Who's Afraid of International Law? 9781925377019, 9781925377002

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WHO’S AFRAID OF INTERNATIONAL LAW? EDITED BY

RAIMOND GAITA & GERRY SIMPSON

WHO’S AFRAID OF INTERNATIONAL LAW?

WHO’S AFRAID OF INTERNATIONAL LAW? EDITED BY

RAIMOND GAITA AND GERRY SIMPSON

Who’s Afraid of International Law? © Copyright 2017 © Copyright of this collection in its entirety is held by the editors, Raimond Gaita and Gerry Simpson. © Copyright of the individual chapters is held by the respective authors. All rights reserved. Apart from any uses permitted by Australia’s Copyright Act 1968, no part of this book may be reproduced by any process without prior written permission from the copyright owners. Inquiries should be directed to the publisher. Second printing, 2017. Monash University Publishing Matheson Library and Information Services Building 40 Exhibition Walk Monash University Clayton, Victoria 3800, Australia www.publishing.monash.edu Monash University Publishing brings to the world publications which advance the best traditions of humane and enlightened thought. Monash University Publishing titles pass through a rigorous process of independent peer review. www.publishing.monash.edu/books/wail-9781925377002.html Series: Philosophy Design: Les Thomas National Library of Australia Cataloguing-in-Publication entry: Title:

Who’s afraid of international law? / edited by Raimond Gaita, Gerry Simpson. ISBN: 9781925377002 (paperback) Subjects: Effectiveness and validity of law. Sociological jurisprudence. International law. Other Creators/Contributors: Gaita, Raimond, 1946– editor. Simpson, Gerry, editor. Dewey number: 340.115 ISBN: 9781925377002 (paperback) ISBN: 9781925377019 (ePDF) ISBN: 9781925377422 (ePub)

Contents Prelude: Morality, Law and Politics . . . . . . . . . . . . . . . . vii Raimond Gaita Introduction: Who’s Afraid of International Law? . . . . . . . xxxv Gerry Simpson 1 2

3 4

On Being Afraid of International Law . . . . . . . . . . . 1

Gerry Simpson

Changing the World: The Ethical Impulse and International Law . . . . . . . . 21 Sundhya Pahuja Who’s Afraid of the International Criminal Court? . . . . 43

Tim McCormack

Who’s Afraid of a Climate Treaty? . . . . . . . . . . . . . 77

Robyn Eckersley

5

Remembering 1948: Who’s Afraid of International Legal History in the Israeli–Palestinian Conflict? . . . . . . . . . . . . 103 Catriona Drew

6

Why Rule of Law Promotion is Too Important to Be Left to Lawyers . . . . . . . . . . . . . . . . . . 133 Martin Krygier

7

The Universality of International Criminal Law and the Idea of a Common Humanity . . . . . . . . . . 169 Raimond Gaita

Notes on Contributors . . . . . . . . . . . . . . . . . . . . . . 191 Back cover

Pr elu de :

Morality, Law and Politics Raimond Gaita

Who’s Afraid of International Law? developed, as Gerry Simpson says in his introduction, from one of the series of the Wednesday Lectures of the same title. Only Catriona Drew’s essay was commissioned for the book. The Wednesday Lectures, with normally six lectures in each series, has run in Melbourne since 2001. Irrespective of their particular focus – reconciliation, the invasion of Iraq, terrorism, the dignity of politics or even our relation to nature – most of the series probed the ethical complexity of politics. ‘Politics: the Glory and the Misery’ was the emblematic title of one series. The lectures were addressed to a hard thinking, educated public. Always engaged with serious issues of the times, they nonetheless avoided the polemics of the culture wars that poison at its source any impulse to acknowledge, in a spirit of intellectual generosity, that simplistic or foolish elaborations of a position are sometimes the distorted expressions of traditions that need to be taken seriously and perhaps reclaimed. We seldom fully understand the deepest source of our ethical beliefs. Sometimes we must recover what we believe from what we mistakenly believe that we believe. When I use ‘we’ as I have just now, I do not intend it as an empirical generalisation. I offer it, as I say in my contribution to this book, as an invitation to agree that things are as I suggest they are, an invitation that depends on a degree of shared understanding though many of its salient elements are often not at the forefront of our minds. Inevitably, some readers will sometimes reject the invitation. As the originator and convener of the Wednesday Lectures, I took the ethical complexity of politics to be, for the most part, a function of the complex relations between morality and politics. Looking vii

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back over fifteen series, it astonishes me that it was not until 2009, when I called that year’s series ‘Gaza: Morality, Law and Politics’ (Gerry Simpson contributed to it), that I realised fully that one could not think well about morality and politics if one did not consider the relations of law to both. Lectures on reconciliation, terrorism, multiculturalism, the invasion of Iraq and others did, of course, explore whether this or that conduct was lawful and whether the law on this or that was adequate. How could they not? But they did not discuss the place of law in the formation of a political persona that, for convenience, I will simplify as being citizenship. The reason was that I did not think of law as being an ethically interesting domain in its own right, an ethical domain sui generis, interdependent with and answerable to morality and politics, but a servant of neither. (Soon I will explain what I mean by ‘sui generis’.) I thought it was only morality that enabled law to transcend its role as (roughly) an instrument of social organisation and dispute resolution. Such a confession would, of course, be of no interest if that failing were uncommon. The anxiety that the relations between ethics and politics are at times troubled beyond resolution has been part of Western thought at least since the time of Socrates, but partly because of Socrates the ethical was assimilated to the moral. The place of law as an ethical realm sui generis was neglected. When I speak of Socrates I mean the character as Plato’s artistry gave him to us. He, rather than the historical Socrates and his arguments, has haunted Western thought. The lectures attempted to create a conversational space in which it was possible to speak of the dignity of politics without that sounding like an oxymoron, which entailed retrieving from oxymoron status a conception of the serious place of moral considerations in politics, domestic and international. True, when we suggest those expressions might be oxymorons we do it with a smile, but it is an awkward one, I think. We are not sure whether we believe that politics can have dignity, but doesn’t now and won’t in the foreseeable future, or whether the very concept of dignity has, at best, only an attenuated application to politics. Or, to put it another way: we don’t know viii

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whether we are disillusioned with our politicians while having a firm hold on the standards that inform our disillusionment, or whether we are loosing our grip on the concepts that make those standards what they are. It is hard for us to speak seriously of politics (or of anything else – teaching or nursing for example) as a vocation rather than as a profession or career; of political honour (when was the last time a politician resigned for the sake of honour rather than brazening things out?), or even of government, rather than of running a country as though it were an enterprise. This part of our language doesn’t have much life in it. We seldom question why being successful in business should be thought a qualification for government, or even for the post of treasurer in a government. When ways of speaking begin to die, the realisation that it is happening usually sneaks up on us. By the time we notice it is often too late to do much about it. Think of how managerial newspeak colonised universities. If we can’t speak with authority and authenticity of the dignity of politics, then morality, often of a moralistic, high-minded kind, tends to usurp ethical concern, or we are tempted first to disillusionment and then to cynicism. It will be evident by now that I do not equate ethics with morality. Though the distinction between morality and ethics is an old one, there is no agreement about how to draw it. I think of the ethical as a realm in which we think about how to live, about the meanings of things in our lives. We think about morality, of course, but also about law, politics and other matters – about the demands intrinsic to the various forms of love and how to rise to them, for example. I think of these, as I shall later try to explain, as distinctive realms of value, sui generis, in complex ways interconnected, and sometimes in conflict. Love in all its forms has ethical standards intrinsic to it, standards that distinguish love from its many false semblances. Love of one’s friends may conflict with love of country, both with morality, morality with politics and both with law. So, though I write in the singular of ‘the ethical’, I would not do so of the values in its domain. There are many conceptions of morality – not only of what to do but ix

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also of what it is, what kind of place it can or should have in our lives. The same is true for the other forms of the ethical. Betrayal, murder and cruelty are examples of moral wrongs. When Socrates said that it is better to suffer evil than to do it, he had such wrongs in mind, among others, of course. When he said that he could not give up philosophising even under the threat of death because ‘an unexamined life is not worthy of a human being’, he expressed a sense of ethical impossibility, but it would go against the grain for us to call this ‘moral impossibility’. Like Socrates, some people believe that they must live their lives with lucidity for reasons that are not prudential: they may believe that they must seek a truthful understanding of their past, though not because they hope it will have practical benefits for their future. Others believe that understanding the past matters only insofar as it serves the future. From the first perspective the second might look superficial, but surely not immoral.

*** Commenting on my work Sophie Grace (then Tim) Chappell said that I do not stand on the battlefield of theories offering a new defence of one of the theories or arguing for a hybrid of two or more of them. The theories Chappell had in mind were in moral and political philosophy – deontology, utilitarianism, and virtue ethics. You don’t have to be a contender – as I assume many readers are not – in order to recognise the battlefield and the assumptions that constitute it. In this introduction I invite readers to occupy a perspective from where the assumptions are more visible than they are to the combatants and from where what is at stake in the battles looks very different. To value something because we see dignity in it is to respond to a dimension of it that cannot be fully accounted for by its instrumental value. Dignity is a value sui generis. That might sound like an academic term of art that hides obscurities rather than clarifies or banishes them. I shall now try to explain what I mean by it and hope x

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the reader will come to see it as an expression of convenience that means nothing mysterious. Morality is the form of the ethical in which the point can most easily be made. Courage is a virtue that is useful to achieve things that matter to most human beings and that can be characterised without ethical concepts. It is obviously useful in any society that requires some members to risk their lives because of their roles – policemen and soldiers for example. It is useful for individuals not to fear bullies who would deflect them from pursuing what matters to them. But courage is valued also because it is noble; a value inseparable from its functional value, but that cannot fully be appreciated by reference to it. One also needs courage if one is to possess other virtues – fidelity, compassion, justice and truthfulness, amongst others. Those virtues also have obvious functional value, but as with courage, we value them in ways that transcend that value. Fidelity in friendship has obvious practical value in sustaining the goods of friendship, but the terribleness of a serious betrayal of friendship is not accounted for by whatever functional role it possesses. Victims of injustice often suffer physical and psychological trauma, but they also suffer the injustice of its affliction, which is often an irreducible focus of their torment and of their need for the injustice done to them to be acknowledged in the spirit in which the physical and psychological damage is ameliorated. Apology, forgive­ness, atonement or punishment are appropriate responses to that resentment and torment. Compassion and empathy must be informed by that realisation. The demand of the indigenous peoples of Australia for an apology is an example. Apology is not enough, but the cultural warriors of the right who said that it was irrelevant, that the real moral work of reconciliation is done in the practical work of ameliorating the misery of many aboriginal people, did not realise – or refused to realise – that the work of amelioration will count as reconciliation only when it is acknowledged that the injustice of dispossession created the need for it, and infuses the felt misery, through and through. That is why people were deeply moved when xi

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Kevin Rudd apologised, as prime minister, on behalf of the nation. Simone Weil expressed beautifully what I am trying to convey: The just must be thanked for being just, because justice is so beautiful a thing … Any other gratitude is servile and even animal. The only difference between the man who witnesses an act of justice and the man who receives a material advantage from it is that in such circumstances the beauty of justice is only a spectacle for the first, while for the second it is the object of a contact and even a kind of nourishment.

We should therefore not allow slogans like ‘morality is made for human beings, not human beings for morality’ to tempt us to deny that morality is sui generis because we believe the alternative is religion or metaphysics. Against such a slogan I offer another one whose simplicity I hope is not misleading: morality is not the ser­ vant of our desires and purposes: it is their judge. There appears to be no end to which we aspire, no purpose that we wish to realise, that is not answerable to morality. We may all desire happiness, but morality judges not only the means by which we can secure it, but also the kind of happiness we can decently enjoy. So it is with other ends like wellbeing or flourishing: morality judges the kind of wellbeing or flourishing that we hope to achieve. Morality judges not only the means by which we achieve our purposes: it also judges the purposes. ‘Humanity’ in slogans such as ‘morality is made for human beings’ is already an ethically inflected term, just as it is when we speak of seeing or failing to see the full humanity of people or peoples, of dehumanization, of the common humanity of all the people of the earth or that some ways of being and living are not worthy of our humanity. For that reason the appeal to what it is to be human implicit in such slogans, fails to do the work its rhetorical function sets for it because the appeal is not to an ethically neutral conception of humanity. Indeed one might say that someone who lives out the debunking intent of those slogans will live a morality not fit for a human being. But there is, I believe, no ethically neutral conception xii

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of humanity, nothing reason can deliver that will adjudicate between the various, sometimes conflicting, ethically inflected ways of speak­ ing of our humanity. It is not mysterious that we value courage for its nobility as well as for its capacity to serve and protect what we value as individuals and as a community. It is not mysterious that victims of injustice suffer not only the natural physical and psychological harms that are char­ acteristically the consequences of injustice, but also the injustice done to them, which is an irreducible source of torment. That there are conceptions of morality and other forms of the ethical that are sui generis is a cultural achievement of entirely human origin, (though, for reasons I have given, it is misleading to say they are inventions, products or even creations). I do not believe that they need (or have) metaphysical or religious support: they are not discoveries of how things are in the very fabric of the universe, nor can they be under­ written by whatever a theory of human nature could deliver to us.

*** Earlier I said that the reason why the Wednesday Lectures did not explore the complex relations between law, morality and politics, was because I had assumed that insofar as law has an ethical status that transcends its role as an instrument of social organisation and control, then it is because morality confers that status on it. Scepticism about whether morality should have a serious place in law has a long history, but it is hard to see how now, for us, any theory of the matter could justify the denial that the moral wrong of murder or rape is intrinsic to its criminality. My qualification ‘now, for us’ registers the acknowledgment that what I am about to say is not a claim about the essence of law or citizenship: it is about how, contingently, it has historically evolved for us. It could have been otherwise. Like morality conceived as sui generis, how it has come to be is not underwritten by reason, by the facts of human nature or the laws of any science. But the contingency of its evolution does not make the inseparability of law and morality dispensable or xiii

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even peripheral to our understanding of law and citizenship. Fear of the consequences of the acknowledgment of contingency for our justified confidence in what we ethically believe, goes deep. But to acknowledge, as I argue in my contribution to this book we should, that our ethical commitments and reflection on them is inescapably in medias res, in the midst of things culturally and historically, should not make us afraid of relativism. As Bernard Williams puts it well in Philosophy as a Humanistic Discipline: Precisely because we are not unencumbered intelligences selecting in principle from all possible outlooks, we can accept that this outlook is ours just because of the history that has made it ours; or, more precisely, has both made us and made the outlook as something that is ours. We and our outlook are not simply in the same place at the same time.

We are answerable in law not just for harms we cause one another, but also for the moral wrongs we do when we cause that harm, wrongs that are the focus of a grievance whose character is not fully explained by reference to the harms that can be characterised without refer­ ence to moral concepts. Such moral wrongs are, for the most part, against other human beings considered only as human beings or, perhaps, as fellow human beings. Indeed acknowledging that wrongs are not reducible to the natural harms we cause others is a form of the recognition of them as fellow human beings. From the point of view of morality, wrongdoers whose acts fall under the criminal law act in the first instance against their fellow human beings. However, it is not only as human beings that we are answerable to one another under law: it is also as fellow citizens. To be sure that we are answerable not only for the harms we cause one another when we wrong one another, but also for the wrongs, is part of what it means to be a citizen, a member of a political community. But the fact that the victims of wrongdoers are wronged by their fellow citizens is fundamental to the description of those wrongs as crimes. The difference shows in many ways. If the victim forgives the person who wronged her, then she forgives that person as a fellow human xiv

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being rather than as a fellow citizen; forgives a wrong rather than a crime. The law responds to the action as a crime; it cannot forgive the perpetrator of the crime, but it can show mercy. And though no one has the right to demand that the victim forgive, citizens can demand that a relevant political authority pardon a criminal. The criminal offends against his victim twice over, as it were: as a fellow human being and as a fellow citizen. Because he acts against her as a fellow citizen, he offends against the community of citizens whose law he has broken. What I said about forgiveness I would also say about remorse: when it is for a criminal deed it is for that deed considered as moral wrong rather than as a crime. In much of my work I have argued against the common idea that remorse is an emotional response to an independent understanding that one has done wrong, violated one’s principles, or failed to live virtuously. Instead, I have argued, it is a form of recognition of what it means that we have wronged someone. It is a form of recognition in which how terrible it is for the person one has wronged to suffer that wrong and of how terrible it is that we did it, come simultaneously, each interdependent with the other. “My God, What have I done? How could I have done it?” These are the characteristic expressions of remorse; bewildered remembrance or perhaps, for the first time, a full realisation of the meaning of what one has done; incredulity at the fact that anything could have that kind of significance. They are not really questions. Insofar as they carry an implication that we did not fully know what we were doing, it is not failure of the kind that would interest a court, or that leads us to say that the criminally insane do not know what they do or that they do not ‘know right from wrong’. Just as contact with great goodness – when good is constantly returned for evil, for example – inspires wonder that there could be such a thing in the world, so in the case of remorse we are painfully struck by the mysterious and inescapable reality of the moral realm. Remorse is, I believe, a state in which we come to the fullest and most authentic realisation of what it is to wrong someone. Ironically, perhaps, in the incredulous realisation of the meaning of what we have done xv

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we are awakened to the full reality of another person – our victim – to a degree that is rare. Most of the time we are only partially aware of the full reality of others; sleepwalkers through the forms of inter-subjectivity. Remorse is unique among the forms of human suffering because we cannot legitimately seek consolation in the knowledge that others are as guilty as we are, or even more so. The lucid, remorseful recognition of what we have done leaves us, as I put it in Good and Evil: An Absolute Conception, ‘radically singular’, because we cannot seek uncorrupted consolation in fellowship with others who suffer as we do. Again I would not claim that this is true of every serious con­ ception of remorse, but for us, heirs of traditions that taught that every human life is a miracle, inalienably precious, or as we now more commonly say, possesses inalienable dignity, this should be a recognisable conception of it. In the generality of its occurrence it is partly constitutive of our understanding of what it means to do and suffer wrong. In individual cases, it reveals its deepest meaning, to which we are often partially blind. That is why its characteristic expression is pained bewilderment and incredulity. Evidently it would be a parody of a murderer’s serious remorse if he were to express it by exclaiming, ‘My God what have I done! I have violated the criminal law, and offended against the constituency of law-abiding citizens?’. As citizens we can hope that criminals are remorseful. We may even believe that it is intrinsic to some of our duties as citizens to require our judicial system to establish conditions of sentencing and punishment that would enable them to be remorseful, for their sake and for the sake of their victims, rather than because their remorse would give us reason to hope that they would not reoffend. But usually remorse should play little, if any, role in sentencing criminals or in the conditions of their release. In most circumstances, it is sufficient for them to ‘have paid their dues’, in order for them to be accepted back into the civitas. That, of course, does not mean that we should welcome their company in many of the forms of social life. xvi

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I hope that what I have said shows why law matters to us in ways that go beyond its value as a form of social organisation. We care about it because it creates a community that requires and enables its members to express their concern about the wrongs some of them suffer and to hold those who wrong them justly to account. It ensures, because justice requires it, that wrongdoers remain part of the civitas, morally, legally and politically, rather than banished. This gives point to speaking of the dignity of law, but – and this is the drawback to which I referred earlier – it makes it look as though morality confers that dignity by adding to instrumental value something that transcends that value. But there is more. In a paper written post-September 11 in which he lamented proposals by prominent American jurists to render torture lawful in some circumstances, Jeremy Waldron said he was ashamed at the dishonour they had brought on American law and jurisprudence because they had proposed something which is entirely contrary to the spirit of ‘our form of law’.1 He writes: It is dispiriting as well as shameful to have to turn our attention to this issue … I want to place particular emphasis on the fact that these efforts to modify the prohibition on torture are undertaken by lawyers. Sure, our primary objection to torture ought to be articulated in regard to the immediate situation of those who are going to suffer the treatment that Dershowitz, Bybee, and Yoo appear to condone. But the defense of torture is also shocking as a jurisprudential matter. That views and proposals like these should be voiced by scholars who have devoted their lives to the law, to the study of the Rule of Law, and to the education of future generations of lawyers is a matter of dishonor for our profession. Reading the memoranda of Judge Bybee and Professor Yoo and the mooted proposal of Professor Dershowitz shook my faith in the integrity of the community of American jurists. 1

Jeremy Waldron, ‘Torture and Positive Law: Jurisprudence for the White House’, Columbia Law Review vol.105, no.6, October 2005.

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The prohibition against torture, he goes on to say, is emblematic of the spirit of that law: expressing a value that is constitutive of what he calls ‘our’ law. Waldron says that law ‘is not brutal in its operation; law is not savage; law does not rule through abject fear and terror, or by breaking the will of those whom it confronts. If law is forceful or coercive, it gets its way by methods, which respect rather than mutilate the dignity and agency of those who are its subjects … There will be an enduring connection between law and respect for Human dignity.’ Waldron believes, I am sure, that breaking the will of a person by torture or by other means is always morally terrible, but if I understand him he also believes that the jurists he criticised had dishonoured the law as the expression of a value sui generis. For him, the law against torture has an inexpungeable moral dimension, but that does not exhaust its ethical dimensions. He offers an ethical perspective on what it can mean to break the law, which is different from but not in opposition to, those offered by morality and politics. Indeed he says that ‘in the end, a legal prohibition is only as strong as the moral and political consensus that supports it’. He notes: ‘And there is the difficulty. The moral and political consensus is weak and uneasy’. Here we see a conception of law as answerable to morality and politics, but whose distinctive value cannot fully be explained by the way it is answerable to them, singly or taken together. Waldron’s criticism, from the perspective of the integrity of law as a value sui generis, of the jurists who justified some forms of torture, enables me to illustrate what I have been saying about the complexity of the relation between morality, law and politics. Consider the following possibilities. Someone who believes that torture cannot be justified morally might nonetheless oppose it becoming lawful, not because of the prudential reasons for which such a stand is often justified – the bad consequences that might ensure were it to become lawful, including the bad moral consequences for judicial and penal institutions and other public initiations – but because she believes, as Waldron does, that torture is an offence against the essential nature and dignity of law. But a politician might believe, without xviii

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inconsistency, that torture can never be morally justified and that it is an offence against the spirit of law as Waldron understands it, but that nonetheless it must be done in certain circumstances – to protect lives, of course, but also to protect the very conditions of political association. Torn between incommensurable imperatives, political, legal and moral, such a politician might say that if she is true to the responsibilities of her vocation she must sometimes do what morally and legally she must not do. Just now I distinguished between protecting lives and protecting the conditions of political communality. A quote from an article that David Grossman wrote for the UK Guardian when Israel was repeatedly attacked by suicide bombers will help me explain why. He described the effect of constant suicide bombings on life in Israel: Just a few weeks of life in the shadow of terror will show every nation that believes itself enlightened just how rapidly and sharply it can turn needs into values, let fear determine its norms. Terror humiliates. It rapidly returns a human being into a pre-cultural, violent and chaotic existence. It determines where society’s breaking point is. It entices certain groups, not small ones, to join it, and to actively seek to use force to destroy and crush everything they hate. Terror contains something that acts like a decomposition enzyme – the decomposition of the private human body and the public body – A country that fights terror fights not only for the physical security of its citizens. It also fights for their reason to live, for their humanity, for everything that makes them human and civilized.2

Grossman was not trying to defend the torture of terrorists in such circumstances. What he said should not be enlisted in support of the claim that there comes a point when the sheer number of lives lost to terrorist attack justifies torture. Grossman drew attention to how the unrelenting constancy of terrorist attacks can destroy something that is not measured in the number of lives lost in those attacks. 2

David Grossman, ‘Terror’s Long Shadow’, Guardian, 21 September 2001.

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They destroy the conditions of a life that is ‘human and civilised’, the conditions of a civil political space – the conditions of political communality, in fact. In such circumstances one would seriously mischaracterise the responsibility of politicians to protect those conditions as the responsibility to protect the lives of their citizens, though if they do the former they will also do the latter. It is also important to see that more is at stake here than national self-interest or the national common good, even when these are conceived as having moral considerations intrinsic to them. Some people believe that it is sentimental to hold nations to account morally for their conduct towards one another, especially when they are at war or engaged in armed conflict, as we now are with ISIS. They believe that for the sake of the national interest, for the sake of the common national good, we should severely curtail the rights of suspected terrorists and be prepared to torture them if that would save many lives. They believe that the concept of the national interest marks a morality-free zone, not because they would deny that the state should sometimes be answerable to morality, but because they believe that on those occasions morality is a constraint external to the concept of the national interest, often compromising it. For other people, however, the concept of the national interest is inseparable from the conditions under which a politically serious person could love their country lucidly and without shame. For them moral considerations are not external to a politically serious and realistic conception of the national interest: they are intrinsic to an enriched conception of it. That is one of the things that, for them, distinguishes love of country from its false semblance, jingoism. They will remind people that although politicians have a defining obligation to protect the lives of their citizens, they are also prepared to send thousands of them (sometimes conscripts) to fight and die in wars, not so that more lives will be saved than would be lost, but so that the values that are undermined in the name of national security are protected. The difference between these positions is not just a difference about how to act ethically: it is a difference in the frame­ work within which ethical problems – moral, legal and political – are xx

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conceived and about the kind of importance they can have in our lives. I have often argued for the second position – that terrorists threaten only our lives, but it is we who threaten our values by the means we use to protect ourselves. Often that argument has weight, but in circumstances such as Grossman describes, it would be mistaken, crass indeed, to suggest that citizens abdicate some of the defining ideals of their national life because they fear for their lives.

*** The belief that morality and politics may at critical junctures conflict irreconcilably has been expressed, albeit in different forms, at many times in our cultural history. Machiavelli is the best-known example, though I have in mind the man who said that he loved his city more than his soul and made it clear how dearly he cared for his soul, rather than the demonised figure of popular culture. More recently and in a different idiom, we have Max Weber’s classical essay ‘Politics as a Vocation’, in which he distinguished between an ‘ethics of absolute ends’ and an ‘ethics of responsibility’. He spoiled the distinction by identifying the ethics of absolute ends with Christian pacifism, but its relevance survives that. Socrates (and Plato, I think) believed that there is a conflict between ethics and politics because they believed that it is better to suffer evil than to do it. In the dialogue in which Socrates announces this precept, his incredulous interlocutors remind him that anyone who believes it will be unable to protect themselves and those who are dependent on them against anyone who is cunning enough to ensure that they have only evil means of defence. Only a dishonourable person, one who is shameless, they went on to say, could renounce so radically the means to protect those for whom we are responsible – who might be ‘racked and castrated and blinded with hot irons [then] crucified or burnt at the stake’. The Socratic ethics is not what Weber called an ethics of absolute ends because Socrates was not a pacifist. He knew that force had xxi

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often, and fiercely, to be met by force. Only when the use of force was unjust or evil did he demand that it be renounced. Nonetheless, like the ethics of absolute ends, his is a morality of renunciation and for over-determined reasons, renunciation cannot be the ethics of politics. If there is anything that looks like an absolute requirement on politicians, it is that they must protect the conditions under which political communality may survive into the future. For that reason an important strand of Western political thought has been haunted by the belief – or fear – that morality and politics may be in deep and irreconcilable conflict, not because politics is too disreputable for a morally good person to take part in, but because at critical points moral and political conduct answer to in­ com­mensurable conceptions of responsibility, both of which will be acknowledged by any serious person, or at any rate, perhaps more accurately, anyone who recognises that our humanity is con­ stituted in ethically diverse ways. That does not mean, of course, that morality and politics are not in deep ways answerable to one another. Morality cannot ignore the claims of politics or politics those of morality. Indeed, for almost everyone who has taken the conflict seriously, the mutual answerability of morality and politics to one sometimes generates tragic conflict. I would now add law as a party to that conflict. Another longstanding and powerful strand of Western thought debunks that perspective. It holds that the conflict that is portrayed as between morality and politics is really a conflict within morality and one, moreover, that can always be resolved by the creative adaptation of morality to political circumstances. This strand of our tradition takes itself to express the only conception of morality that has thoroughly and clear-sightedly purged itself of religious commitments. If morality is of human origin, then, I suggested earlier – it is almost irresistible to infer – morality’s purpose must be to serve human wellbeing as that can be understood without prior moral commitment. Sometimes, this thought continues, it will be necessary to recast morality creatively so that it can better fulfil its purpose. From this perspective, the belief that morality and the xxii

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world might be tragically mismatched looks like precious and selfindulgent muddle because it is of the essence of morality to respond creatively to complex circumstances. There can be little doubt that this latter conception is gaining ground and that it expresses the spirit of the times. People often speak of morality as though it often needs updating if it is to serve its purpose through changing times. If, however, one accepts that morality is sui generis, that it does not serve purposes that can be identified independently of its distinctive concepts, and that the same is true of law and politics, then there is no reason to think, that we can always adapt ethically to circumstance to prevent terrible suffering. Contemporary discussions about ethics and politics, especially about morality and politics, are more often conceptually structured by the tension between the two strands of our tradition that I have sketched than we acknowledge or even realise if our sense of the possibilities has been limited by the assumptions that constitute the battlefield to which Sophie Grace Chapell referred. Our failure, especially, to realise fully how often the Socratic tradition informs our sense of the conflict between morality and politics often leaves us with only a partial grasp of the concepts under which we describe what is ethically at stake for us in politics. This is both cause and effect of the impoverishment of our political discourse that makes it difficult for us to speak unselfconsciously of the dignity of politics. And it is one – perhaps the main – reason why the ethical complexity of politics tends to become reduced to a conflict within morality, why the ethical responsibility of politicians is identified as moral and why principle in politics is almost always taken to be moral principle.

*** For Socrates – I am again thinking of the character that Plato created – the claim that a politician might rightly say that if she is to answer to the distinctive responsibilities of her vocation she must do what morally she must not do – would be an example of xxiii

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an ethically crooked proposition, one that posits a conflict between ethical necessities that cannot exist for someone who properly understands the claims of morality. When the claim of morality is fully understood, he believed, it silences voices that tempt us to believe that there are ethical imperatives that could legitimately conflict with it. Many people, including philosophers, believe it can never truly be ethically necessary to do what is morally wrong, though they are not at all attracted to the Socratic affirmation that it is better to suffer evil than to do it. Others who accept that there can be situations in which one does something morally terrible whatever one does and, even, that on some of those occasions the concept of justification has no application, believe that in such situations the conflicting ethical imperatives must be moral ones. Michael Walzer, who has written extensively on moral dilemmas politicians may face, believes that they are always moral dilemmas. He believes that what I have been characterising as a conflict between morality and politics, conceived of as different, interdependent, but sometimes conflicting, realms of ethical responsibilities, is a conflict within morality made especially dramatic by the fact that in politics, especially on occasions of what he calls ‘supreme emergency’, actions can have far reaching and terrible consequences. Most situations in which someone does something morally terrible no matter what they do, are situations in which, nonetheless, one course of action strikes them as the lesser evil. They will then be clear about what to do, and others who understand their situation are likely to agree. At other times, however, the concept of a lesser evil and therefore of justification, lapses. In those situations, good people can disagree about what they must do without accusing one another of error or bad faith. More importantly for the claims of this essay, they cannot know in advance what they will feel morally compelled to do. That being so, it is hard to see how a politician who believes she cannot do what is morally terrible, even when the existence of the nation she leads is threatened, can be criticised for abdicating the distinctive responsibilities of her vocation if her dilemma is xxiv

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conceived to be within morality. If what she does in protecting the nation is one horn of a moral dilemma about which morally good and informed people can disagree, then she cannot know in advance what she will do. Yet we know she will be criticised. She will be told that she should not have become a political leader because it is of the essence of pol­i­ti­ cal responsibility that politicians must do what is neces­sary to protect the nation and the distinctive life of its people. Lucid politicians, they will say, must know in advance what the responsibilities of their vocation are and be prepared to act on that knowledge against even the most serious claims of morality.

*** I remarked earlier how varied are the ethical inflections of the way we speak of humanity when we do not mean to speak directly of the species Homo sapiens. The ethical inflections are diverse for two reasons. Firstly there are many forms of the ethical – morality, politics, law and love for example. Secondly, the forms of the ethical are also various because there are different conceptions of morality, of politics, of love and so on. ‘Be a human being for once in your life’, is not an injunction to be more fully a member of the species Homo sapiens. Nor did Socrates mean that an unexamined life is not worthy of the species Homo sapiens. Sometimes such ethical inflections are the ex­pression of morality; sometimes they are not. Always reference to humanity functions not as an explanation of why someone should do some­ thing, but as an ethical reminder of what it means to be human. One might therefore wonder how much the concept of humanity helps us to understand the ethical inflexions associated with it. Perhaps the real ethical and conceptual work is done by the concept of a person or a rational agent. Those concepts do not conflict, as the ethically inflected ways of speaking of our humanity appear to, with the obvious possibility that beings who are not human beings – aliens for example or, one day, robots – might become fully part of our xxv

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ethical community, including our moral community. At issue here is not whether the characteristic lives of human beings generate ethical content for human beings. The more fundamental question is this: Is the concept of humanity necessary to our understanding of what it means to wrong someone, of what it means to be morally necessitated in ways I characterised earlier, and, therefore, to our understanding of the distinctive kind of seriousness morality can have in our lives, as I characterised it in my account of remorse, for example. I cannot speak adequately to that question in this introduction, but I would draw attention to the striking fact that we often speak of our humanity as something to rise to, something we can betray, and something we can regard as a gift. ‘Humanity’ as it is thus ethically inflected is not a natural kind of concept, which is to say that if it turned out that beings towards whom we behaved as though they are human beings were in fact not members of the species Homo sapiens, we would not thereby believe we had been mistaken in treating them as human beings. We would not necessarily think that either we had been mistaken in treating them as fellow human beings or that the scientific classification of what it is to be a member of the species Homo sapiens is mistaken. The reasons for this, which I have developed in A Common Humanity: Thinking about Love and Truth and Justice and in The Philosopher’s Dog are, I believe, to be found in Wittgenstein’s Philosophical Investigations. If I am right in claiming that our ethically inflected ways of speaking of humanity can extend to beings who are not members of the species Homo sapiens, then one reason why people believe the concept of a person or a rational agent does the work that is carried in those inflections, loses its attraction. How distant from us those beings can be in their appearances and ways of living and be accepted into the fellowship of humanity, cannot, in principle, be determined in advance by any theoretical considerations. We must see how we respond.

*** xxvi

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Because we have lost a sense of the dignity of politics and, inter­ dependently with that, of politics as a vocation, we find it hard to think of politics as a realm that could define who one is in a way that goes deep ethically. For that reason while many people would agree that our humanity is ethically constituted in diverse ways, that there are ethically diverse realms of life in which we are called upon to rise to our humanity, they also believe that politics cannot be one of them. Indeed some might say that our humanity is fully realised only when we are disengaged from politics – that the business of politics is to free us from politics so that our humanity can flourish in various essentially apolitical forms. Hannah Arendt offered a radically different way of thinking about politics and our humanity. When I think of Plato’s Socrates, I have a sense of someone astonished – struck in wonderment – at his encounter with the ethical in the guise of morality. In a distorted form Callicles, his greatest interlocutor, understood that. It provoked him to say in response to Socrates’ affirmation that it is better to suffer evil than to do it, that if Socrates is right, then ‘the whole of human life is turned upside down’. Reading Arendt I have a similar impression of someone celebrating the wonder of her joyous but troubled encounter with the ethical in its perhaps most interesting political form. It strikes me as apparent in many of her works, but its implications for what I have been arguing shows in her discussion of why genocide should be called a crime against humanity and why it is a paradigm of that crime (Eichmann in Jerusalem: A Report on the Banality of Evil). To be sure that is not a joyous discussion, but the celebration of diversity as partly constitutive of the political realisation of our humanity, is implicit in it. To show its bearing on this introductory essay, I must elaborate her account of the ethically diverse nature of genocide. Thinking about what should be the proper characterisation of Eichmann’s crimes, Arendt was impressed by the remark of the French Prosecutor at Nuremberg who said that the Nazi crimes against the Jews and Gypsies were crimes against humanity because they offended against ‘the human status’ rather than because they xxvii

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were particularly inhumane. That led her to claim that we should think of genocide as ‘an attack upon human diversity as such, upon a characteristic of the human status, without which the very words “mankind” or “humanity” would be devoid of meaning’. The tone in which she speaks of humanity when she explains that genocide should be a crime against humanity because it is a crime against human diversity is obviously ethically inflected, but the inflection is not moral. Indeed, those who objected to what they took to be her cold tone in Eichmann in Jerusalem did so partly because they believed that the ethical dimension of genocide, what makes it ‘the crime of crimes’, is its moral dimension. That is why they thought her account of genocide to be absurd and offensive. It does, of course, sound like a parody of what the Jews and Gypsies suffered under the Nazi genocide to say there was torture, in­ finitely many forms of degradation, brutality and murder in the spirit of ridding the earth of vermin, but what really captures the essence of that and other genocides is that they are crimes against human diversity. But that is a just parody only if one takes the phrase ‘an offence against human diversity’ as intended to direct us to the moral dimensions of genocide. I hope my discussion has made clear that it does not. Of course genocide has many moral dimensions: I discuss them in my contribution to this book and will quote some of that discussion here so that it is immediately before the reader’s mind: Survivors of genocide who know of the genocidal intentions of their persecutors suffer different and deeper trauma than those who have survived mass murder only. People who are victims of genocide and the contempt that has been intrinsic to our paradigms of it suffer terrible natural harm, such as pain and fear, and terrible evils such as murder, rape and torture. In addition they suffer the distinctive evil of being treated as pollutants of the earth, as vermin or in other ways as undeserving a place in the world. Worse still, some of them suffer the knowledge that their loved ones were the victims of the same contempt. That conditions, through and through, the nature of their trauma. xxviii

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The moral dimensions of genocide can change without the crim­ inal or the political dimensions doing so. That is why crimes of markedly different moral severity can fall under the concept and still retain the gravity inseparable from it, even when, as in the case of the Stolen Generations, not a single murder was performed in the service of a genocidal intention. From one perspective the diversity of peoples and their cultures is just a contingent fact about the species and its biological and social evolution. From Arendt’s perspective, its manifestation in the political realm, in political practice, became constitutive of our humanity in one of its ethical manifestations. When I discussed Waldron’s response to jurists who defended torture, I said that his understanding of law and its distinctive ethical dimension as something sui generis offered an ethical perspective on what it can be to break someone’s will that is different from, but does not compete with, the moral perspective on it – that, indeed, it depended on the moral perspective. I think the same is true of the ethical perspective on genocide as a crime against human diversity, against the human status. Arendt’s account of genocide, as I have elaborated it’s ethical complexity, explains why genocide is rightly called ‘the crime of crimes’, the ‘gravest’ of the crimes against humanity, though some of the crimes that count as genocide could not soberly be described that way if one took those expressions to be moral descriptions. It is therefore an example of the ethically diverse ways we speak of humanity. Her account also shows up as relatively superficial the idea that genocide is a crime against humanity because, as the United Nations General Assembly of 1946 says in its preamble, it ‘results in great losses to humanity in the form of cultural and other contributions represented by these human groups’. More import­a ntly for the purpose of this discussion, because she was so deeply a political being, Arendt saw more clearly than others that crimes against human diversity are crimes against the community of nations, as that is constituted under international law and, at the same time, crimes against the political order itself. For her, genocide, is the paradigmatically political crime. It can never be committed xxix

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as a lucid response to what is perceived to be political necessity. When genocide and politics are seen from Arendt’s perspective, ‘the political necessity of genocide’ is an oxymoron.

*** I hope my discussion has taken us to a point that offers a perspective on the ethical complexity of politics quite different from those available on the battlefield when ‘dirty hands’ is the topic. Politicians soberly aware of the responsibilities of their vocation (‘role’ or even ‘office’ are concepts that are too shallow in this context) will under­ stand the defence of the existence of their nation, considered not only as a body of citizens, but also as a people, as being a defence of the kind of diversity without which the very words ‘mankind’ or ‘humanity’ would be devoid of meaning. In such circumstances they act to protect their own nations and also on behalf of humanity as it is realised in politics, especially in politics between nations. It is therefore important to see that the responsibility of politicians to protect the conditions that make their nations homes for distinctive peoples, even at the cost of acting against morality and law, is not an expression of excessive nationalism, let alone of taking the nation or state to be of absolute value. It is, to the contrary, a form of loyalty to the political expression of our humanity. Were political leaders not prepared to do this, were they to follow a morality of renunciation, then ‘the human status’, as realised in the diversity of peoples, would be hostage to the improbable good fortune that the nations that com­ prise that diversity would face no enemy that forced them to choose between defeat and doing evil. That, I suspect, is why citizens, aware of the ethically complex dimensions of their political identity, will always expect their leaders to act against morality and law if that is the only way to protect their life as a people. It is why they do not look upon a moral refusal to do evil for the sake of the nation as an ethically serious option for someone who is prepared to accept the burden of their political identity. I doubt that Simone Weil would agree, but in The Need for Roots she tells us what is at stake: xxx

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We owe a cornfield respect, not because of itself, but because it is food for human beings. In the same way we owe respect to a collectivity – country family or any other – not for itself but because it is food for a certain number of human souls. One sack of corn can always be substituted by another sack of corn. The food that a collectivity supplies for the souls of those who form part of it has no equivalent in the entire universe.

Does what I have said about the tensions between morality, law and politics justify what politicians will do if the existence of their nation is under serious threat? When people ask that question, ‘justified’ normally means morally justified. Clearly, morality cannot justify politicians in such circumstances. Does that mean that the political imperative is higher than the moral imperative, that it should override it? I believe that there are no grounds external to morality and politics that could support that ‘should’. It is of the utmost importance to remember, however, that the times when the existence of a nation and hence the historical and cultural identity of the peoples it protects are under real threat are rare, whereas the times when politicians claim such a threat exists are frequent. We must therefore always be on guard, not against the threats politicians proclaim, but against their tendency, to betray, with our connivance, love of country to jingoism or what Ghassan Hage calls ‘paranoid nationalism’, and therefore the values we cherish.

*** Earlier I spoke of a community of nations constituted as a community by the consent of its members to answer to international law, or at least those parts of it that deal with crimes against humanity, torture, genocide, and the laws of war, for example. In the conclusion of this essay, I must acknowledge, however, that there is considerable disillusionment with international law amongst citizens, practising lawyers and in the academy. It has at least two important sources xxxi

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– the fact that its implementation is depressingly partial (in both sense of the word) and that it is perceived to be Eurocentric in its applications and in some of its fundamental concepts. The UN resolution of 1946 to which I referred earlier described genocide as a ‘shock to the conscience of mankind’, as ‘contrary to moral law and to the spirit and aims of the United Nations’ and as a crime ‘which the civilized world condemns’. Raphael Lemkin, who coined the term, and who developed the first account of the concept, believed passionately that its establishment in law was an imperative for a ‘civilised jurisprudence’. Many people have pointed out that ‘civilised’ is a word that is itself ethically compromised by its association with a racist incapacity of Europeans who formulated international law to see depth and meaning in the lives of cultures that they then described as ‘primitive’, which included the cultures of most of the peoples of the world, some of who were victims of colonial genocides. Racism was then and is now often marked by an incapacity to see depth in the lives of Blacks, Asians and Central and South Americans. At issue here is not the truth of the factual stereotypes to which racists often appeal in order to defend their attitudes, but rather the meaning they are able to see or fail to see in the lives of the peoples they denigrate. When James Isdell, Protector of Aborigines in Western Australia in the 1930s, was asked how he felt when he took children of mixed blood from their mothers, he answered that he ‘would not hesitate for a moment to separate any half caste from its aboriginal mother, no matter how frantic her momentary grief might be at the time’. They ‘soon forget their offspring’, he explained. It was literally unintelligible to him that ‘they’ could grieve as ‘we’ do, that grief for a dead child could lacerate a black woman’s soul for the remainder of her life. One sees what is at issue here if one reflects on why it is impossible to see depth in a face that looks to us as aptly caricatured in the Black and White Minstrel Show face. One could not cast such a face to play Othello. Not even God could see in such a face the full poss­ibil­ity of human expressiveness. (I have elaborated on this at length in A xxxii

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Common Humanity.) For that reason it was unintelligible to most whites, when international law developed after World War Two, to believe that blacks and Asians were able fully to understand the gravity – moral, legal and political – of the ethical expressions used in the 1946 resolution. Because they found it unintelligible, in the sense I illustrated by reference to the Black and White Minstrel Show face, that anything could go deep in the lives of the victims of their denigration, they found it unintelligible that they could be wronged, by ‘us’ or by ‘them’, as ‘we’ can be wronged, that they could under­ stand what it is to do and to suffer such wrong, or have consciences that could be ‘shocked’ as those of ‘civilised’ people could be. To acknowledge, however, that there are no peoples and no ethnic groups, who are as racists see them, is not yet to acknowledge a common humanity with them; not at any rate, if the idea of a common humanity requires that we care about people and peoples when they suffer and when they are grievously wronged. Whether such a requirement on the substantial realisation of the ideal of a common humanity would of itself be sufficient to establish an imperative to an international order under law that would name those wrongs and prohibit them, and to write preambles that would indicate what it would mean ethically to commit those wrongs, is perhaps arguable. But no argument is needed because there is such an order and there are such preambles. Those instruments of law and the ethical concepts in the preambles to them (the reference to ‘the Dignity of Humanity’ in the Universal Declaration of Human Rights and the Convention Against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment, for example) are flawed for many rea­sons. The Eurocentric bias evident in their inception persists in their applications and in some of their defining concepts. That will change, I am sure. But the idea that all the people of the earth share a common humanity will be empty unless the citizens of all nations care and show that they care when their fellows in humanity are grievously wronged. Respect for international law and its enforcement is one of the most important ways to do it. xxxiii

In troduc t ion :

Who’s Afraid of International Law? Gerry Simpson

This book brings together seven essays developed from presentations given as part of Raimond Gaita’s Wednesday Lecture series on the theme of international law and its discontents. The essays explore ways in which international law constitutes a certain way of talking and being, and one that might have both ameliorative and malign effects. This approach has the merit of defying a popular miscon­ ception about international law that it is somehow beside the point, as well as unseating some of the discipline’s own assumptions about its ‘inherently’ progressive nature. In the end, the authors may vary in their assessment of the field but there is some agreement on the way in which international law can be used as a language of apology, aspiration, resistance or critique in relation to an unjustly organised world order. The title of the book also suggests an international legal order that might be felt differently in different places and by differently situated individuals (a point Martin Krygier makes in this volume about the rule of law more widely [or narrowly]). Several questions arise here. On one hand, we might ask whether there is such a thing as an ‘international law’ of which to be afraid? There is no doubt that international law frequently is invoked as a single system of rules and principles in statements heard all the time about activities or acts being ‘breaches of international law’ or in demands that a state or rebel group or, less often, a corporation, acts ‘in conformity with international law’. ‘International law’ here refers either to a specific rule (a prohibition on cross-border toxic emissions or a requirement that states accord immunity to visiting officials) or to a general mood of compliance (to act well is to act according to the strictures of inter­ national law). xxxv

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But it is becoming increasingly difficult to view international law as a coherent set of norms or a single field or, even, a sensibility. And this marks a change. In the late nineteenth century, for example, one could think of international law as a fairly limited set of norms understood and developed by a group of Victorians who shared, to some extent, an internationalist sensibility. Now, the system itself has become much more diffuse and specialised (indeed, there is now a separate subject of international law called ‘fragmentation’). Inter­ national laws, then, might be experienced differently by differ­ent people in different places. In this way, as Raimond Gaita suggests, inter­national law can act on the world like great literature: univers­ ally experienced but in distinctive ways and languages. In that case, who is afraid of international law, and when? Much will depend on the particular conception of international law being advanced. I want to suggest here that international law speaks in four different voices. We might call these anti-hegemonic, aspirational, apologetic and critical. They each appear at different points in the following essays, and I want to now tease out these voices in the remainder of this introductory essay.

