All posts by James G. Stewart

New Symposium – John Tasioulas’ Minimum Core Obligations in Economic, Cultural and Social Rights

I am four-fold excited to introduce this new mini-symposium featuring John Tasioulas’ groundbreaking work on “minimum core obligations” in Economic, Social and Cultural Rights.

First, I’m excited to debate Tasioulas’ two important new reports for the World Bank:

  • Minimum Core Obligations: Human Rights in the Here and Now (see here)

and

  • The Minimum Core of the Human Right to Health (see here).

Both are important contributions to the human rights field. In the former report, Tasioulas provides a sophisticated but accessible philosophical exploration of minimum core obligations, arguing that they represent a sub-set of Economic, Social and Cultural Rights that must be complied with immediately, thereby bypassing the doctrine of “progressive realization” that is a particular hallmark of the Convention on Economic, Social and Cultural Rights. In the latter report, he applies insights drawn from his initial conceptual work to the human right to health. In applying theory to this right, he synthesizes law and practice from international and regional systems, undertakes a comparative analysis of national law from seven states, then folds these principles into ideas about sustainable development goals and indicators constructed to measure their realization. For more detailed overviews, I direct readers to the Executive Summary and Introduction sections of each report.

Second, I am especially excited to host this symposium because it brings together some of the leading theorists and practitioners in the world. All of the eight commentators who have kindly agreed to respond to Tasioulas’ reports are eminent experts in different fields. All approach the problem from various disciplinary vantage points, providing us with a rich tapestry of perspectives on what is undoubtedly a central problem for modern conceptions of global justice. Although I will not provide more information about all the commentators for this symposium here, I do want to single out two, who I am especially honored to host. Martha Nussbaum’s work, first on the capabilities approach then on the relationship between emotions and justice, is a major influence on my thinking. I attempted to entice her to participate in an earlier symposium, to which she politely told me that she does not write for blogs, so I am especially privileged to host her in this instance. Similarly, Michael Kirby enjoys a reputation for being one of Australia’s leading judges ever and his work in human rights was a powerful inspiration to me when I first became interested in this area. I’m thrilled to host these and all the other outstanding commentators.

Third, I am particularly enthusiastic about the symbiosis between theory and practice this symposium promotes. In the blog’s manifesto, I set out how “although the blog will seek to engage with theoretical questions, it will also continuously attempt to create symbiosis with practice in an attempt to ensure that practice is defensible and theory is informed.” The aspiration is evident at multiple levels in this symposium. It is reflected, for instance, in the contributions of leading philosophers and a highly-regarded judge, by the transition from philosophy to application in the two reports, and in the practical orientation of the conceptual work for the World Bank. The symbiosis is also enabled by the multi-disciplinary perspective of the various commentators. The outstanding cast of scholars who offer criticisms of the work come from philosophy, law, medicine and international relations. I remain excited by the underlying method as well as the constructive disagreement it has generated, so hope that this type of exchange stimulates others substantively as well as methodologically.

Fourth, I am pleased that this debate contributes, perhaps implicitly, to wider discussions about the adequacy of human rights as responses to massive contemporary problems. For the longest time, human rights projected an image of political agnosticism, promising to act as a thin set of standards that preserved human dignity while allowing diverse forms of culture, religion, and political organisation to flourish around them. Increasingly, that image is disputed, in large part because human rights are perceived as inadequate responses to global inequality. If human rights did unintentionally become part of the problem in global injustice, however, this reality was likely at least partially the product of an over-emphasis on Civil and Political Rights. So, a stronger engagement with the often-times overshadowed Economic, Social and Cultural variants of international human rights promises to inform wider scholarly debates about the salience of the paradigm.

In all these respects, I am particularly excited to host what I believe is an important contribution to the field.

Legal Pluralism and Justice: A Reply to Critics

This symposium has embodied everything I sought to promote in establishing this blog. First and foremost, it has housed frank but respectful criticism. In our piece The Ahistoricism of Legal Pluralism in International Criminal Law, we saw an implicit deference to extant law in prescriptive accounts of Global Legal Pluralism that we did not think could be justified normatively. In pointing this out, we spent much time discussing how to frame the argument so as to communicate respect for a set of excellent scholars who had done so much to inform our thinking about these problems, then sought out their criticism once our piece was finally complete as a mark of this respect. In turn, they have offered equally courteous and frank responses to our arguments. In all, I am so pleased that the exercise has conveyed a commitment to the primacy of ideas, a recognition of the great intellectual value of critique, and an inclination on all our parts to metabolize whatever impersonal emotions arise from scrutiny. I hope this reply registers in that spirit and promotes that scholarly culture.

I begin by offering a set of clarifications, which I suspect the piece itself should have made clearer. Ours was never a total assault on Legal Pluralism. I continue to believe that it plays a crucial role in a number of areas, in particular through its ability to undermine what James Sákéj Youngblood Henderson calls “the colonial contrived superiority of European law.”[1] Anyone with even the most rudimentary understanding of law’s role in colonialism will know that withholding recognition of other pre-existing normative systems was a key element in this contrived superiority. In this light, Legal Pluralism is particularly important because it reasserts the authority of jurisgenerative communities other than the colonizing state while undermining rigid, hegemonic conceptions of what it means to have law. In many respects, this point explains our focus on state-made criminal law, even though this is deliberately a caricature of Legal Pluralism, as Paul Berman correctly points out. Nonetheless, as I will explain, our caricature eschews even more difficult problems for Global Legal Pluralism in an attempt to focus on a core of state law that Global Legal Pluralism’s deference to the legal requires it to embrace.

Reduced to its essence, our article was largely an attack on law as a necessary repository of moral, political, epistemic or cultural variation a cosmopolitan vision of global justice might seek to promote. Thus, we argued that Legal Pluralism’s method did not count against universal norms in the ways it claimed, in large part because it overvalued law. This point warrants emphasis. We do not argue that universal norms always solve the problems we point to across the board, which would be patently absurd. Instead, we mean to reverse the argumentative onus and place the burden onto the prescriptive account of Global Legal Pluralism, insisting that just managing whatever we consider to be law globally seems overly deferential to law. Our brief histories were, in the grand scheme of things, relatively superficial attempts to “scratch the surface” to see what lies beneath law. Having peered below the surface very briefly, we sought to point out how Legal Pluralism was not necessarily counter-hegemonic, since for a large set of what would constitute law, the hegemon had beat Legal Pluralism to the punch by imposing the law in the first place. Consequently, our aim was to warn that in prescriptive guise, the concept risked entrenching unjust norms.

We were, of course, conscious that history would never be able to “distinguish this superficial transplantation of domestic criminal law into the international realm, from potentially legitimate and useful reliance on national doctrines,” as Neha Jain rightly points out. Instead, we argued that the history of much of the world’s criminal law doctrine, both national and international, should undermine confidence that Legal Pluralism was necessarily respectful of genuine cultural variation, such that it could ground some concept of justice. Our first example of Argentine criminal law procedure operated as a null hypothesis where, by “scratching the surface,” we quickly found evidence of autonomous domestic ownership of and influence over criminal law doctrine. But in all our other examples, we found nothing similar. Far from stating that there was no congruence between local values and criminal law doctrine in any of these states, our argument was merely that these histories suggest real reason for caution against an idea that Legal Pluralism is, without more, worthy of veneration. We also felt that generic attempts to circumscribe Legal Pluralism’s over-enthusiasm for law, perhaps by citing human rights as an exception, came too late in the day because too much was already smuggled in through the initial deference to whatever law might be at the descriptive stage.

To develop this point, let me begin by recounting the descriptive and prescriptive variants of Legal Pluralism, since Global Legal Pluralism depends on both. Initially, Legal Pluralism was purely descriptive, tracing its origins to anthropological inquiries into the interactions between displaced social orders and formal colonial law. To the extent that the field drew on normative ideas within this descriptive mode, the need for this engagement largely grew out of challenges to methodology; i.e. objections to what should figure as “law” within the wider sociological inquiry. I circle back to this difficulty with defining law momentarily, since I have come to believe that it must be most acute in international criminal justice. For now, I again point to a major prescriptive shift for Legal Pluralism, where many scholars have begun to argue that diversity of social phenomena we are prepared to call law is not only empirically observable, but that this state of affairs is normatively desirable for the world. Global Legal Pluralism necessarily adopts both elements, first accepting a wide array of norms as constituting law, then recommending various institutional and procedural mechanisms for managing their interface. The caricature of Legal Pluralism the article offers was an attempt to hive off some of the most difficult problems at the descriptive stage, to highlight conceptual concerns with the transition from a descriptive to a prescriptive mode.

