The rise of international criminal law: Intended and unintended consequences

European Journal of International Law

Volumn 20, Issue 2, 2009, Pages 331-358

  Anderson, Kenneth ^a,b  

^a AMERICAN UNIVERSITY   (United States)

^b STANFORD UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 67650413630     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chp030     Document Type: Article

References (70)

1. At least, the ideal is a mutual benefit game. Much literature suggests that this may not always be the case. See e.g. Choi, 'Legal Problems of Making Regional Trade Agreements with Non-WTO Member States', 8 J Int'l Economic L (2005) 825;
2. Picker, 'Regional Trade Agreements v. The WTO: A Proposal for Reform of Article XXIV to Counter This Institutional Threat', 26 U Pennsylvania J Int'l Economic L (2005) 267.
3. P. Kennedy, The Parliament of Man: The Past, Present, and Future of the United Nations (2006), at 28.
4. D. Chollet and J. Goldgeier, America Between the Wars (2008), at 122-134. This book is, in my view, the indispensable source for understanding the foreign policy of the Clinton years, and its profound connection to the 9/11 foreign policy of the Bush years.
5. T. Taylor, The Anatomy of the Nuremberg Trials (1992).
6. Anderson, 'Nuremberg Sensibility: Telford Taylor's Memoir of the Nuremberg Trials', 7 Harvard Human Rights J (1994) 281. I preserved anonymity for my sources at the time, given that all of them were off the record discussions with senior military and diplomatic officials. Many of them took place not directly in the context of Yugoslavia discussions, but as an adjunct to meetings about a quite different matter, the campaign to ban anti-personnel landmines.
7. Rubin, 'If Not Peace, Then Justice', New York Times Magazine, 2 April 2006, available at: www.nytimes.com/2006/04/02/magazine/ 02darfur.html.
8. Anderson, supra note 5.
9. Ibid.
10. I write this in New York, while sitting with the head of an NGO working in Sudan, who is on the telephone trying to sort out the situation of one of his workers who has been temporarily detained and her computer seized - what exactly and whose name is on it? I don't know what to do. But it is hard to be indifferent to either the issues of justice or the issues of humanitarian relief in a situation where no one is going to enforce the ICC's arrest warrant.
11. See 'Compounding the Crime', The Economist, 14 March 2009, at 13 ('[t]he NGOs that were expelled from Sudan provided much of the food, water and medicine to the 2.75 million refugees who live in temporary camps in Darfur').
12. See, e.g., de Waal, 'Appealing the Genocide Decision', Making Sense of Darfur blog, 15 March 2009, available at: www.ssrc.org/blogs/darfur/2009/ 03/15/appealing-the-genocide-decision/. Human Rights Watch, for its part, says that the arrest warrant is 'warning to abusive leaders ... and a victory for Darfur's victims': Human Rights Watch press release, 4 March 2009, available at: www.hrw.org/en/news/2009/03/04/ icc-bashir-warrant-warning-abusive-leaders.
13. For examples of this debate see, e.g., Heller, 'The Majority's Complete Misunderstanding of Reasonable Grounds', Opinio Juris blog, 5 March 2009, available at: http://opiniojuris.org/2009/03/05/ the-majoritys-complete-misunderstanding-of-reasonable-grounds/.
14. Ibid. (emphasis added).
15. This problem of humanitarian neutrality has not received sufficient critical attention. I discuss it briefly in 'Humanitarian Inviolability in Crisis', 17 Harvard Human Rights J (2004) 41, and in 'What the Swiss Miss', Wall Street J, 21-22 October 2006, at 8, but the whole issue of neutrality deserves a much more detailed discussion as a matter of moral philosophy as well as in law.
16. For a sympathetic dramatic treatment of the dilemma between partial and impartial justice see the famous 1950s play by the Swiss writer Friedrich Durrenmatt, Ein Engel Kommt Nach Babylon (1954).
17. S.C. Neff, The Rights and Duties of Neutrals: A General History (2000), at 7-8.
18. Neff goes on to describe the grudging emergence of the view, via Grotius and Vitoria, that human beings may not have perfect, God-like knowledge of the just side, so providing a basis for moral neutrality: supra at 9-10.
19. 'Aux Prudents: Il neige sur le maquis et c'est contre nous chasse perpetuelle. Vous dont la maison ne pleure pas, chez qui l'avarice écrase l'amour, dans la succession des journées chaudes, votre feu nést qu'un garde-malade. Trop tard. Votre cancer a parlé. Le pays natal n'a plus de pouvoirs': R. Char, Feuillets d'Hypnos no. 22 (1946).
20. The discussion which follows mostly limits itself to reprisal jus in bello, rather than the different discussion of reprisal jus ad bellum - that discussion involves a separate discussion of the effect of the Charter and other matters.
21. For a general statement of the traditional concept of reprisal see Neff, supra note 16, at 81-82.
22. See the classic treatment in F. Kalshoven, Belligerent Reprisals (1971).
23. Posner, 'Optimal War and Jus Ad Bellum', available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=546104
