Category Archives: Human Rights

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.

The Promise and Limits of Thin Justice: A Response to the Contributors

Steven Ratner is the Bruno Simma Collegiate Professor of Law at Michigan Law School.


It’s a great pleasure for me to comment on the four contributions to this blog regarding my book. I want to express my warmest thanks to James for organizing the symposium and to Karen, David, and Colleen for joining James in writing such thoughtful essays.

Because the essays respond to so many different aspects of the book, it is somewhat difficult for me to organize the critiques and my responses thematically; instead, I will respond to each contributor in turn. Before doing so, I would acknowledge the generosity of each reviewer in accepting what I am trying to do with the book in terms of both fostering an interdisciplinary dialogue on global justice and offering my own moral assessment. In particular, they took note of both my critique of some core norms for not meeting the threshold of thin justice as well as my defense of other core norms for doing so.

James Stewart, who attempts to situate the book in relation to the critical legal studies movement, takes it in a direction somewhat similar to that offered by Jean d’Aspremont, where he regards the book as a sort of return to the natural law tradition. Both James and Jean point out that an ethical defense of some of the core norms offers a response to work within both the legal academy and philosophical circles. When I wrote the book, my main foils were the moral and political philosophers who, in my view, fail to see the justice in many of the norms, and, in particular, the balance between peace and human rights reflected in them. But I was also concerned with the legal mainstream, i.e., the bulk of legal academics who stay away from the moral underpinnings of the norms in favor of a search for doctrinal clarity. (And I too write plenty of doctrinal pieces that stay away from morality). While I criticize CLS in chapter 1 of my book for its preference for deconstruction without much room for reform, I had not appreciated until I read James’ piece how my book is very much a response to their approaches as well. Certainly, if the crits see philosophical as just another project of Western hegemony – going back to Greeks, I guess – then my book suggests otherwise. At the same time, I also took on board one of Koskenniemi’s points that legitimacy was too diffuse a standard by which to judge international law.[1]

Colleen Murphy criticizes my peace pillar for being both too broad (for including a violent governmental campaign against opponents) and too narrow (for excluding structural violence). It’s worth mentioning again that this is a book that seeks to appraise the justice of international law, not of all social arrangements. So for me the essence of the first pillar is about preventing or terminating organized violence. That violence need not be bilateral – the Nazis and the Khmer Rouge killed members of ethnic groups and political opponents without much fighting back on the victims’ part. But international law should still seek to prevent such violence. As for the exclusion of structural violence, I agree with Colleen’s point that at times the line between organized and structural violence can be thin; famines can be caused by design to destroy certain groups (Stalin’s famine) as well as through ineptitude (perhaps some of the North Korean famines). Sometimes it may be hard to tell the difference. But I think we should judge international law norms by the extent to which they end deliberate, organized violence.

As for her larger point that poverty causes more human suffering than such violence, I do not disagree. But as I discuss in rejecting equality as a pillar of thin global justice (TJIL, pp. 94-95) and also in examining the justice of trade norms (pp. 342-44), poverty has many causes, in particular domestic causes, and I believe it demands too much of international law rules to say that they are just only if they reduce poverty. At the same time, the second pillar, insofar as it includes basic economic rights, would regard as unjust a norm that causes a denial of those rights. As for her final point, at note 12 of her piece, about the sorts of peace that the first pillar demands, I agree that the first pillar would, on its own, allow for a rule of international law that promoted an unjust peace. I think the last sentence on p. 66 would be clearer if it said that the first pillar, when combined with the second pillar, does not allow for such rules.

Karen Alter seems to share the thrust of my project in pointing out the ethical ramifications of international law, for she herself does so with the consequences of various political arrangements.   And she agrees with me, citing Tom Tyler’s work, that actors are more likely to follow law directed at them if they see it as corresponding to their moral intuitions. But she then criticizes the book for developing a standard for the appraisal of the law that she sees as not independent of the law. Two responses are in order.

First, my claim that law can tell us something about morality, a point I take from Peter Cane’s work, is quite a specific argument. To quote Cane, who says it so well, “It is a philosophical mistake to think that morality can be properly and fully understood without reference to law. . . . [L]aw has institutional resources that enable it to make a distinctive contribution to answering practical questions about what one ought to do or what sort of person one should aim to be’. (TJIL, p. 6). By this, Cane means that we can understand many moral concepts be seeing the various lines that have been drawn in law, e.g., between different forms of homicide, or the scope of due process allowed under various constitutions, or the dutyholders under human rights law.   Law does not “set the ethical bar,” as she rightly points out, and certainly many laws can be unethical, but some laws, legal doctrines, and legal distinctions do help us figure out rational places where one can set the bar.