To explain this, let me start by agreeing wholeheartedly with Mireille Delmas-Marty’s eloquent statement that “choosing an exclusively state-centric perspective while the world is moving, the authors risk confining themselves to a state-centric, modern representation of LP which identifies with the rights of the state and makes the concept necessarily oxymoronic.” A theory of Legal Pluralism focused on state law alone would be oxymoronic. As our essay highlighted, “an over-emphasis on domestic criminal doctrine is anathema to true pluralism, whose very program involves looking beyond positivistic state-centered law.” Nevertheless, focusing on a segment of a field to elucidate conceptual concerns strikes me as entirely defensible. In our piece, we focused our analysis on state-centered criminal law in an attempt to avoid the wider jurisprudential problem involved in deciding what constitutes law at all. As Brian Tamanaha and many others have pointed out, that problem is a perennial thorn in Legal Pluralism’s side,[2] so we sought to bypass the conceptual impasse by criticizing a segment of the legal we believed was unambiguously so. I have since come to think that the positivistic assumption that informed this method was unjustifiable on our part, but in ways that radically strengthen our argument not detract from it.

Understandably, the rules crafted to bring about the atrocities international criminal justice seeks to address are the very subject matter legal theorists use to debate the nature of law. Since completing the paper, it has dawned on me that whether Nazi law was law at all is the paradigmatic debate for a large segment of jurisprudence; indeed the question goes to the heart of the relationship between law and morality and therefore operates as something of an acid test for so many aspects of legal theory. To cite what is probably the most celebrated example (in the Anglophone tradition), the Hart/Fuller debate is a long and in places heated dispute between the positivist tradition that would see law as identified through social facts quite apart from its moral value, and a natural law tradition that was shocked by the positivists’ willingness to confer normativity on a set of legislative enactments in Nazi Germany that were clearly morally perverse.[3] In many respects, the histories we discuss in the paper replicate these dilemmas. It stands to reason, therefore, that much of what we treat as law in the article might not be at all. This thought strikes me as very significant: it suggests that international criminal justice is not just a pleasant illustration of the normative interactions Global Legal Pluralism seeks to understand and manage. The field is at the heart of what Global Legal Pluralism means.

So, let me circle back to our caricature, showing how the natural law critique of our positivistic assumption only magnifies the concerns we raise. In our example of the inchoate crime of association de malfaiteurs in the Democratic Republic of Congo (see here, pp 33-41), we sought out a modern illustration of abhorrent criminal law doctrine in national systems comparable to the law “that allowed Joseph Stalin to sign 3,167 judicially-imposed death sentences in a single day, and Adolf Hitler to make being Jewish a criminal offence.” Our assumption, which I now think is highly disputable, was that this forcibly imposed inchoate crime of French then Belgian origins was unequivocally law; it survived the sieving off of law from religious, moral and social norms on the one hand, while distinguishing itself from the full range of non-obligatory propositions on the other. Once parsed out in this way, association de malfaiteurs was a law that both descriptive and descriptive theories of Legal Pluralism had to take seriously. Our project was to question whether Legal Pluralism should take it seriously at all, based only on its ability to pass this formalistic test. We used the apparent misalignment between local values and legal doctrine as our foil.

But Fuller, I suspect, would have doubted that association de malfaiteurs was law at all, then rebuked our positivistic attempt to avoid thorny jurisprudential problems as failed. But if our caricature fails for these reasons, it does so in ways that only galvanize our deeper point, namely, that “doctrinal pluralism is unsafe as a measure of diverse values and interests in the international community”. Perhaps Legal Pluralism is only about managing just law, such that the concept is instantly insulated from our criticism, but I see no evidence of this position in the literature with which I am familiar, and it would mark a sea-change for thinking about these problems. Then, to follow this jurisprudential line one step further in abstraction, the question becomes what the relationship is between Legal Pluralism and Justice. And here too, I now see this theme as a central but tacit pre-occupation in our paper as well as the literature more broadly. It is this unstated concern for justice, for instance, that leads scholars like Martti Koskenniemi to warn that Legal Pluralism “ceases to pose demands on the world;”[4] and Boaventura de Sousa Santos to assert that “there is nothing inherently good, progressive, or emancipatory about Legal Pluralism.”[5]

Justice is also useful in responding to criticisms based on the Rule of Law. In employing a Rule of Law frame, Kevin Davis’ excellent and thought-provoking critique of our article argues that “[d]octrines that confirm to people’s expectations are desirable, all else being equal, because they contribute to legal certainty and avoid situations that are tantamount to ex post facto lawmaking.” While there is certainly weight to this criticism, I am not sure how it squares with other principles espoused in the Rule of Law. As Waldron points out, avoiding contradictions in the law is also one of Fuller’s eight elements in the internal morality of law, and others like Dicey viewed legal equality as indispensable too.[6] Universality appears better able to achieve these competing values. But more fundamentally, as critical traditions from Feminisim to Marxism teach us, Rule of Law arguments are all vulnerable to deeper normative commitments that take some notion(s) of justice as the paramount goal. To offer an illustration from our paper, even if we do assign legal certainty primacy as an Rule of Law value, I am doubtful that it could ever ground a norm like association de malfaiteurs in the Congo. I hold this view since a norm imposed by force as part of a brutal campaign of subjugation and plunder, which operates to inhibit political participation and freedom of expression now, seems plainly unjust.

Markus Dubber’s response takes us down a slightly different track on this justice path, where he argues that “[p]luralistic international criminal law thus becomes international criminal law kind and gentle enough to mollify its protagonists’ latent concerns about its apparent lack of legitimacy”, and then later that, “[i]ncapable of facing its legitimacy challenge head-on, international criminal law instead makes do with professions of concern about ‘pluralism’.” These types of normative concerns are slightly different to those that animated our paper, but they also play off the relationship between law and a conception of justice. So, while I view Legal Pluralism as a helpful concept to ward off “the colonial contrived superiority of European law” and agree with Sasha Greenawalt that, descriptively speaking, Legal Pluralism is inherent, I remain convinced that history is a useful mechanism to illustrate the concept’s shortcomings as a guarantor of justice. I have also become convinced that, far from raising questions that are peripheral to Global Legal Pluralism, international criminal justice poses problems at the concept’s very heart.

I am so thankful for all of the excellent criticism we have received, which has enriched my thinking considerably. I hope that some of the foregoing is useful to others as they grapple with problems of law in the global order.

 

[1] James (Sákéj) Youngblood Henderson, Postcolonial Indigenous Legal Consciousness, 1 Indig. Law J., 2 (2002), http://jps.library.utoronto.ca/index.php/ilj/article/download/27710 (last visited Apr 19, 2018).

[2] Brian Z. Tamanaha, Understanding Legal Pluralism: Past to Present, Local to Global, 30 Sydney L. Rev. 375, 375 (2008).

[3] H. L. A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. Law Rev. 593–629 (1958); Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, 71 Harv. Law Rev. 630–672 (1958).

[4] Martti Koskenniemi, The Fate of Public International Law: Between Technique and Politics, 70 Mod. L. Rev. 1, 23 (2007).

[5] Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation 89 (2002).

[6] Jeremy Waldron, Legal Pluralism and the Contrast Between Hart’s Jurisprudence and Fuller’s, in The Hart-Fuller Debate in the Twenty-First Century (Peter Cane ed., 2010).

