recipients.108 While accountability towards beneficiaries continues to be a weakness of humanitar ianism, the issue is even more pronounced in the field of international criminal justice because the intended beneficiaries form a complex group comprised of both immediately affected and remote populations. International criminal justice is carried out not only in the interest of specific communities in which crimes were committed, but also in the interest of communities across the world: in principle, international criminal proceedings should send a message that such conduct violates international norms and could be prosecuted. Thus when populations immediately affected by ICC interventions strongly oppose such interventions, the ICC can still defend the interventions on the ground of the presumed benefit for remote and future populations. This plurality of constituencies makes it challenging for both international criminal justice and humanitarianism to satisfy all of them. When they try, it can result in different messages to different constituencies. To donors and other foreign supporters, both fields are promoted through their promises, such as their contributions to peace, justice, the rule of law, and relieving suffering. Both humanitarianism and international crim inal justice are presented to this audience as essential responses in situations where 104 Gacheke Gachihi of the Mathare Social Justice Centre in Kenya observed with respect to his experience with ICC outreach in Kenya: ‘If you critique the ICC for its limitations, then the response is: you are not understanding the ICC’. ‘Rethinking Transitional Justice from African Perspectives: Reflections from African Activists’ (Roundtable, University of Cambridge, 29 May 2018). 105 Barnett and Weiss, Brief History (n 32) 47; Barnett, Empire (n 5) 36–37, 214; Janice Gross Stein, ‘Humanitarian Organizations: Accountable—Why, to Whom, for What, and How?’ in Barnett and Weiss (eds), Humanitarianism in Question: Politics, Power, Ethics (Cornell UP 2008) 124; Hugo Slim, ‘By What Authority? The Legitimacy and Accountability of Non-governmental Organisations’ (The International Council on Human Rights Policy, International Meeting on Global Trends and Human Rights—Before and after September 11, Geneva, 10–12 January 2002) accessed 15 December 2018. 106 Barnett, Empire (n 5) 219. 107 See for instance ALNAP, the Active Learning Network for Accountability and Performance in Humanitarian Action accessed 15 December 2018. 108 Barnett, Empire (n 5) 217.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Justice and Humanitarianism 741 civilians are suffering from violence. Meanwhile, in ‘the field’, representatives of humanitarian and judicial institutions often emphasize how local expectations need to be ‘managed’ so that they do not expect humanitarian or international criminal justice interventions to provide definitive solutions to complex problems. Both humanitarian ism and international criminal justice are often promoted on the basis of a consequentialist rationale, but when they fail to deliver, they are defended on deontological grounds, as goods in and of themselves.109 The most influential constituency in both humanitarianism and international crim inal justice, however, is arguably these fields’ own institutional forms. Observers of humanitarianism have noted how some organizations believe that promoting themselves amounts to promoting the cause: humanitarian organizations were originally developed as a means toward a broader end, but they have since become their own end.110 As a consequence, endogenous priorities determine how, what, and where humanitarian goods are delivered. Scholars have observed similar tendencies in the field of international criminal justice. Writing on the ICC, Frédéric Mégret concludes that it would seem ‘the Court’s ultimate constituency is nothing but itself ’111—internal institutional demands and logics are both the most proximate and the most pressing. Taken together, international criminal justice and humanitarianism bear substantial similarities when it comes to identifying their relationship to politics, exercising (and disavowing) their own power, and in how they engage their varied constituencies. In certain respects, the parallels between these two fields are so strong that international criminal justice can sometimes appear as a form of humanitarianism.

IV. International Criminal Justice as a Form of Humanitarianism When international criminal justice engages in practices that are informed by logics, ethics, or sentiments that seek to relieve suffering, it can be considered a form of humanitarianism. This is most evident when international criminal institutions engage in relief provision. Even when international criminal courts and tribunals solely exercise their punitive mandate, however, ‘new humanitarians’ may consider international criminal justice to form part of the humanitarian enterprise through promoting justice 109 For international criminal justice, see Sarah M.H. Nouwen, ‘Justifying Justice’ in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (CUP 2012) 327, 342–3 (hereafter Nouwen, ‘Justifying Justice’). 110 De Waal, Famine Crimes (n 42) 66; Barnett, Empire (n 5) 43; Rieff, A Bed (n 41) 85, 213; Kennedy, The Dark Sides of Virtue (n 77) xx–xxi. 111 See Frédéric Mégret, ‘In Whose Name? The ICC and the Search for Constituency’ in Christian de Vos, Sara Kendall, and Carsten Stahn (eds), Contested Justice: The Politics and Practice of International Criminal Court Interventions (CUP 2015) 23, 45.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

742 Sara Kendall and Sarah MH Nouwen and addressing root causes of suffering.112 According to this reasoning, if human rights lawyers and international criminal lawyers adopt a legal career to alleviate suffering, they could be considered legal humanitarians.113

A. Humanitarianism at the ICC With the ICC’s Rome Statute providing for a Trust Fund for Victims (TFV),114 inter national criminal justice entered the field of relief provision. The TFV differentiates between two mandates: to provide reparations following convictions and to provide assistance to conflict-affected individuals during court proceedings.115 Although the distinction between assistance and reparations may not always be clear to the recipient,116 the latter requires establishing a clear link to the specific individual who caused the wrong through a successful prosecution that is not overturned on appeal. Whereas the reparation mandate follows the logic of victims’ rights, the assistance mandate is based on conceptions of need, and thus forms part of a broader humanitarian continuum—a constellation of practices intended to reduce harm and alleviate suffering.117 To carry out its assistance mandate, the TFV supports work that is often considered classical humanitarianism, such as medical assistance for conflict-related injuries and material support. It frequently does so through collaborating with humanitarian organ izations already operating in countries where the Court has opened an investigation, entering into partnerships with international NGOs as well as with community-based organizations. According to one employee, the TFV is ‘like a donor’,118 providing funding to organizations that carry out work in line with the Court’s juridical mandate. Some

112 Carole Dubrulle, ‘Humanitarianism and the International Criminal Justice System: Abandoning Neutrality and Impartiality?’ in Action Against Hunger, The Geopolitics of Hunger, 2000–2001: Hunger and Power (Lynne Rienner 2001) 215, 221. 113 Nouwen, ‘Justifying Justice’ (n 109) 329. For a broader discussion of ‘legal humanitarianism’ at the ICC, see Sara Kendall, ‘Beyond the Restorative Turn: The Limits of Legal Humanitarianism’ in Christian de Vos, Sara Kendall, and Carsten Stahn (eds), Contested Justice: The Politics and Practice of International Criminal Court Interventions (CUP 2015) 352 (hereafter Kendall, ‘Beyond the Restorative Turn’). 114 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, UN Doc A/ CONF.183/9 (in force 1 July 2002) art 79. 115 See The Trust Fund for Victims, ‘Two Mandates’ accessed 15 December 2018. Legally, the dual mandate is constructed upon the fact that Rule 98 of the Court’s Rules of Procedure and Evidence differentiates between ‘awards for repar ations . . . made directly against a convicted person’ and ‘[o]ther resources of the Trust Fund [that] may be used for the benefit of victims’. 116 Peter Dixon, ‘Reparations and the Politics of Recognition’ in Christian de Vos, Sara Kendall, and Carsten Stahn (eds), Contested Justice: The Politics and Practice of International Criminal Court Interventions (CUP 2015) 326, 331 (hereafter Dixon, ‘Reparations and the Politics of Recognition’). 117 Kendall, ‘Beyond the Restorative Turn’ (n 113) 352, 361. 118 Sara Kendall’s interview with an employee of the TFV, as cited in Kendall, ‘Beyond the Restorative Turn’ (n 113) 370.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Justice and Humanitarianism 743 partners work in the direct provision of humanitarian relief as well, blurring the boundaries of where the ICC’s assistance ends and other relief mandates begin. These activities of the TFV face analogous challenges as are found in other forms of humanitarian aid provision. Fassin’s account of ‘humanitarian government’ as proced ures directed toward managing populations applies as well to TFV selection practices. Much like humanitarian organizations, the fund must draw distinctions between cases along a spectrum of need: In the DRC and Uganda, the number of victims in need of some form of physical rehabilitation assistance remains higher than that which the TFV-supported projects have thus far been capable of supporting. Because of this disparity, the TFV, in partnership with community stakeholders, prioritizes those cases presenting acute medical risks during the beneficiary selection process, thus permitting it to meet the strategic goal of being responsive in particular to ‘urgent’ medical needs.119

In his work on MSF, anthropologist Peter Redfield describes this establishment of treatment priorities as the practice of triage: ‘In the broadest sense, triage represents a system of selection based on the facts of suffering themselves’.120 This prioritization is accompanied by the attendant responsibility of having chosen some lives over others in relation to selection criteria. Redfield recounts how an MSF administrator acknowledged her organization’s contribution to ‘inequities’ by choosing which village to work in, and by extension, where they would not engage. Other examples of triage reveal conflicts between established treatment priorities and the desires of recipient communities, as when a famine-stricken community in northern Uganda contested MSF’s prioritization of children and pregnant women and redistributed food supplies to community elders.121 Triage rests on value judgments, and the punitive legal values of international crim inal justice shape that field’s humanitarian priorities. When international criminal just ice engages in emergency relief, the ethical calculations that actors must make are refracted through juridical forms, resulting in a humanitarianism that is necessarily more selective and targeted than a humanitarianism purely based on needs. The key juridical form shaping the TFV’s work is provided by the jurisdictional parameters of the ICC’s proceedings: it can carry out assistance work only within the geographic and temporal boundaries of the ‘situation’ that is the subject of an ICC investigation, and only if there is a link to a crime over which the Court has jurisdiction. It can provide 119 The Trust Fund for Victims, ‘Annual Report 2016’ (TFV, ICC, 2016) 19 accessed 15 December 2018. 120 Peter Redfield, Life in Crisis: The Ethical Journey of Doctors Without Borders (University of California Press 2013) 169 (hereafter Redfield, Life in Crisis). 121 ibid 172, 174, drawing on the empirical work of Rony Brauman, ‘Controversies within Health and Human Rights’ (Carnegie Council for Ethics in International Affairs, 14 February 2001) accessed 15 December 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

744 Sara Kendall and Sarah MH Nouwen assistance in northern Uganda, for example, but not in South Sudan; with respect to harm suffered after the beginning of the Court’s temporal jurisdiction in a situation (e.g., 1 July 2002), but not with respect to harm suffered beforehand (e.g., 30 June 2002); addressing harm if caused by genocide, crimes against humanity, war crimes, or the crime of aggression, but not if resulting from violence that cannot be classified in these terms. The TFV’s practice of targeting recipients in relation to specific crimes, driven by donors’ earmarking of funding, could actually do harm.122 As Peter Dixon has observed in the context of reparations, focusing on victims of sexual violence can lead to further stigmatization.123 Relief provided by international criminal justice could thus risk dividing communities based upon categories that are more significant to the field of inter national criminal justice than to those communities.

B. Legal Humanitarians At first sight, the humanitarian and the international criminal lawyer may appear to be cut from different professional moulds. The former is stereotypically portrayed as a compassionate volunteer working in dust and chaos. The latter often evokes the image of a robed professional in the highly regulated space of a courtroom. While the differences are not as stark—aid workers are increasingly specialized professionals and receive commensurate salaries—the dichotomy fails to reflect one shared objective: the orienting ideal of humanity. Many prominent figures in both fields have been inspired by an ideal of ‘humanity’,124 and so have many individuals who followed them in their career paths.125 At the same time, as Liisa Malkki has observed in her ethnographic research on humanitarians, many are driven by an attempt to transcend their national identities and situated lives in order to be part of something larger, a ‘desire for “the world outside” ’,126 a desire that might also inspire some international criminal lawyers. Either way, with 122 For the practice, see Trust Fund for Victims, ‘Financial Information’ accessed 15 December 2018 (‘[e]xamples of earmarked funding have included support for victims of sexual and gender-based violence (SGBV), funding for reparations, and support for former child-soldiers . . . . In the year 2014 alone, €2,178,600 euros has been made available for SGBV programmes under the TFV assistance mandate in the Democratic Republic of Congo, northern Uganda and the Central African Republic’). 123 Dixon, ‘Reparations and the Politics of Recognition’ (n 116) 341, drawing on OHCHR, ‘Report of the Panel on Remedies and Reparations for Victims of Sexual Violence in the Democratic Republic of Congo to the High Commissioner for Human Rights’ (March 2011) accessed 15 December 2018. 124 For international criminal justice, see for instance, Theodor Meron, The Humanization of International Law (Martinus Nijhoff 2006). On Antonio Cassese, see Tamás Hoffmann, ‘The Gentle Humanizer of Humanitarian Law—Antonio Cassese and the Creation of the Customary Law of NonInternational Armed Conflicts’ in Carsten Stahn and Larissa van den Herik (eds), Future Perspectives on International Criminal Justice (TMC Asser Press 2010) 58. 125 Nouwen, ‘Justifying Justice’ (n 109) 329–30. 126 Liisa H. Malkki, The Need to Help: The Domestic Arts of International Humanitarianism (Duke UP 2015) 8 (hereafter Malkki, The Need to Help).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Justice and Humanitarianism 745 humanitarianism often treated ‘as a symbol of what is good about the world, as the world’s superego, as suggestive of the possibility of a more humane world’,127 humanitar ians, including legal humanitarians, are involved in a profession that deals in virtue.128 Yet international criminal lawyers and humanitarians not only share this currency of virtue; they also share tragedy. Alex de Waal has argued how acting ‘cruelly’ is intrinsic to the humanitarian predicament, hence the ‘humanitarians’ tragedy’.129 In addition to the cruelty committed by individual humanitarians due to the necessity of triage, he gives examples of cruelty committed by institutions, ‘feeding dreams of an alternative but unattainable reality’, ‘compromising clearly held principles’, and ‘insisting on a normative standard that cannot in practice be realized’.130 International criminal justice has at times done the same131—not because of bad intent, but as a result of ‘a mismatch between a universal idealism and a reality of horrific constraint’.132 In humanitarianism, the experience and confrontation with these cruelties have led to intense debate and self-reflection, including on the question of whether humanitar ianism is sometimes directed more towards addressing the anxieties of interveners than the suffering of putative beneficiaries. In her ethnographic account, Malkki observed the ‘neediness’ that drove humanitarians’ work, referring not to the need for help but rather a need to help.133 Others have explicitly reflected on how humanitarianism works as a solution for those suffering from the ‘spectator’s dilemma’, confronted by those exposed to the suffering of others and caught ‘between the egoistic ideal of self-realization and an altruistic commitment to causes which enables one to “realize oneself ” through action’.134 Does a career in international criminal justice perhaps offer similar relief?

V. Conclusion To consider how international criminal justice might benefit from reflexive developments in the field of humanitarianism, this chapter has explored several relationships between the fields, ranging from their operational and foundational differences to their commonalities, and concluding with international criminal law’s practices of 127 Barnett and Weiss, Brief History (n 32) 6. 128 See Rieff, A Bed (n 41) 96. See also Kennedy, The Dark Sides of Virtue (n 77). 129 Alex de Waal, ‘The Humanitarians’ Tragedy: On the Escapable and Inescapable Cruelties in the Humanitarian Predicament’ (Keynote Address to World Conference on Humanitarian Studies, Groningen, The Netherlands, 4 February 2009) (hereafter De Waal, Keynote Address); Alex de Waal, ‘The Humanitarians’ Tragedy: Escapable and Inescapable Cruelties’ (2010) 34 Disasters 130. 130 ibid. 131 For further development of this argument, see Nouwen, ‘Justifying Justice’ (n 109). 132 De Waal, Keynote Address (n 129) 1. 133 Malkki, The Need to Help (n 126). See also Barnett, Empire (n 5) 223 (‘humanitarianism is first and foremost about ministering to the emotional and spiritual needs of the giver’). 134 Fassin, Humanitarian Reason (n 2) 9 citing Luc Boltanski, Distant Suffering: Morality, Media and Politics (first French edn 1993, CUP 1999) xiv, 179–82.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

746 Sara Kendall and Sarah MH Nouwen redress as forms of humanitarianism. There have already been attempts to incorporate humanitarian principles in some of these practices, such as the principle ‘do no harm’, which the ICC’s Trust Fund for Victims contends should be considered a ‘dynamic and positive obligation in all Court-initiated interactions with victims’.135 This is one example of the field of international criminal justice acknowledging what has long been recognized within the humanitarian literature: that intervening into a fragile setting may produce unintended effects, such as creating hierarchies among beneficiaries, privileging the safety of those intervening over those receiving care, or entering into alliances that may compromise a mandate. The field of humanitarianism has been explicitly engaged in debates that are pertinent to the younger field of international criminal justice: debates about its relationship to the political; about the exercise of its own power and how to account for this to multiple constituencies; and about the relationship of its own work to related agendas such as peacebuilding and human rights. The fact that the field of humanitarianism has engaged more reflexively and for a longer time with some of the issues that currently face the field of international criminal justice is not only the product of a longer duration of practice. It is also due to humani tarianism’s closer proximity to the beneficiaries of its work. In responding to needs rather than crimes, humanitarians are often brought into a direct relationship with those who suffer. Confrontation with suffering poses uncomfortable questions to the direct witness about his or her own responsibility for that suffering, or his or her own responsibility to address it. In this way, humanitarianism can be both an expression of and an inspiration for a Levinasian ethics, in which ‘[t]he other disturbs, upsets and overwhelms the self-relation of the self with a moral obligation to respond’.136 In Levinasian ethics, as in the ideal of humanitarianism, the obligation to respond lies primarily in focusing on one’s own responsibility to serve others: ‘to provide for their concrete material needs for nourishment, clothing, health, shelter, and employment; to assuage their pains, anxieties, and fears; to respect their freedom and dignity; to care for the other’s requirements before protecting or catering to one’s own various social identities’.137 The limitations in one’s ability to fulfil these responsibilities raise difficult ethical questions, as when humanitarians are called upon to determine who will be treated and with what available resources. While there are no clear answers, the direct confrontation with the suffering of others has promoted self-reflection in the field of humanitarianism generally, and within certain organizations specifically, as with MSF’s support for ‘critical discussion and internal debate’ as part of its organizational culture.138 The field of international criminal justice shares some of the animating sentiments of the field of humanitarianism, though its underlying aim is to punish rather than 135 The Prosecutor v. Jean-Pierre Bemba Gombo (Observations Relevant to Reparations) ICC-01/0501/08-3457, (13 October 2016) (TFV before the Trial Chamber III, ICC) 9. 136 Richard A. Cohen, ‘Introduction: Humanism and Anti-humanism—Levinas, Cassirer, and Heidegger’ in Emmanuel Levinas, Humanism of the Other (Nidra Poller (tr), University of Illinois Press 2006) (hereafter Cohen, ‘Introduction’) xxvi, xxx. See also Jill Stauffer, Ethical Loneliness: The Injustice of Not Being Heard (Columbia UP 2015). 137 Cohen, ‘Introduction’ (n 136) xxxiv. 138 See Brauman, ‘Médecins Sans Frontières and the ICRC’ (n 29) 1535.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Justice and Humanitarianism 747 to repair, or indeed to repair through punishment. This suggests a less proximate relationship to the suffering victim, both philosophically and within institutional practice, enabling proponents to more readily bracket the question of their own moral relationship to those who have been wronged and to focus attention on the figure of the perpetrator. In Levinasian ethics, court-based ‘[j]ustice is, paradoxically, the limit of responsibility’:139 when court justice is done, the focus is not on one’s ethical duties toward the other, but on one’s rights to demand from and judge the other.140 Although this justice may be necessary, it cannot deny one’s pre-existing moral obligations toward the other, including the other who is being judged. In the field of international criminal justice, however, the focus on the accused has tended to supplant the question of the responsibility of additional ‘others’: those who produce the conditions that make suffering possible. Put differently, international criminal justice shifts the focus from the reciprocal relationship between the self and the one who suffers to an external relationship between an accused and victims. In forming part of the collectivity represented by the prosecutor and judge, as part of an abstract ‘international community’ in whose name justice is enacted, those confronted with suffering move from assessing their own direct relationships to suffering to a position above the accused and the victims. As a result of its narrowed focus on the alleged perpetrator of suffering—rather than on the suffering itself or the effects of institutional interventions upon those who suffer— international criminal justice has not inspired the same extensive critical self-reflection as the humanitarian field. Reflexive engagement alone will not resolve the challenges that international crim inal justice faces; the field of humanitarianism continues to struggle with its own.141 Yet fostering a culture of critical reflection and debate among proponents and practitioners could serve the future development of international criminal justice, as has been the case with decades of reflection upon humanitarian practice. To follow the imperative ‘do no harm’ requires first accepting that some degree of harm could be an outcome of an international criminal justice intervention, whether through producing unintended political consequences or by creating unrealistic hopes of redress among conflictaffected populations. By extension, it requires approaching the work of international criminal justice from a standpoint of modesty rather than certainty,142 and with a relentlessly critical ethos that addresses challenges as openly as accomplishments.143 139 Simon Critchley, The Ethics of Deconstruction: Derrida and Levinas (3rd edn, Edinburgh UP 2014) 231. 140 ibid 231–2. 141 Alex de Waal argues that ‘the humanitarian international appears to have an extraordinary capacity to absorb criticism, not reform itself, yet emerge strengthened’ (De Waal, Famine Crimes (n 42) xvi). 142 See, more elaborately, Sara Kendall and Sarah Nouwen, ‘Speaking of Legacy: Toward an Ethos of Modesty at the International Criminal Tribunal for Rwanda’ (2016) 110(2) American J of Intl L 212. 143 For some examples of critique as a practice of reading humanitarianism and international crim inal justice, see Didier Fassin, ‘Noli Me Tangere: The Moral Untouchability of Humanitarianism’ in Erica Bornstein and Peter Redfield (eds), Forces of Compassion: Humanitarianism Between Ethics and Politics (School for Advanced Research Press 2010) 35; Kendall, ‘Critical Orientations’ (n 103) 54–70; Redfield, Life in Crisis (n 120) 32–6.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Chapter 32

I n ter nationa l Cr imi na l L aw a n d Cu ltu r e Cheah W.L.*

I. Introduction This chapter explores international criminal law (ICL)’s encounter of cultural difference. ICL claims to apply universally applicable laws and champion universal interests. These universality claims come under challenge when ICL is implemented in varied contexts. While broad agreement exists over the general type of atrocities condemned by ICL, there continues to be disagreement or unfamiliarity about ICL’s conceptions of justice, its normative standards, as well as its underlying assumptions about human agency and responsibility.1 While ground-breaking research on ICL and culture has been published in recent years, there needs to be more research in this area.2 The overlooking or dismissal * My sincere thanks to the editors of this handbook for their very helpful comments. Thanks also to Eleni Chaitidou, Lynette Chua, Noelle Higgins, Swati Jhaveri, Anna Su, and Krystal Thompson, for their comments and insights. Parts of this chapter were presented at the 2018 ESIL Annual Conference (Manchester) and the 2018 TWAIL Conference (Singapore) where I benefited from comments received. This research was supported by the Singapore Ministry of Education Academic Research Fund Tier 1 (R-241-000-165-115). 1 Mark A Drumbl, ‘Collective Violence and Individual Punishment: The Criminality of Mass Atrocity’ (2005) 99 Northwestern University L Rev 602 (hereafter Drumbl, ‘Collective Violence’). 2 Many authors consider cultural factors when discussing factors that impact the workings of ICL actors and courts, such as Combs’ consideration of culture, among others, when analyzing ICL courts’ fact-finding abilities. Nancy A Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations in International Criminal Convictions (CUP 2010) (hereafter Combs, Fact-Finding Without Facts). Examples of scholarship focusing on culture and ICL include Tim Kelsall, Culture under CrossExamination: International Justice and the Special Court for Sierra Leone (CUP 2013) (hereafter Kelsall); Jessica Almqvist, ‘The Impact of Cultural Diversity on International Criminal Proceedings’ (2005) 4(4) J of Intl Crim Justice 745; Ida L Bostian, ‘Cultural Relativism in International War Crimes Prosecutions:

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Law and Culture 749 of cultural challenges undermines ICL’s operations, such as the trial’s fact-finding capabilities, and, more importantly, its legitimacy. As used in this chapter, the term ‘ICL court’ refers to courts with international institutional elements and staffed by international judges and personnel, as opposed to purely domestic courts prosecuting core international crimes. The law and culture problématique experienced by these ICL courts is not unique and is experienced in other legal fields. Judges in domestic criminal law trials may have to deal with cultural evidence when trial participants come from immigrant, indigenous, or minority groups.3 Nevertheless, as recognised by former ICTY prosecutor Carla Del Ponte, while domestic courts ‘occasionally’ contend with cultural difference, these challenges are ‘an everyday reality’ for ICL courts.4 Human rights law grapples with questions of universalism and cultural relativism when implementing human rights norms at the domestic level.5 The legitimacy stakes in ICL are however higher. ICL courts may deal with crimes affecting politically unstable societies, where the meaning of crimes and the guilt of defendants are contested. The scale and nature of atrocities results in close media and public attention.6 Against this high profile and unpredictable backdrop, ICL courts aim to make statements about the rule of law, fairness, and accountability.7 If an ICL court is perceived by the affected community as ignoring or misinterpreting cultural concepts, norms, or practices, this could undercut the court’s legitimacy. Indeed ICL’s legitimacy has been questioned of late, with some accusing the International Criminal Court (ICC) of Western imperialism and anti-African bias.8 It is ever more important for ICL courts to demonstrate cultural sensitivity. This chapter analyzes three sites where ICL encounters cultural difference: first, at the institutional level, where ICL courts interact with culturally-informed justice processes positioned as alternatives or supplements to ICL; second, at the normative level, where ICL actors draw on domestic legal cultures to construct and develop the ICL legal system; and third, at the ICL trial level, where trial participants with different cultural toolkits are brought together. At each of these sites, ICL exerts a marginalizing or exclusionary The International Criminal Tribunal for Rwanda’ (2005) 12 ILSA J of Intl & Comparative L. Writing in 2011, Raimondo has called for ‘more scholarly attention and further research’ on questions of culture and ICL. Fabián O Raimondo, ‘For Further Research on the Relationship between Cultural Diversity and International Criminal Law’ (2011) 11 Intl Crim L Rev 301. 3 Alison Dundes Renteln, The Cultural Defense (OUP 2004) (hereafter Renteln, Cultural Defense); Will Kymlicka, Claes Lernestedt, and Matt Matravers, Criminal Law and Cultural Diversity (OUP 2014); Marie-Claire Foblets and Alison Dundes Renteln, Multicultural Jurisprudence: Comparative Perspectives on the Cultural Defense (Hart Pub 2009) (hereafter Foblets and Renteln, Multicultural Jurisprudence). 4 Carla Del Ponte, ‘Investigation and Prosecution of Large-Scale Crimes at the International Level: The Experience of the ICTY’ (2006) 4 J of Intl Crim Justice 552. 5 Christoph Schreuer, ‘Regionalism v. Universalism’ (1995) 6 European J of Intl L 477. 6 Leigh Swigart, ‘Linguistic and Cultural Diversity in International Criminal Justice’ (2017) 48 McGeorge L Rev 198 (hereafter Swigart, ‘Linguistic and Cultural Diversity’). 7 For an account of ICL’s expressive and pedagogical aims, see Mirjan Damaška, ‘What Is the Point of International Criminal Justice?’ (2008) 83 Chicago-Kent L Rev 329. 8 Manisuli Ssenyonjo, ‘State Withdrawal Notifications from the Rome Statute of the International Criminal Court: South Africa, Burundi and the Gambia’ (2018) 29 Crim L Forum 76.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

750 Cheah W.L. effect on the culturally dissimilar, while constructing certain understandings of cultural difference. The chapter concludes by proposing that ICL needs to develop a more pluralistic approach that affords space for the serious and respectful consideration of other cultures.

II. International Criminal Law’s Encounter of Cultural Difference The ICL field has developed its own distinctiveness.9 It is committed to individual criminal guilt and punishment instead of more collective notions of responsibility.10 Its actors and institutions promote a certain conception of justice, one organized around the ‘liberal criminal trial’, the ‘iconic status of the courtroom’, and ‘the jailhouse’.11 ICL supporters also identify with a certain corpus of norms, principles, and ideals, such as the rights of the accused and fair trial guarantees, though there are viewpoint differences over specific rules or norms.12 Most importantly for the purposes of this chapter, ICL adopts a ‘universalizing register’.13 It claims to pursue a ‘global justice’ and act in the name of ‘humanity’.14 Its actors and institutions represent themselves as reflecting universal values and defending universal interests. For example, the Rome Statute of the International Criminal Court (Rome Statute) declares that the ICC is established to target ‘the most serious crimes of concern to the international community as a whole’ that ‘threaten the peace, security and well-being of the world’.15 Despite ICL’s universalist posture, ICL actors and institutions regularly come across cultural difference. ICL courts deal with conflicts affecting communities where there may be different and alternative conceptions of justice.16 Judges, lawyers, and investigators 9 Frédéric Mégret, ‘International Criminal Justice as a Juridical Field’ (2016) 13 Champ pénal/Penal field accessed 14 December 2018. 10 Drumbl, ‘Collective Violence’ (n 2) 600. 11 Mark A Drumbl, ‘Policy through Complementarity: The Atrocity Trial as Justice’ in Carsten Stahn and Mohamed M El Zeidy (eds), The International Criminal Court and Complementarity: From Theory to Practice (CUP 2014) 197. 12 John Jackson and Yassin M’boge, ‘The Effect of Legal Culture on the Development of International Evidentiary Practice: From the “Robing Room” to the “Melting Pot” ’ (2013) 26 Leiden J of Intl L 25 (hereafter Jackson and M’boge). 13 Immi Tallgren, ‘Who Are “we” in International Criminal Law? On Critics and Membership’ in Christine Schwöbel (ed), Critical Approaches to International Criminal Law (Routledge 2014) 72. 14 For examples of ICL’s use of ‘global justice’, see Sarah MH Nouwen and Wouter G Werner, ‘Pursuing Global Justice through International Criminal Law: Foreword’ (2015) 13 J of Intl Crim Justice 73–74. For examples of ICL courts deploying a humanity discourse, see Luigi DA Corrias and Geoffrey M Gordon, ‘Judging in the Name of Humanity: International Criminal Tribunals and the Representation of a Global Public’ (2015) 13 J of Intl Crim Justice 100–103. 15 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, UN Doc A/CONF.183/9 (in force 1 July 2002), Preamble (hereafter Rome Statute). 16 Nouwen and Werner put forward five alternative conceptions of justice based on their fieldwork research in Uganda and Sudan: ‘restoration of relationships’, ‘ending ongoing violations’, ‘redistribution’,

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Law and Culture 751 from varied legal cultures work side-by-side, while witnesses and victims from different cultural communities testify before ICL courts. Such cultural difference has been, and will continue to be, a reality given ICL’s predominant intervention in conflicts located in the Global South. Countries that have seen the establishment of ICL courts include Rwanda, Timor Leste, Sierra Leone, and Cambodia. The ICTY, an apparent outlier that dealt with crimes committed in the former Yugoslavia, also experienced cultural challenges.17 This chapter does not argue for a one-size-fits-all solution nor does it propose a comprehensive fix given the variety of challenges resulting from ICL’s encounter of cultural difference. It limits itself to giving an overview of the challenges resulting from ICL’s response to certain cultural differences. It would be a mistake to assume that there are no universally shared commonalities reflected in ICL or that these commonalities will not increase over time. For example, though there may be contestations over their scope and definitions, it has been said that acts that qualify as international crimes are condemned across cultures.18 Cultural difference however remains a reality. Even those who caution against cultural ‘relativism’ recognize that ICL’s implementation will ‘vary from country to country’.19 ICL’s culturerelated challenges have failed to attract as much attention as its political, historical, or social aspects. Nevertheless, ICL’s neglect of cultural difference gives rise to a range of operational and legitimacy issues. As explained in this chapter, operational issues relate to how ICL institutions or processes are presumed to work. Legitimacy issues are more complex and cast doubt on the ICL project itself.20 Since part of ICL’s normative legitimacy rests on its universality claims, its failure to recognize or address cultural difference could undermine its moral and social legitimacy. Furthermore, such cultural disconnect usually affects the victim community, a constituency that ICL purports to serve.21 Before proceeding further to explore ICL’s interaction with different cultures and its treatment of cultural difference, it is important to set out the definition of ‘culture’ used in this chapter. Socio-legal scholars have long debated the relationship between law and culture, but the concept of culture is difficult to pin down. Geertz, in his now classic anthropological definition, describes culture as ‘an historically transmitted pattern of meanings embodied in symbols, a system of inherited conceptions expressed in symbolic forms by means of which men communicate, perpetuate, and develop their knowledge about and attitudes toward life’.22 Other definitions emphasize culture’s active and ‘justice as accountability and punishment’, and ‘justice as equality’. Sarah MH Nouwen and Wouter G Werner, ‘Monopolizing Global Justice: International Criminal Law as Challenge to Human Diversity’ (2015) 13 J of Intl Crim Justice 157 (hereafter Nouwen and Werner, ‘Monopolizing Global Justice’). 17 Patricia Wald, ‘Running the Trial of the Century: The Nuremberg Legacy’ (2006) 27 Cardozo L Rev 1588 (hereafter Wald, ‘Running the Trial of the Century’). 18 Drumbl, ‘Collective Violence’ (n 2) 602. 19 Richard Goldstone, ‘Conference Luncheon Address’ (1997) 7 Transnational Law and Contemporary Problems 11–12. 20 For a discussion of the concept and different conceptions of legitimacy at international law, see Chistopher A Thomas, ‘The Uses and Abuses of Legitimacy in International Law’ (2014) 34(4) Oxford J of Legal Studies 729. 21 Conor McCarthy, ‘Victim Redress and International Criminal Justice’ (2012) 10 J of Intl Crim Justice 353. 22 Clifford Geertz, The Interpretation of Cultures (Basic Books 1977) 88.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

752 Cheah W.L. contested nature, the important role played by individuals and groups in the use and reshaping of culture, and culture as a ‘sphere of practical activity’.23 This chapter adopts this non-static definition of culture as it facilitates my enquiry into how cultural norms and practices evolve as a result of interactions with ICL, and vice versa.

III. ICL Courts and other Culturally-Informed Post-Conflict Justice Processes: Competing Conceptions of Justice This part explores the interactions between ICL courts and other culturally-informed post-conflict justice processes. These justice processes draw on local cultural concepts, symbols, and practices that are described by some as ‘traditional’, ‘indigenous’, or ‘autochthonous’. They may be formal and state-driven, such as official truth and reconciliation commissions, or informal and community-led, such as the Fambul Tok project in Sierra Leone.24 Their level of local cultural content also differs; some draw heavily on cultural practices while others incorporate the latter selectively. Such cultural input may be required as an official policy or undertaken on an ad hoc basis.25 The inclusion of local norms and values may legitimize these culturally-informed justice processes in the eyes of the affected community, especially when compared to ICL prosecutions. Such cultural proximity encourages more community investment and ownership over the justice process concerned.

A. Culturally-Informed Justice Processes as Alternatives or Supplements to ICL Trials A well-known example of a culturally-informed justice process is the South Africa Truth and Reconciliation Commission (SATRC). The SATRC and its supporters drew on a mix of Christian and African values to justify the SATRC’s granting of amnesty to perpetrators who testified and confessed to political crimes, many who could have been 23 William H Sewell, ‘The Concept(s) of Culture’ in Victoria E Bonnell, Lynn Avery Hunt, and Richard Biernacki (eds), Beyond the Cultural Turn: New Directions in the Study of Society and Culture (University of California Press 1999) 44; Ann Swidler, ‘Culture in Action: Symbols and Strategies’ (1986) 51(2) American Sociological Rev 273. 24 For a description of the Fambul Tok project, see Martien Schotmans, ‘Non-Official Use of Tradition: A Case Study on Sierra Leone’ in Eva Brems, Giselle Corradi, and Martien Schotmans (eds), International Actors and Traditional Justice in Sub-Saharan Africa (Intersentia 2015) 49–50 (hereafter Schotmans). 25 ibid 46.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Law and Culture 753 prosecuted for ICL crimes. The 1995 Promotion of National Unity and Reconciliation Act that established the SATRC underscores ‘a need for understanding but not ven geance, a need for reparation but not for retaliation, a need for ubuntu but not for victimization’.26 In its final report, the SATRC represents its approach as rooted in the ‘restorative dimensions of various traditions in South Africa, such as the JudaeoChristian tradition and African traditional values’.27 These traditions were depicted in the SATRC report as ‘strong sources of communal healing and restoration’ as well as ‘sources of inspiration to most South Africans’.28 Several other post-conflict justice processes have also employed cultural references to enhance their authority and legitimacy. Rwanda’s gacaca courts’ claim to pre-colonial traditional roots facilitated the coercive exercise of state power through gacaca while ensuring gacaca’s standing in the eyes of international observers.29 In Sierra Leone, the informal, civil society-driven Fambul Tok project claims to be based on traditional methods of dispute resolution, distinguishing itself from the SCSL and other post-conflict justice mechanisms that are perceived as ‘Western’ and foreign.30 This chapter does not assess the advantages or disadvantages of culturally-informed post-conflict justice practices. But it acknowledges that culturally-informed processes are not always more reflective of local understandings or expectations. Like ICL trials, these processes may be shaped more by politics and power dynamics than by culture. As an example, the SATRC is often presented as a model of African restorative justice, but in reality its amnesty practices stemmed from political agreement between the African National Congress and the National Party.31 Based on empirical studies, many survivors who interacted with the SATRC were dissatisfied with the process and felt ‘let down’.32 In his study of the SATRC and South African townships, Wilson argues that the reconciliatory discourse put forward by the SATRC did not in fact conform to retributive notions of justice practised in local township and chiefs’ courts.33 Many South Africans in these townships viewed the SATRC as ‘weak’ and ‘ineffectual’.34 Criminal trials and a more retributive form of justice may have garnered more local support. Culturally-informed justice processes have also acted as a supplement to ICL prosecu tions and not as a replacement of it. An example would be Timor Leste’s Commission for 26 National Unity and Reconciliation Act, 34 of 1995, Preamble. 27 SATRC, Truth and Reconciliation Commission of South Africa Report, Vol 1 (1998) 127 accessed 14 December 2018. 28 ibid. 29 Andrew R Iliff, ‘Root and Branch: Discourses of “Tradition” in Grassroots Transitional Justice’ (2012) 6 Intl J of Transitional Justice 260. 30 ibid 264. 31 Richard A Wilson, The Politics of Truth and Reconciliation in South Africa: Legitimizing the PostApartheid State (CUP 2001) 8. 32 Brandon Hamber, Dineo Nageng, and Gabriel O’Malley, ‘ “Telling It Like It Is…”: Understanding The Truth And Reconciliation Commission From The Perspective Of Survivors’ (2000) 26 Psychology in Society 39. 33 Richard A Wilson, ‘Reconciliation and Revenge in Post-Apartheid South Africa: Rethinking Legal Pluralism and Human Rights’ (2000) 41 Current Anthropology 83–6. 34 ibid 84.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

754 Cheah W.L. Reception, Truth and Reconciliation (CAVR). In 2000, the UN established the Special Panels for Serious Crimes (SPSC) in Timor Leste to prosecute atrocities that took place during the 1999 referendum for independence in East Timor. In 2001, the CAVR was established with aims that included ‘inquiring into human rights violations’; ‘establishing the truth’ about these violations; ‘promoting reconciliation’; and ‘supporting the reception and reintegration’ of those who had committed ‘minor criminal offences and other harmful acts’.35 The SPSC had exclusive jurisdiction over ‘serious criminal offences’, which included core international crimes, while the CAVR’s reception and reintegration activities targeted ‘minor criminal offences and other harmful acts’.36 The CAVR organized ‘community reconciliation processes’ or CRPs involving elem ents of Timorese customary dispute resolution practices or adat.37 For example, CRPs featured modified versions of a local dispute resolution practice called nahe biti boot where a large woven mat was spread out and would not be rolled back up until agreement was reached between the parties. At these CRPs, deponents would testify before a panel of community leaders at a public hearing, agree to reparative measures set out in community reconciliation agreements (CRA) that were registered by the SPSC,38 and be granted civil and criminal liability upon completion of their CRAs.39 The inclusion of Timorese customary practices and the involvement of local community leaders argu ably contributed to the legitimacy of these CRPs, though there were victims who felt coerced or disappointed by the process.40

B. The Risk of Marginalizing Alternative Justice Conceptions and Processes Many of these culturally-informed post-conflict justice processes implement conceptions of justice that differ from ICL trials. For example, the SATRC and CAVR both prioritized reconciliation and restorative justice over establishing individual accountability and 35 UNTAET, Establishment of a Commission for Reception, Truth and Reconciliation in East Timor, UNTAET Reg 2001/10, UN Doc UNTAET/REG/2001/10, (2001) Section 3.1 (hereafter UNTAET Reg 2001/10). 36 UNTAET, Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offenses, UNTAET Reg 2000/15, UN Doc UNTAET/REG/2000/15, (2000) Section 1.1; UNTAET Reg 2001/10 (n 35) Section 3.1 (h). 37 UNTAET Reg 2001/10 (n 35) Section 22.1. For a description of the CRP, see Beth S Lyons, ‘Getting Untrapped, Struggling for Truths: The Commission for Reception, Truth and Reconciliation (CAVR) in East Timor’ in Cesare PR Romano, André Nollkaemper, and Jann K Kleffner (eds), Internationalized Criminal Courts—Sierra Leone, East Timor, Kosovo and Cambodia (OUP 2004) 106–7. Elizabeth Stanley, Torture, Truth and Justice: The Case of Timor-Leste (Routledge 2011) 113–28. Elizabeth F Drexler, ‘Addressing the Legacies of Mass Violence and Genocide in Indonesia and East Timor’ in Alexander Laban Hinton and Kevin Lewis O’Neill (eds), Genocide: Truth, Memory and Representation (Durham UP 2009) 229–30 (hereafter Drexler). 38 UNTAET Reg 2001/10 (n 35) Section 27.8. 39 UNTAET Reg 2001/10 (n 35) Section 32. 40 Drexler (n 37) 229.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Law and Culture 755 retribution. Commentators argue that ICL’s depiction as internationally sanctioned ‘global justice’ has resulted in other conceptions of justice ‘being pushed to the margins’.41 The ICC is valorized, and there has been a recent resurgence of hybrid ICL courts established or being proposed in the Central African Republic (CAR), South Sudan, Democratic Republic of Congo (DRC), and Sri Lanka.42 Even in the case of the CAVR, the fact that more important or significant crimes are dealt with through ICL trials gives the impression that the CRP process is ‘second best’. ICL prosecutions have stimulated broader transitional justice efforts in some locations, but as Nouwen and Wouter argue, given limited resources and competing priorities, there is a tendency for official efforts at the international and national level to prioritize developing processes that approximate ICL trials.43 This is partially driven by the ICC’s complementarity regime that ‘catalyzes’ justice developments at the domestic level. State actors may seek to avoid the ICC’s future exercise of jurisdiction by reshaping local justice processes and positioning these processes as viable and legitimate alternatives to the ICC.44 This occurs despite the fact that the ICC’s complementarity provisions are phrased to exclude non-criminal justice processes from preventing the ICC’s jurisdiction.45 As Nouwen demonstrates, in Uganda, local actors have made efforts to promote a local justice process called Mato Oput as a legitimate alternative to ICC justice.46 Ugandan actors have advanced the idea that such ‘traditional justice mechanisms’ can take the place of ICC prosecutions.47 In doing so, Ugandan actors have reshaped Mato Oput to ensure that it conforms to the ICC’s approach to justice. For example, Ugandan actors have depicted Mato Oput as securing individual accountability.48 However, as practised by the Acholi community, Mato Oput aims at the restoration of relationships.49 States may try to avoid the ICC’s exercise of jurisdiction by investing in domestic criminal justice institutions to avoid being perceived as unable or unwilling. For example, when the Security Council referred the situation of Sudan to the ICC, the Sudanese authorities started investing in a range of domestic criminal justice institutions.50 The authorities believed and had been advised by Egyptian officials that these steps would stave off any ICC intervention.51 There are good reasons for ensuring that the international emphasis on ICL trials does not marginalize alternative justice conceptions and processes. Criminal trials, in general, only prosecute a small number of those responsible for wrongdoing. There is 41 Nouwen and Werner, ‘Monopolizing Global Justice’ (n 17) 163. 42 Harry Hobbs, ‘Towards a Principled Justification for the Mixed Composition of Hybrid International Criminal Tribunals’ (2017) 30 Leiden J of Intl L 178. 43 Nouwen and Werner, ‘Monopolizing Global Justice’ (n 17) 167. 44 Sarah Nouwen, ‘Complementarity in Uganda: Domestic Diversity or International Imposition?’ in Carsten Stahn and Mohamed M El Zeidy (eds), The International Criminal Court and Complementarity: From Theory to Practice (CUP 2014) 1121 (hereafter Nouwen, ‘Complementarity in Uganda’). 45 Rome Statute (n 15) art 17. 46 Nouwen, ‘Complementarity in Uganda’ (n 44) 1132. 47 ibid 1134–7. 48 ibid 1135. 49 ibid 1136. 50 Sarah MH Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (CUP 2013) 280–1. 51 ibid 280.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

756 Cheah W.L. also a trend for criminal trials to focus on those on the higher end of the chain of command.52 Yet, for most victims, these high-ranking leaders are ‘abstractions’, and victims are more interested in seeking the accountability of direct perpetrators.53 Alternative justice processes may deal with more perpetrators, including direct perpetrators, and offer some restitution to victims.54 If these alternative justice processes are rooted in local culture, they may have greater legitimacy among affected populations. For example, there is evidence that despite the blanket amnesty afforded in Sierra Leone to accused persons of lower responsibility, culturally-informed justice processes that target lower-level perpetrators, like the Fambol Tok project, are positively received.55 While culturally-informed justice processes should not be romanticized, neither should they be overlooked or marginalized as this negates opportunities to address local demands for justice in the aftermath of conflict.