Second, while I agree with Karen that one goal of ethics is to set a “realistically high[] bar” for the evaluation of human institutions, I don’t think that precludes the sort of “reconciliation” that she criticizes. Recall that my choice of two pillars is defended in terms of both the logic of discovery and the logic of appropriateness, two moves that I believe Rawls also makes in his theory of justice. (TJIL, pp. 64-65). If her concern is with the logic of discovery – of searching within the international order for the two pillars of justice by which to appraise international law – then my response is that that different institutions should be subject to different conceptions of justice. A just college admissions system may be different from a just public assistance system, which may be different from a just set of international law rules.   We can call that reconciliation, but it’s really judging any construct in terms of standards appropriate to that construct. If the concern is with the logic of appropriateness, I think I’ve explained why the two pillars are indeed pillars of justice in the sense, again, of Rawls’ “first virtue of social institutions.” I agree with her that the two pillars, acting in concert, do not set a “sufficient ethical bar for international politics.” That is why they differ from the thicker justice that I offer later in the book. And that is also why I insist that international law cannot be the only locus of normative activity for improving the world. But my project is not to come up with that “sufficient ethical bar.” It is rather to examine the existing norms we have against a standard that takes into account what international law can do and is supposed to do.

Finally, David Luban offers probably the strongest critique of the book. I will only focus on a few key points of his very rich essay. First, I do not agree that thin justice requires reforms to the status quo only at the margins. True, it does not advocate radical reform like eliminating states or sovereign equality, but I think that changing the structure of the veto, eliminating some sovereign immunity, ensuring that trade and investment treaties and tribunals do not violate human rights, allowing for limited humanitarian intervention without Security Council approval, and other points I make are not marginal reforms. Moreover, the thicker justice that I advocate in Chapter 13 would clearly go much further – though even then, it’s not radical.

Second, David criticizes the compliance corollary as being both inappropriate for a book about (even non-ideal) justice and inconsistently applied.   I agree that feasibility is not a ground for justice, which is why it is not one of the two pillars. But it is relevant in thinking about which of the various alternatives to a just or unjust set of existing norms we might advocate. I think some of the reasons philosophers of global justice make proposals that continue to assume the existence of states are based on feasibility. Thus, I agree that the mere opposition of powerful states is not enough to take a just alternative off the table, and I (at least hope I) do not deploy it so crudely. Yet proposing a new norm in the face of well grounded predictions that it will meet with immediate and widespread noncompliance would mean that we would have a just alternative, but not a just rule.

I do not see how the compliance corollary stands in the way of various progressive moves of international law. Certainly thin justice itself does not ban progressive change. Indeed, if states adopt rules that overtly discriminate against people on invidious grounds, those rules are unjust according to the second pillar. And the opposition of some states to them does not mean we should tolerate a unjust status quo.

On the question of inconsistency of the constraint as applied, David struck fear in me with his comment that my arguments about Articles 2(4) and 51 are “philosophically unsound.” I agree that my rule consequentialism is based on judging consequences based on compliance with the rules, though I do not argue (nor need to argue) that international law rules are the primary determinants of state behavior. David says I find that Article 2(4) passes the first pillar because compliance with it would reduce war, but I find that Article 51 passes the first pillar only because it serves as a deterrent to violations of Article 2(4), which violations I have assumed will not occur. He says I have fallen into the abyss known as “hav[ing] it both ways.”

But I do not ever assume “full compliance” with rules, though obviously the entire inquiry does not work if we assume general non-compliance with them (like the realists do). International law contains rules, like Article 51 and indeed all of Chapter VII of the Charter, that are based on the likelihood of some violations of other rules and the need to prevent or respond to them. Indeed, the whole dispute settlement system of the WTO is based on the possibility of non-compliance. Article 2(4) advances peace compared to the absence of such a rule or to the pre-Charter (or pre-Kellogg-Briand Pact) rule that allowed for war for a variety of reasons. Article 51, as currently interpreted, advances peace compared to the absence of such a rule or to a rule that constricted self-defense to attacks by states only.

The possibility or even likelihood that states might respond in self-defense in the absence of a rule permitting them to do so does not mean the rule itself does not advance peace. For the deterrent value seems greater in the presence of the rule than in the absence of it. Article 51 is a remedial rule (and a permission, rather than obligation, at that). Remedial rules are only operative in the event of violations of another rule, so we have to evaluate their justice in terms of their ability to promote compliance with that other rule (assuming that rule is just).

Finally, I share David’s views that we should not elide state attitudes with those of their elites. My quote of Jessup about states having feelings is based on my own observation of state interactions in various settings, e.g., in fearing the loss of (criminal) immunity of their soldiers more than the loss of state (civil) immunity. But certainly civil society, including victims of human rights abuses, deserves respect as well. That is what the second pillar aims to do. Yet I think we have to accept that elites may have a great role to play in whether states go to war. International law rules should aim to prevent war while at the same time respecting the basic rights of individuals. I’m glad David ended with Kofi Annan’s insight about sovereignty and human rights (though, like Louis Henkin, I hate the “s” word for all sorts of reasons). My book advances a similar point – that if we can ensure the thin, and eventually thick justice, of international law, we will have struck the right balance between preservation of peace and the enjoyment of human rights.