New Symposium: The Ahistoricism of Legal Pluralism in International Criminal Justice


I am very pleased to host a new mini-symposium on a long article I co-authored with Asad Kiyani, entitled the Ahistoricism of Legal Pluralism in International Criminal Justice. Because of length constraints, the American Journal of Comparative Law could only publish a shorter version of the piece, so with their blessing, Asad and I have decided to publish the longer version online and invite a series of excellent scholars to debate this longer version as part of this blog’s commitment to curating respectful critique of new scholarship. The longer version we discuss here contains a fourth part focused on criminal law procedure in Argentina and post WWI trials in Europe. In this additional part, we use these two illustrations, first as a counterexample that acts as a null hypothesis for the remainder of our piece, then as a qualification of this initial counterexample. We are thrilled to have an eclectic group of scholars who work on these issues from different disciplinary backgrounds criticize the piece, and hope that the dialogue spawns further debate within legal pluralism as well as international criminal justice. The article’s abstract follows: 

International criminal law (“ICL”) is legally plural, not a single unified body of norms. As a whole, trials for international crimes involve a complex dance between international and domestic criminal law, the specificities of which vary markedly from one forum to the next. To date, many excellent scholars have suggested that the resulting doctrinal diversity in ICL should be tolerated and managed under the banner of Legal Pluralism. To our minds, these scholars omit a piece of the puzzle that has major implications for their theory – the law’s history. Neglecting the historical context of the international and national criminal laws that inform ICL leads to (a) the uncritical adoption of criminal law doctrine as a proxy for diverse social, cultural and political values; and (b) in the limited instances where criminal law doctrine does reflect underlying societal values, an overly general assumption that respecting the various embodiments of this law is best for ICLThese oversights result in important normative distortions, with major implications for the field’s self-image, function and legitimacy. In particular, scholars and courts overlook that much criminal law doctrine globally is the result of either a colonial imposition or an “unsuccessful” legal transplant, as well as historical examples where respecting pre-existing doctrinal arrangements undermined the value of postwar trials on any semi-defensible measure. In this Article, we revisit a cross-section of this missing history to contribute to both Legal Pluralism and ICL. For the former, we demonstrate that there is nothing inherently good about Legal Pluralism, and that in some instances, a shift from its descriptive origins into a more prescriptive form risks condoning illegitimate or dysfunctional law. For ICL, our historiography shows how partiality is embedded in the very substance of ICL doctrine, beyond just the politics of its enforcement. At one level, this realization opens up the possibility of renegotiating a universal ICL that, at least in certain circumstances, is actually more plural in terms of values and interests than doctrinal pluralism (although the dangers of power masquerading as universalism are also profound). At another, it suggests that institutions capable of trying international crimes need to do far more to step away from the ugly legal histories they have inherited. 

Before we begin the mini-symposium, a word from behind the scenes. First, this piece resulted from an excellent collaboration between Asad and I. As the article attests, Asad and I were very equally involved in all facets of its production, including design, research, (re)writing, editing and workshopping. The collaboration was a great pleasure, from which I learned a lot. In terms of process, this project consumed a tremendous amount of energy. On more than one occasion, we concluded that we had to rewrite large sections. The history of the criminal law in entire regions of the world was excised with the stroke of a pen, entire subject-areas were calved off after more than one person said we had two papers here not one, and several times, we concluded that despite already having spent years on it, we had to begin new research on different periods and legal systems. I think I speak for Asad as well when I say that we learned a great deal through this project and are very pleased to see it completed and debated by so many outstanding scholars whose work we admire. 

Compartmentalizing Transitional Justice


In August this year, three French investigating judges were appointed to assess allegations that the Bank BNP Paribas was complicit in the Rwandan Genocide. According to the Financial Times, “[t]he bank is accused of transferring more than $1.3m of funds used to finance the purchase of 80 tonnes of weapons by a Rwandan general that allegedly broke a UN embargo and helped to arm the perpetrators of the country’s genocide.” Because much of my scholarly engagement with international criminal justice has focused on these sorts of allegations, for better or worse, I tend to assess normative accounts of the field with cases like this in mind. In what follows, I use the BNP Paribas case as a theme in commenting on Colleen Murphy’s excellent book, entitled The Philosophical Foundations of Transitional Justice (CUP, 2017). In part, I use this frame to shed light on an element of atrocity’s etiology that, in popular imagination at least, still seems shrouded in denial. More importantly for present purposes, though, I wonder if cases involving business participation in atrocity might offer a slightly different vantage point from which to evaluate conceptual models of transitional justice.

Murphy’s insightful account of the field points to four different features of societies in transition that make justice claims in these contexts a breed apart from those that apply in stable democracies. Contrary to Posner and Vermeule, Murphy eloquently argues that transitional justice is not like normal justice; it is qualitatively different because of the fundamentally distinct circumstances that constitute periods of political transition. As she explores in great depth, these surrounding political circumstances include: (a) pervasive structural inequality; (b) normalized collective and political wrongdoing; (c) serious existential uncertainty; and (d) fundamental uncertainty about authority. The combination of these circumstances in transitional contexts means that ordinary ideas of retribution, corrective justice, and restitution do not cater to the needs of affected societies. The misfit with these usual concepts of justice is so acute that we must craft an entirely new, distinct brand of justice that follows its own logic and answers to its own self-consciously defined first principles.

There is much I am attracted to in this approach and its brilliant execution. Let me start by pointing to the project’s apparent grounding in philosophical pragmatism. Surely, concepts of justice are context-sensitive. Undoubtedly, a major part of the problem for the field lies in avoiding blunt universalisms that do further violence to societies struggling to shed the heavy yoke of mass violence. At the same time, Murphy is clearly aware of the dangers of venerating the local at all costs; she astutely highlights the difficulties with over-correcting in favor of the local where she observes that “[r]adical contextualism can be just as problematic as an un-nuanced universalism.” (p. 81). Thus, transitional justice is philosophically pragmatic (by the by, I use this tradition to think about corporate responsibility here). Yet, if the concept of justice in transitional justice will always be context-sensitive, this leaves me wondering about the borders between the local and universal in Murphy’s self-contained concept of transitional justice, how this compartmentalized approach to justice will interface with others in a global society, and whether modulations in type of actor will affect the theory.

To begin, I am not entirely clear whether the BNP Paribas case falls within the bounds of transitional justice, on Murphy’s thoughtful definition or any other. On the one hand, it makes sense to treat the case as an element of transitional justice, assessing it against the very insightful standards Murphy has articulated. Apart from the alleged causal link to the genocide, our ability to alleviate the four characteristics that are particular to transitional societies is probably heavily dependent on transforming business—absent global economic revolution, post-conflict societies desperately need direct foreign investment that makes its way to people in survival economies instead of fuelling kleptocratic governments, corrupt patronage networks and brutal armed groups. On the other hand though, foreign economic actors are not clearly part and parcel of the affected society, precisely because they are outsiders culturally and geographically. The primary community of interest in discussing the moral legitimacy of the BNP Paribas case is likely French, not Rwandan, so the conceptual standards we would employ to scrutinize the case’s conceptual propriety lie beyond the special realm of transitional justice.

If the borders of a siloed concept of transitional justice are slightly unclear, the foregoing leads me to wonder about whether there is a geographical element to this theory. Are the principles of justice that govern transitional justice necessarily linked to features of a discrete, local political order? In other words, Murphy’s argument skillfully implies a plurality of justice (not just law), but I wonder if the different compartments of justice we create by disaggregating the concept aren’t overly geographically bound. We rightly think of Gacaca, the Rwanda Tribunal, and a host of other institutions and programs undertaken in Rwanda as falling within the transitional justice paradigm, in large part because the four characteristics that constitute the transitional paradigm stem from a single society reeling after mass violence within a single country. But importantly, the causal factors that gave rise to these atrocities were not geographically constrained in the same way. Foreign businesses in non-transitional societies allegedly contributed to the Rwandan Genocide too. So, which concept of justice—which set of principles—will govern the BNP Paribas case?

A causal account of atrocity might also suggest different rationale for justice. In her helpful discussion, for instance, Murphy points out that retribution does not easily match the needs of transitional societies since it assumes that wrongdoing is “deviant, individual and personal.” (p. 59). To focus just on deviance, the argument is that accountability is usually predicated on infrequent transgressions within an otherwise compliant society, so the retributive model collapses under the weight of widespread, normalized mass violence. Personally, I have always harbored vague misgivings about this argument, since it seems to assume a very temporally static, geographically bound notion of deviance (crimes in Nazi Germany were normalized at the time but deviant by even local standards measured before and after the war, and similarly, crimes in Rwanda were normalized there in 1994, but judged deviant by a thin concept of global community even at the time). Both these intuitions are very disputable, but there is another that business cases help bring into sharper relief—perhaps the actions of a particular foreign company implicated in atrocity were highly deviant even when violence was normalized for local citizens?