IV. Norm Construction and Trial Participation: Domestic Legal Cultures as ICL Resource Legal personnel working at ICL institutions come from different countries with different domestic legal cultures. Such cultural variation within ICL institutions gives rise to a different set of challenges. Given ICL’s relative youth but rapid development, it is to be expected that ICL actors draw on their own domestic legal cultures when constructing and interpreting ICL rules, principles, and practices. Treaty negotiators and drafters have looked to domestic laws and practices when formulating ICL rules and principles, while ICL courts have referred to the laws and jurisprudence of countries. Reference has been made not only to the black-letter rules of domestic legal cultures but also their norms, practices, ideas, and assumptions. Commentators describe this as ICL’s ‘pluralism of origins’.56

52 ibid 301. 53 Laura J Arriaza and Naomi Roht-Arriaza, ‘Weaving a Braid of Histories: Local Post-Armed Conflict Initiatives in Guatemala’ in Rosalind Shaw, Lars Waldorf, and Pierre Hazan (eds), Localizing Transitional Justice: Interventions and Priorities After Mass Violence (Stanford UP 2010) 215. 54 Rosalind Shaw and Lars Waldorf, ‘Introduction: Localizing Transitional Justice’ in Rosalind Shaw and Lars Waldorf (eds), Localizing Transitional Justice: Interventions and Priorities After Mass Violence (Stanford UP 2010) 16. 55 Schotmans (n 24) 50–1. 56 Elies van Sliedregt and Sergey Vasiliev, ‘Pluralism: A New Framework for International Criminal Justice’ in Elies van Sliedregt and Sergey Vasiliev (eds), Pluralism in International Criminal Law (OUP 2014) 17 (hereafter van Sliedregt and Vasiliev, ‘Pluralism’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Law and Culture 757

A. Hybridization of the ICL Legal System and Domestic Legal Cultures The Nuremberg and Tokyo Tribunals, as well as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), in their early years, were shaped by the adversarial common law tradition. More recent ICL courts—such as the SPSC, the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the Special Tribunal for Lebanon (STL)—include elements from the domestic legal cultures of their host country. For example, the legal frameworks of the SPSC, ECCC, and STL feature inquisitorial elements and substantive offences from their host country’s legal system. The ICC reflects the influence of both common law and civil law legal traditions, though some argue that the Court’s regime is best not understood from a common law or civil law perspective. Rather, the ICC legal framework is described as ‘a unique compromise’ that is the ‘fruit of negotiations’ of ‘state parties that represent a broad range of different systems’.57 Nevertheless, some legal academics criticize ICL’s hybridization, arguing that such mixing of elements from domestic legal cultures ignores the contextual moorings of these elements and has serious consequences, such as the undermining of the accused person’s rights.58 The mix-and-match approach of ICL hybridization is said to overlook the broader context in which the borrowed legal elements were situated. Safeguards present in the legal element’s original setting are absent in the ICL context, resulting in due process concerns and a ‘post rule of law’ situation.59 Other commentators argue that focus should be on whether the imported domestic legal element best serves the needs and objectives of the ICL court in question, and whether this element’s adoption complies with the requirements of international criminal justice.60 This would entail the challenge of developing a clear understanding of ICL’s objectives and needs.61 Given the unsettled and varied nature of ICL’s objectives and needs, it would be tempting to take the shortcut of justifying one’s choice of national legal standard by referring to the ICL objective or need that best suits one’s purposes. Indeed, one’s assessment of what amounts to be an ICL objective or need may itself be shaped by one’s domestic legal culture. For all these reasons, treating domestic legal cultures as a ‘treasure trove’ of ‘building blocks’ in the construction of ICL will not avoid the dominant influence of certain legal 57 Claus Kreß, ‘The Procedural Law of the International Criminal Court: Anatomy of a Unique Compromise’ (2003) 1 J of Intl Crim Justice 605. 58 Kerstin B Carlson, ‘Post Rule of Law: The Structural Problem of Hybridity in International Criminal Procedure’ (2016) 2 The Italian Law J 33. 59 ibid 59. 60 Sergey Vasiliev, ‘The Usage and Limitations of Comparative Law and the Methodology of International Criminal Law’ (2014) 2 Revista Eletrônica de Direito Penal AIDP-GB 176 (hereafter Vasiliev, ‘Usage and Limitations of Comparative Law’). 61 Kai Ambos, ‘International Criminal Procedure: “Adversarial”, “Inquisitorial” or Mixed?’ (2003) 3 Intl Crim L Rev 37.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

758 Cheah W.L. cultures on ICL’s development.62 There is a tendency among ICL actors to refer to the domestic legal cultures that one is most familiar with, and this results in the selective representation of legal cultures in ICL’s development. In seeking to identify customary international law, ICL courts have undertaken ‘highly selective, Eurocentric survey of jurisdictions’, while the drafting of ICL rules has been shaped by common law and civil law examples from the Global North.63 Less known legal traditions of the Global South, such as the Islamic legal tradition and African legal traditions, have been overlooked or ignored.64 Furthermore, in an empirical study, Bohlander argues that the increasing use of English by ICL academics and professionals as a working language, and ‘all the cultural luggage that comes with it’, has limited the legal sources consulted to that produced by the English-speaking world.65 Nevertheless, it is impractical to try and include legal cultures beyond those represented for the sake of achieving inclusivity.66 Given limited resources and time, ICL decision-makers will probably continue to consider the legal cultures most ‘easily available’ and ‘comprehensible’ to them.67 This also means that some ICL actors will be more familiar than others with the ICL legal system, resulting in inequalities of power as well as fair trial issues.

B. Culture Clashes and Adaptation Obstacles among ICL Legal Actors Could the answer lie in ensuring more diverse representation of ICL actors from different legal cultures? More varied representation gives rise to different challenges. ICL professionals bring with them not only legal knowledge and skills from their home countries but also institutional styles of working. Judges and counsel may have different working styles or organize their work differently based on their training and experiences back home.68 More worrying is when such clashes of culture result in the uncertain development of ICL jurisprudence. Bringing together judges from different legal traditions may result in 62 Vasiliev, ‘Usage and Limitations of Comparative Law’ (n 61) 185. 63 Cassandra Steer, ‘Legal Transplants or Legal Patchworking? The Creation of International Criminal Law as a Pluralistic Body of Law’ in Elies van Sliedregt and Sergey Vasiliev (eds), Pluralism in International Criminal Law (OUP 2014) 50. 64 Jia proposes that law-makers should consider general principles recognized by the ‘major legal systems’, which correspond to the ‘families of law’ recognized by comparative law, namely, the RomanoGermanic system, the Common Law system, the Socialist system, the Islamic system, the Hindu system, the Chinese system, the Japanese system, and the African system. Bing Bing Jia, ‘Multiculturalism and the Development of the System of International Criminal Law’ in Sienho Yee and Jacques-Yuan Morin (eds), Multiculturalism and International Law (Brill|Nijhoff 2009) 633. In practice, references and comparisons have seldom gone beyond the civil law (or Romano-Germanic) and common law system. 65 Michael Bohlander, ‘Language, Culture, Legal Traditions, and International Criminal Justice’ (2014) 12 J of Intl Crim Justice 513 (hereafter Bohlander). 66 Vasiliev, ‘Usage and Limitations of Comparative Law’ (n 61) 171. 67 ibid. 68 Swigart, ‘Linguistic and Cultural Diversity’ (n 7) 210.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Law and Culture 759 different conceptualizations of the same legal rule or principle, such as the right to self-representation. In common law legal systems, this right is rooted in the defendant’s autonomy, while civil law legal systems limit this right and may impose defence counsel on the defendant. This right to self-representation was conceptualized differently by the Trial Chamber and Appeals Chamber in the Milošević trial. The Milošević Trial Chamber ruled that the right of self-representation was qualified when this undermined the trial.69 While agreeing with the Trial Chamber’s imposition of counsel on Milošević, the Appeals Chamber rationalized the scope and permissible limitations of the right to self-representation differently.70 The Appeals Chamber recognized that the individual had a presumptive right to represent himself and should take the lead, relegating assigned defence counsel to a secondary role.71 The Trial Chamber’s interpretation approximated that of the civil law tradition while the Appeals Chamber’s interpretation tracked common law understandings.72 Interpretive ‘rubbing points’ have also developed around substantive legal issues.73 In the ICC’s first case of Prosecutor v. Lubanga, the Trial Chamber agreed on a conception of liability that assessed blameworthiness based on a differentiation of modes of liability.74 The dissenting judge, Judge Adrian Fulford from the UK, argued that there was no need to establish such a ‘hierarchy of seriousness’ and that blameworthiness based on ‘mode of liability’ should be addressed at the sentencing stage.75 Commentators attribute these differences to different French and Anglo-American approaches to liability.76 Domestic legal culture not only influences an ICL actor’s interpretation of rules, concepts, or ideas, but also his or her understandings of court roles. A judge’s domestic legal culture may shape judicial approach to trial management.77 These interpretive differences between ICL judges and courts may contribute to the unstable development of ICL and affect its legitimacy. 69 Prosecutor v. Milošević (Reasons for Decision on Assignment of Defence Counsel) IT-02-54-T, (22 September 2004) (ICTY, Trial Chamber). 70 Prosecutor v. Milošević (Decision on the Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel) IT-02-54-AR73.7, (1 November 2004) (ICTY, Appeals Chamber). 71 ibid para 19. 72 John D Jackson and Sarah J Summers, The Internationalisation of Criminal Evidence: Beyond the Common Law and Civil Law Traditions (CUP 2012) 130 (hereafter Jackson and Summers). 73 The term ‘rubbing points’ is taken from Jackson and Summers’ description of the complications in interpreting evidential rules before internationalized criminal courts. Jackson and Summers (n 72) 124. 74 Prosecutor v. Lubanga (Judgment pursuant to Article 74 of the Statute) ICC-01/04–01/06, (14 March 2012) (ICC, Trial Chamber I) (hereafter Lubanga Trial Judgment). 75 ibid, Separate Opinion of Judge Adrian Fulford, paras 8–9. 76 van Sliedregt and Vasiliev, ‘Pluralism’ (n 57) 31. 77 Francis J Pakes, ‘Styles of Trial Procedure at the International Criminal Tribunal for the Former Yugoslavia’ in Peter J van Koppen and Steven D Penrod (eds), Adversarial versus Inquisitorial Justice: Psychological Perspectives on Criminal Justice Systems (Plenum Publishers 2003).The ICTY judge with common law training conducted the trial in a reactive adversarial manner while the judge with civil law training conducted his trial in a more proactive inquisitorial manner. It is however noteworthy that there is more recent empirical research that shows judicial style is not always associated with judicial legal training. Rosemary Byrne, ‘The New Public International Lawyer and the Hidden Art of International Criminal Trial’ (2010) 25 Connecticut J of Intl L 255 (hereafter Byrne).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

760 Cheah W.L. ICL’s legitimacy may also be undermined when judges and counsel at these ICL courts demonstrate adaptation challenges due to their domestic legal training and their unfamiliarity with the rules and practices of the ICL court concerned. For example, some judges from civil law systems were ‘bewildered’ by adversarial practices of examination in chief and cross-examination, asking witnesses to speak ‘freely’ or encouraging lawyers to ‘ask broad-ranging questions’.78 Defendants prefer to engage locally-trained defence counsel who speak their native language, but counsel’s domestic legal training may prove to be an obstacle to trial participation.79 For example, Balkan-trained ICTY defence counsel from inquisitorial legal cultures had a challenging experience with the ICTY’s hybrid procedures and adversarial practices. These lawyers have been described as ‘under-equipped’,80 ‘unskilled’,81 and ‘painfully awkward and unfocused’.82 Nevertheless, judges and counsel from different legal cultures are willing and able to adapt over time.83 These adaptation attempts are difficult due to the ‘rotating’ nature of the ICL profession comprising staff on temporary international contracts.84 Recruitment and retention challenges further complicate the matter.85 Many ICL judges are appointed to their judicial positions without prior experience at other ICL courts.86 Indeed judges may be exposed for the first time to the mechanics and intricacies of cross-examination at their very first ICL trial.87 These trial participation issues stemming from cultural difference give rise to equality of arms and fair trial concerns.

V. The Multicultural ICL Trial: Cross-Cultural Communication Challenges and Culture-specific Evidence Witnesses and defendants at ICL trials often come from different cultural communities. As a result, they are not fluent in the court’s official language. ICL judges and counsel may not understand the native languages spoken by most witnesses testifying before the court. Furthermore, accused persons may refer to cultural norms, practices, and beliefs that are unfamiliar to judges and counsel. Due to such cultural differences and disconnect

78 Jackson and Summers (n 72) 128. 79 Wald, ‘Running the Trial of the Century’ (n 17) 1572. 80 Julian A Cook, ‘Plea Bargaining at The Hague’ (2005) 30 Yale J of Intl L 498. 81 Mark S Ellis, ‘The Evolution of Defense Counsel Appearing before the International Criminal Tribunal for the Former Yugoslavia’ (2002) 37 New England L Rev 958. 82 Patricia M Wald, ‘The International Criminal Tribunal for the Former Yugoslavia Comes of Age: Some Observations on Day-To-Day Dilemmas of an International Court’ (2001) 5 Washington University J of L and Policy 104. 83 Jackson and M’boge (n 13) 951. 84 Byrne (n 78) 258. 85 ibid 259. 86 ibid. 87 ibid 263.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Law and Culture 761 between judges and witnesses, ICL courts face numerous challenges in determining facts and assessing guilt.

A. The Difficulties of Ensuring Accurate Linguistic Translation Significant resources are needed to ensure that testimony is accurately interpreted into the working language of the court. Even then, inaccuracies are common, and nuances of meaning may be lost in the interpretation process.88 Cross-cultural communication issues also go beyond simple linguistic interpretation as fact-finders need to have an awareness of cultural context to appreciate the full import of words used. For example, there is no equivalent of the word ‘rape’ in Kinyarwanda, which is the language of most Rwandan witnesses appearing before the ICTR.89 Rather, witnesses would say ‘he knew me’.90 Interpreters may be unaware of such cultural taboos or inhibited by them.91 To avoid this, ICL court interpreters need to be ‘bicultural’ as well as ‘bilingual’, familiar with the legal process, and comfortable communicating with trial participants.92 Furthermore, when assessing a witness for veracity, judges consider not only the words said by the witness but also the witnesses’ body language, such as eye contact and hand gestures. Lack of cultural familiarity may result in judicial misinterpretation of such body language to the detriment of the accused. Also, the ICL trial is premised on knowledge assumptions that may not apply in some societies. Witnesses appearing before ICL courts may not be familiar with Western understandings of time or space, and have difficulties explaining when or where certain events took place.93 At the SCSL, some witnesses explained time in terms of the sun’s position in the sky.94 Witnesses from non-Western communities may also be uninitiated in the trial process and trial conventions.95 Some witnesses felt offended or became confrontational when undergoing cross-examination.96 Others provided disjointed or disorienting testimonies that failed to answer the questions of counsel or the court.97 Some witnesses from oral cultures found the rule against hearsay confusing. This was the case for witnesses appearing before ICL courts in Rwanda, Sierra Leone, and Timor Leste.98 Though witnesses were able to distinguish between what they personally witnessed and what 88 For accounts of translation and interpretation issues encountered at ICL courts, see Joshua Karton, ‘Lost in Translation: International Criminal Tribunals and the Legal Implications of Interpreter Testimony’ (2008) 41 Vanderbilt J of Transnational L 1 (hereafter Karton); Bohlander (n 65); Swigart, ‘Linguistic and Cultural Diversity’ (n 7). 89 Jackson and M’boge (n 13) 959. 90 ibid. 91 Combs, Fact-Finding Without Facts (n 3) 74. 92 Virginia Benmaman, ‘Legal Interpreting: An Emerging Profession’ (1992) 76 The Modern Language J 445, 446. 93 Combs, Fact-Finding Without Facts (n 3) 81–2. 94 Kelsall (n 3) 190. 95 Byrne (n 78) 289. 96 Combs, Fact-Finding Without Facts (n 3) 39; Kelsall (n 3) 205. 97 ibid 204–5. 98 Combs, Fact-Finding Without Facts (n 3) 94.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

762 Cheah W.L. they were told if specifically asked to do so, Combs observes that this distinction was not of significance to them.99 All these cross-cultural communication factors pose a challenge to fact-finding in ICL trials. It is important to note that not all communication problems should be automatically attributed to cultural difference. Witnesses may simply be unable to remember traumatic events or they may be afraid and hiding information.100 Indeed, witnesses and counsel may employ interpretation errors or communication issues in a tactical manner, such as by arguing that testimonial inconsistencies were due to faulty interpretation or a lack of understanding.101 The cultural distance between fact-finders and witnesses complicates judicial efforts at ICL courts to separate genuine communication issues from outright lying. Indeed, in the early life of ICL courts, there was a tendency among ICL judges and prosecutors to attribute witness testimonial issues to ‘innocent’ reasons like cultural difference instead of witness mendacity.102

B. ICL Courts’ Treatment of Culture-specific Arguments Apart from cross-cultural communication challenges at trial, ICL courts may have to address culture-specific arguments raised by accused persons.103 Some defendants argue against their guilt by putting forward culture-specific elements to explain their motives, state of mind, or perception of reality.104 Generally, ICL courts have not substantially engaged with culture-specific factors when determining individual guilt. The law may treat some of these culture-specific arguments as irrelevant. For example, an accused may argue that he was unaware that his conduct was prohibited by ICL due to culture-specific norms or practices authorizing this conduct. Article 32 of the Rome Statute states that a ‘mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility’.105 Nevertheless, when culture-specific factors cast doubt on the accused’s moral guilt, ICL courts should acknowledge and discuss such factors even when legally irrelevant. This is advisable given the above-mentioned legitimacy challenges experienced by ICL courts. By doing so, courts can pre-empt accusations that they are ignorant of or insensitive to cultural context. 99 ibid. 100 Kelsall (n 3) 193–4. 101 Combs, Fact-Finding Without Facts (n 2) 128. 102 Nancy A Combs, ‘Grave Crimes and Weak Evidence: Fact-Finding Evolution in International Criminal Law’ (2017) 58 Harvard Intl L J 53. 103 See generally, Alison Dundes Renteln, ‘Cultural Defenses in International Criminal Tribunals: A Preliminary Consideration of the Issues’ (2011) 18 Southwestern J of Intl L 267; Noelle Higgins, Cultural Defences at the International Criminal Court (Routledge 2018) (hereafter Higgins, Cultural Defences). 104 While the analysis of such culture-specific arguments is still relatively new among ICL commentators, the question of whether and how criminal courts should recognize cultural arguments has been much debated among researchers of domestic multicultural trials. See, e.g., Foblets and Renteln, Multicultural Jurisprudence (n 3); Renteln, Cultural Defense (n 3). 105 Article 32, Rome Statute.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Law and Culture 763 ICL courts have been criticized for not substantially discussing local conceptions of childhood in cases involving the recruitment of child soldiers. The SCSL was the first ICL court to prosecute the war crime of recruiting soldiers under the age of 15 in Prosecutor v. Sam Hinga Norman. At pre-trial proceedings, the defence challenged the SCSL’s jurisdiction over the charge of conscripting or enlisting of child soldiers. In its decision, the SCSL did not discuss the crime’s cultural context. Rather, the court focused on whether international law prohibited the recruitment of children below the age of 15 at the time of the crime’s commission.106 The court also found that ‘[c]itizens of Sierra Leone, and even less, persons in leadership roles, cannot possibly argue that they did not know that recruiting children was a criminal act in violation of international humanitarian law’.107 Kelsall observes that this judicial observation, by failing to consider cultural context, appears to ignore ‘empirical realities’ in Sierra Leone.108 It was in fact not necessary for the court to make this statement regarding knowledge of the crime’s illegality, and yet it did so, presumably to avoid any allegation that the accused was unfairly subject to unfamiliar standards. The court could have gone further and ventured beyond its legalistic inquiry, discussing the possible impact of cultural conceptions of childhood on the accused’s knowledge before arriving at its conclusion that the accused could not be said to have not known that his conduct amounted to an international crime. Relevant childhood ideas were similarly not discussed by the ICC in the Lubanga case, where the accused, Thomas Lubanga Dyilo, was charged with conscripting and enlisting children under 15 years of age.109 At pre-trial proceedings, the defence argued that Lubanga was unaware that the recruitment of child soldiers was a crime.110 The Pre-Trial Chamber observed that this argument of the defence amounted to a mistake of law argument that fell outside the narrow scope of legal mistakes excluding criminal responsibility recognized by the Rome Statute.111 The Chamber nevertheless held that there was ‘sufficient evidence’ to establish ‘substantial grounds’ that Lubanga was aware that the recruitment of child soldiers attracted criminal responsibility.112 Apart from surveying international instruments and customary international law, the Chamber highlighted evidence given by a witness that ‘child protection issues and matters relating to the ratification of the Rome Statute’ had been discussed with Lubanga.113 The possible impact of cultural context was unexplored. Higgins, in her analysis of the Lubanga case, argues that an ‘in-depth engagement with the concepts of cultural relativism and childhood’ would have demonstrated the ICC’s ‘appreciation of different approaches to child soldiering in different cultures’.114 This, in 106 Prosecutor v. Sam Hinga Norman (Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment)) SCSL-2004-14-AR72(E), (31 May 2004) (SCSL, Appeals Chamber). 107 ibid para 52. 108 Higgins, Cultural Defences (n 103) 82. 109 Lubanga Trial Judgment (n 74). 110 Prosecutor v. Thomas Lubanga Dyilo (Decision on the Confirmation of Charges) ICC-01/04–01/06, (29 January 2007) (ICC, Pre-Trial Chamber I) (hereafter Lubanga Pre-Trial Decision on Confirmation of Charges) para 294. 111 ibid para 301 and para 305. 112 ibid para 306. 113 ibid para 313. 114 Higgins, Cultural Defences (n 103) 82.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

764 Cheah W.L. turn, could enhance the legitimacy of the ICC’s judgment from the local population’s perspective. It is important to note that such legitimacy enhancement benefits are not guaranteed. Cultural understandings are subject to evolving contestations, and given the serious harm inflicted by ICL defendants, survivors could well have been outraged if the ICL court concerned reduced an accused person’s criminal responsibility based on cultural reasons. Some ICL courts have taken a restrictive approach to culture’s impact even when culture is legally relevant. This was demonstrated in the CDF trial, when the SCSL was presented with culture-specific evidence about the magical powers claimed by the accused, Allieu Kondewa.115 Kondewa was charged with, inter alia, superior responsibility for a variety of war crimes. As described by the SCSL Trial Chamber, Kondewa was known as ‘the High Priest of the entire CDF organisation’, the one responsible for ‘performing initiations at Talia’, and the ‘head of all the CDF initiators initiating the Kamajors into the Kamajor society in Sierra Leone’.116 The Kamajors ‘believed in the mystical powers of the initiators, especially Kondewa, and that the process of the initiation and immunisation would make them “bullet-proof ” ’.117 The Trial Chamber found that for crimes occurring in most locations, while Kondewa ‘possessed command over all the Kamajors from every part of the country’, his command was ‘limited to the Kamajors’ belief in mystical powers that Kondewa allegedly possessed.118 It held that there was ‘inconclusive’ evidence to establish that Kondewa wielded ‘effective control’ ‘in a sense that he had the material ability to prevent or punish them for their criminal acts’.119 However, for crimes occurring in Bonthe District, the Trial Chamber decided that Kondewa’s de jure position as High Priest coupled with his ability to issue directives, order investigations into misconduct, and organize court hearings showed the existence of an effective superiorsubordinate relationship. The court’s focus on the ‘material’ aspects of Kondewa’s power and its failure to appreciate ‘mystical structures of power’ has been criticized.120 On appeal, Presiding Judge George Gelaga King, issued a partially dissenting opinion that even more forcefully rejected the relevance of such ‘mystical structures of power’. King censured the findings of the Trial Chamber and Appeals Chamber on Kondewa’s superior responsibility.121 He disagreed with the majority’s findings that Kondewa had both de jure and de facto responsibility, or the ‘legal and material ability’, to prevent and punish criminal acts of Kamajors in Bonthe.122 In terms of de jure responsibility, King 115 For criticisms of this trial, see generally Kelsall (n 2); René Provost, ‘Magic and Modernity in Tintin Au Congo (1930) and the Sierra Leone Special Court’ (2012) 16 Law Text Culture 183. 116 Prosecutor v. Monina Fofana and Allieu Kondewa (Judgment) SCSL-04-14-T, (2 August 2007) (SCSL, Trial Chamber I) (hereafter Prosecutor v Kondewa (Trial Judgment)), para 344. 117 ibid para 346. 118 ibid para 806 (Koribondo). For similar findings on Kondewa’s lack of superior responsibility, see para 745 (Towns of Tongo Field), para 853 (Bo District), para 916 (Kenema District), and para 951 (Moyamba District). 119 ibid. 120 Kelsall (n 2) 143. 121 Prosecutor v. Kondewa (Appeals Judgment) (n 110) Partially Dissenting Opinion of Honourable Justice George Gelaga King. 122 ibid para 70 (emphasis in original).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Law and Culture 765 disagreed with the description of Kondewa as ‘High Priest’ arguing that Kondewa was a mere ‘juju man’ or ‘medicine man’.123 King went on to emphasize in his dissent that it ‘boggles the imagination’ that Kondewa could qualify as a superior on the basis of ‘fanciful mystical powers’.124 Kondewa’s ‘High Priest’ duties were ‘so ridiculous, preposterous and unreal as to be laughable and not worthy of serious consideration by right-thinking persons in civilised society’.125 King’s dissent is interesting as he is from Sierra Leone. Given his background, one would have expected King to draw attention to the common belief and practice of magic in Sierra Leone.126 Yet, King employed a rationalist discourse in his dissent to pour scorn on the magical powers claimed by Kondewa. The main audience of King’s dissent could be said to be the international community rather than the local population of Sierra Leone. King’s position and objectives are understandable given broader political and social developments surrounding the SCSL’s work, such as neo-colonial depictions of the Sierra Leone conflict at trial and in the media.127 King’s dissent demonstrates that those ICL judges best positioned to highlight cultural evidence may sometimes be reluctant to do so, as they may seek to ensure the standing and legitimacy of their own judicial position and their community in the eyes of the international community. A more accommodative approach to cultural evidence was taken by Timor Leste’s SPSC that incorporated culture-specific considerations at the sentencing phase rather than at the determination of guilt phase. This was done by the SPSC in the trial of Carlos Soares Carmona.128 The Trial Chamber found that the crime concerned did not qualify as a war crime though it still fell within SPSC jurisdiction that included ICL crimes and some domestic crimes.129 In this case, the defendant was accused of killing the victim whom he believed had caused the death of his two children through magic. None of the ‘circumstances of exclusion’ raised by the defence such as duress or intoxication was held to apply in this case.130 The SPSC decided that the accused was guilty of murder but considered, as a mitigating circumstance, the fact that the accused had believed that the victim had killed his children using magic. In its decision, the SPSC noted that it ‘might seem’ that a court ‘could not deem such a circumstance as relevant’ but as ‘black magic is part of the East Timorese culture, especially in the countryside, the revenge against the assumed murder of the Defendant’s children deserves some clemency’.131 Sentence mitigation does not affect the conviction itself. Nevertheless, by articulating and assessing

123 ibid para 68. 124 ibid para 69. 125 ibid para 70. 126 King’s Bedford Row profile states that he was ‘called to the Sierra Leonean Bar in 1988 and holds a practising certificate for that jurisdiction’ (2 Bedford Row) accessed 14 December 2018. 127 Gerhard Anders, ‘Testifying about “Uncivilized Events”: Problematic Representations of Africa in the Trial Against Charles Taylor’ (2011) 24(4) Leiden J of Intl L 937. 128 The Prosecutor v. Carlos Soares Carmona (Judgment) Case No.03 C.G.2000, (8 March 2001–25 April 2001) (UN-ETTA Dist. Ct. Dili, SPSC, Trial Chamber). 129 SPSC jurisdiction includes the crime of murder and sexual offences as defined in the applicable Penal Code in East Timor. Sections 8 and 9, UNTAET Reg 2000/15 (n 36). 130 ibid 7. 131 ibid 9.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

766 Cheah W.L. cultural reasons at the mitigation stage, an ICL court signals to the community that it is aware of and sensitive to local cultural circumstances.

VI. Conclusion: Operational, Legitimacy, and Representational Challenges While there are more efforts made to address the challenges arising from ICL’s encounter of cultural difference, these challenges will persist and are unlikely to fade away. Indeed, the cultural challenges experienced by the ICC are in many ways more complicated than that experienced by other ICL courts. Unlike other ICL courts, the ICC’s reach is not limited to specific conflicts. Each time the ICC starts investigations into a new situation, it must quickly develop and address the gaps in its cultural knowledge.132 The cultural gap goes both ways, affecting not only ICL judges and prosecution counsel but also defence counsel and witnesses from ICC situation countries. Some of the cultural challenges examined in this chapter may be addressed through the investment of time, resources, and policies. There are reports that long-sitting ICTY judges became skilled at running multilingual trials over time.133 Similarly, ICTR judges grew adept at questioning witnesses through ‘in-house transfer of knowledge’.134 The ICC, which is presently working with a range of languages from the African continent, has invested in a range of language-related services.135 To ensure that ICC defence counsel are equipped, regardless of their background, the ICC established the Office of Public Counsel for the Defence (OPCD) to provide ‘general support and assistance to Defence counsel’.136 OPCD’s assistance is expected to increase accessibility and participation of counsel from ICC situation states, many of whom have not practised before ICL courts or are unaware of the ICC’s rules and procedure.137 There is also formal recognition that cultural sensitivity is a valued quality of certain ICL professionals. Rule 18(d) of the ICC Rules of Procedure and Evidence charges the Victims and Witnesses Unit with ensuring 132 Swigart, ‘Linguistic and Cultural Diversity’ (n 7) 206. 133 ibid 205. 134 Leigh Swigart, ‘African Languages in International Criminal Justice: The International Criminal Tribunal for Rwanda and Beyond’ in Charles Chernor Jalloh and Alhagi BM Marong (eds), Promoting Accountability Under International Law For Gross Human Rights Violations in Africa: Essays In Honour Of Prosecutor Hassan Bubacar Jallow (Brill Nijhoff 2015) 592. 135 Swigart, ‘Linguistic and Cultural Diversity’ (n 7) 206–7. 136 Regulations of the Court, adopted by the judges of the court on 26 May 2004, 5th Plen Sess, Official Documents of the International Criminal Court, ICC-BD/01-01-04, Regulation 77(4)(b) (hereafter Regulations of the ICC). 137 Philipp Müller, ‘Promoting Justice between Independence and Institutional Constraints: The Role of the Office of the Public Counsel of the Defence at the ICC’ in Mayeul Hiéramente and Patricia Schneider (eds), The Defence in International Criminal Trials: Observations on the Role of the Defence at the ICTY, ICTR and ICC. (Nomos 2016) 250.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Law and Culture 767 the ‘training of its staff with respect to victims’ and witnesses’ security, integrity and dignity, including matters related to gender and cultural sensitivity’.138 When appointing ICL judges, consideration should also be given to ‘breadth of linguistic and cultural knowledge’.139 Better linguistic and cultural training should be provided to those involved in trials.140 Other cultural challenges canvassed in this chapter give rise to legitimacy concerns and require a deeper consideration of foundational questions. For example, ICL courts have generally failed to consider culture-specific factors when determining individual criminal responsibility, and at the same time, the prioritization of these courts has marginalized culturally-informed processes with different conceptions of justice. This raises questions about who are ICL’s key beneficiaries. Should these be the international organizations, donors, and legal professionals promoting the ICL trial as the go-to model for post-conflict justice? Or should ICL primarily serve directly affected communities and survivors? The accommodation of cultural diversity in law is argued to be particularly important at the international level, given international law’s purported reach and application to diverse societies. Provost argues for an understanding of international law as ‘fragmented’, ‘decentralized’, ‘contingent’, and ‘deliberative’.141 Such a pluralistic understanding of law will accommodate a more varied interpretive community whose views and input matter.142 Thus far, ICL’s approach to cultural difference exerts a constitutive effect that works against the development of a more pluralistic understanding of culture in ICL.143 On the one hand, by ignoring or papering over cultural disagreements, ICL represents cultural difference as immaterial. On the other, by marginalizing divergent cultural practices and actors, ICL represents cultural differences as inferior or problematic. Cultural difference is thus depicted as an obstacle that needs to be ‘fixed’ through adjustment or conformation. Imagining a more pluralistic approach to culture in ICL is possible. For inspiration, one may look to indigenous law and human rights law, which have come up with creative solutions to accommodate cultural diversity.144 The application of ICL is prominent and far-reaching in effects and implications, so societies of diverse backgrounds and cultures are best served by an approach that harnesses a pluralistic understanding of such diversity.

138 Regulations of the ICC (n 136) Reg 77(4)(b). 139 Swigart, ‘Linguistic and Cultural Diversity’ (n 7) 217. 140 Karton (n 88) 51. 141 René Provost, ‘Interpretation in International Law as a Transcultural Project’ in Andrea Bianchi, Daniel Peat, and Matthew Windsor (eds), Interpretation in International Law (OUP 2015) 304. 142 ibid 304. 143 For law’s constitutive effect on culture through expression and representation, see Elizabeth S Anderson and Richard H Pildes, ‘Expressive Theories of Law: A General Restatement’ (2000) 148 University of Pennsylvania L Rev 1503. 144 For an overview of examples in different areas, see generally, René Provost, Culture in the Domains of Law (CUP 2017).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Chapter 33

The Cor e Cr i m e s of I n ter nationa l Cr im i na l L aw Christine Schwöbel-Patel1

I. Introduction Article 5 of the Rome Statute, the treaty establishing the International Criminal Court (ICC), states that the crimes therein represent ‘the most serious crimes of concern to the international community as a whole’.2 These ‘most serious crimes’ in the Rome Statute, namely genocide, war crimes, crimes against humanity, and the crime of aggression, are routinely referred to as the ‘core’ crimes of international criminal law.3 The Statute itself does not designate these crimes as core crimes; rather the term arose during discussions

1 Christine.Schwö[email protected]. I presented early versions at a SOAS Critical Approaches to International Criminal Law workshop and at an ASIL ICL interest group. Many thanks to the commentators (in particular Randle DeFalco) and the organizers (Heidi Matthews, Meg DeGuzman and Rebecca Hamilton). Many thanks also to Jessie Hohmann, Roger Clark, and to the editors for their excellent comments. 2 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3 (as am by the Review Conference 2010, Res RC/Res.6, depository notification C.N.651.2010.TREATIES-8), art 5 (hereafter Rome Statute). 3 In December 2017, the Assembly of States Parties to the Statute of the ICC adopted a resolution activating the jurisdiction of the Court over the crime of aggression. Although there have to date been no cases in which the crime is invoked, the crime of aggression is generally mentioned alongside the other crimes as part of a ‘core’ of crimes. See Activation of the jurisdiction of the Court over the crime of aggression, ICC Assembly of State Parties, 16th Sess, 12th Mtg, Resolution ICC-ASP/16/Res.5, (2017).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Core Crimes of International Criminal Law 769 on subject matter at the Rome Conference,4 was picked up by the literature,5 and is now widely accepted. Textbooks, course outlines for teaching, and commentaries regularly simply state that the crimes in the Rome Statute are the ‘core crimes’. Not only is the catalogue taken for granted, there is a general assumption of the durability of the list. William Schabas declares that ‘[i]t would seem that the package of atrocity crimes adopted in 1998 will stand the test of time’.6 The label ‘core’ is without question used to refer to the perceived elevated status of these crimes. It designates special standing regarding international jurisdiction and it assigns special standing in terms of moral abhorrence—the core crimes are deemed the worst crimes. Antonio Cassese describes them as ‘a category comprising the most heinous offences’.7 In turn, other crimes are of lesser importance, deemed more aptly prosecuted in domestic jurisdictions, and generally inflected with a relativist nature, meaning they are, in contrast to truly universal crimes, considered to be culturally specific. Where does this agreement about the prioritization of these particular crimes over others come from? In considerations of which crimes to include in the Rome Statute, there were several crimes that were weeded out in order to come to the contemporary understanding of core crimes.8 One particular set of offences stand out as illuminating a possible alternative, rejected, path. These are the crimes relating to drug trafficking. It is well-known that the impetus for directing renewed legal and political energies towards the establishment of a permanent international criminal court came in 1989 through a request made to the General Assembly by Trinidad and Tobago.9 Trinidad and Tobago’s request was made on the grounds that domestic prosecution of drug-related crimes was difficult if not impossible due to various forms of obstruction to domestic prosecutions.10 The subsequent resolution by the General Assembly stated the illicit trafficking in narcotic

4 The conference at which the final Rome Statute was negotiated and agreed. The summary records of the plenary meetings and of the meetings of the Committee of the Whole are available at The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 15 June–17 July 1998, Official Records, Vol II, UN Doc A/CONF.183/13(Vol.II) (hereafter Rome Conference, Summary Records). 5 William Schabas, ‘Atrocity Crimes’ in William Schabas (ed), The Cambridge Companion to International Criminal Law (CUP 2016) 203 (hereafter Schabas, ‘Atrocity Crimes’). 6 ibid 212. A distinction is often made between atrocity crimes (war crimes, crimes against humanity, and genocide) and the crime of aggression as a crime against peace. The term ‘atrocity crime’ is said to have been coined by David Scheffer, ‘Genocide and Atrocity Crimes’ (2006) 1 Genocide Studies and Prevention 229. 7 Antonio Cassese, International Criminal Law (2nd edn, OUP 2008) 148 (hereafter Cassese, ICL). 8 Crimes that were considered as core crimes, right up to the Rome Conference, included crimes of terrorism, and crimes against United Nations and associated personnel. Rome Conference, Summary Records (n 3). 9 Letter from the Permanent Representative of Trinidad and Tobago to the Secretary-General (dated 21 August 1989), UNGAOR, 44th Sess, Annex 44, Agenda Item 152, UN Doc A/44/195, (1989). 10 Obstructions include threats, bribery, and other forms of influence on police and judges.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

770 Christine Schwöbel-Patel drugs as the primary reason for establishing a permanent international criminal court.11 However, in 1998, when the final wording of the Rome Statue was negotiated and agreed upon, drug trafficking no longer featured in the list of crimes under the Court’s jurisdiction. Since then, the crime has not only been excluded from the venerable list of ‘core crimes’, it has been relegated to a different discipline altogether. This demotion to a socalled ‘treaty crime’, and ultimately the banishment to the discipline of transnational criminal law, is to be understood against the background of certain hidden biases of the core crimes. This chapter begins with an overview of regularly proposed definitions of core crimes and delimitations between core crimes and other crimes. Significant ambiguities and disagreements around the nature of the core crimes and their delimitations are revealed; ambiguities and disagreements which raise questions of the general agreement on the catalogue of core crimes. In the absence of agreement on definitions and criteria, the analysis moves to the historical narrative of the core crimes. Agreement on the catalogue of core crimes is largely placed in the context of an assumed linear narrative from Nuremberg (the trials of key Nazi officials at the International Military Tribunal) to Rome (where the ICC was established at the Rome Conference). In order to probe this narrative and to unsettle such monoliths of history,12 I focus on discontinuities in the accepted history, beginning with the 1989 request to the General Assembly by Trinidad and Tobago as regards drug trafficking crimes. Such disconnecting of unquestioned continuities reveals the biases that have informed the catalogue of what are considered core crimes. In an alternative world of ICL, many global problems could be deemed international crimes: speculating on derivatives, corruption, or corporate crimes. This chapter does not aim to add to the list of core crimes.13 Whilst the point is made that crimes around drug trafficking were excluded for ideological reasons, this is not followed by a call for their inclusion. Rather, this chapter aims to uncover the reasoning behind the designation of war crimes, genocide, crimes against humanity, and aggression as being ‘core’. What we can gain from this line of questioning is a deeper understanding of the moral-legal foundations of international criminal law, and the so-called international 11 International criminal responsibility of individuals and entities engaged in illicit trafficking in narcotic drugs across national frontiers and other transnational criminal activities: establishment of an international criminal court with jurisdiction over such crimes, GA Res 44/39, UNGAOR, 44th Sess, 72nd Plen Mtg, UN Doc A/RES/44/39, (4 December 1989). 12 Michel Foucault, The Archaeology of Knowledge (first published 1969, Routledge 2002) (hereafter, Foucault, Archaeology of Knowledge). 13 For discussions of expanding the jurisdiction of the ICC to include crimes relating to drug trafficking, see Faiza Patel, ‘Crime Without Frontiers: A Proposal for an International Narcotics Court’ (1990) 22 NYU J of Intl L and Politics 709 (proposing an international court with exclusive jurisdiction over drug trafficking); Molly McConville, ‘A Global War on Drugs: Why the United States should support the Prosecution of Drug Traffickers in the International Criminal Court’ (2000) 37 American Crim L Rev 88; Heather L Kiefer, ‘Just say No: The Case Against Expanding the International Criminal Court’s Jurisdiction to Include Drug Trafficking’ (2009) 31 Loyola of Los Angeles Intl and Comparative L Rev 157 (hereafter Kiefer, ‘Just Say No’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Core Crimes of International Criminal Law 771 community as a whole. By focusing on the historical narrative, i.e., which crimes took precedence at what time, and the inverse of which crimes were ‘dropped’ or ‘weeded out’ along the way, we not only understand history but also the present. As we shall see, this requires a de-romanticized approach to the history of international criminal law, and a historical reading which acknowledges that the historical narratives which are repeated and valorized are mostly the stories of victors, of Great Men, and, ultimately, of exploit ation and subjugation.

II. Defining Core Crimes When it comes to defining core crimes, there is a general attitude of ‘we all know what they are’.14 Although many aspects of the discipline of international criminal law are contested, there is an overwhelming consensus about the core crimes. If, however, a def inition is attempted, it is mostly via the distinction between core crimes and treaty crimes or as a special category of international crimes. With a view to drawing out ambiguities, the following investigates these definitions and delimitations in turn.

A. Ambiguities in Distinguishing Core Crimes and Treaty Crimes A traditional demarcation point between core crimes as opposed to other crimes is the distinction between ‘core crimes’ and ‘treaty crimes’. Neil Boister, who wrote a seminal piece advocating for a wide-spread adoption of the distinction between ICL and transnational criminal law (TCL), defines transnational crime as ‘conduct that has actual or potential trans-boundary effects of national and international concern’.15 These are, according to him, to be distinguished from ‘international criminal law stricto sensu – the so-called cores crimes’.16 Treaty crimes, it is suggested, thereby sit on the other side of a disciplinary divide, with ICL as concerning core crimes, and TCL as concerning treaty crimes. The relevant treaties are also often referred to as ‘suppression conventions’ as they place obligations on states to suppress a certain act in domestic jurisdiction—as opposed to international jurisdiction. On the practical side, then, TCL is built on a web of criminalization, extradition, and legal and procedural mutual assistance. Despite these definitional and disciplinary distinctions, ICL and TCL have much in common: both concern criminalized action which is ‘of international concern’ and both 14 Kevin Jon Heller, ‘What is an International Crime?’ (Supranational Criminal Law Lecture, Asser Institute, 3 March 2015) accessed 16 October 2018. 15 Neil Boister, ‘Transnational Criminal Law?’ (2002) European J of Intl L 953, 954 (hereafter Boister, ‘TCL’). 16 ibid 953.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

772 Christine Schwöbel-Patel are reliant on state assistance for effectiveness. It is debatable whether ICL also necessarily has an ‘actual or potential trans-boundary element’. Suffice to say here that mass atrocity cases mostly have a trans-boundary element, whether it is through the spilling over of violence across borders, or whether it concerns the financing of widespread violence. Regardless of this qualifier, the lines between core crimes and treaty crimes are blurry or even collapse. Indeed, two of the four core crimes are also criminalized in suppression conventions, making them also treaty crimes: genocide in the Genocide Convention and war crimes in the Geneva Conventions.17 The ambiguities of delimitation continue with Antonio Cassese, one of the most eminent international criminal lawyers, according to whom there are two distinguishing factors, namely that core crimes are customary law as opposed to treaty law, and that treaty crimes are routinely committed against states.18 If one refers to widespread ratification as indicative of custom, one could point to the 190 states parties to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988.19 Indeed, there have been calls to recognize drug trafficking crimes as customary international law from as early as the 1970s.20 Similar ambiguities emerge for Cassese’s other qualifier, namely that treaty crimes are usually committed against states: ‘They do not involve states as such or, if they involve state agents, these agents typically act for private gain’.21 But most of the accepted core crimes can, at least in part, be described as having been committed for private gain, whether this is for political or economic power. And, it does not require a significant stretch of the imagination to view cases involving ‘warlords’ and ‘rebel leaders’ at the ICC as crimes committed against the state. Recognizing such ambiguities, Roger O’Keefe concludes that the label ‘core’ is ‘both formally meaningless and factually misleading’.22 He points out that the adjective ‘core’ has no legal import, and that there are other crimes that are seemingly more prevalent (he uses corruption and transnational organized crime as examples). O’Keefe states that the label ‘core’ is: merely a historically contigent descriptor referable to no more than the twin facts that most of the crimes in question have featured within the respective jurisdictions ratione 17 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 102 US Stat 3045, 78 UNTS 277 (hereafter Genocide Convention) (art 5 obligates the Contracting Parties to ‘undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions’). 18 Cassese, ICL (n 6) 12–13. 19 20 December 1988, 1582 UNTS 95. The ICJ relied on treaty accession numbers as a method of identifying custom in the Legality of the Threat of Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep 226, 257–8. 20 Eduardo Jiménez de Aréchaga, ‘International Law in the Past Third of a Century’ (1978) 159 Collected Courses of the Hague Academy of International Law 1, 64–7. 21 Cassese, ICL (n 6) 12–13. 22 Roger O’Keefe, International Criminal Law (OUP 2015) 63 (hereafter O’Keefe, ICL).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Core Crimes of International Criminal Law 773 materiae of most of the international criminal courts seen to date and that the four of them are currently the only crimes triable by the International Criminal Court (ICC).23 O’Keefe states elsewhere, somewhat contradictorily, that criminalization under inter national law has not been motivated by a perception of the added expressive value of international over municipal law, but rather because otherwise there simply might be no criminalization at all.24 The already mentioned ambiguities, even contradictions, around distinction and delimitation indicate that the agreement on the list of core crimes may in fact be masking some important uncertainties about inclusion and exclusion.

