All posts by James G. Stewart

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.

How Would War Crimes Prosecutors Classify the Syrian Conflict(s)?

Over the past few weeks, a great number of excellent scholars have debated how to classify the contemporary armed conflict(s) in Syria. In particular, Ryan Goodman (here, and here), Adil Haque (see here, here), Oona Hathaway (on Twitter), Deborah Pearlstein (see here and here), Gabor Rona (see here), Terry Gill (see excellent article here, and blog here), and Dapo Akande (see excellent article here and blog here) have all debated the trigger points of non-international armed conflict (“NIAC”) and whether the Syrian conflict(s) are now rendered international armed conflicts (“IAC”) by American, Turkish and Russian military intervention. I join the discussion to ask how war crimes prosecutors are likely to see these issues, then to raise the possibility (born of working in this capacity myself) that an analytically satisfying solution to these debates about internationalized armed conflict might be structurally unavailable. I begin by introducing these perspectives, then plot a set of doctrinal points that arise from ICL’s encounter with the phenomenon of conflict classification. I end by reiterating my earlier normative critique of the international/non-international bifurcation in the laws of armed conflict (see here), which emerged from my own intellectual dissatisfaction as a war crimes prosecutor over a decade ago.

To begin, let me flesh out why inquiring about war crimes prosecutors’ perspectives might be a helpful supplement to the debates about conflict classification in Syria thus far. Most obviously, if the reason for insisting on qualifying the armed conflict in Syria is to promote the prosecution of war crimes, it could be helpful to understand how courts tasked with trying war crimes are likely to undertake that classification process if these trials ever come to pass. But perhaps more importantly, war crimes prosecutors have confronted more or less exactly the same difficulties that animate these debates for over twenty years now, albeit in the context of the multiple, changing and overlapping international/non-international conflicts in the former Yugoslavia and the Democratic Republic of Congo rather than Syria. Much of the resulting caselaw is exceptionally detailed, and as a body of experience, it is useful as a tool to help mediate between competing arguments here. In fact, ICL’s long history of classifying armed conflicts is also of assistance in that it shows these institutions attempting to avoid the classification process wherever possible. As I explain below, revealing their attempts to bypass the classification conundrum is an important aspect of the added value a war crimes prosecutor’s perspective may provide.

This brings us to my second initial perspective. If ICL has done its best to pull away from the riddle of classifying internationalized conflicts like that in Syria, it is somewhat peculiar that when faced with Terry Gill’s harrowing revelation that “[t]here are reportedly hundreds (by some accounts approximately 1,500) of armed groups and militias active in the Syrian conflict” that no one has yet objected that this distinction between IACs and NIACs cannot be meaningfully made. The closest we get thus far is Professor Gill’s admission that “[it] would be well-nigh impossible to draw a coherent picture of the entire mosaic of armed groups and their aims, actions and alignments.” (see here, p. 355). In addition, we have not heard that even where the application of these tests for internationalization is more clear cut, the ability of armed groups to comply with standards we ourselves cannot agree upon in the heat of battle, in the context of changing military relationships, based on closely guarded information seems marginal. I am reminded, for instance, of Marco Sassòli and Laura Olsen’s argument that “there is no reason to think that, during a conflict, one could convince a military commander to respect certain rules by arguing that he is an agent of a foreign country.”[1]

Admittedly, I am reiterating here an argument I first made over a decade ago after first working on these issues at two different war crimes tribunals, in which I pointed out the unavoidable dangers of analytical incoherence in qualifying internationalized armed conflict, then posited the possibility of a unified system of IHL that would be applicable to all types of armed conflict (see here). I made this argument in order to circumvent the otherwise insurmountable analytical difficulty I had experienced in practice. As I explain in that article, the way out I propose was not new even then: the ICRC had advanced this argument at every stage in the codification of major IHL instruments, various luminaries such as George Aldrich had endorsed it in light of the Vietnam experience, and the history of ICL is replete with judicial statements like “it is only natural that the aforementioned dichotomy [between IAC and NIAC] should gradually lose its weight.”[2] As I will explain shortly, ICL not only offers a set of lessons about the classification process that have not fully informed the various online debates about Syria thus far, it also reveals a pattern of deliberate attempts to avoid the problem wherever possible. This reality speaks to an ongoing concern about the practicality of the tests in discussion presently and the availability of third approaches that might be appealing to prosecutors if cases from Syria are ever heard.

I move, then, to my five doctrinal observations about the history of conflict classification in ICL and its salience to these debates:

First, although it is probably technically correct to say that Tadić is the leading judicial decision in this area, to leave matters at that risks undervaluing over two decades of judicial experience classifying armed conflicts post Tadić before a wide variety of courts and tribunals (national and otherwise). In fact, a number of initiatives within these institutions deliberately sought to build upon the initial foundations set by Tadić. In 2007, for instance, I was asked (ironically given my earlier article calling for the abandonment of the distinction) to lead a process for the Office of the Prosecutor of the ICTY that developed a more comprehensive matrix of factors that go to making up a non-international armed conflict. This project led to far more detailed sets of factors that would establish both limbs of the test for a non-international armed conflict—intensity and military organization—in a trilogy of cases involving the Kosovo Liberation Army and the Albanian National Liberation Army in Macedonia.[3] The painstaking depth these and other cases go to in applying the tests may be helpful to friends and colleagues engaged in these debates, beyond just the foundational importance of Tadić itself. They may also act as templates for prosecutors asked to prosecute war crimes arising out of modern-day Syria.

Second, let me add one problem from this history to the current debate about Syria in order to point to a sub-issue that adds further complexity, in ways that might also militate in favour of a simpler unified approach moving forward. As all the experts engaged in this debate will know, Additional Protocol II (“APII”) entails a different test for NIAC that arguably lifts the intensity requirement above that applicable to Common Article 3 conflicts and that also appends the requirement that the armed group enjoy territorial control. Some courts, like the ICC, have rejected the territorial control element for purposes of determining a NIAC under its statute,[4] but the Special Court for Sierra Leone has insisted on it as a requisite element of war crimes that derive from APII.[5] So, in the same way that Ryan Goodman has pointed out that Russia is a signatory to API for the purposes of determining the applicable law in Syria (see here), war crimes prosecutors are also likely to be confronted by the reality that: (a) Russia is party to APII too; (b) that APII requires territorial control in addition to the intensity and military organization elements for armed conflicts in Common Article 3 NIACs; and (c) that the question of classifying the law applicable in the Syrian context may be even thornier than our debates to date have revealed.

