Amrita Kapur’s posted reply to Ken Anderson’s “The Rise of International Criminal Law” and myself makes a series of nuanced points, many of which I appreciate.  I am unsure how deep our disagreements actually run, but because some of her language indicates an affinity for views of which I am critical, I will take the opportunity to expose some areas of sharp disagreement – if not actually between myself and Kapur, then surely between myself and others who highly tout the project of international criminal justice. 

Kapur’s post acknowledges that “trials are inherently flawed as a process to achieve the noble purposes ascribed to the ICJ project.”  She nonetheless insists that justice “must surely include, if not focus on, justice for the wronged parties, the victims, and the society that must build peace and reconciliation.”  This statement is open to varying interpretations, but to sharpen the discussion, I will provisionally interpret it to make two typical assertions with which I take issue:  first, that an authoritative condemnation of perpetrators is an essential element of post-conflict efforts to reaffirm the dignity of victims; and second, that peace and reconciliation are necessarily predicated on – and therefore, perhaps, should be held hostage to – the authoritative triumph of a particular moral judgment about the acts of conflict participants. 

If one has in one’s mind’s eye morally unambiguous conflicts, where one side used atrocious means in the service of a manifestly evil end, both of these assertions seem plausible.  Insofar as the ICL project limits its ambitions to such circumstances – and there are enough of these to keep us busy – it has my full support.  But many armed conflicts involve, on one or both sides, informed persons of good faith and sound reason who endorse the use of ruthless methods for what they regard as an indispensable greater good.  Ruthless acts have often been committed, not because of a “culture of impunity,” but because actors (and their constituencies) believed, non-pathologically, that presumptively wrongful acts were justified in the effort to avert what they regarded as a morally worse overall outcome.  (I regard the Israeli-Palestinian conflict as quintessential in this regard, but even the question of which conflicts fall into this category turns on one’s political attitudes.)

 Among the conclusions that follow from this observation is that the potential target list for the ICL project is too rich.  The problem is not simply the danger that the typically-hoped-for expansion of domestic-court invocation of universal jurisdiction will produce frivolous prosecutions or legally unjustified convictions.  Fully sound cases could, in principle, be brought against a very wide range of actors, and yet in practice, prosecutions will almost always be reserved for the politically unpopular and strategically uninfluential.  (more…)

Brad Roth is Associate Professor of Poitical Science at Wayne State University. He specializes in political and legal theory, American and comparative public law, and international law. In this post, he reflects on an EJIL article, “The Rise of International Criminal Law: Intended and Unintended Consequences,” by Professor Kenneth Anderson published in one of EJIL’s Twentieth Anniversary Special Issues.

 In “The Rise of International Criminal Law: Intended and Unintended Consequences,” 20 Euro. J. Int’l L. 331 (2009), Kenneth Anderson surveys potential indirect effects of ICL “as social practice” on other areas of international law and international organization.  By no means does Anderson launch a frontal assault on ICL, nor does he disparage any of its concrete accomplishments; indeed, he characterizes ICL “as perhaps the signal achievement in public international law since 1990 and the end of the Cold War.”  Nonetheless, the article manifests a sense of unease about various aspects of ICL’s rise to prominence, and that alone is likely to raise eyebrows, given the reverential tone that more ordinarily marks legal scholars’ accounts of the project.

Anderson’s many observations encompass a broad range of subjects, and do not admit of a ready summary.  Running through the discussion, however, is a concern that the cart has been placed before the horse, that the institutions of international criminal justice have an uncertain practical B and moral B significance in the absence of an international community that is ready, willing, and able to respond forcibly to ongoing atrocities.  Nuremberg, Anderson reminds us (at 335), “was a lovely hood ornament on the ungainly vehicle that liberated Western Europe, but it was not a substitute for D-day.”

Indeed, what is most distinctive in Anderson’s discussion is his characterization of the relationship between jus in bello and jus ad bellum.  In particular, he insists that the right to administer universal justice is earned, not through neutrality, but through partisanship.  Whereas many other commentators have viewed “victor’s justice” with unease, suspicion, or lamentation, Anderson contends that it is uniquely the victorious struggle over the atrocity-committing enemy that confers moral standing to administer penal justice.  By contrast, in the former Yugoslavia a decade and a half ago and in Darfur now, international actors have sought – discreditably, if understandably – to establish mechanisms for prosecuting crimes post hoc while shirking the moral duty to undertake a war to stop the perpetrators in real time. (more…)

In my previous post on this topic, I argued that the international reaction to the Honduran coup potentially augurs a shift in foundational norms governing the relationship between international and domestic legal authority.  I also hinted that I regard such a shift as ill-advised, and noted that some of those in the forefront of the reaction appear to have given little thought to the long-term implications.

As, Doug Cassel’s ASIL Insights analysis notes, “Ordinarily international law imposes its own, autonomous norms for the permissible conduct of a government.  Questions of domestic law – including constitutionality – are left to domestic authorities, both as a matter of their sovereign entitlements, and because they are presumed better able to interpret their own constitution.”  The two reasons that Cassel cites are distinct:  the latter is a matter of respect for a foreign pouvoir constitué, on the ground that standards of legal interpretation are themselves a matter of local law; the former is a matter of respect for a foreign pouvoir constituant, on the ground that where permanently effective, breaches of constitutional order (whether by insurrection or by an existing regime’s pattern of practice) beget their own legality.  For foreign courts, both of these are ordinarily rationales, not for a mere “margin of appreciation,” but for judicial abstention.