[1]   ‘Legitimacy, Rights, and Ideology: Notes towards a Critique of the New Moral Internationalism’, Associations: Journal for Legal and Social Theory 7 (2003): 349, 371.

The Nexus among Peace, Justice and Human Rights

Colleen Murphy is a Professor in the College of Law and the Departments of Philosophy and Political Science at the University of Illinois at Urbana-Champaign, Director of the Women and Gender in GlobalPerspectives Program in International Programs and Studies, and Affiliate Faculty of the Beckman Institute


In his ambitious book, The Thin Justice of International Law, Steven Ratner offers a reconstruction and justification of the notion of justice underpinning existing international law. Ratner’s interlocutors are both international lawyers and political philosophers, groups whose research provides critical resources for his project and yet whose relationship is characterized by “mutual ignorance and suspicion.”[1] Such ignorance and suspicion are unfortunate in Ratner’s view. By failing to engage with international law, philosophers often provide prescriptions that are based on mistaken understandings of the current state of the law; and propose alternatives that, if implemented, would have detrimental foreseeable consequences. By ignoring normative questions, international lawyers fail to take a sufficiently critical stance to existing legal norms and overlook the fact that all areas of law reflect a conception of justice, a conception that stands in need of justification and can be rightly subject to critique.[2]

Global justice Ratner understands broadly as concerning the “process or outcome that assigns rights and duties to global actors so that it is clear what each such actor is entitled or required to do or have.”[3] The specification of rights and duties occurs via the legal norms and rules constitutive of international law. [4]  To count as just, such norms must be justified according to impartial reasoning, so that the equal standing of all individuals is recognized.[5] The impartial form of reasoning he adopts is ultimately consequentialist reasoning, which judges principles in terms of the state of affairs they produce.[6] Legal norms and rules are just if assignment is such that meets the substantive standard of justice justified on such consequentialist grounds, though there are “deontological concepts superimposed at points on that model” as well.

The two ‘pillars’ against which Ratner ultimately evaluates the justice of particular legal norms and rules are peace and human rights. International law rules are just if they promote peace and do not undermine basic human rights.[7] These pillars provide standards by which we could argue for change in international rules; changes are justified if they would further advance peace or reduce interference with basic rights in a manner that is feasible to implement, given existing institutions, and if such changes would comport with norms of the rule of law and procedural fairness. Ratner goes on to then demonstrate how we see this pillars reflected in norms regarding self-determination, secession, and global trade.

This book is quite extraordinary in the breadth of terrain covered, rich, and rewarding. In my post, I want to focus on the two pillars. It is not clear to me that there are in fact two distinct pillars that underpin the conception of justice Ratner advances and, if there are, the relationship between the pillars is different than what Ratner states.

My uncertainty about the existence of two distinct pillars stems from Ratner’s definition of peace in Chapter 3. There Ratner argues that peace matters because of what violence entails: death, injury, displacement, sexual violence, refugee populations, the collapse of educational and health systems, animosity, distrust and poverty.   As this list makes clear, war and violence undermine the welfare of individuals and communities.   In Ratner’s own words, “War has unparalleled catastrophic consequences for overall human welfare…war undermines the possibility of people to live decent human lives.”[8]

Peace is the absence of violence at both the intrastate or interstate level. The absence of violence is compatible with the presence of conflict; the key is that conflict is resolved in ways that do not involve physical coercion in order to secure agreement. As Ratner writes, “A just world is one where states, peoples, and individuals settle their differences with minimal recourse to physical coercion- although certainly a just world permits coercion, at least by the state, in response to certain violations of the law.”[9]

Not all violence counts as inimical to the peace that is the pillar of international law. Ratner focuses on a particular subset of violence, namely, personal, organized violence. “Personal” violence is contrasted with and used to exclude structural violence. Citing Johan Galtung, Ratner seems to understand structural violence as a product of institutional rules that may harm or disadvantage individuals in terms of their life prospects; institutionalized racism could count as an example of structural violence. The contrast is with individual actions, via physical coercion, leading to harm and the consequences of war listed above.

Such violence, however, is not uncoordinated but “organized”; indeed the violence of war is frequently organized and carried out by state actors or groups fighting the state.