Apology

During the Ukrainian crisis there has been a great deal of talk about international law from the various protagonists. But this talk has seemed to sublimate another riskier but perhaps more candid way of speak­ing about the preferences of the major powers. The Russians have wanted to say (and at times came close to saying) that they believe that Ukraine (certainly Eastern Ukraine) is ‘really’ part of Russia or that it falls within their sphere of interest as a Great Power, but they have chosen to emphasise a more acceptable humanit­a r­ ian claim that they had a ‘right’ to protect Russian minorities in former Soviet republics. Likewise, the United States has wanted to tell Russia to keep out of an area it regards as strategically sensitive and (potentially) Western-leaning. But the Obama Administration has concentrated, instead, on international legal arguments about xxxvi

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sov­ereignty and the use of force. Of course, the Americans have an interest in promoting the rule of law but as Vladimir Putin pointed out, they also have a recent history of disregarding the UN Charter and ‘territorial integrity’ (in Iraq, in Kosovo) and a longer history of preserving their own sphere of influence in Central America (through unlawful interventions during the Cold War in Nicaragua, Cuba and the Dominican Republic). This mismatch between legal ideals and political practices pro­ duced a strange moment in diplomatic history. The Western allies were desperately protesting their commitment to a set of legal prin­ ciples they had done much to undermine while the Russians were destabilising a set of legal principles they had repeatedly invoked (condemning NATO’s breach of Serbian sovereignty in 1999, refusing to endorse Bush’s war in 2003). The idea, then, of international law as a form of apology is by now familiar. Here, it is under­stood as an instrument of the Great Powers designed to lend to action that would be facially self-serving the veneer of legitimacy. Sometimes, it will appear then that the Great Powers have very little to fear from international law. There will be an enforcement gap (the removal of Russia from the Crimea seems a distant prospect) or a legal argument of some sort that permits the elite to escape the sanction of international bodies (in his chapter, Tim McCormack refers to the way in which the United States used technical legal arguments to evade their obligations or avoid the imposition of such obligations altogether under the ICC Statute) or the post­ pone­ment of some much-needed treaty (see Robyn Eckersley’s discussion of the Copenhagen meeting on the climate) or because inter­national law is somehow always a law of disappointment (see Gerry Simpson’s discussion of the way in which international law is a structure of deferral and procedure and avoidance). In this respect, then, ‘success’ in the world of international law and diplomacy can sometimes be translated as abject failure, from the perspective of humanitarians or climate scientists (see chapter 4). In an analogous manner, Martin Krygier documents the various failings of rule of law promotion within states by international institutions and rule xxxvii

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of law promoters. Here, again, a law of disappointment seems to operate. Introducing rule of law principles (say, non-retroactivity of legal rules) or institutions (some courts) into states where things are done differently or where there has been political trauma or war, is a deeply troublesome business. This is particularly the case where the promotion (even the word seems wrong) of the rule of law involves trans­plantation without purpose or context (see chapter 6). And there is a broader ethical problem here, too. Sometimes, the lan­g uage of international law will simply fail to capture the essence of violation or aspiration. This can be a question of tone, and the first part of Raimond Gaita’s chapter is partly an exploration of these tonal deficits. These are found everywhere in the language of international law and human rights law, of course. Rights language, for all its power, has a habit of masking violation. Gaita imagines a remorseful rapist crying out: ‘My God! What have I done! I violated her human rights’ (see chapter 7). The risk with international law, as with any highly professionalised, technocratic language is that its practitioners will seek to establish idioms of expertise that screen out ordinary or creative or resonant ways of going about expressing disapproval or approval. As Gaita puts it: ‘the recognition that there are forms of understanding, thinking and reflection to which vul­ nerability to sentimentality is intrinsic, will reward us with a richer conception of the forms of the discursive’.

Anti-hegemony

At the same time, though, international law is often thought of as way of holding the Great Powers in check. A world without law or the rule of law would be one in which the most powerful states would simply do whatever they wished. Indeed, in pre-modern international law, states were entitled to attack each other in order to, say, acquire territory (this was the ‘right of conquest’ only abolished definitively in the UN Charter and criminalised as recently as 2010 in the Kampala Agreement [see chapter 3]). Inter­national law then can be understood as a way of constrain­ing Great Power misadventure or getting the xxxviii

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major players to sign on to socially useful programs towards which they might otherwise be indifferent or hostile. International treatymaking involves not just the play of raw power but also the opening of spaces in which smaller powers are capable of exercising influence and publically holding the hegemons to account (see chapter 4), or in which unvoiced interests can circulate through forms of what Eckersley calls ‘affirmative multi­lateralism’. In its retributive guise, inter­national law seems to promise punishment for local hegemons who would disregard human­it­a rian standards or engage in illegal war-making (see chapter 3) but it also promises – whatever the preferences of power­f ul elites – a fair trial for those who breach these standards. They do this for more than one reason, but crucial among those reasons, Gaita says, ‘is the imperative that they do it for the sake of the criminals because they are human beings, no matter how terrible their deeds, and no matter that they are entirely unrepentant of them’. (This is what Gaita calls ‘an imperative so sublime’). And, as Drew points out, inter­national law is deployed as a language through which particular historical acts are re-described (the ‘ethnic cleansing of Palestine’1). This, indeed, is a pervasive image of international law. Catriona Drew describes in her essay how students beginning a course on ‘Israel–Palestine and International Law’ will sometimes think of international law as a technique used to ‘empower[s] the weak against the strong [and] redresse[s] injustice from the past’. And, of course, this is the very essence of what it means to live under and within an at-least-partially realized rule of law. Indeed, it is this constraint on arbitrariness (the arbitrariness of public [and sometimes, private] power, the arbitrariness of great power prerogative) that constitutes the telos of the rule of law (see chapter 6).

Aspiration

International law also has a more generally aspirational face (or, as Drew characterises it, a ‘fantasy life’), not only linked to combating 1

Pappe, Ilan. The Ethnic Cleansing of Palestine (One World, 2006).

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the overweening influence and power of the hegemons but also di­ rected at bringing humanitarian standards to bear on international diplomatic life or imposing forms of criminal liability on violators of those standards or in alleviating the conditions of global im­ miseration. Raimond Gaita reminds us that ‘international criminal law … now has for us, inexpungible ethical dimensions … inseparable from our understanding of what it means to violate these laws’. But it is true also that international law has become a vehicle for expressing these ethical dimensions. As Sundhya Pahuja puts it in her essay: ‘More recently, over the last sixty or so years, international law has also become the most prominent secular language through which competing aspirations about a better world are articulated and put into practice at a global level.’ This is the case in a number of different fields, from what used to be called, with less self-consciousness, ‘the Middle-East Peace process’ (Drew), to the application of criminal law, to genocidaires (McCormack), to the elaboration of environmental norms and institutions (Eckersley), to the attempt to introduce rule of law norms in benighted states (Krygier), to the structure of North– South economic relations through ‘development’ (Pahuja). In each field, (international) lawyers understand themselves as bearers of a promise for better planetary life and conditions. The successes of this aspirational program are not insignificant. Tim McCormack’s essay points to a number of cases where alleged war criminals hitherto thought untouchable by law have found them­ selves facing international criminal justice. As he reminds us: ‘the arrests of Milošević, Gotovina, Karadzić and Mladić all demonstrate that, even where the prospects for arrest seem remote at a given time, circumstances can dramatically change and accused can still be brought to trial decades after the issuance of the original arrest warrant’. Robyn Eckersley, meanwhile, asserts the value of binding and veri­ fiable treaty mechanisms to solve collective action problems related to the environment: xl

Introduction: Who’s Afraid of International Law?

[A] treaty provides the necessary mutual assurance through rules that are considered binding; it provides a fair and formal process for negotiating rules; it can provide appropriate incentives, information sharing, reporting and compliance requirements to facilitate national commitment and implementation; and it can provide agreed sanctions to deal with non-compliance.

These are not insignificant gains. International law, of course, has also styled itself as aspirational in a more general sense. It does not simply aspire to more felicitous planetary life; it is, as a field, built around the combination of aspiration and regret as a mode of being. As McCormack laments: ‘The biggest single challenge to the broader international criminal justice experiment is the lack of sys­ tem­atic and comprehensive application of the law. Those of us who support the ICC should not only readily concede that there is still much to be achieved but also continue to commit ourselves to work towards com­prehensive, systematic and impartial application of the law’. The idea then is to forge ahead and construct an authentic system of justice. And this is an important aspect of much of what we do as inter­national lawyers. It is this desire for a better world that energises the many young people who enter the international legal profession or work at the World Bank to promote legal and social develop­ment (chapter 6), and the protestors who gathered outside the climate change conference in Copenhagen in 2009 (chapter 4).

Critique

This combination of anti-hegemonic rhetoric, apology and aspiration has been criticised from within the discipline by writers who argue that international law is, as one commentator put it, ‘part of the problem’. Pahuja suggests in her essay that we should perhaps be afraid of international law for its capacity to inflict the wounds of com­plicity or de-politicisation on what otherwise might be vibrant political struggle. Krygier points to the expensive and unhappy exper­iments in rule of law promotion (lacking philosophical depth, xli

Who’s Afraid of International Law?

excessively ad hoc and technocratic, unresponsive to local con­ ditions, failing to see the rule of law as a ‘state of affairs’ and not an assemblage of institutions or rules, and lacking a concept of ‘social achievement’). Gaita refers to a different but analogous problem when he asks whether there is ‘an aspect of The Holocaust that is different from or worse than those crimes [e.g. crimes against humanity] and which no legal category can capture’. There is now, of course, a robust critical tradition in international law. Its leading practitioners have re-rethought international law as a grammar to be mastered (rather than a set of principles or rules to be applied unproblematically to global problems) and as a way of structuring and ordering (and disordering) international diplo­ matic and social life: one that sometimes offers a discursive space for critique and resistance and, perhaps more often, closes off the possibility of such resistance and critique (this is a point made by Pahuja when she bemoans the way in which international law instit­ utionalises certain forms of thought [or lack of thought] about the relationship between capital and poverty). Critical international law has also revealed an international law that is already there, in important ways. It rejects the usual assumptions that international law simply responds to ‘crises’ (say, by applying international criminal law to mass atrocity or by institut­ ionalising ‘development’ as a response to poverty or by thinking of international environmental law as the law of ecological repair or by imagining international law as an instinctively humanitarian or pacific project to be inserted into conflict areas [in the Middle-East, or in Ukraine]). Much of this spirit comes through in the essays. Krygier’s essay warns against the idea that law is either absent (because informal or occurring in not obviously juridical spaces) or present (because there are courts and rule of law promoters and a constitution). Drew’s understanding of international legality as open-ended – one thing and another, ‘a schizophrenic affair’ – informs her essay on Palestine–Israel in 1948. For her, international law has been nationalist passion, cultural reproduction, accomplice to power, and diplomatic language. She also works hard to unseat xlii

Introduction: Who’s Afraid of International Law?

an orthodoxy that thinks about international law as somehow marginal to the politics of a certain situation (‘… without an under­ standing of the role of international law – and its fantasies – there can be no true understanding of what happened in 1948’). This is a strong argument, one that is both unsettling and demanding. It implicates international law in circumstances that have sometimes been catastrophic (no longer just a bundle of human rights norms to be asserted in the interests of vulnerable human communities to prevent ethnic cleansing but also an international law of population transfer important in ‘shaping and legitimising the Zionist transfer agenda’; just as, in Simpson’s essay, it is not only an anti-war lingua but also a vital part of the repertoire of arguments offered in favour of the war). And, at the same time, this argument reveals the potency of a reformed international law and the promise of different forms of legal intervention (through, say, a creative rereading of the legal history). Pahuja, too, emphasises the power and therefore the historical responsibility of international law: specifically, in her case, the international law of development. Her essay on development again refuses the tidy orthodoxies of an international law working hard to civilise empire or humanise war or alleviate poverty through institutional design or normative gesture. Instead, international law is there at every turn: universalising and cementing imperial geographies, re-insinuating old sovereign hierarchies or sensitising and civilising capital. Like Drew, Pahuja is sensitive to the power and authority of international law as a field, institutional structure or way of talking and being. Underlying all of this, for her, is the pro­ duc­tion and reproduction of the authority to name certain activities as law, and the way in which the resultant law encounters other ‘laws’ as something other than law (as culture, or as indigeneity, or as custom). Ultimately, this critical tradition warns international lawyers away from a form of complacency arising ‘from our faith that somehow international law’s progressive gestures and liberal credentials out­ weigh the material conditions of life (a degraded ecology, predatory capital, premature, avoidable death on a vast scale), partly, enabled by xliii

Who’s Afraid of International Law?

sovereignty and for which international law might be – at least partly – responsible’(Simpson) . At the same time that tradition allows us to understand law’s contribution to what Gaita called ‘the realm of meaning’ by rendering its ‘grammar’ answerable to it.

xliv

Ch a p ter 1 :

On Being Afraid of International Law Gerry Simpson

Introduction: Three Fears

There is a rumour – an appealingly plausible one – that former United States President Richard Nixon’s Secretary of State, Henry Kissinger, consults with his legal advisers whenever he travels abroad. … The lawyers determine whether any of the countries on Kissinger’s itinerary have enacted laws giving local courts universal jurisdiction over suspected war criminals (because of his prominent role in the decision to initiate a bombing campaign in Cambodia during the Vietnam War, Kissinger has been demonised from the Left [Chomsky] and the Left-Right [Hitchens] as a person respon­ sible for crimes against humanity).1 A later Republican administration was notoriously hostile to the idea of a criminal court exercising international jurisdiction over individuals accused of committing war crimes, genocide or crimes against humanity (indeed Kissinger was an important voice in establishing, in the U.S., a mood of hostility towards such a court). The Bush Administration worked assiduously to undermine the International Criminal Court after it came into existence in 1998. Resolutions obviating any possibility of U.S. peace-keepers coming before the court were passed by the Security Council; the International Criminal Court (ICC) Treaty (signed by Clinton in one of his final acts in office) was “unsigned” by the incoming administration; and Congress enacted a “Hague Invasion Act”’, which contemplated a use of force to release American prisoners 1

Noam Chomsky, Towards a New Cold War (New Press, 2003); Christopher Hitchens, The Trial of Henry Kissinger (Verso, 2001).

1

Who’s Afraid of International Law?

from the custody of international courts.2 The US Government also entered into a number of bilateral agreements (dubbed Article 98 Agreements) designed to ensure that partner states would not surrender Americans to the ICC. Officials in the Romanian Gov­ ernment, for example, later claimed that the pressure exerted by the US on this issue was unprecedented. These responses to international legal initiatives might seem melo­ dramatic but they reflect the rise of a newly retributive legalism.3 In the international legal order, the possibility of prosecution now haunts the activities of sometimes nervous diplomatic, political and military elites. The visibility of trial and prosecution is reflected, too, in popular culture where there have been plays and television dramas about the trial of Tony Blair and a feature film, adapted from Robert Harris’s book The Ghost, centring on a Blairish former UK Prime Minister, ‘Adam Lang’, who visits friends in the United States and finds himself in exile there because of an investigation initiated by the Prosecutor of the ICC into alleged complicity in acts of torture (it is common, too, for law schools around the world to have staged an event entitled ‘The Trial of Tony Blair’ or ‘The Trial of George Bush’). These are hypothetical cases but then for much of the latter half of the twentieth century most of international criminal law, from its inception in 1945, was hypothetical. That is no longer quite the case. As I prepared the lecture on which this essay is based in 2011, Mr Vujadin Popovic began serving a life sentence for committing the crime of genocide. The International Criminal Tribunal for the Former Yugoslavia in The Hague found that Popovic had, by organising the deportation of women and children and the kill­ ing of all males of adult age, engaged in a deliberate campaign to exterminate the Bosnian Muslim population of Srebrenica during the Balkan wars of the 1990s. 2

3

SC Res 1422 UN Doc S/Res/1422 (2002) and SC Res 1487 UN Doc S/Res/1487 (2003); Press Release, US Department of State, International Criminal Court: Letter to UN Secretary General Kofi Annan, (6 May 2002), http://2001-2009.state. gov/r/pa/prs/ps/2002/9968.htm; The official title of the ‘Hague Invasion Act’ is The American Service-Members Protection Act of 2002. For a much fuller account see Tim McCormack’s essay in this volume.

2

On Being Afraid of International Law

At the same time, the US Court of Appeals handed down its decision in Samantar. Mr Samantar was accused of having engaged in human rights violations while he was a senior state official in Somalia. Mr Samantar may have imagined that he had little to fear. His period in office had ended some time ago and he was now living in the United States. In any event, he might justifiably have assumed that he was entitled to the protection of a rule of international law that shields incumbent and former state officials from legal pro­ ceedings in foreign countries (the sovereign immunity principle). But it turned out that Mr Samantar had something to fear, too. Some of his victims had come to the United States and they deployed an unusual US federal statute in order to sue Mr Samantar for the commission of crimes against humanity. The Court of Appeals held that his claim to sovereign immunity was not supported by a reading of the relevant legislation. The case returned to the District Court for further argument. In some ways this was a typical week in the life of international law. The field is in its pomp: confident, ubiquitous, now-enforceable, a compelling moral language of our times.

*** Who’s afraid of international law? Let me first outline three possible answers to this question before taking each in turn and offering, in the body of the chapter, a more detailed appraisal. One answer is that the Popovics, Kissingers, Samantars and perhaps even Blairs of this world are afraid of or ought to be afraid of international law. This response would emphasise the manner in which international law has insinuated its way into international diplomacy and how it has managed to arm itself with some enforcement powers against individual violators. From the perspective of the general public, it might be reasonable to assume that bad men now languish in jail because of international law and that this, overwhelmingly, is a good thing. And from the liberal left there are regular calls to extend the range of international law to encompass leaders of democracies 3

Who’s Afraid of International Law?

who embark on illegal wars (an agreement that envisages just such a prospect but keeps that prospect at a distance was reached in Kampala in 2010).4 Obversely, a response to this question might advert to the sort of fear international law inspires in the conservative commentariat and the political right, in general. Margaret Thatcher’s distaste for the legal proceedings against Pinochet in London, George W. Bush’s animus against international lawyers, and the steady diet of essays in the conservative press attacking the turn to tribunals (except when these tribunals are directed towards common enemies like Hussein and Gaddafi) have created, for an influential segment of the political class, an atmosphere of discontentment around the idea of international law as a set of enforceable legal rules.5 Who’s afraid of international law? But a second answer might be more sobering and would focus on the technocratic, dispute-deferring face of international law.6 This answer understands international law as a regulatory order designed to mute vulgar claims to justice or refine, sometimes out of existence, retributive instincts. In thinking through this answer, I will consider some of the ways in which internat­ ional law is defanged by its own organising principles or how the very structure of the international legal order is designed to placate sovereigns in the face of potential international legal regulation and how states are sometimes signed on to particular international legal projects precisely by reassuring them that they have nothing to fear from them. Eighteen year ago in Rome, after diplomats had adopted a Statute for an International Criminal Court, governments in the UK and Australia rushed to reassure domestic constituencies about the possible scope of the Court’s powers: ‘No Australian will ever come before the ICC’, was one of the implied messages of the 4 5 6

The ICC Review Conference adopted RC/Res 6 on the crime of aggression at the 13th plenary meeting on 11 June 2010. Available at www.icc-cpi.int/iccdocs/ asp_docs/Resolutions/RC-Res.6-ENG.pdf. Tim McCormack’s essay in this volume focuses largely on the fears outlined in this section. Robyn Eckersley’s essay in this volume might be thought of as a critique of this sort of international law (disillusioned Palestinians in Catriona Drew’s story might also reach similar conclusions about what they have to fear from international law).

4

On Being Afraid of International Law

Howard Government.7 International law here might be understood either as a legal project (say, the ICC) designed to tame the primitive urges of outlier states and persons, or as a soft regulatory framework that requires relatively little of the rich world (say, the Copenhagen meeting).8 International law, from this perspective, is to be feared precisely as a consequence of its passivity and innocuousness in the face of disorder. Who’s afraid of international law? A third answer might approach things differently by responding to the standard liberal account of inter­national law underpinning the first two answers. This standard account holds that international law is either under-enforced or insufficiently obligatory. Where it is most feared, it is marginal (e.g. inter­national criminal law and its small cohort of defendants and general lack of range) and where it is necessary, it is toothless (e.g. inter­national environmental law and its apparent lack of vitality and concreteness).9 Both these views accept the desirability of international law: where it is feared, it is not feared enough and where it is not feared, it should be. A third approach would reject the assumption that international law is, on the whole, worthy but epiphenomenal and instead implic­ ate it thoroughly in the way the international system is structured and how it operates in practice. An approach such as this might ask whether international law is somehow responsible for, or constitutive of, or complicit in, the intensification of global capitalism, or the rise of a particular genus of Great Power hegemony, or the appearance of genocide as a form of adminis­trative massacre or with the cruelties of the global economic and diplomatic order.10 I will return to this 7

8 9 10

See for eg, the Declaration attached to Australia’s instrument of ratification (at www.iccnow.org/?mod=romeratification&idudctp=13&show=all), and the Explanatory Memorandum to the ICC Consequential Amendments Bill 2002, available at http://parlinfo.aph.gov.au/parlInfo/search/display/display. w3p;query=Id%3A%22legislation%2Fems%2Fr1607_ems_9b4bf948-8103-4917bcd4-759c5c60a845%22. See the essays in this volume by Sundhya Pahuja and Robyn Eckersley. See the essays in this volume by McCormack and Eckersley. Both Pahuja’s and Catriona Drew’s chapters expand on some of these ideas.

5

Who’s Afraid of International Law?

theme at the end of the essay but for now, I want to begin to offer a more detailed account of the three fears that international law might be thought to generate.

Being Afraid #1: The Law of Retribution

The most dramatic development in international law in the past two decades has been the construction, more or less from scratch – give or take the postwar trials at Nuremberg and Tokyo – of a system of international criminal law. The idea, to adopt the language of this book, was to instill fear in the minds of tyrants and war criminals. Of course, the idea that a war criminal or serial violator of international norms might spend time in jail is a relatively recent one. Adolf Hitler, who met Hermann Goering at a rally protesting against war crimes trials being held in Germany following World War I, said, on being warned about the possible consequences of persecuting the Jews: ‘Who Remembers the Armenians?’. After all, at that point, there had never been a prosecution before an international criminal court of any person thought to be responsible for violations of human dignity (either in peace or war). Seventy years after Hitler’s encounter with Goering another mil­ itary dictator, former Chilean President Augusto Pinochet, arriv­ ing in London for medical treatment, found he had something to fear from this new international legal regime. He was arrested on a warrant arising from an extradition request from Spain. Relying on The Torture Convention, the House of Lords held that Pinochet had been deprived of his immunity as a former Head of State by the ratif­ication of that convention by Spain, Chile and the UK, and could, as a result, be extradited to Spain (he eventually stood trial in Chile). A little later, Radovan Karadzic’s fear of international law led him to go into hiding as a faith healer. In 2016 he was con­v icted in The Hague of Genocide, Crimes against Humanity and war crimes. The list has been getting longer: former Serbian president Slobodan Milosevic died in a Dutch prison in the midst of a lengthy trial; Ratko Mladic, Karadzic’s military confrère, was arrested in 2011 in 6

On Being Afraid of International Law

dramatic circumstances; President Bashir of Sudan is the subject of an arrest warrant issued by the ICC; former Liberian leader, Charles Taylor, is serving a fifty year term of imprisonment following his trial before the Sierra Leone Special Tribunal; and, meanwhile, the ICC Prosecutor, Fatou Bensouda continues investigations in Uganda, the Democratic Republic of Congo, Kenya, Mali, Libya, Cote d’Ivoire, Libya, Georgia, and the Central African Republic. These developments have led many to wonder whether internat­ ional criminal law could be used to frighten leaders closer to home: ‘Howard, Blair and Bush are war criminals’ read the placards during and after the Iraq War. And this, in turn, has led to a backlash against international law from elites in Western states. At a press con­fer­ ence in Munich in 2004 Donald Rumsfeld, himself the subject of legal proceedings in Germany related to the crime of aggression, was asked whether the US was bound by international law. He replied: ‘I honestly believe that every country ought to do what it wants to do … it is either proud of itself or less proud of itself ’.11 The neo-conservative media, too, has taken its cue from these attitudes and vilified some international lawyers. To take one colourful example, Glenn Beck, the Fox News journalist, is (or pretends to be) afraid of international law. Having defeated communism, the US now, according to Beck, faces a subtler foe, another ‘ism’, namely trans­nationalism. This fear of international law was inspired by the appoint­ment of Harold Koh, the Yale international lawyer, to a position as legal adviser at the State Department. According to Beck, Koh is a rabid neo-communist who wanted to introduce Sharia law into the United States (as well as abolish Mother’s Day). The Oklahoma State Legislature joined the chorus by proposing an amend­ment to the state constitution that would forbid judges from referring in their reasoning to either Islamic law or international law.12 11 12

Donald Rumsfeld at Munich Press Conference, February 6, 2004; at www.guardian.co.uk/comment/story/0,3604,1145413,00.html. ‘The Courts [of the state] when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes

7

Who’s Afraid of International Law?

So, my first answer to the question who’s afraid of international law? is this: it is no doubt true, given all that I have said so far, that inter­ national law is causing sleepless nights for a small fraction of war criminals and is an irritant to governments who believe sover­eignty is its own justification in all things or to media outlets who think of international law as an ideology akin to, say, Leninism. In other words, its enemies, more convinced of its potency than its friends, perform the role of boosting international law’s credibility – and its fearsomeness.

Being Afraid #2: The Law of Disappointment

The second answer to this book’s primary question might focus on the technocratic or procedural face of international law: a face that neither Fox News nor the Bush Administration might have found particularly objectionable. In 2009, during the Wednesday Lectures Gaza series organised by Professor Raimond Gaita at the Australian Catholic University, I described international law as ‘a law of disappointment’. Often, it seems to offer more than it delivers. For a start, it turns out to be extra­ordinarily procedural. A typical international law course at uni­ ver­sity will spend most of its time on indirect, preliminary quest­ions about process (how does a case come to be ‘admissible’ before the World Court?), jurisdiction (who has competence over what?), struc­ ture (when is the Security Council deemed to have made a ‘decision’?) and personality (what is a state? what is it responsible for?). In this sense, it is the opposite of the Old Testament. A course in inter­ national law, for a term and half, looks as if it is command­ment-free: a no-fault system of diplomatic engagement. and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law’, H.J.R. No. 1056, at 2 (Okla.). See, too, Aaron Felmeth, ‘International Law and Foreign Laws in U.S. State Legislatures’, ASIL Insights at www.asil.org/insights110526.cfm.

8

On Being Afraid of International Law

So, when Bosnia sued Serbia – claiming that Serbia had committed genocide during the Balkan wars – at the International Court of Justice in 1996, it took over ten years for the Court to deliver a final judgment. And in its decision of 26 February 2007 the Court spends dozens of paragraphs discussing whether, in the first instance, the Genocide Convention prohibited states from committing genocide at all. Such a question might strike non-lawyers as eccentric unless they are au fait with the peculiarly discreet and non-committal international laws on state responsibility. It may be, indeed, that under this body of law, states cannot be found responsible for crimes. As Philip Allott said, the punishment for sin in the Bible is death; in international law, the punishment is something called ‘responsibility for sin’.13 In the end the Court held that Serbia could not be held responsible for the crime of genocide; was not directly or indirectly responsible for acts of genocide; but was in breach of the Genocide Convention for failing ‘to prevent and punish’ acts of genocide.14 What the human rights activist or victim of atrocity might fear from international law, then, is disappointment, deferral or sophistry. As international lawyers we spend a small amount of time suing Chevron for alleged violations of human rights and a large amount of time saying to potential clients: ‘This is the right cause but in the wrong place or at the wrong time’.15 It turns out that there are many ways to prevent a case from reaching what might look like the obvious conclusion. ‘It’s true that a hundred thousand people were killed …’, we find ourselves saying, ‘… but this court does not have jurisdiction or the case is inadmissible or the accused is immune from jurisdiction or local remedies haven’t been exhausted’. International law can be understood here as a technical craft de­ signed to train lawyers to avoid outcomes or render justice obscure 13 14 15

This is from Allott’s series of essays The Health of Nations (CUP, 2002). Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia v Serbia) (Judgment) [2007] ICJ Rep 43. Bowoto v Chevron Corp No C 99-02506 SI, 2008 WL 2872624 (Northern District of California July 23, 2008) available at http://ccrjustice.org/files/ Bowoto_StateClaimsRuling_08_07.pdf.

9

Who’s Afraid of International Law?

and distant. It is, to paraphrase Duncan Kennedy, training for pro­ ced­ure or postponement. Take the example of Ndombasi Yerodia, at one time the Demo­ cratic Republic of Congo’s Foreign Minister. In Kinshasa, in 1998, he ran a radio station that regularly called for the elimination of all Tutsis in The Congo (this was after the Rwandan genocide). He was indicted for genocide by a Belgian magistrate under a Belgian law giving Belgian courts jurisdiction over acts of genocide (including incitement to commit genocide) wherever these crimes were com­ mitted. An arrest warrant was issued by Interpol. But in the end, Yerodia was never brought to justice. What did international law have to say about this? The World Court issued a ruling saying that a great wrong had indeed been committed … by Belgium against Mr Yerodia and the DRC.16 The arrest warrant had interfered with Mr Yerodia’s right (a right derived from the DRC’s sovereign rights), as a serving Foreign Minister, to absolute immunity from the jurisdiction of foreign – i.e. Belgian – courts. In 2003, Mr Yerodia became one of four DRC vice presidents representing the People’s Party for Reconstruction and Democracy. No wonder students experience international law (including human rights law and war crimes law) as an odd and disorienting combin­ ation of promise and deferral. So, and to return to the language of fear, in this version inter­nat­ ional law is a system of norms designed to mollify those who worry it might be enforced against someone somewhere. And it is partly as a result of all this that international law is understood as a virtuous but marginal enterprise. Typically the domain of the letter-writer, pamph­ leteer or academic, public international law is an outside position offering the seductions and anxieties of powerlessness. Even the advice of government lawyers or the argu­ments of international jurists can be thought of as worthy and intellect­ually sound but, ultimately, either disposable, displaceable or too elastic to offer binding constraints; 16

Case Concerning the Arrest Warrant of 11 April 2000 (Congo v Belgium) (Judgment) [2002] ICJ Rep 3.

10

On Being Afraid of International Law

or qualified out of existence by its own structuring principles or procedural rules.

Being Afraid #3: Centralisation and Open-endedness

So far, I have created an image of international law as a series of feints or manoeuvres in the direction of justice or retribution or enforce­ment: international law’s body of substantive norms are deeply appeal­ ing but remain unrealised because built into its very structure is a set of principles designed to ensure that nothing happens: this is the world of ‘standing’, immunity, jurisdiction, sovereign equality and so on. These images of the relationship between law and diplomacy, though ubiquitous, are open to challenge. I want to end this essay by offer­ ing a different perspective on international law and one that supplies a different answer to our central question. It is not so much that the first two answers are inaccurate but rather than there is some­t hing in­complete about them. Let me come at this rather indirectly. In 1966 a book was published called Report from Iron Mountain: On the Possibility and Desirability of Peace. The preface reads like a spy thriller. It describes how a professor from a mid-West US university (he is named ‘John Doe’), is asked to join a clandestine government think-tank. Even President Johnson is unaware of the existence of this group, which is said to have met, over a period of two years and in secret, at a Cold War facility at Iron Mountain in New York. Their final report is so explosive that it is sup­pressed by the government. John Doe then approaches Leonard Lewin, a New York-based writer and labour organiser, and arranges for the publication of the report. It becomes a bestseller. John Kenneth Galbraith reviews the book and remarks that he had been asked to join the panel but had declined. Five years later, Leonard Lewin reveals that he was the author of the report. There was no com­mit­tee and no John Doe either. The Guinness Book of Records goes on to call this the greatest literary hoax in history. Lewin’s ‘Report’ argues that war performs certain functions essen­ tial to the stability of our society; until other ways of filling them 11

Who’s Afraid of International Law?

are developed the war system must be maintained – and improved in effectiveness. The report notes that defence spending should be increased even though such spending has little to do with defence. The spoof report calls also for a return to slavery; an intens­ification of air, water and soil pollution; and so on. Philip Roth wrote a famous essay in which he argued that a certain sort of inflated comic writing was impossible in the United States because reality had adopted the form of a fiction. Tom Lehrer stopped writing satirical songs after Henry Kissinger received the Nobel Peace Prize. Leonard Lewin, too, believed his spoof had been rendered all too credible by the monstrosities revealed in The Pentagon Papers or, he might have added, The New Project for an American Century. To what extent is the project of international law dedicated to the maintenance of a ‘war and poverty’ system? What, precisely, is the nature of international law’s relationship to poverty, war, mal­dis­trib­ ution, pollution, global warming, slavery, genocide and so on? In the first two answers to the question ‘who’s afraid of international law?’ I presented international law as a set of substantive norms that might be thought of as, in essence, attractive and just, tethered to and stymied by a structure of procedural rules that require only sporadic levels of compliance. 17 But what if the substance or content of international law was itself harmful?18 Should international lawyers be afraid of international law? Should all of us be a little bit afraid of international law? China Mieville famously said: ‘The chaotic and bloody world around us is the rule of law’. Is international law, then, a subtler Report from Iron Mountain: its progressive credentials simply a spoof? So, instead of thinking of international law as ineffectually vir­ tuous, it may just as reasonable to think of it as powerfully con­ stitutive. Far from being consigned to the peripheries – once in a while imprisoning the odd Milosevic or Hess – international lawyers have created a system without which international diplomacy would 17 18

See Pahuja’s discussion in this volume. See Drew in this volume.

12

On Being Afraid of International Law

shrivel, and so have participated in, facilitated and established the conditions for many of the practices that are thought to be imped­ iments to a just world order. International law’s self-image is very much bound up with the idea of resistance to authority or empire or war. But the history of the international system is a history of international legal norms align­ing themselves to or creating the conditions for the exercise of state authority (buttressed by an international legal regime that author­ised war and tolerated massacre), the projection of empire (facilitated by international law rules on territorial acquisition and legitimised through the use of unequal treaties), the consolidation of hegemony (inscribed in institutional arrangements from Vienna in 1815 through to San Francisco in 1945), and the promotion of global­ is­at­ion (reinforced by public compacts in international economic law or the private/public arrangements and associated forms of arbit­rat­ ion entrenched in bilateral investment treaties). The found­ational doctrine of international law, the doctrine of sover­eignty, and the society of competitive, occasionally warring, occasion­a lly pacific, states with entitlements over their own citizenry and powerful claims to self-realisation, are creations of intern­ational law not obstacles to its implementation. There seem to me to be some important reasons, then, why we should all be afraid of international law. I want to end this section by discussing two features of the international legal order that might, on first blush, appear attractive (its increasing centralisation and the open-texturedness of its principles) before concluding the chapter with some thoughts on the complacency of international law. Benign visions of international law tend to think of centralisation as a way of exercising authority over problems of international order (a war crimes court with universal jurisdiction over tyrants or, more con­jecturally, an international environmental organisation mand­ated to punish defecting sovereigns), and indeterminacy as an opening for prog­ressive lawyering (e.g. using vague Charter references to human rights as a way of supporting a right to use force in humanitar­ian in­ ter­ventions). I want to suggest here that centralisation can just as easily 13

Who’s Afraid of International Law?

collapse into hegemony (e.g. being for international law might in­volve being for the Security Council) and indeterminacy into reaction. The appeal of a centralised system of international governance is not hard to fathom given the origins of the contemporary order in the aftermath of World War I. The Wilsonian optimism coupled with a faith in law and organisation that pervaded the atmosphere of post-war reconstruction meant that it was inevitable that an institut­ ionalised form of international law would be introduced as a solution to the problems of war, lawlessness, colonialism and secret diplomacy. Collective security would tame war, empire would be transmuted into administration and politics would become law. In this respect at least, and though World War I has been under­stood as a rupture after a period of Edwardian purity: ‘Never such innocence, Never before or since … Never such innocence again’, as Philip Larkin’s poem MCMXIV puts it, a different sort of innocence did survive the war. This was an innocence about the nature of the international system and a belief in the neutrality of internationalism.19 It was this innocence that the German constitutional and international lawyer, Carl Schmitt, scorned in his work. Schmitt’s nostalgia for nineteenth-century arrangements (with their emphasis on state sov­ ereignty and their agnosticism about the causes of war) might strike us as recherché in these days of new world orders, war crimes trials and collective security but it reminds us, too, that something has been lost in the rush to organise, in­stit­ution­alise and (collectively) punish. The ‘innocence’ of the post-Versailles order lay in its apparent failure to comprehend that collective security could become a cover for hegemonic decree (this was E H Carr’s insight); that there was no place in the international legal order, as then or presently constituted, above politics; and that punishing one’s enemies in war 19

What I take to be a credible, and what is certainly an evocative and engaging, account of the atmosphere of the time is contained in the first part of Frank Moorhouse’s Edith Berry Trilogy, Grand Days. In the final part, Cold Light, set in Canberra, Edith defends this idea of Genevan detachment in conversation with her communist brother, Frederick: ‘I was never really in politics. As members of the League secretariat we thought of ourselves as above politics’. Frederick replies: ‘No-one is above politics’ (Random House, 2011) at p. 5.

14

On Being Afraid of International Law

crimes trials or through exemplary and collective punishment could itself provoke resentment and revanchism. Negotiation, diplomacy, the economic calculations of realism, the classic Westphalian assumptions about the equality of nations, and the sense that ‘it must always be kept in mind that after a war we have sooner or later to live with our enemies in amity’ had all given way to the imperatives of punishment and retribution. Schmitt, himself, had good reason to fear this new punitive atmosphere. Accused of being a Nazi theorist, he was investigated by the Allies after World War II, with a view to him being prosecuted on war crimes charges. But whatever his own political beliefs, Schmitt recognised international law enacted and enforced by the international community might simply be a cover for imperial violence. Certainly, some recent invocations of international law have been bloody: the economic strangulation of Iraq through sanctions (in the late 1990s) and the war in Afghanistan are two recent examples of collective security that might be thought of also as the latest in a long line of imperial interventions in, respectively Mesopotamia and as part of the Great Game. A second problem lies in the apparent malleability and indeter­ minacy of international law. The appeal of a common and opentextured language is obvious: it permits ideological foes to speak to each other. This was what ‘co-existence’ was about in the midst of the Cold War. International law permits a range of argumentative positions but it risks, too, a loss of certainty, and this deficit can be exploited by global political elites.20 Thus, when US Secretary of State Madeline Albright was told by UK Foreign Minister Robin Cook that British foreign office lawyers were having trouble coming up with a legal justification for the NATO war in Kosovo she is said to have replied: ‘Get new lawyers’. In the case of the Iraq War, there was no need to get new lawyers, in the UK at least, since the most influential incumbent lawyer, Attorney-General Peter Goldsmith, appeared to modify his views at least three times (judging by 20

A vast amount has been written about indeterminacy. This merely is the sketchiest of sketches. The indispensable work is Duncan Kennedy, A Critique of Adjudication (Harvard UP, 1998).

15

Who’s Afraid of International Law?

confidential documents released before and during the Chilcot Inquiry).21 Indeed, international law, initially a discursive weapon of choice for those who deplored the war, began to seem like the best (perhaps only) argument left for war. A year after the intervention, on BBC Radio 4’s Today Programme, Tony Blair was being hounded on the topic of the Iraq imbroglio by journalist John Humphrys. By this time, Iraq was in revolutionary turmoil, no weapons of mass destruction had been detected and Iraqis were dying in large numbers.22 Blair was forced to concede things had not turned out as expected. In the interview, he sounded like a defeated man grasping for a straw. He found one: ‘… we took the action as a result of Saddam’s failure to comply with UN resolutions’. In a sense – and at the risk of facetiousness – we might say that it was international law that made him do it. Of course, it is always strange to hear international law being invoked in this way. But the price of international law’s evenhandedness is that one hears, simultaneously, that, say, the Israeli attack on the Gaza Convoy is an illegal act of piracy but, at the same time, an expression of existing rights under international law. These issues rarely get argued out in court and in any case courts do not enjoy the same status or authority in international relations as they do in national political systems. So, there is a sense that invocations of international law are now part of a diplomatic tradition, a ritual to be practiced by all sides in warding off evil spirits. Indeed, in the case of the Iraq War, the appeal to indeterminacy itself (long part of a radical critique of law) in the end became a 21

22

Lord Goldsmith’s (UK Attorney-General) (Secret and Strictly Personal) Advice to Prime Minster on Iraq (30th July, 2002), Iraq Inquiry, Declassified Documents; Lord Goldsmith’s (UK Attorney-General) (Secret) Advice to Prime Minster on the Legality of the war (March 7, 2003) at http://news.bbc.co.uk/1/ shared/bsp/hi/pdfs/28_04_05_attorney_general.pdf ; Lord Goldsmith’s (UK Attorney-General) Published Advice on the Legality of the war (March 17, 2003) at www.guardian.co.uk/world/2003/mar/17/iraq2. One of the most authoritative statistical surveys estimated that as of July 2006 (three years after the war had begun) there were 600,000 excess Iraqi deaths as a consequence of the war. See Burnham, Lafta, Doocy, Roberts, ‘Mortality after the 2003 Invasion of Iraq’, The Lancet, 11 October 2006.

16

On Being Afraid of International Law

useful argumentative gesture for those who supported the war. Jack Straw, the British Foreign Secretary, spoke at the Chilcot Inquiry about his view that the advice of government international lawyers could be partially discounted on the basis that this was an uncertain field of law and that such advice had been wrong (or overruled) in the past.23 What I have tried to show in this section, then, is that it is precisely two of international law’s most attractive features (its embrace of centralised enforcement [war crimes trials, collective security] and its open-endedness as a form of argument) that might cause us to fear it as institutionalism converts war into imperial pest-control and indeterminacy works against constraint and obligation.

Conclusion: Complacency

When right-wing commentators in the US attacked the use of inter­ national legal norms by the Supreme Court in its decision-making, or the intrusions into state authority by the International Criminal Court, some international lawyers offered a rather odd rejoinder. Mary Ellen O’Connell, for example, stated: ‘International law does not “attack” sovereignty; it establishes sovereignty!’ (Balkanization Blog, 2010). ‘International law,’ she continued, ‘… uniquely holds the key to securing peace, prosperity, respect for human rights and pro­tect­ion of the natural environment. The greatest challenges we face are global problems.’ But this ‘sovereignty’ that international law does so much to establish might be part of the problem. Put in different terms, sover­ eignty, the very basis of international law from Westphalia onwards, is the right not to sign up to Kyoto, to Copenhagen or to, in fact, be bound by many standards at all. Sovereignty we might say is a right to pollute or a right to close one’s borders or a right to discriminate against a section of one’s population or a right to judic­ially execute children or commit what Phillip Allott called, ‘social murder’. 23

See for e.g. Jack Straw, Letter to Attorney-General of 20 February 2003.

17

Who’s Afraid of International Law?

The complacency of international lawyers arises from our faith that somehow international law’s progressive gestures and liberal credentials outweigh the material conditions of life (a degraded ecology; predatory capital; premature, avoidable death on a vast scale) partly enabled by sovereignty and for which international law might be – at least partly – responsible. And if international law really does participate in the conditions it purports to critique then a further danger presents itself. Any language that absorbs political capital (particularly the political capital of progressive dissent) for a prolonged period of time has opened up particular ways of thinking about global politics or diplomacy and closed down others. The rhetorical strategies used to talk about global order (around dinner tables, at cabinet meetings, in classrooms, in international institutions) are now thoroughly infected with legalism. International diplomacy is unimaginable with­out international law. The principles that structure international diplomacy – sovereignty (the right to execute convicted criminals), immunity (the barely qualified freedom to incite genocide), territory (the right to return boatloads of refugees to the high seas), the institutional arrangements that facilitate it (the UN, international treaty conferences, regional organisations) and the norms that regulate it (permitting violence while prohibiting ‘force’, banning dum-dum bullets and sanctioning the possession of nuclear weapons, liberal­ising trade, tolerating abject poverty) – have become an in­dis­ pens­able part of diplomacy’s repertoire.24 What, then, if international law has turned a generation of young radicals away from working against poverty, or resistance to the military-industrial complex (just reviving this term casts one as distinctly old-hat) or the prison-industrial complex or, more mod­ estly, local political reform? Is international law simply a politics ex­punged of politics? There is nothing wrong with prosecuting Karadzic or Milosevic but is it the first thing one would do on arriving from another planet 24

This paragraph is drawn from my essay in the Cambridge Companion to International Law (eds. James Crawford and Martti Koskenniemi, 2012).

18

On Being Afraid of International Law

and being confronted with the following statistics? In the time it took to present the lecture that forms the basis of this chapter, 400 children died of preventable disease or poverty; meanwhile, the richest 2% of the world enjoys half its wealth and the top 10% own 80% of global assets. In 1948, the Universal Declaration of Human Rights was adopted. In the same year, George Kennan, US State Department Chief said: … we have about 50% of the world’s wealth, but only 6.3% of its population … In this situation, we cannot fail to be the object of envy and resentment. Our real task in the coming period is to devise a pattern of relationships which will permit us to maintain this position of disparity … To do so, we will have to dispense with all sentimentality and day-dreaming; and our attention will have to be concentrated everywhere on our immediate national objectives … We should cease to talk about vague and … unreal objectives such as human rights, the raising of the living standards, and democratization.25

The position of disparity – albeit a more geographically diffused one between the excessively rich and the abjectly poor – has been maintained, reinforced and intensified in the years following Kennan’s candid observations. Meanwhile, international lawyers con­t inue to daydream.

Bibliography

Allott, Phillip. The Health of Nations (CUP, 2002). Chomsky, Noam. Towards a New Cold War (New Press, 2003). Crawford, James and Koskenniemi, Martti. The Cambridge Companion to International Law (CUP, 2012). Felmeth, Aaron. ‘International Law and Foreign Laws in U.S. State Legislatures’ ASIL Insights at www.asil.org/insights110526.cfm. Hitchens, Christopher. The Trial of Henry Kissinger (Verso, 2001). Kennedy, Duncan. A Critique of Adjudication (Harvard UP, 1998). Moorhouse, Frank. Cold Light (Random House, 2011). 25

George F. Kennan, Policy Planning Study 23 (PPS23), Foreign Relations of the United States 1948.

19

Ch a p ter 2 :

Changing the World: The Ethical Impulse and International Law Sundhya Pahuja

Dismantling Your House with Dignity: Ethics, Justice and the International

There is currently, in rich countries and poor, a groundswell of activism, activity, protest and popular engagement directed at creat­ ing a better world. Everywhere we look, people are singing, danc­ing, shopping (or not shopping), blogging, protesting, writing, perform­ ing, sponsoring and volunteering in the name of creating a more just world. It is obvious that people care. This ethical impulse is coming from both the Third and First worlds, or if you prefer, from both the Global South and the Global North. It is democratic, and not confined to young idealists and old hippies. As a human being, this makes me optimistic. I am grateful for people’s energy and engage­ ment. But as an international lawyer and scholar, the political shape of this ethical impulse and the institutional forms to which it ultimately translates gives me pause. The precise reasons for my unease became clearer to me at the Brunei Gallery at the School of Oriental and African Studies (‘SOAS’) in London in 2011 when I saw an exhibition that brought together a photographic essay by Robert Wallis with works by the Tribal Women’s Artist Collective from North Central India.1 The exhibition, called ‘A Disappearing World’, centred on the battle currently being waged between the non-Hindu tribal people in what is now Jharkhand and the resource companies who have 1

SOAS 2011; See also Wallis n.d.