However, it is not unknown for international legal questions to turn on a finding about compliance with domestic law, such as where treaty provisions provide that exceptions to specified human rights must be, inter alia, “non-arbitrary” and delineated in domestic law.  In such circumstances, assessing a claim of  violation requires an independent basis for ascertaining the requirements of domestic law.   The criteria for establishing a violation might be relatively deferential, yielding to plausible claims of local expertise in interpreting local norms; interpretation of legal (including especially constitutional) norms depends on all manner of historical, ideological, political, linguistic, and jurisprudential idiosyncracies, and a high court’s authority to say what is lawful counts for much, even in the face of text apparently to the contrary.  Still, one cannot exclude a second-guessing of local judicial authorities on the merits, especially in cases where courts are suspected of participating in a sham. (more…)

Who is the current President of Honduras?  Far from the stuff of quiz shows, this question bears on the very foundations of international law.  The international reaction to the June 28, 2009 ouster of President Manuel Zelaya, though superficially similar to earlier repudiations of coups, is in important respects unprecedented.  Its implications have a profundity that few international actors – least of all, President Zelaya’s strongest international political allies – seem to have considered.

A decade ago, I explored at length the question of Governmental Illegitimacy in International Law.  The title was initially intended as a provocation, since the legitimacy of governments had ordinarily not been considered a proper object of international law.  It had largely been taken as a given that a ruling apparatus exercising “effective control through internal processes” – whether or not formally “recognized” – would be acknowledged to have legal standing to assert rights, incur obligations, exercise powers, and confer immunities on behalf of the underlying sovereign entity that enjoyed membership in the international legal order.

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In my first post, I began to address concerns brought to mind by W. Bradley Wendel’s excellent review for Legal Ethics (12:1) of five books on the “torture memos” generated by the U.S. Justice Department’s Office of Legal Counsel (OLC). That post lamented the tendency of the discourse on the memos’ improprieties to focus on criminal law issues while neglecting non-penal international legal norms, which were violated much more systematically (and, I would argue, with much more egregious human consequences).

There is, however, a flip side to the observation that the legal structure and political culture of the United States do not place breaches of international legal obligation altogether beyond the scope of domestic legal authority or policy consideration. In retrospectively judging the conduct of the memos’ authors – the subject of the still-withheld report of the Justice Department’s Office of Professional Responsibility, and of potential criminal investigations (in the U.S. and abroad) – one must apply standards in effect at the time and in the specific institutional setting of the activity, however much one may wish to reform those standards prospectively. And here, the case is likely to be closer than is generally imagined, and dependent on more fine-grained assessments than even most legal scholars have appreciated.

As Wendel has elsewhere acknowledged, much of the adverse reaction to the memos stems from revulsion toward very idea of a legalistic rendering of such a morally-charged subject matter. What so many observers find malodorous about the memos is that they seek at all to specify the threshold of criminal liability – especially, with respect to the penal statute implementing the Torture Convention, the line between torture and cruel, inhuman, and degrading treatment. I have attended fora of legal scholars at which the memos have been condemned as embodying the evils of “positivism.” This charge is understandable, given that even the most rigorous and accurate analysis of this distinction is inevitably a disgusting spectacle. But such a charge can only hearten the memos’ authors and their defenders, since it places them comfortably on the traditionalist side of a perennial debate, and deflects attention from the memos’ distortions of positive law. (more…)

Editor’s Note: See here for a post welcoming Professor Roth

While we continue to await the long-withheld report of the U.S. Justice Department’s Office of Professsional Responsibility (OPR) on the conduct embodied in the notorious Office of Legal Counsel (OLC) “torture memoranda,” W. Bradley Wendel sorts out some of the issues in the current issue (12:1) of Legal Ethics. In “The Torture Memos and the Demands of Legality” (earlier version available on SSRN), Wendel reviews five books on the subject, including one authored by protagonist John Yoo. The result is a balanced, but ultimately pointed, account that avoids the oversimplifications that have frequently marked both criticisms and defenses of the memos’ authors.

Though reciting the usual criticisms of some of the memos’ more extravagant claims, Wendel renders a distinctive analysis of the government lawyer’s duties. Wendel concedes “that there are many different virtues of government, of which legality is only one.” He moreover allows that Attorney General Robert Jackson’s 1940 rationalizations of the Destroyers for Bases Agreement were morally necessary even though legally dubious. At least, though, “Jackson’s opinions were cautious and hedged, acknowledged limits to the power asserted by the President, and were no broader than necessary for the task at hand.” John Yoo’s position, by contrast, “really does boil down to a failure to differentiate between policy advising and legal advising. … The rule of law has no independent normative significance for Yoo.”

There are several pertinent nuances here that are worthy of further exploration. I will address one set of these now, and deal with others in a subsequent post.

Among both critics and defenders of the memos, there has been a remarkable inattention to the memos’ treatment of breaches of international human rights and humanitarian law obligations as such, as opposed to international crimes specified by treaty and reflected in domestic implementing legislation. (more…)