Third, once these issues are viewed through the eyes of war crimes prosecutors, it will likely become apparent that the first prong of the test for internationalization in ICL appears to have escaped close scrutiny in the debates about Syria thus far. Before now, my friends and colleagues who have engaged in this debate have largely focused on the absence of consent on the part of the Syrian government to the various manifestations of US military force in Syria, arguing about whether the absence of Syrian consent means that the United States is presently engaged in an IAC with Syria and/or Russia. And yet, the test for internationalization in ICL is appreciably wider in scope, and although controversial, a number of ICL cases will act as precedents for war crimes prosecutors focused on Syria who are eager to establish their jurisdiction over the full panoply of war crimes applicable in IAC. To recall, in the famed Tadić Appeal Judgement, the Appeals Chamber of the ICTY stipulated that:

“It is indisputable that an armed conflict is international if it takes place between two or more States. In addition, in case of an internal armed conflict breaking out on the territory of a State, it may become international (or, depending upon the circumstances, be international in character alongside an internal armed conflict) if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State.”[6] (emphasis added)

Importantly, a number of international courts and tribunals have interpreted the reference to “another State interven[ing] in that conflict through its troops” as extending beyond actual armed force between States Parties. To be precise, a number of decisions apply the body of law applicable to IACs to all state and non-state actors within a conflict zone where a foreign military intervention only indirectly affects independent internal conflict(s). I provide several examples of this reality from ICL caselaw in my earlier article (see here, pages 328-333), but to cite just one here, the Kordić & Čerkez Judgement found that the Croatian government’s intervention in the conflict against Serb forces in Bosnia internationalized a separate conflict in which the Croatian government had no direct military involvement, namely the conflict between Bosnian Croats and Bosnian Muslims.[7] According to the Trial Chamber, it did this “by enabling the Bosnian Croats to deploy additional forces in their struggle against the Bosnian Muslims.”[8] Thus, the Tribunal applied the laws applicable to IACs to all actors discussed, including non-state armed groups. Our debates about the absence of state consent—certainly a vitally important issue—played no part in this classification. Depending on the war crimes involved, war crimes prosecutors considering trials arising out of Syria may well take inspiration from these precedents.

Fourth, the debate up until now has only tacitly referenced “Mixed” versus “Global” theories of conflict classification, which polarized scholars and practitioners in the early years of ICL’s encounter with this problem. The mixed approach—what Terry Gill calls “parallel conflicts”—is reflected in the refrain from Tadić that the violence in the former Yugoslavia could be characterized “at different times and places as either internal or international armed conflicts, or as a mixed internal-international conflict”[9] and that “depending upon the circumstances, [the conflict may] be international in character alongside an internal armed conflict.”[10] And yet, an alternative “global” approach pre and post-dates these tests; many experts have acknowledged that distinguishing between IACs and NIACs is practically impossible in many modern armed conflicts given the indecipherably complex and constantly dynamic interaction between state and non-state actors in internationalized warfare. According to this global approach, the full body of IHL applicable to IACs apply to all armed groups, state and non-state, in an entire territory that contains multiple conflicts of international and internal origin. As I show in the article (see here, pp. 334-335), the US government, Theodore Meron, various ICTY judges and even the ICRC appear to have endorsed this approach in certain circumstances.

These ideas have featured only tacitly in the recent online debate about conflict classification in Syria. Terry Gill’s excellent article, for instance, starts off assuming a mixed approach to classification (he calls “parallel”), but when faced with the tremendous complexity of the task in certain scenarios he shifts to the global alternative, before he later shifts back. A variant of the global approach seems evident, for example, where he concedes that “[t]he fact that these parties have different objectives and have clashed with one another on occasion (or in the case of ISIS and the Kurdish YPG on an ongoing basis) does not change the fact that there is one overall conflict of a non-international character within Syria with a number of different parties. The alternative of looking at each conflict as a separate conflict makes no factual or legal sense.”[11] To my mind, this quite understandable oscillation between mixed and global approaches emulates that in earlier ICTY caselaw. Moreover, it is also interesting to see the same oscillation play out at the ICC in a conflict strikingly similar to Syria legally speaking; a conflict Madeline Albright once dubbed “Africa’s First World War.”

In recent years, a Pre-Trial Chamber at the ICC in the case against Thomas Lubanga cited the two prong test from Tadić I quote above, then indicated that, “where a State does not intervene directly on the territory of another State through its own troops, the overall control test will be used to determine whether armed forces are acting on behalf of the first State.” (emphasis in original).[12] By implication, the overall control test is not relevant where there is direct military intervention, which will operate to internationalize all conflict in a globalizing fashion in line with cases like Kordić & Čerkez I referenced above. Again, the important topic of State consent we have debated did not feature in this analysis. Thus, the Pre-Trial Chamber concluded that the armed conflicts between various non-state actors in the region were subject to the law governing IAC because Uganda was an occupying power in the region. In the Pre-Trial Chamber’s own words: “as a result of the presence of the Republic of Uganda as an occupying Power, the armed conflict which occurred in Ituri [between various non-state actors] can be characterised as an armed conflict on an international character from July 2002 to 2 June 2003, the date of the effective withdrawal of the Ugandan army.”[13]

At trial, a differently constituted bench disagreed with the Pre-Trial Chamber’s characterization by effectively adopting a more stringent mixed approach. Instead of citing the Tadić two limbed test, which entailed both direct and indirect intervention as bases for internationalization, the Chamber ignored the first element based on direct foreign intervention and the line of cases like Kordić & Čerkez applying it, then discredited evidence about Rwandan and Ugandan control over various armed groups fighting in the region in assessing the second. As a result of this shift in technique, the ICC Trial Chamber in one and the same case revised the Pre-Trial’s position by concluding that the conflict between these various non-state groups “was non-international in nature.”[14] This mixed approach has gained ascendancy at the ICC ever since so is likely to be especially influential to war crimes prosecutors contemplating the terrible conflagration in Syria. Nevertheless, it is also notable that aside from marking a repetition of the oscillation between mixed and global approaches, in a passage I am tempted to read as conveying regret, the Court remarked that “some academics, practitioners, and a line of jurisprudence from ad hoc tribunals have questioned the usefulness of the distinction between international and non-international armed conflicts… The Chamber does not have the power to reformulate the Court’s statutory framework.”[15]

From an analytical standpoint, the problem is that both of the approaches are difficult to justify, which perhaps explains the seemingly constant oscillation between them. The great difficulty is that the metrics for explaining when to prefer the mixed and when to favour the global are extraneous to the legal tests and go unannounced. More broadly, in my earlier piece, I argued that the relative strengths and weaknesses of the “mixed” and “global” views indicate that reaching any sort of agreement about the classification of complex internationalized conflicts like Syria within the present framework will inevitably involve choosing between a theory that cannot work (the mixed approach) and a practice that is not justified (the global approach). (see here, p. 335). The challenge, therefore, is very much to the structure of IHL generally. For present purposes, I wonder if our debates about classification could benefit from keeping these arguments in mind, although as I hint at throughout, the better way of promoting accountability may lie in convincing war crimes prosecutors that they need not try to resolve issues we cannot.