21

Who’s Afraid of International Law?

been granted mining rights by the Indian state. These rights have been granted over areas where this group of people have been living since well before the existence of the Indian state, before colonisation, even before the idea of India. Much of the exhibition was devoted to chronicling the dispossession of the tribal people by the mining companies and the struggle to secure land titles and compensation that activists, both Indian and foreign, were waging on behalf of the tribal people. As I walked around the exhibition, I thought about the number of clashes like this one occurring all over the world. In Brazil, China, Canada, the US, Myanmar, Colombia, South Africa, Indonesia, West Papua – even here in Australia – extractive industries and indigenous people are meeting every day in ways that will determine the fate of the indigenous peoples as well as the world’s valleys, hills, forests and waterways. The text accompanying one picture in particular has stayed with me these many years. It was a quote from the mining company worker charged with delivering the compensation cheques to those being forcibly relocated and with the oversight of the destruction of their houses. To paraphrase, the employee described the way in which often the people to whom he delivered the compensation cheques would squat outside their huts, holding the cheques and weeping. In an attempt to accord the people some dignity, the employee would allow them to dismantle their houses themselves, rather than simply calling in the bulldozers as most of his colleagues did. He had since been demoted, he said, for slowing down the line. The dilemma of the mining company employee helped me clarify my unease about the forms of contemporary global activism. With its complex mix of empathy and complicity, his ethical position offered a useful analogy for the shape of mainstream ethical engage­ments and the ways in which they are institutionalised in the global political economy. It seems the best the ‘international community’ can currently do in the face of globalisation is to help people dismantle their houses with dignity. This is not irrelevant – some dignity is better than none – but the response is explicitly ameliorative rather than resistant. 22

Changing the World

International law shapes this capacity to respond in particular ways. Those ways both background and foreground the struggle de­ scribed above. The backgrounding happens through a slow process beginning roughly with the land appropriations of the New World in the seventeenth century. Continuing from there to the generalisation of the nation-state form in the twentieth century, international law in both its public and private variants has become the principal regulatory and institutional frame for structuring the way we share the earth. More recently, over the last sixty or so years, international law has also become the most prominent secular language through which competing aspirations about a better world are articulated and put into practice at a global level. In the present day, internationalised ethical engagements and the calls for global justice that accompany them almost invariably use the idioms of ‘development’ or ‘human rights’. But addressing global inequality at the same time as environ­ mental degradation becomes contradictory within the frame of dev­elop­ment and human rights. When the ethical impulse takes institutional form in these idioms, it also contributes to fostering a kind of global political illiteracy. This illiteracy makes it increasingly difficult to recognise and to read the behaviours of most of the world as legitimate forms of political resistance or existence. Approaches to global justice founded in development and human rights also misrecognise or misrepresent their own relationship to authority. This misrecognition encourages the production of a de-politicised account of current global conditions, channelling the impulse for empathy and compassion expressed by large numbers of people worldwide into an unintentional complicity with coercive processes of transformation.

Inequality and the Earth’s Limits

Many will be familiar with the facts that suggest that the earth is groaning under the weight of the demands we are making of it. This is true both in relation to the earth as a source of what we need to sustain us, and also (perhaps primarily) as a sink for what we 23

Who’s Afraid of International Law?

dispose of. Not only in terms of carbon emissions, but also in terms of chemical pollutants and biodiversity loss, we are approaching the boundaries of what the earth can absorb. The exhaustion of the earth is happening at a time when inequality has also been increas­ ing rapidly. The world’s richest 450 individual people now possess more wealth than the poorest 415 million people combined. In 1960, the ratio of per capita income of Europe to Africa was 30:1; by 2005 it had swollen to 40:1.2 Increases in inequality have not only played out between nations, but within them. Small elites in many poor countries have become immensely wealthy. In many instances, miraculous economic growth engenders, if not relies upon, processes which actively pauperise large sectors of the population.3 Inequality is growing in many rich countries too; events such as Hurricane Katrina remind us that the ‘Third World’ is also in the First. Eco­ nomic historian Gregory Clark suggests that in the present moment both the richest and the poorest people who have ever lived live on this earth today.4 Zygmunt Bauman talks about this in terms of the ‘collateral damage’ of global growth.5 As the news reminds us every day, these challenges are playing out against the backdrop of the changing dynamics of North–South relations and the growing economic power of several highly populous states in the South. As it is currently conceived, international law is incapable of providing an effective regulatory and institutional frame through which to view and deal with these issues.

Development as a Proxy for Wellbeing

Since the creation of the institutions of contemporary international law at the end of World War II, international law has become the most prominent secular language through which competing aspir­ ations about a better world are articulated and put into practice at 2 3 4 5

See generally, United Nations Development Policy and Analysis Division 2010. Economist Vamsi Vakulabharanam has described this as ‘immiserating growth’ (Vakulabharanam 2004). Clark 2007, p,3. Bauman 2011.

24

Changing the World

a global level. This internationalised language of justice has drawn its values, both explicitly and implicitly, from the institutionalised concept of development.6 Also since that time, exploding with the end of the Cold War, internationalised ethics has found expression in the forms and idioms of human rights. This is true institutionally and increasingly also in terms of social movements and activists. As Samuel Moyn puts it, since the death of state-sponsored socialism, human rights have become the ‘last utopia’.7 One manifestation of the centrality of the modern concept of development is that since the wave of decolonisation in the 1950s and 1960s, development has become a proxy for the question of material need or human flourishing. 8 This remains true to the present day so that when we talk about the problem of the persistence of global poverty, the solution is still development. For example, the efforts of the world to eradicate hunger, to empower women, to increase primary education, to reduce child and infant mortality, and to improve maternal health, are declared to be the millennium development goals.9 Trade negotiation rounds that purport to focus on poor countries are labelled ‘development rounds’, and the way we address the problem of environmental degradation is through sustainable development.10 Even international military interventions have been recast as development problems; money spent on security and post-war reconstruction in Iraq and Afghanistan, for example, is now officially accounted for as ‘development’ spending.11 This equivalence has been remarkably resilient, even in the face of development’s poor record. Because despite more than sixty years of ‘development’, the proliferation of a huge international 6 Pahuja, Decolonising International Law, 2011. 7 Moyne 2010. 8 Rajagopal 2006, pp. 775–780. 9 United Nations 2010. See also United Nations General Assembly 2000. 10 Indeed, the first line of response to climate change has been a series of high-level reports on the economics of climate change. See, e.g., Stern 2006; Garnaut 2011. This is another performance of the ‘economics imperialism’ described in Fine 2008, 235–240. 11 Muscara 2011; United Kingdom Department for International Development 2010.

25

Who’s Afraid of International Law?

bureaucracy, and thousands of NGOs dedicated to bringing about the end of poverty, the gains have been modest at best. Using the institutions’ own terms of monetary income-based measures of poverty, recent World Bank statistics suggest that half the world’s people live on less than US$2.50 per day, and many survive on far less than that.12 The Bank’s own statistics show only marginal gains. If the clear decline in income poverty in China is excluded, then the percentage of people living below the poverty line in the rest of the world has barely declined over the past three decades.13 This failure is especially marked given that the size of the world economy has increased twenty-fold over the twentieth century. Over this time, not only has the world become much richer, but a colossal international bureaucracy has proliferated, specifically charged with the task of alleviating poverty. William Easterley estimates that over US$2.3 trillion has been spent on foreign aid alone over the last five decades.14 And of course, over the same period, inequality has also increased and it has become unavoidably apparent that we are demanding too much of the planet, and too quickly. In addition to this failure, those states that have raised the standard of living of their general populations have almost invariably done so by specifically ignoring international developmental orthodoxies.15

The History of Development

One potential response to the observation that ‘development’ has become the axiomatic frame for international approaches to poverty reduction is to argue that development is just a word or place-marker for something else. According to this argument, what we intend when we use the word ‘development’ is simply to indicate a general encapsulation of people improving their standard of living: what is important is the idea of getting better or progress that it implies. But 12 World Bank 2012. 13 Ibid. 14 Easterley 2007, p. 4. 15 Chang 2008.

26

Changing the World

as Carl Schmitt reminded us almost a hundred years ago, concepts must be understood in terms of their concrete political existence.16 Development is not simply a neutral place marker, and as an idea it does not simply mean a general improvement of any kind in people’s quality of life. As a story about the world, what development does is to organise space into time: specifically, the developed world is the future of the developing world, and the present of the developing world is the past of the developed world. In this story, we are all united in a universal history in which we are moving toward a specific end state. Development has a very particular history, which is a legacy of both imperialism and the Cold War, and which is intimately inter­ twined with the history of contemporary international law. It is, quite precisely, not just a word; it is a specific way of knowing the world that is both discourse and institutional machinery. Historic­ ally, the emergence of the concept of development is closely related to decolonisation. The end of the Second World War, the success of independence struggles and the fatigue of Empire meant that former colonies were increasingly decolonising. The fact that the jurisdiction of European public international law was uni­ver­sal­ ised and globalised during the imperial period meant that the European nation-state form was granted a monopoly over legal personality.17 Accordingly, colonies could decolonise only through self-determination as nation-states, and only within former colonial boundaries, as expressed in the doctrine of uti possidetis. And yet even as international law, creating a monopoly over nation-statehood, channelled the results of decolonisation into nation-statehood, successful struggles for independence still con­ fronted the identity of the international ‘community’ with ways of living, being and socially organising quite different to European ways.18 During and after the period of decolonisation, what we might call the changing complexion of the international community 16 17 18

Schmitt 1993, p. 119. Strawson 2004, pp. 513–518. Pahuja, ‘Decolonisation and the eventness of international law’, 2011.

27

Who’s Afraid of International Law?

potentially exposed international law’s universal territorial reach as precisely an outcome of imperial geography. Were it to be regarded as a competition between equals, the meeting between different systems of law, society and economy could potentially also reveal that international law’s claim to speak the law authoritatively was founded in a hierarchy secured historically by racial difference.19 It was the modern discourse of development that provided a way to maintain the putative objectivity and universal reach of internat­ ional law in the face of these differences. This maintenance was effected by securing those values as universal in a new hierarchy. This hierarchy was anchored by the freshly minted concept of Gross National Product. The concept of Gross National (or Domestic) Product (‘GNP’ or ‘GDP’) was invented in the 1940s and 50s, around the same time as the concept of development.20 Conceptually, GDP provided an ostensibly empirical or ‘objective’ ratification of the United States’ position as the (First) world’s most powerful nation. It also replaced race as the measure of superiority between peoples in ways that the Holocaust had made unpalatable, even to the remaining imperial powers. Even with the realisation of the promise of formal sovereign equality, nation-states could still be ordered in a hierarchy: GDP instead of race became the organising value. What made this particular ladder so attractive was that it seemed to throw out the idea of racial difference – which was both humiliating and unchangeable – and replace it structurally with a promise; that states at the bottom were included within the bosom of the international community and set on a path toward joining the ranks of the chosen few ‘developed’ states at the top. This ‘new’ hierarchy was what Jennifer Beard has called a hierarchy of desire21 – and it was structured around both a promise and a technical 19 Pahuja, Decolonising International Law, 2011. 20 Mitchell, ‘Economists and economics in the twentieth century,’ 2005; Mitchell, ‘The work of economics: how a discipline makes its world’, 2005; Greenwald 1982. Its inventor was Simon Kuznets. 21 Beard 2007.

28

Changing the World

challenge. And so development immediately provided a means of ordering the world in which everyone was included on formally equal terms, but in which a hierarchy – and essentially the old hierarchy – was maintained. The seeds were also planted for inequality to become a technocratic rather than political question. Development therefore became central to what Gilbert Rist has called the ‘anticolonial imperialism’ of the Cold War era. 22 It quickly became – and arguably still is – the primary idiom in which demands for greater material equality were issued, both inside and outside the nation-state.

Development and Human Rights

The human rights movement – as a legal and institutional phen­ omenon at least, if not also a political phenomenon – has also come to accept development as a proxy for both the means to allev­ iate poverty and address inequality, and its end. The human rights move­ment can be seen to have contributed to the dominance of the devel­op­ment paradigm in two particular ways. First, over the last two decades, human rights discourse has been used to explain why global poverty should matter to the rich world. This justification has been both in terms of legality and morality.23 In both idioms, the justification relies explicitly on development as the solution to global poverty. Some scholars and activists have pushed this even further by arguing for a right to development, and while that initiative has gained little traction, it is a telling example of the way that the concepts of human rights and development have captured the imaginative domain of institutional and state-based approaches to global poverty in both the North and South.24 Second, over the same period, human rights have been used to try to refine the meaning of development to combine social and political ‘goods’ with the more orthodox notion of economic growth. We 22 23 24

Rist 1997, p. 75. Pogge 2005. Orford 2001.

29

Who’s Afraid of International Law?

can think of this as an explicitly ameliorative relationship between human rights and development. In this ameliorative vein, activists and scholars have also turned to rights to soften or humanise the development process. This includes attempts to broaden the defin­ition of development beyond economic growth to include other intang­ ible human goods, 25 to accord procedural rights against the state as it carries out the development project, to sensit­ise development to its effects on women, to provide the case for compen­sat­ion for the forced displacements carried out in the name of development, and to provide the normative impetus for ‘inclusive’ or ‘pro-poor’ growth.26 Cumulatively, these moves have resulted in the relatively main­ stream adoption of a ‘rights-based approach’ to development.27 Typic­ ally, the expansion of development and its convergence with human rights is understood as a good thing. There are many con­temporary efforts that are directed at expanding the reach, enforcement and mutual coherence of these regimes. But these concepts as they are currently institutionalised make addressing growing global inequal­ ity within the earth’s limits a contradiction, for two reasons. First, economic growth remains the not-so-secret beating heart of the development project, and development itself remains both process and horizon. Secondly, the structural homologies between human rights law, development and international law (and the way the three concepts interact) combine to locate the causes of poverty and suffering in present and local causes, precluding legal measures that address the international or historical causes.28 I will deal briefly with each of these problems or features in turn. Turning to the centrality of growth, it is true that redefinitions of development have been critical of the ‘trickle-down’ approach to poverty alleviation. They have also tried to address the dislocations caused by development as well as the increases in inequality that have 25 26 27 28

Sen 1999; Nussbaum 2011. Ravallion 2004; Ianchovichina and Lundstrom 2009. United Nations Development Programme 2000; World Bank 1998. Pahuja 2010, p. 368.

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Changing the World

accompanied growth. But they still rely on growth as the engine of development and on development as the goal. Even Amartya Sen’s idea of development as freedom, for example, ultimately relies on economic growth as the principal driver of increased prosperity.29 Because of this sympathy, institutionalised human rights have necessarily been interpreted in ways that leave the expansion of the market fundamentally unchallenged, along with the associated ideology that a growth-based approach to development assumes. Upendra Baxi has described this as the growth of ‘trade-related market-friendly human rights’. 30 This emphasis on growth is being maintained in the face of an overwhelming body of scientific evidence that suggests that we are already using the equivalent of 1.5 planets.31 In other words, if everyone on earth lived with the ecological footprint of an average Australian, we would need approximately five planets to sustain the current population of the earth.32 To put it differently, the earth could keep around 1.8 billion people living at the current con­ sumption levels of an average person in a high-income country (or a rich person in a poor country), as opposed to the almost seven billion we currently have with vastly disparate consumption levels. The implications of this fact have been recognised in the turn by states and international institutions to the promotion of ‘sus­tain­able development’. At its core, sustainable development means ‘develop­ ment that meets the needs of the present without comprom­ising the ability of future generations to meet their own needs’.33 In theory, this idea of sustainable development understands that three intersecting spheres – of society, environment and economy – must complement each other if development is to be sustainable. The goal is then to find the ‘sweet spot’, or point of overlap, between these three distinct

29 30 31 32 33

Sen 1999; Pahuja, Decolonising International Law, 2011, 222 et seq. Baxi 2002. Global Footprint Network 2010. World Wildlife Fund International 2010. World Commission on Environment and Development 1987.

31

Who’s Afraid of International Law?

spheres.34 But in practice, without a fundamental redefinition of each distinct sphere, the ‘sweet spot’ is a very limited space, if not a myth. Because it is the lynchpin of the developmental paradigm, economic growth has been difficult to dislodge from the heart of the devel­ opment project. Accordingly, sustainable development is directed towards sustaining growth-based development rather than towards sustaining the social, natural and political environment in which it takes place.35 But even the more modest horizon of sustaining growth-based development may not be achievable. The main hopes of that horizon are pinned on three ideas. First, that technology will enable growing consumption through ‘green growth’;36 second, that we will ‘clean up’ after development has taken place; and third, that growth should be ‘inclusive’ or ‘pro-poor’.37 Even on their own terms, a close study of each of those hopes shows us that sustainable development is at best capable of producing less unsustainable development.38 While this in itself is not a bad thing, sustainable development as a discourse is also profoundly de-politicising. It provides a way to deal rhetorically with the contradiction between the devel­op­ ment prescription of increased consumption-based growth and the im­possibility of making good the development promise when we are already using more of the earth’s resources than can be sustained. 39 Even a cursory study of institutional and political practice shows us that the discourse of sustainable development has diverted institutional energies from the urgent need to recognise the implications for a growth-based model: the fact that we are bypassing the earth’s biophysical capacity. This is manifesting not just as climate change, but also as water scarcity, extreme biodiversity loss, accumulated chemical poisons in the atmosphere and the 34 35 36 37 38 39

Hopwood, Mellor and O’Brien 2005. Ibid. The 2010 world development report by the World Bank is a good example of this: World Bank, World Development Report, 2010. Baskin 2011. See Ravallion 2004; World Bank 2009. Baskin 2011. World Bank, Our Dream, 2010.

32

Changing the World

decline of the carrying capacity of the oceans.40 The idea of a ‘cleanup’ or of the replacement of those losses by technological means – or even the idea that we actually fully understand what is being lost – is a fantasy even according to the best available science. The second reason why development and rights prevent us from simultaneously thinking about inequality and limits is that inter­ national human rights law and institutional discourses of devel­ opment focus on economic growth as the solution to the problem of poverty and locate the causes of poverty and suffering in the present and the local.41 Attempts to vary this diagnosis from within the developmental frame – by arguing that the structures of the global political economy contribute to immiseration,42 or that trade policy and international conditionalities prevent development,43 for example – just don’t ‘stick’ in institutional terms. The story about the causes of poverty embedded within development discourse is homologous with the structure of international law. The effect is to preclude international legal measures that address the global or historical causes of poverty and inequality. The causal story combines with the way in which the development story relies on an idea of knowledge generated in the North and applied in the South. The effect of this combination and its institutionalisation in international law is to vest responsibility downwards into the nation-state, and to vest authority upwards into the international community. So, when international practices such as unfair trading regimes, damaging conditionalities, or strategic military interventions con­ tribute to the emmiseration of people in the global South, inter­ national law has no teeth to bite the international; it can only bite the local with a bite that is harder and wider in its application.44 Accordingly, when the World Bank calls for attention to be paid to 40 41

Meadows et al 2009. Pahuja, ‘The poverty of development and the development of poverty in international law’, 2010; Gruffydd Jones 2006. See also Stiglitz 2002. 42 See the work of dependency theorists, such as Andre Gunder Frank: e.g., Frank1978; Frank 1967. 43 Chang 2002. See also Reinert 2007. 44 Pahuja, Decolonising International Law, 2011; Orford 2003.

33

Who’s Afraid of International Law?

human rights, it does not subject its own practices to human rights scrutiny, but expands the conditions on borrower states to include human rights. As I have argued elsewhere, that same structure allows the Global North to engage in self-interested economic behaviour and to present that behaviour as altruistic. International Monetary Fund conditionalities around free trade are a prime example of this.45

Where to From Here?

Why not then simply abandon international law as a site of struggle? Perhaps we should accept the analysis of China Miéville, that ‘a world structured around international law is a world of imperial violence’.46 Why stick with international law at all? To answer that question, we need to think about the different reasons why people stay with international law, if not necessarily within it. There are five postures into which people’s attitudes generally fall. The first posture hinges on the belief that international law is a social artefact or practice that is on the side of the good. The second is a variant of this that says international law is an empty vessel into which content of any kind can be poured, including progressive content. These two stances may not be blind to critiques of international law, but they see bad outcomes wrought by law as distortions of power in an otherwise neutral system of rules. These two stances cover most of the mainstream approaches to international law and justice. More critical engagements with international law, that nevertheless still stick with it, fall into the third and fourth categories. The third category includes those who are alive to international law’s history and critical of its operation, but yet maintain a faith in its promise. Third World Approaches to International Law, or ‘TWAIL’, is a good example of this. Then there is the fourth category of those who we might call ‘principled opportunists’ who use international law 45 46

Pahuja 2012. Miéville 2005.

34

Changing the World

tactically in particular political battles or for particular struggles.47 This attitude entails a rejection of the ‘distortion thesis’ implicit in mainstream international law: if every inequality, or every abuse and infraction is understood as a demonstration of the fact that the order has not yet reached its full potential, it is hard to see the basis on which one could reasonably hope that this same order will eventually be equal to its own aspirations. Successfully adopting a stance of principled opportunism would require a historical and critical engagement with international law that considers how international law is implicated in the production and maintenance of exploitation and disadvantage. This is important so that, as Knox puts it, tactics are not mistaken for strategy, or that the price of the battle is not the war. The fifth reason that one might not abandon international law as a site of struggle is because of a recognition that not everyone has the luxury of disengagement with international law. For some – possibly even most – of the world, if they don’t do international law, international law will ‘do’ them. Understanding what I mean by this means paying attention to claims being made for the authority to speak the law, and to understand how and why the authority to decide what is law is produced and exercised. In international legal terms, generating this kind of story means extending what we might traditionally think of as the places or sites where international law operates, to what some scholars are calling the ‘new jurisdictions’ of international law.48 Jurisdiction, from juris-dictio (‘to speak the law’), is a tradition of thinking that pays attention to authority, specifically to the claim to speak the law. Within these sites or ‘new jurisdictions’ of international law there is contestation between two possible understandings of the good: the bringing-into-being or ‘materialisation’ of international law and its projects (such as development) competes with alternative world views or conceptions of well-being. This is a meeting between laws, but the contestation is generally not seen as such. Thinking about jurisdiction encourages 47 48

Knox 2011. Eslava 2009; Dorsett and McVeigh 2012. See also Orford 2011.

35

Who’s Afraid of International Law?

us to look at that situation as a meeting between laws, rather than reading the situation as something else. The story we began with is a good example of this meeting, and of the implications of how we read it for an ethical engagement.

A Meeting between Laws

When we gaze from the city, what we see when mining companies and indigenous peoples meet is ‘development’. The view from the city persuades us that the modernist project of making the world is already complete. The exploitation of the ‘natural resources’ of the earth is a matter of when and how, not whether. Many see the dislocations that process entails and use human rights approaches to ameliorate people’s suffering. But it is less commonly recognised that the encounter is also the meeting of two conflicting systems of law.49 As Arundhati Roy points out in Broken Republic, to the Donghri people, the Hills of Orissa are full of law (and full of gods).50 To the mining companies, and to the Indian state, on the other hand, the hills are full of bauxite. Looking at the hills and seeing the bauxite, as well as the possibility of its extraction, means taking another kind of law for granted, leaving only the bauxite visible to the naked eye. The relocation of the people who live there becomes a question of procedure. Although these two systems of laws exist at the same time and in the same place, the continuing existence of one kind of law as law is repressed. The ostensibly ineluctable passage of history is what allows us to repress one law as law. Globally, a meeting be­ tween laws and the repression of one of them is a daily occurrence. The ongoing repression of other systems of law by the law of the nation-state is one dimension of the modern legacy of imperialism; it is part of the legacy we tend to call ‘development’.51 The indigenous people’s resistance to mining in India is one ex­ ample of this. Similar battles are being waged everywhere in many 49 50 51

Dorsett and McVeigh 2012. Roy 2011. Scott 2009.

36

Changing the World

contexts. In the developmental mindset, these forms of existence are read through the lens of universal history as remnants. Accordingly, these practices of resistance are read as traditional, backwards, ignor­ ant or insane. From the far left (but still developmental) perspective, they are read as false consciousness. From all points in the political spectrum, temporality works as a technology of governance. In the best version of this story, human rights humanises this process with procedural rights and compensation for the loss. But the process itself is nevertheless understood as the inevitable course of history. In contrast to this, jurisdictional thinking understands this as a conflict of laws, and as an exercise of the authority to both speak the law and determine what law is. Thinking about the contestation as a conflict of presently existing, legitimate and justified laws makes a different ethical demand and asks us to take responsibility for that exercise of authority and our relationship to it. Such thinking does not offer us the absolution that the discourse of progress, or the tide of history, offers when we accept the developmentalist frame. The point is not that the pursuit of compensation for those who are displaced is a bad thing, but that it approximates justice – however imperfectly – only from a particular worldview. A worldview implies a way of understanding the world and knowing it, as well as engaging with it and determining that to which we aspire. Those aspirations are then carried out by people who have the capacity to make that worldview authoritative.52 This recognition demands taking ethical responsibility for that decision, and for that exercise of authority. The question of economic growth as the best way to ensure human happiness, and the relentlessness extraction of resources that goes with it, are then understood as political choices, not the inevitable events in a historical flow. Once we understand that worldview in terms of politics and conduct, we can see more clearly the violence that an assertion of one form of authority against another engenders, rather than seeing transcendent values unfolding as progress and history. 52

Nermeen Shaikh calls this the ‘benevolence of empire’: Shaikh 2007.

37

Who’s Afraid of International Law?

Conclusion

In the Australian context, most talks of the kind that this essay is based on – including my own – begin with an acknowledgement of the ‘traditional owners’ of the land we meet on. This acknowledge­ ment is a gesture of good faith which tries to avow – and perhaps even to take responsibility for – the dispossession that has backgrounded every meeting which has taken place since then. Implicit in this acknowledgement of ‘traditional ownership’ though, is another kind of meeting, one that is repressed. This more secret meeting is one between indigenous and non-indigenous laws.53 These two systems of law exist at the same time and in the same place, but the continuing existence of indigenous laws as law is repressed. The qualification of the dispossessed as ‘traditional’, or ‘customary’ owners is the marker of this repression, a gesture that is ratified by history. The simultaneity of the avowal of the dispossession, and its disavowal by history, is exemplary of the form that ethical engagement often takes in a post-colonial context. In this, an orientation toward the ethical is genuinely sought, but the relationship of the speaker to the authority to speak the law – and to determine which law is law – is not understood to be problematic because the ‘tide of history’ absolves us of responsibility for that relation. That difficult ‘ethics of the postcolony’, as we might call it, is the ethics that animates ‘poverty alleviation’ as a project of international law. The alliance of developmentalism, human rights and international law ultimately pits equality and environment against each other. That trinity also produces a frame of reference that casts some forms of existence, resistance and law as quaint remnants of the past. This casting enables the coercive transformation of most people in the world in the interests of a few. It does so while offering the comfort of history as a justification for the violence that transformation engenders. Taking seriously the tradition of international law as a language of concern and responsibility means understanding it too as a language and practice of authorisation. 53

Dorsett and McVeigh 2012.

38

Changing the World

Bibliography

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Changing the World Ravallion, Martin. 2004. ‘Pro-poor growth: a primer.’ World Bank Policy Research Working Paper No 3242, accessed February 3, 2012, http://web.usal. es/~bustillo/RavallionPPGPrimer.pdf. Reinert, Erik. 2007. How Rich Countries Got Rich and Why Poor Countries Stay Poor. London: Constable. Rist, Gilbert. 1997. The History of Development: From Western Origins to Global Faith. London: Zed Books. Roy, Arundhati. 2011. Broken Republic: Three Essays. London: Hamish Hamilton. Schmitt, Carl. 1993. ‘The age of neutralizations and depolitizations (1929)’, translated by J. McCormick. Telos 96. Scott, James C. 2009. The Art of Not Being Governed: An Anarchist History of Upland Southeast Asia. New Haven: Yale University Press. Sen, Amartya. 1999. Development as Freedom. Oxford: Oxford University Press. Shaikh, Nermeen. 2007. ‘Interrogating charity and the benevolence of empire.’ Development 50(2): 83–89. SOAS, University of London. 2011. A Disappearing World: Ancient Traditions under Threat in Tribal India. Tradition, Continuity and Conflict in Jharkhand State. Viewed February 3, 2012, www.soas.ac.uk/gallery/ disappearingworld. Stern, Nicholas. 2006. The Economics of Climate Change: The Stern Review, London: HM Treasury. Stiglitz, Joseph E. 2002. Globalisation and Its Discontents. New York: W. W. Norton & Co. Strawson, John. 2004. ‘Universalising international law’, review of Universalising International Law, by Christopher Weeramantry, Melbourne Journal of International Law 5(2): 513–518. United Kingdom Department for International Development. 2010. Draft Structural Reform Plan. July 27. Accessed February 3, 2012, www.dfid.gov. uk/Documents/DFID_SRP.pdf. United Nations Development Policy and Analysis Division. 2010. ‘Chapter 1: Growth and development trends, 1960–2005.’ In World Economic and Social Survey 2010: Retooling Global Development, 1–27. New York: United Nations. United Nations Development Programme. 2000. Human Development Report 2000: Human Rights and Human Development. New York: Oxford University Press. United Nations General Assembly. 2000. United Nations Millennium Declaration. UN Doc. A/RES/55/2, September 8. United Nations. 2010. We Can End Poverty 2015: Millennium Development Goals. Accessed February 3, 2012, www.un.org/millenniumgoals. Vakulabharanam, Vamsi. 2004. ‘Immiserating Growth: Globalization and Agrarian Change in Telangana, South India between 1985–2000.’ (PhD thesis, University of Massachusetts). Wallis, Robert. Dark Side of the Boom. Panos Pictures. Viewed February 3, 2012, www.panos.co.uk/stories/1-5-1367-1861-RWA/Robert-Wallis. 41

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Ch a p ter 3 :

Who’s Afraid of the

International Criminal Court? Tim McCormack

Is it not possible for us to imagine a vibrant political world, free of our most extreme and violent excesses and iniquities? Can we not accomplish this by supporting the only permanent international criminal court without sacrificing that political power necessary for any country to provide its people a dignified existence? Are the political powers we judge indispensable to the preservation of that dignity and the Right to Sovereign immunity one and the same thing? Under ordinary circumstances, perhaps the answer is yes, but surely not so if the country in question hosts or commits crimes whose description lies ‘beyond the power of language to adequately portray.’ Such an authority forfeits not only the dignity of its people, but every fiber of its legitimacy. All [120] heads of state and governments of the states party to the Rome Statute have accepted this maxim; while they continue to maintain their rights to sovereign immunities in all other matters, this right is suspended where atrocity crimes are in evidence. They are not all unrestrained idealists, and the world will long remain imperfect. But they acknowledge by their actions that we can no longer offer licence to impunity through the perversion of a customary right when human conduct turns barbarous.1

1

al-Hussein 2009.

43

Who’s Afraid of International Law?

An Opportune Time for Reflection

I am an unashamed enthusiast for the institution of the International Criminal Court (ICC) and for its potential to increase respect for the Rule of Law. It is not my position that the Court represents a com­ prehensive, systematic and impartial system of global justice. On the contrary, I accept that there are significant limitations to the exercise of the Court’s jurisdiction. Others have seized upon those limitations to condemn the Court as fundamentally flawed 2 or have argued that the negotiation of a Statute unacceptable to the US guarantees the failure of the ICC.3 I prefer the view of Jordan’s Prince Zeid that the Court is worthy of support because of its unprecedented challenge to the ‘perversion of a customary’ license to impunity in the face of barbarity. It is important to acknowledge at the outset that the ICC is a re­ active institution. The Prosecutor has the capacity to bring charges of genocide, crimes against humanity or war crimes (and at some stage in the future crimes of aggression) in respect of alleged atroc­ ities that have already occurred. Of course we can hope that the work of the ICC has some deterrent effect on would-be perpetrators of atrocity but the reality remains that by the time a case comes to the ICC the devastation has already occurred and victims will be left with their loss, their pain, their indescribable suffering. Any celebration of the establishment of the ICC must only be a celeb­ ration of a sub-optimal reality. The preference must always be to avoid the conflict that resulted in the atrocities in the first place and those who dedicate their efforts and their resources to conflict pre­ vent­ion must be encouraged and applauded. The establishment of the ICC is a concession to our collective failure to prevent atrocities occur­ring otherwise. Nonetheless because fifteen years have passed since the entry into force of the Rome Statute4 there is reason to pose the question ‘Who’s 2 3 4

Kaul and Kreß 1999, pp. 170–171. See, e.g., Goldsmith 2003. 1 July 2012.

44

Who’s Afraid of the International Criminal Court?

Afraid of the International Criminal Court?’ At various stages in the past any attempt to proffer an answer would inevit­ably have reflected different perspectives. The successful negotiation of the Statute at the Rome Diplomatic Conference in 1998 was heralded as a historic breakthrough, but I remember the most optim­is­tic predictions of entry into force around that time were 5–10 years. When I arrived back in Australia from the Rome Diplomatic Con­fer­ence some of my colleagues were more cynical. One even asserted con­fidently that entry into force would never happen. Through­out the Court’s nascency Article 24(1) of the Rome Statute featured prom­inently. Could it be said in the years from 1998 to 2002 that anyone was genuinely afraid of a Court which then did not exist and which would only have prospective jurisdiction follow­ing an indeterminate date of entry into force of its Statute? It is true that both ex ante and immediately ex post entry into force of the Rome Statute the Bush Administration demonstrated extra­ordinary antagonism towards the Court. Others have provided detailed critiques of measures such as ‘The Hague Invasion Law’, 5 the negotiation of Article 98(2) Agreements 6 and the insistence on exclusion of ICC jurisdiction clauses in UN Security Councilmandated peace operations.7 Those measures reflected a hostility suff­iciently deep to prompt speculation that the US was not only intent on protecting itself from any ‘unauthorised’ ICC action against a US national but on strangling the Court at its inception – includ­ ing by attempting to convince other States to withhold their sig­nat­ ures.8 The Economist reported: ‘“All we need from the United States is benign neglect,” sighed one senior court official. “Is that too much to ask?”’9 The Bush Administration’s hostility emanated from a fear of the Court’s potential ability to prosecute a US national without 5 6 7 8 9

See, e.g., Johnson 2003; Faulhaber 2003. See, e.g., Meyer 2005; Barnidge 2004. See also Murphy 2003. See Zwanenburg 1999; Murphy 2002. See also United Nations Security Council 2002; United Nations Security Council 2003 Schabas 2011, pp. 31–32. See Grant 1999, p. 346. ‘The International Criminal Court. For us or Against Us’, 2003.

45

Who’s Afraid of International Law?

Washington’s approval. John Bolton, then US Under-Secretary of State for Arms Control and International Security, en­cap­sul­ated this neatly in a letter to the editor of The Economist in re­sponse to the article quoted above: Sir – You paint a distorted picture of American policy toward the International Criminal Court (‘For us or against us?‘, November 22nd). You quote an unnamed official lamenting that the ICC seeks only ‘benign neglect’ from the United States. America’s goal is simply to protect its citizens from the jurisdiction of a court to which it is not a signatory and whose precepts are inconsistent with American standards of constitutionalism. The bilateral agreements we use to do so arise from an unimpeachable source: the treaty that created the ICC itself.10

The relatively rapid lodgement of the requisite 60 ratifications – triggering entry into force of the Rome Statute within four years of opening for signature – exceeded all expectations. But even in the early years following entry into force I suspect that few genuinely feared the fledgling Court. While the number of States Parties to the Rome Statute steadily increased (doubling from 60 in April 2002 to 120 in January 2012), the prevailing orthodoxy among non-States Parties was that non-participation protected a State’s nationals from ICC jurisdiction. Fourteen years after entry into force previously orthodox attitudes are discredited. UN Security Council Resolutions 1593 (2005) and 1970 (2011), referring the situations in Darfur and Libya re­ spectively to the Prosecutor of the ICC, have exploded the myth that the nationals of non-States Parties are beyond the reach of the Court. The arrest warrants against Omar al Bashir (despite the apparently slim prospects of activation) and Muammar Gaddafi (even though his death terminated all proceedings) reverberated throughout the world. Those arrest warrants have not heralded a new era of systematic UN Security Council resort to the ICC. 10

Bolton 2003.

46

Who’s Afraid of the International Criminal Court?

Presidents Bashar al-Assad, Mahinda Rajapaksa, Robert Mugabe and Senior General Than Shwe, for example – all heads of State of non-ICC-States Parties – have not yet been subjected to UN Security Council referral to the ICC. It is also clear that there will be no Security Council referrals of any situations in which one or other permanent member has a vested national interest. But the fact that two non-States Parties have been subjected against their will to ICC jurisdiction by Security Council fiat demonstrates the potential of the ICC to challenge what Prince Zeid describes as a ‘licence to impunity’. This unprecedented demonstration of ICC potential has fuelled fear of the Court’s potential reach. The existence of the Court, constant calls for referral to its jurisdiction, the willingness of the Prosecutor to request approval for the issuance of arrest warrants and the willingness of Pre-Trial Chamber judges to assess and, where warranted, approve the issuance of such warrants has shifted the geo-political landscape. Challenges remain in relation to limitations to the Court’s jurisdiction as well as to the consistent exercise of its jurisdiction in circumstances where the Court has the capacity to act. But offering an answer to the question in the title of this chapter must now be different to what it could, or would, have been earlier in the Court’s history. We will return to these challenges as well as to evidence of increasing concern – even fear – of the Court. First though, I explain some of the mechanics of ICC jurisdiction – of how a case comes to Court and of the limitations to the exercise of ICC jurisdiction.

The Mechanics of ICC Jurisdiction

The ICC is the world’s first permanent international criminal court. All other international criminal tribunals have been ad hoc for specific conflicts. The Nuremberg and Tokyo Tribunals were un­precedented – established post-World War II by the victorious allies for the prosecution of senior German and Japanese defendants respect­ively. More recently in the 1990s, and now into this second 47

Who’s Afraid of International Law?

decade of the 2000s, the international community has witnessed a proliferation of ad hoc international criminal courts and tribunals: in 1993 the International Criminal Tribunal for the Former Yugoslavia (ICTY); in 1994 the International Criminal Tribunal for Rwanda (ICTR); in 2000 the Serious Crimes Unit in East Timor; in 2002 the Special Court for Sierra Leone (SCSL); in 2003 the Extraordinary Chambers in the Courts of Cambodia (ECCC); and in 2009 the Special Tribunal for Lebanon. The ICC is unique among all these courts and tribunals. It alone has been created with no specific conflict situation in mind and with no geographic or temporal (after entry into force that is) limitation to the exercise of its jurisdiction. This world’s first permanent international criminal court was a long time coming. The first known call for a multilateral criminal court was in 1872 by Gustave Moynier, a co-founder of the Inter­nat­ ional Committee of the Red Cross.11 The concept was first dis­cussed by the international community in the 1899 Hague Peace Con­fer­ ence and the subject of substantive work by a UN drafting com­mit­ tee in the 1950s.12 The announcement of the adoption of the Rome Statute to end the Diplomatic Conference in July 1998 was met with a spontaneous (and unusual in diplomatic circles) outburst of emotion reflecting in substantial part the collective sense of historic achievement. The Court has jurisdiction over individuals for war crimes, crimes against humanity or acts of genocide occurring after the date of entry into force – 1 July 2002. In 2010, during the First Review Conference for the Rome Statute in Kampala, the Assembly of States Parties achieved another significant and historic breakthrough by reaching agreement on the definition of the crime of aggression. That new category of crime will be added to the existing jurisdiction ratione materiae of the Court at the earliest in 2017 once the requisite number of States Parties to the Statute ratify the new amendment. 11 12

See Hall 1998. For detailed discussion of the historical background to the ICC see, e.g., Bassiouni 1991; Ferencz 1997; McCormack 1997, pp. 44–63.

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Following that, the crime of aggression, in certain limited circum­ stances, will also be triable by the ICC.13

Three Triggering Mechanisms Pursuant to Article 13 of the Rome Statute, the Prosecutor is authorised to investigate alleged crimes in the Statute on the basis of the exercise of any one of three ‘triggers’: (1) referral by a State Party to the Statute; (2) referral by the UN Security Council; or (3) the Prosecutor acting proprio motu – on his/her own initiative – with the approval of an ICC Pre-Trial Chamber.14 Four separate situations have been referred to the Prosecutor by States Parties utilising the first triggering mechanism: the Demo­ cratic Republic of the Congo (DRC); Uganda; Mali and the Central African Republic (CAR). In each of these situations, the relevant national government approached the Prosecutor to seek assistance with the justice demands arising from the conflict in their respective country. There is nothing controversial here. The ICC was established as a complement to national courts – only able to step in when relevant national authorities are ‘unwilling or genuinely unable’15 to deal with cases themselves. The desire of four African nations to seek the assistance of the ICC seemed an entirely appropriate resort to the new Court. The Prosecutor received approval from the Pre-Trial Chambers of the Court for the issuance of warrants of arrest for accused in relation to all four situations.16 The first trial to be concluded at the ICC arises from the conflict in the DRC.17 The second18 and third19 trials arise from the DRC and CAR conflicts respectively. 13 14 15 16 17 18 19

For a detailed critique of the new definition of the crime of aggression see Clark 2010. Rome Statute 1998, art 13. Rome Statute 1998, art 17. For details of the particular cases arising from each of these situations see the ICC website at: www.icc-cpi.int/Menus/ICC/Situations+and+Cases/. Prosecutor v. Thomas Lubanga Dyilo 2012. Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui 2014. The Prosecutor v. Jean-Pierre Bemba Gombo.

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In the case of the second ‘trigger’, the UN Security Council adopts a resolution, obviously without a negative vote (veto) by one of the permanent members, referring a situation to the ICC Prosecutor and authorising the commencement of an investigation. As already mentioned, the Council has adopted two such resolutions to date – Resolution 159320 referring the Darfur situation and Resolution 1970 21 referring the Libyan situation. The Prosecutor opened invest­ igations into both situations and received approval for the issuance of warrants of arrest including, most notably, for President Omar al-Bashir of Sudan 22 and also for Colonel Muammar Gaddafi and his son Saif al-Islam Gaddafi of Libya.23 Neither Sudan nor Libya were, or are, States Parties to the Rome Statute. Both countries exercised their sovereign discretion not to participate in this particular treaty and yet their incumbent Heads of State became the ICC’s highest profile accused. It is a fundamental principle of treaty law that a State must validly express its consent to be bound by a treaty’s terms24 and neither Sudan nor Libya have ever expressed any such consent to the Rome Statute. But of course both Sudan and Libya are Member States of the UN and are bound, by their own consent, to the terms of the UN Charter. Article 25 of the Charter renders Security Council resolutions binding and obligates Member States to ‘agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’. Pursuant to Chapter VII of the Charter, the Council can authorise any measures – including lethal military force – against a Member State to maintain or restore international peace and security. The Rome Statute’s inclusion of UN Security Council referral of situations to the ICC Prosecutor – even involving a non-State Party to the Statute and against that State’s consent – reflects the constitutional authority of the Security Council enshrined in the UN Charter. 20 United Nations Security Council 2005. 21 United Nations Security Council 2011. 22 See Prosecutor v. Omar Hassan Ahmad al-Bashir. 23 Prosecutor v. Muammar Mohammed Abu Minyar Gaddafi. 24 Vienna Convention 1969, arts 34–38.

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Ironically, it is precisely the same principle of treaty law – a State cannot be bound by a treaty to which it does not consent – that the US consistently cites in support of its own objection to participation in the Rome Statute.25 There is hypocrisy in the readiness of members of the Security Council to refer a situation involving a non-State Party to the Prosecutor of an international court that those same States are not themselves prepared to join. But the US, China and Russia all know that the Security Council will never refer Guantán­amo Bay, Tibet or Chechnya to the Prosecutor of the ICC. Security Council referral of only select non-States Parties exacer­bates the disparity inherent in the veto power. It is true that the situations of Sudan and Libya are different. In relation to Libya, the UN Security Council sided with the Transitional National Council against Gaddafi’s regime. In June 2011, at the time the arrest warrant against him was confirmed by the ICC Pre-Trial Chamber, Gaddafi was still the ruler of Libya but no longer officially recognised as the legitimate ruler by the overwhelming majority of States. Whether or not Gaddafi could have claimed incumbent Head of State immunity from criminal prosecution in foreign courts is a moot question. For five months from June to November 2011 Gaddafi was the subject of an Interpol red alert for arrest and transfer to The Hague. Throughout that fivemonth period, the ICC showed a glimpse of its potential potency. Gaddafi’s death resulted in the termination of ICC proceedings against him 26 but did not damage the Court’s lustre. After all, Gaddafi’s death was entirely beyond the control of the ICC (and also beyond the control of the Transitional National Council, it appears). In stark contrast the arrest warrant against Omar al-Bashir con­ tin­ues to engender controversy. Bashir remains the incumbent Head of State of Sudan, appears well-entrenched in power, continues to taunt the ICC and travels widely including to Kenya, Chad and Malawi – all States Parties to the Rome Statute willing to defy their .

25 26

See, for example, Scheffer 1999, p. 18. The case against Muammar Gaddafi was terminated on 22 November 2011 following confirmation of the death of the accused.

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treaty obligations in favour of bilateral relations with Khartoum. In 2011 Bashir even travelled on an official State visit to China and was welcomed by Premier Hu Jintao despite the controversy surrounding the visit.27 The marking of the seventh anniversary of the issuance of the original arrest warrant against Bashir, with no apparent prospect for his arrest, is routinely cited as evidence of ICC impotence.28 I have a more sanguine view. In May 1999, when the Prosecutor of the ICTY first announced the Indictment against Slobodan Miloševic, 29 the Serbian President’s political position was secure, and the notion that he might one day be transferred to The Hague to be tried seemed fanciful. In June 2001, after dramatic political upheaval in Serbia, Miloševic found himself before an international criminal tribunal. I have always considered that particular precedent salutary.30 When the Security Council decided to establish the ICTY no-one seriously contemplated the possibility that a figure as influential as Miloševic would ever be tried. Similarly, General Ante Gotovina, one of the most senior Croat indictees of the Tribunal for the Former Yugoslavia, had remained at large following the issuance of an indictment against him in 2001 until he travelled to Tenerife in the Canary Islands in December 2005. Spanish police acted on an international arrest warrant, arrested Gotovina and transferred him to Madrid and then to The Hague. The physical capture of Radovan Karadzić and also Ratko Mladić proved to be more challenging and after more than 10 years on the run it seemed that neither accused would face justice in The Hague. How dramatic then was the arrest of Karadzić (despite his effective disguise and the adoption of a new and apparently convincing identity) as well as that of Mladić (now alone and unprotected after years of heavy security support). These arrests of Milošević, Gotovina, Karadzić and Mladić all demon­ strate that, even where the prospects for arrest seem remote at a 27 28 29 30

See Moore 2011. See Chulov 2011; Barnes 2011. See International Criminal Tribunal for the Former Yugoslavia 1999. For a more detailed analysis see McCormack, ‘Their Atrocities and Our Misdemeanours’, 2003, p. 132.

