Crime and Punishment: The Reification and Deification of the State (A Footnote to the Syria Debate)

When I studied international law as a student close to 40 years ago at Cambridge (East), Naulilaa was still a central case in the study of jus ad bellum. It would be found in many a ‘casebook’ or course pack. I am pretty sure that at least some of the younger readers of this Editorial will be googling at this very moment ̶ Naulilaa, what’s that? This is significant, for it has largely vanished from casebooks and course packs, only appearing, if at all, in a footnote. What accounts for that demise? Was it superseded by other cases? Not exactly. For the truth is that it should really have been expunged from those early books, or appeared at best as a relic of the pre-Charter era – a relic with an unpleasant colonial odour. Already then it was very difficult to square Naulilaa with the Charter regime concerning the legitimate use of force. Where is the armed attack? Could that punitive raid plausibly be called self defence? One would have to engage in some serious lexical violence towards either the case or the Charter or both in order to square one with the other. Why was it there then? Inertia is one, not implausible, possibility. It takes the demise of a generation, as we learnt from Thomas Kuhn, for a paradigm truly to shift. Another intriguing possibility is that the Charter notwithstanding, it reflected an occasional but persistent state practice. What does one do in the face of an illegal use of force falling short of an armed attack? We all remember the tortured reasoning of the ICJ in Nicaragua, trying to address what might count as a legitimate response to such. To talk of punishment or reprisal, which is what Naulilaa really was about, was of course taboo. So it was squeezed into the ill-fitting jacket of self-defence, though as a bastard son with, for example, no recourse to collective self-defence in this instance. It was not only the ICJ that was discomfited: the late Sir Derek Bowett, one of my teachers at the time, spoke (and wrote) illuminatingly about the seemingly contradictory Security Council responses to Israeli reprisal raids in the 1960s. There have been other similar uses over the years in other arenas. The surface language of the justification offered over the decades for that type of use of force was the same rubbery rendition of self-defence.  Naulilaa represents their real deep structure.

There are many ways to explain the seeming impossibility to definitively rid the system of the Naulilaa ethos. On the one hand Naulilaa represents, as I have suggested, a clear challenge to the Charter’s focus on self-defence as the principal, perhaps only, moral justification for the legitimate use of force by individual states. At the same time, it also reflects a deep human repugnance in the face of crimes going unpunished. The unresolvable debate concerning the very appropriateness and the place of retribution (not explained away as deterrent) in theories of punishment is the domestic equivalent of this tension in international law.

Many of these issues surfaced in the context of the grand debate about Article 19 of an earlier version of the Draft Articles on State Responsibility̶ so dear to the heart of the then ILC Reporter, the formidable Roberto Ago. Article 19 attempted to introduce the notion of crimes of state (as opposed to individual criminal responsibility for violating, say, the laws of war) as distinct from delicts, into the heart of the international regime of state responsibility.

The text of the 1976 Draft Articles reads as follows:

Article 19

International crimes and international delicts

1. An act of a State which constitutes a breach of an international obligation is an internationally wrongful act, regardless of the subject-matter of the obligation breached.

2. An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by the community as a whole constitutes an international crime.

3. Subject to paragraph 2, and on the basis of the rules of international law in force, an international crime may result, inter alia, from:

(a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression;

(b) a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination;

(c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid;

(d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas.

4. Any internationally wrongful act which is not an international crime in accordance with paragraph 2 constitutes an international delict.

This text aroused passions among scholars, as the ILC debates will testify. It occupied many pages of EJIL – go to Volumes 9 and 10 to read some illuminating stuff. It was politically correct to support the notion. Among states it was met, for the most part, with hostility by the usual suspects – the US, Britain and that club. I would describe the reception by many others as ‘cool diffidence’. Even supposed supporters among states, it was my impression, sighed with relief when it was unceremoniously expunged from the text. Giorgio Gaja, in Volume 10 of this Journal, in his characteristically succinct but penetrating style, captures the issues surrounding the elimination of a reference to crimes. (Those volumes are testament to what is meant by enduring scholarship. Though rooted in a very topical subject, even 15 years later they repay careful study.)

