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The Rise of International Criminal Law: A Further Rejoinder to Roth and Anderson

Published on July 8, 2010        Author: 

Editor’s Note: This post is part of series discussing the 2009 EJIL Article by Professor Kenneth Anderson: “The Rise of International Criminal Law: Intended and Unintended Consequences,” . Previous posts in this discussion were by Ken Anderson (see here, here here and here), Brad Roth and Amrita Kapur. You can read these posts by clicking on their names in the list on the right.

Update: This post was originally posted under the name of Dapo Akande. This was incorrect.

I would like to thank Brad Roth and Kenneth Anderson for their thoughtful engagement (see here and here) with my previous contribution to this discussion (see here).  Given the time that has elapsed since our discussion, I will restrict this response to a number of discrete issues raised by both.

 Firstly, despite taking issue with my approach, Roth nonetheless reaffirms a number of propositions already contained in my earlier contributions, including on the possibility of ‘false positive’ cases of intervention, the procedural flaws of criminal prosecution, and the difficulties in prosecuting those most responsible.  He correctly challenges the feasibility of ‘an authoritative condemnation of perpetrators’ when the ‘use of ruthless methods by …. non-pathological’ actors gives rise to a too-large pool of potential ICL defendants and consequently, prosecutorial selectivity.  My complete agreement with these sentiments is reflected in my previous post, which criticizes the criminal prosecutorial process as a method by which justice is achieved because of its inherent procedural flaws.

I neither expect prosecutions to necessarily achieve an ‘authoritative’ condemnation of all perpetrators, nor do I believe they are essential to, intended to, or in fact, reaffirm the dignity of the victims: criminal trials have never revolved around victims, who are treated merely as witnesses for the ‘wronged’ state.  In both my EJIL article (which responds to Ken Anderson’s original article) and my post, I embrace a broader notion of justice which includes mechanisms such as truth commissions, reparations, lustration and memorialization efforts as part of a multi-faceted response to systematic or widespread violations of human rights (also termed transitional justice).  It is these non-prosecutorial initiatives that specifically seek to recognize victims and promote possibilities for peace, reconciliation and democracy. Read the rest of this entry…

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Conceptual distinctions between the ICJ project and its constituent processes: A Reply to Brad Roth and Ken Anderson

Published on May 11, 2010        Author: 

 Amrita Kapur is a Consultant with the International Development Law Organization, and recently appointed as the International Advisor to the Women’s Justice Unit of the Judicial System Monitoring Programme in Dili, East Timor.  She has previously worked at the International Center for Transitional Justice, the International Criminal Court, and as a domestic prosecutor and Legal Aid criminal defence lawyer. In this post she responds to the article by Ken Anderson “The Rise of International Criminal Law: Intended and Unintended Consequences” and a recent post by Brad Roth

Professors Anderson and Roth accurately characterize the disparity between international criminal law (ICL) rhetoric and the continuing tolerance of impunity as hypocrisy with the worst kind of consequences.  However, their predictive speculations overlook important distinctions between ICL and humanitarian intervention, including historical context and the underlying catalysts for their continuing evolution. Roth’s response highlights the confluence of the two, but ultimately seeks to conflate their objectives and neglects emerging trends: in so doing, he fails to address the inherent shortcomings of the international criminal process as a tool to further the international criminal justice (ICJ) project.  This reply addresses humanitarian intervention and ICL as constituents of the ICJ project, referring to both Roth and Anderson for conceptual completeness.

1.  Nurturing a culture of humanitarian intervention

The central position occupied by ICL in the international legal order is claimed to give rise to two extreme situations: the guarantee that genocide will occur without intervention (Anderson) and/or the unchecked illegal use of force by powerful states (Roth).  As briefly addressed in my previous reply to Anderson (at 1031), framing ICL as a policy alternative that reduces the pressure to intervene presupposes intervention is an established and otherwise “morally inevitable” practice: this is simply not the case.

Humanitarian intervention is a very recent politically and militarily significant extension to the principles espoused by ICL.  Rather than being opposing or counter-balancing trends, humanitarian intervention and international criminal accountability are concurrently developing: while they are not entirely independent of one another, they are at different stages of ‘maturation’ and given the contrasting commitment in resources and political capital, inevitably developing at different paces.  Numerous humanitarian crises have elicited a peacekeeping force from the Security Council (Sierra Leone, East Timor, Bangladesh, Cambodia and the DRC are just a few), but always with mandates falling short of ensuring the protection of human rights and cessation of international crimes.  A fair evaluation of the trend towards humanitarian intervention must be anchored in an appreciation of the previously impermeable norm of non-intervention.  Read the rest of this entry…

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