So, if the validity of justifications for punishment turn on which justice paradigm we choose and the type of actor implicated, these realities invite a wider set of reflections of how a compartmentalized concept of transitional justice interfaces with others in a globalized society. Here too, I wonder if the self-contained account is water-tight. For example, if globalization was born in colonialism, and actions of many foreign companies represent modern iterations of longstanding commercial practices consummated there, is there not a risk that a state-centric, geographically grounded concept of transitional justice will overlook the long history of foreign actors fomenting bloodshed for profit that at least dates to Leopold in the Congo? As for the present, what can we say about spikes in global demand for coltan for cellphones, tin for circuit boards and now cobalt for car batteries playing an important causal role in bringing about the mass violence transitional justice exists to remedy? Is there a danger that the very structure of transitional justice will leave these out?

Perhaps even the element of “transition” lends itself to this concern. Murphy rightly cites to a literature that queries whether transition matters to transitional justice, but cases like BNP Paribas add a new angle to those perspectives. In a conversation I had recently with the leading Argentine prosecutor of dictatorship-era crimes, he explained that as far as he could tell, the transition only implicated a particular cadre of political elites: “as for the businesses that supported the dictatorship, they remained the same before and after the transition.” If corporations are merely auxiliary to brutal authoritarian rule, this commercial continuity across political transition is probably less problematic, but if businesses enjoy a major share of power in affected communities, political regime change may not constitute a transition sufficient to move us into an analytically separate justice paradigm. Thus, for the businesspeople, it can be unclear what moral work the transition does in militating for or against their accountability.

I hope some of the foregoing provides useful food for thought, albeit from a relatively non-traditional vantage point. Without doubt, Professor Murphy’s rich and important book will animate discussions such as these for decades to come.

New Symposium: The Conceptual Foundations of Transitional Justice


Colleen Murphy has written an excellent and important book, entitled The Conceptual Foundations of Transitional Justice (CUP, 2017), that a distinguished set of scholars from a range of disciplines begins to discuss. The rise of Transitional Justice as a distinct field over the past several decades has enjoyed much excellent literature, but Colleen Murphy’s new book is among the first to offer a dense philosophical account of the field. Necessarily, this account will hold much of interest to scholars from philosophy, but it will also have implications for international lawyers, criminal law theorists, international criminal lawyers and human rights scholars. This blog also seeks to showcase groundbreaking, normatively creative new works that reach a broad array of scholars and practitioners alike, and this book certainly meets that mark. The Conceptual Foundations of Transitional Justice will, no doubt, be a major contribution to the field and discussed for decades to come, so it is a great pleasure to begin those conversations with an expert cast of highly accomplished scholars and leading practitioners.  

I will not provide a detailed overview of the book except to highlight important themes.  In Chapter 1, Murphy starts be plotting the circumstances of transitional justice, which she argues demonstrate four elements. Justice in transitional societies is different in type because these societies experience all of the following: (a) pervasive structural inequality; (b) normalized collective and political wrongdoing; (c) serious existential uncertainty; and (d) fundamental uncertainty about authority. In Chapter 2, Murphy argues that ordinary ideas about retribution, corrective justice, and restitution do not cater to the needs of societies undergoing transition according to her definition. These segments of the book are richly informative about both the political context of transitional society, and their intersection with philosophical bases for different theories of justice. The resulting account rejects Posner and Vermeule’s notion that Transitional Justice is just like ordinary justice, positing the existence of a conceptually self-contained set of principles governing the field. In Chapter 3, Murphy provides a substantive account of societal transformation, drawing on relational transformation, rule of law and relational capacities. In Chapter 4, she highlights constraints on this transformation, based on whether Transitional Justice initiatives are “intrinsically fitting or appropriate as a response to victims or perpetrations of wrongdoing.”  

I am excited to host a range of leading experts from a variety of fields.  Roger Duthie and David Tolbert are the Director of Research and President of the International Center for Transitional Justice respectively, an organization which works with victims, civil society, and national and international organizations within countries that have endured massive human rights abuses. Duthie and Tolbert provide fascinating commentary on the book through the lens of the ICTJ’s active work.  Laurel Fletcher directs the International Human Rights Law Clinic at UC Berkeley, School of Law, adopting an interdisciplinary, practical approach to human rights issues.  Fletcher’s contribution speaks to the lack of theoretical grounding in the field of transitional justice up until now, and what impact the adoption of a moral philosophy might have.  The work of Nir Eisikovits of University of Massachusetts Boston focuses on philosophy and applied ethics, in particular the ethics of war and political philosophy.  He describes Murphy’s book as “the best, most ambitious philosophical account of transitional justice” he has ever read and points to important implications arising from it. And last but not least, Steven Ratner at University of Michigan Law School focuses on Murphy’s call for “an original methodological hook for analyzing the justice of a state’s transitional justice choices,” exploring the legal ramifications of Murphy’s theories.  My own comments offer thoughts about compartmentalizing transitional justice, using cases against foreign businesses as a vantage point.  

As an ensemble, I hope the resulting body of perspectives showcases this important work and offers fresh ideas for future thinking.  

An Open Invitation to Further Debate (Instead of an Amicus Brief)


In organizing this mini-symposium, I sought to engage expert reactions to my paper from a range of legal systems that have not featured in debates about forms of attribution in ICL. When international courts and tribunals construct(ed) these forms of attribution, they initially drew heavily on Anglo-American jurisdictions, adopting concepts like superior responsibility and joint criminal enterprise from them. Then, judges at the ICC announced a major swing towards notions of criminal responsibility derived from German criminal law, including co-perpetration, theories of control to distinguish perpetration from complicity, indirect co-perpetration and even perpetration through an organization to treat those doing the bloodletting and their masterminds as perpetrators. Throughout this process, nobody appears to have asked experts in systems that adopt a unitary theory of perpetration, which dispenses with all these doctrines, to reflect on the law within their own countries and its potential as a solution to recurrent problems with blame attribution in ICL. This silence has been quite strange, especially when the Nuremberg Tribunal applied a unitary theory of perpetration and several modern ICL judges have argued that the current complexity is unnecessary.

This mini-symposium has broken new ground in this regard, in ways that I hope sets the scene for further scholarly research and debate. I was especially grateful that a range of criminal law theorists from each of the countries I write about in the paper agreed to criticize the paper, and that some very prominent practitioners joined the fray to offer their reflections too. As is evident from this blog’s manifesto, I deliberately seek to create dialogue between theorists and practitioners, so I am thrilled that this discussion has involved members of both groups. Some of the feedback I received was striking—during the course of this online symposium, a senior prosecutor at one international court and a defense counsel for a well-known defendant at another emailed me saying they wholeheartedly agree with the need for a unitary theory. The latter even suggested that I file an amicus brief calling on one particular tribunal to revert to the unitary theory of perpetration adopted at Nuremberg. I politely declined, but decided to open up this final post to whomever wanted to share an opinion one way or the other, provided that it respected the strictures of the blog’s manifesto.

Instead of defending the unitary theory of perpetration or either of the article’s I’ve written about it (see here and here) in this post, I use this opportunity to set the scene for an open online discussion at the base of this post by reiterating what a unitary theory is and by summarizing the excellent posts that appeared in this symposium.

To begin, let me again highlight the three main variations of the unitary theory of perpetration to avoid commentators speaking past one another. The unitary theory of perpetration comes in three principal varieties, although some might contest whether the third species really fits within the genus. The first, known as a pure unitary theory, treats a causal contribution to a crime coupled with the requisite blameworthy moral choice announced in the criminal offence charges as necessary and sufficient elements of responsibility (excuses and justifications aside). On this view, the various forms of participation that exist in current ICL (aiding and abetting, JCE, co-perpetration etc.) are stripped of their autonomous existence and folded into a more capacious single notion of attribution. So, instead of attempting to manufacture fine-tuned rules that define JCE, aiding or any other form of participation in such and such a manner, a unitary theory of perpetration places them all in a big pot, then boils them all down to their shared normative essence. Through this distillation, blame attribution involves deciding whether accused X is responsible for crime Y based on settled core principles that pay no regard to the form participation takes, leaving their moral significance to be assessed post hoc by judges at the sentencing phase of a trial.

