The Place of International Criminal Justice within the International Legal Order: A Rejoinder

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. 

I am thus unconvinced by Kapur’s reassurance that “the likelihood of ‘partisan festivals’ is lowered by a greater commitment to neutrality, as expressed through procedural fairness.”  I am not sure to whose “commitment to neutrality” Kapur is referring (apart from the ICC, where the cautious institutional design appears likely to preclude all but the most unambiguous cases), but a commitment to “procedural fairness” implies nothing at all about political neutrality in the exercise of prosecutorial discretion, nor anything about neutrality in application of law to fact as between cases involving favored and disfavored political causes.  Worse, “procedural fairness” sometimes appears to be defined narrowly enough to allow its coexistence with dubious substantive doctrinal innovations, such as “in dubio pro humanitate” and extended conceptions of complicity and “joint criminal enterprise.”

 None of this is very troubling in respect of the limited range of uncontroversially atrocious cases to which extraterritorial prosecutions have up to now, for the most part, been limited.  But extreme cases, from Nuremberg and Eichmann onward, have tended to generate exuberant dicta that will be turn out to be regrettable if applied in contexts that are sites of serious moral and political contestation.

 Kapur observes that “it is possible that the ICC’s creation, operation and complementarity regime has precipitated, or will precipitate, a decline in the exercise of universal jurisdiction.”  I regard this eventuality as devoutly to be wished, and my support for the ICC is partly predicated on that scenario.  Similarly, it may be that predictably ill-fated initial moves against officials of influential states will prompt more and more states to limit their courts’ capacity to exercise extraterritorial penal jurisdiction altogether, and this possibility may underlie Kapur’s sense of the “unlikelihood” of manipulative extraterritorial prosecutions.  But ICL enthusiasts typically hope for contrary trends, and it is that hope with which I take issue.

 Similarly, Kapur notes that “perhaps the likelihood of a joint enterprise outside established norms has diminished in the unsettled dust of Operation Iraqi Freedom.“  But this welcome brake on improvisation in the use of force is a product, not of normative development, but of policy failure.  More interesting is the consequence for legal constraint of saying about the Kosovo campaign, as Kapur does, that “the use of force itself was qualified as legitimate by jurists and practitioners alike, despite its blatant illegality.”  As I warned at the time, a claim for legitimacy of a particular breach of an existing legal norm needs to be carefully crafted to avoid implying the legitimacy of breaching legal constraint wherever “justice” so demands.  Support for the Kosovo campaign ended up undermining opposition to the Iraq campaign because the take-away message was not that a narrow exception must be designed to avert widely anticipated and imminent humanitarian catastrophe, but that “the law is an ass,” and should not be allowed to get in the way of doing the right thing (as perceived by the strong).

 Kapur maintains that “[a] fair evaluation of the trend towards humanitarian intervention must be anchored in an appreciation of the previously impermeable norm of non‑intervention.”  By this she evidently does not mean a normative appreciation, since she speaks of the forces for humanitarian intervention having “yet to overcome the hypocrisy of the international legal order.” Yet it is states – and above all, the powerful states to whom advocates of intervention look to impose solutions – that are hypocritical, whereas international law’s  recalcitrance derives from the understandable distrust prevalent among the international system’s weaker elements.

 One problem with the rhetoric of “Responsibility to Protect” is that it conveys a misimpression of the role that international law plays in humanitarian intervention. (For reasons to prefer the older rhetorical framework, see  Jose Alvarez, Notes from the President: The Schizophrenias of R2P, 23:3 ASIL Newsletter (2007))  International law can license intervention by willing and able powers; bringing about the intervention is a matter of political will of interested states – and indeed, not meaningfully a matter of legal obligation.  Even if what is needed in the world is more intervention rather than less, licensing intervention more broadly (as by allowing circumvention of the Security Council) does not equate to increasing the amount of the right intervention in the right places.

 One might imagine, from some of the literature disparaging the non-intervention norm, that the legal prerogatives of weak states constitute the great impediment to the betterment of the human condition, that wealthy and powerful states are chomping at the bit to bestow beneficence, but frustrated by legal constraint.  There is, I submit, extraordinarily little reason to believe this.  The true lesson of Rwanda is that where the only interests in play are humanitarian ones, and where interveners figure to incur significant costs in blood or treasure, it is hard to get anyone to sign up.  On the other hand, slogans such as “No More Halabjas” are convenient for a self-interested intervener (never mind if the atrocity had occurred fifteen years earlier, when one’s own state had deliberately turned a blind eye).

 As noted above, I do not mean to make Kapur the target of the above critique, and indeed, am unsure of where she stands on the contentious matters discussed above.  Nor do I mean to be an alarmist about concrete trends in either ICL or humanitarian intervention.  As Kapur suggests, expansive theoretical designs face formidable obstacles in practice.  I would only add, “and a good thing, too.”  Whether this reaction makes me as much of a radical as Anderson (flatteringly) suggests, I leave to others to assess.