Ratner’s justification for focusing on a sub-set of violence that is personal and organized is puzzling. Peace as a pillar is taken to promote aggregate welfare. It is justified on classic consequentialist grounds. Ratner recognizes, as consequentialists do, that such peace is compatible with particular individuals suffering. He also states that peace is not the same as respect for human rights; were it identical a second pillar would not be needed. So defined, peace should be compatible with state repression aimed at preventing the onset of conflict. The state is authorized to use coercion in the name of enforcing laws, and Ratner does not limit this permission when defining peace to the enforcement of just laws or laws that substantially respect human rights. So repression, even if regrettable from a human rights point of view, should be compatible with peace as he defines it. Yet Ratner states that organized violence includes “’peacetime’ purges of political opponents or manmade famines,” the death toll for which in the twentieth-century is estimated to be 167 to 188 million.[10]

The inclusion of peacetime purges and manmade famines is at odds with Ratner’s general picture. Empirically, purges of political opponents need not necessarily have the devastating consequences on overall welfare that Ratner attributes to war. When organized, targeted and especially when officially denied, there may be dramatic reductions in welfare for individuals but there need not be for communities. There may be no significant displacement, no closing of schools or health infrastructure, and no widespread distrust that results, especially if the group targeted is an unpopular minority.

Conceptually, famines are more plausibly seen as instances of structural rather than personal violence. During periods of famine no individual may be necessarily physically inflicting harm on another or physically depriving individuals of food; famines, as Amartya Sen’s work shows, are a product of the structure of rules for access or entitlements to food.[11] An empirical point could be made about famines and other forms of structural violence as well: their overall welfare reducing consequences are arguably much greater in many cases than the welfare reducing consequences of warfare. Tens of millions are affected by paradigm cases of warfare intra or interstate, but billions live in poverty that has structural roots.

More needs to be said, then, for the rationale for defining peace in a way that excludes structural violence but yet includes purges and repression. Ratner may reply that this is the best way of understanding the notion of peace underpinning international law, but even so we need to know why that conception is conceptually sound. The conceptual clarification for which I am pressing matters practically as well as theoretically. Insofar as we are to evaluate international legal rules on the basis of which they promote peace overall, it is necessary to be clear on what peace entails. Only then will we be in a position to make the consequentialist calculation as to the comparative welfare advantage of having one system of rules versus another, or the comparative advantage and risks of a proposed modification to the international legal order.

Another puzzling claim in tension with the picture laid out is that Ratner states that the first pillar “does not insist on rules that would tolerate what might be called an unjust peace or forbid a just war.”[12] This raises the question of the relationship between the first and second pillar. Strictly speaking, the first pillar does seem to permit an unjust peace, if injustice is treated as a function of how individuals are treated. Insofar as an unjust peace is impermissible, it is not because foreclosed by the first pillar. Rather, this is part of the reason for the necessity of the second pillar. Human rights matter because of their emphasis on the dignity of individuals, and the claims of individuals that should be respected even when that is not the most efficient way of promoting overall welfare. The inclusion of human rights by Ratner seems to be driven by recognition of the limits on consequentialist theories to sufficiently recognize the distinctness of persons when evaluating states of affairs.

Indeed, Ratner himself implicitly recognizes the above when he writes, “international rules under which some individuals suffer but whose overall consequences are to reduce the prospect of war, so that overall welfare is maximized, are just- up to the point where they run into the second principle discussed later.”[13] But this way of framing the relationship calls into question whether the two pillars of international law are equal. Rather, the first pillar, that of peace, seems to be driving the analysis and enjoys a certain priority. Human rights are more properly seen not as a distinct pillar to be promoted but rather as a constraint, delimiting the appropriate ways of pursuing what is in fact the primary pillar or objective of international law: peace.

 

[1] Steven Ratner, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (New York: Oxford University Press, 2015), at p. 19.

[2] Ibid., p. 2.

[3] Ibid., p. 45.

[4] Ibid., p. 46.

[5] Ibid., p. 56

[6] Ibid., p. 62.

[7] Ibid., p. 64.

[8] Ibid., p. 67

[9] Ibid., p. 66.

[10] Ibid., p. 67.

[11] Amartya Sen, Poverty and Famine: An Essay on Entitlement and Deprivation (New York: Oxford University Press, 1983).

[12] Ratner, Thin Justice, p. 66.

[13] Ibid., p. 70.

Is Thin Justice Justice?

David Luban is University Professor in Law and Philosophy at Georgetown University.


Steven Ratner’s The Thin Justice of International Law (TJIL) is a great achievement. His project – to bring contemporary analytic political philosophy into conversation with international law – is admirable, and I don’t think anyone has ever done it better. Ratner is clear, comprehensive, and creative. He sets out counter-arguments to his own views fairly and fully, and defends his conclusions against them with careful reasoning, sine ira et studio. I say all this at the outset because the nature of this symposium is to raise questions, and before turning to the criticisms I want to emphasize the many virtues of TJIL.