B. Ambiguities in Defining Core Crimes as International Crimes Further ambiguities appear in the classification of core crimes as international crimes, with international crimes being the umbrella ‘genre’ of core crimes. Some conflate core crimes with international crimes,25 but the more common assumption is that the core crimes are a particular set of international crimes. Even at this seemingly foundational dividing line, there are uncertainties and contradictions among the leading voices of ICL. Robert Cryer distinguishes between domestic crimes and international crimes by referring to the locus of criminal prohibition. International crimes are, according to him, crimes whose locus is the international sphere. Even widely accepted norms such as torture, according to Cryer, do not qualify as international crimes if the treaties that have enshrined them are intended for domestic criminal law (echoing Boister’s distinction between ICL and TCL). Cryer uses the example of the Torture Convention, which obliges states to domestically criminalize torture, and the Genocide Convention, which provides for genocide to be an international crime.26 Although a seemingly pithy example, it has its flaws, for the Genocide Convention is, as already mentioned, a socalled suppression convention. Article 5 imposes obligations on states to domestically criminalize genocide. Rather than focusing on the locus of prohibition, Cassese refers to widespread ratification of human rights instruments to explain what international crimes are. As already mentioned, he views international customary law as the key distinguishing factor. Cassese references the 1945 UN Charter, the 1948 Universal Declaration of Human 23 ibid 63–4. 24 ibid 58. 25 See Boister, ‘TCL’ (n 14). Robert Cryer claims that there are ‘only four clear examples’ of inter national crimes, and that ‘there is very considerable agreement about the relevant norms’. Robert Cryer, ‘International Criminal Law’ in Malcolm Evans, International Law (3rd edn, OUP 2014) 753, 754 (here after Cryer, ‘ICL’). 26 ibid.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

774 Christine Schwöbel-Patel Rights, the 1950 European Convention on Human Rights, the two 1966 UN Covenants on Human rights, the 1969 American Convention on Human Rights, the UN Declaration on Friendly Relations of 1970, and the 1981 African Charter on Human and Peoples’ Right. Echoing the positivist position, Cassese comments defensively: ‘The values at issue are not propounded by scholars or thought up by starry-eyed philosophers’.27 Articulating yet a further notion of what constitutes an international crime, Kriangsak Kittichaisaree claims that ‘international crimes are those prosecuted before an international criminal tribunal, whether ad hoc or permanent.’28 This is an expansive reading of international crimes, and somewhat similar to Cryer’s jurisdictional dividing line. However, given that the tribunals have far-reaching, and vastly diverging interpret ations of international crimes, this also extends the list of international crimes. The Special Tribunal for Lebanon, for example, has jurisdiction over terrorist crimes under Lebanese law. In terms of the substance of an international crime, Kittichaisaree refers to a definition from the Hostages trial, one of the 12 subsequent Nuremberg trials held by the US Military Tribunal. In re List and Others, an international crime is defined as ‘a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the State that would have control over it under ordinary circumstances’.29 The purported distinguishing factor of ‘gravity’ does not appear to clarify the search. Indeed, as Meg deGuzman observes, ‘the theoretical basis and doctrinal contours of the concept remain uncertain’.30 Heller, in a recent article titled: ‘What is an international crime?’ answers the question he poses by stating that an international crime is an act that is universally criminal under international law.31 He therefore combines the international law aspect, which distinguishes an international crime from a domestic crime, and the universality aspect of an international crime, which distinguishes an international from a transnational crime. Heller sub-divides further between the direct criminalization thesis—criminalization regardless of domestic criminalization, with the potential of bypassing domestic law— and the national criminalization thesis—criminalization because every state is domes tically obligated to criminalize. In his opinion, if positivism is to be taken seriously, ICL must accept the national criminalization thesis. Heller thereby grapples with some of the contradictions of international crimes particularly as regards the natural law and 27 Cassese, ICL (n 6) 11. 28 Kriangsak Kittichasisaree, International Criminal Law (OUP 2001) 3. Also expressed by Bruno Simma and Andreas Paulus, ‘The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View’ (1999) 93(2) American J of Intl L 302, 308. 29 The Hostages Trial, US Military Tribunal at Nuremberg, 19 Feb 1948 (1953) 15 Ann. Dig. 632 at 636, cited in ibid. 30 Margaret M deGuzman, ‘Gravity and the Legitimacy of the International Criminal Court’ (2008– 2009) 32 Fordham Intl L J 1400, 1400–1. 31 Kevin J Heller, ‘What is an International Crime? (A Revisionist History)’ (2017) 58(2) Harvard J of Intl L 353.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Core Crimes of International Criminal Law 775 positive law amalgamation,32 attempting to emphasize a legal-positivist nature of international crimes. The expected result (positive law) thereby seems rather curiously to drive the enquiry. The uncertainty as to the question of ‘what is an international crime’ has prompted O’Keefe to comment that ‘[t]he approach one adopts to the concept of an international crime is as much a matter of taste as of law’. ‘We know it when we see it’.33 The disagreement around the distinction between core crimes and treaty crimes and around the def inition of international crimes interestingly and peculiarly overwhelmingly sways in favour of agreement when it comes to the catalogue of core crimes. Indeed, the disagreement as to how core crimes have become core crimes, and why, is generally brushed aside with a mention of the consensus as to the result. The definitions of the atrocity crimes ‘are the result of a consensus of the 160 States that participated in the 1998 Diplomatic Conference’, states Schabas.34 Such reference to formal equality hides the unequal political powers, allegiances, and pressure groups at the Rome Conference. Immi Tallgren consequently describes core crimes and international crimes as ‘linguistic phantoms’.35 Indeed, the question of what is core may, at the end of the day, be semantics. After all, there is no doubt that the crimes of genocide, war crimes, crimes against humanity, and aggression are extremely serious. But can we allow ourselves to be so dismissive of the justifications for the core crimes because the crimes are serious no matter how we categorize them, and because their criminalization must be ensured? At the very least, the ambiguous nature of core crimes makes the outer boundaries of ICL blurry: one might wonder where international crim inal law ends and transnational criminal law begins. As the designation of ‘core’ evokes a centre of most significant towards a periphery of less significant crimes,36 the list of other non-core international crimes must in some form be shaped by their relation to the privileged crimes.37 Indeed, this type of ‘framing’ is also a means of constructing the world in which we live, not only mirroring it.38 Such a line of enquiry will assist in reflecting on what is institutionalized as morally abhorrent and what is not. If we, as 32 Even the most ardent positivist will find it difficult to adhere to legitimation on the basis of legal authority in the face of the looseness with which the maxim nullum crimen sine lege was applied at Nuremberg. The so-called ‘Justice Case’ justified the ignoring of the non-retroactivity maxim, after all, on the basis of ‘the moral sense of mankind’. United States v. Alstötter et. al. (‘The Justice Case’, Case No 3) in Trials of war criminals before the Nuernberg Military Tribunals under Control Council law no. 10, Nuremberg, October 1946-April, 1949, Vol 3 (US GPO 1951) 977–8. 33 O’Keefe, ICL (n 21) (introducing the taxonomy ‘crimes pursuant to international law’ instead of ‘international crimes’ at 55). 34 Schabas, ‘Atrocity Crimes’ (n 4) 210. 35 Immi Tallgren, ‘The Voice of the International: Who is Speaking?’ (2015) 13 J of Intl Crim Justice 138 (hereafter Tallgren, ‘The Voice of the International’). 36 Robert Cryer makes no such distinction, for him international crimes and core crimes are the same. Cryer, ‘ICL’ (n 24). 37 Tallgren, ‘The Voice of the International’ (n 34). 38 Judith Butler, Frames of War: When is Life Grievable? (Verso 2010).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

776 Christine Schwöbel-Patel suggested by Gerry Simpson, assume that international criminal tribunals create histories, then the prioritizing of these particular crimes is important.39 This leads to the concrete question on when and why a treaty crime such as drug trafficking was disqualified as a ‘core’ crime of ICL? The qualifying question becomes more serious in light of the fact that there is, according to Roger Clark, ‘no obvious characteristic’ that renders treaty crimes singularly inappropriate for international adjudication.40 In the absence of an obvious characteristic, an analysis of the historical narrative may provide some answers on which crimes are included and which crimes are excluded from this catalogue, and why.

III. Continuities ‘from Nuremberg to Rome’ In the widely accepted historical narrative of ICL, a continuity ‘from Nuremberg to Rome’ is habitually presented,41 which is traced through developments from the IMT to the ICC, via the influences of the ad hoc and hybrid tribunals in the intervening period.42 For example, in a talk commemorating 60 years since the beginning of the Nuremberg trials, then President of the ICC Philippe Kirsch described the ICC as ‘a direct descendant of those trials’.43 The coming into force of the Rome Statute in 2002 was accompanied by scholarly work setting out the path ‘From Nuremberg to Rome: International Military Tribunals to the International Criminal Court’,44 and later works such as ‘The Nuremberg Military Tribunals and the Origins of International

39 Gerry Simpson, ‘Linear Law: The History of International Criminal Law’ in Christine Schwöbel (ed), Critical Approaches to International Criminal Law. An Introduction (Routledge 2014) 159–79. 40 Roger S. Clark, ‘Treaty Crimes’ in William A. Schabas (ed), The Cambridge Companion to International Criminal Law (CUP 2016) 215 (hereafter Clark, ‘Treaty Crimes’). 41 The trials in Nuremberg and Tokyo, it should be said, were also retrospectively regarded as the apex of a linear history of attempts to instate individual criminal responsibility in the international sphere. John Dugard described the trials as ‘a natural culmination of the pre-war debate over an international criminal court’, John Dugard, ‘Obstacles in the Way of an International Criminal Court’ (1997) 56(2) Cambridge L J 323 (hereafter Dugard, ‘Obstacles’). 42 There are other histories going back further than Nuremberg (for example with the proposal of individual accountability by the ICRC in 1872 or the debates about accountability of the German Kaiser after the First World War), but if they begin earlier, then they generally mark the Nuremberg trials as groundbreaking for the discipline of ICL. 43 Speech by Philippe Kirsch, President of the International Criminal Court, ‘From Nuremberg to The Hague. The Nuremberg Heritage: A Series of Events Commemorating the Beginning of the Nuremberg Trials’ (Palace of Justice, Nuremberg, 19 November 2005) accessed 17 October 2018 at 9 (hereafter Kirsch, ‘From Nuremberg to The Hague’). 44 Antonio Cassese, Paolo Gaeta, and JRWD Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (OUP 2002) 3, 18.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Core Crimes of International Criminal Law 777 Criminal Law’.45 With the activation of the jurisdiction of the crime of aggression at the Assembly of States Parties in New York in December 2017, the ‘legacy of Nuremberg’ was once more expressly invoked.46 Headlines such as ‘From Nuremberg to Manhattan’ continue the theme of a pathway.47 The IMT in Nuremberg is regarded as the ‘origin’ of both the ICC and international criminal law in general.48 The IMT had jurisdiction over (a) crimes against peace, (b) crimes against humanity, and (c) war crimes. Certainly, the trials in Nuremberg resonated beyond the immediate post-war period. Both in efforts to codify a statute of inter national crimes and in its implementation through a court, the IMT was a point of reference: The 1948 Convention on Genocide laid down genocide as a discrete crime and envisioned the punishment of the crime of genocide by an international court:49 The newly created UN International Law Commission took up the issue of creating a statute for a permanent court among its first tasks:50 The 1949 Geneva Conventions added new categories of war crimes, termed ‘grave breaches of the Geneva Conventions’: Between 1948 and 1954, a draft Code of Offences against the Peace and Security of Mankind and the possibility of a body that has jurisdiction over the offences was debated at the UN.51 The legacy of Nuremberg does not only radiate to an official institutional history (as propounded by Kirsch in his speech),52 but also in terms of the customary international law created. References to the Nuremberg trials by judges, notably at the ICTY, grounded the work of the Allied tribunal firmly in international criminal law jurisprudence. ‘Courts have consistently cited the NMT [the subsequent US-led Nuremberg trials] judgments and the Law No. 10 when addressing specific crimes against humanity’, observes Heller.53 However, lingering awhile on the suggestion from Trinidad and Tobago in 1989 for the establishment of a permanent international criminal court, one is struck by several dischords about this event that jar with the harmonious historical narrative of ICL: First, there is a curious dissonance in regard to the subject-matter, namely that the crime of 45 Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (OUP 2011) (hereafter Heller, Origins of ICL). 46 Alex Whiting, ‘Crime of Aggression Activated at ICC: Does it Matter?’ (Just Security, 19 December 2017) accessed 14 October 2018. 47 Matt Rhodes, ‘The Crime of Aggression: From Rome to Manhattan’ (Wayamo Foundation Production, 28 November 2017) accessed 17 October 2018. 48 See Heller, Origins of ICL (n 44). 49 Genocide Convention (n 16) (‘or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’ art 6). 50 The United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law, The Work of the International Law Commission (8th edn, UN 2012) accessed 17 October 2018. 51 Benjamin B. Ferenzc, An International Criminal Court, A Step towards World Peace: A Documentary History and Analysis (Oceana Publications 1980). 52 Kirsch, ‘From Nuremberg to The Hague’ (n 42). 53 Heller, Origins of ICL (n 44) 386. Law No. 10 was the occupation government’s legislation to prosecute less significant Nazis.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

778 Christine Schwöbel-Patel drug trafficking provided the impetus for requests for a permanent court but is not one of the crimes later labelled as ‘core’ crimes. It is worth mentioning that the letter to the General Assembly, which set out reasons for Trinidad and Tobago’s request, made no mention of the legacy of the Nuremberg trials. Second, it is unusual that a twin island state in the Carribean, situated off the coast of Venezuela, would set a path for what would later become a major international institution. In most accounts of the history of ICL, such an interruption in the natural linear and progressive flow is brushed over as though it were an insignificant blip. But what do we learn if we pay attention to discontinuities? In The Archeology of Knowledge, Michel Foucault seeks to demonstrate how the traditional history of ideas places an emphasis on continuities, creating a false sense of coherence. In the desire for unities, totalities, series, and relations, discontinuity was, according to Foucault, ‘the stigma of temporal dislocation that it was the historian’s task to remove from history.’54 The focus on discontinuities does not only reveal a lack of coherence or reveal contingency; it could also reveal a systematic preference or orientation, or even myth-making, which privileges utcomes over others. some o

IV. Discontinuities ‘from Nuremberg to Rome’ In addition to Trinidad and Tobago’s request to the General Assembly, I highlight three other discontinuities in the narrative of ICL in general, and core crimes in particular. These discontinuities relate to Nuremberg and the catalogue of atrocity crimes; discon tinuities concerning the Cold War and its supposed ‘freeze’ of international criminal law activity; and discontinuities concerning the post-Cold War era as a new beginning. The legacy of Nuremberg is generally considered to lie in the codifying and prosecuting of ‘atrocity’ crimes, however, it is worth re-emphasizing that the ‘centrepiece of the Nuremberg prosecutions was the “crime against peace” ’.55 Aggressive war, not war crimes, crimes against humanity, or genocide, was the criminilized act and so, in the words of David Luban, the ‘decisive legal achievement lay in recognizing the category of crimes against peace’.56 Although the crime of aggression is now officially part of the jurisdiction of the ICC, albeit in a narrow sense, the criminalization of mass organized killing,

54 Foucault, Archaeology of Knowledge (n 11) 9. 55 William Schabas, ‘Introduction’ in William Schabas (ed), Cambridge Companion to International Criminal Law (CUP 2016) 6. 56 David Luban, ‘The Legacy of Nuremberg’ (1986) 6 Report from the Centre for Philosophy and Public Policy 9.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Core Crimes of International Criminal Law 779 continue to dominate associations with the Nuremberg trials.57 Their hugely symbolic position as the point in history that l egitimates the i nternational criminal justice project is indeed marked by the short-hand reference of simply ‘Nuremberg’; the trials have become so iconic that they require no further reference other than the city in which they were held. The apparent linearity ‘from Nuremberg to Rome’ can be unsettled by a consideration of Nuremberg’s retrospective ‘judicialization’. Apart from persistent advocates like Ben Ferencz and Cherif Bassiouni, Nuremberg was in the following decades generally viewed as sui generis rather than as the ‘watershed moment in the development of ICL’.58 Speaking from the position of a long-standing career in international law, Anthony D’Amato recalls that when he was in law school in the 1960s, ‘the faculty, almost without exception, regarded the Nuremberg trials as a political aberration, as not “legal” ’.59 Writing in 1990, he comments on the changed legal culture: ‘Nuremberg stands for the primacy, albeit in the limited areas of warfare and genocide, of individual rights over the state’s.’60 With this, D’Amato is describing the retrospective legitimation of the Nuremberg trials as legal. That which had made Nuremberg an ‘aberration’, namely individual criminal responsibility, had quite extraordinarily become part of the accepted legal and public discourse. Writing in 1971 in the wake of the Vietnam War, Richard Falk’s account of Nuremberg is similar to D’Amato’s recollection. Falk opens his observations by stating that ‘people are skeptical about the moral stature of international law in the Nuremberg era.’61 Falk, an outspoken objector to the Vietnam War, ponders the potential accountability regimes that could be relevant to American involvement. He considers Nuremberg as a possible, if questionable, precedent for designating a state’s aggressive war as illegal.62 We find in Falk’s account an understanding of international crime which corresponds with the Nuremberg judgment of 1946, which states that the initiation of an aggressive war is the ‘supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.’63 This emphasis on aggressive war is quite different to most contemporary accounts of international crime, which foreground genocide, war crimes, and crimes against humanity. Particularly interesting for our analysis of discontinuity is that Falk expresses disappointment at the failure of Nuremberg 57 One might speculate here whether this is informed by the jurisdiction of the ICC, which in its first 15 years has prosecuted so-called atrocity crimes and not the crime of aggression. 58 Beth van Schaak and Ron Slye, ‘A Concise History of International Criminal Law’ in Beth van Schaak and Ron Slye (eds), International Criminal Law: Essentials (Aspen Publishers 2009) 27 (hereafter van Schaak and Slye). 59 Anthony D’Amato, ‘International Law in the Curriculum’ (1990) 2 Pace YB of Intl L 83, 89. 60 ibid. 61 Richard Falk, ‘Nuremberg: Past, Present, and Future’ (1971) 80 Yale L J 1500 (hereafter Falk, ‘Nuremberg’). 62 ibid 1505. 63 International Military Tribunal (Nuremberg), ‘Judgment’ in Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, vol XXII (IMT 1947) 427.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

780 Christine Schwöbel-Patel to act as precedent. Enumerating the various wars by the victorious powers of the Second World War between 1945 and the early 1970s, Falk laments: ‘The basic international reality, tragic from the perspective of Nuremberg, is that world public opinion, at least as it has crystallized in the setting of the United Nations, neither expects nor insists upon carrying forward the Nuremberg tradition.’64 These reflections suggest that the construction of Nuremberg and developments since have retrospectively been altered to highlight continuities and to erase discontinu ities. Recognizing that Nuremberg ‘stands as a nostalgic memory in the minds of inter national criminal lawyers’, Frédéric Mégret invites a view of Nuremberg as contextual and specific rather than part of a narrative of international legal and institutional destiny.65 In its specificity, according to Mégret, Nuremberg was a liberal-legal response in the very place where there had been a specific crisis of liberal-legalism.66 The specificity of Nuremberg therefore disrupts the universal legal-moralist language about Nuremberg presented today. Discontinuities can also be found in the Cold War narrative of ICL, described by influential scholars as ‘The Cold War Freeze’,67 or ‘The period of stagnation’.68 The Cold War period is generally understood, in the words of Kirsch again, as leaving ‘the Nuremberg legacy unfulfilled’.69 It is seen in the context of an excess of politics and a dearth of law. International relations are described as stagnating during the Cold War and only reinvigorating with the success of the liberal ideology over the socialist ideology with the fall of the Berlin Wall in 1989. In fact, the Cold War period was a decade of great activity in relation to the conceptualization and codification of international crimes. Only that the crimes in question related to what we would today refer to as transnational crimes but were then still international crimes—among them crimes relating to drug control.70 While the world’s first international drug control treaty, the International Opium Convention, was passed in the Hague in 1912,71 the most influential treaties created with the Assistance of the UN were the 1961 Single Convention on Narcotic Drugs, the 1971 Single Convention on Psychotropic Substances, and the 1988 UN Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The treaties were responses to the growing demand for cannabis, cocaine, and heroin for recreational purposes in the Western world. Higher demand increased the cultivation, manufacture, and distribution of cannabis, coca and opium. The Preamble of the 1988 64 Falk, ‘Nuremberg’ (n 60) 1524. 65 Frédéric Mégret, ‘Nuremberg and the Contemporary Commitment to International Criminal Justice’ (Völkerrechtsblog, 22 February 2017) accessed 17 October 2018. 66 ibid 4. 67 van Schaak and Slye (n 57) 38. 68 Cherif Bassiouni, ‘Revisiting the Architecture of Crimes against Humanity’ in Leila Nadya Sadat (ed), Forging a Convention for Crimes against Humanity (CUP 2011) 52. 69 Kirsch, ‘From Nuremberg to The Hague’ (n 42) 4. 70 There was activity around conceptualizing other international crimes, importantly including The Convention on the Suppression and Punishment of the Crime of Apartheid (1973). 71 International Opium Convention, 23 January 1912, 8 LNTS 188.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Core Crimes of International Criminal Law 781 Convention acknowledges illicit trafficking as an ‘international criminal activity’ in the context of international cooperation.72 In the dominant narrative, the 1990s are regarded as the period of the ‘rebirth’ of international criminal law. In contrast to the dominant narrative of rebirth, the inter national drug control agenda as part of an international criminal law narrative came to its demise during this time. Needless to say, this coincided with a demise of political and juridical will to pursue treaty crimes more generally as a matter of international legal jurisdiction. It is instructive to follow the course of the crimes involving the illicit traffic in narcotic drugs and psychotropic substances in order to trace how these came to be pushed from the top of the agenda to literally the bottom: We recall that in 1989, following Trinidad and Tobago’s request to the General Assembly, drug trafficking was considered so important as to propel the establishment of an international criminal court back onto the UN agenda. By 1994, when the International Law Commission presented a Draft Statute for an International Criminal Court, drug trafficking was one among other crimes.73 The preparatory consultations on the 1994 Draft Statute reveal that the ILC envisioned international crime and future ICL prosecutions to include a more expansive catalogue, based on what would later be called ‘core crimes’ and ‘treaty crimes’. There was already a distinction, however, between crimes of an international character and crimes found in suppression conventions. Although the latter were at this stage to be included in the statute, a clear expressive difference was beginning to emerge. The prohibition of genocide, although also acknow ledged by the ILC as technically an act criminalized in a suppression convention, was described as having such ‘fundamental significance’ as to provide it with exceptional status.74 The 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, on the other hand, was used to exemplify suppression treaties that present a jurisdictional ‘problem’ - whereby the ‘problem’ was that the crimes were not deemed to be of sufficient international concern.75 The ILC’s Draft Code of Crimes of 1996 ultimately omits crimes of illicit traffic in narcotic drugs altogether, with an explanatory note that consultation would continue as regards both this crime and the crime of wilful and severe damage to the environment.76 Following the ILC’s draft statute, the General Assembly created the Preparatory Committee on the International Criminal Court, which was tasked with resolving some of the more controversial points of the Draft Statute. This Draft Statute was then 72 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988, 1582 UNTS 95. 73 International Law Commission, ‘Draft Statute for and International Criminal Court with commentaries 1994’ [1994] 2 YB of the Intl L Commission 26. 74 At this stage in the drafting, it was suggested that the new court should have ‘inherent jurisdiction’ over the crime, regardless therefore of consent of the relevant state. This was to reflect the idea of the Genocide Convention itself, which attributes inherent jurisdiction to the ICJ. See ibid 36–7. 75 ibid 37. 76 Report of the International Law Commission on the work of its forty-eighth session 6 May–26 July 1996, UNGAOR, 51st Sess, Supp No 10, UN Doc A/51/10 (1996).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

782 Christine Schwöbel-Patel resented to the delegates assembled in Rome in 1998. At the UN Diplomatic Conference p of Plenipotentiaries on the Establishment of an International Criminal Court, drug trafficking crimes were still on the agenda—just one month before the adoption of the final document. The Sixth Meeting, held on Thursday 18 June 1998, proposes crimes involving the illicit traffic in narcotic drugs and psychotropic substances under the Draft Statute.77 Bundled together with the highly contentious question on the inclusion of the crime of aggression, and other treaty crimes, very few states spoke in favour of including drug trafficking crimes in the Draft Statute. Delegates justified their objection to including these crimes with mentioning fears of overburdening the fledgling court, the premature nature of these discussions, and that they would prove a distraction to other (more important) crimes. Only the delegates of Trinidad and Tobago, Costa Rica, Thailand, Sri Lanka, and Algeria were outspoken in their support of inclusion. They were up against the powerful voices of France, Germany, India, Iran, Russia, Saudi Arabia, and the UK, amongst others.78 In the final draft, drug trafficking crimes had disappeared. In the final marginalization, quite literally, one finds the crime of drug trafficking in Annex I of the Final Act, alongside other treaty crimes, in which it is recognized ‘that the international trafficking of illicit drugs is a very serious crime, sometimes destabilizing the political and social and economic order in States’. Regret is expressed that ‘no generally acceptable definition of the crimes of terrorism and drug crimes could be agreed upon for the inclusion, within the jurisdiction of the Court’. And finally, it is affirmed that the Statute provides a mechanism for review.79 And in this way, the crimes were shelved. As Kiefer noted: There is some measure of irony in this result: the impetus for the movement to create the ICC was the desire to create an international court to try drug traffickers, and yet, the result of the movement, the Rome Statute, deprived the Court of jurisdiction over drug trafficking offenses.80 In the end, Trinidad and Tobago abstained from voting to adopt the Rome Statute. In the contemporary narrative, the success of the negotiations of Rome are celebrated. The celebrations are captured in the film footage of the signing of the treaty, showing delegates embracing, clapping rhythmically.81 In this narrative of success, the new and residual discontentment of some delegates is edited out.

77 Rome Conference, Summary Records (n 3) 171. 78 ibid 171–9 (Part 2. Jurisdiction, Admissibility and Applicable Law). 79 ‘Resolutions Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal court’ in The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 15 June–17 July 1998, Official Records, Vol I, Part B: Final Act, Annex I(E), UN Doc A/CONF.183/10, (17 July 1998). 80 Kiefer, ‘Just Say No’ (n 13) 165. 81 See Skylight Pictures, ‘The Reckoning - History of the ICC - POV | PBS’ (28 October 2015) at 7m:05 s. accessed 23 April 2019.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Core Crimes of International Criminal Law 783 Certainly, in regard to recognizing drug trafficking as an international crime, there are relevant questions which arise: whether and how evidence could be obtained; whether cooperation among states and enforcement agencies would be a problem; whether individual criminal accountability really would deter continued trafficking; whether there would be sufficient resources; which countries to focus on; not to forget the question whether criminalization of drug use is the correct policy. However, these are questions that by and large apply to all current core crimes, and any future additions. Ultimately, rather than being seen as a blip in the progress narrative, it should be taken seriously that the crime which was deemed important enough to revive a legal and political process committed to an international criminal court, was, in less than a decade of negotiations, excluded from the list of international crimes altogether. Not only was the post-Cold War political and juridical landscape a time of demise of treaty crimes, the ‘newness’ narrative can also be disrupted with a view to continuities. Whilst ideological barriers between the Permanent Five of the Security Council had seemingly been overcome in the 1990s, the turn to universalism and institutionalism was based on the old norms of international law. The negotiations leading up to Rome are to be understood in an international legal and political context that deepened and consolidated economic liberalization. In addition, the USA’s position as global hegemon, a path already paved during the Cold War, was to solidify in the 1990s. Against this background, the 1990s provided a renewed legal and moral authority to post-Second World War trial and reconstruction efforts. Continuity and solidifying of old powerconfigurations is evidenced in what Falk already foresaw in the 1970s: that the crime of aggression should remain unfulfilled due to the hypocrisy of Nuremberg; the powerful states are not themselves subjected to the liberal-legal order that they played such a key role in constructing. Commenting on the exclusion of some crimes and inclusion of other crimes, Roger S. Clark observed that ‘[s]ometimes international drafting partakes of the random’.82 However, the historical analysis in this chapter has shown that inclusions and exclusions are not random. Instead of highlighting alternative linear paths, say an ICC of economic crimes, the discontinuities highlight that one a particular path was more likely to be taken than others, not in a random way, but in a predictable way.83 The simultaneous continuities and discontinuities reveal what Susan Marks has termed ‘false contingency’.84 The concept of false contingency tells us that the course of events is neither entirely fixed nor entirely open. But there are certain orienting factors in how change is shaped, which must be placed in the context of present circumstances, given and inherited.85 The following part illuminates these orienting factors further. 82 Clark, ‘Treaty Crimes’ (n 39). 83 As regards predictability of change, see Marks’s notion of ‘false contingency’. Susan Marks, ‘False Contingency’ (2009) 62(1) Current Legal Problems 1. 84 I thereby depart from Foucault and place history within its material setting. See ibid. 85 Marks references here Karl Marx, ‘The Eighteenth Brumaire of Louis Bonaparte’ in Terrell Carver (ed), Marx: Later Political Writings (CUP 1996) 32.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

784 Christine Schwöbel-Patel

V. Biases of the Core Crimes Although often deemed as ‘naturally’ the most serious international crimes, the previous parts have revealed that the core crimes have, in fact, been constructed to be privileged in their status vis-à-vis other serious crimes. I identify three interrelated factors at play in the designation of genocide, war crimes, crimes against humanity, and the crime of aggression as the four ‘core’ crimes—at the exclusion of other contenders for this status.

A. Civilization Bias First, although ‘civilization’ is a word that is now ‘mostly considered an embarrassing relic of a long-gone era’,86 the crimes include a bias towards it. It is no secret that despite formal equality of states under international law, a distinct North-South division continues to be displayed in terms of those who benefit from international institutions and norms. This inequality became institutionalized and normalized during the colonization of much of the Latin Americas, Africa, and Asia by European colonial powers from the 16th century onwards. Colonization not only meant the loss of land rights and many other rights, it also meant labour and land exploitation for the enrichment of the colonial powers. It is well known that much of the justification for these impositions and exploitations were performed in the name of a ‘civilizing mission’. International law played an organizing, legitimizing, and juridifying role.87 Despite the events of de-colonization and despite the relative decline of the concept of ‘civilization’, many of these impositions and exploitations remained firmly in place. Hegemony through violence was replaced through softer means in the form of trade deals, the emplacement of economic elites and racialized others, and through debt and aid dependencies imposed and legitimated by international financial institutions.88 In the Gramscian sense, this type of hegemony is imposed not through violence but through consent.89 Such consent may be evidenced through the signing of multilateral or bilateral agreements that ultimately reify inequality. The idea of a divide between the uncivilized, the civilizing, and the civilized as a stagist progression has, as recently argued by Ntina Tzouvala, been replaced by notions of 86 Ntina Tzouvala, ‘Civilisation’ in Jean d’Aspremont and Sahib Singh (eds), Concepts for International Law: Contributions to Disciplinary Thought (Edward Elgar 2018) (hereafter Tzouvala, ‘Civilisation’). 87 The Mandate System of the League of Nations most explicitly performed the ‘civilising mission’. See Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2005) 115f. 88 Among the wealth of literature, see on Gramsci and international relations, Robert W. Cox, ‘Gramsci, Hegemony, and International Relations: An Essay in Method’ (1983) 12(2) Millenium 162–75. On hegemony as a concept in international law see Robert Knox, ‘Hegemony’ in Jean d’Aspremont and Sahib Singh (eds), Concepts for International Law: Contributions to Disciplinary Thought (Edward Elgar 2018). 89 Antonio Gramsci, Selections from the Prison Notebooks (first published 1971, Quentin Hoare and Geoffrey Nowell-Smith (eds and trs), Lawrence & Wishart 2005).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Core Crimes of International Criminal Law 785 development and progress.90 Crucially, becoming civilized is constructed as attainable, according to an understanding of the future overcoming the past. The linearity of the progress narrative has already been mentioned, but it is in this context of civilization where its ideological purpose becomes evident. The progress narrative of ICL states that Europe has a ‘dark history’, one which it learned from as well as overcame. The 1930s as the darkest decade of all saw a gruesome World War, racial hatred leading to genocide, the zenith of fascism, as well as the Great Depression.91 In ICL’s narrative, the light of justice won over the darkness of barbarism. Nuremberg’s story from host city for Nazi rallies to host city for the trials could not be more apt. In this story, barbarism lives on in other parts of the world, which must follow the European example to overcome darkness. This narrative, which sits alongside the very real concentration of ICC trials in Africa, maintains a North-South divide in ICL. It is a reproduction of colonial logic. The designation of the main characters of ICL, as victims, perpetrators, and legal representatives, sits comfortably within the civilization bias: perpetrators are deemed savages or warlords, their victims as entirely innocent (and lacking agency), and legal representatives are the muscular legal humanitarians of the light.92 The racialization of both perpetrators and victims is reminiscent of the simplistic notions of backwardness and savagery associated with the uncivilized in the 19th century. The relationship between drugs and the criminal justice system is, in contrast, argu ably more complex, making it far less suitable for the progress narratives of civilization. To begin with, the line between the licit and illicit market are often blurry.93 Moreover, matters relating to the criminalization of dealing drugs, using drugs, crimes committed under the influence of drugs, turf wars of drug gangs, acquisitive crime by dependent users, are all complex. Clearly drug crimes are committed both in the Global North and the Global South. Whilst large-scale cultivation mainly occurs in the Global South, distribution and consumption occurs across the world. The opioid crisis in the USA, for example, is well-documented, with overdoses being the leading cause of death for Americans under 50 years old.94 If drug trafficking were to be recognized as a crime by the ICC, international crime would, with some important qualifications, be—quite literally—back 90 Tzouvala, ‘Civilisation’ (n 85) (drawing on the distinction between vocabulary and grammar of international law set out in Martti Kosenniemi, From Apology to Utopia (CUP 2005)). See also Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (CUP 2011). 91 This theme is maintained in Zara Steiner, The Triumph of the Dark: European International History 1933–1939 (OUP 2011). 92 For a critical analysis of the image of victims of international crime, see Christine SchwöbelPatel, ‘Spectacle in International Criminal Law: The Fundraising Image of Victimhood’ (2016) 4(2) London Rev of Intl L 247. For a discussion on the complexities of victimhood, see Mark Drumbl, ‘Victims Who Victimise’ (2016) 4(2) London Rev of Intl L 217; Erica Bouris, Complex Political Victims (Kumarian Press 2007). 93 Victims of drug use are often those who have misused licit drugs. 94 F B Ahmad and others, ‘Provisional Drug Overdose Death Counts’ (National Center for Health Statistics, 12 September 2018) accessed 17 October 2018.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

786 Christine Schwöbel-Patel on the Western map. Linked to this is the fact that the prosecution of drug-related crimes tends to force structural problems to the surface. The close connection between drugs and poverty, unemployment, and social exclusion necessitates investigations of inequality through institutions, law, and processes. That is not to say that a civilizational bias does not exist as regards drug crimes. Arguably, the isolation and confinement of drug crimes to particular spaces and groups recreates a civilizational narrative. Certain drugs, such as crack, are considered to be consumed by the less civilized (often black or racialized communities) whilst cocaine, for example, is socially and legally constructed as a vice or excess by its wealthier users.95 So whilst drug use is to be found in all classes (one might think of the drugs scandal of the UK House of Lords, for example), criminalization overwhelming affects racialized, lower class, and poor communities. The racialized and gendered stereotypes of drug dealers in the popular imaginary (sparked by punitive criminal policies that target specific individuals), also recreates a civilizational narrative of barbarism.96 However, here too contradictions appear, for example, as regards the broad-brush criminalization of distribution and the selective legalization of consumption. Overall, the complicated and contradictory nature of drug-related crimes and criminalization sits uneasily with the ICL progress narrative and would unsettle the moralistic higher ground attained by Western countries in regards to the contemporary catalogue of core crimes.

B. Political-Economic Bias It will already have become clear that the civilization bias outlined in the previous section is closely linked to a political-economic bias. A political-economic bias is framed here as given if there are material benefits to be gained through deeming certain crimes as ‘core’ crimes. For example, this might be the case if there is a correlation between those who fund the project of international criminal justice and those who benefit from it. Despite the proclaimed dedication to fighting drug trafficking, the 1988 Convention, as the status quo of transnational crime, tends to benefit the interests of powerful states while creating burdens for weaker states. Inequalities are sustained and created in several ways: first, the Convention includes provisions to either extradite or try offenders (aut dedere aut judicare), benefiting those states who have the resources to make the choice. Prosecuting drug barons who can afford legal defence teams, and keeping bribery and influencing at bay, is a greater burden for those who have empty state coffers, where gathering evidence is expensive and salaries are low. Poorer states not only lack

95 Cocaine is the same drug as crack cocaine, but more expensive and pure. Many thanks to Randle DeFalco for pointing me in the direction of this necessary qualification, particularly for the US context. 96 In the US context, the ‘enemy’ of the war on drugs was constructed as coming from South America. See Curtis Marez, Drug Wars: The Political Economy of Narcotics (University of Minnesota Press 2004) 4.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Core Crimes of International Criminal Law 787 resources for complex trials, they are generally less active in requesting extraditions.97 A further means of protecting powerful interests is in the 1988 Convention placing those involved in cultivation, production, and trade of narcotic drugs and psychotropic substances outside the law, rather than those involved in large-scale distribution networks or enabling of such networks. The Convention regime is therefore more likely to capture the ‘small fry’ as opposed to the ‘big fish’ of the drug trade. More generally, the economics of drug criminality tends to uphold income dispar ities. Naturally, there is much money to be made from drug trafficking and, it does not really need spelling out, addicts are the best customers, searching out the commodity regardless of criminalization. Drug trafficking in these terms is a form of exploitation, particularly of those already living in poverty, and its prosecution is inconsistent, with many voicing concerns over the racialized form of criminality relating to drug crimes.98 Interested in the economics of drug criminality, Foucault observed how in the 1960s the policies of controlling and dismantling the refining networks, and controlling and dismantling the distribution networks increased the unit price, favouring and strengthening the monopoly or oligopoly of some big drug sellers, traffickers, and big drug refining and distribution networks.99 Arguably, this is an extreme case of monopoly capitalism, where those owning the biggest means of production are shielded by impunity and small-scale competitors are criminalized. Indeed, it merits emphasizing that the global drug market is far more lucrative because of its illicit nature. The impunity of the rich and the criminalization of the poor in the context of a global exploitative economy around desirable resources arguably finds parallels in the structures of debt imposed on countries in the Global South in order to forcefully implement interests of the Global North. Not to speak of combating drug trafficking as a justification for military intervention, as was the case with the US invasion in Panama in 1989. During the drafting negotiations of the nascent Rome Statute, Dugard already notes that the principle reason for exclusion of the treaty crimes from the Draft Code were not those officially voiced (that they did not qualify as customary international law, and that they would overburden and trivialize the Court), but rather the main reason for resistance ‘is that powerful states prefer the present arrangement under the treaties’.100 Generally, the states that are the largest financial contributors to the international crim inal justice project have a greater interest in the punishment of ‘warlords’ than they do in the punishment of those pulling the strings of the illicit drug trade (‘drug lords’ or financiers of money laundering, ‘Wall-Street-lords’). Whilst the criminalization of warlords tends to localize conflict, the money flows of drug-lords and financiers tends to expose

97 Neil Boister, ‘The Exclusion of Treaty Crimes from the Jurisdiction of the Proposed International Criminal Court: Law, Pragmatism, Politics’ (1998) 3 J of Armed Conflict L 27, 35. 98 Frédéric Mégret and Randle DeFalco, ‘The Invisibility of Race at the ICC: Lessons from the US Criminal Justice System’ (forthcoming, draft on file with the author). 99 Michel Foucault, The Birth of Biopolitics, Lectures at the Collège de France, 1978–1979 (Graham Burchell (ts), Arnold Davidson, Michel Senellart and others (eds), Palgrave 2008) 257–8. 100 Dugard, ‘Obstacles’ (n 40) 334.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

788 Christine Schwöbel-Patel global capital flows that benefit the richer states. Those benefiting from chains of exploitation unquestionably attempt to maintain the status quo.101 We see then in the civilizational bias and in the political-economic bias, a politics of distraction taking place. Whilst the narrative highlights the progress narrative of ICL, the deeper global inequalities remain in place and hidden from view. The following section focuses on the aesthetics of this politics of distraction.

C. Aesthetical Bias By focusing on direct physical violence, with its casualties and gore and seemingly clear distinctions between victims and perpetrators, the ICC, and other tribunals, are argu ably arresting the attention with physical violence and diverting it away from structural inequalities.102 Considering the aesthetics of the core crimes is a means to question the way in which the hierarchy of crimes is constructed and perceived. An enquiry into aesthetics and law foregrounds questions on constructions of law’s space, law’s language, law’s signs, and law’s images. Aesthetics is therefore not simply about beauty or about what we see; rather aesthetics is to be understood as the ‘formalization’ of experience.103 In other words, aesthetics concerns the frame for common sense; with common sense denoting the social relation between sense/experience and meaning.104 A crucial question in thinking about experiences that formalize our common sense pertains to the dominant aesthetic: what is the usual, (stereo)typical, habitual way of experiencing core crimes in international criminal law?105 The core crimes in their predominant understanding privilege a certain type of spectacular crime; in O’Keefe’s words: ‘We know it when we see it’.106 Certainly, the public perception of core crimes is informed by gruesome events etched into the mind’s eye and evoked by place names such as Auschwitz, Srebrenica, and Rwanda. This public perception cannot simply be attributed to a sensationalist media but is regularly invoked and reinforced by international criminal tribunals. One might think of the ICC’s construction of perpetrators as ‘warlords’ and brutal leaders as exemplifying the distancing that takes place through visual and discursive techniques. The racialized, hyper-masculine, and violent portrayal of perpetrators of international crimes shifts the imagination of atrocity towards physical violence and away from other forms of violence such as the 101 Susan George, How the Other Half Dies: The Real Reasons for World Hunger (first published 1977, Rowman & Littlefield 1989). 102 On the condition of international law as a discipline of crisis, see for example, Hilary Charlesworth, ‘International Law: A Discipline of Crisis’ (2002) 65(3) Modern L Rev 377. 103 Jacques Rancière, The Politics of Aesthetics: The Distribution of the Sensible (first published 2006, Gabriel Rockhill (ed et tr), Bloomsbury 2013). 104 ibid. 105 These questions are dealt with in depth in Christine Schwöbel-Patel and Robert Knox (eds), The Aesthetics and Counter-Aesthetics of International Justice (forthcoming). 106 O’Keefe, ICL (n 21) 55.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Core Crimes of International Criminal Law 789 white-collar crime of drug money laundering, or structural violence such as poverty, which is perpetuated in drug economies. The distraction afforded by the spectacle of violent crime means impunity for what Rob Nixon has termed ‘slow violence’. With this, he means ‘disasters that are slow moving and long in the making, disasters that are anonymous and that star nobody, disasters that are attritional and of indifferent interest to the sensation-driven technologies of our image-world’.107 Although the ICC’s Al-Mahdi case, which concerned cultural heritage crimes, and the Office of the Prosecutor’s stated intent to pursue land-grabbing and environmental crimes may see a change in direction towards more property-focused crimes, the past narrative has relied on a privileging of ‘fast’, spectacular and physical violence crimes. Such prioritizing is articulated in the Trial Chamber’s words, stating that property crimes ‘are generally of lesser gravity than crimes against persons.’108 Much of the legitimation of the 1993 establishment of the ICTY, for example, was aesthetically positioned with reference to the 1945–1946 Nuremberg trials. The circulation in the Western media of images of Bosnian Serb concentration camps put ethnic cleansing and mass atrocity back on the agenda. What one might call the ‘legitimation aesthetics’ for the Tribunal echoed memories of Nuremberg in numerous ways: the photographs of ethnic cleansing and mass graves were black and white (although colour photography had long been dominant), and the rhetoric was one that explicitly referred to the International Military Tribunal. The illicit drug trade, in contrast, neither visually produces the kind of victims that immediately evoke compassion, nor does it allow the simple exercise of categorization of victim and perpetrator. Addicts tend to be both victims and perpetrators, as do dealers. Those involved in the cultivation of drugs are often both perpetrators in the supplychain as well as victims of it too, at the very least in the exploitation of their labour. Naturally, the blurriness between the categories of victim and perpetrator is a feature of the core crimes too, but the distinctions that uphold the status quo can aesthetically be easier conveyed here. In ICL, this tends to result in a dominant aesthetics of victims and perpetrators from the Global South (recipients of justice) and legal representatives from the Global North (distributors of justice). The distraction of spectacularized violence not only suits the powers that might be vulnerable to the criminalization of ‘slow violence’; it also arguably suits the interests of the academy. ICL is the terrain of expertise of violent crime, creating a morally seemingly straightforward global regime.109 Transnational crime is the terrain of expertise of complex networks of criminality. Of note here is the disciplinary distinction between international criminal law and transnational criminal law, advocated by the most wellknown contemporary scholar of transnational criminal law. Boister’s article, published

107 Robert Nixon, Slow Violence and the Environmentalism of the Poor (Havard UP 2011) 3. 108 The Prosecutor v. Ahmad al Faqi Al Mahdi (Judgment and Sentence) ICC-01/12–01/15, (27 September 2016) (Trial Chamber VIII) para 77. 109 Christine Schwöbel, ‘The Comfort of International Criminal Law’ (2013) 24(2) Law and Critique 169.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

790 Christine Schwöbel-Patel in the year of the coming into force of the Rome Statute, performs a particular politics of expertise, setting out clear distinctions and delimitations between areas of expertise.110 The civilizational bias, the political-economic bias, and the aesthetical bias are interconnected and mutually reinforcing. Tropes and images of racialization, barbarism, backwardness, and economic marginalization in the global order have organizing effects on which crimes are considered as ‘core’. Such biases also have material-distributive effects, ultimately benefiting economically powerful states and individuals over others.