The second variant provides more detail without compromising the unitary theory’s core commitments. Known as a functional unitary theory, this iteration provides more guidance while insisting that causation and the mental elements announced within the criminal offense charged are necessary and sufficient bases for establishing wrongdoing across all forms of participation. To ensure that would-be criminals are sufficiently forewarned of their exposure to criminal law penalties, a number of states adopt this variant of a unitary concept—the general part of a criminal code or legislation articulates the different forms of causal connections that might apply within a unitary framework. In this sense, responsibility might involve carrying out the offence personally, instructing others to do so, providing necessary assistance, or furnishing assistance that is readily available elsewhere. Each of these forms of causation is announced within the law so as to inform the public of how they might attract criminal responsibility, but the underlying objective and subjective elements beneath these descriptions remain the same.

Third, some argue that subjecting accomplices to the same range of punishment as perpetrators also constitutes a weak type of unitary theory. In Germany (and the many jurisdictions that follow its example), aiders and abettors are sentenced to a maximum of three quarters of the penalty for the offense they facilitate, whereas the sentence for instigators is taken from the same sentencing range as principals. To a large extent, this discrepancy in maximum sentence drives the need for differentiating between perpetrators and accomplices, even if, as Markus Dubber has observed, “[r]emarkably little effort is spent on justifying this differentiation”.[1] Nonetheless, this differentiated approach, whose purpose is partly to determine the applicable range of sentencing, generates a tendency to look upon systems that formally equate sentencing ranges for perpetrators and accomplices as soft iterations of the unitary theory. France and England, for instance, do just this. For my purposes, though, I do not consider this an example of the unitary theory because it places no restriction on the substantive elements of forms of attribution, whereas truly unitary theories do.

With the stage set, I next situate the various expert responses to this mini-symposium, grouping them into those who also advocated for a unitary theory in ICL, those who were more ambivalent about whether their national experience served as much of a template for ICL, and one who was positively unconvinced.

In the first of these categories, Judge Baragwanath’s excellent post reminded us that there are actually many jurisdictions that fit within variants two and three, even if they might not describe themselves as unitary theories of perpetration. My own country of origin, New Zealand, begins the provision governing parties to offences by stipulating that “[e]very one is a party to and guilty of an offence who,” before articulating different forms of participating in a consummated offence. Judge Baragwanath’s post is so useful because it not only highlights that New Zealand’s criminal law is, in important aspects, unitary, but it also shows how a series of cases in England, Australia and Hong Kong have been struggling with whether to tie mental elements in forms of participation to those in the offense announced in ways that mimic the unitary theory. Despite backsliding in some courts, there is a discernable modern trend in this direction. His post reminds me that the States of New York and California have an even more intense unitary theory of perpetration. In any event, in describing “modes of liability” as “unnecessary,” Judge Baragwanath argues that “international criminal procedure, already complex and expensive, adds to those problems by forcing itself to leap over self-created non-existent hurdles.”

Filippo de Minicis’ post is similarly minded. Filippo is a presently Legal Officer in the Office of the Co-Investigating Judges in the Extraordinary Chambers in the Courts of Cambodia, but he was originally trained in Italian criminal law, which as I show in the article, also discarded a differentiated system of blame attribution in favor of a unitary alternative almost a century ago. Filippo argues that when looking at standards of attribution before ad hoc international criminal tribunals (i.e. in customary international law), there is “little difference in the required actus reus,” and “a sufficient homogeneity on the mens rea side.” Filippo concludes after a decade working with these standards that a unitary theory is both viable and preferable, but he is also circumspect about whether any theory is perfect and, as was the case with New Zealand, shows how Italy’s commitment to the unitary theory is not absolute since Italy too appends a type of common purpose doctrine that approximates to JCE. Reality, it turns out, is complicated. Despite this, Filippo joins Judge Baragwanath as an advocate for the adoption of the unitary theory in ICL.

Other commentators are more ambivalent. Professor Carlos Eduardo A. Japiassú, for instance, highlights how Brazil’s unitary theory has slowly changed over time, shifting from a pure version to a functional one (which he calls “mixed”). While Professor Japiassú also speaks of a certain legal conservativism in Brazil, which I take to imply a lack of desire to shift back to a differentiated system that employs different substantive tests for different stand-alone forms of participation, he ends by concluding that “it remains unclear whether a pure rendition of this theory or a mixed variant like that now applicable in Brazilian Penal Law is a good alternative for International Criminal Law or International Criminal Courts.” Similarly, Professors Iryna Marchuk and Jørn Jacobsen discuss important scholarly criticism of the unitary theory in Denmark and Norway respectively as well as partial retreats from it in recent doctrine, before also questioning their system’s value as an exemplar for ICL.

Finally, in the third category, Judge Albin Eser’s masterful critique exemplifies disagreement with the unitary theory. In many respects, his is a brilliantly concise defense of the structure of blame attribution currently in place in ICL and a deft rebuttal of the arguments in the paper. The series of questions he poses are skillfully listed as issues he would need to be convinced of to accept that a unitary theory is optimal. These start with the argument that different forms of participation actually better track real life, move to the idea that a unitary theory cannot justify why they are addressed at sentencing along, then shows how unitary theorist essentially overlook that these questions will arise at sentencing anyhow. Then, he argues that “the only practical advantage the unitary theory so far seems to offer is a procedural one,” but he sees no procedural advantage here either. Ultimately, he concludes by correctly pointing out that even if we do have a differentiated system of blame attribution in ICL because powerful western states forced it on others, this says nothing about the theory’s conceptual integrity. A unitary theorist would, of course, contest each of these steps, but Eser’s brilliant critique is a wonderful counterpoint.

So, instead of labouring my own perspective any further here, I make space for other scholars, experts and practitioners to weigh in on these debates, which strikes me as a better idea than filing an amicus brief. I have therefore opened this post to comments, and anyone can post their views directly. In order to help ICL practitioners share their views (I recall many hours debating these questions with colleagues in war crimes tribunals), I’d like to offer a procedure through which you can legitimately (I hope) bypass the need for institutional approval to publish. If your institution is agreeable, I will post thoughts and reflections from practitioners anonymously. I would not normally do this through the post, so if want to remain anonymous, please send me your comments by email at stewart@law.ubc.ca. Your email message to me should include your title and the institution you work for, but I undertake to keep this information entirely confidential, posting only your thoughts and reactions on this topic. For the rest of you, the post is open.

[1] Markus D. Dubber, ‘Criminalizing Complicity: A Comparative Analysis’, (2007) 5 Journal Int Criminal Justice 984 ff.

New Symposium: The Strangely Familiar History of the Unitary Theory of Perpetration

To date, I have largely used this blog to host debates about other people’s scholarly work. In this instance, I wanted to host a discussion about an article I authored for a Festschrift in honor of Yale Professor Mirjan Damaška, which is entitled The Strangely Familiar History of the Unitary Theory of Perpetration. I thought to invite a range of judges, expert practitioners from international criminal law (“ICL”) institutions as well as scholars from countries that adopt the theory of blame attribution I advocate for to comment on the idea of abandoning “modes of liability” in ICL entirely. Somewhat strangely, the long debates about these questions in the field have mainly involved academics from dominant Western countries, but none of the world’s leading experts from jurisdictions that adopt the unitary theory of perpetration have had an opportunity to engage with the debate about whether we should have forms of participation in ICL or do without them as per their own national systems. Both the article and this symposium are an attempt to bring these perspectives to the fore without, of course, prejudging how these particular commentators will see the issues in question or respond to my treatment of them in the article.

I begin by introducing the discussion’s relevance for international law. To do so, I reiterate an argument I recently made about the significance of these issues for global governance. Modes of liability, or forms of attribution as they are probably better labelled, can be fairly arid, technical, technocratic concepts in the theory of criminal law that are not normally of great interest to international lawyers. But I want to depict them in a way that highlights their great regulatory potential on an international plane. If one thinks of all of the harms in the world on the one hand, then all of the actors operating globally on the other, modes are attribution are those devices that exist between these two sets, reaching into the ocean of actors to tie them to particular atrocities. One can therefore understand how these concepts can have huge implications for global regulation, even though they are cast in fairly technocratic language that can be quite alienating to international lawyers. Of late, there is seemingly a rising recognition of this fact for a variety of global issues, including counterterrorism, foreign assistance, and business.