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given time, circumstances can change dramatically and accused can still be brought to trial decades after the issuance of the original arrest warrant. For now Al-Bashir evades the reach of the ICC. The Court, like the ICTY and ICTR before it, has no police powers and is entirely reliant on the co-operation of States for the arrest and transfer of custody of its accused. But there is no Statute of Limitations applic­ able to the ICC. The arrest warrant against Omar Al-Bashir is valid for the rest of his life. While some countries have welcomed his visits, Human Rights Watch has claimed that Al-Bashir has cancelled trips to Zambia, the Central African Republic, Turkey, Malaysia and South Africa, because the respective governments have publicly warned that al-Bashir will be arrested if he enters their countries.31 I accept that the Security Council makes political decisions and that it will not suddenly shift to systematic referrals of situations wherever alleged ICC crimes have occurred. My own view though is that the possibility of Security Council referrals, particul­a rly of situations involving non-State Parties to the ICC, is a very important extension of potential ICC reach. The third triggering mechanism involves the Prosecutor acting on his/her own initiative, gathering evidentiary material from whatever source he/she deems appropriate and then seeking Pre-Trial Chamber approval to proceed to a formal investigation.32 This third trigger was considered essential by many delegations in Rome concerned that neither States nor the Security Council would necess­arily take a pro­ active approach to ICC referrals such that: the exercise of proprio motu powers by the Prosecutor was widely seen as a vital test for the independence of the ICC. The aim was to ensure the truth-seeking dimension of the Court by guaranteeing that the Prosecutor would not be restricted in his ability to gather, receive and act on information. There was considerable unease for some States, 31 32

See ‘EU Tells Malawi to Arrest Sudan’s Al-Bashir’, 2011. Rome Statute 1998, art 15.

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however, that the inclusion of such independent powers to initiate cases could lead to partiality, manipulation and politicisation by a possibly rogue Prosecutor.33

In Rome, the spectre of a ‘rogue Prosecutor’ acting on personal whim proved difficult to shake and so the Statute builds in an im­ portant check and balance. To rely on this triggering mechanism to initiate a formal investigation, the Prosecutor must first satisfy a majority of a Pre-Trial Chamber (at least two of three judges) ‘that there is a reasonable basis to proceed with an investigation and that the case appears to fall within the jurisdiction of the Court’.34 Only then can the Prosecutor proceed with an investigation. This pro­ced­ ure has been followed in relation to three situations – Kenya, Côte d’Ivoire and, in 2016, Georgia. The Prosecutor presented material to the Pre-Trial Chamber in these cases and the judges responded with written approval for the Prosecutor to proceed.35 Though the Kenyan case has hardly run smoothly, in neither of the two African situations could the Prosecutor’s exercise of proprio motu powers seriously be described as ‘rogue behaviour’. One or other of the three triggering mechanisms must be activated for any case to proceed at the ICC. Once one of the triggers has been activated, there are two additional pre-conditions for the exercise of ICC jurisdiction. Both pre-conditions must be satisfied before a PreTrial Chamber can confirm the charges against the accused and so allow a trial to proceed.

Two Pre-conditions for Jurisdiction The first pre-condition for the exercise of ICC jurisdiction applies only to the first and third triggering mechanisms – State Party referral or the Prosecutor acting proprio motu. Article 12(2) of the 33 Rastan 2007. 34 See Rome Statute 1998, art 15(4). 35 See e.g. ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya’ 2010. See also ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire’ 2011.

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Statute requires the consent of either the territorial State (the State on whose physical territory the alleged crimes occurred) or the State of nationality (the State whose national is alleged to have committed the crime). Without the consent of one or other of those two States the ICC is precluded from proceeding with the case. This pre-con­ dition does not apply to the second triggering mechanism for the reasons explained above. The Security Council has the constitutional authority under Chapter VII of the UN Charter to override State consent in decisions relating to the maintenance or restoration of international peace and security. In many situations of civil conflict the territorial State and the State of nationality are one and the same. So, in such circumstances, the only State that can consent to the exercise of ICC jurisdiction is the single State concerned. In other circumstances where there are two relevant States, either of them can give their consent and that is sufficient for the ICC to proceed. The Statute provides two alternative ways in which either of the relevant States can give their consent. According to Article 12(1) of the Statute, a State Party to the Statute is already deemed to have consented to the exercise of the Court’s jurisdiction by virtue of its decision to become a State Party. In the alternative and pursuant to Article 12(3) of the Statute, a nonState Party can lodge a declaration with the Registrar of the Court accepting ICC jurisdiction ad hoc for a particular case. The formulation of Article 12 of the Rome Statute has caused great consternation to the US. According to David Scheffer, Head of the US Delegation to the Rome Diplomatic Conference: It is simply and logically untenable to expose the largest deployed military force in the world, stationed across the globe to help maintain international peace and security and to defend US allies and friends, to the jurisdiction of a criminal court the US Government has not yet joined and whose authority over US citizens the United States does not yet recognize. No other country, not even our closest military allies, has anywhere near as many troops and 55

Who’s Afraid of International Law?

military assets deployed globally as does the United States. The theory that an individual US soldier acting on foreign territory should be exposed to ICC jurisdiction if his alleged crime occurs on that territory, even if the United States is not a party to the ICC treaty and even if that foreign state is also not a party to the treaty but consents ad hoc to ICC jurisdiction may appeal to those who believe in the blind application of territorial jurisdiction. But the terms of Article 12 could render nonsensical the actual functioning of the ICC. 36

The ICC is yet to test the attitude of those States of nationality who are not States Parties to the Statute in relation to alleged crimes com­ mitted by their nationals on the physical territory of a consenting terr­ itorial State. All the accused to date in the situations referred by States Parties are nationals of States Parties to the Statute. In the two African situations before the Court on the basis of the Prosecutor’s proprio motu powers, all the accused are either nationals of a State Party (Kenya) or of a State accepting ICC jurisdiction by declaration (Côte d’Ivoire). The closest the ICC has to the potential situation so infuriating the US is the Article 12(3) declaration lodged with the Registrar by the Palestinian National Authority purporting to accept ICC jurisdiction over Gaza and the West Bank and to acts of the Israeli (not a State Party) Defence Forces in those physical territories. In January 2015 the Prosecutor opened a preliminary investigation. The second pre-condition to the exercise of ICC jurisdiction is referred to as ‘complementarity’. Both the Preamble and Article 1 of the Statute characterise the ICC as ‘complementary to national criminal jurisdictions’. The ICC is not to usurp the primary jurisdiction of national courts and can only exercise its jurisdiction where both the territorial State and the State of nationality are either ‘unwilling or unable genuinely’ to deal with the case themselves. ‘Complementarity’ is the term used to articulate the relationship of the ICC to relevant national courts. 36

Scheffer 1999, p. 18.

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The complementarity formula applies irrespective of which of the three triggering mechanisms has been activated. So, for example, the Libyan Transitional National Council claimed its preference to try Saif Gaddafi in Libya. Muammar Gaddafi’s son was the subject of an ICC arrest warrant issued on the same day as that for his father. The Libyan authorities tried him and sentenced him to death in 2015. In other circumstances though, where neither the territorial State nor the State of nationality are willing or able to deal with the case, the ICC can step in and exercise its jurisdiction. Genuine inability may be relatively straightforward to determine. If there is no functioning legal system at the national level it will not be difficult for the ICC to decide that the relevant State is incapable of conducting a fair trial.37 Unwillingness on the part of a State may involve a more sensitive determination. In the cases involving DRC, Uganda and CAR it has been entirely straightforward for the ICC to determine that the relevant States in each of the situations is unwilling to deal with the cases themselves. After all, it was the respective governments of those States that each approached the ICC requesting assistance. In other situations where an accused has never been the subject of national investigation it may also prove relatively straightforward for the ICC to determine a lack of willing­ness on the part of the relevant State(s). But in circumstances where there have actually been national investigations and/or pro­ ceed­ings, unwillingness may well prove harder to determine. The Rome Statute anticipates sensitivities here and Article 17(2) lists possible indices of a lack of willingness: sham proceedings designed to shield accused from criminal responsibility; unjustified delay in proceedings; or lack of impartiality or independence in the conduct of proceedings. The ICC is yet to characterise any national proceed­ ings as a sham and it is difficult to imagine any such deter­mination becoming a regular feature of ICC decision-making. Nevertheless, the ability to reach such a finding is indispensable to an effective and independent Court. 37

Rome Statute 1998, art 17(3).

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Who Fears the ICC? Those With Nothing to Fear Not everyone fears the ICC and neither should they. The Court has jurisdiction only over genocide, crimes against humanity and war crimes so all those not involved in the perpetration of such crimes have nothing to fear from the ICC. Obviously the 124 States Parties to the Rome Statute are not afraid of the Court. The governments of those States Parties presumably believe that, if their nationals allegedly perpetrate Rome Statute crimes, either the relevant national criminal justice systems are equipped to deal with the allegations or, alternatively, that the ICC is welcome to step in and exercise its complementary jurisdiction. In Australia’s case, neither the Australian Government nor the Australian Defence Force is afraid of the ICC. Some will recall the intense public debate in this country about whether we should or should not ratify the Rome Statute. There were some hysterical claims presented in writing and orally to the Joint Standing Committee on Treaties about why Australia ought not to ratify the Rome Statute. One particularly spectacular claim was submitted by a self-described ‘director and journalist’ who claimed that the real reason for the Defence Legislation Amendment (Aid to the Civilian Authorities) Act 2000 (Cth) was as follows: This Bill [Aid to the Civilian Authorities], as we now all know, opens the way for Australian troops to be called out against fellow Australians to quell ‘domestic violence’ on Australian soil. Could it be that this Bill was deemed necessary as a safeguard against any likely rebellion of our citizens against the subject Statute [for the International Criminal Court], when they become all too painfully familiar with its terms and conditions after the Court commences operations?38 38

Beckett 2000.

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Despite these sorts of claims there were other more credible concerns about the possible implications of Australian participation in the Rome Statute. Ultimately though, the Howard government ratified the Statute with the support of the then Chief of the Defence Force and the Defence Minister, who both agreed that Australia need not fear the ICC usurping our primary claim to national jurisdiction. If a member of the Australian Defence Force is alleged to have committed a war crime, a crime against humanity or an act of genocide, provided we have the domestic legal framework in place to be able to prosecute that offence ourselves and we take a bona fides approach to investigation and to trial proceedings if warranted, that will be the end of the matter. If Australia chose not to exercise primary national jurisdiction that discretion certainly exists but it is at our sole national discretion. Australia’s implementing legis­lat­ion for the Rome Statute, the International Criminal Court (Con­sequential Amend­ments) Act 2002 (Cth) represents the most signif­icant and whole­sale change to Australian domestic law in terms of the implem­ ent­at­ion of international crimes.39 Perhaps one of the greatest contributions the ICC has already made is to provide a catalyst to States around the world to order their own domestic legislative criminal frameworks. Our domestic legislative framework for the implementation of international criminal law into Australian domestic law was pathetically inadequate prior to our de­c ­is­ion nationally to ratify the Rome Statute. Now our dom­estic frame­work is comprehensive in direct response to the national decis­ ion to become a State Party to the Statute.

Those Who Should be Afraid At the time of the Nuremberg and Tokyo trials it was expected that these two ad hoc tribunals would herald the establishment of a new permanent international criminal court. Article VI of the Genocide

39

For a detailed analysis of the legislation see McCormack, ‘Australia’s Legislation for the Implementation of the Rome Statute’, 2003.

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Convention40 reflects this expectation, envisaging as it does juris­ dict­ion for alleged violations either before a national court in the terri­torial State or ‘by such international penal tribunal as may have jurisdiction  …’. The international community’s failure to fulfil the promise of Nuremberg and Tokyo resulted in the most com­pell­ ing argument for an effective international criminal regime – the frustrating experience of exclusive reliance upon domestic enforce­ ment of international criminal law. The five decades between the end of the Tokyo Trial in 1948 and the opening for signature of the Rome Statute in 1998 are replete with examples of impunity for atrocity – including Pol Pot, Idi Amin, Mengistu Haile Mariam, Francisco Franco, Efraín Ríos Montt and Suharto. None of these leaders were tried in their own countries and nor were other nations prepared to subject them to criminal proceedings. Instead, several of them were granted asylum in foreign countries and permitted to live out their lives in comfort and safety. Tragically there still seems no shortage of leaders prepared to slaughter their own people to strengthen their political position. Prince Zeid characterises the perpetration of such atrocity as a forfeiture not only of the dignity of the nation’s people but also of ‘every fibre of legitimacy’. The advent of the ICTY, the ICTR and now the ICC have raised global expectations that impunity for atrocity is no longer acceptable. Those expectations will unquestionably produce frustration when inevitably unmet. But with heightened expectations come demands for change, agitation for action, pressure for results. Legislation for universal jurisdiction has existed for decades but the extradition proceedings against Augusto Pinochet emerged from a new vibrancy alive to possibilities. Omar al-Bashir and Muammar Gaddafi are exemplars of what is possible at the ICC. For all Bashir’s blustering about refusing to recognise the Court, his advisers must carefully scrutinise his travel plans and he lives under a constant ICC shadow. It is true that Bashar al-Assad, Mahinda Rajapaksa, Robert Mugabe and Than Shwe are 40

International Convention on the Prevention and Punishment of the Crime of Genocide 1948.

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all, to date, beyond the reach of ICC proceedings but the Security Council is subject to regular demands for ICC referrals for each of them. If neither al-Bashir nor any other of the world’s current crop of despots are ever tried before the ICC, the Court will eventually be deemed an unmitigated failure. This is a significant test both for the ICC as an institution as well as for the international community on whose co-operation and support the Court depends. But now, in the 21st century, the existence of a functioning ICC sets this era apart from the post-World War II experience. Fear of the ICC will increase among those wilful perpetrators of atrocity when one of their own number stands trial in The Hague. Sri Lanka is an important example. There are serious allegations about the conduct of military operations in the final few months of the Sri Lankan civil war. The International Crisis Group (ICG) in Brussels issued a detailed report about this particular phase of the conflict against the Tamil Tigers. The ICG alleges that Sri Lankan military forces intentionally herded Tamil civilians into ‘safe havens’ and then deliberately subjected them to artillery bombardment and small arms fire, killing thousands of them. The ICG also alleges war crimes by Tamil Tiger fighters and has called for an independent international investigation and referral of the situation to the ICC.41 The allegations have engendered extensive international media interest but no Security Council referral to date. Sri Lanka is not a State Party to the Rome Statute and presumably has no intention of altering that status. The Security Council, apparently, has no appetite to look seriously at the Sri Lankan situation. But there have been suggestions that there might be some individuals, very senior in Sri Lankan government circles, with dual nationality. And some of those States of second nationality may already be States Parties to the Rome Statute. If they are not States Parties might they be convinced that this situation is serious enough to warrant giving ad hoc consent to the exercise of ICC jurisdiction? There are some governments around the world who at the moment might claim they 41

See International Crisis Group 2010.

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are not afraid of the ICC or what its jurisdictional reach might mean for them but who ought to be concerned.

Those Who Are Afraid Some scenarios involving exercise of ICC jurisdiction without the consent of the State of nationality do engender fear in some States. The objections of the US to the Rome Statute are instruct­ive here. I do not believe that the US is concerned about the per­petrat­ion by US nationals of willful or blatant atrocities such as, for example, in­ ten­tional attacks on the civilian population or the targeting of mil­ itary hospitals or summary execution of all wounded or surrender­ ing enemy combatants. Atrocities such as these are unam­big­uous­ ly criminal and the US has its own military justice system to deal with allegations of any such incidences against members of the US military. For example, a court-martial of five members of the US Army 5th Stryker Brigade resulted in convict­ions for the murder of Afghan civilians for sport.42 Members of the unit concocted fake com­bat scen­a rios by detonating grenades close to Afghan civilians and just­ify­ing the subsequent killings as a response to ‘taking’ fire. Military auth­orities were horrified by this practice and did not hes­ itate to invest­igate and initiate crim­inal trial proceedings. The US is well aware that the Rome Statute complem­ent­arity formula gives the US, the State of nationality, primacy of juris­dict­ion thereby trump­ ing the ICC. Of more concern is the possibility of disagreement about whether certain conduct constitutes a war crime or not. In the course of US aerial bombing campaigns against Iraq in 1990 and 2003, in Kosovo in 1999 and in Afghanistan in 2001 and since, US target selections and specific bombing incidents have been consistently subjected to sustained criticism – particularly from Human Rights Watch and Amnesty International. In relation to the aerial campaign in Kosovo in 1999, for example, the Prosecutor of the ICTY initiated an investigation into allegations of war crimes of disproportionate 42

See Yardley 2011.

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military force by NATO aircraft in relation to specific bombing incidents. Although the Prosecutor’s report on the out­comes of the investigation concluded that there was insufficient evidence of crim­ inal conduct to warrant the laying of charges,43 the fact of the in­ vest­igation caused consternation in the US. The experience raised the possibility, for example, of an ICC Prosecutor exer­cising proprio motu powers convincing at least two Pre-Trial Chamber judges that certain specific bombing incidents involved dis­prop­ortionate military force and so approving the opening of a formal invest­ig­ at­ion. If the bombing occurred on the physical territory of a State Party to the Rome Statute (or on the territory of a non-State Party prepared to consent ad hoc to the exercise of ICC jurisdiction) the consent requirement would be readily met. Furthermore, if the US pilots and those re­spons­ible for targeting selection had operated consistently with their rules of engagement, the US military would not have invest­igated any allegations against them. The ICC could then readily de­ter­m ine that the State of nationality was ‘unwilling’ to exercise its primary jurisdiction thus satisfying the second precondition to ICC jurisdiction. The war crime of disproportionate military force involves a delicate balancing test – between the expected loss of civilian life and damage to civilian property weighed against the expected military advantage to be gained from the attack.44 This particular crime is qualitatively different to a wilful attack on civilians. There is no ambiguity, no margin of appreciation, no elasticity in the war crime of wilful attack on civilians but there is in relation to the crime of disproportionate military force. The Rome Statute acknowledges the uncertainty by increasing the threshold for criminal responsibility. In Article 8(2) (b)(iv) of the Statute the Prosecution must prove that the expected loss of civilian life or injury to civilians ‘would be clearly excessive’ in relation to the expected military advantage. Additional Protocol I 43 44

See ‘Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia’ at www.icty.org/x/file/Press/nato061300.pdf. ‘Protocol Additional to the Geneva Conventions of 12 August 1949’ 1977.

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does not require that the expected civilian loss be ‘clearly’ excessive. However, despite the Statute’s higher threshold for criminal respon­ sibility, some US decision-makers remain concerned by the poss­ ibility of disagreement about criminality of specific conduct and the implications that could flow from that disagreement. Jack Goldsmith articulates the concern as follows: The most likely basis of disagreement relevant to the United States concerns war crimes arising from military strikes. The ICC has jurisdiction, for example, over a military strike that causes incidental civilian injury (or damage to civilian objects) ‘clearly excessive in relation to the concrete and direct overall military advantage anticipated.’ Such proportionality judgments are almost always contested … Especially during a war in which irregular combatants hide among civilians, it is easy to imagine a prosecution on this basis.45

The war crime of disproportionate military force is not the only example of potential US/ICC disagreement about the criminality of certain conduct. Goldsmith identifies additional examples: The ICC Statute makes it a crime to willfully deprive a POW ‘or other protected person of the rights to a fair and regular trial.’ ICC Art 8(2)(a)(vi). The United States and most in the ‘international law community’ have a genuine disagreement about the status and trial rights of the Taliban Guantanamo Bay detainees. If Afghanistan were an ICC signatory (it is not), it would be easy to imagine an ICC prosecution not only for denying the Guantanamo detainees their trial rights, but also for ‘unlawfully confin[ing]’ them, and perhaps also (who knows?) for treating the prisoners ‘inhuman[ely]’ or for ‘wilfully causing [them]great suffering.’ ICC Art 8(2)(a) (ii)-(iii). U.S. exposure to these alleged crimes is not limited to acts committed in signatory states. As noted above, nonsignatories can consent to ICC jurisdiction under Article 12(3) 45

Goldsmith 2003.

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for crimes committed by non-signatories on their territories. Many have noted that this will permit any non-signatory nation that suffers an attack from the United States to invoke ICC jurisdiction opportunistically against the United States.46

It is inaccurate to create the impression that the US is the only State concerned about the implications of a genuine disagreement with the ICC about criminal conduct. Israel has similar concerns particularly in relation to Article 8(2)(b)(viii) – the war crime of transfer of population into military occupied territory: For Israel, the clearest example of distorting existing principles of international law, as part of a political agenda, is the inclusion as a war crime of: ‘the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies’. This particular offense represents neither a grave breach of the Fourth Geneva Convention, nor does it reflect customary international law. The inclusion of this offense, under the pressure of Arab states, and the addition of the phrase ‘directly or indirectly,’ is clearly intended to try to use the court to force the issue of Israeli settlements without the need for negotiation as agreed between the sides.47

There is an additional ‘disagreement with the ICC’ scenario that engenders fear – a fear that the US and Israel share with other States. The disagreement is not about the criminality of the conduct but about who should be held criminally responsible for it. There may well have been conduct constituting an ICC crime accepted as criminal by the State of nationality. That State undertakes its own investigation and lays charges against individuals up to a certain level of seniority. There the accountability stops as far as the State of nationality is concerned but not to the satisfaction of the ICC. The US is concerned about ICC allegations against senior members 46 47

Ibid., n 27. See Israeli Ministry of Foreign Affairs website at: www.mfa.gov.il/MFA/ MFAArchive/2000_2009/2002/6/Israel%20and%20the%20International%20 Criminal%20Court.

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of the military or of the Administration itself – the Secretary of Defense, the Secretary of State or even the President. The mistreatment of prisoners at Abu Ghraib is illustrative. The US accepted that the released photographs exposed serious criminal conduct against the prisoners and an investigation was initiated. Several soldiers were convicted of wrongdoing but the only officer to be charged, Lieutenant Colonel Jordan, was acquitted of all criminal offences.48 Brigadier Karpinski, the officer commanding the Military Police Brigade responsible for the Iraqi prisons, was demoted to Colonel in the aftermath of the scandal. Senior military figures, including Lieutenant General Ricardo Sanchez, the senior US military commander in Iraq at the time, were controversially exonerated of any wrongdoing despite allegations that senior military figures ‘encouraged the abusive practices and relaxed rules about harsh treatment of prisoners’.49 Iraq was not a State Party to the Rome Statute at the time of the Abu Ghraib scandal. Had it been, the ICC would have had the consent of the territorial State and could easily have determined that the decision of the US to exonerate senior officials was taken ‘for the purpose of shielding the person(s) concerned for criminal responsibility for crimes within the jurisdiction of the Court’.50 I find it difficult to express sympathy for either category of con­ cern. The notion that some should not be judged on the basis of their conduct but are considered to be above the law because of their nationality and their rank is repugnant to the fundamental concept of the Rule of Law. That national authorities are eager to deter­ mine for themselves who and who is not beyond the reach of their domestic law is precisely why an independent, international criminal court is desirable. In relation to genuine disagreement about the criminality of certain conduct – particularly those crimes that include margins of appreciation in favour of military decision-makers, I suspect it will 48 49 50

See Associated Press 2008. See Harris and Beaumont. Rome Statute 1998, art 17(2)(a).

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only be the more extreme cases that are ever the subject of ICC trial. But this is a policy argument rather than a legal one. The Prosecutor has to exercise discretion in the choice of cases to pursue and part of his/her decision will inevitably involve an assessment of the likely prospects of a conviction. In any case, if all other pre-conditions for the exercise of ICC jurisdiction were met and the Prosecutor initiated proceedings without the consent of the State of nationality, it would be open to that State to support the defence case and to challenge the Prosecutor’s view of the law.

Greater Commitment to National Criminal Jurisdiction

The Goldstone Report to the UN Human Rights Council recom­ mended that the UN Security Council refer the situation in Gaza to the Prosecutor of the ICC if the Israeli authorities had not undertaken bona fides investigations in relation to the findings of the Mission within six months of the tabling of the report.51 No such referral has occurred and is unlikely to – particularly following Richard Goldstone’s remarkable ‘if I knew then what I know now’ Washington Post article.52 However, irrespective of the merits or lack of them of the findings of the Report, the observation I want to make here is of the effect of the establishment of the ICC. The Goldstone Fact-Finding Mission call for ICC referral has focused attention on the effectiveness of national criminal investigations. In Israel itself, public reaction to the Israeli Military Court con­ viction of two IDF soldiers for using a Palestinian boy in Gaza as a human shield is illustrative.53 According the Israeli newspaper Ha’Aretz, supporters of the soldiers wore t-shirts emblazoned with the slogan ‘we are victims of Goldstone’. In Australia when the Director of Military Prosecutions, Brigadier Lyn McDade, laid charges against two ADF commandos in relation to an incident resulting in the death of five civilians in Afghanistan, one journalist 51 52 53

See United Nations General Assembly 2009. Goldstone 2011. See Pfeffer 2010.

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suggested that part of the motivation for laying the charges was to avoid the exercise of ICC jurisdiction.54 The Australian story was simply wrong. The allegations against the two ADF commandos did not involve ICC crimes and there was no basis for the exercise of ICC jurisdiction even had the Prosecutor believed this case was sufficiently grave to warrant his consideration. I suspect that the motivation for the conviction of the two IDF soldiers was not motivated by the Goldstone Report either. But both situations reflect a growing perception of the potential ICC implications of not taking the exercise of national criminal jurisdiction seriously. There are unfortunately too many atrocities for the ICC to deal with them all. The complementarity formula in the Rome Statute is not only important for the comfort of States Parties but also essential for any effective international justice system. The ICC has a vested interest in States taking the exercise of their national criminal justice systems seriously. If the existence of the Court helps facilitate that, the ICC will have made a significant contribution. The ICC represents a milestone in the development of a global justice system. But as currently constituted, the ICC cannot be an acceptable end goal. The biggest single challenge to the broader international criminal justice experiment is the lack of systematic and comprehensive application of the law. Those of us who support the ICC should not only readily concede that there is still much to be achieved but also continue to commit ourselves to work towards comprehensive, systematic and impartial application of the law.

Epilogue

Since this chapter was written in 2011, two developments confirm the catalytic effect of the ICC and are worthy of emphasis. The first relates to allegations of recurrent abuse of detainees by UK military forces in the south of Iraq and the second relates to allegations of violations of international humanitarian law by the Israeli Defence Force in Gaza. 54

See Oakes 2010.

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On 9 February 2006, the then Prosecutor of the ICC, Luis Moreno Ocampo, announced that after conducting a ‘preliminary phase of examining and analyzing’55 allegations of Rome Statute crimes committed in Iraq by the nationals of States Parties to the Statute, he had concluded that the available information did not meet the Statute’s requirements for opening a formal investigation. In an­ nounc­ing his decision, the Prosecutor conceded that his conclusion could ‘be reconsidered in the light of new facts or evidence’.56 Public Interest Lawyers (PIL) in Birmingham, in collaboration with the European Center for Constitutional and Human Rights (ECCHR) in Berlin, filed a 250-page communication with the Prosecutor entitled ‘The Responsibility of Officials of the United Kingdom for War Crimes Involving Systematic Detainee Abuse in Iraq from 2003 to 2008’.57 The communication involved a detailed dossier of documentary, photographic and video evidence of wide­ spread and systematic abuse of hundreds of Iraqis detained by UK military forces in the south of Iraq – a scale of alleged criminality not previously exposed. On 13 May 2014 the Prosecutor, Fatou Bensouda, announced her decision to re-open the Preliminary Examination of the situation in Iraq on the basis of the new information contained within the January 2014 communication.58 In response to litigation in both UK courts and the European Court of Human Rights and also following agitation for public enquiries into the deaths of a number of detainees in UK custody in Iraq, the UK Government established the Iraq Historic Allegations Team (IHAT) in 2010 with the 55 56 57 58

See the Prosecutor’s announcement concerning the situation in Iraq: www.icc-cpi. int/NR/rdonlyres/04D143C8-19FB-466C-AB77-4CDB2FDEBEF7/143682/ OTP_letter_to_senders_re_Iraq_9_February_2006.pdf, at p. 1. Id., p. 9. Text of the communication is accessible at: www.publicinterestlawyers.co.uk/ go_files/files/ZKHQ6FDDKWA4.pdf. See ‘Prosecutor of the International Criminal Court, Fatou Bensouda, Re-Opens the Preliminary Examination of the Situation in Iraq’, Press Release, 13 May 2014, accessible at: www.icc-cpi.int/en_menus/icc/press%20and%20media/ press%20releases/Pages/otp-statement-iraq-13-05-2014.aspx.

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mandate of investigating allegations of abuse by UK forces of Iraqi detainees. IHAT was initially staffed by British Army investigators but, in response to sustained criticism of lack of independence, the Government removed Army personnel and replaced them with Royal Navy and ex-civilian police investigators.59 The work of IHAT has noticeably increased since the Prosecutor’s announcement of the re-opening of the preliminary examination into Iraq. According to the IHAT website, the Team now has more than 1,500 allegations to consider and is currently investigating incidents involving a number of complainants. 60 The principle of ICC complementarity is well understood by both Fatou Bensouda and by the UK authorities. The UK has primary jurisdiction for the trial of any of the alleged instances of detainee abuse (or of any other war crime allegedly perpetrated by UK mili­ tary members in Iraq) and the ICC can only exercise jurisdiction if the Court is satisfied that the UK is ‘unwilling or unable genuinely to carry out the investigation or prosecution’. 61 Provided the UK conducts bona fide investigations and prosecutes those responsible for perpetrating ICC crimes, the ICC will be precluded from conduct­ ing its own trials. The issue here is that because the ICC is seized of the allegations, UK authorities have a much greater incentive to take the allegations seriously and to commit the necessary resources for effective national investigations. The second situation involves allegations of war crimes by the Israeli Defence Force (IDF) in Gaza. One of the recommendations of the second report of the Turkel Commission on Israel’s Mech­ anisms for Examining and Investigating Complaints and Claims of Violations of the Laws of Armed Conflict According to International 59

60 61

See, for example, Ministry of Justice, ‘Responding to Human Rights Judgments: Report to the Joint Committee on Human Rights on the Government Response to Human Rights Judgments’, September 2012, p. 29, accessible at: www.justice.gov.uk/downloads/publications/policy/moj/responding-humanrights-judgments.pdf. See IHAT website at: www.gov.uk/government/groups/iraq-historic-allegationsteam-ihat. Article 17(1)(a) of the Rome Statute.

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Law62 focused on a lack of independence in the standard IDF operational debrief – an enquiry procedure preliminary to a formal investigation – undertaken exclusively within the operational unit allegedly responsible for the incident. Recommendation 5 of the Turkel Commission called for the establishment of an independent fact-finding assessment team within the IDF, capable of initial enquiry and reporting to the Military Advocate General (MAG) – the officer authorized to initiate criminal investigations.63 On 10 September 2014, just two weeks after the cessation of Israel’s July–August 2014 incursion in Gaza, the IDF MAG announced the establishment of an independent fact-finding assessment mechanism to examine exceptional incidents arising from so-called ‘Operation Protective Edge’.64 According to the most recent announcement by the MAG, his office has referred more than 100 incidents to the factfinding assessment mechanism for review. The MAG has referred eight incidents straight to criminal investigation without utilising the fact-find mechanism and an additional five incidents to criminal investigation as a result of fact-finding assessment mechanism reports to the MAG.65 It is still too early to determine the bona fides of these 13, and any subsequent, criminal investigations. What can be observed is that the MAG has initiated some criminal investigations on the basis of fact-finding assessment mechanism reports. The MAG has been subjected to intense criticism within Israel for his decisions but he seems to understand the implications for Israel if the criminal investigations are not bona fides. While there is no official reference to the ICC, it is clear that the existence of the Court and, in particular, 62 63 64 65

For a full text of the second report see www.turkel-committee.gov.il/files/ newDoc3/The%20Turkel%20Report%20for%20website.pdf. See Recommendation No. 5, Id., pp. 378–84. ‘Operation Protective Edge: Examinations and Investigation’, Military Advocate General Press Release, 10 September 2014. Text accessible at www.mag.idf. il/261-6858-en/patzar.aspx. See ‘Decisions of the IDF Military Advocate General regarding Exceptional Incidents that Occurred During Operation ‘Protective Edge’ – Update No. 2’, Military Advocate General Press Release, 7 December 2014. Text accessible at www.law.idf.il/163-6958-en/Patzar.aspx?pos=9.

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Palestine’s accession to the Rome Statute, have introduced a new incentive for Israel to take much more seriously any allegations of war crimes by its own military. These two relatively recent developments are both intriguing. In the Iraqi situation, the ICC has jurisdiction over the nationals of a State Party (UK) on the physical territory of a non-State Party (Iraq). ICC jurisdiction is reversed in relation to Israel’s incursion into Gaza: here the ICC has jurisdiction over nationals of a non-State Party (Israel) on the physical territory of a State Party (Palestine). Of course, in the case of Palestine, ICC jurisdiction extends to acts perpetrated by Hamas or other Palestinian groups in Gaza (because jurisdiction is based on the consent of the Territorial State) whereas, in contrast, the ICC has no jurisdiction over acts perpetrated by Iraqi nationals in Iraq (because jurisdiction is based on the consent of the State of Nationality). The intriguing aspect of both situations is the added incentive of ICC jurisdiction as a catalyst for both the UK and Israel taking their national jurisdiction much more seriously than they otherwise would have done. Tim McCormack is the Special Adviser on International Humanitarian Law to the Prosecutor of the International Criminal Court in The Hague. The views expressed in this chapter are those of the author alone and do not reflect the views of the Office of the Prosecutor of the International Criminal Court. The author thanks James Ellis for his excellent assistance with this chapter.

Bibliography

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Who’s Afraid of the International Criminal Court? Fordham International Law Journal 34: 1584. Barnidge, Robert. 2004. ‘The American Servicemembers’ Protection Act and Article 98 Agreements: A Legal and Case for Constructive Engagement with the International Criminal Court.’ Tilburg Foreign Law Review 11: 738. Bassiouni, M. Cherif. 1991. ‘The Time has Come for an International Criminal Court.’ Indiana International and Comparative Law Review 1: 1. Beckett, June. 2000. Submission to the Joint Standing Committee on Treaties: Inquiry into the 1998 Statute for an International Criminal Court. Accessed February 26, 2015, www.aph.gov.au/parliamentary_business/ committees/house_of_representatives_committees?url=jsct/icc/subs/ sub11.pdf. Bolton, John. 2003. Letter to the editor, The Economist, 11 December. Accessed February 26, 2015, www.economist.com/node/2282130. Chulov, Martin. 2011. ‘Libyan Government Asks Why ICC Isn’t Also Seeking to Prosecute Syria.’ The Guardian, May 16, 2011. Accessed February 26, 2015, www.guardian.co.uk/world/2011/may/16/libya-icc-arrest-warrantsreaction. Clark, Roger. 2010. ‘Amendments to the Rome Statute of the International Criminal Court Considered at the First Review Conference on the Court, Kampala, 31 May–11 June 2010.’ Goettingen Journal of International Law 2: 689. Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948, 78 UNTS 277. Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya. 2010. ICC01/09-19. Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Cote d’Ivoire. 2011. ICC-02/11. ‘EU Tells Malawi to Arrest Sudan’s Al-Bashir.’ 2011. Malawi Today, October 14. Accessed February 26, 2015, www.malawitoday.com/news/62671-eutells-malawi-arrest-sudans-al-bashir. Faulhaber, Lilian. 2003. ‘American Servicemembers’ Protection Act of 2002.’ Harvard Journal of Legislation 40: 537. Ferencz, Benjamin. 1997. ‘International Criminal Courts: The Legacy of Nuremberg.’ Pace International Law Review 10: 201. Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia. Goldsmith, Jack. 2003. ‘The Self-Defeating International Criminal Court.’ The University of Chicago Law Review 70: 89. Goldstone, Richard. 2011. ‘Reconsidering the Goldstone Report on Israel and War Crimes.’ The Washington Post, April 2. Accessed February 26, 2015, www.washingtonpost.com/opinions/reconsidering-the-goldstone-reporton-israel-and-war-crimes/2011/04/01/AFg111JC_story.html. 73

Who’s Afraid of International Law? Grant, Sheryl. 1999. ‘The International Criminal Court: The Nations of the World Must Not Give In To All of the United States Demands if the Court is to be a Strong, Independent, International Organ.’ Suffolk Transnational Law Review 23: 327. Hall, Christopher. 1998. ‘The First Proposal for an International Criminal Court.’ International Review of the Red Cross 322: 57. Harris, Paul and Peter Beaumont. 2005. ‘Top US officers cleared of Abu Ghraib abuse.’ The Observer, April 24. Accessed February 26, 2015, www.guardian. co.uk/world/2005/apr/24/iraq.usa?INTCMP=ILCNETTXT3487. ‘The International Criminal Court. For us or Against Us: The US Forces it Friends to Take Sides.’ 2003. The Economist, November 20. Accessed February 26, 2015, www.economist.com/node/2227473. International Criminal Tribunal for the Former Yugoslavia, press release, May 27, 1999. Accessed February 26, 2015, www.icty.org/sid/7765. International Crisis Group. 2010. War Crimes in Sri Lanka (Asia Report No 191). Accessed February 26, 2015, www.crisisgroup.org/~/media/Files/asia/ south-asia/sri-lanka/191%20War%20Crimes%20in%20Sri%20Lanka.pdf. Johnson, M. Tia. 2003. ‘The American Servicemembers’ Protection Act.’ Virginia Journal of International Law 43: 405. Kaul, Hans-Peter and Claus Kreß. 1999. ‘Jurisdiction and Cooperation in the Statute of the International Criminal Court.’ Yearbook of International Humanitarian Law 2: 143. McCormack, Tim. 1997. ‘From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime.’ In The Law of War Crimes: National and International Approaches 31–64, edited by Timothy LH McCormack and Gerry Simpson. The Hague: Kluwer. McCormack, Tim. 2003. ‘Their Atrocities and Our Misdemeanours: The Reticence Of States to Try Their Own Nationals for International Crimes.’ In Justice for Crimes Against Humanity 107, edited by Mark Lattimer and Philippe Sands. Oxford: Hart. McCormack, Tim. 2003. ‘Australia’s Legislation for the Implementation of the Rome Statute,’ In National Legislation Incorporating International Crimes: Approaches of Civil and Common Law Countries 65–82, edited by Matthias Neuner. Meyer, Eric. 2005. ‘International Law: The Compatibility of the Rome Statute of the International Criminal Court with the U.S. Bilateral Immunity Agreements Included in the American Servicemembers’ Protection Act.’ Oklahoma Law Review 58: 97. Moore, Malcolm. 2011. ‘Sudan’s al-Bashir Given Red Carpet Treatment by China.’ The Telegraph, June 29. Accessed February 26, 2015, www.telegraph. co.uk/news/worldnews/asia/china/8605319/Sudans-al-Bashir-given-redcarpet-treatment-by-China.html. Murphy, Sean. 2000. ‘Efforts to Obtain Immunity from ICC for U.S. Peacekeepers.’ (2002) 96 American Journal of International Law 725. 74

Who’s Afraid of the International Criminal Court? Murphy, Sean. 2003. ‘US Bilateral Agreements Relating to ICC.’ American Journal of International Law 97: 200. Oakes, Dan. 2010. ‘Afghan Charges Stalled Hague War Crimes Case.’ Sydney Morning Herald, September 30. Accessed February 26, 2015, www.smh.com.au/national/afghan-charges-stalled-hague-war-crimescase-20100929-15xik.html. Pfeffer, Anshel. 2010. ‘IDF Soldiers Convicted of Using 11-Year-Old as Human Shield in Gaza.’ Ha’Aretz, October 3. Accessed February 26, 2015, www.haaretz.com/news/diplomacy-defense/idf-soldiers-convicted-ofusing-11-year-old-as-human-shield-in-gaza-1.316867. Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui. 2014. ICC-01/0401/07. Prosecutor v. Jean-Pierre Bemba Gombo. ICC-01/05-01/08. Prosecutor v. Omar Hassan Ahmad al-Bashir. ICC-02/05-01/09. Prosecutor v. Saif Al-Islam Gaddafi. ICC-01/11-01/11. Prosecutor v. Thomas Lubanga Dyilo. 2012. ICC-01/04-01/06. Protocol Additional to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 UNTS 3. Rastan, Rod. 2007. ‘The Power of the Prosecutor in Initiating Investigations’ (paper delivered to the International Centre for Criminal Law Reform and Criminal Justice Policy Symposium on the International Criminal Court, Beijing, 3–4 February). Rome Statute of the International Criminal Court, July 17, 1998 ( July 1, 2002), 2187 UNTS 90, https://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_ no=XVIII-10&chapter=18&lang=en. Schabas, William. 2011. An Introduction to the International Criminal Court, 4th edition. Cambridge: Cambridge University Press. Scheffer, David. 1999. ‘The United States and the International Criminal Court.’ American Journal of International Law 93: 12–22. Summary of the Decision in the Two Kenya Cases. 2012. Accessed February 26, 2015, www.icc-cpi.int/en_menus/icc/situations%20and%20cases/ situations/situation%20icc%200109/related%20cases/icc01090211/ background%20information/Pages/summary%20of%20decision%20in%20 the%20two%20kenya%20cases.aspx. United Nations General Assembly. 2009. ‘Human Rights in Palestine and other Occupied Arab Territories: Report of the United Nations Fact-Finding Mission on the Gaza Conflict.’ September 25. Accessed February 26, 2015, www2.ohchr.org/english/bodies/hrcouncil/ docs/12session/A-HRC-12-48.pdf. United Nations Security Council, Resolution 1422, ‘United Nations peacekeeping,’ July 12, 2002, http://daccess-dds-ny.un.org/doc/UNDOC/ GEN/N02/477/61/PDF/N0247761.pdf ?OpenElement.

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Who’s Afraid of International Law? United Nations Security Council, Resolution 1487, ‘United Nations peacekeeping,’ June 12, 2003, http://daccess-dds-ny.un.org/doc/UNDOC/ GEN/N03/394/51/PDF/N0339451.pdf ?OpenElement. United Nations Security Council, Resolution 1593, ‘The situation concerning Sudan,’ March 31, 2005, www.refworld.org/cgi-bin/texis/vtx/ rwmain?docid=42bc16434. United Nations Security Council, Resolution 1970, ‘Libya sanctions,’ February 26, 2011, www.refworld.org/docid/4d6ce9742.html. Vienna Convention on the Law of Treaties. May 23, 1969. 1155 UNTS 331. William Yardley, Wiliam. 2011. ‘Soldier is Convicted of Killing Civilians for Sport.’ New York Times, November 10. Accessed February 26, 2015, www. nytimes.com/2011/11/11/us/calvin-gibbs-convicted-of-killing-civiliansin-afghanistan.html?ref=calvingibbs. Zwanenburg, Marten. 1999. ‘The Statute for an International Criminal Court and the United States: Peacekeepers under Fire?’ European Journal of International Law 10: 124.

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Ch a p ter 4 :

Who’s Afraid of a Climate Treaty? Robyn Eckersley

Introduction

At the much-anticipated climate change conference at Copenhagen in 2009, `Avaaz.org dispatched a band of youthful protesters dressed as green aliens to wander around the cavernous conference centre carrying placards reading ‘take me to your legally binding treaty’. The aliens joined a throng of around 40,000 registered observers and participants who attended the Copenhagen negotiations with the vain hope of witnessing the signing of a new climate treaty. Instead, the conference produced a non-binding political agreement, known as the Copenhagen Accord. Since that meeting, the hopes of the majority of the world’s states, along with those of international civil society, have remained fixed on achieving what Copenhagen had failed to achieve. Yet for some of the major aggregate and per capita emitters, a treaty is something to be feared and postponed, albeit for very different reasons. This essay explores why there has been so much emotional and political investment in the production of a legally-binding climate treaty, and the reasons why some, though not all, of the major emitters have resisted or stalled such a development. Of course, it has not always been so. The United Nations Frame­ work Convention on Climate Change (UNFCCC) was signed by 154 nations at the Earth Summit at Rio de Janeiro in June 1992, and entered into force on 21 March 1994. By January 2012, the total number of parties had climbed to 195 (194 states and one regional organization, the European Union) giving it a higher membership than the 193-strong United Nations. Clearly, no states were afraid of com­mitting to this particular climate treaty, the ultimate objective 77

Who’s Afraid of International Law?

of which is the stabilisation of atmospheric concentrations of green­ house gases at a level that would prevent dangerous, human inter­ ference with the Earth’s climate. Nonetheless, this parent treaty gave birth to a process of continuing negotiations that were designed to beget further treaties, and it is these negotiations that have produced a great deal of anguish and acrimony about the lack of serious com­ mit­ment to legally binding commitments on the part of a number of states whose support is essential to the realisation of the UNFCCC’s ultimate objective. Of course, international lawyers would say that whether major emitters have good reason to fear a treaty ultimately depends on the language of the treaty, whether the responsibilities imposed are expressed as mandatory obligations or merely permissive norms, whether the language of the treaty is vague and gestural or clear and precise, and whether any significant sanctions are attached to non-compliance. So the problem is not a fear of a climate treaty per se but rather a fear of a particular type of treaty commitment – one with ambitious and binding emission reduction targets and timetables. States had little hesitation in signing and ratifying the UNFCCC because it does not impose any binding targets or time­ tables for emission reductions. The UNFCCC is, as its title makes clear, a framework convention that lays down the basic objectives, principles and reporting commitments of the parties. The frame­ work convention model has been much favoured in environmental multilateralism because it separates out, in space and time, the negotiation of ultimate environmental objectives and broad prin­ ciples, and the determination of detailed operative rules that can be adapted and updated over time in the light of changing scientific understanding. Subsequent conferences of the parties (COPs) were to put flesh on the bare bones of the UNFCCC through the negotiation of legally binding Protocols with more specific emission reduction commitments. Twenty years of painstaking climate negotiations have now produced a sprawling ‘climate regime complex’, made up of the UNFCCC 1992, the Kyoto Protocol 1997, the Copenhagen Accord 2009, and a series of formal COP decisions, including the 78

Who’s Afraid of a Climate Treaty?

Durban Platform for Enhanced Action 2011 that launched a fresh negotiation process to produce a new legally binding treaty by 2015 to come into effect in 2020.1 Yet the primary concern for those familiar with the science of climate change is that the ultimate objective of the UNFCCC is slipping out of reach. Commitment to a new treaty is continually postponed at the same time as the climate science becomes firmer and more alarming. At Copenhagen, the parties managed to reach a general political consensus that ‘dangerous climate change’ means warming of more than two degrees Celsius above pre-industrial levels but they have failed to reach legally binding agreement on the big-ticket mitigation items that will determine the success or other­w ise of the whole enterprise. This includes long-term (2050) and near-term (2020) emission reduction targets, a timetable for the peaking of global emissions, and an emissions-reduction traject­ory that is consistent with no more than two degrees warming. Indeed, many scientists are now arguing that a guardrail of 1.5 degrees would be more prudent given the complex, nonlinear dynamics of the Earth’s climate system and the many negative feed­back mechanisms that could swing into operation as global emissions continue to rise. Yet the non-binding emissions reduction commit­ ments promised so far, if fully implemented, would set the world on a course of around three to four degrees warming by the end of the century, which will take the Earth well into the red zone of dangerous warming. The key challenge overshadowing the entire negotiations is that this degree of dangerous warming can only be averted if concerted and aggressive action is taken within the next critical decade, since carbon dioxide lingers in the atmosphere for around 100 years.2 Postponing aggressive action in the next decade will increase the stock of emissions in the atmosphere, which will then place an almost impossible emissions reduction burden on the next generation of decision-makers. They will be left trying to shut 1 2

Keohane and Victor 2010. On the legal status of COP decisions see Camenzuli, n.d. Steffen 2011.