VI. Conclusion The core crimes of international criminal law capture some of the greatest concerns about human misconduct. And yet, ambiguities around the definition and delimitation of the core crimes of international criminal law raise questions regarding the seeming overwhelming agreement on the catalogue of core crimes. With a focus on discontinu ities, I have sought to highlight that the catalogue of core crimes is not necessarily based on an inherent quality in the crimes themselves, but rather is to be understood as part of international law’s linear progress narrative. Indeed, the catalogue of core crimes is far more contested than this linear progress narrative would have us believe. The retro spective legitimation of this path and the systematic editing of discontinuities and ruptures reveals important biases. Following the story of drug trafficking as international to transnational crime reveals both discontinuities as well as continuities that unsettle the habitual historical narrative ‘from Nuremberg to Rome’. The crime of genocide, war crimes, crimes against humanity, and aggression are then inhabited by three interconnected biases. The civilizational bias, the political-economic bias, and the aesthetical bias all play a critical role in retaining rather than disrupting given power structures. Such currents of stabilization on the one hand, and destabilization on the other, offer a wider view onto similar trends within the international criminal justice system as a whole. While seemingly stable, there are increasingly destabilizing currents. The more the ICC is revealed as playing a contributing role in global economic inequality, either knowingly or unknowingly, the more destabilizing currents are likely to arise. Such destabilization may take place on various fronts: it may involve a demand for investigating economic crimes, it may concern the unwavering questioning of selectivity, or it may be a more radical questioning of the utility of the system itself. It is clear that the core crimes of ICL lie at the heart of the broader international criminal justice project and must therefore be questioned, if not destabilized.

110 Boister, ‘TCL’ (n 14).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

chapter 34

Tr a nsnationa l Cr i m e s Douglas Guilfoyle

MACBETH: How now, you secret, black, and midnight hags? What is ‘t you do? ALL: A deed without a name.1

I. Introduction: What Are Transnational Crimes? Any definition depends on exclusion. We know international criminal law in part through what it is not. We now tend to distinguish between the big four ‘core’ crimes prosecutable before international criminal tribunals (genocide, war crimes, crimes against humanity, and aggression) and a residuum of other internationally defined or treaty-based offences. The former are generally taken to constitute international crimes ‘properly so called’ while the latter are lumped together as transnational crimes. Both categories lack convincing and coherent definitions and are as a result somewhat protean. Indeed, it is open to question whether they are anything more than two faces of the one Janus-like phenomenon, a single genus rather than separate species.2 International criminal law was, historically, a broadly conceived term, encompassing all crimes defined under general international law or found in treaties. Bassiouni, in many ways the founder of the modern field in English, held that ‘[i]nternational crim inal law is a relatively new discipline that consists of the penal and procedural aspects of

1 William Shakespeare, Macbeth, Act 4, Scene 1. 2 Roger O’Keefe, International Criminal Law (OUP 2015) 61 (hereafter O’Keefe, ICL).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

792 Douglas Guilfoyle international law and the international procedural aspects of national criminal law’.3 This expansive approach led him to include within his definition of international crimes not only the big four but also: offences against United Nations personnel, the theft of nuclear materials, mercenarism, slavery, torture, piracy, various terrorism offences, unlawful traffic in drugs, bribery of foreign public officials, and unlawful interference with international submarine cables, among others.4 A similar range of crimes was included in 1984 in the Second Report of the International Law Commission (ILC) Special Rapporteur on the Draft Code of Crimes against the Peace and Security of Mankind who would have included inter alia: colonialism; apartheid; hostage-taking; mercenarism; the threat or use of violence against internationally protected persons; and ‘acts causing serious damage to the environment’.5 (The influence of the ILC Draft Code is returned to later). Indeed, a broad understanding was still current as late as the negotiation of the Rome Statute of the International Criminal Court (ICC). The Rome Statute recalls in its preamble that ‘it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’. This was understood to refer equally to the ‘missing’ international crimes,6 those crimes mooted during negotiations but which ultimately were not included in the statute, ‘above all . . . terrorism and narcotics trafficking’,7 crimes now commonly considered transnational. The crimes now generally classed as transnational fall into three broad categories: offences against the person, crimes addressing regulatory failures, and crimes of corruption. This rough categorization may be presented in tabular form (see Figure 34.1):

Offences against the person

Regulatory failure

Corruption

Acts of terrorism Human trafficking

Trafficking in guns, people, drugs Migrant smuggling Environmental crimes

Bribery of foreign officials Financing of terrorism

Figure 34.1 Categories of Transnational Crimes

3 M. Cherif Bassiouni, ‘The Sources and Content of International Criminal Law: A Theoretical Framework’ in M. Cherif Bassiouni (ed), International Criminal Law, vol 1: Crimes (2nd edn, Transnational 1999) 8. 4 ibid 3. For a similarly expansive approach see Ilias Bantekas and Susan Smith Nash, International Criminal Law (3rd edn, Routledge 2007) including chapters on terrorism, transnational crimes, ‘offences against the person’, and the law of the sea. 5 ‘Draft Code of Crimes against the Peace and Security of Mankind’ (1984) 2 UN YB Intl L Commission 89, 100. 6 Patrick Robinson, ‘The Missing Crimes’ in Antonio Cassese and others (eds), The Rome Statute of the International Criminal Court: A Commentary, vol 1 (2000) 508–9 (hereafter Robinson, ‘The Missing Crimes’). 7 Gerhard Werle and Florian Jeßburger, Principles of International Criminal Law (3rd edn OUP 2014) 45, fn 254 (hereafter Werle and Jeßburger, Principles of ICL).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Transnational Crimes 793 In terms of crimes of violence and other serious offences against the person, the ‘suppression’ or ‘terrorism’ conventions are typically directed at the violent acts or offences against the person irrespective of the motive for which they are committed.8 Such acts include bombing, aircraft hijacking, hostage taking, and offences against the safety of maritime and air navigation or the safety of fixed platforms on the continental shelf.9 Human trafficking (as an offence under the Protocol to the UN Transnational Organized Crime Convention as opposed to a crime against humanity)10 should also be considered an offence against the person and by definition involves (at the least) serious forms of exploitation and coercion.11 These offences, however, do not always involve a border-crossing or other obviously transnational element. For example, human trafficking for the purposes of exploitation may occur within national borders (as distinct from migrant smuggling for profit that by definition involves border-crossing).12 Numerous other transnational offences are essentially aimed at criminal conduct that arise in a context of regulatory failure. Illicit trafficking or smuggling of guns, narcotics, migrants, antiquities, and even human organs represents the activity of black markets providing products or services for which people will pay in the absence of a licit market. The regulatory failure is thus either to provide (where ethically possible) a ‘white’ market or to effectively suppress the ‘black’ market. These offences may commonly involve bordercrossing but do not necessarily need to as a matter of definition.13 Not everything, however, that may be referred to as a transnational crime in a common sense or criminological fashion is necessarily the subject of a tailored international legal regime. Generally speaking, there are no international instruments dealing with the definition and coordinated prosecution of environmental crimes, with the possible exception of the Convention on International Trade in Endangered Species.14 Thus, while transnational environmental crime is an acknowledged criminological category,

8 O’Keefe, ICL (n 2) 249. 9 See, e.g., Convention for the Suppression of Unlawful Seizure of Aircraft, 1970, 860 UNTS 105; International Convention against the Taking of Hostages, 1979, 1316 UNTS 206; Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988, 1678 UNTS 201; Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, 1988, 1678 UNTS 304. 10 cf Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 2000, 2237 UNTS 319, art 3(a) (hereafter Trafficking Protocol); and Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, UN Doc A/CONF.183/9 (in force 1 July 2002), art 7(2)(c) (hereafter Rome Statute). 11 See Jean Allain, Slavery in International Law: Of Human Exploitation and Trafficking (Martinus Nijhoff 2012); Anne T Gallagher, The International Law of Human Trafficking (CUP 2010). 12 Trafficking Protocol (n 11) art 3(a). 13 The exception being Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 2000, 2241 UNTS 507, arts 3(a) and (b); The Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, 2001, 2326 UNTS 237, art 3(e). 14 1973, 993 UNTS 243.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

794 Douglas Guilfoyle it is at best an emerging legal category.15 Some support for the latter proposition is found in the Malabo Protocol’s inclusion of illicit exploitation of natural resources and trafficking in hazardous wastes.16 However, such illicit exploitation/dumping offences could also more generally be regarded as species of regulatory failure. Corruption offences, broadly conceived, involve the perversion of public administration by bribery or threats of force. I include the Terrorism Financing Convention under this heading as it has as one possible offence the financing of a group that carries out an act of violence in order to force a government into a particular course of action.17 Once again, a border-crossing element is not necessarily a part of the offence. The account given so far, however, is merely descriptive or taxonomic. The position taken in this chapter is that there is no doctrinally sound distinction to be made between the ‘core’ or ‘big four’ international crimes and transnational criminal law. The argument unfolds first through conducting a more detailed review of how, historically, the distinction appears to have come about. Second, it will move to consider some of the attempts that have been made to formulate a meaningful definitional distinction between ‘core’ and ‘transnational crimes’. Third, it will consider two ‘liminal’ crimes often presented as standing at the threshold between international crimes and transnational crimes: piracy and torture. The point of such a review is to illustrate the difficulty of drawing meaningful distinctions. Finally, the chapter will conclude through offering a tentative conceptual framework that may allow a more coherent approach to the question of what constitutes a transnational crime (and by implication, an international crime) to the extent such distinctions can meaningfully be made.

II. A Conjoined History It is unsurprising that the histories of transnational and international criminal law are deeply mutually implicated given that the core-and-periphery distinction between them has arisen only recently. It is well known that the first proposal for an international criminal court was made in response to anarchist bombing,18 and that renewed interest 15 The classic work is Rob White, Transnational Environmental Crime: Toward an Eco-global Criminology (Routledge 2011). The question has been raised whether environmental destruction can be prosecuted before the ICC as a crime against humanity: Caitlin Lambert, ‘Environmental Destruction in Ecuador: Crimes Against Humanity Under the Rome Statute?’ (2017) 30 Leiden J of Intl L 707–29. 16 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (2014) art 28A(1)(12) accessed 5 July 2018 (hereafter Malabo Protocol). 17 International Convention for the Suppression of the Financing of Terrorism, 1999, 2178 UNTS 197, art 2(1)(b). 18 Charles Townshend, ‘ “Methods which all civilized opinion must condemn”: The League of Nations and international action against terrorism’ in Jussi M. Hanhimäki and Bernhard Blumena (eds), An International History of Terrorism: Western and Non-Western Experiences (Routledge 2013) 35. See Convention for the creation of an international criminal court, League of Nations, 1937; and the limited extradite or prosecute obligation contained in its partner treaty Convention for the Prevention and Punishment of Terrorism, 1937, art 10. The text of both can be found in Final Act of Conference, Geneva,

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Transnational Crimes 795 in an international criminal court in the 1990s was first prompted by Trinidad and Tobago’s suggestion in 1989 that there should be an international tribunal to deal with drug smuggling offences.19 This led to the General Assembly resolution of that year on the ‘International criminal responsibility of individuals and entities engaged in illicit trafficking in narcotic drugs across national frontiers and other transnational criminal activities’.20 The title of the resolution interestingly evokes the idea of international criminal responsibility for transnational (in the sense of border-crossing) crimes. In substance, it drew attention to what it claimed was the ‘[e]stablished link between illegal trafficking in narcotic drugs and other recognised criminal activities which endanger the constitutional order of States and violate basic human rights’.21 This assertion appears to have formed part of the logic of the General Assembly’s request that the ILC consider in its work on the Draft Code of Crimes against the Peace and Security of Mankind: [T]he question of establishing an international criminal court or other international criminal trial mechanism with jurisdiction over persons alleged to have committed crimes which may be covered under such a code, including persons engaged in illicit trafficking in narcotic drugs across national frontiers, and to devote particular attention to that question in its report on that session.22

The ILC’s own approach to the question of what constituted an international crime was less than entirely coherent or consistent. Indeed, when it had first returned its attention to the question ‘of offences against the peace and security of mankind’ in 1983, it presumed its job was in part to articulate a ‘general criterion by which to judge whether or not an international crime’ rose to that level.23 That is, it presumed a relatively broad category of pre-existing ‘international crimes’ (each of which was by its nature serious) and a narrower subset of ‘the most serious of the most serious offences’ or ‘the most serious international crimes’ that would constitute ‘offences against the peace and security of mankind’.24 This approach of presuming a broad canon of international crimes containing an elect group of offences against international peace and security has not generally found favour; though the elusive criterion of ‘seriousness’ nonetheless found a place in the literature and in the positions adopted at the Rome conference, especially by NGOs.25 16 November 1937, LoN Doc C.548.M385.1937 as reproduced in Ben Saul (ed), Terrorism (Hart 2012). See further Ben Saul, ‘Attempts to Define “Terrorism” in International Law’ (2005) 52 Netherlands Intl L Rev 57, 61–3. 19 William A Schabas, An Introduction to the International Criminal Court (4th edn CUP 2011) 10. 20 GA Res 44/39, UNGAOR, 72nd Plen Mtg, UN Doc A/RES/44/39, (4 December 1989) (hereafter GA Res 33/39). 21 ibid, second preambular paragraph, quoted in Robinson, ‘The Missing Crimes’ (n 6) 500. 22 GA Res 33/39 (n 20) para 1. 23 ‘Draft Code of Offences against the Peace and Security of Mankind Report of the International Law Commission on the Thirty-Fifth Session—Chapter II’ (1983) 2(2) UN YB Intl L Commission 15, para 62. 24 ibid 14, para 47; 16, paras 64–5. 25 ibid (the ILC observed that the idea of seriousness was essentially subjective and that ‘[t]he opinion of the international community as a whole will be . . . decisive’ at 16, para 65).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

796 Douglas Guilfoyle In any event, this was not entirely the approach adopted in its final set of draft articles in 1996 that drew a distinction between those crimes which were offences under general international law (listed in its Article 20(a)–(d)) and crimes that were of international concern but which were found only in treaties listed in an annexe to the statute (Article 20(e)).26 This had unfortunate consequences: ‘[T]he effect of the distinction between crimes under general international law and treaty crimes was to downgrade the latter and place them at a disadvantage with the suggestion that they were of lesser importance of than the former’.27 This was, ultimately, the approach taken in drafting the Rome Statute: narrowing the scope of jurisdiction ratione materiae to those offences that were crimes under general international law (even if some had a parallel life in treaties such as the Genocide Convention or Geneva Conventions) and jettisoning the inclusion of any further jurisdiction for treaty crimes. The most obvious reasons for this having happened was the position taken by some delegations (and many NGOs) that the treaty crimes were not sufficiently ‘serious’ to merit inclusion; and the practical difficulty posed by the fact that many states had not necessarily ratified all of the treaty crimes proposed for inclusion. Absent an ‘opt in’ system in respect of those crimes, States might be reluctant to ratify the statute; and such an ‘opt in’ system could also have resulted in jurisdictional complexities for the Court.28 An alliance of states wishing to see the Rome Statute cover drug and terrorism treaty crimes failed to secure even a ‘placeholder’ provision for their future inclusion, such as the compromise which saw the statute include jurisdiction over aggression but defer its definition to another day.29 It is this narrowing of ‘international criminal law in the strict sense’30 to the big four crimes (and the law related to their prosecution) that appears to have created ‘transnational criminal law’ as its other31 where a more historically accurate term would simply be ‘treaty crimes’. Indeed, one possibility is that the widespread adoption of the term ‘transnational crimes’ is simply a pragmatic ex post facto rationalization following the conclusion of the Rome Statute. That is, having effectively elevated certain crimes to being the international crimes prosecutable before the only permanent international criminal court, a term was needed for the remaining crimes of international concern. However, the exile of treaty-based crimes beyond the pale of the Rome Statute did not occur in a vacuum. Rather, a parallel process had been unfolding for some little time 26 ‘Draft Code of Crimes against the Peace and Security of Mankind Chapter II’ (1994) 3(2) UN YB of the Intl L Commission 41 (commentary to art 20, paras 18–23). 27 Robinson, ‘The Missing Crimes’ (n 6) 500. 28 Although obviously this has nonetheless come to pass as regards the crime of aggression. See, e.g., Kevin Jon Heller, ‘Against (False) Consensus—the ASP and the Aggression Amendments’ (Opinio Juris, 11 December 2017) accessed 9 July 2018. 29 Robinson, ‘The Missing Crimes’ (n 6) 505–6. 30 Neil Boister, ‘The Concept and Nature of Transnational Criminal Law’ in Neil Boister and Robert J Curry (eds), Routledge Handbook of Transnational Criminal Law (Routledge 2015) 12 (hereafter Boister, ‘The Concept and Nature of Transnational Criminal Law’) citing A Eser and O Lagodny (eds), Principles And Procedures For A New Transnational Criminal Law (Max Planck Institute 1992). 31 ibid 11–12. See also R J Currie, ‘Neil Boister: An Introduction to Transnational Criminal Law (Oxford University Press 2012)’ (2015) 13 J of Intl Crim Justice 1166, 1166 (hereafter Currie, ‘Neil Boister’). See further n 50.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Transnational Crimes 797 regarding ‘Organized Transnational Crime’ under the auspices of the UN Commission on Crime Prevention and Criminal Justice (from 1992) and the UN Office on Drugs and Crime (since 1997). This process ultimately culminated in the Transnational Organized Crime Convention and its protocols of 2000, concluded in Palermo.32

III. The Problem of Definition A. Defining International Crimes As noted, only recently has the term ‘international criminal law’ generally come to be reserved for the big four ‘core crimes’. What these crimes have in common that sets them apart from all others internationally defined offences is elusive, or usually defined in question-begging terms. These core crimes may be said, for example, to ‘directly affect fundamental values of the international community’ and be subject to ‘criminal responsibility directly under international law’.33 Taking the latter point first, there is little positive evidence that the core crimes are directly criminalized under international law.34 Certainly, they are or have been prosecuted before international criminal tribunals, but such tribunals have been creations of treaty law binding only upon member states; of themselves they say nothing about universal rules of general international law imposing criminal responsibility upon individuals. The prosecution of international crimes by an international tribunal might be proof of the ‘direct criminalization thesis’ to the extent such tribunals prosecuted the nationals of non-members or prosecuted offences committed beyond the territory of member-states.35 Such prosecutions before an international tribunal have not occurred since Nuremberg, however, and the extent to which the crimes within the jurisdiction of the Nuremberg International Military Tribunal (Nuremberg IMT) reflected customary international law at that time is dubious.36 Nor are there any universally ratified treaties that assert the existence of a crime at the international level which is punishable either by universal jurisdiction or on the international plane without the consent of the state having jurisdiction under the nationality or territoriality principles.37 Even the Genocide Convention makes no such provision, contemplating only territorial prosecution or prosecution before an

32 15 November 2010, 2225 UNTS 209. 33 Werle and Jeßburger, Principles of ICL (n 7) 45. 34 See generally Kevin Jon Heller, ‘What Is An International Crime? (A Revisionist History)’ (2017) 58 Harvard Intl L J 353 (hereafter Heller, ‘What Is An International Crime’). 35 ibid 367. 36 See Douglas Guilfoyle, International Criminal Law (OUP 2016) 67–9 (hereafter Guilfoyle, ICL); Heller, ‘What Is An International Crime’ (n 34) 22–4; ‘First report on the draft Code of Offences against the Peace and Security of Mankind, by Mr. Doudou Thiam, Special Rapporteur’ (1983) 2(1) UN YB of the Intl L Commission 141, para 25. 37 Heller, ‘What Is An International Crime’ (n 34) 375.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

798 Douglas Guilfoyle international tribunal founded on consent of its states parties.38 Evidence of a general customary law rule in sources such as UN General Assembly resolutions is also wanting. While Resolution 95(I), ‘affirming’ the ‘principles of international law’ in the Nuremberg IMT Charter is often used to support the existence of a customary rule of direct criminalization, this potentially involves a mis-reading of the resolution. Pertinently, the resolution ‘affirms’ rather than ‘reaffirms’ or ‘confirms’ the status of the principles. While a subtle distinction, this nonetheless suggests a hope that the principles would become binding law more than a clear expression of opinio juris.39 The ambiguity of Resolution 95(I) is further reinforced by the preambular acknowledgement that the General Assembly had a responsibility for ‘encouraging the progressive development of international law and its codification’.40 Despite the lack of clear evidence, it is nonetheless still generally posited that what sets international crimes apart is that international law ‘directly’ imposes international criminal responsibility upon individuals for their breach.41 Advocates of this position must, nonetheless, acknowledge the elusive nature of the distinction between rules of international law that directly criminalize acts on the one hand and rules of international law that merely define crimes or regulate the exercises of jurisdiction over them on the other.42 O’Keefe has logically enough suggested that the difficulty of applying the distinction should result in an inclusive definition, a single genus called ‘international crimes’ that would include both those offences directly criminalized or punishable under international law (whatever that may mean) and offences defined by international law but that only ‘implicate national criminalisation’.43 Nonetheless, O’Keefe would still divide this single ‘genus’ into two ‘species’: ‘crimes under international law’ (being those directly criminalized under international law) and that group with ‘no obvious name’ being ‘offences defined by international law . . . [and] which international law permits or obliges states to criminalize on what would otherwise be an exorbitant jurisdictional basis’.44 It is peculiar, to say the least, that those crimes which make direct provision for national enforcement should be those with no name. In any event, this simply serves to highlight the conceptual difficulties in making a coherent distinction. Given those difficulties, one has to wonder whether the distinction has any useful analytical work to do. Returning to the first possibility, the ‘fundamental values of the international community’ thesis is also question-begging. As Allott has put it, criminal law can be an expression of community values, but this presupposes the existence of a meaningful

38 Convention on the Prevention and Punishment of the Crime of Genocide, 1948, 78 UNTS 277, art 6. 39 Heller, ‘What Is An International Crime’ (n 34) 377 discussing Bin Cheng, Studies In International Space Law (OUP 1997), 141. 40 ‘Affirmation of the Principles of International Law recognized by the Charter of the Nurnberg Tribunal’, GA Res 95(I), UNGAOR, UN Doc A/RES/1/95 (11 December 1946). 41 Heller, ‘What Is An International Crime’ (n 34) 354; O’Keefe, ICL (n 2) 47. 42 ibid 55. See further ‘Observations Received from Member States: Draft Code of Crimes against the Peace and Security of Mankind: Chapter I’ (1994) 2(2) UN YB of the Intl L Commission 37. 43 O’Keefe, ICL (n 2) 55. 44 O’Keefe, ICL (n 2) 61–2 (emphasis added).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Transnational Crimes 799 political community.45 In Allott’s conception, a meaningful community of all humankind capable of giving rise to a universal law of all humankind has yet to arrive. To speak in the interim of international criminal law operating on behalf of an ‘international community’, or simply ‘humanity’, risks speaking only of an international elite or, worse, a consensus of lawyers.46 Nonetheless, we can certainly suggest that at the least the processes of international law-making have given rise to a thin consensual set of values, embodying the idea that certain acts are entirely beyond the pale and therefore criminal.47 Such an approach, however, would surely not stop at the genocide, war crimes, crimes against humanity, and aggression. It would have to include slavery and torture as offences in their own right and not only when committed as part of a war crime or crime against humanity.48 The big four are, ultimately, an historical artefact. They are the core crimes because they are observably those that have been within the jurisdiction of international tribunals; and they are within the jurisdiction of international tribunals because states (or states acting through international organizations) agreed that they should be. Indeed, the very term ‘core crimes’ is best considered ‘formally meaningless and factually misleading’.49

B. Transnational Crime There is a similar observable discrepancy between crimes commonly considered part of the corpus of transnational criminal law and any theory said to unite them. Several approaches may be taken. Boister has said that the essence of transnational crime involves prohibited movement across a border be it of ‘contraband, humans, body parts, digital information, messages, and dirty money’.50 Equally (indeed by the same author), 45 Philip Allott, The Health of Nations: Society and Law Beyond the State (CUP 2002) 65–6. 46 See generally Frédéric Mégret, ‘In Whose Name? The ICC and the Search for Constituency’ in Carsten Stahn, Sara Kendall, and Christian de Vos (eds), Contested Justice: The Politics and Practice of International Criminal Court Interventions (CUP 2015); Sarah Nouwen, ‘Justifying Justice’ in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (CUP 2012). One is, of course, put in mind of Schmitt’s axiom that ‘whoever invokes humanity wants to cheat’, Carl Schmitt, The Concept of the Political (U of Chicago Press 2008) 54. 47 Paola Gaeta, ‘International Criminal Law’ in Basak Cali (ed), International Law For International Relations (OUP 2010) 259. See generally Jutta Brunnée and Stephen J Toope, Legitimacy and Legality in International Law: An Interactional Account (CUP 2010). And, indeed, many meaningful political communities in liberal cosmopolitan societies are probably only bound by such a thin consensual set of values. 48 Rome Statute (n 10) arts 7(1)(c) and (f); 8(2)(a)(ii), (b)(xxii), (2)(c)(i), and (e)(vi). 49 O’Keefe, ICL (n 2) 63. 50 Neil Boister, An Introduction to Transnational Criminal Law (OUP 2012) 3 (hereafter Boister, Introduction). Boister is generally accepted as having coined the term ‘transnational criminal law’ in his article ‘Transnational Criminal Law?’ (2003) 14 European J of Intl L 953. The related concept of ‘transnational organized crime’, at least as a phenomenon if not a coherent body of law, obviously went back to at least the preparatory works for the Transnational Organized Crime Convention.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

800 Douglas Guilfoyle the term has been used ‘to describe a category of domestic crimes established through treaty obligations in multilateral conventions . . . the so-called “treaty crimes” or “crimes of international concern” ’.51 The two approaches are not readily reconcilable. The narrower border-crossing requirement would exclude many offences commonly lumped into the transnational category; and the broad category of treaty crimes include any number of offences with no cross-border element (such as offences against the safety of fixed platforms).52 Nonetheless, the ‘treaty crime’ approach to defining transnational crimes remains a dominant theme in the literature (the ‘sources thesis’). The other possibility is that transnational crimes can be conceived of as targeting crimes of international concern committed by private individuals and groups, whereas the big four crimes typically require the involvement of states (the ‘private actor thesis’). These possibilities are considered next. A further possible approach, one focused on the impacts of transnational crimes, is advanced in the conclusion to this chapter.

1. The Sources Thesis It is tempting to observe, as a statement of the obvious, that transnational crimes are ‘treaty crimes’. It is not, however, an analytically helpful observation. Treaty crimes, literally understood, would also include as a category at least some of the big four: genocide and grave breaches of the Geneva Conventions in particular. And, of course, to the extent we define the big four by the fact of their presence in the Nuremberg IMT Charter or the Rome Statute, those instruments are treaties. Something has to mark ‘ordinary’ treaty crimes out as being different. This boils down either to a matter of definition (i.e., a common sense understanding that ‘treaty crimes’ are those existing in treaty law excluding the big four) or attempting to find something distinct about the legal status of the big four compared to ‘ordinary’ treaty crimes. One might thus claim the big four are distinct as they are crimes existing in custom or as part of the body of jus cogens norms. The idea that the big four are unique examples of crimes having parallel lives in both custom (or jus cogens) and treaty has its attractions, but would exclude the obvious candidates of piracy, slavery, and torture. The simple truth is that most international crimes, broadly understood, have a complex relationship between their status as customary and treaty norms, especially given the role of widely ratified treaties in cementing the customary status of a rule.53 To the extent that most of the ‘treaty crimes’ have something in common that the big four lack, it is clear extradite or prosecute obligations. Absent obiter dicta judicial pronouncements, there is only clear, positive textual support for the proposition that certain war crimes and perhaps genocide attract some limited form of

51 Boister, ‘The Concept and Nature of Transnational Criminal Law’ (n 30) 11. 52 O’Keefe, ICL (n 2) 63. 53 To take one example, there was some controversy in Pinochet (No 3) as to whether there was universal jurisdiction over torture absent or prior to the Convention Against Torture: contrast Ex Parte Pinochet Ugarte (No 3) [1999] UKHL 17, [2000] 1 AC 147, 204–5 per Lord Browne-Wilkinson and 276 per Lord Millet (hereafter Ex Parte Pinochet Ugarte (No 3)).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Transnational Crimes 801 extradite or prosecute obligation.54 The existence of extradite or prosecute obligations in the case of crimes against humanity or aggression has to be inferred from the fact of their jus cogens status.

2. The Private Actor Thesis International crimes typically involve the abuse of some form of public power: the true function of international criminal law is less to discipline the people who commit international crimes than the state (or state-like) structures of power that enable them to be committed.55 To adopt an Allottian inversion of the Nuremberg IMT dictum, international crimes are committed by collective entities, not individuals.56 If this approach is sound, then one might contrast such crimes of public (or organizational) power with merely ‘private’ crimes: crimes committed not through the powers conferred by sovereignty but through private agency. We might call this the ‘public power’ or ‘private actor’ thesis. Piracy is discussed later, but if we consider it the ‘prototypical’ transnational crime,57 we might be drawn to the definitional requirement that piracy be committed for private ends.58 Working from this starting point it could be tempting to suggest that what is involved is a largely public/private distinction or a distinction between state and non-state actors. The idea is susceptible to at least three objections. First, the Torture Convention is generally considered a ‘transnational crime’ and by definition involves a public actor (a point explored further later). Second, the ‘core crimes’ do target non-state actors. The crimes of sufficiently organized armed groups in non-international armed conflicts 54 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 12 August 1949, 75 UNTS 31, art 49; Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85, art 50; Geneva Convention III Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135, art 129; Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287, art 146. cf Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277, arts 6 and 7 (hereafter Genocide Convention). 55 On the commission of international crimes by states and other organizational structures, see, e.g., Situation in the Republic of Kenya (Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) ICC-01/09–19, (31 March 2010) paras 90–3 (Pre-Trial Chamber II); and criticism in Claus Kreß, ‘On the Outer Limits of Crimes Against Humanity: The Concept of Organization within the Policy Requirement—Some Reflections on the March 2010 ICC Kenya Decision, 2010’ (2010) 23 Leiden J of Intl L 855, 866. 56 Philip Allott, ‘State Responsibility and the Unmaking of International Law’ (1988) 29 Harvard Intl L J 1 (‘[t]he irony of [international criminal law] . . . lies in the fact that such criminal behaviour is precisely the behaviour for which collective, and not individual, liability is more appropriate’ at 15). cf Trial of the Major War Criminals before the International Military Tribunal, Nürenberg, 14 November 1945–1 October 1946, vol 1 (International Military Tribunal 1947) 223 reproduced in (1947) 41 American J of Intl L 172 (‘[c]rimes against international law are committed by men, not by abstract entities’). 57 Boister, Introduction (n 50) 29. 58 Geneva Convention on the High Sea, 29 April 1958, 450 UNTS 82 (in force 30 September 1962) (hereafter CHS), art 15; UN Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3 (in force 16 November 1994), art 101 (hereafter UNCLOS).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

802 Douglas Guilfoyle (NIACs) can give rise to war crimes, and at least some case law supports the idea that the activities of organizations such as political parties and renegade police forces can give rise to crimes against humanity.59 While narrow conceptions of organized armed groups in NIACs might emphasize territorial control and other ‘state-like’ characteristics, this is not the view overwhelmingly taken,60 and the state-like analogy is hard to apply to the range of organizations seemingly capable of committing crimes against humanity. The third objection arises from the terrorism suppression conventions. While these generally do not require a political motive per se as an ingredient of the conduct that they criminalize, it seems artificial to insist that the actions of terrorist groups fall exclusively into the realm of the ‘private’. These ideas are further explored now in relation to piracy and torture as liminal crimes standing at the boundary of international and transnational criminal law.

IV. Crimes at the Boundary: Piracy and Torture A. Piracy The status of piracy is in some ways emblematic of the disputed boundaries between transnational and international criminal law.61 Let us first consider whether it can properly be considered an international crime. If the defining features of an international crime in the broad sense are taken to be the definition of a crime at the international level accompanied by an exorbitant prescriptive jurisdiction, then piracy has some claim to being the original international crime subject to universal jurisdiction. In this sense, it is often said, accurately if unhelpfully, that the torturer is like the war criminal or pirate subject to universal jurisdiction. Unhelpful, in the sense that while this is correct as an observation regarding the state of positive law, it does not tell us anything useful about why these different criminal acts are subject to a universal jurisdiction. 59 See cases and commentary regarding the ICC investigation of the situation in Kenya (n 55). 60 The normal source relied upon is the statement in Article 1(1) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II), 8 June 1977, 1125 UNTS 609 that it (and therefore the law of war crimes) applies to ‘organized armed groups’ that are ‘under responsible command’ and which ‘exercise such control over a part of [a state’s] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’. No such territorial control threshold is found in Article 8(2)(f) of the Rome Statute (n 10). 61 Indeed, the obsession with pirates as liminal figures in much of the literature has led to such doctrinally incoherent pronouncements as the suggestion that pirates fall in a ‘grey zone’ between ‘combatants and civilians’, Eugene Kontorovich ‘ “A Guantanamo on the Sea”: The Difficulty of Prosecuting Pirates and Terrorists’ (2010) 98 California L Rev 243.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Transnational Crimes 803 We are left with the fact that a variety of treaties tell us that they are and the fact that they are also generally viewed to be subject to universal jurisdiction as a matter of customary law as well. (There is a nice question as to whether there were ever very many universal jurisdiction cases in respect of piracy prior to the Somali piracy crisis of 2003 to 2013, prosecutions generally having been conducted by affected flags states.62 Nonetheless, the point is completely uncontroversial as a matter of doctrine). Finally, one would have to note that if the existence of universal jurisdiction is the touchstone of a broad approach to international crimes, it is open to question whether piracy can meaningfully be placed alongside ‘modern’ universal jurisdiction offences such as torture. As noted, universal jurisdiction is a rule regarding extra-territorial prescriptive jurisdiction. While a pirate may be prosecuted before the courts of any state,63 universal jurisdiction over piracy in treaty law is first and foremost a permissive rule of extra-territorial enforcement jurisdiction constituting an exceptional basis for interfering with foreign flagged vessels on the high seas.64 However, if one applies as a key requirement of an offence being an international crime either direct criminalization at international law or ‘seriousness’, then piracy will fairly quickly fall from one’s list. As to the former, it is disputed whether the inter national instruments related to piracy provide a sufficiently clear definition of an offence, let alone direct criminalization at the international level.65 I have been agnostic over time as to whether the law of piracy provides a sufficiently clearly definition to constitute a rule criminalizing conduct or whether it is simply a permissive rule of jurisdiction allowing criminalization at the national level of a broadly defined range of conduct.66 Certainly, however, the various conventions related to piracy contain no express statement that ‘piracy is a crime’ nor an obligation for states to criminalize relevant conduct at the national level.67 If one takes the distinguishing feature of transnational crimes to be boundary-crossing, then piracy by definition, involving an attack from one ship against another on the high seas, is likely to qualify. Indeed, it could be seen as the prototypical transnational crime.68 If the core requirement is that a transnational crime should involve private actors, then the requirement that piracy be ‘for private ends’ would seem determinative.69

62 See Alfred Rubin, The Law of Piracy (Naval War College Press 1988) 295–7; Douglas Guilfoyle, ‘Somali Pirate Skiff ’ in Jessie Hohmann and Daniel Joyce (eds) International Law’s Objects (OUP 2018). 63 The Lotus Case (France v Turkey) (1927), PCIJ (Ser A) No 10, 70 (per Judge Moore). 64 Douglas Guilfoyle, ‘Piracy and Suppression of Unlawful acts Against the Safety of Maritime Navigation’ in Neil Boister and Richard Currie (eds) Routledge Handbook of Transnational Criminal Law (Taylor & Francis 2014) 366 (hereafter Guilfoyle, ‘Piracy’). 65 Robin Geiss and Anna Petrig, The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden (OUP 2011) 140–1. 66 Guilfoyle, ‘Piracy’ (n 65) 365, 371–2. cf Guilfoyle, Shipping Interdiction and the Law of the Sea (CUP 2009) 27-ff. 67 See CHS (n 58) arts 14–22; UNCLOS (n 58) arts 100–07, 110. 68 Boister, Introduction (n 50) 29. 69 HSC (n 59) art 15(1); UNCLOS (n 58) art 101(a).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

804 Douglas Guilfoyle

B. Torture The torturer and the pirate may seem unlikely bedfellows. As noted, analogies between the two crimes are not particularly helpful or enlightening, despite the popular observation that the torturer like the pirate has become hostis humani generis and is therefore subject to universal jurisdiction.70 Nonetheless, torture is a useful example for the present discussion in two senses. First, there is the simple fact that it is commonly categorized as a transnational crime.71 Second, it is inherently useful in examining cases falling at the margins between international and transnational crimes. Torture is notably a crime of variable configurations: sometimes it falls within the core international crimes and sometimes it does not. If torture is to be considered as part of the corpus of transnational crimes, it is difficult to see on what principled basis that categorization can be made. Torture is not by its nature transnational. It is an offence committed very much within one jurisdiction by those in power. It may acquire a transnational element if foreign nationals are abducted in order to be tortured,72 but transnational abduction is not an ingredient of the offence. If it is not boundary crossing, we are left principally with the private actor thesis as a possible basis for classifying torture as a transnational crime. But at a definitional level this simply won’t work. Torture under the Convention against Torture (CAT) requires the infliction of severe pain or suffering, for a prohibited purpose, by or at the instigation or with the acquiescence of a ‘public official or other person acting in an official capacity’.73 Rather remarkably, this ‘transnational’ crime puts the action of a public official at its heart. The participation of a public or government official is not of itself an explicit requirement of any of the core crimes, other than aggression.74 It is no formal 70 See the oft quoted passage in Filartiga v. Peña-Irala, 630 F 2d 876, 890 (2nd Cir 1980). See further Eugene Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation (2004) 45 Harvard Intl L J 183 (Kontorovich risks making the same error as those he criticizes, however, in supposing that universal jurisdiction over modern international crimes depends on an analogy with piracy. Universal jurisdiction over piracy (including a right of extra-territorial enforcement action on the high seas) is a rule to secure safety of navigation; it has little to do with crimes said to attract universal jurisdiction because they shock the conscience of humanity. That some judges have confused the two is neither here nor there). 71 O’Keefe, ICL (n 2) 66; Robert Cryer and others (eds), An Introduction to International Criminal Law and Procedure (CUP 2017) ch 14 (hereafter Cryer and others, Introduction). 72 See, e.g., Helen Duffy, ‘Detention and Interrogation Abroad: The “Extraordinary Rendition” Programme’ in Andre Nollkaemper and Ilias Plakokefalos (eds), The Practice of Shared Responsibility in International Law (CUP 2017); Silvia Borelli, ‘Extraordinary Rendition, Counter-Terrorism and International Law’ in Ben Saul (ed), Research Handbook on International Law and Terrorism (Edward Elgar 2014). 73 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, 10 December 1984, 1465 UNTS 85 (in force 26 June 1987) (hereafter Convention Against Torture), art 1 (the relevant prohibited purposes are, in respect of the victim or a third person: ‘obtaining . . . information or a confession’, punishment, intimidation or coercion, or ‘for any reason based on discrimination of any kind’). 74 Aggression only being capable of commission as a ‘leadership crime’, O’Keefe, ICL (n 2) 58. See further Rome Statute (n 10) art 8bis(1). cf US v von Leeb et al (High Command Case), US Military Tribunal

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Transnational Crimes 805 part, for example, of a crime against humanity.75 Implicitly, perhaps, some forms of genocide are such that they are likely only to be able to be capable of commission by government or large organization.76 But some forms of the offence are, at least as a thought experiment, capable of being carried out by a lone genocidaire.77 War crimes can be committed by civilians,78 but usually only by civilians very closely connected with a party to the conflict.79 The transnational crime definition of torture is thus much clearer about the actual need for the involvement of a government official as a formal element of the offence than most of the ‘core’ international crimes. It might be put in answer to this that the function of the CAT is to strip torture of its governmental character, with the result that any act of torture is ultimately committed by a public official acting in a private capacity.80 The best answer to such an argument is that it is simply specious. As a matter of legal doctrine and sociological fact, torture is an act committed by government officials (or those acting at their instigation) and is committed for public purposes.81 Indeed, intrinsic to the definition is that torture cannot occur without someone involved in the offence ‘acting in an official capacity’. The attempt to classify torture as somehow a private act is simply the result of tail-wagging-the-dog argumentation designed to get around the logical but odious conclusion that if torture can be an official act it might benefit from immunity ratione materiae. The availability or not of immunities for international crimes remains a controversial and vexed question (especially before national courts).82 However, if an argument is to be made that immunities can never be available for a crime such as torture, that argument must ultimately rest on an implicit waiver of immunity arising from the CAT83 itself or the jus cogens nature of the prohibition, and not on a fanciful re-characterization of the underlying acts. Torture may also be an international crime, of course, to the extent it forms part of the law of war crimes and crimes against humanity. In each case, it is interesting to observe the reception of the ‘basic’ definition of torture in the CAT into the Rome Statute of the ICC with varying modifications. In the case of a war crime, the elements of torture are naturally modified to include the requirements both of a sufficiently close connection Sitting in Nuremberg, 27 October 1948, excerpted in Antonio Cassese and others, International Criminal Law: Cases and Commentary (OUP 2011) 244–7. 75 Though one should note that the Rome Statute (in art 7(2)(a)) introduces the requirement that a crime against humanity follow from a state or organizational policy to commit such an act. On the policy controversy, see O’Keefe, ICL (n 2) 144; Cryer and others, Introduction (n 71) 236–40. 76 Antonio Cassese, International Criminal Law (2nd edn, OUP 2008) 140–1. 77 ibid. 78 M Bothe, ‘War Crimes’ in Antonio Cassese (ed), The Rome Statute of the International Criminal Court: A Commentary, vol 1 (OUP 2002) 388. 79 Guilfoyle, ICL (n 36) 212–13. 80 Ex Parte Pinochet Ugarte (No 3) (n 54) 263–4 per Lord Hutton. 81 See quote from the Convention Against Torture (n 73) art 1(1). 82 See generally Roger O’Keefe, ‘State Immunity and Human Rights: Heads and Walls, Hearts and Minds’ (2011) 44 Vanderbilt J of Transnational L 999 (while strictly O’Keefe discusses only the question of state immunity in civil cases in this article, I take his arguments to be more widely applicable). 83 See, e.g., Ex Parte Pinochet Ugarte (No 3) 205 (Lord Browne-Wilkinson argues that the subsistence of immunities would defeat the object and purpose of the Convention Against Torture).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

806 Douglas Guilfoyle between the offence and an armed conflict, and that the victim have a protected status under international humanitarian law. The drafters of the Rome Statute made one further alteration, however, removing the requirement that a public actor be involved.84 The drafters of the Rome Statute agreed, it would seem, with the case law of the ICTY that one need not have an official status to be a torturer.85 Overall, this was a reasonable response to the role of non-state actors in armed conflicts and their evident capacity to commit torture against protected persons. More peculiarly, the ICC definition of torture as part of a crime against humanity requires: the infliction of severe physical or mental pain or suffering; upon a person or persons who were in the custody or under the control of the perpetrator; and that such pain or suffering did not arise only from, or incidentally to, lawful sanctions.86 This obviously involves a considerable departure from the ordinary definition of torture. Notably ‘this definition introduces a requirement of custody and excludes both the requirement of the involvement of a public official and the “prohibited purpose” elem ent normally found in torture’.87 The exclusion of the public official requirement might be justified on the basis that crimes against humanity are not exclusively committed by a State and can be committed pursuant to either a ‘state or organizational policy’—although this makes reference to suffering arising from lawful sanctions at least passingly confusing. It is hard to see how conduct rising to torture could be lawful, and the question of ‘lawful sanctions’ does not arise in the case of an ‘organization’. The best explanation is that the language is simply adopted from the CAT.88 Torture provides the best evidence that the category ‘transnational crimes’ has no particularly watertight definition. Torture is sometimes an international crime and sometimes not. Torture as a ‘transnational’ crime is not inherently jurisdiction-crossing and by definition can only involve private actors if they are acting at the instigation or the acquiescence of government officials. Further, ‘private’ actors can commit torture as part of an international crime only where acting in close alignment with a party to an armed conflict or the policy of a government or relevant organization. Torture fits no reasonably coherent definition of transnational crimes, unless by ‘transnational crime’ we simply mean treaty offences involving an extradite or prosecute obligation.

V. Conclusions In this conclusion I would like to return to a number of themes. The first is whether anything can be gained by returning to the descriptive observation that the crimes 84 See Rome Statute (n 10) arts 8(2)(a)(ii) and (c)(i). 85 See, e.g., The Prosecutor v. Mucić et al. (Judgment) IT-96-21-T, (16 November 1998) para 459 (ICTY, Trial Chamber); and The Prosecutor v. Kunarac et al, ICTY (TC) (Judgment) IT-96–23-T& IT-96-23/1-T, (22 February 2001) para 485 (ICTY, Trial Chamber). 86 ICC, Elements of Crimes (International Criminal Court 2011) art 7(1)(f), paras 1–3 (hereafter ICC Elements of Crimes). 87 Guilfoyle, ICL (n 36) 255. On the prohibited purpose requirement see n 73. 88 Convention Against Torture (n 73) art 1(1).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Transnational Crimes 807 generally agreed to be international in character are also found in the statutes of international criminal tribunals. The second is whether we can extract anything useful from the public/private dichotomy examined in a number of settings in this chapter. If the actors in ‘international crimes’ are typically states and the harms done are typically to individuals, can that meaningfully set them apart from ‘transnational crimes’ committed by private actors that may injure either individuals or various public goods? The final possibility is that ‘core’ international crimes uniquely involve some ‘contextual element’ setting a threshold by which they can be seen as the ‘most serious’ crimes of international concern. This obviously involves a return to the ‘seriousness’ debate.