Of course, the central virtue of a theory is its truth. In most of the book, Ratner’s procedure is quite straightforward: he considers various central legal norms in different subject-areas of international law and tests them by asking whether they maintain peace and respect basic human rights, the “two pillars” of his system. If they do, they are, in his sense, thinly just. In what follows, I will express some doubts about the claim of thin justice to the label “justice.” But this may not be a central issue, because asking whether legal norms keep the peace and respect rights are important questions in their own right, regardless of whether these two pillars amount to “justice,” thin or thick. The heart of the book lies in his answers to the questions about which norms do the best job of keeping peace and respecting rights; whether the two pillars add up to justice is a separate theoretical meta-issue. Some existing norms pass the two tests, some don’t; some alternative possibilities score better on these tests, others don’t. (He summarizes his findings on pp. 410-13.) It would go beyond the scope of this blog post to evaluate even a fraction of these conclusions about which, Ratner himself acknowledges, he has varying degrees of confidence (409). Those conclusions are, by and large, progressive reforms, where “progressive” is measured by promotion of human rights. Thus, for example, Ratner would strip away state immunities for jus cogens crimes (and thus he rejects the ICJ’s regressive Germany v. Italy decision); he favors universal jurisdiction for core international crimes (notwithstanding distaste for it by political elites in both the powerful states and the developing world); he is on the side of R2P and against any absolute ban on humanitarian military intervention; he places both economic and political rights among the basic human rights. His views largely align with liberal internationalism. Because I largely agree with these conclusions, I rate the book high on the virtue of truth.

  1. The status quo?

Several of Ratner’s critics have complained that the book is largely a defense of the status quo, an accusation that he rejects – pointing to several important legal reforms that he advocates. But it seems to me that the complaint is fundamentally right, because non-deviation from the status quo belongs to the DNA of his project. Consider, first, that “the goal of this project is to appraise the norms we have” (84-85) – a point Ratner repeats in an EJIL:Talk! Symposium – so his starting point is the state system and the current lex lata. Even his list of basic human rights is “derived from examining the practice of states” (75-76, 98), although it would not be difficult to derive nearly the same list through direct argument. Next, he argues that respecting stable expectations is a “fairness corollary” of the rule of law (87-88). This corollary seems to imply that large-scale deviations from lex lata are unjust (unfair), because they would violate state expectations. Furthermore, Ratner adheres to a “compliance corollary” (89), which views reform proposals skeptically if they are “unrealistic.” What makes them unrealistic is that “global actors,” and in particular “powerful states do not accept certain proposed rules” (89). So current global power distributions also influence the thin theory of justice. Even though the compliance corollary is only an “alarm bell” against utopian proposals (89) rather than a theoretical requirement, Ratner likens it to Sidgwick’s “ought implies can” precept in moral theory – and that is a theoretical requirement.

Taken together, Ratner’s two corollaries imply that his inquiry could never yield results that radically change the lex lata. At best, thin justice will yield only reforms at the margin, and only those that would not seriously upset states, especially powerful states. Built into the nature of his project and his two corollaries is what Koskenniemi calls “the pull of the mainstream.” I am not sure Ratner would disagree; my sense is that he regards responsiveness to the pull of the mainstream as a virtue, not a vice, of his approach. It is what distinguishes his legally informed discussion from straight-up analytic philosophy. The pull of the mainstream explains the sense in which his theory is decidedly non-ideal; but, as I next argue, it puts pressure on the claim that it is a theory of justice.

  1. The compliance corollary

I believe the compliance corollary is a serious mistake. The analogy to Sidgwick’s “ought implies can” is misleading. Sidgwick means that morality can’t require you to do the impossible in a causal sense. It does not mean justice can’t require you to do something you don’t wish to do, for example because it is against your interests. If that were what “ought implies can” meant, it would spell the end of justice and morality. (This was Kant’s point in his 1793 essay On the common saying: That may be correct in theory, but it is of no use in practice.)

The fact that for self-interested reasons powerful states do not like some rule, and would not comply with it, has no bearing on whether, as a matter of justice, they ought to promote that rule or comply with it if it comes into being. State hostility and anticipated non-compliance is a good reason for a politician or NGO to avoid politically impossible lex ferenda proposals. But the actors governed by norms of international justice are not the reformist politicians or the NGOs. The actors are the states whose behavior the law would regulate. Under existing principles of IL formation, it is their treaty-making and opinio juris-backed practices that creates rules of IL. For a state to say “We won’t comply with this proposed rule, and therefore it cannot be a requirement of justice” would be absurd. There is no “therefore.”

It follows that the compliance corollary is not a requirement of justice, not even a methodological requirement for deriving rules of non-ideal justice. Now, it may be that Ratner agrees. At one point he concedes that the compliance corollary could actually “rule out certain proposed rules … demanded … by the two pillars of justice” that constitute his own theory (89). In other words, the compliance corollary may violate justice on Ratner’s own “thin” terms. In that case, it does not really belong in an inquiry about justice. I would say it is closer to a principle of political expedience for analysts who want their proposals to get taken seriously by politicians and policy-makers. Nothing wrong with that: but it is decidedly not the job of a theory of justice – even a non-ideal theory – to tailor its requirements to what current politicians and policy-makers will take seriously.