Against this backdrop, let me introduce the unitary theory. A unitary theory of perpetration is one that does not espouse different legal standards for different forms of participating in crime. So, whereas modern international courts and tribunals employ different legal tests to differentiate aiding and abetting from joint criminal enterprise, superior responsibility and indirect co-perpetration, a unitary theory of perpetration condenses all of these standards into a singular unified standard that only requires a substantial causal contribution to the consummated offense together with the blameworthy moral choice announced in the crime with which the accused is charged. It is worth noting, however, that there are pure, functional and sentence-based variants of this unitary theory (for discussion, see here, pp. 8-10), which come with different contours. For present purposes, however, the key aspect of the unitary theory I want to emphasize is that the formal legal elements of blame attribution remain constant across the different relationships actors bear to atrocity.

Initially, international courts employed a unitary theory of perpetration in practice. Although the Nuremberg and Tokyo Charters explicitly enumerated different forms of attribution, the Nuremberg Tribunal itself often just considered whether an accused was “concerned in,” “connected with”, “inculpated in” or “implicated in” international crimes. As many leading commentators now accept, this approach entailed a functional unitary theory of perpetration, namely, a system of blame attribution that declined to disaggregate modes of participation into formal legal concepts like aiding and abetting, superior responsibility or JCE, instead holding the substantive elements of blame attribution constant across the various roles different actors might play. In the modern era, however, ICL absorbed dominant Western doctrine to supplant this history, first from the Anglo-American system then from Germany. Whatever one might say about these shifts as matters of customary international law, it is striking that neither set of practices was informed by the experience of states throughout the world that had abandoned modes of liability. This article and mini-symposium introduce that missing comparative experience.

Conceptually, this article is the sequel to a more conceptual piece I authored some years ago entitled The End of Modes of Liability for International Crimes. In that earlier article, I had argued that a conceptually coherent concept of complicity involves its disappearance into a more capacious single notion of perpetration, and that by the same analytical method, all modes of liability in international criminal law should suffer a similar fate. Having worked on these issues for many years as a practitioner before coming to the theory, my sense was that practically speaking too, the unitary theory of perpetration offered a way out of a difficult legal morass for practitioners. In my experience, standards for blame attribution are sometimes harsh, often unprincipled, in a constant state of flux and inconsistent with the expressive aspirations of the field across diverse cultures. At the very least, then, my hope was to invite robust scholarly defenses of the system in place. Moreover, I was particularly motivated to undermine the justification, which I heard a lot in practice, that the existing approach in ICL is defensible because several large Western states adopt it. To my mind, that argument is not sound.

Several prominent scholars, whose work I respect, have since offered helpful defenses of the differentiated system in response to my earlier argument (see Werle and Burghardt, Jackson, Steer). Although these excellent initial works certainly advance the debate, I am also convinced that the comparative experience I attempt to offer in The Strangely Familiar History of the Unitary Theory of Perpetration represents another important piece of the puzzle that has not figured in these debates before now. In the hope that others will pick up on aspects of these discussions to defend the differentiated approach or deepen thinking about the unitary theory, I am excited to host a range of prominent judges, one practitioner, and a host of leading scholars from each of the jurisdictions I discuss to participate in this mini-symposium (see list of commentators here). I am honored to have leading experts speaking for their own hitherto neglected legal traditions.

 

The Historical Importance of the Kouwenhoven Trial

Last month, a Dutch Court of Appeal convicted Dutch businessman Guus Kouwenhoven for complicity in war crimes that were perpetrated in Liberia and Guinea a little less than two decades ago. Kouwenhoven was a timber merchant, who also shipped weapons to the Liberian President Charles Taylor in clear violation of UN arms embargoes, which Taylor used to brutally terrorize civilian populations. The Kouwenhoven judgment is now available in English (see here). I know something of the backstory behind the case through the work of Global Witness, have benefited from Dieneke De Vos’s very helpful overview of the judgment (see here), and learned from Ruben Carranza at the International Center of Transitional Justice’s discussion of the trial’s significance as part of broader aspirations for economic accountability in transitional justice (see here). In what follows, I consider the self-consciously provocative claim that Kouwenhoven is among the most important war crimes cases in the history of international criminal justice.

There are several reasons why the Kouwenhoven case might come in at the top of a ranking of war crimes trials, if one were prepared to undertake such a strange exercise. No doubt, readers will object that the assumptions underlying my prioritization go largely unannounced, are highly contentious, leave much out that others might place greater weight on and presuppose the propriety of criminal law trials as a response to atrocity in the first place. All this I concede, but to guard against the possibility that this precedent’s potentially tremendous implications for this and associated fields might escape detection by relevant audiences, I here set out a brief series of reasons why the case may well live up to the grandiose billing I  assign it. Also, because comparing this case to the Hissène Habre trial in Senegal, the Justice Case at Nuremberg and the prosecution of war crimes in civil wars for the first time at the ICTY would involve unnecessary political insensitivity, I avoid all comparison by merely highlighting the Kouwenhoven case’s claim to the title.

To begin, the Kouwenhoven case brings accountability to the worst elements of the arms trade in ways that are almost entirely unprecedented. I will not labor the characteristics of the dark side of the global trade in weaponry, except to point out that authors like Andrew Feinstein paint a harrowing picture of it. Before now, the very worst weapons transfers to regimes bent on mass violence have taken place in a regulatory vacuum characterized by the almost perfect absence of all forms of accountability. Violations of UN-imposed arms embargoes, for instance, have stimulated almost no legal scrutiny. I say “almost” because a study I undertook together with a team of researchers some years ago of all UN arms embargo violations as documented by UN Panels of Experts since 1993 discovered that of 502 alleged violations, only 1 led to legal accountability for sanctions violations.[1] Against this backdrop, the Kouwenhoven case is the first that holds a nefarious arms vendor responsible for complicity in African atrocities.

In so doing, the case complements other regulatory initiatives. As many will know, the signing of a UN Arms Trade Treaty has sought to make the human rights and humanitarian law records of end-users relevant to the legality of transferring weapons to them. The adoption of the treaty is salutary, long overdue, and aside from its own regulatory effect, it helpfully draws attention to the tremendous social upheaval caused by what Harold Koh once described as “a world drowning in guns.” At the same time, the very idea that a new treaty should be needed to make the human rights and international humanitarian law records of end-users relevant to the legality of transfers will likely leave criminal lawyers and moral theorists slightly perplexed; the pre-existing notion of complicity already achieves that purpose. By enforcing this pre-existing norm, the Kouwenhoven case employs expressive condemnation to transmit the underlying moral principle across surrounding initiatives.

In addition, the contours of the version of complicity the Kouwenhoven trial employs helps overcome the ubiquitous but overly restrictive debate about the doctrine in Business and Human Rights.[2] For many years, litigation brought predominantly under the auspices of the now (nearly?) defunct Alien Tort Statute debated whether an accomplice must share a principal perpetrator’s purpose to carry out an international crime (Kouwenhoven would have to have positively wanted his weapons to bring about international crimes in Liberia and Guinea), as compared with a knowledge standard (which made cognition rather than volition the touchstone for complicity, thereby criminalizing indifferent implication in atrocity for profit). Understandably, Business and Human Rights largely absorbed these standards. As I have argued elsewhere (see here), however, this binary was never a complete articulation of the universe of available standards for complicity globally. The Kouwenhoven case confirms this proposition by applying a less stringent, dual test.[3] Although the case only indirectly relates to human rights, it is important because of the lessons it holds for that adjacent field.

This brings us to the theory of accomplice liability. Like all notions of complicity, the iteration the court adopts in the Kouwenhoven case is theoretically contestable,[4] and one can only anticipate that it will be a central point of Kouwenhoven’s appeal. Nonetheless, whatever debate the standard generates before and beyond the Dutch judiciary, the Kouwenhoven trial is important because it not only brings these even more accountability-friendly variants of complicity to the fore, it also reiterates the pressing importance of theoretical debates about the shape the doctrine should take globally. In earlier work, I entitled a section of an article on this topic “Towards a Moral Theory of Accomplice Liability,” precisely because cases like Kouwenhoven should be grounded in defensible first principles that I am tempted to think should be universal. That a businessman is sentenced to 19 years in prison via application of this doctrine amplifies the need for critical engagement with these ideas, including the need for further thinking about assigning complicity different meanings from one jurisdiction to the next.[5] In both these respects, the case is again critically important.