Fifth, avenues exist that allow us to do just this. Because these issues are so factually complex, analytically unsatisfying, enormously time consuming to prove, and ultimately, often morally irrelevant, courts have attempted legal run-arounds wherever possible. A number of the scholars in this online debate have rightly pointed out the areas of substantive disparity between IAC and NIAC, but if war crimes are the emphasis in general, and murder, rape and torture the central pre-occupations in particular, it might be possible to dispense with the characterization process all together. At a certain point in its maturation, the ICTY and various national criminal courts adopted just this approach as a response to the sorts of classification quandaries we are debating (for examples, see here, p. 864). They did this by relying on the ICJ’s dicta in the Nuclear Weapons case that Common Article 3 is an “elementary consideration of humanity” applicable in both variety of armed conflict (an approach later echoed by the US Supreme Court in Hamdan). Armed with this blanket principle, prosecutors might look at a conflict like that in Syria, banish grave breaches immediately because of the difficult technicalities they entail, then opt for Common Article 3 prosecutions to avoid the intractable complexities we are presently engaged with. I have pointed to the problems this approach can give rise to elsewhere (see here, p. 875), but for present purposes, this strategy may be the best way of incentivizing war crimes prosecutors to take up these cases despite our understandably protracted disagreement.

This brings us to a fork in the road, where I move away from a perspective grounded in ICL doctrine into a purely normative mode, which originally developed as a response to my experiences with these problems as a practitioner. I have four normative points:

First, I believe that the idea of single body of IHL applicable in all types of conflicts deserves far greater intellectual engagement. Admittedly, as my earlier article readily conceded, that project is conceptually challenging and politically unlikely because it has to address the absence of combatant status or a law of occupation in NIACs, two issues not likely to be readily resolved. I will not attempt to broach these conceptual issues here, other than to offer up the notion that it is hard to incentivize compliance with IHL by non-state groups without offering something akin to combatant status and to observe how these difficulties already arise in internationalized non-international armed conflicts (see here, p. 345). In addition, I respect the reality that opening up the Geneva Conventions for renegotiation in a post Sept 11 world would likely lead to a net diminution of humanitarian protections, but regardless of whether a unified body of law that is not regressive can ever be politically realized in even the medium-term, I reiterate my now dated calls for greater engagement with the unification project as a normative agenda, perhaps as part of or an appendage to Columbia’s project on harmonizing standards for armed conflict (see here). One upside is that it stands to make war crimes prosecutions in places like Syria easier.

Second, the engagement with what Adil Haque eloquently calls “triggers and thresholds” (see here) is exceptionally interesting. I was particularly struck by Adil’s very insightful conclusion that “we should accept a unilateral trigger and nominal threshold for both IAC and NIAC.” If this approach is defensible, he has found a solution to a key problem for a unified body of norms that dispenses with the IAC/NIAC classification altogether. To address this problem of disparate trigger mechanisms in my earlier proposal, I borrowed from a proposition by the Brazilian government during the negotiation of APII, which suggested that the application of IHL in all types of conflict could be triggered by armed violence between “organized armed forces or other organized armed groups under a responsible and identifiable authority, and clearly distinguished from the civilian population.” (see here, p. 345). I am less sure that this is much of a solution now, so I am particularly enthusiastic for creative new thinking like that Adil Haque offers as well as the intentionality approach Michael Adams and Ryan Goodman have suggested (see here). In the same breadth, my enthusiasm is strictly conditional on the need for these innovative new standards to avoid watering down pre-existing IHL protections and prevent against a new field of application that makes departures from human rights standards easier, more frequent, or simply more justifiable.

Third, I sense that the law of armed conflict is caught between its aspirations for humanitarian protection and an anxiety about its own complicity in violence. On the one hand, I certainly understand and appreciate the argument by Adil Haque and others that IHL does not authorize anything; it merely restrains. So when Gabor Rona complains (see here) that qualifying the armed conflict as international might trigger “the same targeting and detention rules that would apply between the US and Syria.. wherever US and Russian interests rub up against each other,” the retort is that if the US and Russia do carry out these unthinkable actions, it will be for altogether different political reasons that are entirely seperable from the body of IHL that will apply to them as they do so. Conversely, one does not have to tax one’s memory too hard to recall the Bush Administration’s use of the laws of war to publicly justify important excess. The laws of war rhetoric helped enable indefinite detention of detainees at Guantánamo (without conferred them with corresponding protections) and had a quite terrible trickle-down effect in Uganda, Liberia, Chechnya and beyond, where conflicts were quickly re-imagined as “Wars on Terror.” The reality is that historically speaking, the laws of armed conflict are often used to justify violence.[16] To my mind, thinking through ways of undermining this complicity should also be a first order task for IHL scholars.

Fourth, a unified body of IHL could help do just this by depoliticizing the significance of a conflict’s classification one way or the other. Much of the resistance to Ryan Goodman’s argument (see here) that the US is already in an IAC stems from a concern that this recognition would be politically provocative, thereby entailing a weak variant of the complicity-in-violence-anxiety I reference immediately above. Gabor Rona, for example, mentions his concern about the classification “upping the ante” (see here); Deborah Pearlstein reasonably worries that “Syria and Russia would view such a statement as provocatively signaling a U.S. intention to embark upon a new and different course of hostilities” (see here); and Terry Gill’s very helpful article ends with a series of warnings about “drawing conclusions which open the door to a widening of the conflict.” (see here, p. 380). Ironically, in my earlier article, I used Russian intervention in Afghanistan several decades ago to highlight equivalent concerns for politicization then (see here, pp. 342). I also suggested that a unified body of armed conflict that stripped away the IAC/NIAC distinction might offer a way out that minimizes these tensions, at least partially, by allowing us to insist that all parties are bound by IHL in their military actions without saying more.

The foregoing does not offer obvious solutions for the Syrian classification, but I hope that some of the terrain I traverse is useful for further discussions of these important issues.


[1] M. Sassòli and L. M. Olson, “International decision: Prosecutor v. Tadić (Judgement)”, American Journal of International Law, Vol. 94, July 2000, p.

[2] Tadić Jurisdiction Appeal, para. 97

[3] The principle case was Prosecutor v. Boškoski, but the same principles are also evident in the Prosecutor v. Limaj and Prosecutor v. Haradinaj cases.

[4] Prosecutor v Lubanga Trial Judgment, para. 536.

[5] Prosecutor v Sesay et al, SCSL-04-15-T, Judgement, 2 March 2009, para. 966. (“the Prosecution must also prove the elements of Article 1 of Additional Protocol II, namely that the dissident armed forces or other organised groups participating in the conflict: […] (ii) Were able to exercise such control over a part of their territory as to enable them to carry out sustained and concerted military operations.”)

[6] Prosecutor v. Tadić, T-94-1-A, Judgement, 15 July 1999, para. 84

[7] Prosecutor v. Kordić & Čerkez, IT-95-14/2-T, Judgement, 26 February 2001

[8] Ibid., para. 108(2).

[9] Tadić Appeal Judgement, para. 73

[10] Id.

[11] Gill, p. 375.

[12] Prosecutor v Lubanga, Decision on Confirmation of Charges, 29 Jan 2007, para. 220

[13] Prosecutor v Lubanga, Decision on Confirmation of Charges, 29 Jan 2007, para. 220.

[14] Lubanga Trial Judgment, 14 March 2012, para. 567.