24. also discussed at http://www.opiniojuris.org/2007/01/17/ the-bargain-theory-of-war/ (2007). Although this article is titled 'jus ad bellum', I would suggest that the reciprocity argument is at least and, arguably, more directly applicable to jus in bello.
25. Legitimacy is a topic of much recent discussion among international legal scholars, and with good reason: See, e.g., I. Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council (2008);
26. see also my piece, 'Global Governance: The Problematic Legitimacy Relationship Between Global Civil Society and the United Nations', available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1265839
27. the best article on the general relationship of law and legitimacy is still Hyde, 'The Concept of Legitimation in the Sociology of Law' [1983] Wisconsin L Rev 379.
28. I draw here from the very interesting account of honour as a concept in moral psychology: J. Bowman, Honor: A History (2006).
29. Anderson, 'First in the Field', Times Literary Supplement no. 4974, 31 July 1998, at 4.
30. It will be evident that I am referring to what has come to be called 'lawfare'. I do not use the term here because I think it has been stretched beyond its original meaning of behaviour by combatants on the battlefield. See 'Lawfare', available at: http://kennethandersonlawofwar.blogspot.com/2004/12/lawfare.html (2004).
31. For a discussion of the differences between soldiers and policemen, with an emphasis on this issue of legitimacy, see Anderson, 'Remarks on the Differences Between Soldiers and Police', Panel on Law and Literature, ASIL Proceedings, 10 April 1997 (Theodor Meron, Chair).
32. To be more specific, Posner's objection is that one-sided bargains do not finally survive. My concern is somewhat different. It is that the concept underlying this kind of post hoc justice presumes the legal rules and legitimacy expectations of the use of force which really apply only in a settled domestic society, not war.
33. Anderson, 'Who Owns the Rules of War?', New York Times Magazine, 13 April 2003, at 38, available at: http://query.nytimes.com/gst/ fullpage.html?res=9904E1DF1138F930A25757C0A9659C8B63.
34. For the best current overview see P.W. Singer, Wired for War: The Robotics Revolution and Conflict in the 21st Century (2009). Many analysts have been focused, unsurprisingly, on cyberwarfare and law, the many questions, for example as to the legal status of the internet and cyberspace in wars built around technologies of information, command, and control, and beyond. In many ways, however, the more important revolution in military technology and the law will be robotics - questions of surveillance, targeted killing from remote platforms, and finally genuinely autonomous targeting and weapons systems.
35. See the discussion of these issues in a series of blog posts on robotics and war at Opinio Juris, 'Battlefield Robotics, A Very Brief Introduction', available at: http://opiniojuris.org/2008/05/20/ battlefield-robotics-a-very-brief-introduction/ (2008).
36. See www.darpa.mil/grandchallenge/overview.asp ('[i]t shall be a goal of the Armed Forces to achieve the fi elding of unmanned, remotely controlled technology such that ... by 2015, one-third of the operational ground combat vehicles are unmanned').
37. I discuss these issues in a forthcoming book chapter: Anderson, 'Violence by Political Decision: Defending the Domestic and International Legal Space of Targeting Killing', in B. Wittes (ed.), Legislating the War on Terror: An Agenda for Reform (2009), also available at: www.brookings.edu/press/Books/2009/ legislatingthewaronterror.aspx.
38. War is a phenomenon, says Brian Orend, which 'occurs only between political communities ... [it is] an actual, intentional and widespread armed conflict between political communities ... all warfare is precisely and ultimately about governance': Orend, 'War', in E.N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (2005), emphasis in original.
39. R.L. O'Connell, Ride of the Second Horseman: The Birth and Death of War (1997), at 5-8.
40. Geneva Convention I, Art. 50.
41. Geneva Conventions, Protocol I, Art. 85.
42. The text of statute is available at: http://untreaty.un.org/cod/icc/ index.html. Crimes currently within the jurisdiction of the Court are (i) genocide, (ii) crimes against humanity, and (iii) war crimes: Rome Statute, Part 2, Art. 5(1), which are defined in Art. 5(6)-(8). For the Statute see the ICC website http://www.icc-cpi.int/.
43. E.g., Geneva Convention III, Arts 12-31, 39-42.
44. See the text of the Alien Tort Statute at 18-19 and notes 38-42.
45. See, e.g., Vora, 'Federal Common Law and Alien Tort Statute Litigation: Why Federal Common Law Can (and Should) Provide Aiding and Abetting Liability', 50 Harvard Int'l LJ (2009) 195;
46. Dhooge, 'A Modest Proposal to Amend the Alien Tort Statute to Provide Guidance to Transnational Corporations', 13 U California Davis J Int'l L & Policy (2007) 119;
47. Roberts, 'The Agent Orange Case', 99 ASIL Proceedings (2005) 380;
48. Anderson, 'Declaration on Issues of the Laws of War, Corporate Liability and Other Issues of International Law in Agent Orange ATS Litigation', available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=901012 (2004), at 44-47;