Significantly, it also involves the Dutch prosecuting their own national for participating in African atrocities, thus marking a move away from the “victor’s justice” paradigm that has long characterised international criminal justice. The term “victor’s justice” evokes the one-sided justice dispensed at Nuremberg despite no shortage of Allied offending, but it remains a recurrent theme in critiques of modern international criminal justice too. The longevity of the critique is understandable given ICL’s uneven record of enforcement at the international level, but what of enforcement locally? Although Kouwenhoven certainly does not offer a silver bullet through the power politics that made internationalising trials necessary in the first place, it certainly marks an important and under-theorized turn away from victor’s justice. In particular, it sounds the emergence of a new element of what Kathryn Sikkink calls a “Justice Cascade” – some states are beginning to take responsibility for war crimes committed by their own nationals, including their businesspeople. From an historical perspective, the shift seems momentous – although the circumstances are very different, the reluctance to assume this responsibility after WWI was so pronounced that it nearly caused a revolution in Germany and a return to war in Europe (see here).

Relatedly, the Kouwenhoven case promises to dilute perceptions that ICL is, to paraphrase Rwandan President Paul Kagame, a neo-colonial tool. In my view, that claim was always overstated, but it is hard to overlook the spectacle of indicting the most senior Congolese and Sudanese political leaders for pillaging property that is epiphenomenal to African armed conflicts without addressing corporate responsibility for the same offense that drives resource wars. In the past, the ICC prosecutor’s explanation for the unique focus on Africans has been that Africa produces the most serious atrocities, taking human suffering as a metric. Yet, as I have argued elsewhere, there is a fallacy in this justification: it assumes that only Africans are responsible for atrocities in Africa. To entertain this assumption is to overlook the long history of commercial implication in and, in especially egregious circumstances, instigation of atrocity in Africa, of which Kouwenhoven is an exemplar. By holding him accountable, this trial goes some way in addressing the fallacy, undermining the neo-colonial critique, and improving the field’s wider claims to legitimacy.

The case achieves this improvement by, at least in this instance, simultaneously overcoming a strangely regressive element of modern ICL. As many have shown, the awareness of corporate implication in atrocity was so prominent in the minds of the architects of post-WWII justice that they very nearly staged a second prosecution of “industrialists” after the main Nuremberg trial. While this business-specific second trial never came to pass, businesspeople were tried within the Nuremberg trial itself as well as in trials staged in occupied zones throughout Europe. Whatever the political aspirations for these processes at the time, for better or worse, their example has not formed a discernable part of the stratospheric ascendance of modern international criminal justice. While public recognition of corporate implication in atrocity grew dramatically after the Cold War, the rebirth of modern ICL over the same period overlooked the commercial angle its earlier incarnation viewed as painfully obvious. The Kouwenhoven trial is a partial correction for this curious regression, which again makes it all the more important in relative terms.

In the end, it is too early to discern the Kouwenhoven case’s overall significance, let alone pronounce on its relative importance even if one were prepared to try ranking the unrankable. With time, it may well prove to be a distracting fig-leaf over a colossal systemic problem, a weak apology for the one-sidedness of ICL’s enforcement globally, or the exception that reinforces the rule of very near total absence of accountability for the worst forms of corporate malfeasance in war. For now, though, it appears more likely that the Kouwenhoven trial is an important milestone in an imperfect, vulnerable, and under-theorized cultural shift in the long struggle to stem atrocity. In case it needs saying, no one should confuse this shift, if it is that, as being a panacea for all the woes of commercial interests in mass violence or delude themselves that criminal justice is anywhere near a sufficient substitute for ethical and political engagement with these problems. Likewise, no one has claimed that cases like this are beyond reproach or that they perfect the system.

In these respects too, the Kouwenhoven trial is important because it invites rigorous, inter-disciplinary scholarly argument for and against this type of accountability.

 

[1] Judgment of Replacement Rol N° 4465-09 (19 January 2012) (Chile’s Supreme Court) <http://www.poderjudicial.cl/modulos/InformacionCausas/INF_causas_corte_supr.php?opc_menu=7&opc_item=2> accessed 2 February 2012. Arguably, the American case against Viktor Bout offers another example, although technically, he was tried for his willingness in a sting operation staged by the FBI rather than for his complicity in any of the many atrocities his weapons smuggling enabled.

[2] My preliminary thoughts about the complicity-debate in Business and Human Rights are online, here.

[3] My kind thanks to Dieneke Vos, who generously provided the following translation of the relevant passage in the Kouwehnoven judgment: “In accordance with established jurisprudence, to convict for complicity, it must be proven not only that the accused person’s intent was directed at the contribution or facilitation of that crime in accordance with article 48 of the criminal code, but also that his intent – whether or not conditional – was directed at the crime committed by a third person, in this case the commission of war crimes.” In other words, under Dutch law complicity requires what the court calls “double intent”: intent to contribute means, and intent relating to the specific crime. The court adds that the accused person’s contribution need not have been indispensable or causal. It is sufficient for the contribution to have “actually encouraged or facilitated the commission of the crime”

[4] For an overview of competing theories as well as recurrent conceptual problems in the theory of complicity, see here. For my attempt to ascertain the meaning of complicity in the ICC statute, see this blog post and the various expert posts it draws upon.

[5] I have argued elsewhere that a multiplicity of complicity standards that can couple with international crimes throughout the world is not desirable. See here. For my (qualified) response with Asad Kiyani to objections that this argument unjustifiably tramples on important social and cultural values that are reflected in diverse criminal doctrine, see here.

Thin Justice as an Escape from Koskenniemi’s Long Shadow?

It is a great pleasure to round out an excellent set of reactions to Steven Ratner’s important book The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (OUP, 2015) (hereafter TJIL). As I mentioned in the introduction to this online symposium, one of the quite staggering features of this book is the quite enormous terrain it traverses in offering both a normative critique and justification of aspects of extant public international law using moral philosophy as a foil. Ratner not only brings ethics and international law together in far greater depth than ever before, he extrapolates insights derived from the encounter across a truly impressive variety of fields, from the use of force to self-determination, regulation of global trade and investment, and international criminal, humanitarian and environmental law. Several of my guests have taken issue with aspects of Ratner’s treatment of the encounter, others have debated it elsewhere too (see here), and I suspect that many will explore the topic-areas he assesses over the years to come too.

My ambition here is to situate the book in the recent intellectual history of international law, asking whether it offers a sharp departure from a dominant critical ethos most singly embodied in the figure of Martti Koskenniemi. I should confess at the outset, that the thoughts that follow are the product of a very rudimentary set of ideas on my part that I have pondered for some time as a result of my own modest engagement with moral philosophy and theories of global justice in international criminal justice. I raise them here to invite Ratner’s thoughts about them, and perhaps more importantly, to ask him to react to a slightly bold claim that he would not make himself: Is TJIL a major step away from the critical tradition of international law by seeking out an external intellectual frame that will act as both shield and sword for international law, instead of just a sword? Put differently, might moral philosophy act as an intellectual basis for concrete prescriptions in the field of international law, instead of just operating as a tool for diagnosing our morose predicament?

Koskenniemi’s influence is evident in the various expert reactions to TJIL already, so there are good reasons to ask these questions explicitly. Several excellent authors have appealed to the apology/utopia dialectic in reacting to TJIL,[1] and the idea of a pull of the mainstream that warned against a kind of naïve field-specific positivism in, say, International Humanitarian Law has also resurfaced in these commentaries.[2] Significantly, however, we are yet to explore how this critical tradition also had a great deal to say against the ethics Ratner employs as a substitute for international normativity, and presumably also, as an external point of inspection for international law. For instance, Koskenniemi’s structuralism reduced what I call ethical emotivism from one of the world’s leading international lawyers, Thomas Franck, to “messianic argument” as part of “the private fantasy of a wishful thinker” that ultimately amounted to an hubristic assumption to speak for the “juridical conscience of the world.”[3] In fact, Koskenniemi elsewhere rejects the turn to ethics in international law that TJIL takes so seriously as the evisceration of formal rules in favor of standards discerned “through our souls,” “in the personal, subjective, even emotional,” that are “decided with conclusive authority by the sensibilities of the Western Prince.”[4]

TJIL emerges against this normative backdrop in international law; one where deconstruction has proved most persuasive. One cannot discount the significance of social, political or cultural chance in explaining the ascendance of one intellectual discourse over another, but these are surely minor causal explanations next to the undeniable genius of much of the writing in this tradition—Koskenniemi’s scholarship in particular has come to represent the intellectual high-water mark in international scholarship over the past two decades. Perhaps the only plausible sociological factor that might explain part of its significance is a cheap play on Samuel Moyn’s argument that human rights only succeeded as a global political agenda because they were the last concept standing as alternative utopias fell away;[5] perhaps deep criticism without an alternative normative program gained such intellectual sway in international law precisely because appetite for grand theory waned at precisely the same time? If this explanation is causally significant, and that is speculative in the extreme, it in no way denigrates Koskenniemi’s remarkable contribution and his major impact on intellectualism within the field.