[15] Ibid, para 539.

[16] In my view, one of the best arguments to this effect is still Chris Jochnick & Roger Normand  “The Legitimation of Violence: A Critical History of the Laws of War” (1994) 35 Harvard Int’l LJ  49-95; 387-416.

« Une Ville ou Une Localité, Même prise d’Assaut » : Les Mots Juridiquement Redondants, Archaïques, Inutiles et Déroutants dans la Définition du Pillage du CPI

Le pillage signifie le vol pendant la guerre. Curieusement, les articles, 8(2)(b)(xvi) et 8(2)(e)(v) du Statut de la CPI interdisent: « Le pillage d’une ville ou d’une localité, même prise d’assaut » Seul le premier de ces termes a une signification juridique. Les neufs autres commencent à causer énormément de confusion risquant de porter atteinte à la justice.

Voici quelques preuves de cette confusion:

  • Le mois dernier, je participais à une conférence à Kinshasa, en République démocratique du Congo sur les crimes économiques en temps de guerre, où un procureur, pour lequel j’ai beaucoup de respect, a soulevé que l’inclusion « d’une ville ou d’une localité, même prise d’assaut » dans cette infraction, constitue un obstacle possible à l’application du pillage dans la lutte contre l’exploitation illégale des ressources naturelles
  • Un certain nombre d’universitaires qui écrivent sur le pillage ont signalé cette formulation pour suggérer que cette infraction ne pourrait pas s’appliquer aux acteurs commerciaux impliqués dans l’exploitation illégale des produits issus du conflit ou pour indiquer que le crime de guerre de pillage dans le Statut de la CPI envisage clairement d’autres situations ; et
  • Peut-être le plus étrange, dans le récent jugement contre l’homme politique congolais Jean-Pierre Bemba, la Cour pénale internationale a elle-même interprété les termes « une ville ou une localité, même prise d’assaut » comme signifiant que le pillage doit se produire à une certaine échelle pour être considéré comme tel.[1]

Après avoir passé un certain nombre d’années de recherches et après avoir rédigé un grand nombre d’écrits sur le pillage appliqué aux ressources naturelles (voir les fruits de ces travaux ici et un résumé d’une conférence ), je suis particulièrement en désaccord avec ce point de vue. Dans ce qui suit, je vous explique pourquoi je considère ces neufs mots supplémentaires comme juridiquement redondants, archaïques, inutiles et déroutants. En particulier, je donne cinq raisons pour lesquelles je suis de cet avis, dans le but de clarifier ce que je perçois comme une mauvaise interprétation regrettable, mais compréhensible.

Tout d’abord, les « Eléments des crimes » de la CPI, qui énonce les éléments juridiques requis pour chaque infraction dans le Statut de la CPI, ne fait aucune mention de la « ville », la « localité » ou l’ « assaut », ce qui implique que ces mots supplémentaires sont juridiquement redondants. Les Eléments des crimes se lisent comme suit:

  1. L’auteur s’est approprié certains biens ;
  2. L’auteur avait l’intention de spolier le propriétaire des biens et de se les approprier à des fins privées ou personnelles ; [*]
  3. L’appropriation s’est faite sans le consentement du propriétaire ;
  4. Le comportement a eu lieu dans le contexte de et était associé à un conflit armé international ou non international ; et
  5. L’auteur avait connaissance des circonstances de fait établissant l’existence d’un conflit armé.

[*]  Comme l’indiquent les termes « à des fins privées ou personnelles », les appropriations justifiées par les nécessités militaires ne constituent pas un crime de pillage.

J’ai exprimé mon désaccord sur un aspect particulier de cette définition, à savoir, les termes « pour usage privé ou personnel » (Voir ici, par. 16-17). Cependant, ce point n’est pas pertinent pour le sujet qui nous intéresse. Indépendamment de ce désaccord, il reste encore à noter que la définition des Eléments des crimes la CPI ne fait aucune mention de la « ville », la « localité » ou de l’« assaut ».

Deuxièmement, d’autres cours et tribunaux ayant poursuivi le pillage (sous les termes « pillage », « vol » ou « spoliation ») ne font jamais référence à la « ville », la « localité » ou l’ « assaut ». Les Statuts du Tribunal pénal international pour le Rwanda (TPIR) et le Tribunal spécial pour la Sierra Leone (TSSL), par exemple, ne fait que lister le « pillage » parmi les crimes de guerre applicables dans leur juridiction.[2] Le fait que l’utilisation du terme de pillage par ces instances faisant autorité, n’inclut aucune référence à la « ville », la « localité » ou à l’« assaut » confirme que ce terme dans le Statut de la CPI est juridiquement vide de sens.

Troisièmement, la référence à « une ville ou une localité, même prise d’assaut » est archaïque et pratiquement obsolète. Cette formulation provient de l’article 28 du Règlement de La Haye de 1907 qui stipule que « le pillage d’une ville ou d’une localité, même prise d’assaut, est interdite ». Mais l’histoire derrière la disposition révèle que le libellé n’a pas de signification contemporaine – il couvre uniquement une ancienne exception qui n’a pas de pertinence pour la guerre moderne. En d’autres termes, il n’a pas de rôle normatif.

Aussi récemment qu’au 18ème siècle, le pillage était parfaitement légal.[3] L’interdiction subséquente est venue par étapes. Dans un premier temps, le pillage a été interdit, mais soumis à une exception importante. Comme l’explique Bentworth «  l’ancienne coutume de pillage… était encore maintenue lorsqu’une ville fut assiégée après avoir été prise d’assaut; mais ce fut à titre de condamnation pour l’acharnement ».[4] Bien que le pillage était interdit, si une population locale réclamait une force d’invasion pour partir assiéger une ville, leur ville pourrait être pillée, si l’attaque s’avérait être un succès.

Dans un second temps, cependant, les lois de la guerre ont cherché à également abroger cette exception et interdire le pillage catégoriquement.

Ainsi, le Règlement de la Haye de 1907 met l’accent sur le fait que « le pillage d’une ville ou d’une localité, même prise d’assaut, est interdite ». Comme cette histoire le révèle, la formulation archaïque dans cette disposition était uniquement destinée à insister pour que l’interdiction, désormais étendue, englobe également l’exception; elle n’a jamais été destinée à limiter la proposition de base que le pillage signifie le vol pendant la guerre.

Quatrièmement, l’inclusion des références « ville », « localité » et « assaut » dans le Statut de la CPI était inutile, même si nous voulions rester fidèles au Règlement de La Haye de 1907. Un fait révélateur, est qu’une disposition différente dans le même Règlement de La Haye prévoit aussi de manière plus simplifiée que « le pillage est formellement interdit ».[5] La décision d’inclure la plus obscure, archaïque disposition est malheureuse. Faisant référence à la « ville », la « localité » et l’« assaut » dans le Statut de la CPI était donc un mauvais choix.