49. Anderson, 'Reply Declaration on Issues of International Law, Laws of War, Corporate Liability in International Law in Agent Orange ATS Litigation', available at: http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=901020 (2005), at 20-25.
50. Anderson, supra note 28.
51. Schachter, 'The Invisible College of International Lawyers', 72 Northwestern U L Rev (1977) 217.
52. We could perhaps add Israel and its legal community as well, much as with the US and even courts of the EU as they go their own way on the matter of the binding power of the Security Council. See Cases C-402/05 P, Kadi v. Council of the European Union and C-415/05 P, Al Barakaat International Foundation v. Council of the European Union [2008] 3 CMLR 41. Israel's community of interpretation is idiosyncratic in part because of the intertwining of its civilian justice system with its military detention system; the nature of the long-running, usually low level but persistent, conflict has led to the long term involvement of the justice system with the military apparatus in ways which are quite special to that society. Those circumstances, plus the unique role of the Supreme Court of Israel in Israeli society, are so special to Israel and the Israel-Palestine dispute that I do not think they hold many broader lessons for other communities of legal interpretation. But it is its own community of interpretation, in the sense meant in the text.
53. Alien Tort Statute, 28 USCA §1350.
54. For an overview of ATS jurisprudence see Kochan, 'No Longer Little Known But Now a Door Ajar: An Overview of the Evolving and Dangerous Role of the Alien Tort Statute In Human Rights and International Law Jurisprudence', 8 Chapman L Rev (2005) 103.
55. Sosa v. Alvarez-Machain, 542 US 692 (2004).
56. Ibid., at 725.
57. Under the terms of the statute, jurisdiction is obtained only if there is a 'violation of the law of nations', and so a case goes nowhere if a violation cannot be made out. This is presumably what drives plaintiffs to allege that small numbers of people killed, for example, in street protests are actually 'crimes against humanity': Mamani v. Bustamente Case Nos. 07-22459 & 08-21063 (see plaintiff's pleadings) or that the use of a herbicide such as Agent Orange, whatever damage it may have caused, is part of 'genocide': Anderson, 'Declaration on Issues of the Laws of War, Corporate Liability and Other Issues of International Law in Agent Orange ATS Litigation', available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=901012 (2004), at 51-52. One might have thought that in a genuinely knowledgeable forum of international law, allegations on such a questionable basis would weaken the credibility of the party in the eyes of the court - in ATS litigation, however, plaintiffs seem to believe that they must try every avenue conceivable in order to show a law of nations violation, and that in dealing with US district courts they address judges who are both unlearned in the relevant international law and possibly sympathetic to the result even if not exactly consistent with the elements of law. On this point, plaintiffs' lawyers may well not be wrong.
58. I am - and I am a largely unreformed supporter of the US war on terror.
59. Hamdan v. Rumsfeld, 548 US 557 (2006), at 642.
60. Ibid., at 628-629.
61. For many years, the standard citation for the US view on customary law and Protocol I has been Matheson, 'Remarks, Session One: The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions', 2 Am U J Int'l L & Policy (1987) 419.
62. Those 'communities of interpretation' include international tribunals, human rights advocates such as Human Rights Watch, the ICRC, and many more, so the issue when laws of war standards are debated is far from minor. However one comes out on the proper approach to that question, one thing which seems particularly unpersuasive is to announce that the US is in violation of the laws of war and leave it at that, where the thing in question is a matter of Protocol I to which the US has not agreed - and not add that fact when issuing the press release to an inexpert public and media.
63. United Nations Handbook, 2008/09 (New Zealand Ministry of Foreign Affairs 2008, 46th annual edn.), 103.
64. UN, The United Nations Today (2008), at 290-291.
65. Kennedy, supra note 2 , at 27-28.
66. Ibid., at 28.
67. Gladwynn Jebb, quoted in R.C. Hilderbrand, Dumbarton Oaks: The Origins of the United Nations and the Search for Postwar Security (1990), at 257.
68. Anderson, 'The Past, Present, and Future of the United Nations: A Comment on Paul Kennedy and the Parliament of Man', Revista de Libros (Madrid), Nov. 2008, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1265833. I might inadvertently have raided that term from Glennon, 'Platonism, Adaptivism, and Illusion in UN-Reform', 6 Chicago J Int'l L (2006 ) 613.
69. Something I have called the 'leveraged buyout of the UN-that-works' - meaning the UN agencies which voluntary state and outside funders find reasonably functional and effective, and so are willing to pay for beyond the regular UN budget. See K. Anderson, Returning to Earth: Abiding Principles of Relations Between the United States and the United Nations (forthcoming 2009-2010).
70. M. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (1977), at 125 ff.