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the gate, at a much greater economic cost, after the proverbial horse has already bolted. However, climate negotiators live in different world, speak a different language and operate with different horizons and expect­ ations than climate scientists. In the respectful, public language of diplo­mats, international conferences can only take one of two forms: they are either very successful or successful (as in ‘promising’). Seasoned observers of the negotiations, who are all-too-familiar with the hardened, highly choreographed and predictable postures of most of the negotiating coalitions of states, are also prone to talk up minor breakthroughs as major achievements. Yet it would be too cynical to reduce the climate negotiations to a raw display of power and interests, just as it would be naïve to reduce them to a high-minded morality play. The powerful do not always get their way and the weak, though often ignored, side-lined or overruled, do occasionally enjoy small and sometimes large victor­ies, thanks to the consensus decision-making procedures of the COPs and the glare of the world’s media. And the climate scientists and civil society advocates have also played a pivotal role in keep­ing the negot­iators aware of what is at stake if they fail. Indeed, the climate negotiations may be seen as not simply a struggle between uni­later­ alism (a self-help order which favours the strong), on the one hand, and multilateralism (a cooperative order based on the rule of inter­ national law, which favours the weak and constrains the powerful), on the other. The ongoing COPs have also served as stage for a struggle between traditional multilateralism and a new, more complex and heroic form that I shall call, for want of a better name, affirmative multi­lat­eralism. Affirmative multi­lateralism seeks affirmative action for developing countries by requiring developed countries to lead the way in mitigation and to provide assistance in mitigation and adapt­ ation to developing countries so that the development aspir­ations of these dis­advantaged countries are not compromised. It recognises diff­erent historical contrib­utions to common problems, and differ­ent capacities to respond to such problems. While the Durban COP17 in 2011 suggests that affirmative multilateralism may have already 80

Who’s Afraid of a Climate Treaty?

peaked, it has nonetheless left an indelible stamp on the existing climate regime complex and will continue to influence the negot­ iations. This story of affirm­ative multi­lateralism needs to be told, and from the begin­ning, because it sheds sig­nif­icant light on why both the US and China have resisted binding emission reduct­ion commitments.

Back to the Beginning

The idea of differentiated obligations between developed and devel­ oping countries in recognition of the different historical contribution to environmental problems and their different capacities to address such problems is found in a number of environmental treaties and declarations, including the Montreal Protocol 1987 (designed to protect the ozone layer) and the Rio Declaration on Environmental and Development 1992, but the UNFCCC represents its fullest expression. The principles are scattered through the treaty preamble and operative provisions but is most clearly enunciated in Article 3(1), which requires the parties to protect the climate ‘on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities’ (hereafter ‘CBDR’ for short). The Article also declares that ‘[a]ccordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof ’ (Article 3(1)). Although the UNFCC derives the climate leadership responsibilities of developed countries from CBDR, the meaning of CBDR has been hotly contested by international lawyers, negotiators and moral philosophers. From the standpoint of developing countries (and environmental NGOs), how­ ever, the leadership responsibilities of developed countries are clear: these derive from their significantly greater historical (i.e. cumul­at­ ive) and current aggregate current emissions, their higher per capita emission and their greater capacity (technological, eco­nomic and administrative) to pursue mitigation and to assist the more vulnerable developing countries with mitigation and adaptation. The principles effectively require developed countries to engage in the heavy lifting 81

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in climate mitigation to allow for further growth by developing countries so they can fulfil their legitimate development needs. From the very beginning of the negotiations, developing countries made it clear that requiring tit-for-tat emissions reductions by all countries was unacceptable because it would have enabled the North to ‘kick the ladder down’, and freeze structural global inequalities. As one Indian observer put it, if the atmosphere’s greenhouse gas absorption capacity were a pizza, and the rich world had consumed two thirds of it when the climate negotiations started, it would hardly be fair to divide up the remain quarter equally between rich and poor countries. The principles of CBDR have been routinely endorsed throughout the climate negotiations, and they underpin the bifurcated struc­ ture of the Kyoto Protocol, which requires only developed and newly industrialised countries listed in Annex I of the Convention to commit to reduction targets under Kyoto. Unfortunately, the emission reduction targets of Annex I countries were produced largely through self-serving haggling rather than from a principled application of CBDR. The Kyoto targets were very modest, averaging only a five percent reduction in emissions from Annex I countries by 2012 from a 1990 baseline. Not all developed countries reached their targets, and Canada brazenly walked away from the treaty in 2011. Most significant, however, was the US Senate’s resolution prior to the Kyoto conference in 1997 that it would not ratify a treaty that did not require any emission reduction commitments from major developing countries such as China and India. The second Bush ad­ ministration repudiated the Kyoto Protocol in 2001 on essentially the same grounds, while also expressing scepticism over the science of climate change and concern over the effects of the US’s Kyoto commitment on the US economy. Australia, under the Howard government, had followed suit in the same year by refusing to ratify the Kyoto Protocol for essentially the same reasons. (The Protocol was eventually ratified by the Rudd Labor government, for which it received a round of applause at the Bali COP in 2007.) The Bush administration had also attempted to undermine the Kyoto Protocol 82

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by developing ‘environmental coalitions of the willing’ (joined by Australia), in the form of voluntary partnerships (cutting across the developed/developing country divide) for clean technology devel­ opment. In all, the Bush administration sought to subvert the principles of CBDR by rejecting the idea of historical responsibility for climate change and advancing the idea of ‘mutual burden sharing’ and a pro-growth strategy based on new technologies. Although the Bush administration’s posture towards Kyoto was seen as foul play and CBDR survived its assault, it left negotiators with a major stumbling block. What was the point of persisting with a treaty that was designed to reduce emissions in the absence of the world’s biggest historical emitter? This stumbling block grew bigger with China’s meteoric economic growth through the 2000s, which saw it overtake the US as the world’s biggest aggregate emitter in 2007. At the same time, China and the G77 continued to insist that the fulfilment of developed country climate leadership oblig­ations under the UNFCCC and Kyoto Protocol (including a second commitment period after its expiry in 2012) was a condition precedent to any future commitments by developing countries, which had much smaller per capita emissions and much greater dev­el­op­ ment needs. The upshot was that the world’s two biggest emit­ters stood before an open door saying to the other ‘after you’, but like a Beckett play, nobody moved. This is despite the desperate urg­ings of the least developed countries, low-lying island states, and environ­ mental NGOs, and despite the European Union’s willing­ ness to embrace Kyoto and lead by example. Here, in the barest and crudest of outlines, is the reason why progress has been so difficult. The stand-off between the US and China was not just about the defence of national interests; it was also about competing under­ standings of fairness and of what should be recognised as ‘legitimate interests’. Yet the principles of CBDR could have been interpreted other­ wise. Producing a firewall between Annex I and non-Annex I countries under the UNFCCC was not an inevitable outcome of the application of these principles. Emission reduction targets could 83

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have been negotiated on a much more nuanced basis that allowed for differences in responsibility and capacity across this divide to acknowledge the vast differences in responsibility and capacity within the developing world. For example, there are millions of people living in abject poverty in China and India, but these countries also contain a rising middle class whose emissions profile is no different form the average American. Why not require China and India to take responsibility for their luxury emissions but not their subsistence emissions? Or the principles of differentiated responsibility and capacity could have recognised the relocation of emissions-intensive industries to rapidly growing developing countries, which have improved the emissions profile of developed countries and worsened the profile of developing countries. China, for example, has complained that consumers in OECD countries enjoy the benefits of cheap imports from China without having to take responsibility for the emissions embodies in those imports, which are pinned on China under the production-based greenhouse gas accounting rules of the UNFCCC. Likewise, Australia enjoys the revenue from its coal exports without taking any responsibility for the emissions generated from those exports. Instead, US and Australian elites admonish China for not doing more to stem their emissions, and for refusing to commit to binding reduction targets. But this is all water under the bridge. And the negotiations have since taken some new and interesting twists and turns. Let’s start with Copenhagen.

Copenhagen

Copenhagen was the most anxiously anticipated and biggest con­ ference of all of the COPs. The anticipation began after the Bali COP in 2007, which found a way to draw the US back into the negotiation process by launching a negotiating mandate for a new treaty on Long-Term Cooperative Action (LCA) (with commitments on mitigation, adaptation and a range of other issues, including technology transfer and financial support) to fulfil the objectives 84

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and burden-sharing principles of the UNFCCC alongside the Kyoto Protocol. Given their leadership obligations, developed countries were to commit to legally binding, economy-wide emissions targets (while ensuring comparability of effort). Developing countries were not required to undertake legally binding commitments in deference to CBDR, but they were required to pursue ‘nationally appropriate mitigation actions’ (NAMAs). Moreover, the commitments and actions by all parties were to be measurable, reportable and verifiable so that progress could be assessed. At the same time, the parties to the Kyoto Protocol were to negotiate a second round of commitments by 2009 that would come into legal effect immediately after the expiry of the first commitment period in 2012. In all, Bali was a significant breakthrough when set against the longer history of negotiations. For the first time, developing countries had agreed to pursue national actions to reduce emissions. At Kyoto in 1997, developing countries had not been prepared even to broach the subject of voluntary commitments. Moreover, the inauguration of President Obama in January 2009 raised expectations over what Copenhagen might deliver. It was widely recognised that US re-engagement with the multilateral clim­ate negotiations was a precondition for stronger engagement by the major emitters in the developing world. Given the diminishing window of opportunity for an effective collective response, the stakes at Copenhagen were very high. The IPCC has warned that global emissions must peak by preferably by 2015 but not later than 2020, and then decline by 80–90% by 2050 to reduce the risk of more than two degrees warming. The IPCC also recommended that developed countries would need to commit to targets in the range of minus 25–40% by 2020 to fulfil this two degree scenario. Never before had the science been no unequivocal (despite the uncanny timing and diversion of Climategate) and never before had the window of opportunity for effective action been so narrow. Yet despite the widely chanted COP15 slogan ‘seal the deal’, no leg­ al agreements emerged from this complicated two-track negotiation 85

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process. Instead of a treaty on long-term cooperative action, the negotiators produced one, short political agreement known as the Copenhagen Accord. The negotiations for a second commit­ment period under the Kyoto Protocol continued. Of course, no-one expected these negotiations to be easy. Even before the conference began, the negotiating text on LCA – a hefty document of over 150 pages – was a sea of brackets, reflecting considerable differences between the parties on almost every core element of the proposed agreement. Negotiations in the first week went backwards as parties re-iterated their entrenched positions ad nauseum. Considerable time was wasted arguing over whether to collapse the two-track negotiations into a single, LCA track. This move, however, was strongly resisted by developing countries on the grounds that the LCA agreement involving the US was likely to be weaker and less protective of their interests than the Kyoto Protocol. Attempts by the Danish Presidency to produce an agreement among a smaller group of major emitters on the basis of a separate text to the official negotiating text were strongly resisted by devel­ oping countries as undemocratic and illegitimate. Nonetheless, it was a stripped down version of the so-called Danish text that formed the basis of the Copenhagen Accord, initially brokered by the US and the new negotiating coalition called the BASIC group (made up of China, India, Brazil and South Africa) on the last Friday of the conference. However, following a marathon overnight session, the Accord was merely noted rather than formally accepted by the COP following formal objections by a small group of countries (led by Sudan, Venezuela and Bolivia) that the document was illegitimate because it was negotiated outside the formal COP meeting and ignored the official negotiating text. The Copenhagen Accord merely ‘recognised’ the scientific view that warming should be kept below two degrees, but did not make it a specific goal. Moreover, the Accord contained no near-term or long-term collective targets, and no timetables for the peaking of global emissions. A last-minute intervention by the Alliance of Small Island States succeeded in inserting a provision for a review 86

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of the two-degree target in 2015, to give consideration to lowing it to 1.5 degrees in the light of new scientific evidence. The Accord agreed to establish a Green Climate Fund to support mitigation and adapt­ ation in developing countries and the developed parties pledged US$30 billion in fast-start finance, and agreed to raise US$100 bill­ ion by 2020. Finally, the Accord invited developed and develop­ing countries to promise voluntary emission reduction pledges, to be posted in schedules to the Accord by the end of January 2010. Fiftyfive nations, including the US and China, met this dead­line and many more posted pledges after the deadline.

No Binding Treaty – Just DIY Climate Policy

Although the Copenhagen Accord rescued the negotiations from total failure, and was declared a modest success by diplomats, the meeting was widely seen and reported as a failure. This was because the Accord lacked most of the characteristics that make a legal treaty the best instrument for dealing with a global collective action problem like climate change. Students of political science are typically taught that self-interested actors – whether states or firms – have little incentive to protect public goods such as the environment because it is more advantageous to privatise short-term economic gains of pollution and externalise or socialise longer-term ecological costs. This is the tragedy of the commons that can only be averted in large communities (where trust in is short supply) through a binding agreement that ensures mutual restraint and mutual assurance to all parties that everyone will keep their side of the bargain. In the absence of such an agreement, it is more rational to defect, avoid incurring any costs and hitch a free ride on the labour of others than it is to cooperate. The case for a legally binding treaty starts with this basic insight but goes much further. It argues that a treaty provides the necessary mutual assurance through rules that are considered binding; it provides a fair and formal process for negotiating rules; it can provide appropriate incentives, information sharing, reporting and 87

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com­pliance requirements to facilitate national commitment and im­ plement­ation; and it can provide agreed sanctions to deal with noncompliance. The information sharing is crucial to this case, since commitments to reduce emissions are worth very little if they cannot be measured, reported and compared on the basis of a common baseline and methodology so that progress towards the common goal of preventing dangerous climate change can be assessed. Yet it hardly needs to be said that producing such a treaty – perhaps the most complex and demanding treaty ever negotiated – has been a very tall order. The US had sought to make a virtue out of the Copenhagen Accord by introducing a good Copenhagen/bad Kyoto binary into its public diplomacy. Copenhagen was good because it was ‘bottomup’, flexible and enabled the participation of a larger number of states than Kyoto. Kyoto was bad because it was ‘top-down’, rigid and confined to only a small number of states. However, it is a strange twist of logic to see the failure to produce a legally binding treaty at Copenhagen as a vindication of the US’s position on Kyoto. The arguments are simply too convenient, a fig leaf for the US Congress’s inability to support the passage of a cap-and-trade bill, and the US Senate’s hostility to ratifying a climate treaty that did not include China. Against the US, I would reverse this good/bad binary. Kyoto was good because it provided a stronger commitment, provided a more principled and systematic approach based on the hallowed principles of CBDR and the norms of developed country leadership; it was based on a common baseline and methodology for greenhouse gas accounting, and a detailed architecture and compliance produced over many years of negotiations. Copenhagen was bad because it was non-binding and therefore based on a weaker commitment; politically expedient in pandering to national fossil fuel interests rather than the collective goals of the UNFCCC; watered down the principles of CBDR and based on a variable baseline and different methodologies, which made comparison of effort difficult. It was also knocked together in less than 24 hours following a major 88

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breach of negotiating procedure, and relied on naming and shaming. Indeed, the basic national pledge and review model defended by the US is little more than a DIY approach to climate policy that makes it impossible to set collective goals to reduce global emissions along a pathway that is anywhere near what is required by the climate science. It might be argued that these binaries are somewhat overdrawn, since a pledge and review system inaugurated at Copenhagen can serve as a stepping-stone to a binding treaty. Nonetheless the binaries bring into relief a set of inescapable tensions facing negotiators in the context of intractable disagreement. These benefits and costs are depicted in Table 1, which suggest an inverse relationship between levels of participation and ambition, on the one hand, and deter­min­ acy, transparency and commitment, on the other. Table 1

Legally binding treaty

Non-binding political accord/agreement

Benefits

Costs

•

More determinate and predictable/mutual assurance

•

•

More transparent and accountable

Lower expressed ambitions (usually lowest common denominator)

•

•

Higher expectations and public attention

Lower participation (defection of major emitters more likely)

•

Likely to attract more finance

•

Better domestic implementation

•

Higher expressed ambitious

•

•

Wider participation

Less determinate and less predictable/ weak assurance

•

Less transparent and accountable

•

Lower expectations and public attention

•

Weaker implementation

Adapted from Werksman and Herbertson 2009; and Keohane and Victor 2010.

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Scholars of international relations have claimed that resorting to political agreements rather than treaties, or the choice of soft law over hard law (whether soft law takes the form of political agreements, or vague language in treaty texts), may be seen as a creative response to uncertainty and to hardened bargaining positions, and is certainly better than the alternative of no agreement. Non-binding agreements also carry certain benefits that many be lost in formal treaties. What is most striking about the Copenhagen Accord is that while it enabled wide participation it also has low expressed ambition rel­ ative to what the science requires, so it was the worst of both worlds. The failure of the parties to conclude an agreement has prompted many observers to lament that the UNFCCC negotiating process had become fatally cumbersome. The negotiations have produced diminishing returns over time, and many critics of the negotiations have suggested that 195 parties now seems far too many to reach the kind of outcome that is required to achieve the Convention’s ultimate purposes. Some observers argued the inclusive process of negotiations, which required agreement by consensus on every line of one of the most complex treaties ever negotiated, were now part of the problem, and should be replaced by ‘minilateral’ negotiations among the major emitters, or moved to the G20.3 In contrast to the hype leading to Copenhagen, expectations were understandably low and attendance was down at the following COP16 at Cancun, Mexico in 2010. Yet responding to the mood of doom and gloom, the parties approached the negotiations in a more reconciliatory mood, and, aided by determined and skilful chairing by the Mexican hosts, produced some modest progress. The parties formally endorsed the Copenhagen Accord (including the mitigation pledges attached to the schedules) in an official COP decision, and made progress and reached COP decisions on a range of issues outside the big-ticket item of collective targets and timetables. These decisions, known as the Cancun Agreements, included work on fast-start and long-term finance, adaptation, technology transfer 3

See for example, Naím 2009.

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and capacity-building to assist developing countries. In terms of the mitigation pledges, developed countries presented their plans on economy-wide emissions reductions, which were expressed as economy-wide targets to reduce emissions in absolute terms, while developed countries presented their plans on how they would limit the growth in their emissions. These were usually expressed in terms of voluntary emissions intensity targets (reductions in the amount of emissions produced per unit of GDP) or voluntary reductions from expected business-as-usual growth. The parties also agreed to keep the negotiations alive on a second commitment period to the Kyoto Protocol. Yet the modest progress at Cancun could not hide the fact that the Kyoto Protocol was about to expire in 2012, with no successor treaty in sight. In the lead up to COP17 in Durban 2011, it looked like Kyoto would be finally killed off, with not only the US but also Canada, Russia and Japan making it clear that they saw no point in continuing the negotiations for a second commitment period. If the EU waivered, then it was clear that Kyoto would be put to rest. Yet this prospect was fiercely resisted by China and the G77, which insisted on a second commitment period to Kyoto. They were strongly supported by environmental NGOs, for whom ‘Kyoto’ had come to symbolise a commitment to multilateralism, the rule of law, climate justice (via CBDR) and an opposition to the US’s preferred approach (quietly supported by China) of DIY climate policy. When the delegates and observers finally arrived at the International Convention Centre in Durban in late November 2011, they encountered large numbers of NGO staffers wearing ‘I love Kyoto’ t-shirts.

The Durban Surprise

There were good reasons to be pessimistic about Durban. The likely outcomes were further modest progress on the Cancun agreements, no new treaty and the death of Kyoto. Yet after a record 60-hour marathon negotiating session during the endgame of the two-week 91

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conference, which ended at around 3.30am on a Sunday morning, the sleep-deprived negotiators managed to reach a non-binding agreement to launch a fresh round of negotiations for a new legal agreement to be concluded by 2015 and to come into legal effect by 2020. This agreement was to include all major emitters, including the US and China. The BBC’s veteran environmental correspondent Richard Black had summed up the previous COP by suggesting that ‘if Copen­ hagen was the Great Dane that whimpered, Cancun has been the Chihuahua that roared’.4 Durban, then, was the hyena that laughed. For those who attended the Bali COP in 2007, which launched a ‘Bali Action Plan’ to negotiate a new legal treaty to be signed in Copenhagen in 2009, this was a powerful case of déjà vu. Yet there were two crucial differences between Bali and Durban. First, the major developing countries indicated for the first time that they would be prepared to be party to a legally binding agreement, albeit to take effect in the distant future. This was historic. China started the ball rolling by making such a declaration well before the endgame of the conference, which put the US on the defensive. Second, unlike the previous negotiating roadmaps (for the Kyoto Protocol or the Copenhagen treaty that never was), the two-page document that launched the negotiations for a new legal agreement did not include the hallowed principles of CBDR. Whether it was sleep deprivation or simply resignation to overwhelming pressure to commit, China, India and the rest of the G77 let this one through. This was despite an impassioned speech in the closing plenary by the Indian environment minister Jayanthi Natarajan that highlighted the tiny per capita emissions of India. She also declared that they should not point the finger at developing countries while walking away from their leadership obligations ‘without even a polite goodbye’. Yet after venting her frustration, she signed the Durban Platform. In return, the EU and a small handful of other developed countries, such as Norway and Switzerland, agreed to negotiate a 4

Black 2010.

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second commitment period to the Kyoto Protocol for 2013 to 2017. Australia had not yet declared its hand on Kyoto. None of this would have been possible if the EU had not remained committed to the Kyoto Protocol. The EU, having been sidelined at COP15 in Copenhagen, had become more assertive by COP17 in declaring before the meeting that its ongoing commitment to Kyoto would be conditional on all the major emitters agreeing to commit to a binding treaty by 2015. In a civil society play, enacted during the second week of the Durban climate negotiations, the EU and Kyoto were married by an African minister before they kissed in front of a cheering crowd. Little did the troupe know that this was to serve as an omen for the final deal that was brokered at Durban. During the course of the conference, the EU had steadily built support for its bid, beginning with the Least Developed Countries and the Alliance of Small Island States. China had also signalled well before the endgame that it would be willing to commit to a binding treaty by 2020. Still smarting for the blame it had received at Copenhagen, China clearly did not wish to be held responsible for a failed Durban conference. The initiative put the US on the defensive. Instead of welcoming China’s move, the US initially queried the bona fides of China’s promise, and sought clarification as to whether it actually included legally binding emission reduct­ ion com­mitments. None­t heless, the elements of a compromise had emerged and it was India that held out the longest before the deal was finally done. Durban should therefore not be interpreted as a wholesale vin­ dication of the US’s position, given its singular failure to show any climate leadership, and given the renewed commitment to Kyoto. Moreover, while China and India have agreed to be bound in the future, the legal symmetry that the US has demanded for so long can still allow for differentiation in the content of the specific emissions reduction obligations of these countries. Debates will also continue over the ‘legal form’ of the new treaty. The Durban decision included very careful language to placate developing countries, particularly India. The Durban platform states that the parties have decided ‘to 93

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launch a process to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties’.5 Precisely what ‘an agreed outcome with legal force’ might mean, and how it might differ from a protocol or ‘another legal instrument’, is anyone’s guess. How this managed to placate India in the final hour in lieu of any language on CBDR or equity also remains a puzzle. Cynics might also point out that the Durban platform is nothing more than a non-binding commitment to commit to a binding agree­ ment, which contains the seeds of its own undoing. Yet it is perhaps Artur Runge-Metzger, head of the European Commission’s climate negotiation team, who found a way to explain the EU’s successful bid for such a deal. As he put it, a commitment to negotiate a treaty is like an agreement to get married: ‘you go through it with marriage in the cards. But that will only be decided the day you do the vows. We are asking for engagement’.6 Seasoned observers know only too well which countries are most likely to experience a change of heart at the altar. So let us now turn, finally, to those with fickle heart.

Who is Most Afraid?

As we have seen, it is the world’s two biggest emitters – the US and China – that have been most fearful of committing to legally binding emission reduction targets, but for different reasons. Although the Republican administrations of George Bush senior and junior have been more hostile than the Democratic administrations of Clinton and Obama, no administration has unreservedly embraced the prin­ ciples of CBDR, particularly the idea of historical responsibility for the cumulative emissions that linger in the atmosphere. This is because the US Congress and particularly the Senate have no appetite for a carbon-constrained economy, especially when China is not similarly constrained. Although majority support for a national capand-trade system has been mustered in the House of Representatives, 5 6

Conference of the Parties, UNFCCC 2011. Lacey 2011.

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the same cannot be said for the Senate, and the US political system makes it relatively easy for well-organised minorities to block treaty ratification in the Senate. Obama’s much anticipated speech at Copenhagen disappointed many but he nonetheless managed to play a weak hand rather well during the negotiations. Yet the landslide victory of the Repub­licans in the House of Representatives in the mid-term November Con­ gressional elections of November 2010 introduced a record num­ber of climate sceptics into Congress. This has made it increas­ingly difficult for President Obama to prosecute his climate agenda. The denial of climate change has now become a litmus test of true con­ser­vativ­ism in the US and climate change faded out of Obama’s public speeches until the Presidential campaign in 2012. The short answer to the question ‘who is afraid of a climate treaty?’ in US political circles is most Republicans plus a few Democratic Senators from coal- and oil-rich states. Unlike his predecessor, President Obama has acknowledged the US’s obligation to lead based on CBDR but he has redefined these principles in ways that made fulfilment of the US’s leadership responsibilities conditional on mitigation of future emissions by big emitters such as China and India. This not only downplays the independent ethical significance of responsibility for cumulative emissions since the mid-19th century but also erases the significance of differences in per capita emissions, capabilities and development needs. This is clearly expressed in the administration’s National Security Strategy of May 2010, which introduced the notion of ‘common but differentiated responses and respective capabilities’.7 This required all major economies commit to ambitious national action to reduce their emissions. The word ‘responsibility’ has been erased. However, it was the US’s special climate envoy, Todd Stern, who best summed up the dominant view in Washington when he declared in a press interview at Copenhagen that it was all about maths, not morality. 7

The White House 2010, 47.

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CBDR, as interpreted by China and the G77, challenges the US’s status and identity as the pre-eminent state, which has always carried with it a basic sense of entitlement, or access, to the necessary energy resources (and consequent emissions) at home and abroad that are required to uphold its pre-eminence and maintain the American way of life. The general idea that the US should drastically tighten its belt to cut slack for developing nations to grow, including rapidly growing China and India, is seen as tantamount to unilateral dis­ armament. Yet the Obama administration has never insisted that China must commit to the same emissions reduction target as the US, even though their Copenhagen pledges, when translated into a common metric, are substantially the same.8 Rather, they have insisted on legal symmetry, which is to say that the US would not under­take legally binding obligations unless China and India and other major developing countries also undertake legally binding commit­ments in the same commitment period, rather than at some future, un­ specified period. For many years, the US was able to wage this argu­ ment on the safe assumption that China would reject it on the basis of CBDR. Yet at Durban, China finally called the US’s bluff, and the US had little choice but to match China’s promise to commit to a new treaty. Although China has been a fierce advocate of CBDR, and called on developed countries to fulfil their leadership responsibilities, until Durban, it showed no inclination to commit to a more inclusive treaty. China had been blamed for watering down the Copenhagen Accord by refusing to agree to the inclusion of a clear, global emissions reduction target for 2050, or a timetable for the peaking of global emissions, despite strong pleading from Germany. It had also declared that it would not sacrifice its sovereignty for a verification scheme that involved external review of its greenhouse accounting books. China argues that it cannot afford to sacrifice its desperately needed development, given the millions of people living in poverty in 8

Jotzo 2010, 14.

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China, and especially given that many developed countries, above all the US, have failed to discharge their leadership responsibilities. Yet China also knows that it is much more vulnerable to climate change than the US, and its domestic climate policy has become increasingly aggressive in recent years. Its latest Five-year Plan (the 12th) is the greenest yet, and it has now firmly set its sights on winning the green tech race (to the alarm of the US). Yet it is still continuing to build coal-fired power plants even as it closes down its oldest and dirtiest plants and it is expected to overtake the US as the biggest cumulative emitter in around one to two decades. The science makes it clear that the world’s climate could not cope with per capita Chinese emissions rising to meet those of the US, so the only safe course of action is for Chinese per capita emissions to rise a little and for US per capita emissions contract a great deal so that they can converge at some future point at a safe level. Of course, the US and China are not the only countries that fear legally binding emissions reduction commitments. However, they are collectively responsible for around 40 per cent of global emissions, so the success of the climate regime depends upon their support. The problem is that many other high per capita emitters, such as Australia and Canada, have been able to hide behind US and Chinese emissions growth. Over the last twenty years, Australia has tried to justify delay by playing up its small aggregate contrib­ ution to global emissions, its rapidly growing population, its heavy dependence on fossil fuels and the high costs of mitigation, and the irrationality of going it alone in the absence of action by the US and China. Yet every country other than China and the US can similarly claim that its contribution to aggregate emissions is trivial. It is also a perversion of the principles of CBDR to single out China and India as ‘free riders’, given the leadership responsibilities of developed countries that were accepted back in 1992. In any event, Australia has the dubious distinction of being in the major league of top twenty aggregate emitters (coming in at around 14), and among the highest of the world’s per capita emissions. Moral leadership – or going it alone – should not be portrayed as a sucker’s game. Rather, 97

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it is exactly what is required to break the collective action impasse. As it happens, the Australian delegation had a taste of this at Durban, where it basked in widespread praise for the enactment of the Energy Package, which included an interim carbon tax and event­ual national emissions trading scheme. Despite the modesty of Australia’s uncon­ ditional targets (a mere five per cent reduction by 2020 from a 2000 baseline), this initiative had a clear galvanising effect on the flagging international negotiations that helped to coun­ter­act the pessimi­sm that was setting in following Canada, Russia and Japan’s abandon­ ment of a second commitment period under Kyoto and the ongoing stand-off between the US and China.

So Who is Not Afraid?

Although this essay has focused on who is afraid of a climate treaty, brief mention should be made of those who are not afraid. The EU (led from within by German, Britain, Denmark, Sweden and the Netherlands) has consistently led the developed world in pushing for a comprehensive treaty and for greater ambition in mitigation. The EU committed to the strongest targets under the Kyoto Protocol and has committed to a 2020 mitigation target of minus 20% and agreed to raise this to minus 30% if there are comparable commitments from other developed countries. The EU’s commitment to multilateralism and the rule of law is reflected in both its international and external relations. Ian Manners has argued that the EU’s commitment to multilateralism rests on a particular ‘normative power’ that derives from its unique historical evolution, hybrid polity, and constitutional configuration.9 Not only is the EU constituted on the basis of normative principles (human rights, social democracy, the rule of law, sustainable development); this has also obliged the EU to behave in a normative way in its dealings with the rest of the world – through the practices of diplomacy, trade, aid and peacemaking, rather than the application of military power. The members of the EU have grown used to 9

Manners 2002.

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pooling their sovereignty and jointly managing common problems through collective action and learning. In this respect they are well along a path of realising Kant’s idea of a pacific league, exerting their power through ‘a gradually expanding community of international consent’.10 Take for example Germany. As the largest economy in the European Union, and traditionally dependent on fossil fuel (around 25 per cent coal, 36 percent oil, 23 percent gas), Germany has played a leadership role from the beginning of the climate negotiations and has significantly shaped the EU’s climate ambitions. It has adopted one of the most stringent emissions reduction targets for any developed state (minus 40 percent by 2020 from 1990 levels) and one of the most aggressive renewable energy policies in the EU, while also deciding to phase out nuclear power in the wake of the Fukushima disaster. In the wake of two world wars, Germany fears the disintegration of Europe and of multilateralism much more than any other European states.

Conclusion

Realists have long taunted international lawyers with the claim that international law is inconsequential because it is merely an epiphenomenon of power and that powerful states will make or break international treaties at their whim to suit their purposes. Indeed, Stephen Krasner has argued that even the most basic principle of the international legal system – recognition of the sovereign equality of states – is routinely violated by powerful states. He argues that the whole system, including the treaty rules that states negotiate, is based on ‘organized hypocrisy’: recognition of long-standing legal norms that are frequently violated.11 Yet if international treaties are as inconsequential as Krasner suggests, then why do powerful states go to such lengths to shape treaty rules or justify their unilateral actions in terms that are consistent 10 11

Adler and Crawford 2004, 10. Krasner 1999.

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with international legal principles? Why do they go to such lengths to not sign a treaty if treaties were so inconsequential? If the dance around the question of the ‘legal form’ of a future climate change agreement tells us anything, it is that states take their treat com­mit­ ments seriously. Cynics might point to Canada, which announced its abandonment of its original Kyoto commitments and the formal withdrawal from the treaty at the Durban COP in 2011 to avoid the significant penalties that would have been applied for failing to reach its legally binding target. Canada’s behaviour is certainly shameless but it is also exceptional, rather than typical, state behav­ iour. No state, no matter how power­ful, is able to step outside the web of shared understandings and expectations that make up international law without at least a sig­n ificant reputational cost, even though some states are in a better position to pick and chose their treaties than others. So what is the future for affirmative multilateralism? Powerful states find treaties to be especially constraining when they run contrary to their interests, so we would expect them to fear affirm­ ative multilateralism even more. However, the orientation of any given state (whether weak or strong) to a climate treaty is not a simple function of its position in the hierarchy of states based on the material capability, stage of development or relative vulnerability to climate change. Rather, whether a state fears or embraces legally binding emission reduction commitments also turns on its history, identity and a sense of fair play. How else can we explain the transAtlantic divide in the so-called liberal west between the US, which has sought to subvert or reinterpret the principles of CBDR, and the leading member states of the European Union such as Germany, Britain, Sweden and the Netherlands, which have embraced them and tried, with at least some success, to fulfil them. Instead of a balance of power among states, we should think of a balance of different practices of asserting different kinds of power (some more reliant on coercion, material inducements or exit and others more reliant on persuasion backed by material inducement). However, it would be naïve to paint the EU as a saint, and its 100

Who’s Afraid of a Climate Treaty?

ambitions are not yet fully tested. Indeed, its climate leadership may be increasingly compromised given the pains of enlargement and the ongoing crisis of the euro-zone. Durban was certainly a surprise, if not a tease, but it would be too quick to conclude that affirmative multilateralism is now dead, that CBDR had been sacrificed in return for throwing a final lifeline to Kyoto while drawing the major emitters into a future treaty. The Durban Platform is merely a COP decision, and it will be the language of any final treaty that emerges that will indicate whether CBDR has endured, morphed into something new, or faded away. For now, the so-called Durban platform is best understood as a delicate and artfully worded compromise that papers over divisions that will continue to stalk the negotiations, including the level of ambition of mitigation pledges and the division of burden-sharing responsibilities. Yet the deal does signal a growing recognition that a second commitment period to the Kyoto Protocol would never be enough to protect the earth’s climate given the spectacular economic and emissions growth of China (along with India, South Africa, and Brazil). A high-minded insistence by the BASIC countries on the complete fulfilment of climate leadership responsibilities under CBDR by all developed countries (US included) as a condition precedent for their commitment to a future treaty would have guaranteed an environmentally ineffective regime. It would have also produced grave injustices for those who are least responsible for causing climate change and most vulnerable to its impacts. In this respect, the principles of CBDR remain crucial for most developing countries outside the BASIC group, especially the least developed countries, who will bear the brunt of rising temperatures, extreme weather, food and energy insecurity, and loss of territory and belong­ ing well before the middle of this century.

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Bibliography

Adler, Emanuel, and Beverly Crawford. 2004. ‘Normative Power: The European Practice of Region Building and the Case of the Euro-Mediterranean Partnership (EMP)’. Working Paper AY-0404, Institute of European Studies, University of California at Berkeley. Black, Richard. 2010. ‘Cancun: The Chihuahua That Roared’. BBC News, 11 December. Accessed 25 February 2015, www.bbc.co.uk/blogs/thereporters/ richardblack/2010/12/cancun_the_chihuahua_that_roar.html. Camenzuli, Louise Kathleen. n.d. ‘The Development of International Environmental Law at the Multilateral Environmental Agreements’ Conference of the Parties and Its Validity’. Accessed 25 February 2015, http://cmsdata.iucn.org/downloads/cel10_camenzuli.pdf. Conference of the Parties, UNFCCC. 2011. Draft Decision -/CP.17: Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action. 17th sess, Agenda Item 15, UN Doc FCCC/ CP/2011/L.10, 10 December. Advance unedited version. Accessed 25 February 2015, http://unfccc.int/files/meetings/durban_nov_2011/ decisions/application/pdf/cop17_durbanplatform.pdf. Jotzo, Frank. 2010. ‘Comparing the Copenhagen Emissions Targets’. CCEP Working Paper 1.10, Centre for Climate Economics & Policy, Australian National University, Canberra, October, rev. ed. 16 November. Keohane, Robert O., and David G. Victor. 2010. ‘The Regime Complex for Climate Change’. Discussion Paper 10–33, Harvard Project on International Climate Agreements, John F. Kennedy School of Government, Harvard University, Cambridge, Massachusetts, January. Krasner, Stephen D. 1999. Sovereignty: Organised Hypocrisy. Princeton: Princeton University Press. Lacey, Stephen. 2011. ‘Marriage or Runaway Bride: Will the AmericanEuropean Relationship Strengthen or Deteriorate at Durban Climate Talks?’ Climate Progress, 6 December. Accessed 25 February 2015, http:// thinkprogress.org/romm/2011/12/06/383231/marriage-or-runaway-brideamerican-european-relationship-durban-climate-talks/?mobile=nc. Manners, Ian. 2002. ‘Normative Power Europe: A Contradiction in Terms?’ Journal of Common Market Studies 40 (2): 235–258. Naím, Moisés. 2009. ‘Minilateralism: The Magic Number to Get Real International Action’. Foreign Policy 173 ( July/August): 136, 135. Steffen, Will. 2011. The Critical Decade: Climate Science, Risks and Responses. Canberra: Department of Climate Change and Energy Efficiency, Commonwealth of Australia. Werksman, Jacob, and Kirk Herbertson. 2009. ‘The Legal Character of National Actions and Commitments in a Copenhagen Agreement: Options and Imp­ lic­ations’. Working Paper, World Resources Institute, Washington DC, Nov. The White House. 2010. National Security Strategy. Washington DC: The White House. 102

Ch a p ter 5 :

Remembering 1948: Who’s Afraid of International Legal History in the Israeli–Palestinian Conflict? Catriona Drew1

Introduction

There are undoubtedly more enticing ways to remember events in Israel–Palestine in 1948 than to open up a book on international law. You could read some epic novels, visit photography exhibitions, attend a film festival or browse the increasing number of websites dedicated to the art and politics of 1948 remembrance. You could even have a night at the theatre. I Am Yusuf and This Is My Brother – a play set in an Arab village in fin-de-Mandate Palestine – brings to the stage the story of the dispossession and uprooting of the Palestinians in 1948, and played to emotional audiences and critical acclaim when it opened at the Young Vic in London in 2010.2 Or if your interest lies with the battlefield or with history, you could dip into memoirs of 1948 veterans, or drop into ‘any good bookshop’ 1

2

SOAS, University of London. Earlier versions of this paper were presented at University College London and Melbourne Law School. Many thanks to the staff of the Central Zionist Archives in Jerusalem for navigational assistance to a non-Hebrew speaker; to Alon Margalit for his excellent skills and good humour in translating Hebrew; to Raimond Gaita and Gerry Simpson for inviting me to contribute to this volume, and for constructive feedback; to Hilde and Michele Smith for the memorable hours spent together deciphering and translating German; and to Marc Brooke, Matt Craven, Kirstine Drew, Aeyal Gross, Scott Howard, Graeme Laurie and Scott Newton for encouragement and helpful comments. I remember Mansour Kardosh of Nazareth who first told me stories of 1948. Zuabi 2010.

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and browse the New Histories brought to us by the New Historians: edited collections on ‘Rewriting the History of 1948’;3 or Benny Morris’s jubilee blockbuster: 1948.4 So, what could international law add to the profusion of artistic and academic endeavour on the inexhaustible subject of 1948? I ask the question not because the history of the Israeli–Palestinian conflict could, in any way, be described as neglected by international lawyers. On the contrary, such is the abundance of legal materials that it is possible to teach an entire international law course dedicated to this one conflict. But just because we ‘do it’ already doesn’t mean we shouldn’t pause to ask why. Why turn to international law for ways of remembering 1948? What should we fear from international law? This is a question we put to our students at SOAS, University of London at the start of a post-graduate course entitled (perhaps optimistically) Law, Human Rights and Peace-building: The Israeli– Palestinian Case. The answers we receive from a diverse group of students reveal a strikingly uniform view of the role of international law as offering both an escape from the personal (from passion to reason; from subjective politics to objective determinate rules; from the particular to the universal; from the religious to the secular) and a route to justice and peace (law empowers the weak against the strong; law redresses injustice from the past; law provides guid­ance on the resolution of the conflict in the future). Even a cursory glance at the international law relevant to the Israeli–Palestinian conflict reveals these initial hopes and dreams of our students as the fantasies of international law naifs. Read advocates on either side of the conflict and we find law and legal reasoning deployed in the service of nationalist passion. Read international legal historian, Nathaniel Berman, on the relationship of international law to modernism and we begin to see international law itself as a particular form of cultural production. Read Israeli scholar and human rights activist, Aeyal Gross, on the application of international human rights law to Israeli settlers in the West Bank 3 4

Rogan and Shlaim 2001. Morris 2008.

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and we see international law empowering the strong against the weak. Read Geoffrey Watson’s legal analysis of the Oslo Accords and we are reminded that the legal battles waged have been ‘almost as fierce on paper’ as the political and military battles on the ground. Yet, to admit that international lawyers have a fantasy life about international law – about its capacity to deliver objectivity or determinacy, justice or peace – is not to suggest that we should leave telling the story of 1948 to the novelists, the playwrights or the historians. On the contrary, I argue in this chapter that it is impossible for art or the archives to give us the full picture of 1948 without understanding the role played by international law (and its fantasies) in shaping the history of the period. In other words, in addition to the more familiar protagonists from the Palestinian refugee tragedy – the Zionists, the British, the Arab states – it is my argument that international law itself played a leading role in the events leading to what the Israelis call the War of Independence, the Palestinians call ‘the Nakba’, and what, in this chapter, I shall simply call ‘1948’.

The New Historians and 1948

In 1987, the publication of The Birth of the Palestinian Refugee Problem, 1947–1949 5 by Benny Morris promised to lift the collective amnesia that had settled over Israel regarding its responsibility for the Palestinian refugee exodus in 1948. Once the Israeli archives had been opened, Morris, together with a group of Israeli historians, collectively known as the ‘New Historians’, was able to provide archival evidence for what the Palestinians had long been telling us: that contrary both to Israeli Government claims and Zionist foundational myths, many of the 750,000 Palestinians who had left in 1947–48 had done so not of their own accord, or in response to broadcasts of the Arab leadership, but rather in the face of intimidation, massacres, and explicit orders to destroy villages and expel the inhabitants – orders signed or authorised by leading figures 5

Morris 1987.

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of the Zionist movement including future prime ministers of Israel, David Ben-Gurion and Yitzak Rabin.6 These New Historians, of course, have their detractors, both inside and outside Israel. And between themselves there appears to be much strife: over methodology (the use of oral history); over Zionist strategy (the existence of a master plan to expel the Palestinians); over details of specific cases (the numbers of dead at the massacre of Deir Yassin; whether there was a massacre at Tantura in the Galilee); over the moral and political lessons to be drawn from the declassified material.7 Meanwhile, nearly thirty years later, Israel’s official position on 1948 (that the Palestinian refugees left of their own volition to avoid the dangers of warfare and/or under the orders of the Arab leadership) remains curiously unchanged – an astonishing display of chutzpah in the face of contrary revelations from its own declassified archives. Nevertheless, despite internecine warfare and Israeli government imperviousness, there is no doubt that as it shifted from Hebrew to English – from the records of the Central Zionist Archives in Jerusalem to the pages and websites of the media and academia – the work of the New Historians has provoked, at least in the West, a radical and paradigmatic shift in the public discourse and academic debate about 1948. In particular, they have bestowed upon us two ways of viewing and understanding the Palestinian exodus of 1948. I term these the Zionist population transfer prism and the Yugoslav ethnic cleansing paradigm.

The Zionist Population Transfer Prism For New Historian Benny Morris and Palestinian historian Nur Masalha, the Palestinian exodus of 1948 is viewed through the prism of a long and deep-rooted Zionist tradition of population transfer thinking: an enduring (although by no means universally held) Zionist fantasy to empty Palestine of its Arab inhabitants in order to create the Jewish state. While never adopted or endorsed as official 6 7

Morris 2007, pp. 11–12. Pappe 2014, chapter 12; Morris, ‘Politics By Other Means’, 2004.

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Zionist policy, the New Historians have shown that population transfer proselytisers and proposals were nonetheless persistently at the heart of the movement. As early as 1895, Theodor Herzl had famously confided to his diary his plans to remove the indigenous population from any future Jewish state: ‘We shall try to spirit the penniless population across the border by procuring employment for it in the transit countries, while denying it any employment in our country’.8 In Britain, it was the writer Israel Zangwill who attracted controversy by publicly identifying ‘the Arab Problem’: that the ‘real difficulty’ with the Zionist dream of returning to Palestine was a demographic one – the presence of its ‘non-Jewish inhabitants’. The solution, Zangwill suggested (with increasing frequency and candour after the publication of the Balfour Declaration in 1917), was that the Arabs were to be persuaded (‘gently’) to ‘trek’: that there should be ‘a well-organised emigration to a pre-arranged home amid one’s kinsmen, with full compensation for values left behind’.9 For mainstream Zionists such as Chaim Weizmann, President of the World Zionist Organization, such candid talk of transfer was a public relations disaster. As Morris explains, the Zionist ‘public catechism’ at the time (and into the 1940s) was ‘that there was room enough in Palestine for both peoples’; that there need be no ‘displacement of Arabs to make way for Zionist immigrants or a Jewish state.’10 Yet, gradually, the archives reveal, the logic of Zang­ will’s argument – that there could be no Jewish state without (at least some) displacement of the Arab population – proved inescapable, and questions of across which border, to which pre-arranged home, to which kinsmen the Arabs of Palestine were to be ‘spirited’ or persuaded to ‘trek’, came increasingly to preoccupy mainstream Zionism. By 1930, even Weizmann – in a private retreat from his early public attacks on population transfer proselytisers such as Zangwill – was engaged in secret conversations with the British 8 Quoted in Morris, Birth Revisited, 2004, p. 41; Masalha 1992, p. 9. 9 Quoted in Simons 1988, p. 38. 10 Morris, Birth Revisited, 2004, p. 43.

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Government about the possibility of removing the Arabs of Palestine to the ‘practically empty’ country of Transjordan or to Iraq.11 Yet, as Morris shows, it was the publication in Britain of the Palestine Royal Commission (the Peel Commission) Report in July 1937 that marked ‘a more open, if not quite public’ phase in the history of Zionist transfer thinking.12 Famous for first proposing an ethnic partition of Palestine, the Peel Commission had (less famously) tied its partition colours to the mast of population transfer (compulsory if necessary) – of 225,000 Arabs and 1250 Jews from the future Jewish and Arab states. ‘The existence of these minorities’, the Commission had reasoned, ‘clearly constitutes the most serious hindrance to the smooth and successful operation of Partition … If then the settlement is to be clean and final, this question of the minorities must be boldly faced and firmly dealt with.’13 For the British Government, Peel’s partition plan was to prove politically unpalatable precisely because it relied on the logic of transferring the Arabs. But for Ben-Gurion, it was the reverse: it was only the prospect of transferring (at least some of) the future Arab minority that made partition plausible. In his diary entry of 12 July 1937, Ben-Gurion likened Peel’s population transfer recommendation to the historic opportunity presented by the Balfour Declaration twenty years earlier: In my comment on the [Peel Commission] report immediately after the first reading (from 10.7.37) I ignored a central point whose importance outweighs all the other positive [points] and counterbalances all the report’s deficiencies and drawbacks, and … it could give us something that we never had before …: The compulsory transfer of the Arabs from the valleys proposed for the Jewish state. … 11 12 13

Ibid, pp. 44–5; Masalha 1992, pp. 30–6. For a more sympathetic interpretation of Weizmann’s conversations with the British, see Strawson 2010, pp. 140–1. Morris 2001, p. 41. Palestine Royal Commission 1937, Chapter XXII, p. 390, para. 39.