A. Crimes in Search of an International Tribunal? Perhaps in the end all that can be convincingly said of the category of transnational crimes is that these are crimes, not punishable before an international court, which are regulated to some greater or lesser extent by international law (be it by definition or through the creation of mechanisms to coordinate the exercise of jurisdiction). But to say this is simply to invert the proposition that the ‘core crimes’ are those capable of prosecution before international tribunals.89 The descriptive accuracy of both propositions will collapse as and when the Malabo Protocol to the Statute of the African Court of Justice and Human Rights comes into force,90 Article 28A of which will confer on the ICC an expansive ‘international jurisdiction’ over crimes including piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, and illicit exploitation of natural resources.

B. The Public/Private Divide For Lauterpacht, the rationale for crimes against humanity was to protect individuals— ordinary people—from crimes committed by states.91 The evil to be addressed was the abuse of public power against private victims. The same logic is at work in the case of war crimes and torture, and one might think (despite its focus on groups) genocide. Conversely, the paradigmatic transnational crimes are the so-called ‘suppression conventions’ directed at acts of terrorism: violent acts by non-state actors that harm individuals and which in addition may be committed to coerce governments to act (or refrain from acting) in a particular way. These observations might lead us to consider how we divide the territory of crimes of international concern between actors and impacts (see Figure 34.2). 89 And the descriptive accuracy of this proposition collapses if one considers the various ‘hybrid courts’ with jurisdiction over both international and national crimes as being ‘international tribunals’. Ordinary domestic crimes would suddenly have ‘international’ status. 90 Malabo Protocol (n 16). 91 Ana Filipa Vrdoljak, ‘Human Rights and Genocide: The Work of Lauterpacht and Lemkin in Modern International Law’ (2009) 20 European J of Intl L 1163, 1186.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

808 Douglas Guilfoyle Impacts

State or ‘public’ actor

Non-State or ‘private’ actor

Individual victims

Core international crimes; Convention against Torture

Trafficking in guns, people, drugs Migrant smuggling The suppression conventions

Corruption of political processes or damage to public goods

War crime of long term and severe damage to the environment

The suppression conventions Bribery of foreign officials Damage to submarine cables Environmental crimes Terrorism Financing Convention

Figure 34.2 Categorization of Crimes of International Concern between Actors and Impact

Any definition based on the idea that transnational crimes constitute that category of crimes of international concern but not involving state actors or sanction is perhaps workable, so long as we are prepared to accept that torture under CAT and the crimes of organized armed groups in NIACs are exceptions (and perhaps the crimes against humanity of certain organizations also). This, however, would simply result in a further problem: the a contrario implication that international crimes must involve state actors or agents. As a matter of doctrine, certainly, the core crimes are among the only offences that may be committed by state agents acting as such; but this is not a formal requirement of any international crime (other than aggression and torture under CAT), and core crimes can catch the conduct of a much wider range of actors. Indeed, the majority of modern prosecutions for international crimes are of ‘private’ leaders or members of rebel groups or proxy forces, especially before the ICC. Where prosecutions of state officials have commenced, they have seldom ended successfully,92 with but few notable exceptions including the prosecution of Ratko Mladić before the ICTY and Charles Taylor before the SCSL.

C. Contextual Elements and Seriousness The only other possibility grounded in positive law might be to say that, as some form of a proxy for ‘seriousness’, the ‘core’ crimes tend to have particularly restrictive ‘contextual elements’ not generally found in the case of other (transnational) offences.93 In particular, 92 Most notably, the collapse of the Prosecution against President Kenyatta and Deputy President Ruto of Kenya before the ICC. See George Kegoro, ‘Looking Back, Looking Forward: The Implications of the Termination of the Kenyatta Case before the ICC’ in Evelyn A Ankumah (ed), The International Criminal Court and Africa: One Decade On (Intersentia 2016); Mark Kersten, ‘A Missed Trial or a Mistrial? The End of the ICC Cases against Ruto and Sang’ (Justice in Conflict 7 April 2016) accessed 9 July 2018. 93 This paragraph draws substantially on Guilfoyle, ICL (n 36) 186.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Transnational Crimes 809 both war crimes and crimes against humanity are commonly said to have such a contextual element. The commission of a war crime requires that the relevant prohibited conduct has a close connection with an armed conflict. Crimes against humanity must be committed as part of a widespread or systematic attack against a civilian population. The distinguishing feature of genocide under the Genocide Convention is the requirement that the prohibited conduct be carried out with the intent to destroy a racial, ethnic, national, or religious group in whole or in part as such (special intent or dolus specialis).94 Nonetheless, there is some authority provided by the ICC Elements of Crimes for the proposition that such conduct must occur within a manifest pattern of similar conduct directed against the group.95 If the latter proposition is correct, geno cide too requires a contextual element. While aggression may be said to be a ‘leadership crime’ (insofar as it can be committed only by those officials in a position to control the political or military action of a state),96 it involves the commission—or at least the planning—of substantial military action that might be thought equivalent to some kind of contextual threshold. Conversely, those offences commonly classed as transnational have no such contextual threshold. One should be wary, of course, of presuming that any threshold requirement maps closely onto the idea of ‘seriousness’ of offences. Some of the war crimes c overed by the Rome Statute remain relatively minor compared with other international or transnational crimes.97

D. Final Thoughts Ultimately, the boundaries between international crimes and transnational crimes are marked out by belief, not reason. There is no particularly convincing line to draw between the categories. Worse, there is the risk that focus on the ‘big four’ core crimes, international criminal law ‘properly so-called’, results in a zero-sum game of scholarly enquiry.98 Attention paid to the core crimes may come at the expense of other less exciting and popular fields. The exiling of ‘transnational crimes’ beyond the boundaries of ‘international criminal law’ risks impoverishing what might better be considered a conjoined field, and may even be a contributing factor to the occasional academic malaise that leads us to ask if international criminal law is ‘overstudied and underperforming’.99 Many reasons may be given for the appeal of international criminal law,100 not least the 94 Genocide Convention (n 54) art 2. 95 Or it must constitute a single act capable of destroying a group in whole or part, ICC Elements of Crimes (n 86) arts 6 (a)(4), (b)(4), (c)(5), (d)(5), (e)(7). 96 See references to n 74. 97 For example, seizure or appropriation of civilian property not justified by military necessity: ICC Elements of Crimes (n 86) arts 8(2)(a)(iv) and 8(2)(b)(xiii). 98 Currie, ‘Neil Boister’ (n 31) 1166. 99 Elies van Sliedregt, ‘International Criminal Law: Over-studied and Underachieving?’ (2016) 29 Leiden J of Intl L 1–12 (hereafter van Sliedregt, ‘ICL: Over-studied and Underachieving?’). 100 ibid.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

810 Douglas Guilfoyle obvious attraction of its numerous tribunals and lengthy judgments to a discipline long-noted for its tendency to ‘fetishize the jurisprudence of international courts’.101 (Indeed, it has been accurately if darkly observed ‘there is no positive correlation between the performance of the ICC and the scholarly interest’ in international criminal law).102 As I have already noted, the ‘big four’ are an historical artefact. In a positivist vein, one can note that these are the crimes prosecuted before international tribunals because states have agreed that they should be. It might, however, be more accurate (or honest) to see them as the result of our discipline at work. The field of international law, in the sociological sense, is one in which actors and ideas compete: The position of agents within a field is determined by the different forms of ‘capital’ they possess, which may include markers of prestige such as where they studied, where they work or have worked, where they publish, what awards they have won, and to which learned societies they belong. The amount of capital different agents possess determines their potential to influence the functioning of the field.103

The construction of the big four as the international crimes was not the result of inevit able historical processes or the corporate will of states. It was the result of lawyering: actors aiming to influence developments in their professional field. As Kennedy has pointed out, lawyers are apt to dismiss themselves either as servants of ‘background’ law or ‘foreground’ political actors and are reluctant to see their own agency in shaping events or constraining the realm of acceptable decisions.104 There was a genuine historical struggle as to which crimes should fall within the Rome Statute. The category of transnational crimes is, to some extent at least, the label for the ‘missing crimes’ that are the result of that exclusionary process.

101 Gerry Simpson and Nicholas J Wheeler, ‘Preemption and Exception: International Law and the Revolutionary Power’ in Thomas J Biersteker and others (eds), International Law and International Relations: Bridging Theory and Practice (Routledge 2007) 113. 102 van Sliedregt, ‘ICL: Over-studied and Underachieving?’ (n 99) 2. 103 Anthea Roberts, Is International Law International? (OUP 2017) 24. 104 David Kennedy, ‘Challenging Expert Rule: The Politics of Global Governance’ (2005) 27 Sydney L Rev 5. For a fuller review of such ideas, see Richard Joyce, ‘Anarchist International Law(yers)? Mapping Power and Responsibility in International Law’ (2017) 5 London Rev of Intl L 397.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

chapter 35

The U n it y of I n ter nationa l Cr imi na l L aw A Socio-Legal View Frédéric Mégret

I. Introduction What is international criminal law and is it one thing? If international criminal law is to have a unity, what might it be? Is there an essence to the phenomenon or is it merely the conventional label apposed on disparate phenomena? These questions may appear canonical. After all, no issue of labelling as bona fide ‘ICL’ has ever prevented an inter national criminal tribunal from coming into being, a case from being prosecuted, or an individual from being extradited. Nonetheless, much seems to hang in the definitional balance, notably a sense of disciplinary coherence, consistency of purpose, and even doctrinal purity. What is clear at this particular temporal junction (the late 2010s) is that the discipline is increasingly fractured and that this fragmentation structures ongoing disciplinary conversations. The question this chapter asks is whether one might rediscover a sense of the discipline’s lost unity, one that would incorporate a broader range not only of crimes but also of crime fighting techniques and sites. It is worth noting, in that respect, that international criminal law is not truly itself a legal term of art as much as a particular dis ciplinary modality of framing a set of disparate manifestations. There is no legal defin ition of ICL or even for the most part any legal consequences that flow from something being part of it, only manifestations of the law in the world that are understood to be part of ICL through a series of interpretative claims made by participants in the field. That is perhaps why doctrinal debates on the issue are not only often inconclusive but also a bit artificial.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

812 Frédéric Mégret Note to begin with that the question of what is ‘international criminal law’ is closely connected but not the same as ‘what is an international crime?’1 The latter focuses specifically on the substantive dimension and is often mistaken for the former. Clearly, it is hard to imagine an international criminal law that would not have substantive offences of its own. Substantive international criminal law has an obvious pride of place in the constitution of international criminal law. But nor should we necessarily think that it exhausts its meaning anymore, for example, than that the ‘criminal law’ domestically is simply a list of discreet offences. Rather, international criminal law is a complex system of offences and the sort of mechanisms that have been put in place (international tribu nals, extradition, universal jurisdiction, judicial cooperation, etc.) to enforce them. In fact, there is a tendency to define ICL both in relation to certain of its assumed substan tive features and the sort of institutions these presuppose, making it difficult to disen tangle the two. Perhaps unsurprisingly, the definitional exercise has been immersed in ontological assumptions. There is such a thing as ICL, and it is international criminal lawyers who define what it is. Without denying that the norms and practices exercise a significant pull on how one can go about defining them, this chapter is interested in a slightly different question. Ultimately the name is less interesting in and of itself than for what it makes possible. Rather than the ontological quest for a definitional essence, the chapter adopts a more pragmatic and social-scientific approach: what definition will create the most productive research programme about a phenomenon that we might broadly describe as ICL? In particular, the chapter suggests a socio-legal perspective, one less interested in law’s own criteria for delimiting its field of validity, than in understanding the meaning of ICL as a social phenomenon. From a socio-legal perspective, international criminalization goes far beyond the slightly surreal doctrinal debate on what constitute ‘true’ international crimes or ‘true’ international tribunals. A few preliminary observations are in order. First, there is no single, widely agreed to definition about what ICL is. Rather, there are a series of ‘popular contenders’: proposi tions, assumptions, and techniques that over time have come to be associated with that broad heading. Yet many claims about what international criminal law truly is involve little more than arguments from authority and, more importantly, betray sets of assump tions about what is ‘criminal’ and, most importantly for our purposes, what is ‘inter national’ that ought to be prodded carefully. We have no reason, in particular, to think that international criminal law ‘knows itself ’ in some stable and conclusive fashion. In a sense, disciplines are constantly chasing themselves as part of a process of differentiation from others and constitute themselves as disciplines precisely through the process of constantly asking questions (and ignoring some) about what they, fundamentally, stand for. At the same time, finding a sort of disciplinary centre of gravity, a way of aligning 1 See the chapters by Douglas Guilfoyle, ‘Transnational Crimes’ and Christine Schwöbel-Patel, ‘The Core Crimes of International Criminal Law’ in this volume. See also Kevin Jon Heller, ‘What Is an International Crime: (A Revisionist History)’ (2017) 58 Harvard Intl L J 353 (Heller, ‘What Is an International Crime’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Unity of International Criminal Law: A Socio-Legal View 813 expectations around a set of core beliefs is crucial to a discipline’s sense of self. What constitutes ICL is in a sense the central, hidden stake of the discipline itself, even if it is only discussed as such marginally. Second, what counts as ICL is a question that has many dimensions. There is an ambiguity in the very notion of a discipline of ICL: both a hypothesized series of rules constituting a branch of the law; and a scholarly-professional endeavour. It may be seen, for example, as a legal question, in the sense that one seeks to address the question from within the law’s own categories. As we will see, part of the investment of the discipline has gone towards making the answer to that question increasingly decisive. However, the question might also be viewed as a purely intellectual and scholarly one, one capable for example of triggering rich research projects. For the most part, there are a range of rules, norms, and practices that do not headline themselves as being part of ICL but which we can choose to call thus because it makes sense of the vast bodies of knowledge that ‘we’ (as lawyers) seek—and maybe are tasked—to organize and interpret. Third and relatedly, the act of assigning a label to something as ICL is productive in the strong sense of the term. ICL is not ‘there’ as a thing that pre-exists our identification of it as such; rather it is the act of organizing a part of the law as belonging to ICL that, in a sense, ‘makes’ ICL. ‘International criminal law’ constructs a particular object as worthy of disciplinary attention, in ways that then reinforce that object’s existence and status. Disciplinary effects are clearly not all there is to legal reality, but nor are they a negligible dimension of the law’s constitution. This is liberating in a sense, but it also imposes considerable responsibility on anyone with the audacity to make claims about what the discipline is. It suggests that, rather than the proper definition of ICL flowing from ICL itself, scholars are powerfully invested in exercises that can either create significant intellectual opportunities or stifle debates. The chapter begins by highlighting the nature and dynamics of disciplinary fragmen tation at work in ICL, arguing that it has led to the foregrounding of a ‘core ICL’ at the expense of all other manifestations of the criminal law globally, and notably of so-called transnational criminal law (Part II). That phenomenon of fragmentation is then assessed as not particularly sustainable, and certainly costly intellectually (Part III). Contra that tendency, it proposes that it is more useful, productive, and interesting to describe inter national criminal law as the totality of manifestations of criminal justice that transcend the state (Part IV). This is an oecumenical definition that embraces the diversity of the discipline and sees that diversity as an opportunity rather than a flaw. Where Schwarzenberger famously finessed the very different possible meanings of ICL (and suggested that none were fully satisfactory so that no ICL did, actually, exist),2 therefore, this chapter’s response will be Bassiounian in its embrace of diversity,3 even as it will seek to better ground that eclecticism. Indeed, recently the trend towards 2 Georg Schwarzenberger, ‘The Problem of an International Criminal Law’ (1950) 3 Current Legal Problems 263 (hereafter Schwarzenberger, ‘Problem of an ICL’). 3 M Cherif Bassiouni, ‘International Crimes: The Ratione Materiae of International Criminal Law’ in M Cherif Bassiouni (ed), International Criminal Law: Sources, Subjects and Contents (Brill 2008) (hereafter Bassiouni, ‘International Crimes’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

814 Frédéric Mégret r arefication has led to a reassertion by the likes of Neil Boister or Robert Currie4 of the pertinence of transnational criminal law and a certain, long-in-the-making, impatience with the obsessive attention to core ICL.5 This is a welcome development as far as it goes, but from the point of view of this chapter, one of its modalities is to play the ‘trans national’ card against the ‘supranational’ in ways that tend to reproduce the separation between the two.6 Instead, the chapter is more interested in the sort of oecumenical and bottom-up approach long inaugurated by the likes of Mireille Delmas Marty,7 which can be seen as having witnessed a renewed popularity in recent endeavours such as the work Harmen van der Wilt.8 It is an approach that starts from the premise of the internation alization of the criminal law rather than the much more discreet phenomenon of the criminalization of international law and that, in the process, can help us make sense of the unity hypothesis.

II. International Criminal Law and the Politics of Fragmentation There is much debate about what truly constitutes ICL, whether ‘core crimes’ are entirely distinct, and whether ‘transnational criminal law’ should be a different discipline. Rather than taking these questions too seriously, this part asks instead: who asks them, when, and why? Why, in particular, should we care that something such as international criminal law is said to exist as such? Does the label really matter? The emergence of anxieties about what really counts as international criminal law is not a recent phenom enon, but it may have witnessed a resurgence in the last few years as a result of a growing process of differentiation within the domain of what might loosely be described as inter national criminal law. What is the common point, for example, between a domestic trial for drug trafficking, a universal jurisdiction case of torture, and the prosecution before an international criminal tribunal on charges of genocide? Is there anything at stake normatively in dealing (or not dealing) with these manifestations as part of a unitary phenomenon?

4 Robert J Currie, ‘Neil Boister, An Introduction to Transnational Criminal Law’ (2015) 13 J of Intl Crim Justice 1166. 5 See also Mireille Delmas-Marty, Ordering Pluralism: A Conceptual Framework for Understanding the Transnational Legal World (Bloomsbury Publishing 2009). 6 For a very helpful critique, see Prabha Kotiswaran and Nicola Palmer, ‘Rethinking the “International Law of Crime”: Provocations from Transnational Legal Studies’ (2015) 6 Transnational Legal Theory 55. 7 Mireille Delmas-Marty, ‘Global Crime Calls for Global Justice’ (2002) 10 European J of Crime, Crim L and Crim Justice 286. 8 Harmen Van Der Wilt and Christophe Paulussen (eds), Legal Responses to Transnational and International Crimes: Towards an Integrative Approach (Edward Elgar Publishing 2017) (hereafter Wilt and Paulussen, Legal Responses).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Unity of International Criminal Law: A Socio-Legal View 815

A. Between Inflation and Rarefication International criminal law (or at least efforts to define it), it can be argued, constantly oscillates between a form of diffusion and a form of rarefication. Diffusion describes the process by which a discipline incorporates relatively more phenomena within itself, at the risk of spreading thin; rarefication, by contrast, can be described as the process by which a discipline refocuses its energies on a ‘core’ at the exclusion of all else. Neither process is per se problematic in terms of disciplinary cohesiveness (which is not neces sarily an end in itself), but both have implications for what a discipline can hope to achieve because they are part and parcel of the constitution of legal reality. Underlining this tension are also the field’s calculations about the implications of any definition: a discipline that becomes about too many things risks losing any sense of specificity; a discipline that is about too few things risks losing a sense of relevance.9 What counts as international criminal law evolves in sometimes striking fashion. It is instructive, in this respect, to compare earlier definitions of international criminal law and those that have become dominant. Back in the 1970s, the late Cherif Bassiouni’s monumental (and densely footnoted) ‘International Criminal Law’ identified as many as 22 (28 by the 3rd edition in 2008)10 international criminal law offences. Inter-war inter national criminal lawyers had considered that international criminal law covered rather indistinctly a whole series of criminal law developments, from the fight against ‘la traite des blanches’ to outlawing ‘la guerre crime’.11 Early ICL was nothing if not wholesome in its embrace, perhaps too new as a discipline to be willing to casually cast away likely con tenders sure to increase its clout. The emphasis was on developing the ratione materiae scope but also on assessing quite liberally what counted as ‘international’ in ICL, con necting to a long tradition of criminal law cooperation that had equated internationality with the mere crossing of borders. By the 1990s, however, the debate over what would actually be a proper subject of investigation rapidly came to focus on a very small sub-set of international offences, namely, what had become known as the ‘core crimes’, with a renewed emphasis on exceptional enforcement mechanisms (universal jurisdiction, international tribunals). Although the expression ‘core crimes’ as such had hardly been used until then, it quickly became extremely popular to describe genocide, crimes against humanity, war crimes, and aggression.12 International crimes ‘stricto sensu’ came to be distinguished from 9 See, by analogy, Frédéric Mégret, ‘Thinking About What International Humanitarian Lawyers “Do”: An Examination of the Laws of War as a Field of Professional Practice’ in Wouter Werner, Marieke de Hoon, and Alexis Galan (eds), The Law of International Lawyers: Reading Martti Koskenniemi (CUP 2017). 10 Bassiouni, ‘International Crimes’ (n 3). 11 Immi Tallgren and Frédéric Mégret (eds), The Dawn of the Discipline: International Criminal Justice and Its Early Exponents (CUP 2019). 12 A Google n-gram search reveals that the expression was almost never used until the mid-1990s, by which time it shot up in extremely short order to stratospheric levels of frequency. See ‘Google Ngram Viewer’ accessed 20 April 2019.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

816 Frédéric Mégret others ‘lato sensu’ at best, and a view of ICL as divided into irreducible and hierarchized tiers began to emerge. Although a rather late development in the history of international criminal law, the distinction between supranational and transnational criminal law became broadly structuring of the discipline’s self-understanding,13 perhaps spurred by institutional developments such as the ICC. With the benefit of hindsight, it is easy to reconstruct the historical ascendancy of the ‘core crimes’ as having been long in the making. Nuremberg and Tokyo had given them the strongest pedigree of any international crime as the only ones to have been prosecuted internationally, leaving a deep furrow in the memory of ICL that was quickly redis covered when the time came. The rise of international criminal tribunals in the 1990s gave centralized enforcement a particular visibility. Yet there is no doubt that a process of reinvention and re-reading of the historiography of ICL was involved, one in which crimes that had been previously presented as broadly equivalent were now presented as highly distinct. Doctrinally, the broad shift of emphasis seems to have been from a criminally-oriented view of a wide variety of offences with transnational characteristics, to an international law-oriented view of the hierarchy of offences based on how ‘pure’ was the international interest they sought to vindicate. On the whole, then, especially in the last 20 years, international criminal law has witnessed a dramatic turn towards rarefication, or at least an attempt to argue that ‘true international criminal law’ is a very limited space. This phenomenon, at the intersection of interest in ‘core crimes’ and the work of international criminal tribunals, illustrates what might be described as ‘core ICL’. Although core ICL sought to claim the ICL label for itself, what it was really interested in was a sub-set of particularly supra-national offences, often with a strong ordre public and human rights flavour. This rarefication then became closely associated with a process of intra-branch fragmentation between, for example, core ICL and so-called transnational criminal law, themselves even more vigorously distinguished from various extra-territorial dimensions of domestic criminal law. This is to the point that many current textbooks only or principally deal with those at the exclusion of all others,14 hardly bothering to acknowledge henceforth ‘peripheral’ crimes. Such crimes may be alluded to as historically relevant in passing, but ‘working definitions’ of ICL as focusing on core crimes have had a tendency to quickly become the norm for the discipline; what was occasionally justified based on lack of space, quickly became the standard. Nor is it only the textbooks. International criminal law journals and edited collections have become predominantly about the modalities of con temporary centralized and institutionalized tribunals. This has been the revenge of The Hague (centralized international criminal tribunals) over Vienna (efforts at enhancing

13 Many books seem to take the distinction for granted and to then seek to justify it ‘from within’ rather than try to deconstruct it. Isabelle Fouchard, Crimes internationaux: Entre internationalisation du droit pénal et pénalisation du droit international (Primento 2014). 14 Douglas Guilfoyle, International Criminal Law (OUP 2016); Bartram S Brown, Research Handbook on International Criminal Law (Edward Elgar Publishing 2011).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Unity of International Criminal Law: A Socio-Legal View 817 international criminal cooperation).15 So fetishized has the distinction between ‘international’ (the core crimes and possibly a few others such as torture) and ‘trans national’ crimes (trafficking offences, domestic crimes with a cross-border element) become, that one scholar recently had to defend the proposed African Union Criminal Court for mixing both in its jurisdiction, as if these purely doctrinal creations might in and of themselves constrain what states could do.16 All in all, therefore, international criminal law has betrayed an increasingly ‘inward’ turn, emphasizing the deepening of highly technical areas at the expense of working on the connections that might have bound the entire edifice together. A discipline that once fancied itself as shadowing virtually every aspect of international life17 had by the 2000s become virtually equated with the study of those crimes that the international criminal tribunals of the age happened to prosecute. Despite all of this, the turn to seeing international criminal law as a rarefied discipline is somewhat mysterious. After all, one would think that international criminal lawyers would want to lay claim to the broader potential understanding of the discipline, cutting of submarine cables and all. The Bassiounian project of seeing international criminal law manifesting itself in countless areas of international life was surely, for all its ana lytical limitations, one that was empowering to international criminal lawyers, validat ing their particular skill set, and putting them seemingly in command of the protection of vast swaths of the international order. It is ironic then, that just as ICL has never seemed stronger in practice, it has tended to retreat to a theoretical and doctrinal citadel. As the rest of this part will suggest, there are nonetheless several ways of explaining fragmentation.

B. Ideational Approaches and the Quest to Define ‘Truly’ International Crimes One hypothesis to explain the politics of fragmentation is, to put it simply, that the dis cipline has come to better understand what international criminal law ‘truly is’. In the background, international criminal law had been put on notice about the wobbly 15 It should be pointed that ‘transnational criminal lawyers’ themselves (by which I mean scholars who are particularly invested in that domain although the devil is often in the labels) have often recipro cated ‘core’ international criminal lawyers’ desire for a distinction between the two, perhaps in the hope of securing a tenuous but circumscribed domain of competence but arguably further entrenching the distinction as a result. Neil Boister, ‘ “Transnational Criminal Law”?’ (2003) 14 European J of Intl L 953. Of late, however, this secondary role as an annex to true ICL has started to wane in favour of a stronger assertion of the continued relevance of transnational criminal law, borne from an understandable frustra tion with the disciplinary over-investment in the cosmopolitan. See Sliedregt, ‘ICL’ (n 5). Even then, the debate is framed as one pitting one vision against another rather than fundamentally trying to elaborate an overarching framework. 16 Charles Chernor Jalloh, ‘The Nature of the Crimes in the African Criminal Court’ (2017) 15 J of Intl Crim Justice 799. 17 See for example M C Bassiouni, International Criminal Law: Crimes (Transnational Pub Inc 1986).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

818 Frédéric Mégret character of its pedigree as early as Schwarzenberger’s landmark 1950 critique that pointed out, quite correctly, that there were at least half-a-dozen possible understand ings of international criminal law none of which, ironically, fully accounted for it.18 The discipline happily ignored that skepticism on the basis of its overwhelming pragmatism, in a context where its relative irrelevance probably made the question rather moot. In Bassiouni’s eclectic and fundamentally more ‘criminal’ approach, all that had been required was the operation of the criminal law combined with some marker of ‘inter nationality’; for example, that the crime in question affected a key international interest or had a cross-border element. This eclectic theory was social-scientifically quite strong but doctrinally weak, lacking much of a unifying thread. It almost invited a tidying up operation, the opportunity for which came with the creation of the ad hoc tribunals and a renewed sense of confidence about what the discipline could/should be. Contra inter national criminal legal eclecticism—sociologically ambitious but ontologically shallow— the rise of international criminal tribunals provided an opportunity to assert a more singular vision of the discipline. Rarefication in this context could be seen as the result of a welcomed, albeit late, posi tivist reassertion of control over what had become an increasingly fragmented and haphazard list of offences. The discipline had been allowed to mean too many things, and a firm guiding doctrinal hand was needed to highlight the different ways in which international criminal law might be international in specifically legal ways. In true social positivist fashion, it could be said to follow ‘what actually goes on’; rather than the discip line’s fantasies about what ought to be criminal, it focused on that which international criminal tribunals actually punished. I will return in the next part to the question of whether international law creates any crimes as such and, even if it does, whether that is sufficiently analytically cogent to hang the entire definitional exercise of ICL on. Nonetheless, to think that the evolution of the discipline towards a narrow understanding of itself is the result of a fundamentally better grasp of what is or what is not an international crime is clearly to fall prey to the onto logical fallacy that this chapter cautioned against in its introduction and, incidentally, to take the musings of scholars too seriously. The redefinition of ICL along rarefied lines was never somehow mandated by the reality of ICL, any more than the ‘true definition’ of ICL was somehow finally ‘discovered’. Earlier instantiations of the discipline arrived at very different definitions of ICL in their own similarly unmistakably technical positivist way. Rather than simply stumbling on what ICL really was, the exercise of definition has always been hermeneutic in nature, an attempt by the discipline to understand itself and where it was headed, even though in the process it was often at risk of mistaking its con tingent with permanent features. On that more modest score, the ‘core ICLers’ certainly got one thing right, namely, the ascendancy of a peculiar model combining an emphasis on crimes of mass violence and a preference for international criminal tribunals as vectors of enforcement. That phenomenon was surely the defining evolution in the 1990s and it undoubtedly reflected a certain upgrading of the ‘international law element’ 18 Schwarzenberger, ‘Problem of an ICL’ (n 2).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Unity of International Criminal Law: A Socio-Legal View 819 in ICL. Having said that, the claim that the ‘core crimes’ are the only international crimes properly so-called because they are the most international, apart from the fact that, as we will see, it is hard to sustain and probably not helpful, cannot be the cause of rarefica tion; it is surely itself the consequence of larger mutations.

C. Critical Approaches: Rarefication as Reorganization of the Field Contra these ideational approaches, it seems that a much more grounded explanation of rarefication and fragmentation is needed. One possibility is that rarefication reflects deeper political biases and is, in particular, the product of a Western emphasis on atrocity crimes.19 Certainly the international community has shown little inclination to label as crime certain types of behaviour that may be judged criminal (mercenarism); and there is no doubt that overall international criminal justice serves a broad liberal agenda. But that critique may miss the fact that many transnational offences are also part of a broad liberal and even capitalist agenda. More importantly, it seems based on a confusion about the relative status of rarefied ICL and transnational criminal law. Core ICL may have at least temporarily won the fight to lay claim to the ICL label, but that fight always had a ‘storm in a teacup’ quality. It is hardly, for example, as if transnational criminal law has been truly downgraded in relation to the ‘core crimes’. For example, and at the risk of stating the obvious, the international fight against narcotics remain the single most defining criminal endeavour globally and, compared to its billion-dollar budget and millions of persons imprisoned, international criminal tribunals and war crimes prosecutions are barely bleeps on the radar. What is true is that a number of states in Rome, in particular, decided that whatever importance they may have otherwise attributed to transnational criminal offences, it would not be a good use of scarce international resources to centralize their prosecution. Given the emphasis on complementarity in the ICC, as we will see, it may well be that the difference between crimes that are potentially prosecuted supranationally and those that, at present at least, are unlikely to be prosecuted in this way, is rather thin. But a decision was certainly made, which reflected a certain geopolitics of international criminal justice: where some Global South states aspired to an ICC that could supplement their efforts in dealing, for example, with narco-trafficking offences, Western states were predominantly focused on what they saw as persistent impunity problems in the Global South. Whether that political preference can be rationalized under the law will be discussed further in the next part of this chapter, but it seems important to recognize that it did not simply flow naturally from the law, and rather reflected clear political preferences.

19 See the chapters by Christine Schwöbel-Patel, ‘The Core Crimes of International Criminal Law’ and by Samuel Moyn, ‘From Aggression to Atrocity: Rethinking the History of International Criminal Law’ in this volume.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

820 Frédéric Mégret In many ways, the die was set from thereon and subsequent path-driven developments have been structured by these early choices. If nothing else, it may simply be that the international criminal tribunals produced such a wealth of jurisprudence that a discip line that had been starved of any real-world relevance for many decades soon found itself entirely absorbed by novel and exciting questions. The new sites of production of ICL required considerable input from doctrinally minded international criminal law yers to organize and rationalize the discipline, making other pursuits temporarily less attractive. At least the early days of core ICL required the mobilization of a specifically public international law know-how, what might be described as the ‘chapeau effect’, the often heavily contextualized nature of the core crimes, the importance of questions of immunity, the intersection of the nullum crimen principle with a decentralized system of sources, etc. The work of the tribunals also required international criminal lawyers to frequently shore up the discipline’s legitimacy. Rarefication on this view is both a defensive and offensive move, one geared towards arguing that at least these crimes are truly international and entirely deserving of the unprecedented effort at prosecuting them internationally (that equation was then quickly flipped to say that only crimes prosecuted by inter national tribunals are clearly international crimes). An initially rather arbitrary political choice thus tended to be naturalized through the logic of the field. Indeed, one cannot discount the more subtle socio-legal effects of international criminal justice as a field of professional endeavour. It has been argued, for example, that core ICL is the result of a reconfiguration of the discipline that was ‘hijacked by those whose existing interests and agendas focussed on the internationalisation of particular crimes’.20 Those included a group of increasingly dominant elite international criminal lawyers, against the backing of international criminal tribunals, attempting to make their particular professional turf into the defining one.21 What gets described as ‘core’ and ‘peripheral’, international or ‘merely domestic’, and even ‘criminal’ and ‘not criminal’, in this context, is the object of intense struggles that run through all areas of a globalizing criminal law.22 It is probably the case that, in the larger symbolic economy of the international legal profession, laying claim to something as being ‘truly international’ is enhancing of one’s social capital. In short, against earlier more diversified and eclectic concepts of international crim inal law, the late development of the discipline has been characterized by a remarkable tightening of its scope. A highly significant but ultimately quite narrow area of ICL has been promoted as its most accomplished form, perhaps the one in which the unity of the substantive, procedural, and institutional dimensions of ICL most purely came together.

20 John Hopkins, ‘What’s Wrong with Regionalising International Criminal Law?’ (2007) 4 New Zealand YB of Intl L 85, 86. 21 Mikkel Jarle Christensen and Ron Levi (eds), International Practices of Criminal Justice: Social and Legal Perspectives (Routledge 2017). 22 Herman Schwendiger and Julia Schwendiger, ‘Defenders of Order or Guardians of Human Rights?’ in Stuart Henry and Mark M Lanier (eds), What Is Crime?: Controversies over the Nature of Crime and What to Do about It (Rowman & Littlefield Publishers 2001).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Unity of International Criminal Law: A Socio-Legal View 821 As I argue, this approach only succeeds in being right according to its own narrow criteria at the cost of being quite unhelpful.

III. The Problem with Fragmentation The problem is that a relatively esoteric question about what are truly international crimes and tribunals—one that can be made to have a few implications for immunities or jurisdiction but which in itself is merely of doctrinal interest—has been allowed to largely define the scholarly agenda. It may be that the discipline is merely guilty of hav ing mistaken its dominant, overflowing real-world concreteness for the actual discipline itself; but this is still a fairly cardinal sin. Rarefication, as it happens, has a number of intellectual, political, and indeed legal costs. One of them is a clear ‘presentist’ tendency, that has strongly discounted the significance of the past except as an instrumental valid ation of the present.23 Another is a more disciplinary one that tends to disconnect the study of international criminal law from comparative and transnational criminal law, not to mention domestic criminal justice issues of a global nature. I return to this problematique in the final part of this chapter, but suffice it to hypothe size at this stage that this narrowing is intellectually impoverishing. Ultimately, the image that risks emerging is one of a discipline practised by a few hundred professionals in The Hague and a few peripheral sites, heavily relayed by scholars, but that bears little relationship to the major problems of criminal justice that plague the international system (problems associated with extradition and judicial cooperation, corruption and environmental degradation, the ‘war on drugs’ and the ‘war on terror’, convergence and divergence in criminal justice systems, managerial, punitive, or restorative approaches, etc.). It is as if ‘international criminal law’ was henceforth so totally different, so much a thing of its own, that on the one hand it relinquished a vast terrain that it could usefully claim as its own intellectually, and on the other hand allowed a significant disconnect to arise between the study of rarefied international crimes and other global and trans national criminal phenomena. The discipline is thus strangely at risk of losing sight of its broader global relevance, but also of dishonestly ridding itself of some of its baggage as well as, on the positive side, missing out on some of the synergies that exist between different facets of the discipline. This would be a price worth paying, if the rarefication/fragmentation could be justified analytically (as opposed to explained sociologically). Significant and real as the drivers of phenomenon may be, however, they are not in and of themselves weighty intellectual justifications for it. In this section, I suggest that the argument for the distinctiveness of core ICL and the resulting fragmentation of the discipline is, in fact, doctrinally 23 Frédéric Mégret, ‘International Criminal Justice History Writing as Anachronism: The Past That Did Not Lead to the Present’ in Immi Tallgren and Thomas Skouteris (eds), Histories of International Criminal Law (OUP 2018).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

822 Frédéric Mégret weak, problematic jurisprudentially, and criminologically unconvincing so that, on balance, a better case can be made that the discipline should be understood much more holistically.

A. Doctrinally Weak Perhaps the most damning weakness of the rarefication/fragmentation thesis is that it is fraught with complications, even on its own preferred doctrinal terms. Conversely, there is a relatively solid case that the unity of ICL across its diverse manifestations is underscored by a number of compelling systemic doctrinal features. Often, what for this or that commentator counts as a properly international crime is dependent on defi nitions that can hardly be taken for granted (international crimes are those that are prosecuted by international tribunals, that create direct individual responsibility, etc.), that can only with great difficulty provide criteria for what should be included within them (which crimes actually do shock the conscience of mankind, are there only certain crimes that could be prosecuted by international criminal tribunals, etc.) and that at any rate do not seem weighty enough to dictate the definition of the discipline. Let us consider briefly, then, what the arguments might be that the ‘core crimes’ as punished by international criminal tribunals represent a distinct legal reality. It is some times argued that truly international crimes are those that are universally prohibited. There are three problems with this idea. First, many crimes that are universally prohib ited (e.g., murder) are typically not considered international crimes. Moreover, some crimes that are categorically prohibited as a result of international law (e.g., torture) are not typically considered ‘core crimes’. Moreover, many crimes are not universally prohibited (in that not all states have joined the relevant treaty regime for example) but they are internationally so, and it is unclear why, having been made crimes through an international law source, they should not qualify as international (albeit not universal) crimes. For example, it is unclear why regional crimes (e.g., such as may be punished by the African court) would not be considered ‘international’ even though they are not universal. It may be argued that international crimes are crimes that a state must punish, and that are criminal even if a state does not criminalize them. This is helpful to an extent except for three reasons: (i) several crimes that are not considered to be core crimes clearly emanate from jus cogens norms as well (e.g., slavery) and their punishment is considered mandatory; in fact, the repression of most grave crimes against the person (murder, sexual assault) is considered mandatory under international human rights law; (ii) realistically, although the prohibition on drug trafficking for example may not be jus cogens, it is hard to imagine two states breaking away from the narcotics conven tions and concluding a treaty to freely deal in heroin, so that the distinction between jus cogens norms and merely ‘extremely strongly held’ norms is a bit thin (it is probably just as hard to become a narco or terrorist state as it is to get away with genocide); (iii) even if the distinction is valid, it is still only one of degree that does not conclusively rule out the

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Unity of International Criminal Law: A Socio-Legal View 823 character of most transnational crimes as international crimes. And again, it is unclear why the distinction should drive the scholarly agenda. It is sometimes argued, then, that international crimes are those that are punished as such by international law, create criminal responsibility of the individual directly under international law, and are to be punished by international criminal tribunals. By contrast, the suppression conventions do not punish the relevant crimes as such, merely requir ing states to make individuals liable under domestic law, and typically rely on domestic courts. If this is the distinction on which the entire core ICL thesis rests, it is again eminently elusive. The idea that ‘international law as such’ creates true international crimes, whereas some crimes are merely to be punished under domestic law, is a very subtle one to shoul der the weight of defining an entire discipline—more nuance than essence. It is not even clear, in fact, that international law does such a thing in relation to all those crimes typic ally considered to be core crimes (e.g., crimes against humanity).24 Conversely, if and when a certain offence is to be criminalized under domestic law as a result of inter national law, then that offence might well not exist if it were not for international law.25 Internationally-mandated domestic offences are saturated with international obligations (to punish, to extradite) and indeed some would only have emerged as strong global offences as a result of the international treaties mandating their repression. The attempt to delineate core crimes by reference to the sort of courts that may pros ecute them, although superficially concrete and appealing, hardly fares better. For one thing, it is unclear that even the core crimes are explicitly and formally tied to any par ticular type of jurisdiction, even the possibility of a certain type of jurisdiction. Aside from the Genocide Convention—and even there only as an alternative—there is no international instrument that specifically and inherently connects international crimes to international criminal tribunals. In fact, all of the core crime treaties emphasize domestic incorporation and international cooperation as absolutely central, which at least suggests a mode of functioning that is not that different from transnational crimes. In effect, the repression of all of the core crimes continues to rely heavily on a ‘decentral ized enforcement’ model, namely state jurisdiction as part of an ongoing turn to the importance of domestic courts as partners in international criminal justice efforts that was only briefly masked by the ad hoc international tribunals.26 Indeed, one particularly influential understanding of the ICC’s complementarity regime sees trial by the Court itself as a last resort, and encouraging states to prosecute crimes on a decentralized basis as the best possible outcome. Even the primacy-endowed ad hoc international criminal tribunals have evolved over time towards returning cases to the domestic courts.27 24 Heller, ‘What Is an International Crime’ (n 1). 25 Even incidentally, if states may have had reasons of their own for criminalizing domestically, the obligation is still fundamentally an international one. 26 Yuval Shany, ‘The Role of National Courts in Advancing the Goals of International Criminal Tribunals’ (2009) 103 Proceedings of the ASIL Annual Meeting 210. 27 Mohamed M El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice (Martinus Nijhoff Publishers 2008).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

824 Frédéric Mégret Note that to define international crimes as those susceptible to universal jurisdiction, a slightly broader version of the same argument, is equally problematic. The borders of what crimes should be susceptible to universal jurisdiction and which should not are porous, contested, and do not perfectly overlap with core crimes. Universal jurisdiction, in particular, arguably extends to non-core crimes such as piracy and torture. The his torical evolution of what is covered by universal jurisdiction—a fairly mixed bag over time—and the fact that in practice many universal crimes, notwithstanding universal jurisdiction, still stand to be most often prosecuted by the territorial or a nationality state suggests that this is not a wise hook upon which to hang an entire theory of what international criminal law is about. At any rate, the tendency to define core crimes on the basis of their at least greater proclivity to being prosecuted internationally conflates a substantive problem (is there a particular distinct sub-genre of substantive crimes) and an enforcement one (which type of tribunals should punish which type of crimes). It is unclear why the enforcement mechanism available, even if it were relatively distinct and exclusive, should by itself define the nature of the crime, especially given the amount of contingency involved. The ICC could very well at the time,28 and may in the future, prosecute transnational crimes,29 and many have proposed that it does so, wisely or not, particularly in relation to terrorism.30 The African Court of Justice on Human and People’s Rights is already headed in this direction.31 Of course, it remains that most international criminal tribunals to date do tend to prosecute core crimes but this is a largely contingent association rather than compelling grounds for a suma divisio.