In any case, the compliance corollary would pose grave difficulties for one of Ratner’s pillars of thin justice, basic human rights. Taking the compliance corollary seriously would threaten the basic right of gender equality, and LGBTQ rights would stand no chance in international law. China, which never ratified the ICCPR, regularly denounces universal human rights as an affront to its sovereignty, and the current Philippine president recently said, succinctly, “Forget the laws on human rights.” The Philippines is the twelfth-largest country in the world. Russia, too, has expressed suspicion of human rights as an infringement on sovereignty; and although Russia belongs to the European Convention on Human Rights, its flagrant violations have generated a paralyzing backlog of complaints in the Strasbourg court that in their effect resemble an internet denial-of-service attack on the court’s capacity to function. It seems to me that if Ratner wishes to maintain human rights as a pillar of thin justice – as of course he does – then the compliance corollary has got to go.

One response to this objection is that what we are after is not a theory of justice (full stop) but a theory of justice within international law. A norm that those it governs won’t comply with can hardly count as law. For example, at one point Ratner considers the question of whether basic human rights should be the same in wartime as they are in peacetime. There might be theoretical reasons to think the answer is yes, but Ratner objects that states won’t comply with any such rules – and then what is the point of insisting on them as a matter of justice? (See 390-91.)

Actually, Ratner answers his own question: he argues that IHL is one area of law where thin justice “seems to bounce off” the important questions (387) rather than answering them. So one answer is that we should settle for rules that war fighters might actually comply with, but not pretend they are just. Alternatively, we could build just rules into IHL, even though war fighters won’t comply with them. (Arguably, this is precisely what happened with the law concerning human shields. The in bello rules in Additional Protocol I forbid the use of human shields, but they also forbid attacks that would inflict disproportionate civilian damage. In asymmetric or guerrilla conflicts, complying with the former might spell annihilation for the weaker party, while complying with the latter would tie the hands of the stronger party. It seems obvious that one or the other, if not both, will violate the rules – but both rules have a claim to being just.)

  1. Consequentialism

Ratner describes his approach to moral evaluation as rule consequentialist. “I am asking whether various rules or alternatives to them, if followed by the actors to whom they are directed, would be reasonably expected to lead to certain states of affairs defined in terms of peace and human rights” (83). This is rule consequentialism of a special sort: it asks about the consequences of rules if actors comply with them. It is, in other words, rule consequentialism under the assumption of full compliance. This already deviates from a more usual version of consequentialism, which asks about consequences given whatever level of compliance we would expect to find in the actual world. (It also seems in tension with the compliance corollary, but I don’t regard that as a problem because I don’t accept the compliance corollary.)

The assumption of full compliance assumes (at least implicitly) the efficacy of international law. It assumes, for example, that the reason states refrain from aggression against other states is the efficacy of the non-aggression norm in IL, rather than military deterrence and balance-of-power politics. Ratner seems uncertain about this. At one point, he concedes that IL has played little role in preventing major wars (70); elsewhere, he says that the UN’s prohibition on the use of force “had a huge effect on state attitudes regarding the legitimacy of war” (416).

My sense is that in places he assumes efficacy and in places not. Here is an example where the inconsistency is apparent on the surface. Discussing the view of some near-pacifists that the Article 51 right of self-defense actually harms rather than helps peace, Ratner reiterates his full-compliance version of rule consequentialism: “We have to evaluate, based on our intuitions and experiences, the expected real-world consequences of following one rule or another rule” (121; emphasis added). So we must ask ourselves what would likely happen if the right of self-defense were narrowed or even eliminated. The answer is “that depriving states of a right of self-defense would invite aggression” (121). That seems like mere common sense. But it is tantamount to saying that without article 51, other states would not comply with the international prohibition of aggression. Here, he drops the assumption of full compliance. The inconsistency is that Ratner assumes full compliance to test the consequence of article 51, without assuming full compliance with rules banning aggression.

But he can’t have it both ways. Either we must drop the full-compliance assumption, or apply it to both sides of the article 2(4)-article 51 dyad. If we drop the full-compliance assumption for both sides of the dyad, the argument would be that even without article 51, states experiencing aggression will fight back if they can; and, knowing this, would-be aggressors will be deterred to roughly the same extent they are now. If we apply the full-compliance assumption throughout the argument, then even without article 51, there would be no aggressors. Ratner’s conclusion that dropping article 51 would invite aggression illicitly equivocates. The argument is unsound. (I don’t mean to imply from this critique that I agree with the near-pacifist argument he is criticizing. Its proponents not only criticize article 51, but also believe that states should not defend themselves against aggression unless it threatens basic human rights, a view I find hard to swallow.)