Cinquièmement et finalement, cette formulation est particulièrement déroutante. A première vue, elle semble incertaine, obsolète et basée uniquement sur une réflexion des expériences européennes de la guerre. Cette formulation a déjà naturellement induit en erreur certains des meilleurs procureurs, juges et universitaires travaillant dans le domaine. Mon seul espoir est que la mauvaise rédaction de cette composante du Statut de la CPI, qui est sans effet juridique, n’inhibe pas les applications de principe de la règle dans des cas appropriés.

[1] Voir Bemba Trial Judgement, par. 117 (indiquant que l’« Article 8(2)(e)(v) se rapporte au « pillage d’une ville ou d’une localité », et donc que le pillage d’une maison individuelle ne suffirait pas. »)

[2] Statut du Tribunal pénal international pour le Rwanda, art. 4 (f); Statut du Tribunal spécial pour la Sierra Leone, art. 3 (f).

[3] En 1718, par exemple, Vattel pense que « ce n’est pas, en général, contraire aux lois de la guerre de piller et dévaster un pays ». Vattel, The Law of Nations, (1797), p. 291-292. Pour d’autres exemples, voir Grotius, Rights of War and Peace, pp- 332-334. Voir aussi, Takahashi, Cases on International Law During the Chino-Japanese War, 1899, pp.155-156.

[4] Norman Bentworth, The Law of Private Property in War, (1907), p.8. De même, Lawrence explique que pendant le Moyen Age, « lorsqu’un lieu a été pris d’assaut, il fut livré au pillage et au vol, sans aucune tentative pour empêcher les passions des soldats victorieux menés par leurs commandants » Lawrence, Principles of International Law (1899), p.38.

[5] Hague Regulations 1907, art. 47.

“A Town or Place, Even When Taken by Assault”: The Legally Redundant, Archaic, Unnecessary, and Confusing Wording in the ICC’s Definition of Pillage

Pillage means theft during war. Curiously, Articles 8(2)(b)(xvi) and 8(2)(e)(v) of the ICC Statute prohibit: “Pillaging a town or place, even when taken by assault.” Only the first of these words has any legal significance. The remaining nine are beginning to cause a great deal of confusion that risks undermining justice.

Here is some evidence of that confusion:

  • This past month, I attended a conference in Kinshasa, Democratic Republic of Congo on Economic Crimes in Times of War where a prosecutor I very much respect raised the inclusion of “a town or place, even when taken by assault” in this offense as a possible barrier to using pillage to address the illegal exploitation of natural resources;
  • A number of academics writing about pillage have pointed to this language to suggest that this offense might not apply to commercial actors involved in the illegal exploitation of conflict commodities or that the war crime of pillage in the ICC Statute clearly contemplates other situations; and
  • Perhaps most strangely, in the recent judgment against Congolese politician Jean-Pierre Bemba, the International Criminal Court itself has interpreted the words “a town or place, even when taken by assault” as implying that the pillage of a single house would not suffice.[1]

Having spent a number of years researching and writing about pillage as applied to natural resources (see the fruits of these labors here and a conference summary here), I very much disagree with these views. In what follows, I explain why I view these additional nine words as legally redundant, archaic, unnecessary and confusing. In particular, I provide five reasons why I am of this opinion in a bid to clarify what I perceive to be an unfortunate but understandable misreading.

First, the ICC’s Element of Crimes, which set out requisite legal elements for each crime in the ICC Statute, make no mention of “town”, “place” or “assault” at all, implying that these additional words are legally redundant. The Elements of Crimes read as follows:

  1. The perpetrator appropriated certain property.
  2. The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use.[*]
  3. The appropriation was without the consent of the owner.
  4. The conduct took place in the context of and was associated with an international or non-international armed conflict.
  5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

[*]     As indicated by the use of the term “private or personal use”, appropriations justified by military necessity cannot constitute the crime of pillaging

I have expressed disagreement with one particular aspect of this definition, namely “for private or personal use” (See here, paras. 16 – 17). My misgivings are, however, beside the point for present purposes. Regardless of this particular disagreement, it is still noteworthy that the definition in the ICC Elements makes no mention of “town”, “place” or assault.”

Second, other courts and tribunals that have prosecuted pillage (under the labels plunder, looting and spoliation) never refer to “town”, “place” or “assault” either. The Statutes of the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL), for instance, simply list “pillage” among war crimes applicable within their jurisdiction.[2] The fact that these and other authoritative applications of pillage make no reference to “town”, “place” or “assault” confirms that this language in the ICC Statute is legally vacuous.

Third, the reference to “a town or place, even when taken by assault” is archaic and practically obsolete. This wording comes from The Hague Regulations of 1907, Article 28 of which states that “[t]he pillage of a town or place, even when taken by assault, is prohibited.” But the history behind the provision reveals that the wording has no contemporary significance – it merely covers over an old exception that has no relevance to modern warfare. In other words, it does no normative work.

As late as the eighteenth century, pillage was perfectly legal.[3] Its subsequent prohibition came in stages. In the first instance, pillage was prohibited but subject to one important exception. As Bentworth explains “the old custom of pillage… was still retained where a besieged town was taken after having been stormed; but this was by way of penalty for obstinacy.”[4] Although pillage was prohibited, if a local population required an invading force to go to the great trouble of laying a siege, their town could be pillaged if the siege proved successful.

In the second stage, however, the laws of war sought to repeal even this exception and outlaw pillage categorically. Thus, the Hague Regulations of 1907 emphasis that “the pillage of a town or place, even when taken by assault, is prohibited.” As this history reveals, the archaic language in this provision was only meant to insist that the prohibition now extended to and encompassed the exception too; it was never meant to restrict the basic, broad proposition that pillage means theft during war.

Fourth, the inclusion of the references to “town”, “place” and “assault” in the ICC Statute was unnecessary, even if one did want to remain faithful to The Hague Regulations of 1907. Tellingly, a different provision in the very same Hague Regulations also stipulates more simply that “[p]illage is formally prohibited.”[5] The decision to include the more obscure, archaic, legally redundant alternative that referenced “town”, “place” and “assault” in the ICC Statute was therefore a poor choice.

Fifth and finally, this language is especially confusing. On its face, it appears unclear, outdated and a reflection of only European experiences of warfare. Already, it has understandably misled some of the very best prosecutors, judges, and academics who work in this field. My only hope is that the poor drafting of this component of the ICC Statute, which is without legal effect, does not inhibit principled applications of the rule in appropriate cases.


[1] See Bemba Trial Judgement, para 117 (stating that “Article 8(2)(e)(v) relates to ‘pillaging a town or place’, and therefore the pillaging of a single house would not suffice.”)

[2] Statute of the International Criminal Tribunal for Rwanda, Article 4(f); Statute of the Special Court for Sierra Leone, Article 3(f ).

[3] In 1718, for example, Vattel reflected that “it is not, generally speaking, contrary to the laws of war to plunder and lay waste to a country.” Vattel, The Law of Nations, (1797), p. 291-292. For other examples, see Grotius, Rights of War and Peace, pp. 332-334. See also, Takahashi, Cases on International Law During the Chino-Japanese War, 1899, pp. 155-156.