B. Jurisprudentially Suspicious Given the weakness of these purely doctrinal distinctions, could the specificity of core crimes nonetheless be rescued by some energetic jurisprudential theory of what makes them stand apart? Perhaps one that would highlight, if not their doctrinal specificity, at least their relative character of gravity? A number of moral theorists, jurisprudes, and philosophers have sought to produce a more normatively coherent theory of international 28 For example, as late as 1992, Cherif Bassiouni and Christopher Blakesley casually discuss an ICC that would have jurisdiction over apartheid, slavery, drug trafficking, terrorism, or money laundering, in addition to genocide or aggression. M Cherif Bassiouni and Christopher L Blakesley, ‘The Need for an International Criminal Court in the New International World Order’ (1992) 25 Vanderbilt J of Transnational L 151. 29 Neil Boister, ‘International Tribunals for Transnational Crimes: Towards a Transnational Criminal Court?’ (2012) 23 Crim L Forum 295. 30 Richard J Goldstone and Janine Simpson, ‘Evaluating the Role of the International Criminal Court as a Legal Response to Terrorism’ (2003) 16 Harvard Human Rights J 13. 31 Florian Jeßberger, ‘Piracy (Article 28F), Terrorism (Article 28G) and Mercenarism (Article 28H)’ in Gerhard Werle and Moritz Vormbaum (eds), The African Criminal Court: A Commentary on the Malabo Protocol (TMC Asser Press 2017) 71 accessed 19 December 2017.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Unity of International Criminal Law: A Socio-Legal View 825 criminal law.32 They have acted as if one of the central challenges were to interpret ICL as if it expressed a consistent theory of justice, even in the knowledge that the actual gen esis of ICL is sometimes little more than a series of haphazard reactions to international developments. Nonetheless, efforts have been launched, taking international criminal law at its word as it were when it claims to repress crimes against humanity or that ‘shock the conscience of mankind’ as so many footholds for a normative theory of international criminal law. Where positive international lawyers work mostly from the ground up to establish the content of international criminal law, jurisprudes are more likely to pro ceed downwards from some unifying theory. This has led theorists to engage in sophisti cated second guessing of international criminal law’s intentions, possibly injecting ICL with more ethical sensitivity than the diplomats and technocrats who drafted it probably displayed. In that respect, it is true that there would be some clear incongruities in a discipline that would treat drug trafficking and genocide on the same plane. Nonetheless, it may well be that, in the effort to normatively make sense of the discipline’s proscriptions, the orists have (perhaps unwittingly) reinforced the hierarchies that the discipline’s doctri nal mainstay had busily established. For example, philosophers have taken to heart the notion of ‘crimes against humanity’—in positivist terms, arguably merely a convenient chapeau for quite a mix bag of offences—to seek to define international crimes as indeed those that more broadly ‘shock the conscience of mankind’. In the process, they have tended to further normalize the distinction between core crimes and the others. Whether such distinctions are sustainable and whether they should be foundational, however, are questions that remain open. One might argue, of course, that what makes the ‘core crimes’ stand out is simply their gravity. This is a recurrent theme in the debate, evident for example in the old idea of piracy ‘shocking the conscience of mankind’, the ILC’s focus on ‘offences distinguished by their especially horrible, cruel, savage and barbarous nature . . . which threaten the foundations of modern civilization and the values it embodies’,33 or the elusive search for a standard of ‘gravity’ before the ICC.34 Although these are useful conversations to be had, it is quite unclear that they can succeed on their own grounds as identifiers of the relative gravity of fundamentally different strands of international criminality, let alone compellingly build a case that ‘core crimes’ are fundamentally graver than all others. First, the idea that some crimes are inherently ‘the gravest’ is often little more than an ex post rationalization. To the extent it neatly coincides with whatever ICL at any one point has actually criminalized or given pride of place (e.g., the ‘core crimes’), it basically adds nothing to our understanding of it and is vulnerable to the critique that it merely takes the discipline’s existing categories of knowledge for granted. Moreover, it typically begs the question of why these crimes are seen as the gravest in the first place, except 32 David Luban, ‘A Theory of Crimes against Humanity’ (2004) 29 Yale J of Intl L 90 (hereafter Luban, ‘Crimes against Humanity’); Larry May, Genocide: A Normative Account (CUP 2010). 33 ILC, Yearbook of the International Law Commission, 1984, vol II, part II (United Nations 1985) para 63. 34 William A Schabas, ‘Prosecutorial Discretion and Gravity’ in Göran Sluiter and Carsten Stahn (eds), The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers 2009) 229.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

826 Frédéric Mégret because they are the ones that happen to be prosecuted by international tribunals (and therefore must be the gravest). This is surely a petitio principii, one that proceeds from what it seeks to prove. Second, gravity is just as complex and elusive a criterion and one on which it seems even less wise to hang an entire theory of what are truly international crimes than some idea of a distinctive quality of international criminalization. For example, gravity is at best the gravity of broad ‘categories’ all other things being equal. One might argue that an element of scale is implicit in the so-called ‘core crimes’, but surely all of the periph eral crimes could be conducted on a ‘generalized or systematic’ basis. All other things being equal, genocide may be worse than war crimes. But imagine the genocide of a very small tribe through the transfer of its children to another group, contra the war crime of targeting a civilian population in warfare with an atomic bomb, or a large campaign of terrorism or slavery, or an act of corruption that precipitates a famine. Even the attempt to draw the line on gravity between crimes as generic categories is unhelpful and sometimes misleading. It often merely reflects the prejudices of the time. Piracy was once the core international crime, then came slavery’s turn, war crimes, aggression, genocide, crimes against humanity, etc. This would not be so problematic if the international community did not seem to change its mind every other decade about what is truly the worst international crime in ways that often suggest fundamental dis continuities. For example, aggression, once the ‘mother of all crimes’, has been steadily marginalized as such where crimes against humanity have witnessed a fundamental resurgence.35 The standard of what shocks the conscience of mankind is often rife with civilizational undertones: at a high level of generality there is considerable agreement about the fact that crimes against humanity are grave, but in practice considerable dis agreement about which crimes against humanity are the gravest and should be priori tized for international attention.36 This cautions against hanging an entire theory about what is truly international criminal law on the changing ethical preferences of the age. One might do more work with categorizations borne from domestic criminal law theory. For example, one might argue that core crimes are mala in se rather than mala prohibita because they have actual victims. But, aside from the fact that the distinction, helpful as it may be, has never been determinative of much domestically (mala prohibita offences are still offences), it again offers little succour. For example, a number of crimes that are not core crimes are clearly mala in se (slavery, torture, terrorism). Moreover, the one transnational crime that might arguably be described as mala prohibita, the drug trade, is in fact a remarkably poor example of that notion, given the colossal amounts of actual victims it creates directly and indirectly. At any rate, the point seems to be that gravity distinctions cannot on their own or in conjunction sustain a theory of the distinct

35 See the chapter by Samuel Moyn, ‘From Aggression to Atrocity: Rethinking the History of International Criminal Law’ in this volume. 36 Frédéric Mégret, ‘What Sort of Global Justice Is “International Criminal Justice”?’ (2015) 13 J of Intl Crim Justice 77.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Unity of International Criminal Law: A Socio-Legal View 827 character of so-called core ICL, or that this distinction is so significant that it should be the structuring one for the discipline.

C. Criminologically Dubious By contrast with these doctrinal and normative arguments, one might seek to reassert a more criminological line of thought, one more focused on the underlying reality of crimes than the ‘pure theory’ of international criminal law. Examining the criminological foundations of the discipline, to the extent that they can be uncovered, can serve as a useful baseline.37 When it comes to ICL, the issue is made somewhat complex by the fact that this is a discipline that, compared to domestic law, has been more systematically decoupled from a criminological grounding. Hence a certain tendency to see crime mostly through the categories that ICL itself creates, rather than as responding to some underlying criminological phenomenon. The criminal law nonetheless exists to take into account criminal phenomena as they hypothetically occur, and not the other way around. The rise of a rarefied international criminal law can be seen as premised on an implicit criminological affirmation of the specificity of ‘core crimes’. Yet it is difficult, in fact, to make the case that core or transnational crimes belong to entirely different registers or that their repression fulfils entirely different criminological needs. Indeed, it often seems as if this division is more an artefact of the dogmatic distinction between the two than it is rooted in a compelling criminological assessment. One might argue, for example, that core crimes manifest a turn towards the cosmopolitan, and a very ‘public’, as opposed to ‘private’, vision of what constitutes international criminality, both in terms of authors and victims. One can see the move to redefine the ‘core crimes’ as ‘crimes against human ity’ and ‘atrocity crimes’ to go in this direction.38 Certainly, genocide, crimes against humanity, and the more civilian oriented branches of the laws of war all have a definite basic human-protection-against-the-doing-of-the-powers-that-be bias. But this vision is also problematic for several reasons. First, the categorization does not really work on its own grounds. At least the crime of aggression sits oddly within the category of atrocity crimes, save for a very cosmopolitan reinterpretation of its foundation39 that is currently marginal. Conversely, many of the crimes that are not typically included among the core crimes have essentially the same foundation. For

37 Dawn L Rothe and Christopher W Mullins, ‘Toward a Criminology of International Criminal Law: An Integrated Theory of International Criminal Violations’ (2009) 33 Intl J of Comparative and Applied Crim Justice 97; Paul Roberts and Nesam McMillan, ‘For Criminology in International Criminal Justice’ in Ruth Jamieson (ed), The Criminology of War (Routledge 2017); Mark A Drumbl, ‘Toward a Criminology of International Crime’ (2003) 19 Ohio State J on Dispute Resolution 263. 38 David Scheffer, ‘Genocide and Atrocity Crimes’ (2006) 1 Genocide Studies and Prevention 229. 39 See the chapter by Tom Dannenbaum, ‘Legitimacy in War and Punishment: The Security Council and the ICC’ in this volume. See also, Frédéric Mégret, ‘What Is the Specific Evil of Aggression?’ in Claus Kreß and Stefan Barriga (eds), The Crime of Aggression: A Commentary (CUP 2016).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

828 Frédéric Mégret example, clearly the criminalization of slave trafficking or torture is based on the notion that these are grave offences for humanity. Second, the idea that individuals associated with states commit ‘core crimes’ whilst individuals operating within non-state actors commit ‘transnational crimes’ is clearly dubious. As it happens, states do not have a monopoly over atrocity crimes and non-state actors are not the only ones to engage in purely private criminality. There are many state actors involved in transnational crimes (Manual Noriega and drug trafficking; or the Taliban and state-sponsored transnational terrorism), and there are many non-state actors committing ‘core crimes’ (it is now largely accepted that armed groups can commit crimes against humanity or even genocide). Tellingly, international criminal jurisdictions themselves have hardly worked as it was imagined they would, namely as a Nurembergian anti-impunity devices focused exclusively on state actors, instead increasingly focusing on members of armed groups.40 In fact, the rigid dichotomization of the cosmopolitan and the transnational has argu ably hindered the possibility of much needed work at the intersection of those diverse phenomena to understand, for example, the logic of public actors engaging in private crimes41 or of private actors engaging in political crime.42 The fundamental unity of international criminality is, in fact, evident in the deep mixing of the public and the private in many international crimes. In particular, the distinction often minimizes the extent to which transnational and supranational crimes operate in symbiotic fashion. One only needs to think of: (i) Colombian guerrillas, involved in kidnappings and war crimes, financing their ‘rebellion’ through a deep implication in the narco-traffic; (ii) Western mining companies corrupting public officials and enlisting their help in repressing civilian unrest as part of crimes against humanity; (iii) ‘terrorists’ using the plundering of cultural artefacts to finance a terror campaign;43 (iv) states fighting terrorism or even drug trafficking by engaging in torture and committing crimes against humanity; (v) the overriding importance of corruption and bribery of public officials in creating background conditions for the commission of international crimes, etc. From a criminological point of view, one can see massive criminal episodes as the product of many forms of criminality feeding on each other and often fundamentally 40 Frédéric Mégret, ‘Is the ICC Focusing Too Much on Non-State Actors?’ in Margaret de Guzman and Diane Marie Amann (eds), Arcs of Global Justice: Essays in Honour of William A. Schabas (OUP 2015). 41 Gregg Barak, ‘Revisiting Crimes by the Capitalist State’ in Dawn Rothe and Christopher W Mullins (eds), State Crime: Current Perspectives (Rutgers UP 2011); Dawn L Rothe and Jeffrey Ian Ross, ‘The State and Transnational Organized Crime’ in Felia Allum and Stan Gilmour (eds), Routledge Handbook of Transnational Organized Crime (Routledge 2012). 42 There is a certain skepticism about the prosecution of non-state actors for atrocity crimes precisely as a result of the ‘statist’ bias implicit in core ICL. See for example William A Schabas, ‘Prosecuting Dr Strangelove, Goldfinger, and the Joker at the International Criminal Court: Closing the Loopholes’ (2010) 23 Leiden J of Intl L 847. 43 Whitney Bren, ‘Terrorists and Antiquities: Lessons from the Destruction of the Bamiyan Buddhas, Current ISIS Aggression, and a Proposed Framework for Cultural Property Crimes’ (2016) 34 Cardozo Arts & Entertainment L J 215.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Unity of International Criminal Law: A Socio-Legal View 829 transcending the public/private divide. Moreover, one can see them as having their source in common pathologies including the failure of the state, the weakness of enforcement resources, regulatory competition, or the existence of a market for crime. The point is that criminological theories accounting for the hybrid nature of much ‘international crime’ are needed and possible. What constitutes this global ICL will be ill-served by excessively pointed theories whose very raison d’être is to reproduce and amplify a strong division between core and peripheral, international and domestic, cosmopolitan and transnational crimes.

IV. Towards A Unified Research Agenda The previous part has sought to challenge the notion that core ICL and transnational criminal law are fundamentally distinct fields. The gradual realization that no decisive argument exists to severe core crimes from the other crimes, that the differences are of nuance rather than nature, and that mistaking one epochal and jurisdictional emphasis for the true nature of the discipline is misleading opens the way for a more syncretic, pluralistic, and heterodox understanding of the global logics of criminalization. If any thing, the various manifestations of ICL are better seen as joined at the hip, more not able in what they have in common than in how they differ. This, however, leaves open the question of what that broader discipline is, and why we should care. Logics of specialization will remain and, after all, one might see nothing problematic about a functional division of labour between the sort of international criminal lawyers who discuss JCE 3 before the ICTY and those who study the dual crim inality requirement in extradition proceedings for corruption. What can be gained, potentially, by thinking of ICL as a unified discipline? How might one refashion a theory of the unity of ICL that is not spread so thin that it lacks any analytical trenchancy? I would suggest that a definition that gets us closer to what ICL might properly be considered to be is one that covers all aspects of the criminal law that are significantly determined by international law. These include both directly and indirectly created international crimes; the operation of international criminal tribunals, but also the complexities of extradition and judicial cooperation; as well as, arguably, elements of domestic criminal law that are heavily influenced by international law, such as titles to criminal jurisdiction or certain offences that are seen as closely connected to the protec tion of human rights. Recent, albeit marginal, efforts to better integrate transnational and international criminal law anew provide one of the most promising venues for the theorization of ICL.44 In this part, I argue that the fundamental homology between the supranational, the transnational, and the domestic can provide a basis to vertically integrate the discipline.

44 Wilt and Paulussen, Legal Responses (n 8).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

830 Frédéric Mégret

A. Refocusing on the Internationalization of Crime Control Instead of the Criminalization of International Law In the discipline’s standard account of international criminal law as the mix of ‘inter national’ and ‘criminal’45 law, something was always at risk of being lost. The metaphor may be broadly right, but it also feels slightly intellectually lazy. What exactly is being mixed, on whose terms, and with what results? On the one hand, the definition of inter national criminal law from the point of view of public international law reflects a par ticularly public international law concern with identifying what it can claim to fall within its realm and what is most specifically international. The suspicion, however, is that the focus of what is part of international law proper reflects a formalist rather than realist jurisprudence, and that it subtly overestimates the importance of international criminal law being international in some narrow sense. On the other hand, although the degree to which international criminal law is, on a day-to-day basis, about doing crim inal law has certainly not been missed by practitioners of international criminal justice, this is not the same thing as refashioning an understanding of the discipline as primarily about the global manifestation of criminal justice. In order to re-energize thinking about the overall contours of the project, then, one might prefer a more socio-legal take on international criminal law, one that would, in particular, re-emphasize the ideal, typically criminal, in international criminal law. The animating idea behind international criminal law is not so much international law per se as the criminal justice project. The point is very much that certain violations should create not only a tortious type of responsibility, or engage the responsibility of the state, but should lead to a finding that certain individuals have committed crimes and should be punished for it. Although that idea has of late become very much part of international law as we know it, there is no mistaking the fact that it was until very recently anathema to traditional international legal thought; it is, however, perfectly consonant with the idea of criminal law. Where the former was predominantly focused on organizing the coexistence of equals in an anarchic system, only the latter is interested in enforcing fundamental societal norms vertically. As such, the rise of ICL marks a victory of the ‘criminal law mindset’ over the ‘inter national law mindset’, one that is historically much less top-down, repressive, and hier archical than the model presupposed by ICL. Although ICL is oftentimes described as a sort of culmination of international law, coming on the heels of ever-increasing norma tive densification (norms erga omnes lead to jus cogens norms that lead to international crimes),46 it is also a form of demise of classical international law. That international criminal law can legitimately be claimed to be merely a branch of international law 45 M Cherif Bassiouni, ‘The Penal Characteristics of Conventional International Criminal Law’ (1983) 15 Case Western Reserve J of Intl L 27. 46 M Cherif Bassiouni, ‘International Crimes: Jus Cogens and Obligatio Erga Omnes’ (1996) 59 L and Contemporary Problems 63.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Unity of International Criminal Law: A Socio-Legal View 831 formally should not blind us to the fact that it also manifests, paradoxically, a form of intellectual absorption of the international by the criminal. To put it differently, international criminal law, rather than being merely a branch of public international law, is constantly at risk of changing the nature of the tree—of, in fact, becoming the trunk. There is thus an asymmetry in the way that the hybridization of criminal and inter national law is being experienced: for international law, criminalization changes its very modality and functioning; for criminal law, internationalization merely expands its geographical horizon. To be sure, whilst internationalizing criminal law undergoes some specific transformations of its own: specific modes of liability are emphasized, new offences are explored, hybridization of traditions and procedures occurs. But these things already occurred transnationally and, besides, they merely attest to the ability of a culture of crime control to increasingly move beyond its sovereign cradle. The mix is therefore occurring predominantly on criminal law’s own terms. Rather than inter national law adopting some criminal law features and techniques—an important devel opment for international law but not one that allows us to go to the bottom of what is going on—it may thus be useful to think of international criminal law as manifesting the continuing globalization and success of ideologies of crime control. This is in many ways the bigger and largely untold story, one that is connected to the expansion of the state model and that remains one of the greatest and perhaps least acknowledged ‘successes’ of the criminal law project.47 The expansion of criminal justice to international law merely continues that age-old phenomenon, henceforth highlight ing crime control as an appropriate strategy for the international realm itself. It also, through ‘feedback loops’ and hybridization with powerful human rights logics, reinforces the dominant consensus on the need for criminal repression.48

B. Thinking Globally and Transversally If ICL is conceived in this light, there is arguably much more than meets the eye between a range of domestic, transnational, and cosmopolitan trends than is typically acknow ledged. This suggests that the most productive frame of reference may be one that show cases the globality of criminal law trajectories rather than one that merely isolates the specificity of rarefied ICL. To begin with, an agenda taking seriously the unity hypothesis could be specifically devoted to examine how ideas circulate between different levels and silos of the criminal project globally. It would focus for example on how ideas travel both horizontally and vertically, bottom-up and top-down, between the domestic, the transnational, and the 47 It is also one that yields interesting lessons for the contemporary practice of the ICC. Frédéric Mégret, ‘Cour Pénale Internationale et Néo-Colonialisme : Au-Delà Des Évidences’ (2014) 45(1) Études internationales 27. 48 Karen Engle, ‘Anti-Impunity and the Turn to Criminal Law in Human Rights’ (2014) 100 Cornell L Rev 1069.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

832 Frédéric Mégret supranational. It would highlight the extent to which that circuit is often complex: ideas beginning as domestic ones can garner attention transnationally before they are absorbed as supranational conceits and eventually returned to their original domestic framework, only to trigger further dynamics. Rather than a silo or a pyramidal model, the better way to conceptualize global criminal law developments is as a series of nested processes. The discipline is not so much defined by whatever constitutes its apex at any given time than by how it combines the building blocks of repression in ways that constantly redefine the relative priorities of international criminal policy. Many so-called core crimes, for example, draw on both domestic and transnational offences. Early common law definitions of slavery were absorbed into the first antislavery treaties and subsequently used by the ad hoc international criminal tribunals to define slavery as a crime against humanity, only to then be inserted in the elements of crime and the ICC and, quite possibly, to form the basis of further domestic definitions of slavery as a self-standing offence. Torture, enforced disappearances, and various forms of sexual violence have witnessed similar fates. On the enforcement side, universal juris diction, for example, was first conceptualized in the context of piracy, before migrating to slavery, torture, and war crimes. A global convergence of criminal law traditions, not ably in their procedural form, is visible, and is mediated by attempts to weld procedures before international criminal jurisdictions, the influence of international human rights standards on the right to fair trial, or human rights obstacles to extradition. All these processes are complex and, more importantly, imbricated. The coming into being of a global system of criminal law also includes the circulation of ideas about criminal justice systems. For example, the ‘new punitiveness’ and ‘penal populism’ as discourses that have increasingly shaped the domestic response to crime are not entirely alien to the resurrection of international criminal law in the 1990s. They are also part of subtle reorientations of liberal criminal justice dogmas under the push of human rights, and a concomitant complexification of the human rights discourse from pushing back against the repressive state to legitimizing it.49 Ideas about victim rights that have become so central to the ICC’s identity are not a sui generis development that shows the uniqueness of international criminal justice, but one that draws much inspir ation from both earlier domestic victim rights’ movements and international human rights law’s own construction of the victim in a penal or quasi-penal context. Second, the global study of international criminal law might emphasize the extent to which its various subdisciplines are ‘joined at the hip’ and rely on a deep substratum of concepts (sources, fundamental principles, modes of liability, etc.) and institutions (judi cial cooperation, extradition, police work, etc.). Although little noticed, for example, the suppression conventions themselves touch upon ‘general part’ issues. JCE for example, far from being only the preserve of concentration-camp scenarios, is/could be very

49 Jean-Paul Saucier Calderón and Frédéric Mégret, ‘¿“Penalización” de los derechos humanos?: Giros y paradojas en la jurisprudencia de la Corte Interamericana de Derechos Humanos’ (2016) 47 Derecho & Sociedad 15.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Unity of International Criminal Law: A Socio-Legal View 833 useful in framing the fight against organized crime more generally;50 and there is already a lively debate on how incitement applies to international offenses across the spectrum such as genocide and terrorism.51 The narcotics or terrorism conventions require states to criminalize certain modes of participation in drug offences, just as the Rome Statute does in relation to the core crimes. A fully developed general part of ICL will emerge sooner or later and, although there may be more latitude for some offences than others, it behooves international criminal lawyers to already participate in its elaboration. Third, ICL could do a better job of investigating even its specifically international dimension. In particular, it could more thoroughly reintegrate the study of criminal jur isdiction globally, a fundamental issue of international law since at least the Lotus case that has tended to be parcelled out by the fragmentation of ICL. For example, the work on international and universal jurisdiction is typically quite separate from work on active personality or national interest jurisdiction. Moreover, the study of prescriptive, adjudi cative, and enforcement jurisdiction is typically disconnected. When it comes to conflicts of international jurisdiction, there are students of primacy and students of comple mentarity, which operate quite separately from those interested in conflicts of penal jurisdiction between states. But these dimensions overlap fundamentally. For example, one of the grounds used to assert dramatic protective jurisdiction has been that the crimes are condemned by the international community;52 issues of concurrence of jurisdiction obviously arise on the horizontal level as well, as evidenced in efforts to understand the application of double jeopardy protection between states,53 but also, more generally, efforts at prioritizing com peting claims to jurisdiction, notably in cases of universal jurisdiction;54 the question of immunities is one shared by domestic jurisdictions, regional human rights courts, and international criminal tribunals. Finally, paying attention to the ruptures in the domestic/ transnational/supranational continuum might serve to highlight what ‘falls through the cracks’ of otherwise extensive and overlapping domains of repression.55

50 Harmen G van der Wilt, ‘Expanding Criminal Responsibility in Challenging Transnational and International Organised Crime’ (2016) 4(1) Groningen J of Intl L 1; Gustavo Piga, ‘A Fighting Chance against Corruption in Public Procurement?’ in Susan Rose-Ackerman and Tina Søreide (eds), International Handbook on the Economics of Corruption (Edward Elgar Publishing 2011). 51 Ben Saul, ‘Speaking of Terror: Criminalising Incitement to Violence’ (2005) 28 University of New South Wales L J 868; Yaël Ronen, ‘Incitement to Terrorist Acts and International Law’ (2010) 23 Leiden J of Intl L 645. 52 Jordan J Paust, ‘Federal Jurisdiction over Extraterritorial Acts of Terrorism and Nonimmunity for Foreign Violators of International Law under the FSIA and the Act of State Doctrine’ (1982) 23 Virginia J of Intl L 191. 53 Gerard Conway, ‘Ne Bis in Idem and the International Law’ (2003) 3 Intl Crim L Rev 217. 54 Stephen Macedo, ‘The Princeton Principles’ in Stephen Macedo (ed), Universal Jjurisdiction: National Courts and the Prosecution of Serious Crimes under International Law (University of Pennsylvania Press 2006). 55 Leslie P Francis and John G Francis, ‘Stateless Crimes, Legitimacy, and International Criminal Law: The Case of Organ Trafficking’ (2010) 4 Crim L and Philosophy 283.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

834 Frédéric Mégret

C. Reconfiguring Theory The discipline largely sets itself its own theoretical challenges. In an era of perceived fragmentation, the challenge was to strenuously highlight whatever made core ICL more rarefied and transnational criminal law more distinct. The proposed reconfiguration of ICL in this chapter suggests a renewed need for theories that would, on the contrary, highlight the commonalities between branches. What would theorizing about an ICL that is more global than supranational or transnational actually mean? I suggest three theoretical puzzles that cut across all dimensions and whose incidence for the discipline is radicalized by this unified approach. First, the discipline will remain in search of overarching frameworks that can provide plausible even if imperfect accounts of what it stands for normatively. A critique of the fragmentation/rarefication thesis can lead to the conceptualization of ICL as a sort of hodgepodge of offences that defies real categorization. What is gained in descriptive truthfulness, is lost in analytical trenchancy. It is therefore important to avoid falling into the trap of a merely descriptive and enumerative take on ICL. One thing that one can retain from rarefication is its implicit call for a more orderly and theoretically organized constitution of the discipline. It is true in that respect that the late Bassiouni’s vast typolo gies of international criminal law often appear only loosely grounded theoretically. For Bassiouni, crimes were international based on a number of markers, without it ever being clear why these markers should be decisive. As a result, ICL appeared as a sort of bizarre laundry list of things that the international community has condemned over the years. Nonetheless, this fundamentally eclectic intuition, if it can be better theorized, is sound as a way of countering the trend of rarefication. There is something to this flatness, whether intentional or not, an attention to the very many ways of international criminal law as a multi-faceted phenomenon whose existence and definition is not exhausted by any one of its manifestations or the quest for a single theory. There is also something social-scientifically more plausible about the idea that the international system is con tinuously pursuing quite various and even contradictory penal aims with various degrees of intensity and urgency. Finally, there may potentially be something politically more seductive and more aligned with international law’s traditional pluralism in the idea that ICL does not manifest a single cosmopolitan goal but the continued and complex negotiation of competing values. In that context, the public/private divide in ICL surely remains a significant structur ing division in the discipline, albeit not in the narrow way anticipated in the ‘core ICL’ thesis. It may be, for example, that some of the best theorizing about core crimes can be extended to a range of other offences. For example, David Luban’s influential charac terization of crimes against humanity as ‘politics gone cancerous’,56 which at first glance sounds quite implicated in a core crimes model, could include not just a consideration of conventionally oppressive politics by states, but also (i) states gangrened by corruption and organized crime that are, as a result, all the more likely to engage in, or be unable to, 56 Luban, ‘Crimes against Humanity’ (n 32).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Unity of International Criminal Law: A Socio-Legal View 835 resist systematic violence, and (ii) non-state groups whose own ‘politics’ have become cancerous before they could ever be healthy. Similarly, some popular theories to explain ‘private’ transnational criminality such as those based on the idea of a ‘market for crime’ could be extended to explain state behaviour, including in terms of atrocities.57 Second, the unity thesis raises an interesting structural question about whether the time has come to recognize that there is today something resembling a global system of criminal law.58 It is one thing to highlight the existence of islands of supranational, transnational, and extra-territorial criminalization, quite another to detect what has surely historically been largely absent given the decentralized character of the inter national arena, namely an integrated system of criminal law on the global level whose authority would not merely be an extension of states. For a long time, such a finding would have seemed precocious and even the highlighting of a core ICL only went partly to substantiating such a claim. But we may be nearing a tipping point, one in which the criminalization of international law and the internationalization of the criminal law are increasingly hard to disentangle; one in which it is becoming increasingly hard to gauge what is positively domestic and what is positively international; one in which the various manifestations of the criminal repressive project can and ought to be better understood as part of a continuum; one in which supranational criminal law claims less of a pride of place but is merely one facet of a highly complex and multi-facetted phenomenon. Think for example of the way that the criminal law is typically conceived of as coming first, and its internationalization second. The debate may evoke the chicken-and-egg quality of the old question of whether international law or sovereignty came first. But what if the criminal law was seen as itself a product of internationalization. This is not such an incongruous hypothesis given the way in which a particular modern version of the criminal law has now been aggressively exported globally for at least 200 years. Consider moreover that, today, much of domestic criminal law is, in fact, constrained by international law. This is of course true of those relatively few offences that states pros ecute together or decide that ought to be prosecuted by each of them. But it is also true of many common crimes. International human rights law, in particular, conditions, in theory and practice, both what states cannot and can criminalize, how, and why. It is simply no longer an option for a state to leave certain offences (particularly against persons, including but not limited to torture, murder, sexual assault; but possibly even offences against property) unpunished even if it wanted to do so. Moreover, international human rights law has significantly constrained domestic procedural law and encouraged a global convergence around certain fundamental rights in the trial context. International criminal law is evolving as a result of powerful transnational forces (e.g., extradition hurdles requiring 57 Barrie Sander, ‘Addressing the Economic Dimensions of Mass Atrocities: International Criminal Law’s Business or Blind Spot?’ (Justice in Conflict, 8 June 2015) accessed 19 April 2019. 58 Quite separately from the interest in international criminal justice, that question has at least been asked by comparativists. Richard Vogler, A World View of Criminal Justice (Routledge 2017).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

836 Frédéric Mégret states to align their rights regimes), supranational influences (e.g., implementation of international treaty obligations), and bottom-up struggles (e.g., the victims’ movement). Seen in that broad global light, the criminal law in all its forms increasingly looks like it is structured by its international environment as much as by domestic developments. Third, the globalization of the criminal model raises urgent questions about the system’s universalism and the degree to which it should be (de)centralized. The global ization of crime and crime control—the massive endeavour through which various parts of the cosmopolitan, transnational, and domestic criminal puzzles intersect—poses chal lenges not only for international law, but for the continuing development of criminal law and law itself. On one reading, the globalization of criminal law manifests the con vergence of values on the global plane. At the same time, criminal justice remains one of the loci of intense cultural and historical specificity, perhaps even a classic antihegemonic site for the law. The differences between criminal justice cultures are not just obstacles to be overcome—as in the hurried cosmopolitan vulgate—but also stand as reminders of the complex and perhaps irreducible pluralism of the international com munity and the need to continue to manage diversity within unity. These developments arise against the background of weakened democratic institutions, a failing social consensus, global racialized and gendered politics, etc. They raise similar concerns across the transnational/cosmopolitan divide about unduly hegemonic solu tions being promoted. For example, the ICC has often been labelled imperialistic and one of the dominant concerns about contemporary international criminal justice is that it risks becoming a vehicle for great power hegemony.59 Such accusations, however, are far from being a monopoly of the more centralized forms of international criminal just ice: very similar claims have been made of the international narcotics regime,60 efforts to criminalize terrorism,61 or even the prohibition of slavery.62 Again, this suggests a fun damental unity of problematiques whenever highly distinctive criminal law cultures are thrust into an international system that both aspires to cosmopolitanism and pluralism. Many areas of international criminal law, whether the issue be how much of the Rome Statute should be incorporated domestically or the extent to which suppression conven tions must be translated according to states’ constitutions, involve a fundamental nego tiating of the tension between a unitary and pluralist vision of the international criminal law order. Accordingly, one of the central challenges for the study of ICL should be the negotiation of pluralist concepts of international criminal law, from understanding how the international narcotics regime might be compatible with innovative experiences with decriminalization of soft drugs,63 to thinking about how certain parts of international 59 Frédéric Mégret, ‘Three Dangers for the International Criminal Court: A Critical Look at a Consensual Project’ (2002) Finnish YB of Intl L 207; Tor Krever, ‘Dispensing Global Justice’ (2014) New Left Rev 67. 60 Ian G Waddell, ‘International Narcotics Control’ (1970) 64 American J of Intl L 310. 61 Sami Zeidan, ‘Desperately Seeking Definition: The International Community’s Quest for Identifying the Specter of Terrorism’ (2003) 36 Cornell Intl L J 491. 62 Frédéric Mégret, ‘Droit International et Esclavage: Pour Une Réévaluation’ (2013) 8(1) African YB of Intl L/Annuaire africain de droit international 121. 63 Cody T Mason, ‘Coca Leaves and Colorado: International Law and the Shifting Landscape of Drug Reform’ (2014) 29 Maryland J of Intl L 238.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

The Unity of International Criminal Law: A Socio-Legal View 837 criminal law might be susceptible to a ‘margin of appreciation’64 or more regional characteristics.65 Contra a dichotomous vision of the international and the domestic, one fixated on the unique importance of tribunals’ internationalism, it might prompt a more principled defence of the hybridity of international criminal tribunals.66

V. Conclusion In its simplest form, the argument in this chapter has been that there is more common ality than difference between supranational and transnational criminal law, and indeed a number of global criminal justice developments. In fact, the division between ‘inter national criminal law’ and ‘transnational criminal law’ as well as ‘the extra-territorial aspects of domestic criminal law’ imposes specific disciplinary blinders that obscure the complex imbrication of all three. I have argued that the emphasis on core crimes and international criminal tribunals, in particular, is a popular but conceptually precarious move that needlessly sanctifies a narrow area of intellectual inquiry and sets it apart in ways that are increasingly problematic for how we imagine the overall discipline. I have suggested that rarefication is part of a broader trend towards ontological apprehension of the discipline (what is the essence of international criminal law?) that risks too forcefully reducing it to what is imagined as its most accomplished form. Fragmentation leads each to view the problems of crime entirely through their respect ive lenses, at the expense of common narratives. Supra-national criminal lawyers see crime largely as the result of political violence by states to be prosecuted internationally or on the basis of universal jurisdiction; transnational criminal lawyers see crime largely as a product of private forces operating in a global market for crime that need to be tackled through greater penal collaboration; whilst domestic criminologists struggle to emancipate themselves from purely internist explanations of crime.67 Lost in that pic ture are the fundamental similarities and commonalities between all those projects. Needless to say, such perspectives tend to be self-reinforcing because they presuppose many of the answers to their questions. I have argued that in such a context, what is 64 Jenia Iontcheva Turner, ‘Nationalizing International Criminal Law’ (2005) 41 Stanford J of Intl L 1 (hereafter Turner, ‘Nationalizing ICL’); Alexander K A Greenawalt, ‘The Pluralism of International Criminal Law’ (2011) 86 Indiana L J 1063; Nancy Amoury Combs, ‘Seeking Inconsistency: Advancing Pluralism in International Criminal Sentencing’ (2016) 41 Yale J of Intl L 1; Volker Nerlich, ‘Daring Diversity–Why There Is Nothing Wrong with “Fragmentation” in International Criminal Procedures’ (2013) 26 Leiden J of Intl L 777. 65 Simon Chesterman, ‘International Criminal Law with Asian Characteristics’ (2013) 27 Columbia J of Asian L 129. 66 Frédéric Mégret, ‘In Defense of Hybridity: Towards a Representational Theory of International Criminal Justice’ (2005) 38 Cornell Intl L J 725; Turner, ‘Nationalizing ICL’ (n 64). 67 Dawn L. Rothe and Jeffrey Ian Ross, ‘The Marginalization of State Crime in Introductory Textbooks on Criminology’ (2008) 34 Critical Sociology 741; L Edward Day and Margaret Vandiver, ‘Criminology and Genocide Studies: Notes on What Might Have Been and What Still Could Be’ (2000) 34 Crime, Law and Social Change 43.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

838 Frédéric Mégret international criminal law may certainly be elusive, but that the attempts by one corner of the discipline to monopolize the label are unhelpful for all but the narrowest doctrinal pursuits. Instead, I have argued in favour of rediscovering a much more holistic concept of ICL based on the totality of criminal law phenomena with a transnational, global, or indeed supranational dimension. To be clear, this idea is not incompatible with the search for doctrinal consistency or the best jurisprudential theory—it simply operates in a very different space, one that is less dogmatic and more socio-legal in its under standing of what counts as ‘international’. In considerably broadening what qualifies as ICL, it does seek to unleash scholarly energies better redirected away from ontological questions and towards a sustained understanding of the worlds of ICL. If the past is any guide, the rarefication and fragmentation of international criminal law is hardly inevitable. There was only a rarefication because of an earlier phase of (per haps excessive) diversification. At regular intervals, the question has arisen as to how broadly the discipline should be defined, highlighting the current phase as historically contingent. For example, the work of the ILC on a Draft Code of Crimes Against the Peace and Security of Mankind evidenced a constant oscillation between rarefication (merely confirming the Nuremberg crimes) and extension (adding an entire cohort of further crimes). The recent creation of the African Criminal Court, which mixes more or less felicitously both core and transnational crime, is further proof that these categories are not immutable or exclusive. If anything, these developments suggest that the idea of a core ICL, even if it is a useful doctrinal/normative distinction, is unlikely to be a legally or scientifically compelling one. In retrospect, the phenomenon of rarefication may appear as a peculiar 20 year parenthesis: the pendulum may have swung as far to rarefication as it can without the discipline noticing that it is sawing the branch on which it sits, especially of course in a context where its more centralized avant-garde has failed to secure the sort of command ing position it was once hoped it might achieve. The point here has not been, or at least not specifically, to reassert the importance of the horizontal-international and even global dimensions of the criminal law but, taking that as a given that should never have been lost sight of, to insist that we better conceptualize both the transnational and the supranational as constitutive dimensions of ICL.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Section IX

F U T U R E (S)

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

chapter 36

I n ter nationa l Cr i m i na l L aw The Next Hundred Years Gerry Simpson

‘It’s over, it ain’t going any further’ Leonard Cohen, ‘The Future’ (1992)

Anniversary Waltz As this book is published in 2019, international criminal law, amidst one of its periodic crises of faith, will also be celebrating one of its many centenaries.1 It is certainly possible to make a case for 2015 (one hundred years after the execution of Edith Cavell) or 2014 (a century after the Kaiser’s decision to invade Belgium) or 2045 (the IMT Charter) or 2093 (marking the establishment of the ICTY). But 2019 seems especially propitious. In 1919, after all, the Allies signed the Versailles Peace Treaty that contemplated the ‘arraignment’ and trial of the Kaiser on various vaguely worded charges of having violated the sanctity of treaties and the validity of international morality (the latter, a splendid microcosm of ICL’s naturalist/positivist split). 1919 was a sort of beginning, then, and, like so many beginnings, a transition that was both tentative and unsure, and one that relapses into a disappointing local procedure: the beginning of a beginning, perhaps.

1 On international law and crisis, see Hilary Charlesworth, ‘A Discipline of Crisis’ (2002) 65(3) Modern L Rev 377; Gerry Simpson, ‘After Method’ in Annabel Brett, Martti Koskenniemi, and Megan Donaldson (eds), History, Law, Politics: Thinking Through the International (CUP forthcoming, 2020). On international criminal law and crisis, see Sergey Vasiliev, ‘The Crises and Critiques of International Criminal Justice’ in this volume (hereafter Vasiliev, ‘Crises and Critiques’) (describing a field ‘hooked up on crisis’).

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

842 Gerry Simpson 1919 was to herald the end of an ‘impunity’ (for a characteristically creative pluralizing of ‘impunity’, see Drumbl) that ‘shocked the conscience of mankind’ (the phrases all originate at Versailles and not Nuremberg—see, too, discussion in Mégret). If the old world was struggling to be dead (the phraseology in Article 227 is very 19th century), the new world was confident in its commitment to an unyielding retributivism: ‘There is a sense of justice in the world’, as Lloyd George put it in a meeting of the Imperial War Cabinet in 1918. The Kaiser would hang, others would hang in the future, and then, perhaps, wars and the crimes of war would end. Set against this vision, the actual future was a rather haphazard affair. For sure, major Axis leaders were hanged in Tokyo and in Nuremberg (the ashes to be taken to Munich and scattered in the Isar), and villainous deeds committed during the war were prosecuted. But war crimes trials since then have happened only in jumps and starts, and not often in the places envisaged by the peacemakers at Versailles. No-one in 1919 could have predicted that the future of international criminal law would be found in, among other places, the District Court of Jerusalem or the Bow Street Magistrates’ Court or the Rhone Cour d’Assises. I say all this because my postlude is found in a section of this book called ‘Futures’, and predicting what the future holds for international criminal justice or what sort of event might take place at a later anniversary, say, in 2045 or 2093, is beyond my powers of prophecy (a winter symposium in the city-state of Den Haag, languages: Mandarin and Dutch, some human participants, the UK trying to pull out of the European Union?). Instead, and as a way of thinking into some possible futures, it might be better to think of this volume as a stock-taking of what I have taken to calling ‘one hundred years of turpitude’. So, after this century, here we are in 2019 and a paradoxical quality attends the project of legalized retribution. On one hand, it is over. In the world of rogue hyper-finance, ecological self-destruction, trigger-happy nuclearism, dark webs, black money, halfcrazed populism, is international criminal law really where it’s at? Then there is the atmosphere of decay, backlash (Lovat), and recession internal to the field: the withdrawals (Burundi, The Philippines) and threatened withdrawals (Kenya, Namibia, South Africa), from the ICC, the sunsets of the ad hoc tribunals, the sense of a late-style torpor settling over ICL institutions. Of course, new proposals continue to be advanced (the ILC’s crimes against humanity draft, a criminal tribunal for Liberia) but international criminal tribunals don’t feel like the future. And, when the history of the future is written, ICL, itself, might have a vaguely asterix quality. So, at the very moment of its consummation, or ‘completeness’ and ‘normalization’ (Editors’ Introduction), it is experiencing a moment of anti-climax or is becoming what the editors call, in more mellifluous terms, ‘a tenuous proposition in a deeply divided and pluralistic international environment’ (Editors’ Introduction). On the other hand, and especially when confronted with the evidence of this supercharged volume of sparkling essays, the various recent reports about the death of international criminal law have a vaguely Mark Twainish quality about them. More people seem to be studying international criminal law than ever before (every year I teach

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Law: The Next Hundred Years 843 courses in Melbourne and London to full class-rooms), its origins have been transformed into a New York Times bestseller (Philippe Sands’ East West Street) and a mini-opera, there are movies about the ICC (Polanski’s The Ghost Writer), novels, plays and, of course, a burgeoning and mostly illuminating academic literature (my reading guides are now groaning under the weight of it all). For the purposes of puzzling our way through this dissonant combination of moods, we might ask—in a very preliminary manner—what exactly is international criminal law?2 After reading this book, I am further away than ever from providing an answer to this question. This, indeed, is one of the achievements of the volume. The authors, often quite brilliantly, put everything into question. The re-taxonomizing chapters, for example, are mostly inconclusive but usefully so. What is the distinction between transnational crimes and core international crimes really about? Both Guilfoyle and Mégret offer post-Schwarzenbergian ways into this apparently constitutive but not very defensible distinction. Chehtman meanwhile provides a philosophically forensic reading of the ‘coreness’ of the established quartet of ICL crimes. As Frédéric Mégret notes, international criminal law is always going back and forth between inflation and rarefication: sometimes letting a thousand core crimes bloom, at other times retreating back to the four and half ‘war’ crimes prosecuted at Tokyoberg. And, as the chapter by Christine Schwöbel-Patel also makes clear, ICL is a tiny, tiny part of the international criminal justice picture compared to, for example, the war on drugs. So, one way into this is to contrast ICL as institutional activity and ICL as intellectual field. This is certainly a way of figuring this volume itself: some of the authors treating international criminal law as a bunch of rules or bureaucratic practices, others offering all sorts of Freudian insights into the motivations of international criminal lawyers themselves (mostly, it seems, they are narcissistic, obsessively anxious, voyeuristic, swivel-eyed turf defenders; some of my best friends, then, are narcissistic, obsessively anxious, voyeuristic, swivel-eyed turf defenders). Understood as an intellectual project, ICL is in its prime. Never have so many written so much great stuff about so little. So (comparatively) little activity in the world of tribunals and prosecutions, so much thought, creativity, and industry in the world of scholarship. I don’t mean this to sound facetious. Reading this collection reminded me of why I was drawn to thinking about this subject in the first place. In 1997, when I wrote something called ‘A Critical Approach to War Crimes Law’, adopting a sceptical voice felt like a rather lonely task (only a small number of people at the time were really interested in this sort of thing—David Luban, Guyora Binder; a little later, Frédéric Mégret, Mark Drumbl; a little earlier, Hannah Arendt, Judith Shklar). As Abe Chayes once said of international law: it was too early for deconstruction, the construction had yet to begin. Now, we have a glorious flourishing of thinking and writing and critical energy. It strikes me, then, that international criminal law is best understood as a space for thinking 2 The questions of what the field consists in, where we might find it, and, especially, whether it is essentially about aggression or atrocity are taken up in chapters by Greenawalt and Moyn.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

844 Gerry Simpson about the world and its various projects of ordering and disordering, neatly thematized (Luban, Douglas) and personalized (Christensen, Devresse and Scalia, Jain) in essays here. And so, to offer an old-fashioned answer to the question what ‘is international criminal law’, one might say, ‘You are holding it in your hands’. The authors here collectively do international criminal law. And they do it in at least three different registers. I will call these reformist hope, critical affinity, and unfriendly scepticism, and go on to catalogue some of the chapters accordingly (without in any way doing justice to the complexity of the arguments). I will conclude by trying to imagine how enthusiasts and defenders of international criminal law might respond to all of this criticism.

Reformist Hope Much of the work here is written in the register of a reformist hope: hope for a system that neither over- nor under-immunizes combatants faced with the prospect of war crimes trials (Haque); hope for an international criminal law that understands its own internationalism and speaks for and in the name of the ‘international’, not as a contingent matter but as a matter of life and death (or, at least, legitimacy); hope for a more systematic approach to its own sources doctrine, whether Professor-made law (Jain) or Franconian and Roman expansionisms (d’Aspremont); hope for an international crim inal law absent the usual organizational requirement in order to ‘better fulfil its overall function of . . . providing legal protection to the most vulnerable people on the planet’ (Chehtman); or, conversely, hope for an alternative international legal future in which organizational culpability regains the centrality that it had at the IMT (Mohamed). So, Glasius and Meijers, striking a counter-intuitive note, discuss an inequality of arms that might work to the benefit of defendants, and they go on to make a plea for prosecutors and judges to adopt an active approach in countering the more outlandish claims of defendants. All this, they hope, will help courts realize their important expressivist role. In other chapters, ICL (perpetually guilty of ‘crowding out’ (Cheah) more promising practices of restorative justice) might be redeemed through more research or education, or its contradictions might be better managed through self-awareness (d’Aspremont), or we might decide that the damage done to the concept of reciprocally burdened and respectful enmity by the ‘admirable effort to criminalize aggression’ is damage worth living with (Douglas).

