The Hegemony of Penal Accountability: Some Critical Reflections during (Ongoing) Atrocities

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“Accountability matters – not only because it provides justice for victims and punishment for perpetrators. It matters because ending impunity is central to ending genocide… Prevention and punishment…can never be seen in isolation from each other. Punishment is key to prevention.” – Michelle Bachelet.

Contemporary international law encompasses a legal and institutional framework founded on the premise that individuals must be held accountable and punished for grave wrong-doing. This framework aspires to move from an ‘age of impunity’ to an ‘age of accountability’, where impunity is understood as the absence of appropriate criminal sanctions and accountability as the prosecution and punishment of those responsible for serious violations of international law. This ‘anti-impunity agenda’ is motivated by the idea of ‘never again’: a vow to prevent atrocities that emerged out of the horrors of World War II, and a conviction that criminal sanctions are essential for its fulfilment. We call this association of accountability with criminal punishment the ‘penal accountability paradigm’. It reflects the primacy accorded to the (assumed) legal and moral imperative of holding perpetrators of serious violations of international law criminally accountable. This paradigm is present not only in international criminal law but also in international human rights law. Today, the paradigm is also prevalent in a vast range of political, legal, journalistic, and other responses to ongoing atrocities in Israel and Palestine. In this post, we argue that the penal accountability paradigm harms the ‘never again’ promise: (1) it gives states the (undue) benefit of the doubt; (2) it decontextualises, individualises, and exceptionalises atrocities; (3) it marginalises or delegitimises alternative forms of accountability and condemnation; and (4) it ultimately undermines prevention.

With this piece, we do not intend to challenge the worthwhile efforts to mobilise legal mechanisms for holding individuals and states accountable for (ongoing) atrocities. We recognise that many victims and civil society organisations regard penal accountability as an important means of seeking justice. We are, however, concerned with how the penal accountability paradigm captures, and dominates, the terrain of moral, political, and legal condemnation and opposition to (ongoing) atrocities.

Giving states the benefit of the doubt

‘We won’t know if Israel has committed war crimes until end of conflict’ is an argument that has surfaced in various forms and is implicit in some generalised calls for adherence to international law, which fall short of stating that many of the red lines of international law have been crossed. Thousands of civilians are being killed in Gaza, and several UN actors, journalists, and human rights organisations have reported substantial evidence of widespread violations of international law. Yet, according to many politicians and commentators (e.g., here, here, and here), it seems that we need to reserve judgement unless or until serious violations are established ex post facto and to something approaching the penal standard of beyond reasonable doubt. Vague appeals to respect for international law are also too often combined with near-unconditional support for the ongoing military campaign that violates these norms. In one remarkable case, on 20 October 2023, well into Israel’s mass bombing of Gaza, two prominent UK legal figures argued in The Times:

‘criminal law understands that if people, in moments of unexpected anguish, do only what they believe is necessary to protect themselves from harm, this is the best evidence a jury can have that they are acting in lawful self-defence. What stands for people stands also for nations.’

This shows the perniciousness of the penal accountability paradigm, which treats the state with the presumption of innocence that is granted to the individual under penal standards, instead of with the scrutiny and stringency warranted by the coercive and military power the state can wield. As events unfold and key figures are called upon to make critical decisions as to whether to facilitate, withhold support for, or oppose the ongoing military campaign, the penal accountability paradigm operates to give the state of Israel the benefit of the doubt.

Decontextualising, individualising, and exceptionalising

The application of criminal law norms to determine liability focuses on the direct contribution of individual agents to an event. In so doing, it obscures the context in which the event occurs. When UN Secretary-General Antonio Guterres remarked that Hamas’s attack on Israel ‘did not happen in a vacuum’, Israeli leaders and other commentators accused him of downplaying Hamas’s unjustifiable attacks or blaming Israel for them. It is the penal accountability paradigm that promotes the idea that contextualisation reduces perpetrators’ responsibility and should be avoided. Criminal law chiefly considers contextual factors at sentencing, often to mitigate the penalty. This way, the penal accountability paradigm isolates and individualises events. It narrows the focus to individual incidents, individual victims, and individual perpetrators, and overlooks the institutions, systems, and structures that enable and sustain violence and oppression. Yet extensive study of phenomena such as torture and genocide has made it clear that the context in which such abuses take place is key to understanding the occurrence of such events and ensuring their non-recurrence. The promise of ‘never again’ demands engagement with the institutional, systemic, and structural factors – including attitudes, policies and practices of othering and dehumanisation – that shape such grave wrong-doing.