  1. Immunity of high officials

So far I have been discussing general theoretical questions. I haven’t discussed any of his individual normative conclusions. I will single out just one, Ratner’s defense of personal immunity of incumbent high government officials against prosecution in another state’s courts for core international crimes. This is an issue of some current moment: it is increasingly obvious that the ICC has only slight capacity to bring murderous leaders to justice, and if they are immune from state prosecutions as well, they have practical impunity. Ratner favors universal jurisdiction and supports accountability. He also supports the current rule, which denies personal immunity to former officials; why, then, incumbent immunity? Not only does that immunity harm accountability, the differential treatment of incumbent and former officials obviously provides a perverse incentive for them to cling to their offices. (I note that Ratner’s differential treatment is the current law as reflected in the ICJ’s Arrest Warrant decision. So this is one issue on which he defends the status quo.)

His answer is that incumbent immunity is essential to diplomatic intercourse, and therefore to peace (204). The importance of immunity to diplomatic intercourse is what commentators usually call the “functional” theory of immunity, and it is the official rationale given in Arrest Warrant (¶¶53-55); Lord Millett also alludes to it in his thoughtful Pinochet speech. Ratner ties the functional theory to the peace pillar of thin justice. But that connection is less obvious than it appears at first glance. The fact that a particular leader or other high official is a possible target of prosecution plausibly means that the target official won’t personally participate in diplomatic negotiations with – and especially in the territory of – states that target him or her. But the evidence that that will undermine peace is sparse and even divided. Observers have said that the ICTY’s indictment of Radovan Karadžić, which prevented him from participating in the Dayton peace negotiations, was crucial for achieving an agreement. This is a case where immunity, had it been available, might have harmed peace. One can certainly imagine similar scenarios where keeping a toxic leader or genocidal foreign minister away from the negotiating table helps rather than hinders peace.

The jurisprudence on immunity sets out an alternative ground of official immunity, usually known as the “representational” theory. The latter theory holds that the head of state personifies the state itself, so that indicting a head of state insults the state’s dignity. As Lord Millett put it in his Pinochet opinion, indictment “would be an affront to the dignity and sovereignty of the state which he personifies.” Equals have no dominion over equals. Although the theories are very different, they are sometimes entwined in the jurisprudence. Notably, in Arrest Warrant the ICJ relied on the functional theory to find that the foreign minister of the Democratic Republic of the Congo enjoyed criminal immunity; but it also agreed with the DRC that Belgium had committed a “moral injury” against the DRC by issuing an arrest warrant for him (¶75) – so the representational theory is also there.

Ratner does not rest his case for incumbent immunity on the representational theory, only on the functional theory. But he does accept the representational theory’s theoretical underpinning when he argues that without sovereign equality, “unprivileged states violating human rights would be so insulted” that dialogue would become impossible (215). Elsewhere, he quotes with approval Philip Jessup’s remarks that “States have ‘feelings’” (200). So his view would at least be open to grounding incumbent immunity in the representational theory, which personifies states and their sense of dignity.

In my view, however, thinking this way illicitly anthropomorphizes states (something that Ratner himself objects to – see 197), and obfuscates matters. To be sure, state elites have feelings, and they may be insulted (or pretend to be) if they or their cronies are called to account for their crimes. But it is vital not to identify the state with its elites; doing so is one of the abiding temptations that international lawyers face, one it is crucial to resist. In addition, of course, populations often have nationalist sentiments that can be whipped up by demagogues, and perhaps that is what Ratner fears when he cautions against insulting states. This is a particularly fraught issue if the state aiming to prosecute a toxic, murderous leader of another state happens to be that other state’s former colonial master (Belgium in the DRC, Spain in Mexico, Guatemala, and Argentina). But the rage of nationalist masses should also not be packaged as the “feelings” of the state. Nationalists have no more claim to personify the state than other citizens who may not share their rages and grudges – such as the victims who have been tortured or raped or had their loved ones murdered by the toxic leader. They also have feelings, and they are also part of the nation. They are probably not the only ones in the state who shed no tears for the murderous leader who faces criminal indictment under universal jurisdiction; many others may be cheering the prosecution. The lack of evidence to substantiate a categorical link between immunity, diplomatic intercourse and peace, plus the dangers of attributing feelings of insult to states that are actually made up of a great diversity of incongruous feelings, leave a critical reader less satisfied that Ratner’s grounds for maintaining immunity are just.

I am especially concerned about this issue because in my view aggressive claims of immunity, even for jus cogens crimes, amounts to a Counter-Reformation in international law. (I have remarked on this here and here.) In addition to the Germany v. Italy case, where Ratner too argues against immunity, Arrest Warrant and the European Court of Human Rights decisions in Al-Adsani and Jones v. United Kingdom have in my view seriously damaged the avenue of accountability opened up by Pinochet. All of them place the state interest in immunity above the human interest in enforcing the jus cogens.