[4] Norman Bentworth, The Law of Private Property in War, (1907), p. 8. Similarly, Lawrence explains that during the Middle Ages, “[w]hen a place was taken by storm it was given up to pillage and rapine, no attempt to restrain the passions of the victorious soldiery being made by their commanders.” Lawrence, The Principles of International Law, (1899) p. 38.

[5] Hague Regulations 1907, Article 47.

Deterrence of and Through Other Actors

As I mentioned in my earlier introduction to their groundbreaking piece, I believe Professors Jo and Simmon’s article (available here) is exceptionally important. In particular, I very much appreciate their addition of new theoretical nuance and empirical insight to the question of deterrence in international criminal law. My reactions are less a critique and more a set of pointers about other avenues through which empiricists (these or others) might think about measuring the role of international criminal justice in deterring atrocities in the future work they call for.  As with other aspects of my research, I am interested in the role of business in this regard, which is not a topic that is directly broached in this excellent paper. I briefly demonstrate the advantages of reorienting our thinking about deterrence towards economic actors as well as one particular danger this shift could entail.

Professors Jo and Simmons are rightly sensitive to the differences “type of actor” might generate for an assessment of the ICC’s deterrence. Astutely, they disaggregate states from rebel groups, then rebel groups with secessionist aspirations from those without. Likewise, in recognizing that deterrence might not operate uniformly across all international crimes, they wisely limit their project to a single international crime: intentional killing of civilians. In light of these limitations, they “encourage further research into a range of heinous crimes – from sexual violence to trafficking in children to widespread pillaging – that the ICC was meant to address.”

If this further research comes to pass, I would recommend: (a) further disaggregating the types of actors it focuses on beyond just states and armed groups, and (b) moving beyond the single crime model to assess the extent to which deterring some international crimes can ratchet up the deterrence of others.

Before I get to these arguments, I pause to reiterate a fact I hope is widely accepted, namely, that State actors and rebel groups are not the only agents implicated in atrocities—businesspeople and the corporations they represent are often instigators, masterminds and accomplices, too. I insist on these various forms of participation in deliberate opposition to a widespread but I think unfortunate perception that business invariably plays a role that is peripheral or auxiliary to mass violence. As others have shown (see infra), even the Nuremberg Judgment recognized that the most powerful German “industrialists” signed a petition calling on President Hindenburg to appoint Adolf Hitler Chancellor. In fact, Jonathan Bush has argued that a member of the company IG Farben paid a substantial bribe to facilitate that end. More recently, several modern cases in Africa also involve businesses at the helm of terrible bloodshed, not complicit in it.

Given this reality, it is curious that much of the literature on deterrence of atrocity to date has left business out, arguing that any rational incentive generated by criminal law is unlikely to restrain the fierce passion required to perpetrate offenses of this barbarity, particularly when the probability of prosecution is so low. Yet, as I have argued elsewhere, corporations and their representatives dispassionately pursuing profit rather than historical grievances, inter-ethnic rivalries or military control over capital cities also satisfy the formal elements of international crimes in certain circumstances. And importantly, the transnational corporations that sustain bloodshed are more exposed to foreign law enforcement, more prone to rational deliberation through their commitment to profit maximization, and likely to perceive conviction for a war crime as nothing short of a commercial catastrophe. Thus, they may be more easily deterred than the armed groups Jo and Simmons focus on.

Corporate offending should itself be deterred, but focusing on businesses may also have important trickle-down effects for the deterrence of armed groups Jo and Simmons address. In a recent debate about impunity staged by the International Center on Transitional Justice, I argued that prosecuting the arms vendors who provide weapons to notoriously brutal armed groups as accomplices may, in appropriate cases, be a way of incentivizing greater compliance with ICL norms by warring factions themselves. Prosecuting weapons vendors for complicity would say to states and rebel groups alike, “If your men don’t stop these intentional killings of civilians, you won’t get weapons because your suppliers will fear becoming implicated in these crimes, and without weapons, you’ll lose the war.” Tying military objectives to the need to observe law of war precepts may assist in deterring atrocity. Obviously, this basic model is very simplistic, but I wonder if it reveals possibilities that should feature in the future work Professors Jo and Simmons call for.

This brings us to “widespread pillaging.” Uncomfortably, in virtually every situation the ICC is presently addressing, commercial pillage of natural resources has provided a means and motivation for atrocity (I do not claim that it is necessarily the only or even the dominant motivation). Prosecuting commercial actors for pillaging conflict commodities, therefore, reveals another aspect of the new promise for deterring atrocity—the war crime of pillage is a gateway to many other international crimes. On the upside, focusing on commercial pillage of natural resources may deter actors who collectively make counterfactually dependent contributions to intentional killings of civilians in most modern conflicts – without the trade in pillaged diamonds, tin or oil, the perpetrators of mass violence will be less motivated to go to war and less able to bankroll atrocity once conflict erupts. On the downside, there is also a risk of over-deterrence, where the threat of sharp judicial redress deters legitimate commercial actors from operating in volatile political climates, thereby elevating worst actors into positions of authority and penalizing civilians who are dependent on illicit mining for basic sustenance in survival economies. Optimizing deterrence is thus another key question for the future.

In all, I view Professors Jo and Simmons’ article as a wonderful opening contribution to an emerging field. I hope this symposium will foster new scholarship on these critically important issues, and that this new work will also extend to and perhaps center on, the commercial sides of atrocity.

New Symposium: Can the International Criminal Court Deter Atrocity?

Professors Hyeran Jo and Beth Simmons have authored what is arguably one of the most important articles in the field of international criminal justice in recent times. Their piece, entitled Can the International Criminal Court Deter Atrocity? (available here), defies almost all previous thinking about deterrence of atrocity by answering the question in the affirmative. Moreover, in rehearsing the previous literature on the topic, Professors Jo and Simmons lament how “[p]ractically no systematic evidence has been produced to date to support such concerns.” To correct for this deficit, they embark on a multi-faceted empirical analysis to measure the deterrent effect of the International Criminal Court, controlling for a whole range of extraneous factors that might explain the trends they observe.

I will not attempt to summarize their reasoning or findings in any great detail, but several aspects are worth emphasizing briefly. The authors begin by rehearsing much of the earlier (skeptical) literature on deterrence in international criminal justice, then offer a theory of the ICC’s “conditional impact.” The theory they develop assesses (a) prosecutorial deterrence (court-ordered punishment) as well as (b) social deterrence (extra-legal social costs associated with law violation). Having set out their theoretical expectations, Professors Jo and Simmons adopt a sampling strategy that involves 101 states and 264 rebel groups. From their ensuing analysis, they conclude that:

  • “If hypothetically, 100 civilians were killed by a non-ratifying government [of the ICC Statute], our estimates suggest about 53 civilians are likely to be killed, assuming ratification with all other control variables held constant.” (Page 28)


  • “a hypothetical well-organized secessionist movement that would have used tactics intentionally leading to the deaths of 100 civilians in the years prior to the ICC’s entry into force might have ‘only’ killed 82 civilians after entry into force, holding all other variables at their mean.” (Page 35)

Quite apart from the significance of offering a new empiricism that leads to a diametrically opposite conclusion to previous literature on this topic, the paper also adds new layers to debates about the value and legitimacy of international criminal justice as a field (I catch myself here since I am more interested in national trials for international crimes than international and critical of tendencies to lump all institutions capable of enforcing these crimes into a monolithic whole in assessing legitimacy). Even limiting our gaze to just international institutions, however, if the ICC deters meaningfully, perhaps its selectivity is less of a problem than previously imagined? Alternatively, perhaps the institution’s politics are worth tolerating?