Critical Affinity Others take a more equivocal line. Christine Schwöbel-Patel’s ambivalent conclusion occupies this space with its calls for either a better case selection or an interrogation of

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Law: The Next Hundred Years 845 the ‘utility of the system itself ’. Laurel Fletcher’s Shklaresque indictment of ‘legalism’ in the context of transitional justice looks as if it might be heading in an abolitionist direction (if retributive justice really does divert attention from ‘broader, emancipatory, social justice goals’ of transitional justice, why continue with it?). But she can’t quite shake off the project altogether. What is needed is a friendly scepticism about punitive justice, an awareness of its limits, its biases, its deforming tendencies. Maybe then it can be saved. But for what purpose? Quite often in these chapters—indeed in a lot of critiques of international criminal law—we have the comprehensive indictment followed by the critical affinity. Sarah Nouwen and Sara Kendall want international criminal justice types to learn from humanitarianism’s struggles for self-realization. But this is preceded by a powerfully scathing assessment of international criminal justice itself as a form of justice that ‘enabl[es] proponents to . . . bracket the question of their own moral relationship to those who have been wronged and to focus attention on the figure of the perpetrator’. Analyzing why Levinasian ethics has a place in humanitarianism and less so in international criminal justice, they argue: In the field of international criminal justice . . . the focus on the accused has tended to supplant the question of the responsibility of additional ‘others’; those who produce the conditions that make suffering possible. Put differently, international criminal justice shifts the focus from the reciprocal relationship between the self and the one who suffers to an external relationship between an accused and victims. In forming part of the collectivity represented by the prosecutor and judge, as part of an abstract ‘international community’ in whose name justice is enacted, those confronted with suffering move from the position of assessing their own relationships to the suffering to a position above the accused and the victims.3

Not only that but it does so in the name of a probably discredited humanity (here the problem seems to be hubris, narcissism, depoliticization, repoliticization). This sort of compelling critical engagement makes the subsequent call for a newer, better, unillusioned, bruised, redeemable international criminal justice system rather jarring. If the club you attend at the end of the street is so flawed, wouldn’t you just join another one or form your own club? Here we have a kind of eschatological pessimism of the present combined with a faith in a future itself when people will wake up to a broader context or a better politics or a stronger sociology (some of this to be acquired from the repeated mistakes of other fields of action, e.g., humanitarianism). And so, even a particularly disillusioned critic like Christopher Gevers stops short of calling for complete abolition, though he is very pessimistic (given ICL’s rootedness in a deeply embedded racial and colonial history of image making) about ICL’s ability to remake itself in a different form in the future.

3 Sara Kendall and Sarah M.H. Nouwen, ‘International Criminal Justice and Humanitarianism’ in this volume.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

846 Gerry Simpson

Unfriendly Scepticism Then there are the malcontent sceptics. But international criminal law may now be the most critiqued field in human history. Is there anything more to be said about its multiple failings? In an original contribution, Itamar Mann tells us where the bodies are buried. He puts Arendt (ICL as a rule of law project) into conversation with Shoshana Felman (ICL as a discipline of trauma) in order to show how re-descriptions of the field might be understood as genre exercises. This then (ir)resolves itself into an epilogue in which Mann wants us to notice that trials usually end in violence, sometimes death. And when they do end in death, someone has to do the killing (setting off a fresh round of trauma). The ‘someone’ in Eichmann’s case was Nagar, the Hangman (later butcher) of an eponymous film. Nagar is an example of ‘alienated legal labour’: the sort of labour that involves carceral drudge work or, in Nagar’s case, exposure to the gurgling sounds Eichmann’s dead body is making as Nagar begins the disposal of it. On a broader canvas, Sergey Vasiliev, in his chapter, does a nice job of documenting ICL’s proliferating failings: international criminal justice is caught up in a series of imperial moves; it is a handmaiden to hegemony (relying on a feeding hand it would like to avoid biting, as Vasiliev puts it in a well-turned phrase); it prioritizes rights-bearers over others (Bikundo); it produces and reproduces a certain ‘transnational allocation of risk’ (Mann); its gender politics are dubious, its racial politics are just as dubious; it is inattentive to questions of culture (especially the question of its own culture—always presented as cultureless) (Cheah); its fair trial illusions and fictions do serious damage to the legitimacy of the whole enterprise (Jacobs); its core crimes are imbued with a set of political-economic prejudices (Schwöbel-Patel); it depends on, or writes, histories that are absurdly primitive, monolinear, or apologetic and inexcusably amnesiac (Gevers); it over-individualizes the world of diplomacy. Probably international criminal law is, in some indirect way, responsible for a decline in the public services in Hampstead. The list is endless, and I have been a regular contributor to it.

Perimeter Defence Poor international criminal justice! All of this makes me want to rush to its defence. But is there anything left to defend? The enthusiasts for international criminal law (it is notable that Vasiliev barely cites a single optimist here amidst the ocean of critical essays in the Leiden Journal of International Law) are occupying tinier and tinier beachheads, moving, like the United Nations at the Pusan Perimeter towards the end of the first phase of the Korean War, to the last few redoubts while awaiting the arrival of reinforcements. Faced with this welter of doubt, the believers have adopted a number of different strategies and I want to just finish with a short description of these.4 4 Vasiliev describes several others in his chapter ‘Crises and Critiques’ in this volume.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Law: The Next Hundred Years 847 The first is not to defend ICL at all. So, a large number of scholars write and behave as if no-one has ever said an unkind word about international criminal law. No amount of critical work will inflict even a moment of serious self-doubt on some cheerleaders of international criminal law. In this sense, ‘International Criminal Justice’ mirrors global capitalism: neither pays any heed to its own death notices. In this way, a one-hour critique of the rhetorical abuses of the idiom of humanity and the absurdities of anti-impunity will be met with a call for ‘humanity’ not to permit ‘impunity’.5 Another group of supporters simply join in the chorus of criticism. So, as Frédéric Mégret has pointed out, everyone is now a critic of international criminal tribunals. Almost every international criminal lawyer is happy to accept the limitations of the programme: its selectivity, its obeisance to the Great Powers, its lack of enforcement, and so on and so forth. International criminal law has become its own critique, as if the novel had become literary criticism. So, the critic appears to be just one more pragmatist pointing out the obvious defects in the system. Yet another common response to critique is to invoke a sacral victim or an obviously wicked perpetrator. The question is then put to the critic: ‘In the face of such testimony do we really do nothing?’6 This response imagines a confrontation with the tortured victim or the mother of the disappeared, where the critic is forced to defend her or his inaction. ‘How could you not?’, seems to be the question.7 Can international criminal law provide justice? ‘We should certainly try’, as many have pleaded. ‘There is much to be done’. This ‘incrementalism’ depicts the critic as a person who gave up too readily. Nobody said securing world peace and equal justice was going to be easy. Here the critic is no longer positioned as a sceptic but rather as an idealist without stamina.8 [I]dealists need at minimum to acknowledge the profound critiques and limitations of the trial response to atrocities. Yet cynics need to ask: What can be imagined and built, even in the face of critiques and limitations? . . . [T]o find the trial process wanting against the aspiration of truly dealing with the complex past is not to find it worthless as a response to atrocity. The challenge is to combine honest modesty about the promise of trials with a willingness to be inspired—and to combine 5 See Gerry Simpson, ‘Human Rights with a Vengeance: One Hundred Years of Retributive Humanitarianism’(Annual Kirby Oration, Australian National University, 13 August 2015) accessed 31 May 2019; Michael Kirby, ‘Vote of Thanks’ (Annual Kirby Oration, Australian National University, 13 August 2015) in ANU College of Law, ‘Professor Gerry Simpson The Annual Kirby Lecture on International Law 2015’ (13 August 2015) accessed 31 May 2019. 6 ibid. 7 On victims, see early work by Stan Cohen, ‘State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past’ (1995) 20 Law and Social Inquiry 7; Carlos Santiago Nino, Radical Evil on Trial (Yale UP 1996) 147; Ed Morgan, ‘Retributory Theater’ (1988) 3 American University J of Intl L and Policy 1; Shoshana Felman, ‘Theaters of Justice: Arendt in Jerusalem, the Eichmann Trial, and the Redefinition of Legal Meaning in the Wake of the Holocaust’ (2000) 1 Theoretical Inquiries in Law 465, 498 (‘it is this revolutionary transformation of the victim that makes the victim’s story happen for the first time and happen as a legal act of authorship of history’). 8 Antonio Cassese, ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) 9 European J of Intl L 2; Theodor Meron, ‘The Humanization of Humanitarian Law’ (2000) 94 American J of Intl L 239, 243.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

848 Gerry Simpson inspiration with the hard, grubby work of gathering evidence and weaving legal sources into judgments.9

Another argumentative device is to offer up a number of highly implausible alternatives before positing criminal trial as the least bad. In 1944, Georg Schwarzenberger was already anticipating this sort of thing in his book Totalitarian Lawlessness: ‘The human mind revolts at the idea of covering these deeds with an all-forgetting mantle of oblivion . . . and the alternative of indiscriminate vengeance I hardly find more pleasant’.10 The ‘critic of the critics’ is constantly telling us we have no choice. So, we have Antonio Cassese, ‘[E]ither one supports the rule of law, or one supports state sovereignty. The two are not . . . compatible’.11 The critic is then lumped in with other enemies of international criminal law and the rule of law. Donald Trump, Rodrigo Duterte, John Bolton, and Robert Mugabe are against war crimes prosecutions; the radical critics are against war crimes prosecutions; ergo the radical critics are taking Donald Trump’s side in an argument with the ICC.12 Finally, there is the pragmatic move. In the face of an endless critique of international criminal law as imperial, or selective, or individualistic, or culturally tone-deaf, the critic of the critics can respond simply by saying that the project serves to reduce human suffering or improve the human condition in some fairly basic ways.13 The crimes are obviously evil. Who wouldn’t want to punish them? Thus, we have the ratcheting up of description or, what I have called elsewhere, the ‘syrupy invocations of massacre and distress’.14 As this sensitively curated collection of subtle essays makes clear, much could be said about all of this. The conversation, then, continues. International criminal justice’s failures are met with a list of reform proposals or common sense retorts. At present, international criminal law’s greatest ally is an intuition shared by the vast majority of people that bad individuals should be jailed in the name of justice and that it would be unconscionable to remain passive in the face of this. This move, of course, forgets that we are already highly inactive: ‘a catastrophic year for millions of people around the world’ as a Radio Four headline announced in September 2015 (quoting an Amnesty International Report). We choose, therefore, between different forms of fatal inaction. It is true that you have to start somewhere. But do we have to start here? In a way this must be the critic’s response to the incrementalist 9 Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Beacon Press 1998) 29, 51. 10 Georg Schwarzenberger, International Law and Totalitarian Lawlessness (J. Cape 1943) 57. 11 See Robert Cryer, ‘International Criminal Law and State Sovereignty: Another Round?’ (2005) 16 European J of Intl L 979, 981 (citing Antonio Cassese as cited in Bruce Broomhall, International Justice and the International Criminal Court at 56). 12 See Vasiliev, ‘Crises and Critiques’ in this volume. 13 For a discussion of this defence, see Wendy Brown, ‘ “The Most We Can Hope For. . .”: Human Rights and the Politics of Fatalism’ (2004) 103(2) The South Atlantic Q 451 (hereafter Brown, ‘Politics of Fatalism’). 14 Gerry Simpson, ‘The Sentimental Life of International Law’ (2015) 3(1) London Rev of Intl L 3, 18.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

International Criminal Law: The Next Hundred Years 849 objection. Starting here, in this particular universe of possibilities, might itself be thought of as a form of giving up. Maybe we can hope for more.15 The problem with international criminal law, though, may have less to do with its lacunae or its failures to do this or that but with its successes. In this regard, what it does do is far more significant than what it does not do. And what it does, as some of the chapters here argue, is to bring into being a narrow and compromized image and practice of justice, enact and reproduce a particular victim and perpetrator subjectivity, and encourage a sometimes distracting form of anti-politics.

15 Brown, ‘Politics of Fatalism’ (n 13) 451.

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

Index

A

Abass, Ademola 208–9 Abe, Shinzo 275, 276, 277 Abi-Saab, Georges 96 Abu Ghraib abuses, Iraq 556 accused, fundamental rights of 68–9, 87–8 Achebe, Chinua 174 Act of Killing, The (film) 255–6 Advocaten voor de Wereld case 203 Afghanistan: ICC investigation request 631, 631–2 n.23 AFRC atrocities 691 Africa and international criminal law 6, 154–93, 845 1990s 178–89 Biafran genocide 169, 172–5, 174 n.28 Cold War era 168–78 ‘culture of impunity’ 180–1 ICC and African crimes, victims and accused 190–3, 785 late colonial violence 169–71 Nuremberg trials (1945): colonialism, genocide and European crimes 162–8 ‘racial politics’ 159–60, 159–60 n.30 Rome Statute, apartheid and the Rwandan genocide 186–9, 186 n.215 Versailles Treaty, African presence, absence and ‘re-presentation’ 159–62 Versailles Treaty (1919) and German atrocities in Africa 155, 156–62 wildlife and environmental protection 207–8, 209 withdrawal from ICC announcements 630, 631, 635 see also apartheid, South Africa; individual states; Rwandan genocide African Charter on Democracy, Elections and Governance (2007) 208

African Charter on Human and People’s Rights (1981) 774 African Court of Justice and Human Rights 715, 807 African Criminal Court, prospective 195–6, 205–10, 817 relationship with ICC 210–11 African National Congress (ANC), South Africa 175, 614, 753 African Rights 253–4 African Union (AU): adoption of Malabo Protocol 195–6 Assembly of Member States 208, 613 Convention on Preventing and Combating Corruption 207 discontent with ICC 34, 129–30, 205, 205 n.46, 630–1 Agamben, Giorgio 373–4, 376, 561, 561 n.12 aggression: activation of jurisdiction (2017) 777 ‘atrocity crimes’ distinction 769 n.6 and atrocity-focused model of ICL 307 concept 540 criminalization of 541, 552–5 as international crime post-WW1 345–9 and inter-state conflict 296–7 n.13 Nuremberg IMT 311 n.71, 312, 349–53, 359, 778, 783 original status as ‘supreme crime’ 341–2 Aitken, Colin 462 Akayesu case 484 n.51, 537 Al Mahdi case 48 n.49 al Qaeda 556 Alain, Jean 366–7 Al-Assad 383 n.13 al-Bashir, Omar 130, 140, 145, 146, 246, 611, 612, 614, 630, 631 Aldana-Pindell, Raquel 476

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

852 index Algerian war of independence 169–70 Al-Hariri, Saad 619, 620 Allot, Philip 798–9 Al-Mahdi case 789 Alston, Philip 364 ‘alternative hypothesis approach’ to evidence 451, 465–8, 471–2 Altman, Andrew 338, 338 n.95 al-Werfalli, Mahmoud 146 Ambos, Kai 393 n.55, 396 American Convention on Human Rights (1969) 774 American Jewish Committee (AJC) 172 Amnesty International 100, 587 domestic law and international crimes 325 n.30 Amo, Anton Wilhelm 364, 374–5, 376 ‘analytical eclecticism’ 608 n.27 Anders, Gerhard 537 Anderson, Mary B. 737 n.92 apartheid, South Africa 175–8, 181–2 role of organizations 514–15 and the Rome Statute (1998) 186–7, 189 UN resolution and prosecution of crimes 175, 176, 182–3 Apartheid Convention (1973) 169, 181–2, 184, 189 Arbour, Louise 99, 102, 615 Arendt, Hannah 372, 574, 576, 581, 846 Eichmann in Jerusalem 11, 163, 478, 521, 558, 559, 570, 571–2, 577, 577 n.74, 653, 654–5, 656–9, 661, 662, 664, 665, 668, 673, 674, 675, 675 n.111, 676, 722 n.10 Argentina: crimes against humanity 326 National Appeals Court 118 statutes of limitations 317 Aristotle 27, 374, 574, 575 Armadillo (documentary) 589 Armenian genocide 569 Asch, Solomon 385, 511 Ask the Court (ICC videos) 595, 596 atrocity crimes 769, 769 n.6 and cognitive bias 266–7 definitions 775 distinction from aggression 796 n.6 role of organizations 10–11, 494–515

atrocity law 342 auctoritatis interpositio 402, 402 n.5 audio-visual productions 12, 583–98 attracting audiences and representing reality 585–8 combining presentation and representation 588–90 ‘expository’ documentaries 589, 590, 598 ‘material observational’ documentaries 589–90 ‘material reflexive’ documentaries 589 n.24 material representation of victims in documentary film 590–9 representation in documentary film 585–90 Augustine 547 Auschwitz 258–9, 267, 503 n.43 Australia: prioritizing civil and political rights over economic, social and cultural rights 364 authority, forms of (Weber) 91–2

B

Baali, Mr. 704, 704 n.18 Bagaragaza case 229 Bamako Convention (1991) 207–8 Ban Ki Moon 250–1, 711, 711 n.48 Barnett, Michael 729, 731, 731 n.53, 733, 736 n.87, 739 Bartolus of Saxoferrato 565 Bassiouni, Cherif 97, 100, 122, 177, 184, 186, 192, 274, 294, 321, 779, 791–2, 815, 818, 834 Bataan death march (1942) 526 Bauman, Zygmunt 388 Bayart, Jean-François 737 Bayes’ theorem 459 Bayesian networks 459, 460, 461 n.52, 462 bearing witness 726–7, 730–1 Beccaria, Cesare 455, 456, 462 Becker, Howard S. 24 Bei, Yining 604–5 Beinisch, Dorit 233 Belgian Congo genocide 167–8 Bemba Gombo case 77, 77 n.40, 79 n.47, 244, 335 n.82, 462, 632, 636 Carte Blanche (documentary) 593–4 Ben-Gurion, David 652, 658, 667–8, 675

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

index 853 Benjamin, Walter 663 Bennouda, Mohamed 109 Bensouda, Fatou 243, 244, 247, 733, 735 n.80 Berger, Pieter 24 Bergsmo, Morten 97 Berlin Wall, fall of (1989) 780 Berman, Mitch 329 Bernays, Murray 498–9, 501 n.29 ‘beyond reasonable doubt’ standard 451, 452, 457, 458 critique 463–8 Biafran genocide 169, 172–5, 174 n.28 framed as a ‘genocidal’ war 173 and Germany 174–5 Biddle, Francis 163, 164, 168 Biko, Steve 184–5 Bikundo, Edwin 675 n.110 Bitti, Gilbert 74 Bloch, Marc 520, 521 blood feuds 233 Bloxham, Donald 270 Blue Books 181 n.176 German Atrocities and Breaches of the Rules of War in Africa (1916) 155, 157–9, 157 n.14, 157 n.18, 160, 161, 162 n.45, 189 Report on the Natives of South-west Africa and Their Treatment by Germany (1918) 155, 157–9, 157 n.14, 157 n.18, 161, 162 n.45, 189 Bohlander, Michael 758 ‘Boipatong massacre’ (1992), South Africa 182 Boister, Neil 771, 789–90, 799–800, 799 n.50, 813 Boko Haram 209 Bolton, John 635 Borer, Tristan Anne 612 Bosco, David 734 Bosnia-Herzegovina 268–9, 683, 684 atrocities, role of organizations 509 duress defence 304, 309 Bosnian Serb leadership 616 Bourdieu, Pierre 92 Braun, Netalie The Hangman (documentary, 2010) 654, 664–70, 671–4 Brecht, Bertolt 589 Britain see United Kingdom (UK) Broady, Reed 100

Browning, Christopher 389, 512 Buber, Martin 657 Buckland, William Warwick 371 Buisman, Caroline 54 Bulgaria 300–1 Burke-White, William 201–2, 204 Burundi 651 withdrawal from ICC 129, 630, 842 Bush, George W. 555 Bush, Jonathan A. 498 n.12 Butare Four case 226 bystander effect 510

C

Cain 579 Caldwell, Kayla 604–5 Cambodia 587 impact of the ECCC 284, 285–8 see also Extraordinary Chambers in the Court of Cambodia (ECCC) Capra, Frank 590 Carmona case 765–6 Caron, David 606, 606 n.20 Carte Blanche (documentary) 593–4 Cask of Amontillado, The (Poe) 238–9, 254 Casper, Jonathan D. 28 Cassese, Antonio 69, 96, 100, 122, 123, 294, 310 n.69, 314, 539, 769, 772, 773–4, 848 CDF militia, Sierra Leone 286, 764 Cebulak, Pola 605 Čelebići case 75, 75 n.36 Césaire, Aimé 163, 164–5 Chamberlain, Austen 348 n.21 Chayes, Abe 843 child soldier recruitment 484, 718, 763 China: as permanent member of UN Security Council 131, 140, 143, 145 Chui case 392 Cicero 544–5, 560–5, 564–5 n.28, 569, 572, 573, 575, 577, 578, 580, 581 Clark, Roger 776, 783 Clarke, Kamari M. 181 Clausewitz, Carl von 545 Clinton administration, US 615 Coalition for the International Criminal Court 5

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

854 index Code of Offences against the Peace and Security of Mankind (1948–54) 777 cognitive bias 264–5 and mass atrocities 266–7 Cohen, L. J. 461, 472 Cold War 783 Africa and ICL 168–78 supposed ‘freeze’ of international criminal law 780–1 Colombia 252 crimes against humanity 326 colonialism 163–4, 169–71 Nazism and South-West Africa 163 and the Nuremberg trials 162–8 colonization 784 combatants, lawful/unlawful distinction 562–3, 566 Combs, Nancy A. 467, 468, 469–71, 493, 762 Commission for Reception, Truth and Reconciliation (CAVR), Timor Leste 753–4, 755 Commission on the Responsibilities of the Authors of War (1919) 156–7, 158–9, 158 n.24 ‘common humanity’ concept 195 community of practice 402, 402 n.8 confirmation bias 264 Congress of Vienna (1814–15) 368 control theory, criminological approach to the ICC’s 9, 379–99 auctores intellectualis and atrocity context 391 commission via organizational control 394–6 concept of individual criminal responsibility 391–8 and conformity and obedience in militarized units 385, 388 continuum of destructiveness 387–8 control theory explained 394–5 creating the context for atrocity 380–1 derivative and accessory responsibility 392 different type of criminality 381–9 direct and principal liability 392 legality of orders 386–7 low-ranking perpetrators 390–1 models of liability 391–2, 395

organizational and social context 384–7, 388, 396 perpetrators of international crimes 389–91 political and ideological context 382–4, 388 principals and accessories differences 392–3 shortcomings and remedies 396–6 (social-) psychological context 387–8 standard of proof for control theory 398 system criminality manifestations 381–2 tests for new members 384–5, 385 n.18 top-down focus 393, 393 n.55 training and desensitization in militarized units 385–6 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988, UN) 772, 780, 781, 786–7 Convention against Torture (1987, UN) 312, 804–6, 804 n.73 Convention on International Trade in Endangered Species (CITES, 1975) 793 Convention on Preventing and Combating Corruption (2003), AU 207 co-perpetration/indirect perpetration doctrines 115, 120, 124 core crimes 224–5, 294–5, 294 n.3, 318, 322, 342, 768–9, 794, 799, 815–16 aesthetical bias 788–90 ambiguities in defining as international crimes 771–6 civilization bias 784–6 continuities from Nuremberg to Rome 776–8 direct criminalization/indirect criminalization theses 774 discontinuities ‘from Nuremberg to Rome’ 778–83 distinguishing from treaty crimes 771–3 in international criminal law 15, 768–90, 844 vs. murder, rape and torture 311–12 normative accounts of 330–1 political-economic bias 786–8 progress narrative 783, 785, 786, 788, 790 as representing a distinct legal reality 822–4, 825–7

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

index 855 role of organizations 509 and transnational crimes 794, 797–802 corruption, African definition of 207 Cotte, Bruno 453 Court, The (documentary) 586, 590–1 Court of Justice (EU) 203, 204 n.42, 210, 605 n.18 Cover, Robert 660, 662 Cowles, Willard 330 Crawford, James 336 crimes against humanity 11–12, 84, 223, 253, 297, 310 n.68, 331, 802, 806, 807, 834 apartheid as 178, 182, 187 Argentina 326 Colombia 326 crimes of tyrants connection 574–5 definitional issues 313 enemy of humanity origins 568 enslavement as 9, 361–76 expansion of definition 302 ICTY 222, 223, 230, 368 IMTs jurisdiction and prosecution 310, 312, 777 murder and rape 301 Nuremberg and Tokyo Tribunals 296, 301, 310, 350–1 Rome Statute 124, 313, 368, 383 selectivity 253 see also core crimes crimes against peace 522, 528 IMTs jurisdiction 310, 310 n.69, 552 Nuremberg IMT 499, 540, 777 Tokyo IMTFE 531–2 crimes of obedience 382, 388 criminal/enemy distinction 11, 540–57 criminal but not enemies 546–52 criminalizing aggression 552–5 deconstructing the criminal/enemy dyad 555–7 enemies but not criminals 541–6 friend-enemy distinction 545–6 international stage 544 ‘just war’ concept 547–8, 550–1 law and justice 543 law of nations 544–6, 548 punishment directed to restoration and restraint 549 regime change 556

state of nature 542–4, 549 third parties and war 550–1 war-making and policing distinction 544–5, 556–7 criminal organizations liability 10–11, 494–515 alternate reality for criminal organizations 513–15 criminal organizations in contemporary international criminal law 503–6 diffusion of responsibility 510–11 indirect perpetration though an organization 505–6 joint criminal enterprise distinguished from membership liability 505 Nuremberg IMT 494, 494 n.1, 495–6, 497–503, 507, 508, 510, 514 organizations as machinery 506–9 organizations as motivator 509–13 origin of 497–500 practice of 500–3 socialization processes 511–12 subordination/modification of individuals’ preferences 512–13 Criminal Procedure Law revision (2012) 457–8, 457 n.37 crises and critiques of international criminal justice 12, 626–51, 846 calls for self-imposed censorship 645 character assassination of critics 645 crisis/critique relationship 633 ‘crisis’ invocation 630–2 critical turn 633–5 feminist legal critiques 640–1 field-specific anniversaries 646 ICL’s intimacy with hegemonic power 627–9 invocation of victims 647–8 and legalism 627, 627 n.4, 644–5 legitimacy as crisis management 650–1 legitimacy skirmishes and mediatory spaces 637–50 liberal critiques 633, 634, 638 mainstream strikes back 644–9 overlapping of radical and liberal critiques 641–2 plea for critical/mainstream dialogue 649–50 radical critiques 633–4, 638–41, 650, 650 selectivity 628, 639

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

856 index crises and critiques (cont.) ‘stocktaking’ 646–7 TWAICL critiques 638–40 unequal enforcement 628 universality discourse 648–9 what crisis does 635–7 what critics want 637–44 Croatia 267 Croatian Democratic Union (HDZ) 268 Crossing Lines (Netflix series) 588 Cruvellier, Thierry 253 Cryer, Robert 72, 773, 774 culture and international criminal law 14–15, 748–67 ambiguities in defining core crimes as international crimes 773–6 cross-cultural communication challenges and culture-specific evidence 760–6 culturally-informed justice processes 752–4 culture clashes and adaptation obstacles 758–60 defining core crimes 771–6 definition of ‘culture’ 751–2 distinguishing core crimes and treaty crimes 771–3 ensuring accurate linguistic translation 761–2 hybridization and domestic legal cultures 757–8 ICL courts’ treatment of culture-specific arguments 762–6 institutional level and cultural difference 750–2 norm construction and trial participation 756–60 operational, legitimacy and representational challenges 766–7 post-conflict justice process 752–6 risk of marginalizing alternative justice conceptions and processes 754–6 rule against hearsay 761–2 self-representation right 759 Currie, Robert 813 Curtis, Devon 738

D

Dachau concentration camp personnel 526 D’Amato, Anthony 779 Darfur see Sudan and Darfur Darley, John 384 n.15, 510, 511 Dayton Agreement (1995) 616 de Costil, Germain Le Foyer 95, 96 de Gaulles, Charles 544 de Greiff, Pablo 707, 708, 715 de Lapradelle, Professor 109 De Smet, Simon 455, 459, 467, 468–9 de Waal, Alex 732, 732 n.60, 745 Dechênes, Jules 102 Declaration of Paris (1856) 565 decolonization: and the concept of ‘aggressive’ wars 356 process 168–9 defence perspectives on fairness and efficiency, ICC 39–66 confirmation of charges 56–9, 64–5, 65 n.172 defence investigative resources 49–53, 64 future of managerial judging and procedural fairness in international criminal procedure 64–6 interlocutory appeals 60–1 managerial judging 42–4, 45–9 prosecutorial disclosure 53–6, 65–6 rise of managerial judging at international criminal courts 42–4 survey findings 45–63 survey method 44–5 victim participation 62–3, 66 defence position in International Criminal Tribunals 4–5, 67–88 ‘balancing away’ of rights 69–70 criminal responsibility and war crimes 84 customary law as vehicle for moral condemnation 70–2 evidentiary standards 79–80 expeditiousness 80–1 foundational balancing away 70–6 impunity, fight against 72–4 institutional balancing away 81–3 media attention of ICC cases 85

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

index 857 and moral condemnation 74–6 perspectives on fairness and efficiency at the ICC 4, 39–66 political context of international crimes 84–5 procedural balancing away 76–81 symbolic inclusion of the defence 67–70 systematic balancing away 83–6 victim participation 78–9 defendants in the battle for political legitimacy 13, 678–96, 844 courts as communicative institutions 13, 678–80 defendant tamed by the process 693–5 defendants’ local audiences 681–4 defiant defendants 13, 681–4, 686 international justice elites’ influence 689–90 legitimacy as multi-faceted, contingent and fluid 687–9 political context of courts 685–7 prosecutors 684–5 resonant prosecution discourses 689–93 sociological legitimacy 687–9 deGuzman, Margaret 334–7, 335 n.29, 774 del Ponte, Carla 103, 282, 615, 749 Demanjuk case 226 Des Forges, Alison 537 Descamps, Édouard 109–10, 551 deterrence theory 132, 133 Diarra, Fatoumata Dembélé 453 Dieng, Adama 247 Diesen, Christian 465, 465 n.73, 466, 472 Digneffe, Françoise 36 Đindić, Zoran 616, 618 Dinoor, Tehiel (K-Zetnik) 660–1 direct criminalization thesis (DCT) 324, 326–7 Dixon, Peter 744 Doha Accords (2008) 619, 622 Douglas, Lawrence 521 Douglass, Frederick 255 Doyle, Leonard 361 drone warfare 557 drug trafficking 296

aesthetic bias 789 African definition of 206 calls for recognition as customary international law 772 colonization bias 785–6 demise of control agenda, post-Cold War 781–3 disappearance from ICC Draft Statute 782 disqualified as ‘core crime’ 770, 776, 778 drug control treaties, Cold War 780–1 as impetus for establishing ICC 296, 296 n.11, 769–70, 777–8, 781, 795 political-economic bias 786–8 Duch (Kang Kek lew) 284 Duff, Anthony 6, 194, 195, 197–8, 236, 330, 577, 578, 579, 580, 581 Dugard, John 181, 181 n.78, 184, 787 duress defence, in national and international law 230–1, 303, 303 n.42, 304, 309 Durkheim, Émile 6, 196–7, 198–9, 200, 204 Dyzenhaus, David 545

E

East Timor 754 Eboe-Osuji, Chile 488 n.64 Edict of Nantes (1598) 257–8 Eichmann, Adolf 134, 577, 578, 581, 846 Eichmann trial (1961) 226, 227, 326–7, 353, 478, 503 n.43, 535, 550, 569–70, 572, 576, 579 and control theory 396–7 Eichmann trial, three genres of critique 13, 652–88, 846 Hannah Arendt: the rule of law 654–5, 656–9 Netalie Braun: sacrifice 654, 664–70, 671–4 outer circles of harm 670–6 record of history 663 rise of victim rights 663 Shoshana Felman: catharsis 655, 660–4 transitional justice 663 Einsatzgruppen leaders trials, Nuremberg IMT 353, 583 Eitzen, Dirk 587–8 Ekelöf, Per Olof 459, 472

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

858 index elite, international criminal law (ICL) 5, 89–105 and academia 95–7, 99–100, 104 advent of 94–7, 104 career routes 95 charismatic authority 91–2, 99, 103 creation of a group and its symbolic capital 97–101, 104 and diplomacy 95–7, 99, 104 elite definition 90–1 field concept 92 forms of capital and specific fields 92, 101 ‘founding fathers’ 97 institutional resources 91 and legal expertise 95–7, 99, 104 and legal scholarship 93 and NGO advocacy 95–7, 99–100, 104 role of networks 96 symbolic influence 91, 92, 93, 94, 100 theory, method and data 90–4 value on a broader market 101–4, 104–5 Elkins, Caroline 170–1 ‘Emperor’s New Clothes, The’ (Andersen) 259–60 empirical analysis of international criminal law 4, 21–38 epistemological approach 22–6 expectations/reality gap 27–8 methodology 25–6 politicized and ‘outgroup’ justice 30–4, 36 positioning of those tried 26–37 resistance to ‘respondent’ approaches 24–5 Respondents approach 23, 37 role assigned to the defendant 34–7 scapegoating 34 violence (symbolic) and unfairness of the procedure 28–30, 36 enemy of all humanity (hostis generis humani) 11–12, 558–82 alternative genealogy 572–6 analyzing 576–82 ancient atrocities 574, 574 n.64 crimes against humanity/enemy of humanity origins 568 crimes of tyrants/crimes against humanity connection 574–5 Eichmann trial 569–70

lawful/unlawful combatants distinction 562–3, 566 moral community 580–1 outlaws 577–8 pirates and piracy 547, 559, 560–5 privateers 565–6 slave trading 568–9 terror tactics and unbridled aggression 566–7 torture and other core crimes 570–2 tyrants and tyranny 573–6, 579, 580–1 universal jurisdiction 576 vigilantism 580 English Admiralty Court 111 enslavement as a crime against humanity 361–76 civil and political rights favoured over economic, social and cultural rights 363, 364, 369–71, 373–4 humanity as a standard of conduct 363 humans/persons split 362, 365–71, 375–6 natural life/political life split 362–3, 373–6 Roman law 362, 365, 371–3, 375 slavery ‘in law’ and slavery ‘in fact’ 366–7 status or condition definition 361–2, 363, 365–7 status favoured over condition in current law 362, 363 written/unwritten law split 362, 366–7, 371–2 see also slavery and slave trading epistemic community 402, 402 n.7 equality of arms 49, 64, 65, 66 Erdemović case 230–1, 303, 303 n.42, 304, 309 Erdogan, Recep Tayyip 383 n.13 Esposito, Roberto 365–6 Ethiopia, appeal to ICJ over apartheid 175–6 Eurojust 203 European Arrest Warrant, Framework Decision on the Article 2(2) 203 European Convention on Human Rights (1950) 774 European Court of Human Rights (ECHR) 210, 300–1, 475 n.8 European Public Prosecutor’s Office (EPPO) 203–4

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

index 859 European Union: issues around establishment of regional criminal court 202–4, 210 ‘mutual recognition’ principle 202–3 Serbia and the ICTY 614–18 Europol 203 evidence, epistemological controversies and evaluation of 10, 450–72 ‘alternative hypothesis approach’ to evidence 451, 465–8, 471–2 assigning numerical values to evidence 463–5 ‘beyond reasonable doubt’ standard 451, 452, 457, 458 ‘beyond reasonable doubt’ standard critique 463–8 fact-finding at the international level 468–71 free evaluation of evidence 451 ‘intime conviction’ standard 453, 454–6 intuitive holistic approach v. deconstruction 452–4 mathematical methods in evaluating evidence 458–62 probative value of concurrent evidence 461–2 probative value of counterevidence 461 replicability concept 454 standard of proof for conviction: subjective or objective 454–8 successive (chain) evidence 461, 462 testimonial deficiencies causes 468 turn to empirical legal scholarship 469–71 Evidentiary Value Method of evaluating evidence 459–60 Extraordinary African Chambers, Senegal 100 Extraordinary Chambers in the Court of Cambodia (ECCC) 45, 78, 79, 103, 284, 285–8, 535, 603, 618 impunity term in text and discourse 244, 250–1 and the UN 231, 231 n.68 victim participation 478–9 n.26 victims’ reparation rights 714 extraterritorial jurisdiction 228

F

Fabre, Cécile 332, 337 Falk, Richard 779–80, 783 Fallon, Robert 129, 130 ‘false contingency’ 783 Fanon, Frantz 163–4 Farrell, Norman 250 Fassin, Didier 14, 721, 726, 734, 736 Fatelessness (Kertész) 258–9 Feinberg, Joel 133 Felman, Shoshana 11, 655, 668, 670, 671, 672, 673, 676, 846 feminist critiques of ICL 640–1 Ferdinandusse, Ward N. 469, 471 Ferencz, Benjamin 353, 583, 591, 779 field concept 92 Filártiga case 570–1, 571 n.52, 576 Finkielkraut, Alain 738 First World War see World War I Fitzmaurice, Gerald G. 110 Flaherty, Robert 585 Fletcher, George 120 forensic evidence 80 Foucault, Michel 778, 787 France: and the Algerian war of independence 169–70 code of criminal procedure, Article 353 456, 456 n.27, 458 French Jews 525 Lebanon and the STL 619, 620 ratification of Rome Statute 144 Setif massacre (1945) 166–7 Franconian culture of international criminal law 401, 407–17 Frankfurt Auschwitz trial (1961–63) 535 Freetown attack (1999), Sierra Leone 691 French Revolution 578 Freud, Sigmund 510 front de liberation nationale (FLN) 170 Fulford, Adrian 398, 759 Fyfe, Shannon 467

G

Gabčíkovo-Nagymaros case 113 gacaca tribunals, Rwanda 30–1, 31 n.32, 283, 753 Gachihi, Gacheke 740 n.104

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

860 index Gacumbitsi case 118 Gaddafi and Al-Sennussi case 60 n.146 Galić case 463 Garfinkel, Harold 23, 28, 34–5, 38 Gbagbo and Blé Goudé case 80–1, 81 n.52, 632 Geelhoed, William 204 Geertz, Clifford 751 Geneva Convention (1864) 345, 720 Geneva Convention (1949) 170, 308, 436–7, 581, 772, 777 Additional Protocol I 207 Convention III 336 revisions (1946–49) 534 Geneva Protocol (1924) 551 genocide 311, 341–2 ‘fundamental significance’ 781 links to the international community 223 see also core crimes; Rwandan genocide Genocide Convention (1948) 166, 177, 297, 311, 311–12 n.75, 328, 354, 436–7, 537, 543, 772, 777, 797–8, 809, 823 Article 5 773 Genovese, Kitty 510 Gentili, Alberico 579 Germany: and the Biafran genocide 174–5 Code of Crimes against International Law (2002) 229 code of criminal procedure 457, 458 criminal law 117–18, 119 denazification 271–2 Federal Supreme Court (Bundesgerichtshof) 118 General Staff and High Command of the armed forces 500, 502 opening of Stasi files 256–7 perception of Nuremberg Trials 270–4 prosecution of former East German border guards 312 n.77 rehabilitation of ex-Nazis 273 see also Nazi Germany Ghana, independence (1957) 168 Ginzburg, Carlo 520 Girard, René 35, 36 Glueck, Sheldon 349 Goldstone, Richard 96, 99, 102, 183, 184 Goldstone Commission (1992), South Africa 183

Gonzalez Medina v. Dominican Republic 476 n.14 Goodin, Brett 565 n.29 Göring trial 688 Gotovina case, ICTY 466 ‘Greek Maize Case’ 204 n.42 Gregory XVI, Pope 457 Griffiths, Courtenay 682, 683, 684, 695 Gros, André 552 Gross, Ernest 175 Grotius, Hugo 547–8, 550, 551, 579 Grovogui, Siba N. 166, 167 Guerre, Martin 522 Gulf of Tonkin resolution 355 Gulf War compensation scheme 701, 701 n.6

H

Habré trial 100 Hagan, John 93, 96, 99 Hague Conventions (1899/1907) 551 Martens Clause 71–2, 71 n.17 Hamilton, V. Lee 382, 388, 512 Hart, H. L. A. 311, 311 n.72 Harun, Ahmad 146 Harvard Law School 349 Hathaway, Oona 548 Hausner, Gideon 569–70, 579, 658, 658 n.36, 675 Hazan, Pierre 30 Heller, Kevin J. 100, 298–9, 308–9, 308 n.63, 324–8, 774–5 Heller-Roazen, Daniel 365, 561, 561–2, 564 n.24 Henry IV 257–8 Heopei, Li 95 herrschende Lehre (dominant teachings) 121 Hezbollah 603 and the STL 618–22 Higgins, Noelle 763 Hilberg, Raul 11, 387, 511–12, 520 Himmler, Heinrich 134 Hinga Norman case 763 Hirihito (Showa), Emperor 274–5 Hiroshima, atomic bomb attack 276 historical reasoning and judicial historiography 11, 519–39 aggressive war and conspiracy 532 crimes against peace 528, 531–2

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

index 861 ICTR historiographical controversy 537–8 interdisciplinary pitfalls of transitional trials 538–9 Japan and the IMTFE 531–3 judicial historiography: the Nuremberg paradigm 526–33 jurisprudence, jurisdiction and historiography 11, 519–23 legal infrastructure after the Second World War 523–6 Milošević trial 536 numbers of Germans and Austrians punished for war crimes 524 numbers of Japanese/Koreans/Taiwanese convicted of war crimes 524–5 Nuremberg, allies differing perspectives 528–9 special-path paradigm of Germany 528, 530 twisted road to the Hague 533–8 history of ICL, rethinking from aggression to atrocity 8–9, 341–60 aggression, original status as ‘supreme crime’ 341–2 aggression as international crime post WWI 345–9 atrocity law 342 Cold War: definition, critique and decline 353–8 decolonization and the concept of ‘aggressive’ wars 356 individualized adjudication for aggressive perpetrators 348 Nuremberg IMT as an aggression trial 349–53, 359 Nuremberg IMT and ‘crimes against humanity’ 350–1 Tokyo IMT and the crime of aggression 351 war as a crime against humanity 346–9 war prevention as international law’s hope 344–9 war stigmatization prioritized over war humanization 343 Hitler, Adolf 134, 163, 350, 352, 512, 526, 544, 574 Hobbes, Thomas 541–5, 546, 548, 549, 552 Hochschild, Adrian 166 Hoess, Rudolf 503 n.43

Hohfeld, Wesley Newcomb 432 n.38 Holbrooke, Richard 99, 694 Hollis, Benda J. 691 Holocaust 11, 134, 163, 266–7, 270, 272, 358, 389, 511–12, 530 marginalized at the Nuremberg Trial 350, 351, 353 memory 342, 359 and technical responsibility 386–7 victim narratives 661–3, 669 Holocaust (TV mini-series) 272, 272 n.42 Honduras, investigations and Officer of the Prosecution of the ICC (OTP) 339 Hopgood, Stephen 737 Hull, Isabel 345 n.10 Human Rights Center, Berkeley 688 Human Rights Watch (HRW) 5, 100 Film Festival 587 humanitarianism and international criminal justice 14, 320, 719–47, 749, 845 accountability of constituencies 735–41 accountability of recipient populations 739–41 ‘bearing witness’ 726–7 ‘coherence agenda’ 731, 733 difference in objectives 725–6 donor objectives 737–8 ‘extraversion’ 737 ICC and 741–5 ICJ against humanitarianism 722–7 ICJ perceived as tool for regime change 723–4, 725 legal humanitarianism 744–5 and Levinasian ethics 746, 747 neutrality and independence principles 724, 726–7 ‘new humanitarianism’ and political agendas 731–2, 741–2 peacebuilding 733 politics and power 728–34 politics of transformation 731 promoting moral claims and political stances 729 relief agencies and the ICC 724–5 Sudan 723–4, 725, 725 n.22 universality of humanitarianism and law 729–30 white SUVs 723, 725

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

862 index Hun Sen 285, 286–7, 289 Huneuus, Alexandra 204–5 n.45 Hutus 26 power extremists 279, 281

I

Ifill, Sherilynn 515 IG Farben company 507 immunity and impunity 10, 423–49 collective/individual responsibility 428–31 combatant immunity and official immunity 438–49 factual/normative conditions and sanctions 435 functional immunity 434–5, 437, 439, 440–1, 444–5, 447–9 functional immunity/immunity ratione materiae of state agents 423–7 lawful combatants 423, 425–7 procedural immunity/substantive responsibility distinction 444–5, 449 responsibility 427–37 Reverse Kelsen 431, 432–3, 445 impunity(ies) 7, 72–4, 238–60, 842 centrality of courtrooms and jailhouse in fight against 242, 245 culture of, Africa 180–1 in enabling instruments 243–4 etymology 239–40 and immunity 423–49 punishment, peace and transition 252–3 reimagining punishment 242–3, 255–9 sampling of press releases and public statements 245–51 and selectivity 242, 253–5 in text and discourse 241–2, 243–53 In the Courtroom (ICC videos) 595 incapacitation theories 132, 133 Inconvenient Truth, An (documentary) 586 Independent Commission on Intervention and State Sovereignty (ICISS) 147–8 Independent International Commission on Kosovo (IICK) 146 Indonesia, human rights abuses 255–6, 255–6 n.61 institutional legitimacy 131, 135–6

institutional power, forms of 91 Inter-American Commission on Human Rights 476 n.16 Inter-American Court of Human Rights 317, 326 and victims’ right to truth 475, 476 International Commission of Inquiry on Darfur 702–4, 703 n.9, 709–10 International Committee of the Red Cross (ICRC) 345, 720 , 725 Commentary on the Additional Protocols 336 Mau Mau detention camps, Kenya 168 and political neutrality 727 n.29, 730, 731 International Court of Justice (ICJ), UN 96, 102 Article 38(1) 108–9 immunity and responsibility 430–1 Statute 38(1)(d) 110–11 International Covenant of Civil and Political Rights (ICCPR) 364 Articles: 8 372, 373 15(1) 327 16 372 International Covenant on Economic, Social and Cultural Rights (ICESCR) 364 Articles: 6 373 7 373 8 373 11(1) 370 international crimes 8, 293–316 atrocity focus 296–7, 307–8, 307 n.59 ‘core crimes’ 294–5, 294 n.3 core crimes vs. murder, rape and torture 311–12 direct prohibition 305–14 human-being-oriented approach 297–8, 298 n.18 institutional applications and differences in interpretive approaches 314–15 nature of 296–8 obligation to criminalize 298–300 specificity and uniformity 300–5 standards of responsibility 302–5, 302 n.38