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And we did not propose this – the Royal Commission … did… and we must grab hold of this conclusion as we grabbed hold of the Balfour Declaration, even more than that – as we grabbed hold of Zionism itself … because of all the Commission’s conclusions, this is the one that alone offers some recompense for the tearing away of other parts of the country … Any doubt on our part about the necessity of this transfer, any doubt we cast about the possibility of its implementation, any hesitancy on our part about its justice may lose [us] an historic opportunity that may not recur. The transfer clause in my eyes is more important than all our demands for additional land.14

In the debates at the Twentieth Zionist Congress in Zurich the following month, Ben-Gurion prescribed Peel’s transfer recom­ mendation to sweeten the bitter pill of partition. ‘In many parts of the country,’ he argued, ‘new settlement will not be possible without transferring the Arab peasantry’. It was transfer that would ‘make possible a comprehensive settlement programme’ (‘[t]hankfully’ the Arabs had ‘vast empty areas’). And while it was important that the transfer recommendation had come from the Peel Commission and ‘not from us’, Ben Gurion reminded delegates, it also contained ‘an important humane and Zionist idea’ – ‘[t]o transfer parts of a people to their country and to settle empty lands’.15 By the time the British Government announced the establishment of a Technical Commission (the Woodhead Commission)16 to travel to Palestine to examine the feasibility of Peel’s partition plan, the Jewish Agency in Palestine had established a Population Transfer Committee to examine the feasibility of transferring the Arabs.17 14 15 16 17

Translated and reproduced in Morris 2001, pp. 41–3. Emphasis added. Translated and reproduced in Morris, Birth Revisited, 2004, p. 48. Colonial Office 1937. This was one of a number of committees established by the Jewish Agency to consider partition ahead of the Woodhead Commission’s visit to Palestine in April 1938. For a full discussion of the work of this (first) population transfer committee (1937–8) and the ensuing debates in the Jewish Agency Executive see eg Simons 1988, pp. 163–76; Masalha 1992, chapter 3. Six years later, the British, too, established a secret population transfer committee to examine the feasibility

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But while the upshot of the Woodhead Commission18 was that Britain rejected population transfer (compulsory was ‘immoral’; voluntary, ‘unlikely’) and, consequently, partition (‘impracticable’), the Zionist leadership, Morris tells us, was reaching ‘consensus or near-consensus’ on population transfer as the dual solution to the Jewish Question (in Europe) and the Arab Question (in the future Jewish state).19 What, then, is the connection between pre-1948 Zionist pop­ ulation transfer thinking and what happened in 1948? For Morris, writing in the original edition of The Birth, the creation of the Palestinian refugees remained ‘essentially’ a byproduct of war – a result of the military attacks by Jewish forces against Palestinian towns and villages – ‘helped along’ by a cast of culprits including a ‘venal’ Palestinian leadership (in the form of the Grand Mufti of Jerusalem), the expulsions and atrocities (and fear of atrocities) carried out by the Haganah, the Stern Gang, the Irgun and the Israeli Defence Forces, and the (generally badly behaved) Arab states. For Masalha, on the other hand, there is a single and direct causal link: what happened to the Palestinians in 1948 was the culmination and implementation of age-old Zionist transfer thinking: ‘the result of painstaking planning and an unswerving vision: … a shared under­ standing, stated and restated with almost tedious repetitiveness for almost 50 years.’20 Later, in response both to critics and subsequent Israeli declass­ ifications, Morris revisited and refined his position. Still dismissing any notion of 1948 as the straightforward execution of a Zionist master plan to transfer the Arabs of Palestine, he argues, rather, for of large-scale transfers of population, this time of Germans out of Poland and Czechoslovakia. See Interdepartmental Committee on the Transfer of German Populations 1944. For discussion, see Frank 2008. 18 Palestine Partition Commission 1938. Compulsory transfer had already been ruled out in December 1937: The British Government had ‘not accepted the Commission’s proposal for the compulsory transfer in the last resort of Arabs from the Jewish to the Arab area’. Colonial Office 1937, para. 3. 19 Morris, Birth Revisited, 2004, p. 59. 20 Masalha 1992, p. 208.

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a more complex understanding: one that seeks to establish an indirect link between the Zionist transfer thinking of the 1930s and 1940s and what actually transpired. For Morris, it is ‘transfer’ or ‘expulsion’ that is ‘in the air’ on those fateful days as the British Mandate neared its close in April 1948. ‘Ben-Gurion is projecting a message of transfer,’ he told Haartez magazine, in a now notorious interview in January 2004. ‘There is no explicit order of his in writing, there is no orderly comprehensive policy … The transfer idea is in the air.’ And when pressed, he continued: ‘Ben-Gurion was a transferist. He understood that there could be no Jewish state with a large and hostile Arab minority in its midst.’21

The Yugoslav Ethnic Cleansing Paradigm The second, more controversial, model for understanding the Palestinian exodus in 1948, which gained an early foothold in public discourse, is the Yugoslav ethnic cleansing paradigm showcased by Ilan Pappe in his 2006 book, The Ethnic Cleansing of Palestine. For Pappe, the events of 1948 are to be understood by looking not only to the pre-1948 Zionist past of population transfer thinking but also to the post-1991 Yugoslav future of ethnic cleansing policy and practice. Relying on a range of sources – the US State Department, United Nations reports, encyclopedias, international law academics (though curiously not the decisions of the International Criminal Tribunal for the Former Yugoslavia) – Pappe settles on a definition of ethnic cleansing as ‘an effort to render an ethnically mixed country homogenous by expelling a particular group of people and turning them into refugees while demolishing the homes they were driven out from.’22 This definition, he tells us, is ‘clear’ and ‘jargon-free’ – a ‘straightforward description of an atrocious policy’ that ‘applies almost verbatim’ to what happened to the Palestinians in 1948.23 And as ethnic cleansing has been ‘designated as a crime against humanity in international treaties’, Pappe explains, he had written the book 21 22 23

Shavit 2004. Pappe 2006, p. 3. Ibid, p. xvii.

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‘with the deep conviction that the ethnic cleansing of Palestine must become rooted in our memory and consciousness as a crime against humanity’.24 By adopting the paradigm of ethnic cleansing as a means of ex­ plaining and understanding what happened in 1948, Pappe departs from the earlier work of the New Historians in two significant ways. First, for Pappe, in opposition to Morris, the birth of the Palestinian refugee problem was not some ‘by-product’ of the Israeli war of independence but rather, as in the former Yugoslavia, war was the means to carry out ethnic cleansing. ‘When it created its nationstate,’ Pappe argues, ‘the Zionist movement did not wage a war that “tragically but inevitably” led to the expulsion of “parts of ” the indigenous population, but the other way round: the main goal was the ethnic cleansing of all of Palestine’.25 Secondly, Pappe’s work marks a shift in focus from a concern with Zionist ideology (transfer) towards exposing Zionist criminality (cleansing). So, while the task of the early New Historians had been to demolish Israel’s founding myths, Pappe now wants to criminalise its founding fathers. This shift from Pappe the historian to Pappe the prosecutor can be seen in his curious suggestion of a plea bargain: that in the interests of peace and reconciliation, a ‘rule of obsolescence’ should apply to the indictment of Israel’s 1948 war-heroes-turnedcriminals on the condition that the Palestinian refugees be allowed (unconditionally) to return to their homes.26 This shift to criminalising the Zionists for their part in 1948 is part of a wider tendency in Pappe’s work to offer legal as well as histor­ ical judgements about 1948. Pappe writes not only as a historian but also as a lay international lawyer, making inferences or drawing con­clusions as to the legality of the acts he brings to light from the archives. His chapter headings are peppered with quotations from international law instruments including the Universal Declaration of Human Rights (1948), the United Nations Convention on the 24 25 26

Ibid, p. 5. Ibid, p. xvi. Ibid, p.7.

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Rights of the Child (1989), and 1990s’ United Nations resolutions or statements on ethnic cleansing in relation to the former Yugoslavia. By juxtaposing, throughout the book, events in Palestine in 1948 against human rights law (from 1948) and ethnic cleansing law (from the 1990s), Pappe’s readers are invited to accept a ‘New History’ of 1948 that is contrary not only to old (Zionist) history but to old and new international law.

International Law in 1948

Both these ways of understanding 1948 – the Zionist population transfer prism; the Yugoslav ethnic cleansing paradigm – challenge aspects of the official Israeli and Arab accounts. Both too have claimed to be ‘in the service of truth and reconciliation’, of ‘exorcising the ghosts of 1948’, of ‘bridging the gap between the Israeli and Palestinian narratives of conflict’.27 It is my argument, however, that we cannot leave the excavation of 1948 solely to the historians: that without an understanding of the role played by international law in legitimising and shaping the Zionist population transfer agenda there can be no true understanding of what happened in 1948. Indeed, without the wider international legal context, our understanding of 1948 is likely not only to be partial but may run counter to the New Historians’ self-declared goal of reconciling the Israeli and Palestinian narratives of conflict.

The International Legal History of Population Transfer New Historians such as Morris and Palestinian historians such as Masalha have dedicated their scholarship to rectifying the historical record and showing, rightly, that population transfer ‘was deeply rooted in mainstream Zionist thinking’.28 For the international legal historian, however, this misses an important and logically prior point: that in the inter-war and World War II periods, population transfer had become equally ‘deep-rooted’ in mainstream 27 28

Rotberg 2006. Masalha 2003, p. 15.

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international thinking as a means of implementing the principle of national self-determination and as an alternative to the, by then, deeply unfashionable system of minority rights. In international legal history, the relationship between the prin­ ciple of self-determination and minorities is most closely associated with the 1919 Paris Peace Conference, which famously tethered the newly created nation-states to an innovative system of minority treaties under the supervision of the League of Nations. But just three years later, when the Great Powers gathered at Lausanne to make peace once again, this time in the aftermath of the Greek– Turkish war, this picturesque Swiss town was to lend its name to a radically different solution to the problem of minorities: the principle of compulsory population exchange. Article 1 of the Convention concerning the Exchange of Greek and Turkish Populations, signed at Lausanne on 30 January 1923 (six months ahead of the general peace treaty), laid down the basic principle: that there was to be (with certain exceptions) ‘a compulsory exchange’ of Greek and Turkish minorities – ‘of Turkish nationals of the Greek orthodox religion established in Turkish territory and of Greek nationals of the Moslem religion established in Greek territory’.29 For the one million ‘Greeks’ who had already been expelled from Turkey and who were languishing as refugees in Greece’s ports, Lausanne sealed their non–return to Turkey and cleared the way for their ‘resettlement’ in Greece. But for those Greeks who remained in Anatolia, and for the vast majority of the Turkish Moslem minority who remained in Greece, Lausanne was a deportation order. Widely attributed to the Norwegian explorer, Nobel Laureate and League of Nations High Commissioner for Refugees, Dr Fridtjof Nansen, the decision to carry out a compulsory exchange of the Greek and Turkish minorities caused an international outcry. Faced with a hostile press, and a deluge of protests and petitions from affected and disaffected minorities, the politicians sought to distance themselves. Mr Child, the US delegate, warned against 29

Lausanne Convention 1923, Article 1. On the background to the Convention, see Ladas 1932, Part II. Compare Yildirim 2006.

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countenancing ‘a new and unwholesome principle’ to ‘find foothold to vex international law and justice.’30 Lord Curzon, British Foreign Secretary and the great orator of Lausanne, (disingenuously) declared compulsory exchange ‘a thoroughly bad and vicious solution for which the world would pay a heavy penalty for a hundred years to come’. He ‘detested having anything to do with it’.31 Yet, far from vexing international law and justice, this ‘new and unwholesome principle’ did indeed begin to find a foothold and throughout the 1930s and 1940s was advocated by a host of politicians including that ‘great liberal statesman’,32 Czech President Eduard Beneš. Like Weizmann, post-World War I, Beneš had been a vocal champion of minority rights. But by World War II his views had undergone a radical shift. ‘The problems of national minorities’, he wrote in 1941, with the Sudeten Germans uppermost in his mind, ‘will have to be considered far more systematically and radically than it was after the last war. I accept the principle of transfer of populations.’33 The following year he was more explicit. ‘National minorities,’ he warned in an article in Foreign Affairs, were always ‘a real thorn in the side of individual nations’. This was ‘particularly true’ if the minorities were German. After the war, it would be necessary ‘to carry out a transfer of populations on a very much larger scale … in as humane a manner as possible, internationally organized and internationally financed’.34 The population transfer proselytisers of the inter-war and World War II periods, then, were not just Zionists (Ben-Gurion or Weizmann) but humanitarians, historians, policy-makers, politic­ ians, and leading statesmen of the day. What led Nobel Laureates, such as Nansen, and noble elder statesmen, such as Beneš, to abandon minority rights in favour of population transfer? 30 31 32 33 34

Minutes of the Thirteenth Meeting of the Territorial and Military Commission, 12 December 1922, Lausanne Conference 1922–3, p. 187. Minutes of the Fourteenth Meeting of the Territorial and Military Commission, 13 December 1922, ibid, p. 212. For a different view of Beneš’s liberal credentials see eg Douglas 2012. Beneš 1941, p. 154. Beneš 1942, pp. 235, 238.

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A review of the population transfer debates of the inter-war and World War II periods reveals three underlying principles. First and foremost, there was the continuing commitment to the World War I principle of national self-determination – the Wilsonian idea that (in Europe at least) nations should have their own states and states should be organised in accordance with the principle of national­ ities. Efforts to achieve this at the Paris Peace Conference in 1919 had been half-hearted, and, in an ethnically heterogeneous Europe, necessarily imperfect, confined, as they were, to redrawing borders or conferring on individual members of minorities the option to leave. The moving of minorities, rather than borders, promised a more nationally homogeneous outcome. This, after all, had been Lord Curzon’s justification for ‘un-mixing’ the Greeks and Turks at Lausanne. ‘The suffering entailed,’ he calculated, ‘would be repaid by the advantages which would ultimately accrue to both countries from a greater homogeneity of population’.35 A second principle was security. The inter-war experience of the German minorities in Central Europe, culminating in the Munich Crisis in 1938, had threatened not only the League of Nations but the very existence of nation-states. Minorities, then, were ‘fifth columns’; ‘tumours’ within an otherwise healthy national body. The population transferists of the inter-war period wrote as Europe’s selfappointed physicians, diagnosing minorities as ‘cancers’ or ‘ulcers’ to be ‘cut out’, ‘surgically removed’, or ‘cleansed’.36 This explains the third and more counter-intuitive strand of interwar population transfer justification: the principle of humanity. Once the problem of national minorities had been medicalised, their removal was not merely necessary but humane. Viewed from the 1930s and 1940s, it was not Paris 1919 with its Trojan-horse states saddled with minority rights that offered the more ‘humane’ model but Lausanne 1923 and the principle of compulsory transfer. The legal and administrative procedures established at Lausanne 35 36

Minutes of the Twenty-third Meeting of the Territorial and Military Commission, 27 January 1923, Lausanne Conference 1922–3, p. 412. See generally, Schechtman 1962.

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were held up as evidence that the process of transferring minorities could be ‘orderly and humane’. The work of the Mixed Commission (which supervised the exchange, liquidated property and evaluated compensation), the Permanent Court of International Justice (which adjudicated disputes), and the Refugee Settlement Commission in Greece (which managed the resettlement of the Greek refugees) – all fuelled the fantasy that the international community had the capacity to carry out an organised mass transfer of national minorities that could comply with the basic precepts of humanity. And the postLausanne outcome of vastly improved post-transfer relations between Turkey and Greece (which glowed retrospectively as the rest of Europe descended into war) suggested that any short-term hardships involved in uprooting minorities would be greatly outweighed by the long-term benefits of avoiding the suffering and inhumanity of war.37

The International Legal History of Population Transfer and the Zionist Population Transfer Prism What, then, is the connection between this wider international legal history of population transfer and the Zionist population transfer agenda? We have already seen from Morris that it was the publication of the Peel Commission Report that precipitated a ‘more public, if not quite open’ phase in the history of Zionist population transfer thinking. The legitimising effect of a Royal seal of approval on the Zionist dream of transferring the Arabs of Palestine is evident in Ben-Gurion’s insistent denial of paternity: ‘And we did not propose this – the Royal Commission … did.’38 An internal memorandum of the Jewish Agency, drafted the same month, spells out the reasoning: ‘The fact that the [Peel] Commissioners themselves have considered a compulsory exchange of population, entitled the Jewish Agency to examine such a possibility without the fear of being charged with the reproach to have taken the initiative for the transfer of Arabs.’39 37 38 39

See eg Churchill 1944, 1484. Compare Hirschon 2006. For the view that it was the Zionists who proposed the transfer solution to the Peel Commission, see Masalha 1992, pp. 52–60. Bonné 1937, Part III, para. 2. The word ‘eviction’ is crossed out and the word ‘transfer’ is inserted in handwriting above.

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Yet while the Zionists relied on Peel to justify their transfer agenda, Peel had, in turn, relied on the international legal precedent of Lausanne to justify its transfer recommendation: An instructive precedent is afforded, as it happens, by the exchange effected between the Greek and Turkish populations on the morrow of the Greco–Turkish War of 1922 … Dr. Nansen was sharply criticized at the time for the inhumanity of his proposal, and the operation manifestly imposed the gravest hardships on multitudes of people. But the courage of the Greek and Turkish statesmen concerned has been justified by the result. Before the operation the Greek and Turkish minorities had been a constant irritant. Now the ulcer has been clean cut out, and Greco–Turkish relations, we understand, are friendlier than they have ever been before.40

For the Jewish Agency, Peel’s finding that Lausanne offered ‘an instructive precedent’ for Palestine was a call to topographical arms. Within a matter of weeks, Dr Jacob Thon (director of the Palestine Land Company, and chairman of the post-Peel Population Transfer Committee) and Dr Kurt Mendelsohn (a Dutch agronomist and expert on population transfer) had commenced a documentary survey of past ‘resettlements’ in the Balkans, including a ‘ journey of study’ to the Greek resettlement areas – a trip that was organised with the assistance of Sir John Hope Simpson, former vice-president of the Refugee Settlement Commission in Greece.41 Drawing on a range of literature and sources, the resulting report, The Balance of Resettlement: An Indication for Palestine, revisited Lausanne through the familiar inter-war lens of the principles of nationality, security and humanity. While the ‘hard circumstances’ of the ‘great national interchange of populations’ had, at the time, borne ‘the stain of inhumanity’, the ‘goal of homogenization by an 40 41

Palestine Royal Commission 1937, p. 390, para. 40. Simpson 1939. In January 1941, in relation to the problem of European frontiers and minorities, the British Foreign Office similarly (secretly) requested experts to prepare a ‘brief ’ memorandum on ‘lessons to be learnt from past exchanges of populations, particularly the Greco–Turkish exchange…’. Ronald 1942.

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unmixing of population’ was ‘constructive and progressive’ – the rights of minorities in a ‘new guise’ and ‘a milestone in the history of international law’. The post-World War I infusion of ‘new life’ into the idea of ‘resettlement’ was attributable, claimed the report, not to ‘the right of the strongest’, but to the ideology of the ‘doctrine of the right of self-government of peoples, the liberation of sup­pressed nations and the protection of national minorities and of the life of nationalities themselves under guarantees founded on international law.’ The security benefits of Lausanne, too, were manifest. Contrary to those who had foretold a future of ‘permanent hate and a spirit of revenge,’ a region that had been a hub of ‘nationalistic agitation’, imperial rivalry, and ‘one of the most dangerous powder magazines of world politics’ had been transformed. With the exchange of populations, once hostile states had been exchanged for ‘allied powers’.42 While all three principles of post-Lausanne transfer justification were deployed by Zionist transferists to legitimise their postPeel transfer proposals, the principle of humanity became key. In a memorandum addressed to the Twentieth Zionist Congress, for example, Dr Selig Soskin (an early and fervent supporter of com­ pulsory transfer) argued that the ‘great humanitary’ [sic] nature of his scheme to resettle the entire Arab rural population lay in the promise of greater freedom (from ‘exploitation by the effendis’, from the old system of ‘musha’ land possession, and from life as ‘a constant minority under Jewish domination’), and better conditions (a Palestine pastoral of ‘[w]ell laid out villages with neat houses, a main road, water supply … which will be more hygienic and nicer in appearance than the present villages, very often surrounded by or even standing on, heaps of manure’).43 For Jonah Silman, in his December 1937 study of the Greco–Turkish exchange of populations, the first and foremost lesson to be learned was planning. At Lausanne, there had been no opportunity to plan as the vast majority of Greek refugees had already fled Turkey before 42 43

Mendelsohn 1938. Soskin 1937, pp. 4–5.

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the Convention was signed. This had led to land shortages, irrigation problems, and a malaria epidemic. ‘The great difficulty,’ Silman argued, ‘under which the R.S.C. [Refugee Settlement Commission], and the State too [Greece], were labouring was the absence of such a plan and the great haste with which the work of settlement had to be carried out’. But if there was to be a future exchange or ‘transference’ this would be ‘agreed upon between two peoples in time of peace’ and on ‘a scientifically planned basis’. Drawing on the lessons of what went wrong at Lausanne, a ‘scientific plan’ would include: a ‘thorough topographical survey’ and ‘an investigation into the possibilities of water supply, irrigation and development in the areas reserved for settlement’; the eradication of factors (such as malarial swamps) that are dangerous to health; settlements based on a communal model designed to teach and spread modern methods of intensive farming; and credit facilities to be provided by ‘a special agricultural bank’.44 For some members of the Population Transfer Committee, however, its compulsory nature precluded Lausanne serving as a ‘precedent’ for Palestine. ‘It is difficult to imagine’, wrote the economist, Dr A. Bonné, ‘that the Zionist Movement, whose aim is to create a home for a landless people, will be instrumental towards the expulsion of another people against its will.’ ‘The consequences’, he warned, ‘would be so grave that no plan will be workable which is based on the compulsory transplantation of Arabs’.45 This did not, however, translate into a rejection of transfer altogether, as, without it, there could be no Jewish state. The key, argued Dr Artur Ruppin (the long-standing head of Jewish settlement in Palestine, who had first proposed transferring the Arabs to Syria in 1911) was to construct a voluntary scheme, the terms and conditions of which were so attractive that they offered a desirable alternative to the inhuman life of the Arab fellahin (peasantry).46 Bonné, on the other hand, thought 44 45 46

Silman 1937, pp. 46–7. Bonné 1937, Part III, p. 3, para. 2. Ruppin n.d. Translated by Hilde and Michele Smith. For a full account of the discussions of voluntary transfer including Yosef Weitz’s 1937 voluntary transfer plan, see Masalha 1992, chapter 3; Katz 1998, chapter 4.

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that even a voluntary scheme was likely to be met with a ‘negative reply’ by the Arabs. It was better to ‘neutralise’ the issue by disguising it as part of a ‘greater scheme’ of agricultural reform that would be of interest ‘to Jews and Arabs alike’. The scheme could be administered (and further neutralised) by a Lausanne-styled Mixed Commission of (neutral) experts operating under the League of Nations, which could formulate programs such as the ‘“Achievement of a Great Agricultural Reform in both States by the Resettlement of the Arab Population in the New Arab State, Development of New Water Resources, Draining of Swamps, Rounding-Off and Partition of Musha’a Lands, etc.”’.47 For Bonné, it was this concern and planning for the future well-being of the Arabs that distinguished his own resettlement plans for the Arabs from German and Polish policies in respect of the Jews. The latter, pointed out Bonné, ‘are not interested at all in the fate of the emigrated Jews, nor do they take any pains to secure adequate conditions of existence for the emigrés, whereas the scheme proposed here centres around the well-being of the evacuated population in their near domiciles and contains numerous provisions for their material, technical and financial support’.48 As we have seen, neither compulsory nor voluntary transfer was acceptable to the British Government. In rejecting even Peel’s voluntary scheme, the Woodhead Commission was at odds with Zangwill’s orientalist fantasy of the ‘essentially mobile’ or nomadic Arab who would be prepared ‘to trek’ voluntarily to more humane climes. Instead the Commission found that, like ‘peasants all the world over’, the Arabs were deeply attached to ‘their ancestral lands’ and (less romantically), that the lands they were to vacate under Peel ‘constitute the most fertile and best watered parts of Palestine’.49 While a compulsory transfer was unconscionable, Peel’s voluntary scheme was unlikely to attract many volunteers. 47 48 49

Bonné 1937, Part III, p. 4, para.4. Ibid, para 6. Palestine Partition Commission 1938, p. 83, para. 179. See generally Chapter VIII, and Chapter X, paras. 176–81.

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But the demise of Peel did not put an end to Zionist efforts to cloak their population transfer plans in international legitimacy.50 With the outbreak of World War II, it was not only to Europe’s population transfer past that the Zionists could appeal to justify their transfer agenda but to the prospect of large-scale European population transfers in the not-too-distant future. Here is Ben-Gurion in 1941, outlining Zionist policy: We have to examine, first, if this transfer is practical, and secondly, if it is necessary. It is impossible to imagine general evacuation without compulsion, and brutal compulsion … The possibility of a large-scale transfer of a population by force was demonstrated, when the Greeks and the Turks were transferred [after the First World War]. In the present war [Second World War] the idea of transferring a population is gaining more sympathy as a practical and the most secure means of solving the dangerous and painful problem of national minorities. The war has already brought the resettlement of many people in eastern and southern Europe, and in the plans for post-war settlements the idea of a largescale population transfer in central, eastern, and southern Europe increasingly occupies a respectable place.51

Transfer was not yet so ‘respectable’, though, that the Zionist prop­ osals could be made public. The 1941–2 edition of Foreign Affairs in which Beneš had called for a post-World War II population transfer ‘on a very much larger scale’ also carried an article by Weizmann which, by contrast, repeated the Zionist ‘public catechism’ that in the future Jewish state ‘there will be complete civil and political equality of rights for all citizens,’ and ‘full autonomy’ for the Arabs in their internal affairs. Any role for the Zionists in transferring Arabs would be purely facilitative: ‘But if any Arabs do not wish to remain in a 50 51

On the various Zionist population transfer plans and debates post-Woodhead see eg Masalha 1992, chapter 4. Translated and quoted (to rather different effect) in Masalha 2003, p. 19.

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Jewish state, every facility will be given to them to transfer to one of the many and vast Arab countries.’52 But privately, Morris tells us, Weizmann, like Ben-Gurion, had become convinced of the necessity of transfer and throughout the 1940s he lobbied for public support. In Britain, it came from the Labour Party. In 1944, its annual conference adopted a resolution on the International Post-War Settlement that recommended the transfer of the Arabs out of Palestine primarily on grounds of humanity. The Jewish National Home had ‘neither hope nor meaning,’ argued Labour’s National Executive Committee, unless Jews were able ‘to enter this tiny land in such numbers as to become a majority’. There had been ‘a strong case’ for this before the war but ‘after the unspeakable atrocities of the cold and calculated German Nazi plan to kill all Jews in Europe,’ this had now become ‘irresistible’. But for the Jews to move in, the Arabs should move out: ‘Here, too, in Palestine surely is a case, on human grounds and to promote a stable settlement, for transfer of population. Let the Arabs be encouraged to move out, as the Jews move in. Let them be compensated handsomely for their land and let their settlement else­where be carefully organised and generously financed.’53 The foll­ ow­ing year, when former US president Herbert Hoover published his plan to develop lands in Iraq in order to ‘resettle’ the Arabs of Palestine, he too invoked the principle of humanity: this ‘model migration,’ he told the New York World-Telegram, would provide a ‘constructive humanitarian solution’ to the Palestine question, and ‘ample Jewish refuge’.54 Ironically, then, it was the principle of humanity that tipped the balance in favour of the Zionist ‘near-consensus’ on transferring the 52 53

54

Weizmann 1942, pp. 337–8. This was consistent with the National Executive Committee’s wider endorsement of ‘organised transfer of population’ to ‘heal’ the problem of national minorities (particularly Germans) in Central Europe (‘one of the running sores in the body of Europe’), and as ‘one of the foundations of better international relations in a later phase.’ The Labour Party 1944, p. 5. The Hoover Plan, New York World-Telegram, 19 November 1945, quoted and discussed in Simons 1988, pp. 90–100.

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Arabs of Palestine. In 1922–23, faced with Turkey’s expulsion of the Greek minority, Nansen and the politicians at Lausanne had decided to solve the humanitarian crisis by transferring the Turkish minority in Greece to make way for Greek refugees in the Greek nation-state. Similarly, in the 1940s, faced with the Holocaust, the Zionists (and some British and US politicians) proposed solving the humanitarian crisis by transferring the (future) Arab minority to make way for Jewish refugees in the (future) Jewish nation-state.

The International Legal History of Population Transfer and the Yugoslav Ethnic Cleansing Paradigm While the Zionist population transfer prism neglects the role of in­ ternational law in shaping and legitimising the Zionist population transfer agenda, the Yugoslav ethnic cleansing paradigm, by contrast, relies on a highly selective account. An assumption of Pappe’s work is that the Zionist desire to remove the Arab minority from the future Jewish state existed only within the domain of Zionist (brute) politics in violation of the post-1945 (humane) international legal order – the United Nations Charter, 1945; the Universal Declaration of Human Rights, 1948; and General Assembly resolution 194 of 11 December 1948 (which resolved that Palestinian refugees wishing to return should be allowed to do so). Yet, a glance at international treaties and state practice in relation to minorities post-World War II reveals that international law in 1948 was a far more ambiguous affair. We have seen that the inter-war and World War II years witnessed a surge of international opinion in favour of the transfer of minorities as an alternative to the League of Nations system of minority rights. By 1948, this international wishful thinking had already been converted into international legal obligation. Within only weeks of the adoption of the United Nations Charter, with its lofty goals, its human rights sensibility, the ‘Big Three’ (the Soviet Union, the United Kingdom and the United States) meeting at Potsdam had authorised the ‘orderly and humane’ compulsory transfer of the Germans from Czechoslovakia, 124

Remembering 1948

Poland and Hungary to Germany.55 Article XII of the 1945 Potsdam Protocol provided that: The Three Governments having considered the question in all its aspects recognize that the transfer to Germany of German populations or elements thereof, remaining in Poland, Czechoslovakia and Hungary will have to be undertaken. They agree that any transfers that take place should be effected in an orderly and humane manner.56

At the Paris Peace Conference the following year, Czechoslovakia, not content with expelling the Germans, sought approval of its plans to carry out a further compulsory transfer – this time of 200,000 of its Hungarian minority (Magyars) to Hungary. Faced with vociferous opposition from Hungary, the United States, the United Kingdom and Australia blocked the Czech request. This did not, though, signal an early retreat from the Potsdam principle of ‘orderly and humane’ compulsory transfer. What was considered unacceptable about the Czech proposal at Paris was not its element of compulsion or its scale but rather its unilateral character (it was to be carried out against the wishes of Hungary). So while the Paris Peace Conference did not directly authorise the transfer of the Magyars it did so indirectly by imposing an obligation on Hungary to negotiate with Czechoslovakia to find a solution to the ‘problem’ of its Magyar minority. ‘To be acceptable to my Government,’ the US delegate explained, ‘any transfer should be made dependent on the acquiescence of the receiving country’ and must be carried out by 55

56

This, of course, was a fantasy. In practice, the transfers were neither orderly nor humane. There is no agreed figure on how many Germans died during the Potsdam transfers and the wider expulsions, but, according to the historian R. M. Douglas, estimates of 500,000 to 1.5 million are ‘consistent with the evidence as it exists at present’. Douglas 2012, pp. 1–2. Berlin Conference 1945. In 1996, the French, Russian and British ambassadors to Czechoslovakia reaffirmed the Potsdam decision (France was not a party to the orig­ inal Potsdam Protocol but it was a party to its implementation). See Frowein 2002, footnote 9. Potsdam also continues to be treated as part of the international legal order – even by human rights bodies. See eg the decision of the European Court of Human Rights in Preussische TreuhandGmbH & Co. KGa.A.v. Poland (2008).

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‘gradual processes’, and ‘in accordance with the principles of inter­ national justice and humanity’.57 By 1948, population transfer had replaced minority rights as the preferred solution to the problem of minorities in European peace­making. Historians estimate that between 1945 and 1955 an astonishing twenty-three million of Europe’s minorities were trans­ ferred under international agreement. Indeed, such was the post-1945 level of population transfer activity in Europe that, writing in 1955, Inis Claude was able to characterise the early years of the United Nations as creating ‘a picture of minority movements unprecedented in an era of nominal peace’.58 Contrary, then, to Pappe’s depiction of a Zionist politics at odds with the post-World War II humane international legal order, at Potsdam and Paris, and in Central and Eastern Europe, the inter­ national legal order shared and shaped the Zionist fantasy of nationstates without troublesome minorities.

Who’s Afraid of International Law in 1948?

From their excavations of Israel’s declassified archives, the New Historians and Palestinian historians have brought us new and important understandings of 1948 as (directly or indirectly) shaped by the hidden history of Zionist population transfer thinking. By establishing a prior link, between the international legal history of population transfer and the Zionist population transfer agenda, this chapter invites a fresh understanding of 1948 that acknowledges the role of international law. This image of international law as one of the protagonists in the Palestinian refugee story is unfamiliar. For international lawyers (as for Pappe), 1948 is an iconic date in a historical progress narrative – synonymous with such legal landmarks as the Universal Declaration of Human Rights and the Genocide Convention. The Palestinians, 57 58

Statement of the United States Delegation in connection with the Czechoslovak Proposal to Expand their Bridgehead in Hungary, CP. Gen. Doc.1. Q. 3, Annex, in Paris Peace Conference 1946, pp. 244–5. Claude 1955, p. 192.

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too, are invested in a narrative of 1948 that places law on the side of progress (and on the side of the Palestinians), and consigns pop­ ulation transfer thinking to the domain of illegal Zionist politics. The domin­ant view of international law in 1948 is of an ambulance arriving at the scene of the Palestinian accident, dispensing emer­ gency legal entitlements – individual human rights, the right of return, and (later) the collective right of self-determination. This picture of international law in 1948 is partial. Acknowledging the less iconic role of international law in shaping and legitimis­ ing the Zionist population-transfer agenda not only provides a more complete picture of the events that led to 1948 but, I suggest, may also be crucial to the New Historians’ self-declared goal of ‘bridging the narratives of conflict’. A tendency in some of the work of the New Historians, and in Palestinian accounts, is to overparticularise the Zionist plans to transfer the Arabs of Palestine – to treat population transfer as particular to Zionism rather than as a complement to the principle of national self-determination in the inter-war and World War II periods more generally. Understanding the Zionist population-transfer agenda as part of the wider history of the relationship between the principle of national self-determination and the problem of minorities has the potential, then, to soften the Palestinian narrative and promote a fresh dialogue about 1948 that avoids the twin dangers of exceptionalism and demonisation. On the other hand, if we acknowledge the role of international law in shaping the Zionist transfer agenda it does not follow that what happened to the Palestinians in 1948 was legal. On the contrary: it points to the opposite conclusion. The Zionists may have shared the inter-war fantasy that the compulsory transfer of Arabs could, with sufficient planning, be ‘orderly and humane’ but this is not, of course, what happened. The various post-Peel proposals for a ‘scientific and humane transfer’ of Palestine’s Arabs to topographically tested and agriculturally advantageous lands in Syria, Jordan or Iraq, under the supervision of a Lausanne-styled Mixed Commission, which would award compensation for properties left behind, were neither adopted as policy nor implemented in practice. Instead, as the archives show, 127

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the Palestinian exodus of 1948 was chaotic and often violent, fuelled and accompanied by massacres, expulsions, the wholesale destruction of villages, and dispossession of land and property. And yet, by appealing to Lausanne and to other international proposals for the ‘orderly and humane’ transfer of minorities – by providing detailed calculations of the financial aspects of transfer including evaluations of Arab land and property for compensation purposes,59 and by carrying out topographical surveys of possible settlement destinations – the work of the Zionist population transferists provides incontrovertible evidence that the Zionists, too, believed that a disorderly and inhumane creation of an Arab refugee population would be illegal. Paradoxically, then, acknowledging the role of international law in shaping the Zionist population-transfer agenda strengthens the Palestinian narrative that what happened in 1948 was unlawful and opens the way for a fresh dialogue about Israel’s international legal responsibility that draws on Israel’s own declassified archives.

Bibliography

Beneš, Eduard. 1941. ‘The New Order In Europe’. The Nineteenth Century and After 130: 150–5. Beneš, Eduard. 1942 ‘The Organization of Postwar Europe’. Foreign Affairs 20: 226–42. Berlin Conference. 1945. Protocol of the Proceedings of the Berlin Conference, 2 August 1945, Presented by the Secretary of State for Foreign Affairs to Parliament by Command of His Majesty. Cmd. 7087, Miscellaneous No. 6. London: HMSO. Bonné, Dr A. 1937. Outline for an Enquiry into the Problems of Exchange of Land and Population. July. CZA, S90/581. Bonné, Dr A. 1938. Transfer of the Arab Population (Summary regarding its financial scope). Jewish Agency for Palestine. The Economic Research Institute: July. Jerusalem: CZA, S90/24. Churchill, Winston. 1944. Speech on Poland. HC Deb. 406 Hansard cc 1478– 578. 15 December. Claude, Inis. L. Jr. 1955. National Minorities: An International Problem. New York: Greenwood Press. 59

See eg Bonné 1938.

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Remembering 1948 Colonial Office. 1937. Policy in Palestine: Despatch from the Secretary of State for the Colonies to the High Commissioner for Palestine. 23rd December. Cmd. 5634. London: HMSO. Douglas, R.M. 2012. Orderly and Humane: The Expulsion of the Germans after the Second World War. New Haven & London: Yale University Press. Frank, Matthew. 2008. Expelling the Germans: British Opinion and Post-1945 Population Transfer in Context. Oxford: Oxford University Press. Frowein, J. A. 2002. Legal Opinion concerning Benes-Decrees and related issues. In European Parliament Directorate-General for Research, Legal Opinion on the Benes Decrees and the accession of the Czech Republic to the European Union (2002). Hirschon, Renée (ed.). 2003. Crossing the Aegean: An Appraisal of the 1923 Compulsory Population Exchange Between Greece and Turkey. New York: Berghahn Books. Interdepartmental Committee on the Transfer of German Populations. 1944. Report of the Interdepartmental Committee on the Transfer of German Populations. F0371/39092. 12 May. Katz, Yossi. 1998. Partner to Partition: The Jewish Agency’s Partition Plan in the Mandate Era. London: Frank Cass Publishers. Ladas, Stephen P. 1932. The Exchange of Minorities: Bulgaria, Greece and Turkey. New York: MacMillan. Lausanne Conference. 1922–3. Lausanne Conference on Near Eastern Affairs 1922–1923, Records of Proceedings and Draft Terms of Peace. Cmd. 1814. London: HMSO. Lausanne Convention. 1923. Convention concerning the Exchange of Greek and Turkish Populations 32 LNTS (1925) 75. Masalha, Nur. 1992. Expulsion of the Palestinians: The Concept of “Transfer” in Zionist Political Thought 1882–1948. Washington D.C.: Institute for Palestine Studies. Masalha, Nur. 2003. The Politics of Denial: Israel and the Palestinian Refugee Problem. London: Pluto Press. Mendelsohn, Kurt. 1938. The Balance of Resettlement: An Indication for Palestine. CZA, L18/815. Morris, Benny. 1987. The birth of the Palestinian refugee problem, 1947–1949. Cambridge: Cambridge University Press. Morris, Benny. 2001. ‘Revisiting the Palestinian exodus of 1948’. In The War for Palestine: Rewriting the History of 1948, edited by Eugene L. Rogan and Avi Shlaim, 37–59. Cambridge: Cambridge University Press. Morris, Benny. 2004. The Birth of the Palestinian Refugee Problem Revisited. Cambridge: Cambridge University Press. Morris, Benny. 2004. ‘Politics By Other Means’, The New Republic, 22 March. Morris, Benny. 2007. ‘The New Historiography: Israeli Confronts Its Past’. In Making Israel, edited by Benny Morris, 11–28. Ann Arbor: University of Michigan Press. 129

Who’s Afraid of International Law? Morris, Benny. 2008. 1948: A History of the First Arab-Israeli War. New Haven: Yale University Press. Palestine Partition Commission. 1938. Palestine Partition Commission Report, Presented by the Secretary of State for the Colonies to Parliament by Command of His Majesty. Cmd. 5854. London: HMSO. Palestine Royal Commission. 1937. Palestine Royal Commission Report, Presented by the Secretary of State for the Colonies to Parliament by Command of His Majesty. Cmd. 5479. London: HMSO. Pappe, Ilan. 2006. The Ethnic Cleansing of Palestine. Oxford: Oneworld Publications. Pappe, Ilan. 2014. The Idea of Israel: A History of Power and Knowledge. London: Verso. Paris Peace Conference. 1946. Collection of Documents of the Paris Peace Conference Palais du Luxembourg, 29 July–15 October, vol. 2. Paris: Imprimerie Nationale. Preussische TreuhandGmbH & Co. KGa.A.v. Poland. 2008. Application no. 47550/06, European Court of Human Rights. 9 October. Rogan, Eugene L. and Shlaim, Avi (eds). 2001. The War for Palestine: Rewriting the History of 1948. Cambridge: Cambridge University Press. Ronald, N. 1942. To Sir A. Zimmern, Royal Institute of International Affairs, Foreign Research and Press Service, Balliol College, Oxford. 5 January. FO371/32481. Rotberg, Robert I. (ed.). 2006. Israeli and Palestinian Narratives of Conflict: History’s Double Helix. Bloomington: Indiana University Press. Ruppin, Dr Artur. n.d. Bemerkungen zum Problem der Uebersiedlung der Araber aus dem juedischen in der arabischen Sektor, CZA, S90/1010. Schechtman, Joseph B. 1962. Postwar Population Transfers in Europe 1945–1955. Philadelphia: University of Pennsylvania Press. Shavit, Ari. 2004. ‘Survival of the Fittest’, Haaretz, 8 January. Silman, Jonah. 1937. Greco–Turkish Exchange of Populations and Resettlement Schemes, 20 December. CZA L18/814. Simons, Chaim. 1988. International Proposals to Transfer Arabs from Palestine 1895–1947: A Historical Survey. Hoboken, N.J.: Ktav Publishing House, Inc. Simpson, Sir John Hope. 1939. Letter to Dr J Thon. 28 February. CZA L18/815. Soskin, Selig E. 1937. Memorandum: To the Members of the Political Commission of the XXth Zionist Congress. CZA S25/247. Strawson, John. 2010. Partitioning Palestine: Legal Fundamentalism in the Palestinian–Israeli Conflict. London: Pluto Press. The Labour Party. 1944. The International Post-War Settlement: Report by the National Executive Committee of the Labour Party to be presented to the Annual Conference to be held in London from May 29th to June 2nd 1944. Transport House, Smith House: London. 130

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Ch a p ter 6 :

Why Rule of Law Promotion is

Too Important to Be Left to Lawyers Martin Krygier

Background

Typically when people speak of international law they have in mind law that overarches states. However, over the last twenty-five years there has been a different sort of international legal act­ivity, concerned with generating ‘the rule of law’ within states. This is the international Rule of Law (RoL) promotion industry, and it is huge. Rule of law packages are standard, central and pricey elements of international aid to countries thought to need economic devel­ opment, democracy, human rights, security, peace-building, and many other good things. Indeed, more and more international aid packages are conditional on institutional moves being undertaken to achieve the rule of law. Long marginalised in theories of economic development, the rule of law is now at their core. A scarcely noticed cliché with little res­on­ ance in the imperious rhetoric of international human rights, it now is often said to be a key to achievement of those rights. Asked what the central failure of ‘failed states’ is, a stock answer is ab­sence of the rule of law. ‘Rule of law promotion’ is near the top of the declared agendas of organisations such as the UN, the EU, the World Bank, the IMF, OSCE, EUPol and many others, all of which have ded­ icated departments charged with developing the rule of law inter­ nationally. Rule of law programmes are implemented at vast expense in countries from Afghanistan to Zambia. Billions of dollars have 133

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been spent; thousands of intelligent, ambitious, dedicated people have been involved. But the results have not been especially happy. This chapter develops some theoretical arguments to suggest that not all disappointments in the rule of law field stem from the inherent difficulty of the task of ‘building’ the rule of law in poor, hot (sometimes cold) countries where people keep killing each other, though these difficulties are real. Many derive from very common but inadequate ways of thinking about the rule of law, what it is good for, and what it depends upon. It is those ways of thinking, and what is wrong with them, that I concentrate on here. Elsewhere I have tried to bring these theoretical reflections to bear on specific construction projects of this sort in unpromising places.1 The general argument, simply put, has two parts, one philosoph­ ical, the other sociological. They are connected – indeed I believe one necessarily leads to the other – but they can stand (and might fall) separately. This chapter is an attempt to clarify and tighten the sociological element. However, the other part forces this sociological complement, so I will begin with a brief rehearsal of it, then move onto the sociological branch. The latter forms the bulk of the chapter but not necessarily of the argument as a whole. Asked what the rule of law is, lawyers and rule of law promoters typically produce lists of characteristics of official legal institutions, rules, and practices. There are plenty of them about. There are prob­ lems with many of these lists taken individually, but my concern in this paper is more general. For what they share is as questionable as where they differ. Basically, all these lists – some shorter, some longer, some like the jurist Albert Venn Dicey’s typically and parochially English, some blithely assuming some universalistic legal Esperanto – share two mistaken assumptions: 1. that the question, ‘what is the rule of law?’ is properly, and can be satisfactorily, addressed by stipulating legal institutional bric-à-brac thought to make it up. Previously I called this approach anatomical. Now, instructed by

1

For example Krygier 2001; Krygier and Czarnota 2006; Krygier 2006; Krygier 2009b; Krygier 2009a; Krygier and Mason 2011; Krygier 2011a.