When phenomena are individualised and stripped of context, they become ‘exceptional’ events: they are viewed as aberrations from the ‘norm’ or as the work of a ‘few bad apples’ (as distinct from ‘poisonous ecosystems’). This exceptionalisation has at least four implications. First, it sanctifies the idea that allegations of atrocities such as ‘genocide’ or ‘war crimes’ should not be invoked ‘lightly’, thereby discouraging pronouncements that condemn and seek to end ongoing harm. Second, it evokes the monstrosity of evil (the idea that atrocity is shaped by unique and aberrant heinousness) and misses the banality of evil – particularly, the circumstances where grave wrong-doing becomes ‘accepted, routinised, and implemented without moral revulsion and political indignation and resistance’. Third, it favours ideal(ised) victims, such as unarmed women and children, and marginalises those deemed less ideal, notably men or teenage boys. Lastly, it invites a disproportionate focus on extreme and singular atrocities while diverting from patterns of violence, discrimination, dispossession, and the repression of dissent, like the ones Palestinians have been subjected to for decades.

Marginalising or delegitimising alternative forms of accountability and condemnation

Penal norms offer a powerful and, in many ways, universal(ising) language and pathway to accountability and condemnation. By invoking international-criminal-law terminology to characterise events, we can charge our condemnations with legal authority and demand intervention by international institutions. Yet the penal accountability paradigm can also reduce important discussions regarding violence and oppression into definitional quibbles over legal terminology. This allows states to shield themselves from allegations of atrocities by turning a broader political and ethical debate into a strictly legal one. Israel, for example, can claim that its actions are justified as long as a legal argument can be made that they do not meet the legal definition of ‘genocide’ (notably that ‘there is no genocidal intent’) or ‘war crimes’ (maintaining that ‘Israel’s response is proportionate’) – also unduly benefitting from the penal standard of beyond reasonable doubt.

The trouble with this goes beyond the shielding of the state behind ‘plausible legality’, however. While the penal accountability paradigm does not necessarily exclude other forms of prevention and condemnation, the emphasis on criminal law sets the agenda and, by implication, marginalises or even delegitimises alternative responses, from political accountability (such as publicising and disseminating information on how elected political figures voted on particular issues) to protest. Limiting the scope of legitimate condemnation to the penal frame and the legal process has enormous consequences for political and public engagement with unfolding events. Indeed, the penal accountability paradigm’s capacity to delegitimise alternative forms of accountability must be considered against the backdrop of an ever-growing penal suppression of dissent.

Undermining prevention

The consequence of what we have outlined is that the penal accountability paradigm can undermine the preventive promise out of which it emerged. Its costs can be counted in how it can constrain judgement, obscure important dimensions of wrong-doing, and delegitimise more immediate – even more potent – ways of confronting and opposing atrocities.

In a recent essay whose publication in the Harvard Law Review blog was blocked by the journal’s leadership after review and editing had been completed, Rabea Eghbariah eloquently identifies the ‘inertia of legal academia’ in the face of ongoing atrocities in Gaza. He writes:

‘Clearly, it is much easier to dissect the case law rather than navigate the reality of death. It is much easier to consider genocide in the past tense rather than contend with it in the present. Legal scholars tend to sharpen their pens after the smell of death has dissipated and moral clarity is no longer urgent’.

He posits the ‘material reality’ of genocide for Palestinians in Gaza, and identifies the Nakba – the ‘Catastrophe’ – as not only a crime or isolated event but as a continuing structure of ‘forced fragmentation and cruel domination’ and material reality of violence and death.

The essay – and its censoring – illustrates the limitations of confining accountability and condemnation to penality, and the need for a richer and materially grounded vocabulary for naming, condemning, and protesting against ongoing abuses. The hegemony of the penal accountability paradigm in the face of atrocities is not just limited and limiting, but also harmful. Insofar as it contributes to a state of affairs where states are given the benefit of the doubt in relation to ongoing abuses, it enables other states (and other powerful entities) to appeal to plausible legality in erring on the side of facilitating atrocity in real-time.

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