This paper is also exciting is that, together with Kathryn Sikkink’s recent work, it marks an important empirical shift in literature on international criminal justice that is supportive of the project. In recent years, much of the discourse around international criminal justice has been critical in orientation (for my own contribution in this spirit with Asad Kiyani, see here). Nevertheless, as this blog’s manifesto intimates, I am enthusiastic about the rise of a different, relatively new, and sympathetic discourse about international criminal justice, which I hope informs a broad intellectualism in the field. Thus, I’m grateful to authors and commentators for sharing their expertise on these immensely important issues over the next fortnight. The commentators’ names and posts are listed here.

The Strangely Familiar History of the Unitary Theory of Perpetration


Bruce Ackerman et al. (eds.), Visions of Justice, Essays in Honor of Professor Mirjan Damaška (Duncker & Humblot, Berlin, 2016)

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A unitary theory of perpetration is one that does not espouse different legal standards for different forms of participating in crime. In this Article, I pay homage to Professor Damaška’s influence on my work and career by reiterating my earlier arguments for a unitary theory of perpetration in international criminal law. This Article looks to the history of the unitary theory in five national systems that have abandoned differentiated systems like that currently in force internationally in favor of a unitary variant. Curiously, the same problems Norway, Denmark, Italy, Austria and Brazil sought to solve in dispensing with differentiated systems of blame attribution are prominent in international criminal justice today. The eerie sense of déjà vu that arises from reading these histories suggests that the unitary theory may have real potential as a way through many of the key points of conceptual impasse that presently characterize this aspect of the field. In this respect, the Article seeks to contribute an historical perspective to a burgeoning dialogue about forms of blame attribution internationally by again questioning whether the great struggle with “modes of liability” is worth continuing.

This article is a sequel to an earlier theoretical defense of the unitary theory of perpetration. For this earlier work, see:

The Ahistoricism of Legal Pluralism in International Criminal Law

Co-authored with Asad Kiyani. Forthcoming, American Journal of Comparative Law (2017) (peer reviewed), 70 pages.

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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, this approach omits 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 the uncritical adoption of criminal law doctrine as a proxy for diverse social, cultural and political values. This, we say, is often a false equation that results in important normative distortions, with major implications for the field’s self-image, function and legitimacy. To reinsert that history, this Article undertakes a very substantial review of the history of criminal doctrine in various national legal systems, as well as international correlates at each stage of the field’s development.

Judicial Rejection of “Specific Direction” is Widespread

I hadn’t thought to use this blog to write individual posts on new judgments or decisions in international criminal law but at the instigation of some friends, I’m persuaded to offer some very short reactions to a number of interesting blog posts in the past week on “specific direction.” The posts include commentary by Marko Milanović, Kevin Heller, Dov Jacobs and Jens Ohlin. Despite my initial reticence to re-engage with this topic in the blogosphere, it struck me that offering some thoughts on these ideas would also be an appropriate topic to end the year on and a convenient pretext for me to wish readers happy holidays and a prosperous new year.

By way of background, the latest discussions of “specific direction” in complicity stem from a judgment by the ICTY Appeals Chamber in the Stanišić & Simatović case (hereafter “Stanišić), which again rejected “specific direction” as a relevant aspect of the actus reus for aiding and abetting (see paras 94 – 109). As most readers will know, a differently constituted Appeals Chamber at the ICTY had adopted the controversial “specific direction” standard two years ago in a case called Perišić (paras 17 –74), before the same body (differently constituted) reversed itself in a very detailed judgment called Šainović (paras 1617 – 1651). But as I point out below, the judicial treatment of this question since Perišić is actually a lot thicker than this brief history would suggest: rejection of “specific direction” is far wider.

To review, I was opposed to “specific direction” when it first emerged in Perišić. I have always thought that “specific direction” as announced by the ICTY in that case was a misreading of casual language in Tadić. I won’t rehearse everything I wrote opposing “specific direction” at the time, but I do want to reiterate my empirical findings that the concept had no grounding in customary international law, comparative criminal law or previous discussions of the theory of complicity by leading experts (see here). In addition, I also wrote a blog post on Opinio Juris responding to Kevin Heller’s thoughtful defense of the doctrine. To the extent that experts at the national level have considered this problem, this is the established orthodoxy on the topic.

To complete this (overly) long introduction, I should say that I’ve always insisted that specificity is one of the many difficult questions in the theory of complicity (see here). For this reason, I’m looking forward to reading Sasha Greenawalt’s new draft article on the topic in the new year, which discusses “specific direction” by drawing on much of the voluminous and difficult literature on the theory of complicity (sorry for the delay getting to this Sasha). I very much admire Sasha’s work and I’m very pleased to have colleagues engaging with this thorny literature, especially if they reach different conclusions to mine. As I’ve mentioned public recently, I believe that a major public debate on complicity will be a great benefit to the world, even if no consensus ever emerges about its contours.

With all these preliminaries said and done, I set out below a very short list of thoughts about the most recent emanation of the “specific direction” debate in the blogosphere. I hope some of my reactions are helpful:

  1. I would like to suggest that our discussion of “specific direction” would be far clearer if we dropped the word “direction” out of “specific direction,” calling this the specificity issue in complicity or some other clearer label depending on what we mean. As I say, “specific direction” was very casual language first employed in Tadić that didn’t really mean terribly much before Perišić (see here). The definition the Perišić court gave the concept really does the specificity problem a disservice – recall that according to the Perišić definition “specific direction” entails: (a) an assessment of whether the recipient of the aid is “an organisation whose sole and exclusive purpose was the commission of crimes” (Perišić Appeal Judgment, para. 52); (b) whether the aider “endorsed a policy of assisting” (Perišić Appeal Judgment, para. 52); and (c) a distinction based on whether the aider is present at the scene of the crime or not (Perišić Appeal Judgment, para. 39, 70). I maintain that these positions are clear misreadings of complicity and that they only detract from: (a) whatever there is that’s genuinely problematic about the specificity problem in complicity; and (b) attempts to account for that residual difficulty in the theory of blame attribution writ large. I also believe that, because advocates seldom define what they mean by the term “specific direction”, we frequently talk past one another.
  1. My main contribution to the discussions in the blogosphere, however, is to place a far larger number of cases on the table for discussion. In particular, I think it bears noting that many courts have now rejected “specific direction,” such that a differently constituted court in Stanišić could not really have taken us back to Perišić even if it had decided to readopt the controversial concept. The list of cases that have rejected “specific direction” now includes:
  • The ICTY Appeals Chamber in Šainović (paras 1617 – 1651);
  • The ICTY Appeals Chamber in Popović (para 1758)
  • The ICTY Appeals Chamber in Stanišić (paras 94 – 109)
  • The ICTR Appeals Chamber in Nyiramasuhuko et al (see para 44 of Judge Agius’s Separate Opinion)
  • The Charles Taylor Appeal Judgment (see here, paras 466 – 481).
  • The ECCC in Case No 002/01 (see paras 707 – 710)