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Wikipedia, I will switch to ‘morphological,’ which appears to be the overarching category of which anatomy is only one part; 2. that we are in a position to stipulate, in terms at the same time quite general in coverage and quite specific in institutional prescription, what aspects and elements of these institutions and rules add up to the rule of law. This should come as no surprise. These moves conform to the wellknown tendency of technical professionals to view their subject as the centre of the world. Accountants see bottom lines, dentists teeth, plumbers taps and sewers, people with hammers see nails, and lawyers see law. In itself that is an understandable foible, and most people tolerate it and largely ignore it, until the moment comes when they’re in debt, pain, jail and so on. Then they enter the professionals’ world and the trouble starts. They take the specialists’ understanding of that world for truth: if they think their problem is financial, the accountant’s truth; if their teeth hurt, the dentist’s; if their toilet overflows, the plumber’s. And if the rule of law is what you want, it seems obvious that it is lawyers, with their insider knowledge, who best understand it and seem best placed to deliver it. It certainly has seemed obvious to lawyers, and to those whose views of law are parasitic on lawyer-hosts, among them legal phil­ os­ophers. It has also been the prevailing tendency in rule of law promotion around the world. Within the writings of lawyers and philosophers and the practice of promotion there are many very different, and some competitive, accounts of the rule of law. My claim is, however, that at a deeper level they all agree in an unfor­ tun­ate way, actually two unfortunate ways. Put briefly, they start with the wrong question, so their answers, however insightful, are – in this case quite literally – beside the point. The proper place to start, I believe, is with the question why, what might one want the rule of law for?; not what, what is it made up of? And that matters be­cause no sensible answer to the second question can be given until one comes to a view on the first. Moreover, even with the first question 135

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answered, what counts in one place as a sensible answer to the second might not be too sensible somewhere else. Societies differ, so do their institutional traditions, practices, and capacities; and so do the patterns of practice, expectation and culture in which they are always embedded. So we will need to learn something about these things, not necessarily to be found in the works of the usual suspects. My focus in this paper is on elements of the second, what, question, but since it makes no sense without the first, why?, I will briefly rehearse my argument on that.

Teleology

My philosophical complaint is that writings on the rule of law typically focus first on matters of legal morphology when they need to begin with teleology. Here I will be rather stipulative, merely stating what I have sought to establish elsewhere.2 The rule of law, I contend, cannot be explicated adequately simply by a list of features of legal institutions, rules or practices. For the rule of law occurs when and to the extent that there exists a legal/ social/political achievement, not merely purported means to such achievement. If we say, for example, that there were lots of laws under Stalin and a lot of rule, but there was not much rule of law, we are not saying something controversial. So at least among the legally and philosophically unwashed, the rule of law has something to do with what the law does, rather than simply with what it is. Moreover, if the law is enlisted to do things we associate with the rule of law but the mission fails, we might say that there was an attempt to achieve the rule of law, but it was unsuccessful: the laws were of the sorts we associate with the rule of law, everyone was trying, but they were overborne, for some reason or another. To say the rule of law exists in a society is to imply an accomplishment; among its partisans a valued accomplishment. An ideal connected with law has been approached. 2

The general view is elaborated in Krygier 2009c; Krygier 2011b.

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For the rule of law is not a natural entity like a tree, simply await­ ing scientific description, or even a man-made contrivance like a rule of law in a statute book, which might be identified by pointing to it. To speak of it is to characterise a state of affairs in the world, to which law is thought to contribute, though it will never do so on its own. The aspiration or ideal is satisfied only insofar as some purpose or goal for law is realised. While such an achievement could in principle be thought value-neutral or even valueless, and has been, the rule of law also has partisans – today perhaps, even too many – who think it valuable, an ideal for law. If we value that ideal we should of course seek to identify what might be necessary to generate it. But that is a second step, in service to the first. Without some principle of selection, even if only tacit, we won’t find a bunch of legal bits and pieces waiting ‘out there’ and recognisable as the rule of law. In another context, Gianfranco Poggi spoke of Durkheim’s con­ cept of society – what distinguishes it from a mere mass of people – as a contingent, ‘insofar as reality’, ‘real insofar as certain things go on’: socially patterned behaviours, shared and internalised norms, and so on.3 I think of the rule of law that way. It is a relative and variable achievement, not all or nothing. But one can say it exists in better or worse shape or repair insofar as a certain sort of valued state of affairs is or is not approached. My contention is, then, that to understand what the rule of law requires we need to start by reflecting first on its point rather than by starting, as is more common, with an enumeration of purport­ edly defining legal-institutional features, whether they be particular institutions such as common law courts, particular formal qualities of rules, such as prospectivity, clarity, etc., or even traditions and procedures, such as defences, habeas corpus, and so on, though the last is getting closer to explicit concern with the specific value of the rule of law. 3

Gianfranco Poggi coins the phrase to describe Durkheim’s conception of society. See his Durkheim (2001).

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In relation to this value we have all those centuries of distinction between monarchs and tyrants for example, not to mention Aristotle on the rule of law versus that of men, available to help us. In English law, as the historian John Philip Reid makes plain, there is a tradition alive since at least Henry of Bracton in the thirteenth century talking about the rule of law, though not necessarily in those terms.4 It is true that those centuries were not always full of the precise mantra we now use, nor were they commonly concerned with the specific institutional, formal and procedural prescriptions, recipes, which so dominate discussions of the rule of law today. And that is part of my point. If there is some common concern of partisans of the rule of law, it has been shared by many who did not know, and would not always accept the recent, purportedly ‘consensus position’ of the EU’s Venice Commission, 5 or the scores of other versions today touted as necessary, still less sufficient elements of the rule of law. And yet most contemporary accounts of the rule of law give us no way of saying what most legal historians would agree: that the ideology of the rule of law goes back a very long way in England, or that the rule of law was better exemplified in sixteenth- (actually any) century England than in Russia at the same time (or any time). Should we count the number of retrospective laws, check for their clarity, consistency, etc., according to familiar modern formulae? Well, one could but would be surprised. Some of these features today seen as defining were conspicuous by their absence. It’s simpler and more enlightening to say that the law counted for more, in certain crucial ways, in England than in Russia. And still it does. Then one needs to ask why. You won’t find a clear answer in the prescriptions of lawyers or legal philosophers who typically reflect on the experience of rule of law-rich countries in the recent West. They are likelier to lead us to symptoms than to causes. My candidate for that state of affairs, the point, the immanent value, of the rule of law, reflects a recurrent and central theme in rule 4 5

Reid 2004. European Commission for Democracy through Law 2011.

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of law traditions:6 a contrast between the rule of law and arbitrary exercise of power. Unpredictable exercise of power is one way of treating its targets arbitrarily; another is its exercise, whether pre­ dictable or not, that takes no account of the perspectives of those whom it would affect. What makes both forms arbitrary is the fact that the act of power ‘is subject just to the arbitrium, the decision or judgement of the [power-wielding] agent; the agent was in a position to chose it or not choose it, at their pleasure.’7 Conversely, those subject to such power cannot in the first case take account of it in choosing how to act ahead of time nor, in the second, manifest their voice and perspective. Opposition to arbitrariness in the exercise of power motivates regard for the rule of law and associated attempts to institutionalise ways of reducing the possibility of such exercise. The rule of law is in relatively good order insofar as some possible behaviours, central among them the exercise of political, social, and economic power, are effectively tempered and channelled, so that non-arbitrary exer­ cises of such powers are relatively routine, while other sorts, such as lawless, capricious, wilful exercises of power routinely occur less. The role of law in the rule of law is to contribute to this state of affairs. Not only is anti-arbitrariness a pre-eminent rule of law value; it is an immanent value, internal to the rule of law itself. It is common today to claim all sorts of goods as flowing from the rule of law – economic development, human rights, democracy, etc. These claims are the lifeblood of the international rule of law promotion industry. But I’m not talking about those external, purported, blessings allegedly bestowed by the rule of law. Perhaps it is good for all these things, though the claims so popular in international circles today can be debated.8 But if it is, it is because of what it does immanently, as a conceptual matter as it were, and my claim is that what it does is diminish the possibility of arbitrary power. If that 6 7 8

See Reid 2004. Pettit 1997, p. 55. See for example, Haggard and Tiede 2010; Bugaric 2014, p. 136.

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occurs, one might argue, as the great social theorist Max Weber did, that ‘sober bourgeois capitalism’ is likelier to get off the ground, but that is a sociological argument about what reduction of arbitrarinism inherent in the achievement of the rule of law might facilitate. It is not itself a quality of the rule of law. Nor are democracy, human rights and other things it is now fashionable to attribute to the rule of law. There are intuitively plausible reasons, and some evidence, to support the belief that lessening of the possibility of arbitrary power might support those further good things. But if it were shown that, in an order where the rule of law in the sense sketched here was strongly in evidence, the economy had tanked, this would not be in itself sufficient reason to conclude that there was no rule of law. Nor that the diminution in the possibility of arbitrary exercise of power was therefore not a good. Arbitrariness is a specific and obnoxious vice when added to power. Of course it is the combination that is lethal. If my acts do not have potential to harm, then I can be as arbitrary as I please; indeed my eccentricity might be part of my charm. And it is not power of itself that is obnoxious. We need it in many forms as well; in any event we will not get rid of it. Nor should we seek to cripple the capacity for power to be exercised to keep peace, defend populations, enforce legal judgments, balance other powers, and so on. Further, we need to distinguish between those exercises of arbitrary power that should be of public concern and those that should not. Lovers can act arbitrarily towards each other, and that can harm one or both of them,9 but most of us would, I imagine, think that, unless some threshold of injury has been crossed, they will just have to deal with that themselves. Not every hurt is or should be a matter of public concern. What we don’t want is to live in circumstances where significant power can be exercised over us in an arbitrary manner. There are many other vices that depend on the substance of the law, but arbitrary 9

Though I was not completely unaware of this, I am grateful to Gerry Simpson for reminding me.

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power is vicious enough even without them and moreover can be vicious even when the substance is fine. Arbitrary power is a freestanding vice, as it were. Where arbitrariness is linked with significant power, it tends typically to: threaten the liberty of anyone subject to it; generate reasonable and enduring fear among them; and deprive citizens of sources of reliable sources of expectations of, and coordination with, each other and with the state. And as Lon Fuller and Jeremy Waldron10 have emphasized, it threatens the dignity of all who find themselves mere objects of power exercisable at the whim or caprice of another. More can be said about all of this,11 but not here. These are four good reasons to value reduction of the possibility of arbitrary exercise of power. To the extent that the rule of law can help deliver such reductions, this is reason to value it. This is not, of course, merely a negative matter of removing evils, but can be expressed positively. A society in which law contributes to securing freedom, confidence, coordination and dignity is some great and positive distance from many available alternatives. There are other things we want from law, and many more things we might want in a good society, but ways of serving these values are goods immeas­ur­ ably harder to attain without institutionalising constraints on arbit­ rariness in the exercise of power. There is, of course, controversy about how that state of affairs should be characterised, how the law might contribute to it, and what it needs to be like to do that effectively. There are also controv­ ersies about the fundamental values, and the worth, of the rule of law itself. Anti-arbitrariness is not an eccentric choice, but many would say it is not enough. I agree it is not enough for a good society, or even good law, but these are other goods. It is enough for that precious but limited good, the rule of law. But if you don’t agree, it’s not the end of the world. I’m happy to debate this specification of the value at stake, but my larger argument doesn’t depend on my 10 11

Fuller 1969; Waldron 2012. I discuss these four reasons more extensively in Krygier 2011b, pp. 78–81.

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being right here. Such controversies are inevitable, and not unique to the rule of law. Recall democracy, justice, equality. Concepts that are contested, even ‘essentially contested,’12 are not for that reason alone meaningless or useless. On the contrary, some of them are the most important we have. Indeed that importance is a central reason for the controversies that rage about them. My own specification cannot put an end to such controversy. Ends and means are both in play and disagreements are common in both domains. I only want to suggest that the rule of law needs first to be approached by asking after its telos. You can’t usefully describe or explore the rule of law before clarifying what you think it’s good for. To repeat and to conclude, people might reject my parsing of the immanent value of the rule of law. The more important point for my general argument is that what we look for to achieve this end can only be decided after we have clarified what we regard as the end in view. I think this is a general truth, but it is particularly important for rule of law promotion, lest practitioners without a clear aim be reduced (as they often have been reduced) to keep doing what you do when you don’t have a clear idea why you’re doing it, or simply because that’s what they do where you come from. The argument of the rest of the paper is this: if we value the immanent end(s) of the rule of law (whatever we conclude it or them to be), we cannot assume, without further investigation, that any particular assemblage of legal institutions or practices will generate such ends or, conversely, that they can nowhere be generated in quite other ways, ways of which we haven’t thought, which might be simply beyond our ken. We need to look, and not only within the professional frames within which lawyers and legal philosophers view the world. And that leads, inexorably I would say, to a need to know something about society, beyond merely what we might pick up by living in one.

12

See Waldron 2002.

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Society

Unfortunately, I can’t point to a bunch of sociological writings that speak directly to these concerns. The sociology of the rule of law is not a well-populated field. Some decades ago, Philip Selznick argued that, given its centrality among legal values, the rule of law ‘must be a chief preoccupation of legal sociology,’13 and he pointed to a good deal of research that spoke to that theme. Though they might have spoken to it, however, in the sense of bearing on it, most sociologists did not speak of the rule of law or analyse it particularly closely.14 So, what I will sketch is not a mainstream sociological concern. It is rather conceived as a contribution to what one scholar has called, once referring to Selznick, once to Fuller, a ‘social science that doesn’t exist,’15 though some of its elements already do exist, if not usually considered in close connection with each other.

Law in Society In 2005–06 I spent a year at an interdisciplinary centre for advanced studies at Stanford. One thing I was writing about there was the experience of rule of law promotion in post-communist societies. One of my colleagues was James House, a sociologist from Michigan, with whom so far as I knew I had nothing in common except that we enjoyed playing ping-pong together every day. He was writing about health in the United States. One problem that the US faces is that while it spends much more, absolutely and per head, on health care than any other country in the world, its health results are worse than those of countries comparable in other relevant respects. Indeed they have declined. House argued that this problem would not be fixed by focusing on the usual suspects – hospitals, health care, medical technology, drugs – and trying to improve them. America 13 14 15

Selznick 1968, p. 52. Although Selznick certainly did. See my Philip Selznick. Ideals in the World (2012), chapters 6–9. And see Neumann 1986, and other works from associates of the Frankfurt School, particularly Otto Kirchheimer. See also Aubert 1984. Soltan 2002, p. 357.

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led the world there already, but the results of all this money, tech­ nology, and expertise were disappointing. The cure would have to be sought elsewhere, in education policies, welfare, improving dis­ tressed socio-economic circumstances, and so on. The results of that research were later published in a co-authored book, Making Americans Healthier: Social and Economic Policy as Health Policy, which explored ‘a growing paradox between its declining levels of pop­ ulation health relative to other wealthy nations – and even some devel­op­ing ones – and its burgeoning spending on health insurance and medical care.’16 At the time, I was struck by parallels between House’s argument and the core assumptions of a certain tradition of socio-legal work, which I have been trying to integrate into thinking about the rule of law. The theme of this tradition is well captured by the remark of Marc Galanter, one of its more penetrating contemporary repres­ entatives: ‘[j]ust as health is not found primarily in hospitals or know­ledge in schools, so justice is not primarily to be found in official justice-dispensing institutions. People experience justice (and injustice) not only (or usually) in forums sponsored by the state but at the primary institutional locations of their activity – home, neigh­ bour­hood, workplace, business deal and so on.’17 People might admit this about justice, but still draw back from seeing implications here for law. After all, it is common to observe that law and justice often come apart; rule of law too. Recall the lament in the 1990s of the former East German dissident, Barbel Bohley: ‘we wanted justice; we got the rule of law.’ Maybe justice is to be found in society, but law on this view is exclusively and for better or worse, what comes to us from the state and its agencies. However, the point can be pushed further. It is common to gesture to law/society relationships with the phrase ‘law and society.’ The umbrella movement in the United States for those who study these things is the Law and Society Association, there are numerous ‘law and society centres’ there, the leading journal is the Law and Society 16 17

Schoeni et al. 2010, p. 3. Galanter 1981, p. 17.

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Review; Britain, or at least Wales, has its own Journal of Law and Society. Yet the Harvard jurist Lon Fuller disapproved of this logo, not vehemently but firmly and in principle. He insisted that law was a part of social life, not merely a partner of it. So, ‘law in society,’ not ‘law and …’ As Philip Selznick, himself founder of a Law and Society Centre, was somewhat chastened to admit, Fuller ‘disliked the phrase “law and society”. He objected to the “and” as a distancing imagery; it seemed to counterpose what should be understood as wholly intermingled. We may not wish to indulge that bit of purism, but the point is well taken.’18 This is a very general point, of course, and in truth Fuller adorned it with little detail and not everything he wrote followed its implications. It is pursued more vigorously, and for non-accidental reasons, in strands of socio-legal writings that have emanated from east European multi-national empires before the First World War, where what the imperial code might have said, and the normative frames within which locals of varying languages and ethnicities and religions lived, typically diverged. The key names are Leon Petrażycki (who distinguished and gave priority to ‘intuitive law’ over official law), Bronisław Malinowski (who, by focusing a central European tradition, made famous the ‘discovery’ in Papua New Guinea of law without ‘central authority, codes, courts and constables’) and Eugen Ehrlich (‘the center of gravity of legal development lies not 18

Selznick 1980, p. 216. Cf. Fuller 1968, p. 57:

The intensified interest in the sociology of law that has developed in recent years has come to assume the proportions of something like an intellectual movement. In the United States this movement has found a kind of sloganised expression in the title, Law and Society … It would be captious indeed to pick any serious quarrel with this innocent renaming of the familiar … At the same time there are, I believe, some dangers in this new title and in the allocation of intellectual energies it seems to imply. By speaking of law and society we may forget that law is itself a part of society, that its basic processes are social processes, that it contains within its own internal workings social dimensions worthy of the best attentions of the sociologist.

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in legislation, nor in juristic science, nor in judicial decision, but in society itself.’19). I won’t pursue their writings here, but I think there is a lot to be drawn from them, in at least two ways. The first has to do with the implications of the character of social relations for the rule of law, for societies are patterned in differing ways. Many of these patterns endure over time, and they matter for most things, among them legal institutional function, form, social salience and performance. Societies exhibit internal continuities and differences from each other, and within them, regions and subsocieties differ too, in the character and texture of relationships they generate, enforce, and suppress. The extent to which social config­ urations are apt to support and resist specific institutional arrange­ ments also varies. At least since Edward Banfield wrote of ‘amoral familism’ in The Moral Basis of a Backward Society 20 social scientists have discussed whether some sorts of pervasive social arrangements are more hos­ pitable to the relatively impersonal social relationships that one finds in modern societies, and to the impersonal rules that Weber considered distinctive of modernity, and writers on the rule of law presume to be essential to it. Banfield thought what he called (though we would never do so now) ‘backward’ societies were inhospitable to impersonal connections and institutions, and could only be adapted with difficulty. Thus, in societies, or sub-societies characterized by ‘amoral familism,’ such as the Montagrenesi of southern Italy that he studied, the underlying rule of social behaviour was, Banfield argued, ‘Maximize the material, short-run advantage of the nuclear family; assume that all others will do likewise.’21 No-one – indeed nothing – will be interpreted as public in purpose even where it might actually be so intended and ‘the law will be disregarded when there is no reason to fear punishment.’22 More pithily, a similar point has been expressed in Ernest Gellner’s contrast between modern 19 20 21 22

Ehrlich 1936, p.xv. Banfield 1953. Ibid., p. 85. Ibid., p. 92

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‘civil societies’ and most historical societies, dominated by either kings or cousins, or some combination of both.23 More recently, Robert Putnam has embroidered Banfield’s theme, also on the basis of Italian data. Comparing Italian regions over 20 years since they all ostensibly received the same sets of public institutional reforms, he finds consistently over that period, and more ominously over centuries, that effective institutional perform­ ance was closely correlated with characteristics of social structure, and in particular the amount of civic association available to generate interpersonal trust among non-intimates.24 Regions with plenty of such associations – football clubs, singing groups, etc. – had con­ sistently better governmental institutions than those who lacked them. While he doesn’t speak of the rule of law, some of his observ­ ations are suggestive: Lacking the confident self-discipline of the civic regions, people in less civic regions are forced to rely on what Italians call ‘the forces of order,’ that is, the police … citizens in the less civic regions have no other resort to solve the fundamental Hobbesian dilemma of public order, for they lack the horizontal bonds of collective reciprocity that work more efficiently in the civic regions … [However] In the less civic regions even a heavy-handed government – the agent for law enforcement is itself enfeebled by the uncivic social context. The very character of the community that leads citizens to demand stronger government makes it less likely that any government can be strong, at least if it remains democratic … In civic regions, by contrast, lighttouch government is effortlessly stronger because it can count on more willing cooperation and self-enforcement among the citizenry.25 23 24 25

See Gellner 1994. I have discussed the distinctiveness of such trust, and its links with civil society and the rule of law, in Krygier 2002, and Krygier 2005. Putnam 1993, pp. 112–13.

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A more ambitious argument along related lines, and directed precisely at the rule of law, has recently been developed by the instit­ utional theorist and political economist, Barry Weingast. Weingast distinguishes two social types that have developed to deal with the problem of violence in radically different ways. On the one hand, and for most countries in most periods of history, including our own, there are ‘limited access orders,’ which solve the problem of violence through distributing benefits differentially to and among those who are in a position to wreak it: ‘In this social order, the political system manipulates the economic system to create rents so as to con­ trol violence and sustain order.’26 Open access orders, by contrast and as the label suggests, open up ‘entry to political and economic organ­izations. As a result, they exhibit political and economic com­ petition, and this competition is central to political order and the prevention of violence. In contrast to the [limited access order] all citizens in open access orders have the ability to use the state’s courts to enforce the organization’s contracts. Open access therefore creates and sustains a rich civil society. Competition and open access in the economic system reinforces competition and open access in the political system, and vice versa.’27 What the rule of law requires, and what most limited access orders cannot provide are accepted norms that transcend persons and statuses. Only thus can be generated ‘credible commitments that institutionalize political and social mech­a n­isms that create incentives for both political officials and citizens to honor the rules so that not only today’s officials honor the rules but so too will tomorrow’s.’28 The differences between these systems are not matters of free, benevolent, or malicious choice or good or bad character. They are, Weingast argues,29 different in­stit­ ut­ionalised ways of insuring against the Hobbesian nightmare. The difficulty is to move from one to the other. Mere transplantation of institutions will not do the trick. 26 27 28 29

Weingast 2010, p. 30. Ibid., p. 33. Ibid., p. 45. And for the theory on which this is based, see North, Wallis, and Weingast 2009.

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I am not interested here in defending the detail of these argu­ ments. I am conscious that these are idealised distinctions and don’t account for everyone’s behaviour, and I would want to resist the cosmic pessimism some of these authors exude, until intellectually forced that no alternatives were available.30 But a core element com­ mon to them is surely true: socially institutionalised behaviours, expect­ations and sources of legitimacy are not infinitely malleable or trivial in their consequences. If anyone hopes that the ‘rule of law’ might transform social relationships so that opportunities for the stronger arbitrarily to dominate the weaker are diminished, they need to have thought hard about what the relationships in place are, and what might be done to change them. Unless they do change, much that we seek to graft onto local hosts will die (might even kill), and even if it survives, the resulting amalgam is likely to operate in ways that surprise, sometimes astound, us. For, to use a distinction of Stephen Holmes’s, legal and political orders are ‘interaction technologies’ rather than ‘production technologies’, if (as I doubt) it make sense to speak of them as ‘technologies’ at all. Interaction technologies depend on the interactors and their routine, and their ways and existing norms and expectations of interaction, as much as or more than they depend on the technologies. And unless such matters are effectively taken into account, technologies introduced with great fanfare, money, blood and sweat commonly end in tears. The second significance of ‘law-in-society’ applies as much to modern, well-established, impersonal state legal orders as it does to those that rule-of-law promoters struggle to transform. Is it enough to focus on the characteristics of legal institutions, rules and prac­ tices there? Well certainly where the law counts, its institutional details and requirements do too. But law is still in society here too. First of all, consider the universal truism that an enormous amount of activity to which state law might relate will never find its way to state institutions, but will be dealt with, if at all, elsewhere. This is true everywhere, including in the highly state-developed and law30

See my ‘Institutional Optimism, Cultural Pessimism and the Rule of Law’ (1999); Krygier 2001.

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governed societies of the developed West. American socio-legal scholars speak, for example, of the ‘disputing pyramid’. 31 At its broad base is a hurt of some kind. This needs first to be noticed as an injury, say lung cancer from smoking, rather than, say, a natural incident, as it was not so long ago thought to be. It has, in the terms of the trade, to be named. Then to be attributed to a culprit, who only under this condition will be blamed. Only then can it form the basis of a claim, which often is never made. Injured parties often prefer to ‘lump it.’ Some claims will involve third parties, only some of them lawyers. Only then will a very small proportion of this small proportion enter, and even fewer begin to ascend, layers of the official hierarchy. Ultimately a handful of potentially lawrelevant activity ends up as one of those rare superior court case that lawyers and legal philosophers often speak of as the central stuff of the law. Those cases indeed matter greatly to the skewed sample of litigants who endure them, and they might be of legal importance disproportionate to their numbers, but socially the situation is more complicated. Apart from definitive resolution of the relatively few disputes that come before the courts, there are other sources of such social importance as they have. And both depend upon favourable social circumstances. What follows from this? Certainly not that dispute settlement by courts is unimportant. The fact that ‘health is not found primarily in hospitals’ is not an argument for the unimportance of what happens in hospitals. Even if I have plenty of stubbed toes but only one heart attack in my long life, it’s enough. And so with courts. Treated for the moment just in terms of what they do for those who reach them, this will include serving many who found nowhere else to go, no other independent institution capable of doing justice to their claims. There is an incalculable difference between societies where this possibility is available to citizens, and ones where it is not, or is available only to certain categories, or deals so badly with them that they have no use for them, or costs so much that they can’t afford to use them. 31

Felstiner, Abel and Sarat 1981.

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Moreover, this is so whether or not one ever has occasion actually to use the institutions. In the previous paragraph, I spoke only of individuals with disputes or grievances that actually do make their way to official institutions. But here hospitals differ from courts. A heart attack is a sad but individual event. It may, of course, affect many apart from the sufferer. However, it is unlikely to set them on a path that might end with them tearing each other apart because there is no effective institution available to treat it. The absence of the real possibility of independent and enforceable third-party inter­ vention, by contrast, can have tragic social consequences. In such circum­stances, people do not merely, as we often do, fend for them­ selves in the first instance, but are liable to do so without curb or limit, if they lack even the in-principle anticipation that they might call on official agencies if all else fails. So nothing I say in what follows is intended to detract from the strategic, ultimate, signif­ icance of the provision by the state of institutions to hear and do justice to the parties who make their way to them. This acknowledgment of the fundamental significance of an effect­ ive state legal system (where it exists) must remain consistent with two other truisms that I would stress. First, that a crucial part of the social importance of state law stretches well beyond what it does to any specific litigants in legal proceedings. Second, that that sig­ nif­icance can only be assessed in the light of other sources of social influence than the law itself, which may support, refract, rechannel, transform, or totally block that influence. Legislation, of course, is always directed outwards, and court proceedings too have fundamentally important effects that radi­ ate well beyond their direct participants. For apart from citizens’ (generally rare) direct invocations of official channels, there is the extent to which they are able and willing to use and to rely upon legal resources as cues, standards, models, authorisations, immun­ities – what the socio-legal literature identifies as ‘bar­ gaining chips,’ ‘regulatory endowments’ – in relations with each other and with the state. In this respect, as Marc Galanter has 151

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emphasised,32 courts act less as magnets than beacons. If they were to be judged simply by the proportion of social disputes they suck in for official treatment, they might well be accounted failures every­where, given the very small proportion of disputes that reach them. Rather, apart from and at the same time in the very process of dealing with those disputes, they send signals about law, rights, costs, delays, advantages, disadvantages, anguish, and other possibilities, into the community. This has been long understood, in the well-known phrase, as ‘bargaining in the shadow of the law.’33 Of course it helps if the beacons are bright rather than dim, focused and well-directed, the signals sent clear and encouraging (or, in the case of criminal law discouraging). If the message is the Kafkaesque one that everything but justice happens in the courts, that is a bad message. Or the messages citizens receive from institutions might include confirmation that the courts apply ‘telephone law,’ or are in the pockets of oligarchs, or whatever they say won’t be implemented (all often alleged in Russia), or that even if clean the courts are less powerful than local patrons (ditto and elsewhere), or that whatever one gets from the courts won’t compensate for the costs, difficulties, delays and distress of the process (think family law). The old Bulgarian adage that ‘the law is like a door in the middle of an open field. Of course you could go through the door, but only a fool would bother,’ is not a good advertisement for the messages sent by the Bulgarian legal system. So it matters to at least two constituencies (apart from those, law­ yers, who make their living from them) how legal institutions settle disputes. The smaller and frequently atypical constituency is the 32

33

See his ‘Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law,’ (1981). As Galanter observes, ‘[t]he mainstream of legal scholarship has tended to look out from within the official legal order, abetting the pretensions of the official law to stand in a relationship of hierarchic control to other normative orderings in society. Social research on law has been characterized by a repeated rediscovery of the other hemisphere of the legal world. This has entailed recurrent rediscovery that law in modern society is plural rather than monolithic, that it is private as well as public in character and that the national (public, official) legal system is often a secondary rather than a primary locus of regulation’ (p. 20). Mnookin and Kornhauser 1979.

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litigants themselves, whose days in court are nevertheless often of extremely highly charged significance to them and therefore sig­­nif­ icant in themselves, and who also are part of the second, much larger, constituency affected by law: all those who, often sub­­con­­sciously, act and react, in their relations with other citizens and with the state itself, on the basis of their interpretations of signals that emanate from those institutions, or their attitudes towards those signals and to their sources. However, even when signals are bright and visible, they do not necessarily signal or beckon engagement of the sort the signallers intend. For not everything depends on the message or the messenger. This again might seem pretty vague. Let’s sharpen it up a little with some more of the truisms I promised. We often talk of ‘society’ in either of two ways, and both can mislead. Either the term is just a collective shorthand for ‘all of us’, understood as a mass of individuals. To speak of society in this way is just to refer in a word to all the individual persons living in some bounded space. When Margaret Thatcher denied there was any such thing as ‘society,’ she was actually saying there was nothing more than individuals (and their families). Less polemical individualists might use the word less fastidiously, but say it adds nothing but economy of expression. Alternatively, however, society can be conceived of holistically, as a kind of collective entity. On some interpretations, that is how Durkheim understood it. And this is often how the word is used when after-dinner Bar Association speakers expatiate on the need for law to ‘keep up with social change’, ‘serve the needs of society,’ and so on. But to live in a society is not merely to have neighbours, on the one hand, and unless it has been pulverised by war or totalitarian rule and typically even then, a society is not some sort of vast feature­less porridge either. First of all, individuals are profoundly affected by the social relations in which they are embedded; as Philip Selznick reminds us, ‘Human beings are products of interaction; they are embedded in social contexts. This is a truism, but one that must be taken seriously. It is a challenge to recognize how much we depend 153

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on shared experience, including nurture, communication, stimulat­ ion, and support.’34 On the other hand, society is not a thing, and certainly not an undifferentiated unit. Instead, it is made up of people who inhabit what one legal anthropologist has influentially described as ‘semiautonomous social fields,’35 usually several simultaneously. Such fields, or perhaps in today’s language, networks, are affected by official norms but not without loss, interpretation, reconfiguration, or com­pet­ition from norms generated outside the official sphere. They in­clude the organisations in which we work, our families, local­ ities, per­haps ethnic and religious communities, people we trust. These gen­erate normative imperatives and social connections, sometimes loose sometimes tight, sometimes egalitarian, some­times clientelistic, some­times honest, sometimes corrupt. To the degree that what goes on within these fields has salience for those within them, semi-autonomous fields are likely to generate distinctive ways of viewing and handling affairs including internal disputes and those with people in other social fields. Even in the most law-observant country, these informal norms have sources other than state laws, and they will affect much that happens in the fields, sometimes without more, sometimes in interaction with external norms, including official ones; sometimes by redirecting the interpretation and effects of those norms in unpredictable ways, sometimes in ways that block or frustrate their legislative or curial formulators, or would if they knew about it – which they often don’t. Much to which those laws might in theory relate that never comes within the purview of state institutions will be handled on the ground, often without reference to state laws at all, sometimes ‘in the shadow of the law,’ other times in some other shadow. Such dealings may at times be inconsistent with state law or reflect idiosyncratic interpretations of that law, or ignore it. Whether consistent or cog­ niz­ant or whatever, they will have effects that mediate, refract, and 34 35

Selznick 1992, p. 29. Moore 1978.

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often redirect and refashion the significance and consequences of state law, whatever lawmakers intended it to accomplish. These, it should be stressed, are general truths, not just what happens in countries with little or no rule of law; though, in many of the countries rule-of-law promoters work, the balance between ‘semi’ and ‘autonomy’ frequently favours the latter, often dramat­ically, and the disjunction between official and not is often extreme. Net­works are often more autonomous and powerful in such countries, and lead to greater and more dramatic deviations from official aspir­at­ions. How­ever, it is a common mistake to com­pare a society thought to be drenched with ‘informal practices,’ as legal path­ologies in benighted countries are often characterised,36 with some idealised model of an im­personal and sovereign western legal order, with nothing in between the state’s laws and its individual subjects, just waiting to inter­pret the law in the ways its creators had in mind. Socio­logically there is no such order. The character, impact and salience of in­for­ mal practices in relation to official law are almost infinitely vari­ able, and these differences can matter greatly, but their existence is universal. An upshot of the above is that again unless it is brutally enough administered to pulverise anything in its path – a rare event, even in totalitarian countries, and hard to sustain – the effectiveness of state laws will be heavily dependent on their degree of synchronisation with the ‘indigenous’ orderings generated from within social fields. Indeed in totalitarian and authoritarian polities, the very lack of synchronisation between exercise of state power and social realities and possibilities often generates informal practices in the society that at the same time subvert the official order and try to make up for its inadequacies.37 Both in these situations of chronic lack of sync and ones where the mesh is smoother, one can talk as much of ‘the law in the shadow of indigenous ordering’38 as of ‘bargaining in the shadow of the law.’ 36 37 38

See for example Gel’man 2004. See Ledeneva 1998, and Ledeneva 2006. See Galanter 1981, p. 17.

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Finally, while the points made above are generally true, they also vary greatly in their significance and implication. Whenever law stakes a claim to rule, the upshot of the many potential sources of normative, structural, cultural and institutional overlap and coll­ aboration and competition in every society will differ markedly between (and often within) societies. Whether and how people will interpret the state’s law and respond to it, how highly it will rate for them in comparison with other influences – these things depend only partly on what it says, how it says it, and what the law is intended by its makers to do. In complex and variable ways, people’s responses to state law depend on how, in what form and with what salience and force that law is able to penetrate all these intervening media, how attuned to it putative recipients are, and how dense, competitive, resistant or hostile to its messages they might turn out to be. So much writing on ‘the state’ and ‘law’ ignores how various are the phen­omena and relationships clumped under these putatively simple and single concepts. Again, none of this is to say that state law is unimportant. Nor that we should simply upend legal centralism and put some vaguely characterised ‘society’ in its place. In modern circumstances, and virtually the whole of the developed and undeveloped world is affected by those circumstances, the state is a crucial institutional underpinning of the whole of society, and its laws are often crucially important. But how important, and even if important, in what ways their effects work out in the world, are heavily dependent on the complex social, economic and political contexts into which they intervene. That is a universal truth, and so those interested in the rule of law need to come to terms with it.

The Rule of Law So much for law. What about the rule of law? How ‘social’ is that? Of course it has social consequences, but most people and too many rule-of-law promoters seek to find it in the properties and activities of legal institutions, and, primarily concerned to constrain the activities of political ones, of the state. Of course, ‘social,’ ‘legal’ and 156

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‘political’ are analytical distinctions that map poorly the continuities and overlaps of the world. However, in terms of where one looks and what one expects to find there, what is taken as figure and what ground, they do point to significant differences at least of focus and emphasis. There is nothing original or even lonely in nominating opposition to arbitrariness as a fundamental concern of the rule of law. How­ ever, taking the point seriously and starting with it rather than lists of legal hardware has a number of implications that have not always been noted. I mention three. These implications would follow, moreover, whether or not you agree with my specification of the point of the rule of law, just so long as you think it makes sense to begin by thinking about it. One is that the salience of features of legal institutions, formal and procedural characteristics usually nominated to constitute the rule of law and recommended to countries in need of it, depends on how successfully they can support the attainment of this value in the wider society. To the extent they can, they have aided us in identifying what the law needs to be like to serve the end of the rule of law – at least in that society. To the extent that they cannot, however – and this extent will vary between societies – it is not at all clear why we fix on them so, still less try to extend them to places where they might merely have parodic roles. The challenge for anyone seeking the rule of law anywhere is not primarily to em­ ulate or parody practices that seem to have worked elsewhere, but to find ways of reducing the possibility of arbitrary exercise of power, whatever that takes, wherever one happens to be. A second implication is that, if the arbitrariness of the exercise of power is the target and the danger one fears, there is no reason a priori to limit one’s attention to state power. If non-state power is arbitrarily exercised by oligarchs, Mafiosi, warlords, tribal elders, Al Qaeda, business executives, ratings agencies, or university admin­istrators, it too has the potential to bring with it all the vices of arbitrariness men­tioned above. So the rule of law is opposed to arbitrariness in the exercise of significant power, whoever is doing the exercise. Given the 157

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state-centeredness of so much written about the rule of law, and the pervasiveness and power of many non-state organi­s­ations of huge size and significance, that is not a small point. One last implication follows from this, together with my earlier remarks: taking the rule of law seriously may not only require different legal rules and practices from those we know, particularly in places we don’t know, but also recognition that many of the most significant sources of, goods generated by, and dangers to the rule of law are to be found in the wider society, not merely in or even near the obvious institutional centres of official law. There are numer­ ous societies in which arbitrariness flows as much or more from extra-state exercises of power, sometimes aided by suborned official agencies, sometimes opposed to them. Sources of arbitrariness and of power are many. Moreover, possible constraints on it may come, or fail to come, from many domains of social life, and from many agencies other than legal ones. Not only might this happen, but as John Braithwaite emphasised (in an unpublished conference paper), it already does, and in spades. To take just one example he considers, The institutions of the media are important checks and balances on the judicial branch of state (and international) governance and also a protector of the relative autonomy of the judiciary from executive domination. So when the Prime Minister criticises the High Court for last week’s [September 2011] momentous decision [re the ‘Asian solution’], media commentators are, and were, a check and balance on her not going too far with her excoriation of the Chief Justice. I conclude that the media as a separated power is no more constituted by the law than the rule of law is constituted by undominated media … conditions of modernity require us to see private concentrations of power such as ratings agencies and private armies in places like Afghanistan and Iraq as both dangers and contributors to productive balances of power. Even powerful executive governments, such as that of the United States, can be captured by these private powers 158

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(Barnett and Zurcher 2009). So can the UN. Hence, global media can become as critical as law to dynamic, pluralised separations of powers that help constrain arbitrary exercise of power by private and public powers.39

Contexts and Variation There are great and salient differences between societies where the rule of law is well established and those where it is not. There are also enormous differences within each of these capacious categories. Legal orders differ greatly in the extent to which the values and practices of the rule of law are strongly embedded within them. Not every legal order is similarly socially furnished with institutions, provisions, culture, social structure, and prior experience of the law, and ways to secure such things will necessarily differ from society to society, and among social groups in any specific society. Legal orders can be bearers of value, meaning and tradition laid down and transmitted over centuries; some are, some aren’t. Among those that are, some are imbued with the values of the rule of law, some are not. Among those that aren’t, the rule of law faces specific difficulties, often not of recent origin or open to a quick fix. In relation to this, lawyers are always relevant but not always particularly skilled. Members of a strong rule-of-law order may not need to have as great or immediate a concern with the extra-legal foundations of what they have as those where legality is pervasively weak, simply because they have, as it were, been taken care of, if rarely by many in the generations that benefit from them. They may well, of course, want to improve what they have, and if the underlying conditions of legal effectiveness are to a considerable extent met, they are often right to concentrate on official legal institutions. That is not because they live in a different world, but because some universal problems have been dealt with in their part of the world, and what the law is like counts there in ways it may not elsewhere. Other problems or opportunities have priority. It might be why so much talk of the rule 39

Braithwaite 2011.

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of law, which emanates from such places, has so little to say about the extra-legal conditions of legal effectiveness. It’s not clear, however, how far their understandings will travel. For what Stephen Holmes has observed about Russia can be generalised to other rule-of-law-poor countries: Lawyers are trained to solve routine problems within routine procedures. They are not trained to reflect creatively on the emergence and stabilization complex institutions that lawyering silently presupposes. Ordinary legal training, therefore, is not adequate to the extraordinary problems faced by the manager of a legal-development project in Russia. The problem is not Russian uniqueness and exceptionalism, but the opposite. In Russia, as everywhere else, legal reform cannot succeed without attention to social context, local infrastructure, professional skills, logistic capacities, and political support … So legal knowledge alone is never enough.40

An implication of this might be that all those international alpha­ bet soups devoted to ‘building’ the rule of law in benighted parts of the world – ABA, EU, HiiL, IMF, OSCE, UNDP, USAID, USIP, WTO, etc. – which generate legal interventions and reports written by lawyers for lawyers, might be most apt for societies that don’t need them and little use to those who need them most. But that’s not how the game is played. Instead, to adapt a remark originally directed to the administration of development programs more gen­ erally, ‘[d]onor activity often amounts to sending “experts” who operate institutions in “Denmark” to design institutions in “Djibouti”. At best this would be like sending a cab driver to design a car. But it is worse, because institutions come with their own foundation myths that deliberately obscure the social conflict the institution was designed to solve.’41 40 41

Holmes 1999, p. 71. Pritchett and Woolcock 2002, p. 17.

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Lon Fuller sometimes wrote of law as social architecture. He appears to have had in mind both the lawyer’s design of, say, con­ tracts for clients and also the design of public legal institutions. In relation to the latter, at least, the term is sometimes an exaggeration, for there are at least two enterprises going on here. Rule-of-law promoters in transitional and post-conflict societies too often think about the rule of law as though establishing it where it has not existed or is being shot to pieces, at times quite literally, is in principle the same sort of job, if harder and more dangerous, as cultivating it where it has long grown and has deep roots, and where its presence is an often unreflected-upon ingredient of everyday life. Yet they are truly engaged in social architecture, often undertaken on hostile, unforgiving terrain. Those fortunate to live where the rule of law is strong may have a lot to do to defend, secure, sustain, improve and extend it, but those enterprises are, by comparison, more in the nature of running repairs. They may be major repairs, and there can be significant, and sometimes novel, threats. And what seemed strong legal structures can prove vulnerable to erosion, not to mention direct attack. Wars are not great for the rule of law, for example, and that includes wars on terror. But there is something, often a great deal, of structure and helpful material there to work with and on, and there are often helpful institutional, cultural and social sources of resilience. The ultimate goals of these activities and their common ambition – lessening the potential for arbitrary abuse of power – are not unrelated in these different circumstances, but the means appropriate to serve them can differ enormously. And this points to one more difference among contexts. In soc­ ieties where the rule of law has long been secure, the fact that it is misconceived might not matter too much, since to a considerable extent it runs on its own steam. However, in conflictual, postconflict and transitional societies, where efforts are made to generate, better to catalyse the rule of law, these problems can be catastrophic. For, once more, those most urgently seeking the rule of law are in the end concerned not with a package of legal techniques but with 161

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an outcome: that salutary state of affairs where arbitrary exercise of power is effectively limited. Perhaps, though, I should end this section with some good news. The World Bank World Development Report 2011 calls for just­ ice strategies that: ‘1) are grounded in understanding of the sociopolitical context – promoting “best-fit” rather than “best practice” solutions emerging from local demand, experimentation and adapt­ ation; 2) focus on the social and economic dimensions of justice, not merely on the justice sector’. That is a fairly recent declaratory change, at the level of rhetoric, after billions of dollars spent on strategies of the ‘international best practice’ sort. And if the vast activities of international rule-of-law promotion are to move beyond rhetoric, they will need to display more understanding than any of us has about what ‘best fit’ might mean and generate in societies in the midst of fighting, legacies hostile to programmatic innovations, etc. There is, however, a sociological innocence in much rule-of-law promotion, which is striking given the difficulty of the problems of social transformation that they ambitiously confront. Not that sociological awareness is likely to provide a panacea; it may well be that we just don’t have a clue how to engineer some sorts of salutary change. Still the Report’s statements are way ahead of long-conventional assumptions, and at least show some awareness of what is at stake. Moreover, within the World Bank and other agencies, such as the US Institute of Peace, useful work has been happening over the past few years trying to explore precisely these matters, and to find ways to design programs that reflect this developing understanding. But these are not majority activities, they go against many em­bedded bureaucratic and ideological imperatives, tendencies and con­stit­ uencies, their impacts are yet to be fully assessed, and such goals are harder to achieve than to state, for reasons that again we need to go beyond legal knowledge to understand.42 42

See particularly the publications of the Justice for the Poor group in the Bank, among them by Deborah Isser, Michael Woolcock and their associates; and see World Bank 2015.

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Conclusions: Beyond (or Beside) the Rule of Law?

This is roughly where I’ve got so far. I’m not sure it’s far enough, and I will end my report of ‘progress’ with one question about which I’m puzzling. For some long years I’ve been arguing, as here, against conventional conceptions of the rule of law that I take to start with and be primarily and misguidedly focused on the rules, practices and activities of central legal institutions. I have suggested this is a misguided approach for two reasons. First, it starts with institutional features purported to add up to the rule of law, rather than with examination of the point, the telos in view, in terms of which the significance and usefulness of these or other features can be gauged. Secondly, if the end is what matters then it is not clear that one’s view of what leads to that end should be confined to legalinstitutional matters. It should range more broadly, and specifically more sociologically. Sometimes I have felt that I was just spitting into the wind. What could I possibly do to re-route the trajectory of the rule-of-law train, which has such a head of steam these days. Perhaps I shouldn’t try, particularly since I’m a fan of the rule of law. Let them have their institutions and check lists. I’ll do something else. Recently I have been provoked to take this line of argument a little further, however, to what some might consider its logical, others its illogical, conclusion. The provocation came (unintentionally, I think) from the paper of John Braithwaite, quoted above, with the apparently innocent title ‘Is Separating Powers a Rule of Law Issue? The Media Case’. He pointed out that though many people speak of the rule of law as a ‘good thing for its own sake,’ it was not that. Rather, he contended, it ‘is best thought of as part of a separation of powers rather than the reverse.’ Why should the order matter? According to Braithwaite, who is a card-carrying classical republican (NOT in the US sense of that word, no tea parties for him; his concern is avoidance of domination): Conceiving the separation of powers as a rule of law question constrains a republican imagination in how to struggle for 163

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more variegated separations of powers. It tracks political thought to a barren, static constitutional jurisprudence of a tripartite separation of powers. This when conditions of modernity require us to see private concentrations of power such as ratings agencies and private armies … as both dangers and contributors to productive balances of power.

Later he comments that: Webs of institutions are needed to strengthen governance by making it accountable for effectiveness and integrity. Webs of state and non-state institutions that control domination and enable innovation, enterprise and learning, can be mutually enabling and mutually checking of one anothers’ accountability failures … For most tasks of modern governance, networks get things done better than hierarchies. But networks must be coordinated and sometimes, but only sometimes, the state is the best candidate to coordinate. For most problems, strengthening state hierarchy to solve problems is not as effective as strengthening checks and balances on hierarchy as we also strengthen private-public partnerships, professions with technocratic expertise on that problem, civil society engagement and vigilance, and other networks of governance, while at the same time strengthening co-ordination of networked governance.

