Les extrêmes se touchent: Anxieties about International Criminal Law from Poles Apart

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.

 The international peace and security order’s failure to accomplish what ICL establishes to be imperative constitutes, for Anderson, both a moral failure and an unbearable jurisprudential tension.  Ultimately, Anderson implies, that tension will be resolved by reform to the peace and security order, presumably (though he does not specify) through the circumvention of Security Council obstructionists.  That logic is foreshadowed in W. Michael Reisman’s extraordinary 2000 EJIL article, “Unilateral Actions and the Transformations of the World Constitutive Process: The Special Problem of Humanitarian Intervention,” 11 Euro. J. Intl L. 3, 15 (2000); in Reisman’s words: “as the norms in question – international human rights norms – derive from a broader decision process than the body assigned to enforce those norms, the broader decision process sustains the norms and seeks alternative modes of enforcement.”

 Anderson’s observation is trenchant.  There is an inherent tension between the spirit of the ICL project, which cannot abide impunity, and the present international law of peace and security, which effectively demands that impunity be abided in the absence of an extraordinary political consensus.

The natural resolution of that tension, however, should be cause for trepidation.  The danger is not that humanitarian interventions lacking a Security Council mandate will find validation in an emergent legal doctrine; indeed, I have advocated this (even if more guardedly than some exponents of the “Responsibility to Protect” might prefer).  The danger is that the spirit of the ICL project portends a justification of the exception that will fatally undermine the rule.

The post-World War II order, as constructively amended in the era of decolonialization, established the priority of peace and respectful cooperation among juridically equal states; the ethos was one of ideological pluralism and forbearance, qualified only by a Security Council mechanism requiring an extraordinary cross-cutting consensus.  That the system leaves unredressed all but the most extraordinary injustices occurring within state boundaries is not a aberrant consequence; the system, mindful that great-power predation has typically flown the flag of righteousness, prioritizes the impeding of impositions.

Proposed doctrines of humanitarian intervention ordinarily seek to cover the extreme case while leaving the basic premise of non-intervention intact.  They seek to avert impending humanitarian catastrophe (which often can be perceived in common from a broad range of ideological and cultural perspectives), not to authorize forcible recourse against wrongdoing as such.

If ICL comes to be perceived as displacing the U.N. Charter’s peace and security scheme as the centerpiece of international order, the genie of empowered moralism will be let out of the bottle of legal constraint.  The danger arises less from developments of actual legal doctrine – and all the less still from the actual, quite modest exertions of international tribunals – than from what Anderson appropriately calls ICL “as social practice,” including the ever more conspicuous brandishing of universal jurisdiction.  As slogans such as “an end to impunity” and “no safe havens” become prevalent in the rhetoric of international law advocates, accommodation and restraint inevitably become cast as vices rather than virtues, to the detriment of the international legal order’s most practicable mission.

As I argue in a forthcoming article, a legal attribution of criminality to adverse regimes will tend to present international institutions with enforcement demands that such institutions, dependent on consensus among non-like-minded states, characteristically cannot fulfill.  At this fork in the road, where the international legal order’s procedural strictures are perceived to frustrate that same order’s imperative substantive ends, violations of use-of-force norms can be rationalized as implementing the true spirit of international law.  Paradoxically, instead of furthering its presumed mission of furthering accountability in the exercise of power, ICL may end up furnishing a rationale to disparage and to flout those international institutions and processes that are designed to hold powerful states accountable. (Several months ago, Anderson did me the great honor of highlighting my arguments in a blog post.)

 I am thus in conceptual agreement, of a sort, with Anderson, even while I am in normative agreement with Amrita Kapur’s recently published “Reply to Ken Anderson,” 20 Euro. J. Intl L. 1031 (2009) .  Anderson believes that the increased demand for  international criminal justice must lead to victor’s justice as a moral matter, whereas I fear that it can lead nowhere else as a practical matter.

Kapur wraps up her otherwise-excellent critique of Anderson’s embrace of victor’s justice with this assertion (at 1040):

Anderson is convinced that unless “an army sits atop its vanquished enemy” (at 337) the enormity of the crimes left unaddressed by courts mocks justice.  This is precisely the point: the courtroom will always be an inappropriate and inadequate tool to reveal the enormity of the crimes.  Justice (meaning criminal justice) is not a process designed to produce the most comprehensive and accurate version of the wrongs committed – its purpose is to attribute responsibility to a particular individual for specifically articulated acts on the basis of admitted evidence.

This misses both Anderson’s point and mine.  Anderson’s concern is not that the courtroom fails to reveal the enormity of the crimes, but that it fails to redress the enormity that it reveals, and in so failing, exposes as feckless and hypocritical the legal order within which the trials are embedded.  Mine is that international criminal justice’s true purpose – both for better and for worse – is precisely not “to attribute responsibility to a particular individual for specifically articulated acts on the basis of admitted evidence,” but something far grander and more didactic.  (See, e.g., Payam Akhavan, “Can International Criminal Justice Prevent Future Atrocities?” 95 Am. J. Intl L. 7 (2001).

 Whether or not they risk degenerating into show trials, ICL trials are, by their very nature, morality plays.  Where the moral lesson involves represents a genuine consensus – or more to the point, an insistent near-consensus – of the international community as a whole, such trials may be salutary (as I believe they have been in making “ethnic cleansing” a globally recognizable term of opprobrium).  However, where extraterritorial jurisdiction is vested in the national courts of 190-odd states, ICL has all too great a potential to lend itself to partisan festivals of self-righteousness.

As Kapur eloquently puts it (at 1040), a “‘seal of justice’ that merely vindicates victors’ actions through a wholesale condemnation of the vanquished party’s wrongs, does not provide meaningful truth or justice.”  She might have added, though, that ICL disperses to national courts the resources for just such a wholesale condemnation, which may be used retrospectively to discredit those who had previously advocated peace or restraint, and which may be used prospectively to place a not-yet-vanquished state in the cross-hairs.

Anderson and I perceive the same tensions within the ICL project, though we would wish to see them resolved in opposite ways.  Meanwhile, although Kapur and I embrace the same normative principles, we disagree (it seems) about whether the ICL project can remain faithful to those principles if, in its continuing expansion, it comes to be seen as at the core – rather than (more properly, in my view) at the periphery – of the international legal enterprise.