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

index 863 international crimes, conceptual and normative issues 8, 317–40 direct criminalization thesis (DCT) 324, 326–7 domestic/international crime distinctions 320 gravity of harms 331, 334–7, 338, 340 judges determining international crimes 328 level of organization criteria 331, 332, 338–9 ‘national criminalization thesis’ (NCT) 324, 326–7 normative accounts of ‘core crimes’ 330–1 pillage and destruction of cultural property 335–6 scale of the acts criteria 331 ‘security principle’ 330 states not enforcing universal laws 334–40, 337–8 n.92, 339 n. 101, 378 n.93 and treaty law 322 war crimes and international law 334–5 what justifies international criminalization 329–40 what they are 319–29 International Criminal Court (ICC) 21, 103, 195, 200, 296, 315, 326, 428, 514, 604, 628, 646, 650–1, 678, 832 Afghanistan investigation request 631, 631–2 n.23 African/AU discontent with 34, 129–30, 205, 205 n.46, 596–7, 630–1, 635, 749 African crimes, victims and accused 190–3, 785 Assembly of States Parties (ASP) 41, 43, 46, 53, 95, 631, 635, 686, 777 atrocity-focused model of 307 Bemba acquittal, reactions to 636 Bolton’s September 2018 speech 635 budget and funding 738, 738 n.96 Coalition for the ICC 100 complementary regime 240–1, 304–5, 755, 823 control theory and criminological approaches to 9, 379–99 and the crime of aggression 554–5 ‘crises’ 630–2

defence perspective on fairness and efficiency 4, 39–66 defence teams 681 defendants in the battle for political legitimacy 13, 678–96 definition of torture 806 as direct descendant of Nuremberg trials 776–7 and direct prohibition 308–9 documentaries on 583, 585, 586–8, 590–4, 598 drug trafficking as impetus for establishment 296, 296 n.11, 769–70, 777–8, 781, 795 elite agents in 98 establishment 179, 705, 768 humanitarianism and 741–5 ICC at a glance (videos) 595 ICL Draft Statute (1994) 186, 781–2 impunity term in text and discourse 243–4, 245–7 and internationalism 224–5 invocation of victims as defence against critiques 647–8 judges’ domestic legal training and culture 759–60, 759 n.78 judicial activism 47–8 jurisdiction limited to individuals 494–5, 504 legal aid scheme 50–1 legitimacy 6, 129–53 Libya involvement 734 non-universality 648–9 Office of the Prosecution 586–7, 711, 789 Office of Public Council for the Defence (OPCD) 766 Philippines withdrawal from 129, 631–2, 631 n.20, 842 politics and power 728–34 Pre-Trial/Trial Chambers division of responsibilities around confirmation of charges 58–9 privileging of physical violence over structural inequalities 788–9 Registry 41, 46, 49–52, 53, 62 Regulation 55 483–5, 483 n.46

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

864 index International Criminal Court (ICC) (cont.) relationship with prospective African Criminal Court 210–11 right to truth 477–90 role in global economic inequality 790 Rule 18(d) Victims and Witnesses Unit 766–7 Rules of Procedure and Evidence 73–4, 74 n.29, 724 n.19 South African backlash 611–14, 623 Sudan intervention, UN Security Council referral 755 and transnational crimes 824, 824 n.28 Trial Chamber III and acts of pillage 335–6 Uganda interventions and referral 254, 733–4, 737 and US 426–7 videos produced by 254, 585, 594–7, 598 see also Rome Statute; Trust Fund for Victims (TFV) international criminal courts and domestic (local) denial 7–8, 261–90 authoritarianism 269, 282, 285–6, 288 elite continuity 268–9, 273, 275, 277, 278, 284, 285, 288 group cohesion and polarization 267–8, 269, 288 Nuremberg and Tokyo IMTs 270–8 objective/subjective limitation on the processing of information about atrocities 262–6 predictive hypothesis 267–9 Rwanda 278–83 Sierra Leone and Cambodia 283–8 towards generalization 266–7 victimhood narrative 271, 273, 276 international criminal justice (ICJ): and apartheid in South Africa 169, 175–6 combatant immunity and official immunity 438–9 crises and critiques of 12, 626–51, 846 Draft Articles on State Responsibility 113 humanitarianism and 14, 719–47, 845 perceived as tool for regime change 723–4, 725 Statute Article 38(1) 114, 119 international criminal law (ICL) 1–3, 223, 224–5

agent-dependent enterprises 233–4 application and hierarchy of sources 7, 113–14, 215–37 criminal organizations in 503–6 critical affinity 844–5 culture and 14–15, 748–67 elite 5, 89–105 emergence into a well-established field 293 empirical analysis of 21–38 evaluating the traditional rationales of 218–20 feminist critiques of 640–1 hermeneutics, and the Roman culture of 414–21 history of 8–9, 341–60 hybrid tribunals 225, 231–2 individual states and the international community 234–6, 236 n.80 national courts and universal jurisdiction 227–31 and national criminal law 219–20 next hundred years 16–17, 841–9 perimeter defence 646–9 pluralist account of 8, 293–316 producing an accurate historical record of atrocities 218, 220 and the protection of universal values 224 reformist hopes 844 robust internationalism 216, 217, 219, 221–32, 232–6 ‘sincerity’ in political theory 221–2 state/international criminal law differences 216–17 universal jurisdiction 226–31 uses of 314–15 see also unity of ICL: a socio-legal view international criminal law, two cultures of 9–10, 400–22 consequentialist and retributive premises 405–6 creative interpretation 415–16 culture defined 402–3 custom-identification in international law 411–12 dualistic nature of international criminal law 403–4 expansion as progress 406–7 Franconian culture of 401, 407–17

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

index 865 general principles of law 412–13 innovative methodologies 410–11 legality principle 4, 408–10, 408 n.51, 409 n.53, 410 n.57, 414–21, 414–15 n.88 Roman culture of 401, 414–21 sources-based modes of reasoning 409–11, 417–18 as under-developed 406 international criminal tribunal backlash 12, 601–25 constructivism and backlash 610, 610 n.35 defining backlash 604–8 institutional approaches to South African backlash 612 institutionalist theory and backlash 609 Lebanon and the Special Tribunal 618–22, 623, 624 liberal IR theory and backlash 610 objectively identifiable characteristics of ‘backlash’ 607 pluralist approaches to South African backlash 612–14 rationalist approaches to South African backlash 612 realist thought and backlash 609 Serbia and the ICTY 614–18, 623, 624 theoretical pluralism 608–9, 609 n.29 theory-informed approaches to backlash 608–10 International Criminal Tribunal for Rwanda (ICTR) 4, 45, 96, 142, 187–9, 224, 225, 253, 278–83, 289, 535, 554, 603, 705 creation of 98 and crimes against humanity 302 defence funding, ICC compared 52 and enslavement 362, 368–9 evidentiary deficiencies 469 historiographical controversy 537–8 impunity term in text and discourse 244, 247, 247 n.30, 248 jurisdiction limited to individuals 495 ‘justice’ and ‘reconciliation’ 700 managerial judging 43 organizational naming convention 514 procedural fairness, ICC compared 47 Rwandan perceptions 281–3 selective justice 253–4

and sexual crimes 484 Statute 297 n.17, 302, 368–9 translation issues 761 victim support 480 n.34 victim-witnesses 478 and victims’ reparation rights 713 n.59, 714 views of the accused 26, 30–1, 32, 33–4, 33–4 n.43, 35 International Criminal Tribunal for the former Yugoslavia (ICTY) 4, 7, 45, 81, 122, 222, 223, 224, 225, 253, 309, 411, 535, 554, 603, 688, 705, 719, 751, 777 ADC-ICTY (Association of Defence Counsel practicing before the ICTY) 81 and aiding and abetting 303 n.43 Appeals Chamber 72, 303 creation of 69, 94, 98 crimes against humanity 302 defence, legal culture 760 defence funding, ICC compared 52 duress defence 303, 303 n.42, 304, 309 efficiency/fairness trade-off 40 enslavement 362, 368–70 enterprise liability 303 n.43 fact-finding 469 and ICL elite 90, 93, 95–7, 98–9, 102 impunity term in text and discourse 244, 247–8 joint criminal enterprise (JCE) doctrine 114–15, 119, 379 jurisdiction limited to individuals 495, 503–4 ‘justice’ and ‘reconciliation’ 700 legitimacy 137, 141, 142, 789 managerial judging 40, 43, 44 NATO bombings in Kosovo 686 procedural fairness, ICC compared 47 prosecutorial disclosure 55 rape as war crime/crime against humanity 301 and reasonable doubt for convictions 465 retroactivity 310 n.69 Serbian denial/backlash 261, 262–3, 262 n.4, 269, 614–18, 623, 624 sexual crimes 484 staff survey 86 Statute 302, 368–70 victim support 480 n.34 victim-witnesses 478

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

866 index International Criminal Tribunal for the former Yugoslavia (ICTY) (cont.) victims’ reparation rights 713 n.59, 714 views of the accused 26, 31–2, 33 International Criminal Tribunals as extension of wars 32–4, 37 international human rights law (IHRL) 299–300, 305–6, 312 and enslavement 364, 369–71, 372–3 International Labour Organization (ILO) Administrative Tribunal 631 International Law Commission (ILC, UN) 112–13, 294, 368, 369, 447, 777, 781 Draft Code of Crimes (1996) 781 and immunity/impunity 423–4, 434 Nuremberg Principles 354, 431 Responsibility of States for Internationally Wrongful Acts 325 n.32 Second Report (1984) 792, 795–6 International Military Tribunal for the Far East (IMTFE) see Tokyo International Military Tribunal for the Far East International Military Tribunal (IMT) at Nuremberg see Nuremberg International Military Tribunal International Opium Convention (1912) 780 International Organization for Migration (IOM) 361 International People’s Tribunal 256 International Residual Mechanism for Criminal Tribunals (MICT) 244 internationalism see robust internationalism interpretive community 402, 402 n.9 ‘intime conviction’ standard 453, 454–6 Iraq: chemical weapons attacks on Kurds 71 invasion of Kuwait (1990) 554 Special Tribunal 554 US invasion 555 ISIS 313, 556 Israel: Landau Commission Report (1987) 674 and the occupied Palestinian territories 674 Italian code of criminal procedure, Article 456 533

Izetbegović, Alija 268 Izetbegović, Bakir 268

J

Jackson, Robert 67–8, 74, 75, 140, 162, 163, 164 n.61, 226, 349, 352, 501, 507, 510, 580 Jacobs, Alan M. 605 n.19 Jacobs, Dov 463 Jakobs, Gunter 32–3 Jallow, Hassan 282 Japan: revisionism of WW2 276–7 and the Tokyo IMTFE 274–8, 531–3 Jaspers, Karl 570 Jefferson, Thomas 568 Jelisić case 509 n.74 Jensen, Thor 587 Jhering, Rudolph 77 Joinet, Louis 489 n.67 joint criminal enterprise (JCE) 114–15, 379, 412, 504–5, 505 n.53 concept 395, 396 distinguished from membership liability 505 Jorda, Claude 95 ‘just war’ concept 547–8, 550–1 justice, conception of 27–8 Justinian Code 375

K

Kaba, Sidiki 626 Kagame, Paul 253, 278, 279, 282, 289 Kahneman, Daniel 264–5 Kaigi, Nippon 277 Kalyvas, S. 397 Kamajors, Sierra Leone 764 Kampala definition of aggression 554–5, 555 n.73 Kant, Immanuel 544, 546, 567 Karadžić case 450, 601, 615, 616, 682, 683–4, 685, 693–5 Karstedt, Susanne 270 Katanga and Ngudjolo Chui case 51, 80, 116–17, 118, 119–20, 394–5, 417–18 n.113, 453–4, 466, 483 n.45, 488–9, 488 n.63 Katyn massacre (1940) 528 Kaufman, Nick 52

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

index 867 Kaul, Hans-Peter 575–6 n.71 Kelley, Jenny 733 Kellogg-Briand pact (1928) 347–8, 348 n.19, 532, 552 Kelman, Herbert 382, 388, 512 Kelsall, Tim 689, 763 Kelsen, Hans 10, 76, 76 n.37, 423–49, 546–7 Kendall, Sara 584, 592, 593, 633, 689 Kennedy, David 93, 810, 810 n.93 Kenya: election violence, role of organizations 509 ICC cases 52–3, 59, 313, 630 Kenyatta, Uhuru 688 Kenyatta case 59, 289, 509 n.73, 630, 631 Kersten, Mark 241, 252 Kertész, Imre 258, 258 n.74 Khmer Rouge, Cambodia 250, 251, 284, 285, 287, 714 Kiefer, Heather L. 782 King, George Gelaga 764–5 King, Martin Luther 255 Kirgis, Frederic L. 446 Kirsch, Philippe 776, 780 Kishi, Nobusuke 275 Kisilev, Valentin G. 95, 96 Kittichaisaree, Kriangsak 774 Kiyani, Asad 469 Knoops, Geert-Jan Alexander 44 Kondewa, Allieu 764–5 Kontorovich, Eugene 334, 566 Kony, Joseph 583, 590, 599 Kony 2012 (documentary) 583, 588–9, 590 Koskenniemi, Martti 11, 659, 670–1, 672, 680, 687 Kosovo 33, 131, 146 Kosovo Liberation Army (KLA) 269 Kosovo Specialist Chambers, UN Interim Mission in Kosovo 231, 231 n.67, 289, 603, Koštunica, Vojislav 617 Kouchner, Bernard 187 Krnojelac case 369–70, 471, 505 n.53 Kunarac, Kovac and Vokavic case 301–2 n.34, 369, 370 Kupreškić et al case 71–2, 71 n.18, 411 n.67 Kurdi, Alan 735 Kurds in Iraq, chemical weapons attacks on 71

L

Landau, Moshe 652–3, 658, 674, 676 Landau Commission Report (1987), Israel 674 Langer, Maximo 42, 44 Lansing, Robert 158 Latané, Bibb 384 n.15, 510 Latin America 252, 474, 638, 700 Laudan, Larry 460 Lauterpacht, Hersch 323, 347, 443–7 law-application conception 402, 402 n.4 law of nations 544–6, 548 Le Bon, Gustav 510 Le Goff, Jacques 254 League of Nations 346, 552, 553 Covenant 354 Covenant Article 10 346 prohibition of war failure 347 Leclerc, Henri 456 legal aid budget, ICC 82 legal representative of victims (LRV) 78–9 legality principle 68–9, 72, 75, 124–5, 310, 311 n.73, 314, 326–7, 399, 401, 403 n.19, 407, 408–10, 414–15 n.88 legitimacy in war and punishment 6, 129–53 legitimacy problem, in international criminal justice 131, 136–46 legitimate illegality and legal illegitimacy 131–2, 146–50 moral expressivism, standing to blame, and institutional legitimacy 131, 132–6 path forward 132, 150–3 Lemkin, Raphael 165–6, 167–8, 170, 323 Levi, Ron 93 Levinasian ethics 746, 747, 845 Levinson, Salmon 552 Lewis, Hope 364 Liberia 283, 284 appeal to ICJ over apartheid 175–6 civil war 284 reaction to CSL 690–3, 692 n.58 Libya 143 n.59, 145 enslavement 361 ICC involvement 734 Lieber, Francis 344 Lives of Others, The (film) 256 n.65

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

868 index Lloyd George, David 346, 842 Locarno Treaty (1925) 347 Locke, John 548, 549, 550, 574 Lord’s Resistance Army (LRA) 254, 592, 593, 734, 737 Lothar von Trotha, General 157 Luban, David 195, 310 n.69, 330, 778, 834 Lubanga case 49 n.57, 51, 60 n.146, 73–4, 74 n.29, 74 n.30, 115–16, 117, 118, 119, 120, 243, 398 n.72, 418–19 n.117, 483–4, 485, 486, 487 n.60, 488 n.64, 505 n.54, 759, 763–4 Luckmann, Thomas 24 Lüneburg concentration camp personnel 526 lustration and vetting 706 Lyotard, Jean François 653–4 n.8, 671, 672

M

M. C. v. Bulgaria 299–300 n.25, 300–1 MacArthur, Douglas 274–5 Madsen, Mikael Rask 605, 605 n.17, 606 n.21, 607 n.24 ‘magical legalism’ 708 Making a Murderer (documentary) 586 Malabo Protocol (2014) 205–10, 205 n.48, 207 n.54, 210, 794, 807 Article 28 205–8 Article 46A 211 criminal organizations liability 494 n.3 Malkki, Liisa 744, 745 Man With a Movie Camera (documentary) 589 Mandela, Nelson 182, 611, 612 Manner, George 428 Marcus Atilius Regulus 560 Marks, Susan 608 n.26, 783 Marshall, John 445 Martens Clause, Hague Convention II (1899) 411 n.67, 416 Martens Clause/Common Article 3 407 Marty, Mireille Delmas 814 Mau Mau revolt, Kenya 160–1, 168 Mauthausen concentration camp 503 May, Larry 330, 467 Mbeki, Thabo 611, 612, 613 McDermott, Yvonne 453, 454, 459, 462, 471 McDonald, Gabrielle Kirk 95, 247–8

McDoom, Omar Shahabudin 511 McDougal, Myres 173 McEvoy, Kieran 708 Mead, G. H. 23 Médecins du Monde (MDM): bearing witness of human rights violations 730–1 and neutrality 727 Médecins sans Frontières (MSF) 743, 746 bearing witness of human rights violations 730–1 Mégret, Frédéric 77, 193, 193 n.247, 642 n.72, 689, 741, 780 Mehager, Tom 667 n.83 memorialization 706 Méndez, Juan 732–3 mercenaries, African definition 207 Meron, Theodor 533 Mikati, Najib 620, 621 Milgram, Stanley 386, 512 Mills, Charles Wright 91, 94 Mills, Kurt 612 Milošević, Slobodan 99, 268 government 615, 616–18 trial 536, 569, 687, 729, 759 Minear, Richard 533 Missing Picture, The (documentary) 587 Mladić, Ratko 615, 616 Moeller, Robert 523 monopoly capitalism 787 Monroe Doctrine 348 moral expressivism 131, 133–4 moral legitimacy 6, 130, 131, 135, 141, 141 n.50, 143, 148 Moreno-Ocampo, Luis 103, 243, 254, 583, 586, 587, 685, 728 n.36, 734 Morrison, Howard 462 Morrison, Toni 155, 159, 161, 164, 174, 192, 193 Movies That Matter festival 583, 587 Mungiki, Kenya 509 Muñoz Conde, F. 32–3 murder, as international/domestic crime 298, 299, 300, 301, 311, 312 Museveni, Yoweri 734 Muthaura, Kenyatta and Ali case 59, 313 n.83, 313 n.84 My Lai massacre (1968), Vietnam 355, 356, 512

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

index 869

N

Nagar, Shalom 653, 655–6, 663, 664–70, 669 n.70, 671–6, 846 Nagasaki atomic bomb attack 276 Nahimana case (‘Media trial’) 514 Naletilic and Martinovic case 370 Nanking (Nanjing) massacre (1937), China 276, 532 n.57 Nanook of the North (documentary) 585–6, 587, 588 ‘national criminalization thesis’ (NCT) 324, 326–7 National Party, South Africa 753 National Unity and Reconciliation Commission of Rwanda 280 NATO (North Atlantic Treaty Organization) 33 bombings in Kosovo and the ICTY 686 military intervention in Kosovo (1999) 131, 142, 146, 615, 616 Navia, Nieto 463 Nazi Concentration Camps (documentary) 583 Nazi Germany 259, 309, 526–30, 552–3 chain of command 390 and criminal organizations liability 498–9, 507 Gestapo-SD 497, 498, 500, 501, 502 lawyers at the Nuremberg IMT 351 National Socialism 527, 529 Party Leadership Corps as criminal organization 497, 500, 501, 502, 508 Penal Code (1935) 68, 68 n.6 routinization of violence 512–13 SA 498, 500 Soviet pact (1939) 528, 544 South-west Africa colonialism and Nazism 163 SS 498, 500, 501, 502, 512, 529–30 Nesiah, Vasuki 161 Netflix 587, 588 Ngudjolo case 59 Nichols, Bill 587, 588 Niebuhr, Reinhold 510 Niger, enslavement in 361 Nigeria 169 Supreme Court decision (1972) 71

Nikolić, Tomislav 268 9/11 terrorist attacks 534, 556 Nixon, Richard 172 Nixon, Rob 789 North Korea attack on South Korea (1950) 554 Norway, domestic law and genocide 229 Nouwen, Sarah 306–7 n.58, 584, 592, 593, 689, 750–1 n.17, 755 Nozick, Robert 234 n.76 Nsengimana case 466 Ntaganda case 51 Nuremberg Charter (London Charter) 301, 500, 526–7, 567, 569, 798 Article 9 499, 501, 507 Article 10 499 Nuremberg International Military Tribunal (IMT) (Nuremberg Trials) 8–9, 67–70, 67 n.2, 74–5, 76, 81, 137, 141, 142, 156, 175, 226, 227, 289, 296, 301, 310, 341, 359, 388, 401, 426, 540, 552, 553, 602, 628, 687–8, 717, 783, 785, 789, 797, 816 as an aggression trial 311 n.71, 349–53, 359, 778 catalogue of atrocity crimes 778–9 colonialism, genocide and European crimes 162–8 Control Council Law No. 9 507 Control Council Law No. 10 499–500, 777 criminal organizations liability 494, 494 n.1, 495–6, 497–503, 507, 508, 510, 514 discontinuities from 778–80 documentary films 583 and domestic denial 270–4 as ‘Franconian’ culture of ICL 407–14 and historiographical accounts of Germany 526–31 Holocaust marginalized 350, 351, 353 Jewish victims’ testimony 478 retrospective ‘judicialization’ 778 types of evidence 662 US successor trials 529–30, 553–4, 774, 775 n.32, 777 victor’s justice 253 war crimes/crimes against humanity 296, 310 Nussbaum, Arthur 371 Nussbaum, Martha 195

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

870 index

O

Ohlendorf trial 353 O’Keefe, Roger 294 n.3, 298 n.18, 305 n.53, 306 n.58, 310 n.70, 311 n.74, 321–2, 323, 324, 327, 772–3, 775, 788, 798 Ongwen, Dominic 254 Oppenheimer, Joseph 255 Oradour trial (1953) 526 Orford, Anne 188 Organisation of African Unity (OAU): Convention for the Elimination of Mercenarism in Africa (1977) 207 Convention on the Prevention and Combating of Terrorism (1999) 206–7, 206 n.52, 207 n.54 Organisationsherrschaft theory 117, 506 organizations see criminal organizations liability Orie, Alphons 460 Osman and Osman v. United Kingdom 299 n.25 ‘outgroup’/‘ingroup’ justice 31

P

Pace, William 100 pacifism 345 Pal, Radhabinod 137, 167, 276, 356, 683 Palestine, Israeli occupation of 674 Papon case 525, 726 Peace vs Justice (documentary) 592–3 Pearl Harbor 352 Pella, Vespasian 323, 354 Pensky, Max 252 people trafficking, African definition 206, 206 n.30 Pétain, Philippe 525 Peters, Clarke 248 Pham, Phuong 689 Philippines, withdrawal from ICC 129, 631–2, 631 n.20, 842 Phillimore, Walter 109 Pikis, Georghios 483 Pinochet case 226, 726 piracy and pirates 226, 322, 572 African definition 206 as the enemy of all humanity 547, 559, 560–5 and international tribunals 314 Somali 563–4

terrorists compared 561–2 as transnational crime 802–3 tyrants compared 573 Plato 573–4, 573–4 n.59, 574 n.60 Plevin, Adrian 491, 491 n.72 Politbüro case 118 Politis, Nikolaos 347, 551 Pollock, Ernest 346 Pomorski, Stanislaw 498 n.13 positive peace 710, 710 n.42 post-conflict justice processes 752–6 Potsdam agreement (1945) 704 n.20 Powell, Colin 731 POWs treatment and immunity 425–7 Priemel, Kim 165 privateers 565–6 Promotion of National Unity and Reconciliation Act, South Africa 184 Prooijen, J.-W. Van 31 Prosecutor, The (documentary) 589, 590–1 Provost, René 767 Pruitt, Renée C. 463, 464, 465 publicists 106–125 punishment: Durkheim’s sociology of 196–7, 198–9 equated with incarceration 242 peace, transition and 252–3 philosophy of 132–4 reimagining 242–3, 255–9

R

racial politics, Africa 159–60, 159–60 n.30 Ramaphosa, Cyril 611 rape 484, 486 force requirement, Bulgaria 300–1 ‘ordinary’ 311, 312 as war crime/crime against humanity 301 Rawls, John 27 Read, James Morgan 156–7, 161 Reckoning, The (documentary) 586, 589, 590–2, 594 Redfield, Peter 743 regime change 556, 723–4, 725 regional criminal courts as representatives of political communities 194–211 African Criminal Court prospects 205–10 ‘common humanity’ concept 6, 194

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

index 871 from international to regional enforcement 199–204 social function of criminal law 196–9 Regulations of the Registry, ICC and the defence 82 Reisman, Michael 173 reparations see victims’ rights and reparations ‘respondent’ term 25 Responsibility to Protect (R2P) 306, 315 restorative justice approaches 185, 259, 475, 475 n.7, 491, 715, 753, 754–5 retributivist theories 132, 133 Revolutionary United Front (RUF), Sierra Leone 284, atrocities 691–2 Reydams, Luc 253–4, 253 n.55 Riachi, Ralph 249 Ribbentrop, Joachim von 552 Ricci-Busatti, M. 109 Richards, Penny 251 Ricoeur, Paul 521 Rieff, David 252 n.48, 257, 729, 733, 738 Riege, Gerhard 257 right to truth 10, 473–93 human rights law and international criminal law convergence 474–7 at the ICC 477–90 ‘legal truth’/‘actual truth’ gap 482 new charges against the accused 483–6 reflection 490–3, 490 n.71 right of victims to introduce evidence 486–9 and sexual violence 478 truth and the international criminal trial 477–80, 477 n.20 victims’ obligation to disclose exonerating evidence 489–90 victims’ ‘personal interests’ and the determination of guilt or innocence 480–3 victims’ rights to participate in proceedings, ICC 473 Robespierre, Maximilien 578 n.79 Robinson, Darryl 404 n.20 Robinson, Patrick 247, 571, 571 n.53 Robinson, Peter 694

robust internationalism 216, 217, 219, 221–32, 232–6 Rogat, Yosal 654, 656, 658, 660, 667–8 Röling, Bernard V. A. 381 Roman culture of international criminal law 401, 414–21 Rome Conference (1998) 769, 769 n.4, 775, 782 Rome Statute (1998) 53–4, 69, 97, 107, 107–8 n.8, 136, 176, 201, 297 n.17, 303 n.43, 415–21, 416 n.96, 484–5 n.51, 513, 566, 711, 750, 776, 782 African involvement in 179 and aiding and abetting 303 n.43 apartheid and 186–7, 186 n.215, 189 Articles: 1 220 5 222, 768 6–8 381 7 124, 369 7(1) 368, 391 7(2)(c) 367 10 367–8 12(3) 152 17 220 21 417–18, 418 n.115 21(1) 114, 125 21(1)(c) 120 22(2) 120, 124, 420, 420 n.124 25 72–3, 380 25(3)(a) 115, 116, 117, 119, 391, 392, 394 27 211 30(1) 115 32 762 33(2) 383 38 412 67 78 68 491 68(3) 78, 79, 81, 480, 482, 482 n.41, 483, 483 n.45 69 491 69(3) 483 n.45, 485, 486 n.58, 486–8, 492 75(2) 488 82(1)(d) 60 and collective action 509 n.75 complementarity principle 304 n.51

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

872 index Rome Statute (1998) (cont.) and the Convention against Torture (CAT) 805–6 and the crime of aggression 554 and crimes against humanity 313 and enslavement 362, 366, 367–8 four ‘core’ international crimes 224–5, 768–9 and ICC legitimacy 137–8, 140 and indirect perpetration through an organization 505–6 Kampala amendments (2010) 342, 360 national (domestic) courts covering international law 228–31 preamble 181, 200, 220, 222, 243, 308, 308 n.61 process towards 533–8 reason for exclusion of treaty crimes from Draft Code 787–8 and Rwandan genocide 187–9 textual specificity 303–4 and transnational crimes 792 and treaty crimes 796–7 victim-centred perspective 478–9, 479 n.30, 714 Root, Mr 109 Rousseau, Jean-Jacques 578 n.79 Rousso, Henry 520 Roux, François 250 Roxin, Claude 5 Roxin, Claus 9, 117, 118–19, 394 Russell, Bertrand 356 Russia: as non-party permanent member of UN Security Council 131, 140, 143, 145 ‘unsigning’ of Rome Statute 130 Ruto, William 688 Ruto & Sang case 59, 289, 488 n.64, 630 Rwanda 30–1 gacaca courts 30–1, 31 n.32, 283, 753 history 537–8 perception of the ICTR 281–3 see also ICTR Rwandan genocide (1994) 26, 180–6, 267, 278–83, 317, 554 National Unity and Reconciliation Commission 280 reconciliation 278–83

role of organizations 509 and the Rome Statute (1998) 187–9 selective justice 253–4 and social influence 511 Rwandan Patriotic Front (RPF) 142, 253–4, 278, 279, 281–3

S

Saddam Hussein 554, 555 Said, Edward 165 Saif Al-Islam & Abdullah Al-Senussi case 305 n.52 Salam, Tammam 620 Sammons, Anthony 228 Sandholtz, Wayne 604–5, 605 n.16 Sands, Philippe 533 Sang, Joshua Arap see Ruto and Sang case Sartre, Jean-Paul 356 Saudi Arabia and the STL 620–1 Scelle, George 348, 354 Schabas, William 100, 179, 521, 534, 769, 775 Scheffer, David 427 Schleunes, Karl 534 Schmid, Evelyne 363 Schmitt, Carl 347–8, 348 n.19, 543, 545–6, 547, 549, 552–3, 557, 558, 559, 559 n.3 scholarship and international criminal law 5–6, 106–25 dogmatik and scholarship 120–1, 125 scholarship and international law 111–13 scholarship role in the jurisprudence on modes of liability 114–20 Schomburg, Wolfgang 118 Schooner Exchange v. McFaddon 445 Schwarzenberger, Georg 320, 325, 813, 814, 818 SCSL see Special Court for Sierra Leone Second World War see world War II selective justice 242, 253–5 Serbia 267 political parties 268 Šešelj, Vojislav 268 sexual violence 478, 484–5 and feminist critiques of ICL 640–1 and ICTY 484 see also rape Shapiro, Scott 548 Shaw, Rosalind 708

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

index 873 Shawcross, Hartley 444, 447 Shirlow, Esme 606, 606 n.20 Shklar, Judith 352, 717 Shotwell, James T. 347, 552 Sidhwa, Rustam S. 96 Sierra Leone: Fambul Tok project 752, 753, 756 human rights abuses 84 impact of the SCL 283–5, 286, 287–8 Truth and Reconciliation Commission 248, 249 Simpson, Gerry 167, 181 n.171, 776 Single Convention on Narcotic Drugs (1961) 780 Single Convention on Psychotropic Substances (1971) 780 Siniora, Fouad 618, 619 Sirleaf, Ellen Johnson 284–5, 285 n.131, 286 slavery and slave trading 383, 568–9 treaties 832 see also enslavement as a crime against humanity Slavery Convention (1926) 371, 376 Article 1 361–2, 365, 366–7 Slavery Convention (1956) Article 7 365 Sloane, Robert 133–4 ‘slow violence’ 789 Sluiter, Göran 100 Smirl, Lisa 723 n.12, 739 Smith, Bradley F. 501, 501 n.31 Smuts, Jan 181 social contract theories 194 sociological legitimacy 129, 130 Soemu Toyoda case 531 n.47 Soley, Ximena 606 Solferino, Battle of (1859) 720 Solzhenitsyn, Aleksandr 255 Somali piracy crisis (2003–13) 803 Somerset v. Stewart 372 Sontag, Susan 660 sources doctrine in classical public international law 105–6, 106–25 South Africa 169 ANC conditional amnesty 183–4, 184 n.197, 184 n.198 backlash against the ICC 604 , 611–14, 623 ‘C Class’ mandate 161

Constitutional Court 184–5 and the ICJ (1960) 169 Promotion of National Unity and Reconciliation Act 184 Truth and Reconciliation Commission (SATRC) 96, 182, 184–5, 185 n.206, 185 n.209, 475, 475 n.7, 514–15, 705, 752–3 withdrawal from ICC considered 129 see also apartheid, South Africa South African Development Community (SADC) 96 Soviet Union: Man With a Movie Camera (documentary) 589 non-aggression pact with Germany 544 numbers arrested for treason and/or supporting Nazi occupiers 524 Special Court for Sierra Leone (SCSL) 45, 142 n.5, 143, 231, 231 n.65, 283–5, 286, 287–8, 309, 535, 618, 682, 698, and child soldiers 763 cultural challenges 764–5 funding 686 impunity term in text and discourse 244, 248–9 organizational naming convention 514 translation issues 761 Special Panels of the Dili District Court (SPSC) 535 Special Panels for Serious Crimes (SPSC), Timor Leste, UN 231, 231 n.66, 754, 765–6 and the Indonesian leadership 603 Special Tribunal for Lebanon (STL) 45, 78, 289, 309 Appeals Chamber 69, 206–7 corporate liability 494–5 n.3 as defence model 82–3 impunity term in text and discourse 244, 249–50, 249 n.36 Lebanon backlash 618–22, 623, 624 and terrorist crimes 774 Srebrenica genocide (1995) 263 Sri Lanka reparations 714–15 Ståhl, Tomas 31 Stahn, Carsten 100 Stakić case 118

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

874 index standing to blame 131, 135–6 Stanišić and Simatović case 460 Stanovich, Keith 264 Stasi, East German, opening of files 256–7 state(s): abuses of right to self-defence 383 benefits of exclusion of treaty crimes for rich 787–8 and control of atrocity 396–8 and culpability for atrocities 388, 393 immunity and impunity 423–49 ineffectiveness at prosecuting international crimes 306–7 not enforcing universal laws 334–40, 337–8 n.92, 339 n.101, 378 n.93 obligations under human rights law 299–300 provision of reparations 714, 715 relations with other sovereign states 543–6 responsibility to prevent international crimes 306 Responsibility to Protect (R2P) 306, 315 state practice and opinio juris 70 subduing civil society 546–52 and transnational crimes distinction 828 and victims compensation 703 statutes of limitations and international crimes 321 Staub, Ervin 387–8 Steininger, Silvia 606 Stone, Julius 355 Stonebridge, Lyndsey 664–5 n.69 Stover, Eric 689 Sudan and Darfur 143 n.59, 145, 244, 246, 723–4, 725, 755 transitional justice hierarchy 702–4, 709–10 Sunstein, Cass 606 Swedish code of criminal procedure 457

T

Tadić case 71, 71 n.15, 75, 137, 140, 297 n.16, 303 n.43, 454–5 Tadros, Victor 332–3, 334 n.76 Taliban 556 Tallgren, Immi 195, 775 Tambo, Oliver 175

Tampere Council summit (1999) 202 Tamura Hiroshi case 531 n.47 Tanenbaum, Marc H. 172 Taylor, Telford 81, 165, 356 Taylor case 283, 284–5, 286, 680, 682, 683, 684, 685, 690–3, 695 Teitel, Ruti 663 Tenove, Chris 469 terrorism 209, 311, 567 African definition of 206–7 as international crime 294 piracy compared 561–2 Terrorism Financing Convention (1999) 794 Thaçi, Hashim 269 Theme Probability Model of evaluating evidence 459–60 Thin Blue Line, The (documentary) 586, 587 Third World Approaches to International Criminal Law (TWAICL) critiques of ICL 638–40 Third World Approaches to International Law (TWAIL) 633, 638, 641 Thomas, N. T. 23 Thomasius, Christian 375 Tieger, Alan 683–4 Timbuktu, destruction of cultural objects 335–6 Tokyo International Military Tribunal for the Far East (IMTFE) 137, 142, 167, 226, 289, 296, 310, 351–3, 553, 602–3, 628, 638, 816 and the crime of aggression 351 criminal organization liability missing 499 n.19 and domestic denial 274–8 victor’s justice 253 war crimes/crimes against humanity 296, 310 Tolstoy, Leo 345 torture 294, 311, 312, 322, 383, 570–2 Greek colonel’s regime 386 as transnational crime 804–6, 808 Torture Convention (1985) 773, 801 totalitarianism 574 Toynbee, Arnold 356 trafficking see drug trafficking; people trafficking

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

index 875 transnational crimes 16–16, 791–810, 843 actors 801–2 conjoined history 794–7 contextual elements and seriousness 808–9 and ‘core’ international crimes 794, 799 corruption offences 794 crimes in search of an international tribunal? 807 definitions and categories of 791–4, 797–802 distinction from international crimes 327, 771, 789–90, 817, 817 n.15, 821 fundamental values of the ‘international community’ thesis 798–9 and the ICC 824, 824 n.28 non-international armed conflict (NIACs) 801–2, 802 n.60, 808 offences against the person 793 piracy 802–3 public/private divide 807–8 regulatory failure 793–4 sources thesis 800–1 torture 804–6, 808 treaty crimes and the Rome Statute 796–7, 800–1 transnational criminal law 814 and the international fight against narcotics 819 distinguished from international criminal law 327, 771, 789–90, 817, 817 n.15, 821 similarities with international criminal law 771–2 transitional justice 201, 201 n.30, 663 transitional justice and the subordination of emancipation 14, 699–718, 844–5 accountability as an unassailable norm 710–12 conceptual background and legal origins 704–9 legal hegemony of international criminal law in international transitional justice 709–13 and legalism 699–700, 708–9, 717–18 power of human rights 713–16 regional institutions and states 701 n.7 rights-based transitional justice: accountability vs. emancipation 707–9, 716

rise of transitional justice 704–6 social emancipation/social justice concepts 700 Sudan/Darfur referral 702–4, 709–10 transitional justice ‘toolkit’ 705–6 victims’ rights subordinated 712–13 what does this critique tell us? 716–18 Transnational Organized Crime Convention (2000) 797 Treaty on the Functioning of the European Union: Articles: 82 202 83 202, 202 n.36, 203 86 203–4 Trinidad and Tobago 296, 769, 777–8, 781, 782, 795 Trouillot, Michel-Rolph 160 n.31, 192 Trudeau, Pierre 102 Trust Fund for Victims, ICC 706 n.24, 714, 742–4, 746 Truth and Reconciliation Commission, South Africa see under South Africa truth commissions 705–6 Tuck, Richard 542, 544 Tuck, Robert 548 Tudjman, Franjo 268 tyrants and tyranny 573–6, 579, 580–1 pirates compared 573 Tzouvala, Ntina 784–5

U

Uganda 254 Acholi region 723 ICC referral 733–4, 737 Kony 2012 (documentary) 583, 588–9, 590 Mato Oput justice 755 Peace vs Justice (documentary) 592–3 ‘territorial crime’ exception to functional immunity 447 Ulrich, Anthony 374 United Kingdom: Mau Mau revolt in Kenya 160–1 Privy Council Report (1934) 564 n.26 ratification of Rome Statute 144 slave trading declared piracy 568

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

876 index United Nations (UN) 534 Basic Principles and Guidelines on the Right to a Remedy 711, 714 Code of Conduct Offences against the Peace and Security of Mankind 354 Convention against Corruption (2003) 207 Convention on the Law of the High Seas (1958) 206, 206 n.49 Convention against Transnational Organized Crime, supplementary Protocol (2000) 206, 206 n.50 Covenant on Human Rights (1966) 774 Declaration on Friendly Relations (1970) 774 definition and concept of aggression 343, 353–5, 358, 554 ‘Draft Code of Offenses against Peace and Security of Mankind’ (1954) 554 fact-finding missions 702 and French atrocities in Algeria 170 General Assembly 95 General Assembly Resolution 95(I) 798 General Assembly resolution and prosecution of apartheid crimes 175, 176, 182–3 High Commissioner for Human Rights 714 Human Rights Council 714–15 and the ICC 196 International Convention on the Suppression and Punishment of the Crime of Apartheid (1973) 176–8, 177 n.148. 178 n.155 International Principles to Combat Impunity 711 rights-based approach to criminal justice 707, 710 and the Rwandan genocide 187–8 Secretary-General’s report on transitional justice (2004) 706, 707, 714 Special Rapporteur (SR) on transitional justice 707–8, 709, 709 n.40 United Nations Charter (1945) 146, 773 Article 41 140 Chapter VII 147, 152, 309 United Nations Security Council 302 Article 51 354 Chapter VII 554, 701

Commission on Inquiry into Darfur 246 and the concept of aggression 343, 353–5, 358 creation of ICTY and ICTR 94, 98 criminal accountability privileged in Sudan/Darfur referral 703–4, 709–10 ICC legitimacy 6, 129–53 International Criminal Tribunal for Rwanda 180 and Iraq compensation scheme 701, 701 n.6 manipulation by states 200 powers to refer cases to the ICC 6, 188, 639 and the responsibility to use force 131, 147–50 Sixth Committee on immunity from war crimes 424, 435 triggering jurisdiction, and direct prohibition 309–10 United States of America (US): criminalizing aggression at the Nuremberg IMT 351–2 Department of Defense Law’s Law of War Manual on immunity 425–7, 438 fact-finding 463–4 federal crimes and state crimes 293 as global hegemon 783 and the ICC 304, 426–7 Iraq invasion (2003) 555 Lebanon and the STL 619, 620 as non-party permanent member of UN Security Council 131, 140, 143, 145 opioid crisis 785 Panama invasion (1989) 787 prioritizing civil and political rights over economic, social and cultural rights 364 and the SCSL 690–1 Serbia and the ICTY 614–18 slave trading declared piracy (1820) 568 Supreme Court v. Furlong 334 ‘territorial crime’ exception to functional immunity 447 ‘unsigning’ of the Rome State 130 War on Terror 383, 383 n.13 unity of international criminal law (ICL): a socio-legal view 15, 16, 811–38, 843, 847 between inflation and rarefication 815–17 ‘core crimes’ as representing a distinct legal reality 822–4, 825–7

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

index 877 criminologically dubious 827–9 critical approaches: rarefication as reorganization of the field 819–21 definitions of ICL 812–13 doctrinally weak 822–4 fragmentation problem 821–9 global/transversal thinking 831–3 globalization of criminal law 836–7 ideational approaches to define ‘truly’ international crimes 817–19 jurisprudentially suspicious 824–7 normative framework 834–5 and the politics of fragmentation 814–21 public/private actors in international crime 828–9, 834–5 reconfiguring theory 834–7 refocusing on the internationalization of crime control law 830–1 slavery treaties 832 states and transnational crimes distinction 828 towards a unified research agenda 829–37 transnational crimes distinction 817, 817 n.15, 821 unity thesis 835 universal jurisdiction of enforcement 832, 833 Universal Declaration of Human Rights (UDHR, 1948) 297, 301 n.29, 364, 773–4 Articles: 6 372 11(2) 327

V

van Alebeek, Rosanne 429 van Bowen, Theo 97 Van den Wyngaert, Christine 119–20, 392, 434, 453–4, 462, 466–7 van der Wilt, Harmen 506, 814 Van Schaack, Beth 312 n.77 Van Sliedregt, Elies 119 Vasiliev, Sergei 42, 44, 491–2, 492 n.74 Vattel, Emer de 548–52, 556, 566–7, 568, 576, 578, 579 Velasquez Rodriguez v. Honduras 299 n.25 Verges, Jacques 170 Vermunt, Riël 31 Versailles Peace Treaty (1919) 841–2

African presence, absence and ‘re-presentation’ 159–62 and German atrocities in Africa 155, 156–62 Vertov, Dziga 589 Vespasian Pella 551 Vetter, Markus 586 Vichy French personnel on trial 525 Vico, Giambattista 520 victim-centrism 406 victims 713 n.59, 714–15, 718, 735 ‘abstract’ 584–5, 592 agency 257–8, 258 n.73 alternative messages 592–4 bureaucratic 594–7, 598 vs. citizens 716 compensation rights unimplemented in Darfur 703–4 constituted via acts of representation 585 created by international criminal law 584 ideal 590–2, 598 invoked as response to critiques 647–8 Jewish testimony 478 legal representatives of (LRV) 78–9 obligation to disclose exonerating evidence 489–90 as participants 62–3, 78–9, 473, 584, 593–4 ‘personal interests’ and the determination of guilt or innocence 480–3 representation in documentary film 590–9 restorative/retributive justice 259 right to introduce evidence 486–9 right to truth 475, 476 rights prioritized 72, 77, 663, 832 rights subordinated to accountability 712–13 see also Trust Fund for Victims (TFV), ICC Victims at the ICC (YouTube) playlist 594 victor’s justice 253 Vienna Convention of the Law of Treaties (1986) 416, 418–19 Article 31 72, 420 Article 31(1) 120, 366 Vietnam War 343, 355–6, 779 Vinck, Patrick 689 Visek, Richard 447 n.92 von Ranke, Leopold 520 Vučić, Aleksandr 268

OUP CORRECTED PROOF – FINAL, 02/06/2020, SPi

878 index

W

Waldorf, Lars 708 Walzer, Michael 195, 360, 550 war, as a crime against humanity 346–9 war crimes, and the rules of war 84, 297, 438–49, 540 IMT prosecutions and jurisdiction 21–38, 312, 777 see also aggression; crimes against peace; core crimes Watchers of the Sky (documentary) 590–1 Weber, Max 91–2, 98, 99, 626 Wechsler, Herbert 341, 352, 500 Weigend, Thomas 394 Weiss, Thomas G. 729, 731, 736 n.87, 739 Werle, Gerhard 228 Werner, Wouter G. 750–1 n.17, 755 West, Richard 264 Westphalia, Treaty of (1648) 545, 546 Whiting, Alex 56 Why We Fight, Prelude to War (documentary) 590 Wiebusch, Micha 605

Wigmorean analysis 453 Wilhelm, Kaiser 841–2 Wilson, Richard A. 536, 753 Wilson, Woodrow 552–3 Wolff, Christian 375, 563 World War I 551, 552–3 aftermath and pacifist sentiment for international law 345–9 see also Versailles Peace Treaty (1919) World War II 276–7, 296, 423, 495, 496–7, 497–8 film soliciting support 590 Wright, Quincy 344, 354

Y

Yamashita Tomoyuki trial 526 Yugoslavia, former 267–70 Yunis case 327, 327 n.39

Z

Zinoviev show trial 688 Živković, Zoran 616 Zuma, Jacob 611, 612