The opposition encapsulated three interconnected sets of objections. The professional-technical arguments revolved mostly around the obvious point that this was a very progressive notion of codification but more substantively highlighted the relative textual silence in relation to the consequences that would flow from state responsibility involving a ‘Crime of State’. At the heart of state responsibility is the regime of consequence. Eviscerate such, and one has eviscerated the very concept. What is state responsibility if a state cannot in some meaningful way be made to feel its responsibility? But if the consequences of crimes’ could not be distinguished, in their severity, from the consequences of state responsibility simpliciter, one would have trivialized the very notion of crimes as a proxy for particularly heinous conduct. (Some of those problems are present in Articles 40, 41 and their counterparts in Part III of the extant Articles on State Responsibility) This line of argument could also be dubbed the ‘crocodile tears’ approach for it allowed scholars and states alike to tut with sympathy about the laudable project of crimes of state, but then sigh, raise the insoluble problem of consequences, shed a tear and move on. Wisely perhaps.

The second set of objections could be located textually in relation to the ambiguity concerning the operationalization of the ‘International Community as a Whole’. Who would get to decide when a state may be dubbed criminal? At heart that objection was political: a fear that the General Assembly, dominated at that time by the Second and Third World would instrumentalize crimes of state in the ideological battles of the Cold War.

But at a deeper level was an additional reason which could explain some really strange bed-fellows in the opposition to Article 19: an almost atavistic resistance to the very idea of characterizing a state as criminal and in some form punishing it. The resistance cannot simply be attributed to the objective difficulty of assigning criminal responsibility to corporate bodies and legal, as distinct from human, persons. There are, I would suggest, at least two other layers of explanation.

The first goes to  the historic difficulty of international law truly to adapt itself to the advent of democracy – or at a deeper level the position of an individual no longer as subject of the King (meaning really an object of the King), but a full subject in whom rests the ultimate source of legitimacy and sovereignty of the state – the oceans of ink spilled and forests felled in the largely celebratory and complacent discussions of this topic mostly under the heading of the ‘right to democracy’ notwithstanding.  If the state as such is criminal and deserves punishment, that would of course in some way also mean that the people of that state in their collective identity are criminal and deserve if not punishment at least opprobrium. But what is typically absent from the discussions of international law and democracy is the willingness to acknowledge (or perhaps to comprehend?) that democracy involves not only a right of peoples but also their responsibility for what is done by their democratic institutions. When it comes to ‘peoples’, international law has been very good at advocating and assigning rights, but very absent and silent in assigning responsibility. And this is more than just about formal democracy, but about the way in which we understand the relationship of peoples to their state generally.

One difficulty is, of course, the question of collective ‘guilt’. Ever since Abraham famously admonished God for his plan to destroy the guilty and the innocent together (‘Will the Justice of the whole earth himself not do justice?’ Gen.18), we rightly abhor any notion of collective punishment. But it is possible to distinguish between punishment and responsibility – at least on the moral plane and in our political theory and practice we often assign responsibility to collectivities.

The second layer goes to the very concept of the state, the bedrock of classical international law, part of its very ontology. This is not an issue of reification (the corporate identity problem) but of deification: God is never guilty, only those who, acting as his agents, pervert his will. Far fetched? Think of that ‘sacred’ concept of international law which is and has always been a common asset of all states independent of ideological divisions and politics: sovereignty! The state as the ultimate sovereign of international law has clear theological associations.

If there is any merit at all in this construct it gives an interesting additional perspective to one of the most important and welcome developments of the past decades – the determination of the international community not to allow individual violators of international humanitarian law to shield behind the state and to bring them to justice through the new institutions and instruments of international criminal law. There is an impeccable logic in operation. It is always an individual who pulls the trigger, or attaches the electrodes and it is always an individual who commands another individual to do such, sometimes reaching to the very top. It is clearly progress.

At the same time these notions help shield the state, the concept of the state and the people who constitute the state, from moral responsibility. We punish a Mladić or Karadžić – and in some way remove moral responsibility from the large majorities who cheered them on. It is an uncomfortable reflection and, as we know, and as reflected in the pages of EJIL in a recent symposium, state crimes are back on the agenda. Ago might have his day yet.

Which is where Syria enters. EJIL: Talk! recently hosted an excellent debate on the legality or otherwise of a use of force with or without Security Council authorization. I do not want to add to that. What is interesting is the very open way in which so many states and statesmen and women were willing to use the language of crime and punishment. It was unmistakably not only about deterrence. The ubiquitous ‘they cannot be allowed to get away with that’ had a distinct retributive passion to it. It is curious that it should have been Syria – which is as far from democracy as one can imagine. But there it was, as if the guards were let down, and one of the taboos of post-Charter international law was out in the open. Who said that international law was always just about interests?