I’m not totally on board yet. I don’t believe, for example, that separ­ at­ion of powers should be regarded as the ultimate end in view, and I hang on to the tempering of arbitrary power as closer to that. Separ­at­ ion seems to me one technique to that end, not to be valued in itself but for what, in certain forms and for certain purposes, it can support. We need power to accomplish and enable many good, some indispens­able, purposes, but it must be tempered and channelled. Separations of cer­ tain sorts are important sources of such temper­ing and channell­ing, but not the only ones and not to be applauded just because separation is accomplished. If separation disintegrates sources of salutary power 164

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(e.g. for peace­keeping, enforcement of bargains, etc.), or if it leads to new sources of ‘autistic corporatism’ among newly released sub­ ordin­ates such as judges in post-despotic conditions,43 we should not applaud. I don’t believe that Braithwaite would disagree with any of this, and he cer­tainly shares my hostility to arbitrary power, but I fear that putt­ing separation front and centre might mislead. However I do believe that we would gain greatly by following his suggestion that the law be viewed, not as the always-necessary centre­ piece of power-tempering policy to which other measures are inferior or supplementary addenda, but as one implement among several, of potentially unique importance in some respects and cir­cum­stances, but dependent for its success on many other things, and perhaps not more important for the achievement of its own goal than they. That does not make law unimportant, but it might enable us to see its importance in perspective, give due weight to other phenomena that might need enlisting to serve such goals, and release us from the hold of a mantra that in its modish ubiquity threatens to obscure the valuable purposes for which it was once pushed into the fray, and to serve virtually any purpose you might want to name. Now I don’t yet know what the substantive results of this might be, and it might turn out to be none. So just in case, I will leave open the option of reverting to my earlier persona, and banging on about the true nature of the rule of law, conceived in my ‘teleological, sociological’ way. Should people think I’m having it both wishywashy ways, I have only the wisdom of Groucho Marx to fall back on: ‘Those are my principles, and if you don’t like them … Well I’ve got others.’ This is a revised version of a paper presented to a legal theory seminar at the University of Melbourne’s Law School. I benefited from the discussion, and particularly from comments by Michael Crommelin, Raimond Gaita and Gerry Simpson. The earlier version was published as Krygier 2012b, and Krygier 2013. 43

Holmes 2004, p. 9.

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Bibliography

Aubert, Vilhelm. 1984. In Search of Law. Totowa, NJ: Barnes & Noble. Banfield, Edward. 1953. The Moral Basis of a Backward Society. Glencoe, Illinois: The Free Press. Braithwaite, John. 2011. ‘Is Separation of Powers a Rule of Law Issue? The Media Case’. Speaker’s notes for conference on ‘Media, Democracy, and the Rule of Law,’ University of New South Wales, September. Bugaric, Bojan. 2014. ‘Law and Development in Central and Eastern Europe: The Neo-liberal Development State and Its Problems’. In Law and Development in Middle-Income Countries: Avoiding the Middle-Income Trap, edited by Randall Peerenboom and Tom Ginsburg, 131–56. New York: Cambridge University Press. Felstiner, William L. F., Richard L. Abel and Austin Sarat. 1981. ‘The Emergence and Transformation of Disputes: Naming, Blaming, Claiming …’ 15 Law & Society Review 15: 631–54. Ehrlich, Eugen. 1936. Fundamental Principles of the Sociology of Law. Cambridge, Mass: Harvard University Press. Fuller, Lon L. 1968. ‘Some Unexplored Social Dimensions of the Law’. In Arthur E. Sutherland, The Path of the Law from 1967, edited by Arthur E. Sutherland. Cambridge, Mass.: Harvard University Press. Fuller, Lon L. 1969. The Morality of Law. 2nd edition. New Haven: Yale University Press. Galanter, Mark. 1981. ‘Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law’. Journal of Legal Pluralism 19: 1–47. Gellner, Ernest. 1994. Conditions of Liberty: Civil Society and Its Rivals. Harmondsworth: Penguin. Gel’man, Vladimir. 2004. ‘The Unrule of Law in the Making: the Politics of Informal Institution Building in Russia’. Europe-Asia Studies 56: 1021–40. Haggard, Stephan and Lydia Tiede. 2010. ‘The Rule of Law and Economic Growth: Where Are We?’ World Development 39: 673–85. Holmes, Stephen. 1999. ‘Can Foreign Aid Promote the Rule of Law?’ East European Constitutional Review 8 (4): 68–74. Holmes, Stephen. 2004. ‘Judicial Independence as Ambiguous Reality and Insidious Illusion’. In From Liberal Values to Democratic Transition. Essays in Honor of János Kis, edited by Ronald Dworkin. Budapest: CEU Press. Krygier, Martin. 1999. ‘Institutional Optimism, Cultural Pessimism and the Rule of Law’. In The Rule of Law after Communism: Problems and Prospects in East-Central Europe, edited by Martin Krygier and Adam Czarnota, 77–105. Dartmouth: Ashgate. Krygier, Martin. 2001. ‘Transitional Questions about the Rule of Law: Why, What, and How?’ East Central Europe-L’Europe du Centre Est. Eine wissenschaftliche Zeitschrift 28 (1): 1–34. Krygier, Martin. 2002. ‘The Quality of Civility: Post-Anti-Communist Thoughts on Civil Society and the Rule of Law’. In Out of and Into 166

Why Rule of Law Promotion is Too Important to Be Left to Lawyers Authoritarian Law, edited by András Sajó, 221–56. Amsterdam: Kluwer. Krygier, Martin. 2005. ‘The Uses of Civility’. In Civil Passions: Selected Writings, 163–76. Melbourne: Black Inc. Krygier, Martin. 2006. ‘The Rule of Law. An Abuser’s Guide’. In The Dark Side of Fundamental Rights, edited by András Sajó, 129–61. Utrecht: Eleven International Publishing. Krygier, Martin. 2009a. ‘The Fall of European Communism: 20 Years After’. Hague Journal on the Rule of Law 1: 195–214. Krygier, Martin. 2009b. ‘The Rule of Law and “The Three Integrations”’. Hague Journal on the Rule of Law 1: 21–27. Krygier, Martin. 2009c. ‘The Rule of Law: Teleology, Sociology, and Legality’. In Relocating the Rule of Law, edited by Gianluigi Palombella and Neil Walker, 45–69. Oxford: Hart Publishing. Krygier, Martin. 2011a. ‘Approaching the Rule of Law’. In The Rule of Law in Afghanistan. Missing in Inaction, edited by Whit Mason, 15–34. New York: Cambridge University Press. Krygier, Martin. 2011b. ‘Four Puzzles about the Rule of Law: Why, What, Where? And Who Cares?’ In Getting to the Rule of Law, edited by James E. Fleming, 64–104. Nomos 50. New York: New York University Press. Krygier, Martin. 2012a. Philip Selznick: Ideals in the World. Stanford: Stanford University Press. Krygier, Martin. 2012b. ‘Why the Rule of Law Is Too Important to Be Left to Lawyers’. Prawo i Więź: Law & Social Bonds 2 (2): 30–52. Krygier, Martin. 2013. ‘Why the Rule of Law Is Too Important to Be Left to Lawyers’. Law of Ukraine 4: 18–38. Krygier, Martin, and Adam Czarnota. 2006. ‘After Postcommunism: The Next Phase’. Annual Review of Law and Social Science 2: 299–340. Krygier, Martin, and Whit Mason. 2011. ‘Violence, Development, and the Rule of Law’. In Security and Development, edited by George Mavrotas, 129–70. Cheltenham: Edward Elgar. Ledeneva, Alena V. 1998. Russia’s Economy of Favours: Blat, Networking and Informal Exchange. New York: Cambridge University Press. Ledeneva, Alena V. 2006. How Russia Really Works: The Informal Practices That Shaped Post-Soviet Politics and Business. Ithaca: Cornell University Press. Mnookin, Robert H., and Lewis Kornhauser. 1979. ‘Bargaining in the Shadow of the Law: The Case of Divorce’. Yale Law Journal 88: 950–97. Moore, Sally Falk. 1978. ‘Law and Social Change: The Semi-autonomous Social Field as an Appropriate Subject of Study’. In Law as Process, 54–81. London: Routledge & Kegan Paul. Neumann, Franz L. 1986. The Rule of Law: Political Theory and the Legal System in Modern Society. Leamington Spa, UK: Berg. North, Douglass C., John Joseph Wallis, and Barry R. Weingast. 2009. Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History. Cambridge: Cambridge University Press. 167

Who’s Afraid of International Law? Pettit, Philip. 1997. Republicanism: A Theory of Freedom and Government. Cambridge: Cambridge University Press. Poggi, Gianfranco. 2001. Durkheim. New York: Oxford University Press. Pritchett, Lant, and Michael Woolcock. 2002. ‘Solutions When the Solution Is the Problem: Arraying the Disarray in Development’. Centre for Global Development Working Paper No. 10, September. Accessed 26 February 2015, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1106236. Putnam, Robert D. 1993. Making Democracy Work: Civic Traditions in Modern Italy. Princeton: Princeton University Press. Reid, John Philip. 2004. The Rule of Law: The Jurisprudence of Liberty in the 17th and 18th Centuries. DeKalb, IL.: Northern Illinois University Press. Schoeni, Robert F., James S. House, Goerge A. Kaplan, and Harold Pollack, eds. 2010. Making Americans Healthier: Social and Economic Policy as Health Policy. New York: Russell Sage Foundation. Selznick, Philip. 1968. ‘The Sociology of Law’. In The International Encyclopedia of the Social Sciences, edited by David L Sills, vol. 9. New York: Macmillan. Selznick, Philip. 1980. ‘Jurisprudence and Social Policy: Aspirations and Perspectives’. California Law Review 68: 206–221. Selznick, Philip. 1992. The Moral Commonwealth. Berkeley: University of California Press. Soltan, Karol Edward. 2002. ‘Selznick and Civics’. In Legality and Community: On the Intellectual Legacy of Philip Selznick, edited by Robert A. Kagan, Martin Krygier, and Kenneth Winston, 357–72. Lanham, Maryland: Rowman and Littlefield. European Commission for Democracy Through Law. 2011. ‘Report on the Rule of Law: Adopted by the Venice Commission at its 86th Plenary Session (Venice, 25–26 March 2011)’. Study No 512/2009. Strasbourg: Council of Europe. Waldron, Jeremy. 2002. ‘Is the Rule of Law an Essentially Contested Concept (in Florida)?’ Law and Philosophy 21: 137–64. Waldron, Jeremy. 2012. ‘The Rule of Law and the Importance of Procedure’. In Getting to the Rule of Law, edited by James E. Fleming, 3–31. Nomos 50. New York: New York University Press. Weingast, Barry R. 2010. ‘Why Developing Countries Prove So Resistant to the Rule of Law’. In Global Perspectives on the Rule of Law, edited by James J. Heckman, Robert L. Nelson, and Lee Cabatingan. New York: Routledge. World Bank. 2015. Governance for Development (blog). Accessed 26 February 2015, http://blogs.worldbank.org/governance/towards-justice-indevelopment.

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Ch a p ter 7 :

The Universality of International Criminal Law and the Idea of a Common Humanity Raimond Gaita

In what follows I assume that at least some international criminal law – genocide, war crimes, crimes against humanity – has ethical dimen­sions that are now inseparable from our understanding of what it means to violate these laws. I know some people deny this, but it is not unreasonable to assume it. I do not believe this is the essence of law: it is how things have developed, historically and contingently, for us. Who is the group I call ‘us’? Take ‘us and ‘we’ as I will often use them, as an invitation to reflection against the back­ ground of a shared ethical understanding rather than an empirical generalisation. Of course, some readers will decline the invitation. Disagreements among members of a legal constituency about the ethical dimensions of law, especially about what it means to wrong someone morally, encourage the tendency, already second nature to political and legal philosophers, to seek accounts of what it means to be morally and legally answerable to one another that are highly general, abstracted from the historically and culturally contingent idioms of the different and sometimes competing elements of a common understanding. (I call it a common understanding because it enables those who share it to understand and critically engage with one another even when they seriously disagree.) On the other hand, it is often the case that our sense of what it means for people to do and to suffer wrong is informed by idioms resistant to such abstraction – by film, literature and song, for example. Indeed, often when we hold someone answerable, or call them to moral serious­ness – ‘Don’t you understand what you are doing – what it means to suffer the kind of degradation you are causing this person?’ – our sense of 169

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what we are doing depends on the fact that we often appeal to art to render more perspicuous our fumbling attempts to elaborate what it means to do or to suffer wrong. Were it not for an implicit reliance on such elaborations of what it means to violate a person’s rights, for example – especially the kind we call inalienable human rights – the bare appeal to rights would strike us as absurd. Imagine if, at the moment of a bitter remorse, a rapist were to say ‘My God! What have I done? I violated her human rights’. And though the moral dimension of a crime is not its only ethical dimension, it is the primary one in this kind of case; indeed, in all cases where the concept of a violation is the first to come to mind, as it does in when we think of rape, torture, and other forms of cruel and degrading treatment. I spoke just now of the concept of violation, as though there were only one such concept, but of course there are many. One is especially important to my topic. We live in times when it comes relatively easy to us to speak of Dignity of the person, of the Dignity of humanity and of the in­ alienable dignity of every human being. I don’t know quite how extensive the ‘we’ to which I have appealed is, but again, I use it as an invitation rather than as a sociological generalisation. Nonetheless, it is significant that those expressions appear in preambles to important instruments of international law – to the Universal Declaration of Human Rights and the Convention Against Torture and Other Forms of Inhuman and Degrading Treatment, for example. It is natural to take their role in those preambles to be suggesting they should inform the ethical elaboration of what it would mean to torture someone or to seriously violate their human rights. Cultures have existed in which there was not even a hint of those ethical con­ cepts and cultures now exist that regard them as absurd – absurd, for example, to think that Saddam Hussein was owed a fair trial, for his sake rather than because it might place the integrity of the legal system on a slippery slope. Or to put the point from the perspective of one who believes a fair trial was owed Saddam for his sake as a human being: only if he were tried in that spirit would the integrity 170

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of the system remain intact. That an imperative so sublime as the one that requires us to respect the humanity of even those guilty of the foulest crimes should show itself in ways as prosaic as observing courtroom procedure might seem paradoxical. It might make us complacent, forgetful of how wondrous it is that humanity should ever have come to that affirmation. In much of my work I have tried to reclaim a sense of such wondrousness, to articulate the right conceptual backdrop against which it will again speak to us. The world looks very different to people who believe that every human being possesses an inalienable dignity to which unconditional respect is owed than it does to those who do not believe it. They will understand differently what it means to wrong someone, what it means for the person to be fully aware of that wrong because it will give a distinctive content to the idea of a violation. That will affect their understanding of what it is to see or to fail to see someone as fully human, and therefore what talk of a common humanity might come to. They will understand differently most of the virtues and vices, and what compassion and love most truly are. The golden rule – that one should always treat others as one would wish to be treated – which many people take to be the basic precept of morality and to capture the essence of the biblical command to love one’s neighbour, will be understood differently by those who believe that human beings possess inalienable dignity, than by those who do not. I place expressions such as ‘inherent dignity’, ‘inalienable dignity’, or just dignity with a big D in the middle of the conceptual territory that I want to explore this essay. On one side of them are people who speak in ways that are steeped in a sense of the importance to our moral and political thought of our humanity and of different forms of human fellowship – as when we speak of a common humanity; or say that to do such and such would be to treat someone as less than fully human; or when we speak of ‘the human family’; or when, in political contexts we speak, as the preambles to human rights law often do, of brotherhood or the sisterhood; and so on. These are ways of speaking whose resonances and tones depend on the richness of a natural language and the art made possible by it; language shaped by 171

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and shaping the lives of peoples. Their use, and even philosophical reflection on their use, I will argue later, is therefore in medias res, in the midst of things. The middle terms mingle well with those ways of speaking that draw more obviously on the importance of the concept of the human to our moral thought. That is evident in the preambles to the Declaration of Human Rights and other instruments of international law that I cited earlier. But not only do they mingle well: there is reason to think that the fact that they do is a significant part of the reason why they have acquired their undeniable power. On the other side are theorists, usually philosophers, usually natural law theorist or Kantians, who aspire to speak in a language that reveals their real cognitive content and, therefore, to render per­ spicuous to reason the proper basis of their authority. In the Kantian tradition, which speaks powerfully to us, the elaborations refer to rational agency and the kind of respect owed to it. That tradition looks with suspicion at the power the middle terms have achieved on account of their engagement with ways of speaking that express and celebrate human fellowship. From the perspective of that tradition that power looks like rhetorical power in the pejorative sense of that phrase. Kant is a magnificent example of a philosopher who believes (as do the mainstreams of the philosophical tradition) that when we think about the great matter of morality and politics, the cognitive content of one’s thought, the content that is strictly answerable to reason and truth, should always be, in principle, extractable from the literary form of its presentation. Obviously this sets philosophy and art radically apart form one another. To reveal how common this philosophical aspiration is even among philosophers hostile to Kant, I’ll report a probably apoc­ ryphal anec­dote that Bernard Williams tells in his essay, ‘What might Philos­ophy Become’. It is about two philosophers writing a book together. One says to the other, ‘Let’s first get the content right. Later you can add the style.’1 Most readers will see the humour, I’m 1

In Williams 2006.

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sure, but the depth and extensive relevance of the point may not be evident. Williams’ anecdote expresses very nicely an ideal that goes deep in philosophy and also in our discursive tradition more generally – in our very conception of the discursive, in fact. The philos­ophers in the story believe that style and cognitive content are separable. The book they are writing is philosophical, but they would generalise the point to anything that they would accept as being genuinely cognitive, a matter for understanding, rather than entertainment or edification. Style, they think, should be, in the first instance, the means to get cognitive content into other people’s heads. To achieve that it should be as plain as possible. One might strive for a little elegance, especially if that facilitates delivery of the content, but, of course, trying to be ‘literary’ can be dangerous, because it too often betrays the head to the heart. If only we could transfer cognitive content from one head to another by telepathy! The interesting assumption underlying this way of thinking about style and content is that when style is not merely ‘aesthetic’, when it is in any way an expression of the heart, of feeling, it endangers the work of the head. Style can appeal to our vulnerability to sen­ timentality or to pathos, for example, and when it does, it can distort cognitive content which, Williams’ philosophers believe, can be characterised independently of the style in which it is expressed, and independently of those psychological vulnerabilities that make us so liable to our hearts ruling our heads. They think of sentimentality, a tendency to pathos, and so on, as causes that undermine cognitive achievement in much the same way as being drunk, tired or having a splitting headache do when one tries to do mathematical calcul­ ations, or when one is trying to become clear about some factual matter. I gave mathematics and factual inquiry as examples because it is evident that the cognitive nature of mathematical and purely factual content can be fully characterised without reference to the fact that we are creatures who are vulnerable to tiredness, headaches, drunk­ enness and other maladies. That we are vulnerable beings to them has no bearing on what it is for something to be a valid proof, or 173

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on what it is for something to be a fact. The content that Williams’ philosophers take to be genuinely cognitive content – content that is directed to knowledge and understanding rather than entertainment or edification – is content to be extracted from its literary or other forms and assessed in a style-free, tone-free zone in which the ob­ jection that it is sentimental or tone deaf would be as irrelevant as lodging such an objection to propositions in mathematics or physics. That conception of the cognitive and the correlative ideal of how we come into possession of its content would be of no interest if they were restricted to Williams’ philosophers, or even to philosophers in general. But they are not. As I said earlier, they go deep in our Western tradition and influence much of what we say in public discussion about the baleful effects of the emotions on the work of reason. Against that I have argued in much of my work that if we are attentive to the role that admissions or accusations of sentimentality (from now on I’ll restrict myself to that example) play in our assess­ ment of how we have come to our beliefs, sometimes we will see that it is not merely a cause of cognitive failure – a cause of the false as I shall put it for the sake of simplicity – but also forms of it. When it is a form as well as a cause of the false it distorts a cognit­ive content that is of a kind that could not exist were we not vulnerable to it and like maladies. Poets strive, often more fiercely than philosophers and scientists, to ensure that their poetry is free of sen­timentality, but if they were to wish themselves to be creatures invulnerable to it, they would wish themselves free of the only idiom in which they could write poetry. Discursive reflection cannot aspire to poetry, though it may sometimes be poetic, but the recog­nition that there are forms of understanding, thinking and reflection to which vulnerability to sentimentality is intrinsic, will reward us with a richer conception of the forms of the discursive. I apologise for the philosophical density of this part of my essay about the significance of the distinction between sentimentality as a mere cause of the false and sentimentality as also a form of it, but it is important because it enables me to explain and to justify the way 174

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we sometimes speak of the unity of head and heart, thinking and feeling, form and content, especially when we want to resist the plea for more heart against head, or more head against heart. Obviously there are times when we are right to make such pleas, or to say that someone is being too emotional and should allow reason its voice. But what it means to do this will depend on whether we agree with the assumptions about form and content made by philosophers like the ones in Williams’ story, or whether we reject those assumptions in favour of something like the account I have given. Everyone knows that emotion can cast reason aside. Given the right circumstances, it can happen to anyone. But I hope that it is clear from what I have said that there is a danger when we are powerfully moved that is always present and against which we seldom protect ourselves or even see the need to do so. Sentimentality, a disposition to pathos, a failure to register what rings true, a tin ear for irony – these undermine our efforts to see things as they are when we reflect on what matters most deeply to us more often and surely than when emotion usurps reason if reason is conceived as separate from and unfriendly to emotion, fearful that it will be swept away by it. What is likely to take us to beliefs we will regret holding when we again become morally clear-sighted is not anything that defeated reason: it will be a sensibility that was insufficiently disciplined, or even educated to resist, the sometimes crude, sometimes sophisticated, sentimentality, pathos and so on in the forms of propaganda that will assault us. And I persisted in elaborating the distinction because it shows that when we think and talk about how we should live, then we are necessarily and inextricably far more deeply in medias res, in the midst of things, than even most philosophers who acknowledge that language is inseparable from ways of living are comfortable with. That is why I would emphasise the importance to our understanding of the forms of the ethical, especially of morality, of the concept of a human being rather than the concept of a person or rational being. It is why I place weight on a sense of a common humanity – rather than on a constituency of persons or rational beings united by 175

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their principles – and that the relevant sense of a common humanity depends on seeing all the peoples of the earth, different though their cultures may be, as striving for lucidity about what it means to be a mortal being, defined by sexuality, at every moment vulnerable to misfortune. I have called the cognitive realm in which head and heart, style and content are inseparable the ‘realm of meaning’2 because it is where we discuss what it means to love or grieve truthfully and why it matters; what it means to suffer wrong and what it means to do it. In short, it is where we elaborate questions about how to live and develop tentative, or not so tentative, answers to them. The fact that the critical categories that determine its distinctive cognitive character are also the critical categories deployed in the assessment of literature indicates that thought in the realm of meaning should never wish to distance it too much from the natural languages that nourish it. Some philosophers believe that in formulating his moral phil­ os­ophy as he did, focusing on the unconditional respect owed to human beings considered as rational agents, Kant tried to render perspicuous to reason the Biblical command to love one’s neigh­ bour. Love cannot be commanded, he said, but the imperatives of reason are justifiably thought of as a command. However, when a soberly remorseful person is awakened to the terribleness of what he has done and become, it strikes me as a parody to suggest that we could adequately capture the seriousness of that by saying that he had failed to acknowledge, or failed to see the implications of acknowledging, that his victim is a rational agent. The remorseful rapist, who I said earlier, will not get far in understanding the moral terribleness of what he did if he thinks of it only as a violation of his victim’s human rights, will certainly get no further if he thinks he violated her rational agency, or failed to respect her fully as a ra­ tional agent. Wishing to soften the stern demands of reason, some philosophers would prefer to appeal to what is reasonable, but you 2

In, for example, Gaita 2002 and also Gaita 2011.

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would have to be tone deaf to believe that someone who thinks Saddam should be shot in the street like a rabid dog fails to be reasonable. Imagine saying to such a person: ‘Hey, be reasonable!’ What is reasonable is to think that if you want to be treated like a human being you should first behave like one. I’ll try to make this lecture less abstract by discussing how we might understand the Holocaust and the concept of genocide. Our understanding of the death camps of the Holocaust would be poorer without the writings of Primo Levi, especially, If This is a Man.3 The literary quality of his writing is, I believe, essential to the understanding that Levi gives us. In my judgment it is writing that shows up Elie Wiesel – even the Wiesel of his most famous book, Night4 – as given too often to sentimentality and posturing. I don’t ask you to agree with that judgment. I know that many of you won’t and that some of you might be offended by it. But I ask you to consider whether the need to make judgments of that kind, deploying concepts that partly define a literary sensibility, is intrinsic to the kind of understanding that writers like Levi and Wiesel give us. I ask you to consider whether it is essential to the kind of understanding they give us, that we need to judge whether we are moved by them only because we are prone to sentimentality, or to pathos, or because we have a tin ear for irony and so on. Why does that matter? Because, I think, if we do believe it is necessary to make such judgments, then I think we should also believe that the kind of understanding that writers like Levi and Wiesel give us – the cognitive nature of the content they deliver to the understanding – cannot be separated from its form, or, broadly speaking, from its style. Or so, I will suggest to you here. To make my case, I will look at two works by Bernhard Schlink, a novelist and a professor of legal philosophy. His bestselling novel The Reader 5 won international acclaim and abuse in probably equal measure. It was adapted into a 3 4 5

Levi 1959. Wiesel 2006. Schlink 1998.

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film of the same name starring Kate Winslet and Ralph Fiennes. His more recent book Guilt about the Past was developed from lec­ tures he gave in Oxford in 2008 and is a work of legal philosophy, though one in which the novelist is recognizably present. In Guilt about the Past Schlink writes analytically about what had preoccupied him as a novelist when he wrote The Reader – collective responsibility as it burdened ‘the second generation’, as he puts it, of Germans who in the 1960 and 70s became fully aware of the political crimes and evils perpetrated by their parents and grandparents. The ‘second generation’ defined itself by what it took to be its distinctive problem: how to respond clear-sightedly, politically and morally, to the discovery that someone you love or admire is guilty of the crimes of the Holocaust or was, in one of many possible ways, complicit in them. In The Reader, the issue of ‘the second generation’ is dramatised by the relationship, developed soon after the war, between Hanna, a woman in her thirties, and Michael who was very willingly seduced by her when he was fifteen and who then fell passionately in love with her. The relationship is described in considerable erotic detail and though we have occasional misgivings about Hanna, she engages our sympathy. It is easy to see why Michael should fall in love with her and be haunted by her all his life, the memory in every detail of her physicality undermining to one degree or another all his relationships with women. During their relationship she often asked him to read to her – a fact of great importance to the novel and (differently perhaps) to the film, but not one that concerns me in this essay. The affair ends when Hanna leaves without explanation or even warning. Michael sees Hanna again only when, as a law student in the sixties, he attends a trial of minor war criminals. Hanna is among them. She was, he discovers, a guard at Auschwitz. She selected people for the gas chambers and sometime took especially fragile young girls under her temporary care so that they would read to her, only to send them, too, to the gas chambers. When the allies closed on Auschwitz, she became a guard on the infamous death 178

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march. During that time, together with her co-defendants, she refused to open a door to allow prisoners to escape from a bombed church though they were burning alive in it. To have opened it, she claimed, would have been contrary to orders and would have caused chaos. She is accused of having written a report that would establish her primary responsibility for not releasing the prisoners. At first she denies that she wrote it, but later admits to it, untruthfully it transpires, because she would prefer to suffer the penalty for that admission rather than to admit that she could not have written the report because she is illiterate. Only Michael knows this. From Hanna’s behaviour in court and from his recollection of events in their relation­ship that had previously baffled him, he infers Hanna cannot read or write. She is sentenced to life in prison. People have objected that in portraying Hanna sympathetically Schlink distracts our attention from, and perhaps even invites us to excuse, the terribleness of her crimes. It is one thing, they say, to draw attention to the fact that not all evildoers are monsters. That we learnt from Hannah Arendt’s discussion of Eichmann.6 It is, how­ever, quite another thing to intentionally draw a character who engages our sym­ pathies before, and then even at the time when, we dis­cover that she is deeply involved, even if only as an ordinary German, in the crimes of the Holocaust. Arendt was probably right to say that Eichmann was no monster. I think it was Terence, the Roman dramatist who said: ‘I am man. Nothing human is foreign to me.’ Some people who agree with this take it to mean that they can see in themselves all the possibilities of good and evil. I don’t believe them. Few people can truthfully see in themselves the real possibility of saintly action. As for evil, I don’t believe that someone who says they know they have it in them – and that we must all acknowledge, under pain of superficiality or self-deception, that capacity – would do what Saddam or Eichmann did. I don’t believe them because I don’t see real terror in their eyes or hear it in their voices. The terror would be there if they had 6

Arendt 1964.

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discovered that in themselves and understood what it meant. What is true, I think, is that no-one can say, ‘I could never do such things.’ But that is different from thinking that if one searched truthfully within oneself one would find something there from which such evil could issue. In a similar way, though I think it is false to say that there must be some good in everyone, even if we cannot see it, I believe that we should fear to say that some people are beyond the reach of a sober remorse. The later is not an empirical judgment. It is an affir­ mation we dare not refuse to make, but it is as groundless as it is wondrous. If we affirm the former, empirical, claim that there is some good in everyone then, if we do not find it, we may give up on the claim itself and come to believe, at best, that there are some people whose humanity we have no reason to respect and that if we treat them as though we had such reason, it is only because we fear the consequences of not doing so. I think it is right to say that we share even with people like Eichmann or Saddam a common humanity, and that they are owed justice simply because they are human beings. Moshe Landau, the president of the court that tried Eichmann, who was trained in a Germanic and therefore Kantian tradition of jurisprudence, spoke in interviews of the inalienable dignity possessed by all human beings to which is owed respect that is unconditional – respect being owed to the human being as such, as Simone Weil put, and admit­ting of no degrees. But the idea of a common humanity, or of what is owed to human beings as such, will not take us to the idea that every human being is owed unconditional respect or possesses inalienable dignity. To the contrary, to say that justice was owed to Eichmann because he was a human being is already to speak of humanity in a way that is ethically inflected by the idea of inalien­able dignity. When Michael learns of Hanna’s crimes in The Reader, he tries to remember if there were things she had done, aspects of her char­ acter and personality that make it clear that she could indeed have done such terrible deeds, signs that he should have detected at the time of their love affair that would have shown that she had it in 180

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her to commit them. And we the readers are inclined to demand of Schlink the writer that he give us those signs, or fail as a novelist. We are inclined to think that there must be something that will explain why a person was able to do what Hanna did. We feel that we must be able to say that we were mistaken about her when she engaged our sympathies, not merely because we did not know that she committed terrible crimes, but because we did not know the aspects of her char­acter and personality that enabled her to commit them. The novel’s most terrible lesson is, I believe, that it need not be as we think it must be. It’s not just that we may not find anything: there may be nothing that explains Hanna’s behaviour in a way that would enable us to say justifiably that we were mistaken about her, as we would be justified if we discovered vices that we had not noticed. It is therefore not evasive, or morally offensive, to portray her as someone who should rightly have engaged our sympathies at the time of her affair with Michael. If that is true of Hanna who committed terrible crimes, then it will more evidently be true of people who were guilty to varying degrees by omission rather than commission. You will have noticed how naturally I spoke of the entanglement of Schlink’s generation in the crimes of the Holocaust. I could have said they were entangled in the crimes of the Hitler years, or the Third Reich. But to think of that period as defined by the crimes of the Holocaust is now second nature to us. It wasn’t always so; in­deed, as Tony Judt among others pointed out, when the genocide against the Jews and the Gypsies was carried out, and for some years after, it mattered only to its victims. The dawning realization in the 1960s, in Germany and elsewhere, of what really happened under the Third Reich had two aspects. The first could be revealed in film footage, in documents, in the facts revealed in trials and so on. I will call this knowledge of the facts thinking of the concept of a fact as I did earlier when I drew your attention to what a judge would mean when she might say to an emotional or theatrical witness, ‘Stick to the facts, please’. Facts, in this sense, are put in textbooks, accumulated in encyclopaedias, and so on. 181

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As well as learning more of the facts, people were trying to under­ stand the meaning of those facts. And, it is important to remember, as I indicated at the beginning of this chapter, we – everyone, not only the Germans – are still trying. We still argue about how to under­stand genocide and crimes against humanity. And we still argue about whether there is an aspect of the Holocaust that is different from and worse than those crimes and which no legal cat­ egory can capture adequately. To understand the meaning of facts that are for the most part disputed only by Holocaust deniers, we turned to writers like Primo Levi, Elie Wiesel, Jean Amery and Hannah Arendt. I chose those writers because Michael found their books in Hanna’s cell after she had killed herself. (The film does not tell us this.) While in prison she had taught herself to read. Arendt’s book, Eichmann in Jerusalem, was one of the first, and to my mind is still one the most important, works to alert us to the importance – moral, legal and political – of understanding why genocide is a crime different and more serious than mass murder, even when mass murder involves more victims, and why it should be called a crime against humanity. It is well known to anyone who has followed the literature that it was not until the sixties that people began to understand that the Holocaust is a crime different from mass murder even when there were many more victims, different in kind from the many mass murders of that blood-soaked century. Even many of its Jewish victims thought it differed only in its efficient brutality (the indust­ rialisation of death, it has come to be called) from earlier pogroms in Russia and Eastern Europe in which thousands of Jews were murdered. The concepts of genocide and crimes against humanity, with their inexpungible moral dimensions, are inseparable from what we mean by the Holocaust and therefore from our sense of its distinctive terribleness. Yet most of the people who committed those crimes did not understand what they did in terms of those concepts, whose significance we are still trying to fathom. In one sense of the morally complicated phrase, ‘they did not know fully what they were doing’, though that is, of course, not a sense that would enable any of 182

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them justifiably to plead not guilt or even to hope for clemency. The law will convict someone of genocide if the crimes they committed expressed the intention ‘to destroy, in whole or in part, a national, ethnic, racial or religious group as such’. In her widely acclaimed Reading the Holocaust,7 a book that the New York Times judged to be the best book of 1999, Inga Clendin­ nen asked, ‘Is the guilt attaching to the intention to destroy a whole people … different in kind from the intention to kill an equal number of individuals? Does the crime of “genocide” inhabit a moral category of its own?’ It is an important question (though she made no effort to answer it). Many people have asked it when they con­tem­ plate the unnerving, even distasteful, distance between the abstract nature of the concept, the many distinctions needed to delineate its structure, and the horrific details of the crimes to which it has been applied. We feel the need to make clear what it is that makes genocide always a terrible crime, but the judicial and philosophical attempts to do so often seem so abstract, so far from anything that reveals to our sensibility the terribleness of what happened, that they can seem obscene beside the concrete, imaginatively vivid descriptions of mass murder. It is those descriptions, often in the first person, in poetic language, or at any rate, the moving language of narrative, not the discursive language of conceptual or legal analysis, that seem to do the moral work of making us aware of what it means to have been victims of these crimes. When we have seen the corpses, the death camps, the chilling application of bureaucracy and technology, and when art has revealed to our moral faculties the true meaning of these things, do we not know all that is morally relevant to a full appreciation of what had happened during the Holocaust? Why, some people asked, was there so much intellectual fuss, so much argument and so much soul-searching about the nature of crimes against humanity, the name given by the Nuremberg judges to the crimes of the Holocaust in order to distinguish them from war crimes 7

Clendinnen 1999.

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and from crimes against the peace. We know, these same people say, what the victims suffered. Would it have made a difference to their terror, their pain and their humiliation if they had known their murderers and tormentors were guilty of a crime against humanity and genocide? The rhetorical force of these questions is undeniable. To respond adequately to them, however, we need to distinguish the quite general questions of what it means for someone to do wrong or to suffer it from the specific question that Clendinnen asked about genocide. To explain why I say that I will reflect briefly on a man – Jean Amery – whose book At the Mind’s Limits: Contemplations by a Survivor on Auschwitz and Its Realities 8 Michael also found in Hanna’s cell. Amery, who was brutally tortured by the Gestapo, wrote that it was not the memory of the pain that he suffered that lacerated his soul throughout his life. It was the memory of the fact that human beings could do what they did to him. That memory drove him to kill himself. When he was tormented by the question, ‘How could they have done it?’ should we understand him to have been expressing his pained incredulity that anyone with even a small amount of the natural sympathy human beings have to one another in pain could do this? I do not think so. The natural psychological and physical pain that someone like Amery suffered at the hands of his torturers, together with the horrified incredulity that anyone could be so radically bereft of sympathy or compassions that they could continue, unrelentingly to torture someone, and anything else of that kind, cannot take us to what rightly comes first to the minds of many people when they think of torture. They think torture violates its victims. In his book, The Lesser Evil,9 Michael Ignatieff calls it the ultimate violation. We have come to a very important point in the conceptual land­ scape that I have been detailing – one that is easily missed if one yields to the almost irresistible inclination to think that the harms that are suffered by victims of torture are physical and psychological harms and they might be described without reference to moral 8 9

Amery 1980. Ignatieff 2004.

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concepts, as they might present themselves, for example, to a com­ pass­ion that exists prior to, and which some philosophers have believed to be the primary source, our moral concepts. As well as suffering the most terrible physical and psychological harm, victims of torture also suffer the evil of what is done to them, the terrible wrong of it, as a distinct and irreducible source of their torment. It is an element of their torment that cannot be captured fully by elabora­ tion on their physical and psychological suffering and their pained disbelief that anyone could be so untouched by the natural sympathy that most people have for the suffering of their fellows. That, I think, is essential to understanding why Amery said that someone who is tor­t ured is never again at home in the world. Without wishing to make this a term of art, I will say that the victims of wrongdoing suffer a harm that is sui generis and I will rephrase Clendinnen’s question to ask: if we try to elaborate the moral wrong suffered by victims of the crime of genocide, is the concept of genocide essential to that elaboration? Surprisingly, the author of Guilt about the Past does not ask this question, or any question like it, nor does he give any indication that he believes that it matters. We know that Hannah is guilty of – or at any rate, participated in, crimes that define the Holocaust. We also know, as I said earlier, that she read, among others, Primo Levi, Elie Wiesel, Jean Amery and Hannah Arendt. To try to understand what she did, it was right that Hanna should read Primo Levi. Did she need also to read someone like Hanna Arendt? Or, to put the question about Arendt another way: does it matter to Hanna’s under­ standing of what she did and of Michael’s understanding of what it means to have become morally entangled with her crimes, that she was an accomplice to genocide and therefore to a crime against humanity? The Reader is, it seems to me, silent on this. Perhaps Schlink thought that because it is a novel, though it is a reflective one, it would be unacceptably didactic to pose such a question or even provide the materials for an answer to it. But if we put that same question to the legal philosopher, then we discover he is also silent about it. Guilt about the Past has a final 185

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chapter on fiction and the Holocaust, but it has nothing to say on what it means for our understanding of some of the big concepts of the jurisprudence of international law. That what writers like Levi have to teach us depends on the literary quality of their writ­ ing, depends I would say, on the fact that their writing, and our reflection on it is inescapably the realm of meaning; that is to say, necessarily answerable to the critical concepts that define that realm as one in which style and content cannot be separated. That is why I said earlier that it is intrinsic to what Levi and Wiesel have to teach that it should be appropriate for us to ask whether they yielded to a temptation to pathos or to sentimentality and so on. That being so, it is intrinsic to what they have to teach us – what they have to give to our understanding, what they have cognitively to offer – that it not be, even in principle, separable from its style in order to be suited to assessment in a tone-free zone, where it would be as wrongheaded to ask whether it was undermined by sentimentality as it would to ask that of a proposition in physics. Many of my friends who are writers find astonishing the suggestion that we need legal philosophy, with its propensity to make many and fine distinctions, to tell us what is so morally terrible about what Hanna did. If we need the terribleness of what it is to commit and to suffer genocide to be vividly and soberly before our minds, they ask – usually rhetorically – is it not art rather than philosophy that will do it? To my literary friends I answer with a yes and a no. Survivors of genocide who know of the genocidal intentions of their persecutors suffer different and deeper trauma than those who have survived mass murder only. People who are victims of genocide and the contempt that has been intrinsic to our paradigms of it suffer terrible natural harm, such as pain and fear, and terrible evils such as murder, rape and torture. In addition they suffer the distinctive evil of being treated as pollutants of the earth, as vermin or in other ways as undeserving a place in the world. Worse still, some of them suffer the knowledge that their loved ones were the victims of the same contempt. That conditions, through and through, the nature of their trauma. 186

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That is true of all survivors of genocide. Survivors of the Holocaust also suffer the knowledge that the Holocaust originated in perhaps the most civilised nation in Europe and that other great European nations were in different ways accomplices to it. That is different, I believe, from the terrible pain that comes from knowing, as the Tutsis came to know some years later, that those same civilised nations and others abandoned them to their murderers. It is different I think because more than all other genocides and persecutions, the Holocaust destroyed, or radically undermined in its victims, a sense of being at home in the community of nations and indeed, in the world. Great artistry is needed to bring out the way this evil lacerates the soul. Because it is inseparable from an understanding of what the victims of the Holocaust suffered, it is inseparable from an under­ standing of what its perpetrators did, and therefore of what others became entangled in. Primo Levi’s If This is a Man is a work of great artistry, in the sense that what it has to teach us about the meaning of the death camps is inseparable from the quality of his writing. The Reader is not, I think, a great novel, but even so, it reveals to us, better I think than the discursive work of political or legal philosophy alone could, what it can mean to discover that someone you love is guilty of terrible crimes, even if it taught us nothing about what it means for those crimes to have been the crimes of the Holocaust. And because the novel is not directly about the Holocaust, my limited praise of it implies no perspective on the controversy about the place of fiction in the depiction of the death camps. That is the yes part of my answer to my literary friends. Now comes the no part. The power of narratives such as Levi’s to teach us about genocide, to reveal the distinctive character of what its victims suffer, depends, I believe, on our capacity to locate them against the back­ ground of a common understanding whose conceptual structure it is one of the distinctive tasks of philosophy – including, of course, legal philosophy – to elaborate, and if possible to make perspicuous. It is the kind of legal philosophy that I hoped Schlink would do in Guilt about the Past, philosophy in the realm of meaning, written in 187

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an idiom in which form and content cannot be separated. He did not do it, but had he done so, his work would have been a fine illustration of the way literature speaks to us only against a background of a shared understanding that is partly, but necessarily, constituted by other arts and by more discursive modes of thought and imagination. Even when it is reflective, as The Reader is, art cannot do that conceptual work alone. But philosophy will do it well only when it is seriously responsive to art. It will be seriously responsive to art only when it abandons the belief that we must extract from the distinctive forms of art an intellectual content that can be delivered to a court of science and philosophy before we accept it with a good intellectual conscience. Without the conception of discursive thought that is rendered distinctive by the way it is answerable to the critical concepts that define the distinctive cognitive realm in which thought and feeling, form and content are inseparable, we will be bereft of an adequate sense of the subject matter of philosophical anthropology, which includes, of course, moral political and legal philosophy. To a heartbreaking degree, humanity has come to understand itself because of the crimes it has committed. It is therefore important fully to understand the nature of those crimes and to give them their right names. Genocide, as defined by the Convention, is universally acknow­ledged to be a crime against humanity. Just as it is a mistake to think that genocide is one of the gravest of the crimes against human­ity, so it is a mistake to think that crimes against humanity are always crimes so horrible that, as Geoffrey Robertson put it, they are unforgettable and unforgivable.10 The conceptual core of crimes against humanity, I suggest, is that they are crimes that should con­cern the citizens of all nations insofar as they belong to a com­ mun­ity of nations. But the idea of a community of nations will be empty unless it is the idea of a community constituted as such by the answer­ability of its member nations to international law insofar as that is informed by a sense of the common humanity of all the peoples of the earth. Crimes, initiated by states, that are informed 10

Robertson 2012.

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by the belief that some people are not fit to inhabit the earth are crimes of concern to all human beings for whom it matters that their political identity is partly formed by the fact that they belong to such a community of nations. It is a truism that if international law is to realise its ambition to con­stitute the nations of the earth as a community of nations, it must express values that are in some sense universal. What kind of uni­ver­sality is presupposed? It is natural and common to think that the universal values expressed in those laws are principles that can be abstracted from the cultures of the nations that are answerable to those principles. Those values, this thought continues, could be – and ideally should be – expressed in a language that consciously pre­scinds from the local, historically conditioned associations and reson­ances of natural languages. I hope that what I have said suggests another way of think­ing about universality. It is implicit in the idea that great liter­at­ure poten­ tial­ly speaks to all the peoples of the earth, but only as trans­lated from one natural language to another. Great literature often speaks to peoples of all kinds, at all times and in all parts of the earth, but only as translated from one natural language into another. That is not because we have been unable to develop a single universal lan­g uage, as some hoped to do with Esperanto. It is because that is the kind of universality that is appropriate to the content of great literature – content that often cannot be separated from its form and whose form cannot be separated from the contingencies that have nourished particular cultures, particular forms of living and par­tic­ ular natural languages. In that kind of universality we find the right connection, I believe, between universal law and a sense of the common humanity of all the people of earth. Our sense of what we have in common – the sense that people express in their hope that an understanding of what we have in common will diminish the wrongs we do to one another – is not for the most part based on facts of the kind we record in scientific books or encyclopaedias. It is a sense, acquired only in the realm of meaning. 189

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Bibliography

Amery, Jean. 1980. At the Mind’s Limits: Contemplations by a Survivor on Auschwitz and Its Realities. Translated by Sidney Rosenfeld and Stella P. Rosenfeld. Bloomington: Indiana University Press. Arendt, Hannah. 1964. Eichmann in Jerusalem: A Report on The Banality of Evil. New York: Viking Press. Clendinnen, Inga. 1999. Reading the Holocaust. Cambridge: Cambridge University Press. Gaita, Raimond. 2002. The Philosopher’s Dog. Melbourne: Text Publishing. Gaita, Raimond. 2011. After Romulus. Melbourne: Text Publishing. Ignatieff, Michael. 2004. The Lesser Evil: Political Ethics in an Age of Terror. Edinburgh: Edinburgh University Press. Levi, Primo. 1959. If This Is a Man. Translated by Stuart Woolf. London: Orion Press. Robertson, Geoffrey. 2012. Crimes Against Humanity: The Struggle for Global Justice. 4th ed. London: Penguin. Schlink, Bernhard. 1998. The Reader. Translated by Carol Brown Janeway. London: Phoenix. Schlink, Bernhard. 2009. Guilt about the Past. St Lucia: University of Queensland Press. Wiesel, Elie. 2006. Night. Translated by Marion Wiesel. New York: Hill and Wang. Williams, Bernard. 2006. Philosophy as a Humanistic Discipline. Edited by A.W. Moore. Princeton: Princeton University Press.

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Notes on Contributors Catriona Drew teaches public international law in the School of Law and the Centre for International Studies and Diplomacy at SOAS, University of London.   Robyn Eckersley is a Professor and Head of Political Science in the School of Social and Political Sciences, University of Melbourne, Australia.   Raimond Gaita is Professorial Fellow in the Melbourne Law School and the Faculty of Arts at the University of Melbourne, and Emeritus Professor of Moral Philosophy at King’s College London.   Martin Krygier is Professor, Gordon Samuels Professor of Law and Social Theory and Co-Director – Network for Interdisciplinary Studies of Law at the University of New South Wales.   Sundhya Pahuja is Professor, Melbourne Law School and Director, Institute for Inter­national Law and the Humanities, University of Melbourne. Parts of the second half of this essay are drawn from a chapter called ‘Global poverty and the politics of good intentions’, in Buchanan and Zumbansen 2012.  

Tim McCormack is a Professor of Law at the Melbourne Law School and an Adjunct Professor of Law at the University of Tasmania Law School. He is the Special Adviser on International Humanitarian Law to the Prosecutor of the International Criminal Court in The Hague and a Director of World Vision Australia.   Gerry Simpson is Professor of Public International Law at the London School of Economics.

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