I also agree that the critical mode is essential for international law (see my own contribution in this spirit with Asad Kiyani here) and that no one who ran with this ball is to be criticized for the ways it crowded out rival intellectual agendas in the field, including that TJIL adopts. In my view, the power and influence of the critical movement is very much a product of its exemplary scholarly rigor, its engaging figurative prose, and above all, its quite spectacular intellectual range. But apart from the sense of awe all these factors inspired and the ways they set standards by which all other scholarly work in international law would be judged over the past decades, there was always a nagging sense that the critical discourse they embodied depended on an intellectual division of labor that was never fully realized without a constructive normative field to rail against. Without equally or more robust rival intellectual movements, the apparent far leftist origins of the critical legal discourse in international law became obscured in intimidating learning, deft rhetorical flourish and positional ambiguity, meaning that the project could also turn out to be the perfect friend to the right.

Although structuralism has a long history in sociology, anthropology and linguistics, its overlap with Critical Legal Studies is also instructive of the former’s hitherto unexplored limitations. If one of the starting premises of Critical Legal Studies was that law creates “a sense of stasis and paralysis about the possibilities of social change,”[6] the intellectual dominance of structuralism in international law risks enacting the very type of imaginative paralysis in reverse. I doubt, for instance, that the bulk of Koskenniemi’s readership interpreted his work as implying that “anything goes,” as he has recently suggested.[7] On the contrary, my sense is that most read it as implying that nothing does. To make a slightly crude analogy with psychoanalysis, exposing the shadow can be a very helpful exercise, but allowing the dark side to become all-pervasive risks a kind of atrophy where values no longer guide action. So, if the dominant intellectual method in a field is diagnostic of our predicament but hostile towards prescription of any sort, scholars are likely to leave the inevitability of innovation to others. In my view, Ratner’s TJIL is especially important because it promises to use moral philosophy to free us, at least in part, from these restraints.

In this regard, Ratner’s TJIL is particularly significant in that it is the first to knit together threads from various philosophical traditions to advance a more prescriptive agenda. The Just War Tradition has employed moral philosophy to critique basic precepts in the law of armed conflict,[8] authors like Peter Singer and Thomas Pogge have taken up the issue of moral responsibility for global poverty;[9] Jeremy Waldron, Joseph Raz and many others have sought out firm philosophical foundations for human rights; Martha Nussbaum has authored a set of texts addressing the relationship between the emotions international critics dismiss and their significance for wider concepts of justice;[10] and a substantial new philosophical discourse engages with questions of global justice,[11] even if this discourse divides between those who see the state as enjoying a privileged ontological position in calculations of justice as compared to those who are prepared to extrapolate basic moral principles across the globe without ceding terribly much ground to states. Ratner’s TJIL weaves these threads together into a major new international law quilt that stands to have such a marked impact on the field because it steps away from much of what came before it in terms of method.

Like any important text, the book also raises significant questions it does not itself address and many of these will arise out of conversation with the critical tradition. Will TJIL sound the emergence of a parallel international law intellectualism that acts as a bulwark against the purely critical style in international law? Does TJIL provide structuralism with a viable intellectual counterpoint through which it might play a significant dialectic role in relationship with ethical theory, or are these two competing sensibilities factions that will pass each other in the corridors without ever speaking? More fundamentally, is moral philosophy really able to provide a normative grounding that is more solid than that already on offer in international law, such that we can use it as a dependable lens from which to critically review such a wide array of international law doctrine? Or, alternatively, is ethics just as precarious as international law? Maybe ethical principles do not provide a stable platform because they are themselves impermissibly subjective, emotive, elitist and Western? To my mind, these are critically important questions that should animate the field over the coming years. It is still too early to tell whether Ratner’s TJIL will be an historical intellectual pivot in this regard, but it is a pleasure to host these expert reflections on his important work.

[1] Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2006).

[2] Martti Koskenniemi, The Pull of the Mainstream, 88 Mich. Law Rev. 1946–1962 (1990).

[3] Martti Koskenniemi, Legal Cosmopolitanism: Tom Franck’s Messianic World, 35 N. Y. Univ. J. Int. Law Polit. 471–486 (2002).

[4] M. Koskenniemi, “The Lady Doth Protest Too Much”: Kosovo, and the Turn to Ethics in International Law, 65 Mod. Law Rev. 159–175 (2002).

[5] Samuel Moyn, The Last Utopia: Human Rights in History (2010).

[6] Robert W. Gordon, Law and Ideology, 3 Tikkun 14–87, 16.

[7] Martti Koskenniemi, What is Critical Research in International Law? Celebrating Structuralism, 29 Leiden J. Int. Law 727–735, 732 (2016).

[8] See in particular Jeff McMahan, Killing in War (Reprint edition ed. 2011); Adil Ahmad Haque, Law and Morality at War (1 edition ed. 2017).

[9] Thomas W. Pogge, World Poverty and Human Rights (2008); Peter Singer, The Life you Can Save: Acting Now to End World Poverty (2009).

[10] See most recently Martha C. Nussbaum, Anger and Forgiveness: Resentment, Generosity, Justice (1 edition ed. 2016).

[11] Mathias Risse, On Global Justice (2012); Thomas Nagel, The Problem of Global Justice, 33 Philos. Public Aff. 113–147 (2005).

New Symposium: Steven Ratner’s The Thin Justice of International Law

Steven Ratner has written an important book entitled The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (OUP, 2015). The book is especially significant because it uses ethics and moral philosophy to assess and criticize a series of sub-branches of international law. These sub-branches include statehood, territorial-based protections of Human Rights, regulation of global trade and investment, and international criminal, humanitarian and environmental law. In addition to this remarkable breadth, the book is one of the first attempts to marry international law and moral philosophy in a systemic way, which is especially interesting to those of us who have explored both of those areas as vehicles for assessing the responsibility of individuals (and corporations) for international crimes. Ratner has, in other words, considered an interesting normative coupling in far greater depth than others before him, and advanced this analytical scheme far further afield.

I will not say terribly much more introducing the book, except to add that Ratner employs human rights and peace as dual normative pillars derived from the interface of ethics and international law as lens through which to critically review the various sub-fields in the discipline I mention. Thus, his masterful treatment of these issues will also be particularly interesting to scholars of both human rights and peace studies, in addition to the other subject-areas of international law he takes up in the book. My reluctance to say terribly much more introducing the book is partly because Ratner has penned his own detailed introduction for an earlier blog discussion and I am confident that my own attempts would be less true to his origin message and less representative of the numerous significant points the book makes. I therefore leave my own reactions to the substantive section of our symposium, which will appear on this blog over the coming two weeks.

There are several reasons I thought to stage this symposium. Although others have hosted excellent symposia already (see here), I wanted to continue the conversation between philosophers and international lawyers in order to help an important interdisciplinary dialogue grow. I also wanted to host a discussion of this book because Ratner’s text is exemplary of all of the elements in this blog’s manifesto: Thin Justice of International Law is very normatively creative, aesthetically excellent, deliberately caters to a plural intellectual community and explicitly adopts symbiosis between theory and practice as a method. For all these reasons, I am excited to play host to a fantastic set of scholars whose work I have admired for some time. In particular, Karen Alter, David Luban and Colleen Murphy will join me (see table of contents here) in offering respectfully critical reflections on Ratner’s book.

I am confident that the resulting dialogue will prove stimulating to all those interested in moral philosophy, global justice and their intersection with international law.