I got the sense from some of the commentary in the last week or so that the rejection of “specific direction” here again in Stanišić was somehow a farce given the composition of the bench in this case or the lack of reasoning substantiating the position. To my mind, the first of these arguments plays down that a variety of courts, at both trial and appellate levels, have rejected the standard. Thus, the supposition that a differently constituted court would have just reinstated Perišić as a norm in ICL as a field is, I think, unconvincing.

  1. To expand on this observation, I plot here the number of judges across all courts and tribunals who have voted for and against “specific direction,” from Perisic onwards. By my rough count, at least 20 different judges have had opportunity to pronounce on “specific direction” if one includes the Perišić court and everyone since in the different cases I list in 2 above. Three judges endorsed the concept in Perišić, and now Judge Afande has on entirely different grounds, but that still leaves a full 16 judges who have voted to have it overturned, some multiple times. By the by, this includes Judge Khan in Nyiramasuhuko, which means that even in Stanišić, the Agius/Afande coalition would likely have been inadequate to reinstate the standard had the judicial changes many lament not taken place. Nevertheless, even if Khan had been on the case and helped reinstate “specific direction” in Stanišić, the resulting judgment would still be at sharp odds with the vast majority of judicial thinking on the topic. Four times more judges think it is incorrect than are willing to endorse it.
  1. Looking through these more recent cases post Perišić, I read one additional judgment (not in my list in 2 above) that I think warrants mention. The ICTR’s Ngirabatware Appeals Judgment was presided over by Judge Meron and included Judge Liu, but it also involved three other judges who were entirely new to the issue. Logically, counsel for the defense argued, drawing on Perišić, that “the Trial Chamber erred in failing to determine whether the ‘specific direction’ requirement of aiding and abetting had been satisfied in his case.” (see para 145). The Appeals Chamber unanimously rejected this argument, despite their finding that “the Interahamwe used at least some of the weapons Ngirabatware distributed […] during the attacks and killings” (see para. 148) (my emphasis). Again, I’m not sure what “specific direction” means in its best light, but if it operates to deny complicity where conduct has a dual use, then surely Ngirabatware’s conduct was not “specifically directed” and he should have been acquitted. I suspect that people may argue about this given Ngirabatware’s intentions (separate from “specific direction”), but I wanted to highlight the case to suggest that even the minority of judges who advocate for this controversial standard in complicity are less than clear about when it applies and how.
  1. On the issue of substantive reasoning, I don’t necessarily share the concern about the absence of deep reasoning in the Stanišić Judgment. I take this position because the prior decision in Šainović was surely amongst the most meticulously researched judgments in the history of this discipline, drawing on the criminal law of an enormous number of states (see Šainović Appeal Judgment, paras 1617 – 1651). I’d written a doctorate that addressed the comparative law and theory of accomplice liability in ICL, then four years of further research on the topic thereafter, but still there were many sources in this judgment I’d never even heard of before. I can’t imagine what it took to acquire and analyse all these legal materials in such a short period of time, but however one views “specific direction” as a normative concept, I think we have to acknowledge that this depth of research and justification goes far beyond what criminal courts normally offer. In fact, to the best of my knowledge, it is without parallel on any other issue in ICL before or since. Accordingly, I didn’t see terribly much reason for the Stanišić Appeal Judgment to reinvent the wheel on this; it had been fully addressed previously. To be clear, no court has offered a compelling theoretical explanation of this problem, but I believe that task falls to academics.
  1. This brings me to Judge Afande’s apparent endorsement of “specific direction” by way of dissent in Stanišić, wherein he is the first and only judge to defend the concept since Perišić (Judge Tuzmukhamedov questioned the need to address it on the facts in Šainović but he did not opine on the propriety of the doctrine itself and Judge Agius has included a paragraph in two judgments maintaining his earlier reasoning without further argument). Although I respect Judge Afande’s attempt at finding a third way through a difficult legal problem and competing dissenting positions, it strikes me that: (a) the account he offers is no longer speaking about “specific direction” as espoused by Perišić (see my point 1 above); (b) his methods for this novel third way are at times highly suspect, like the use of dictionary definitions to cut through all previous debates; and (c) the resulting position is hard to reconcile with any of the different schools of thinking about blame attribution in the theory of complicity (see here). Perhaps others will defend Afande’s reasoning, but personally, I have some difficulty imagining that it will prove adequately convincing to bring so many judges around to readopting “specific direction” given the widespread judicial disagreement with it now. My guess is that only the in-depth work of scholars will be able to do that at this point, to the extent that they are able to establish that the problem of specificity (or whatever more accurate label we can attribute to the problem) cannot be accommodated anywhere else in conventional theories of blame attribution.
  1. Finally, a brief word about the changes to the composition of the bench in Stanišić. As my colleagues have pointed out, two of the judges were replaced with others before the Stanišić appeal hearing. I know very little about this backstory and have consistently steered clear of the various political controversies surrounding “specific direction”, but I confess that I don’t fully understand the complaint that the composition made the decision predictable or arbitrary. Judge Meron, himself an advocate of “specific direction,” appointed one judge for and another against “specific direction.” I see no scandal. The orders doing so were perfectly hum-drum, speaking about “the appeal management and case distribution needs of the Tribunal.” Isn’t this entirely normal and very banal? As we now know, it’s unlikely to have changed anything in the concrete case (Khan appears to be against “specific direction”) or the field as a whole (the vast majority of ICL judges clearly oppose “specific direction.”) As for predictability, I’m not sure what the problem with that is either. Many would argue that predictability is highly desirable in a criminal trial. Moreover, judges the world over almost always come with a known set of legal commitments. Think of the US Supreme Court. The parallel isn’t entirely direct, but I wanted to raise these points because I’m not convinced that this situation at the ICTY is quite as bad, surprising or irregular as some of the previous commentators have suggested. To my mind, the only thing that would be objectionably arbitrary is if, by chance, the very few international judges prepared to endorse “specific direction” again found themselves on a single appellate bench.

In any event, I hope some of the foregoing is helpful. I’ve written this uncomfortably quickly, so I hope readers will correct my errors, if there are any. Once again, I encourage scholars of all stripes to engage with this issue and the very many other difficult problems in the theory of complicity. As I mention, I believe they are part of an important struggle to lead ethically decent lives in a world that is at once highly inter-connected and very dysfunctional.

Happy holidays to one and all.