  1. Immunity and the romance of the nation-state

Decades ago, I warned against the theoretical error of assuming an identity between nations and states – a “romance of the nation-state” that underlies the representational theory of immunity, but also the more absolutist claims of state sovereignty. Anthropomorphizing states by speaking of their feelings, and insults to those feelings, is a version of the romance of the nation-state. It gives aid and power to demagogic elites seeking to shore up their power while committing human rights violations. Although Ratner suspects that I am hostile to the state system (123-24), that is not true; I agree with him that the state system helps keep the peace, and peace matters. My own view is closer to that of Kofi Annan in his famous 1999 address to the General Assembly, arguing that state sovereignty must be limited by human rights. This is an optimistic but unromantic view of the state. As a historical matter, Charles Tilly probably got it right that the state originated as a large-scale protection racket; Tilly’s view is not much different from David Hume’s. But we should never sneer at protection, if the opposite is no protection. Annan, as I read him, was implicitly suggesting that it is time for states to distance themselves from their Tillyan origins, and I take that to be Ratner’s project as well. All the more reason to reject the romance of the nation-state and with it the claim of murderous elites to personify their nations.

Is International Law’s Thin Line of Justice Too Thin?

Karen J. Alter is Professor of Political Science and Law at Northwestern University


In this contribution I question Ratner’s goal of seeking a thin ethical basis for international law. My undergraduate teaching separates into two courses the subjects of International Law and Ethics in International Affairs.  In The Politics of International Law we explore how international law provides a framework for finding workable solutions that can be backed by political agreement. But I also explain that international law is generated through a political process, and it reflects the reality that states are the principle decision-makers in this process.  For this reason, and because international politics is not about justice, we cannot presume that international law is or will be just. In my ethics course I argue that people care about ethics and thus ethics matters in international affairs. What is ethical and just, however, can only be determined by philosophy, meaning by philosophical debates about ethics and justice in international society. I bring international law into the ethics course, yet we repeatedly find that international law either contributes to or is unable to helpfully resolve today’s many ethically questionable political realities (If you are interested, the syllabi are available here under teaching).

Steven Ratner’s book The Thin Justice of International Law seeks to bring international law and ethics together. Ratner makes three arguments to support this unification (p. 1-2).  First, international law can transform moral prescriptions into legally binding rules that have institutions and mechanisms for implementation. This is no doubt true. Second, “international law tells us something about what international morality and justice at the international level mean in the first place.”  It is hard to dispute a ‘tells us something’ claim, but his argument would only be true if we accept that morality is defined by what people agree to do and/or actually do.  I emphasize philosophy because I believe that an important role for moral discourse is to encourage humans to aim higher, to strive for what is actually just rather than what we might collectively do or name as just.  Ratner’s third argument is that there is a version of morality inherent in international law. His book is primarily about uncovering international law’s inherent morality, which he admits is a thin version of justice.

Ratner is not suggesting that we accept flawed international law, or that we presume that international law is just.  Rather, the “thin justice of international law” is a moral floor that must be met for Ratner’s reconciliation of international law and justice to hold. Much of Ratner’s book is about investigating whether existing international law as it is implemented and practiced meets this low bar of thin justice.

The book is a brave and thoughtful engagement by an excellent, very informed and very smart scholar.  Ratner approaches the topic as an international lawyer because he wants his life’s work to serve the larger goal of justice. He is not seeking platitudes or easy truths, and I admire that he openly and in a clear-eyed way seeks this reconciliation.  His learned book is deeply embedded in existing debates about international law and international ethics, and Ratner is forthright about the choices that he makes.  While I share Ratner’s goal of creating a non-utopian understanding of international law and international justice, one that is practicable and that works to improve how international law and international politics works, I still prefer to keep morality separate.

Ratner’s thin justice sometimes feels like an argument that international law is better than the alternative.  International law surely is better than no rules at all, or rules that are created ad hoc to meet the exigencies of the moment. But ‘better than the alternative’ is not the same as moral or just. Ratner’s thin reconciliation sets international law’s justice bar very low. Even if the bar is practicably low, it is in my view too low for any moral claim to justice.

For Ratner, international law that minimizes violent conflict (e.g. that promotes the peaceful resolution of disputes) and that respects and also “produc[es] a state of affairs  characterized by the respect of the basic rights of individuals as a whole” (p. 80) provides thin justice. Ratner, of course, explicates these ideas with much greater nuance, and he is not an apologist claiming that international law delivers this low bar.  Rather, he often he finds that international law can and should do more to meet his thin justice standard.  His discussions of how international law works, and his considerations of whether key features of international governance and international law can be morally justified are excellent.  These discussions make the book magisterial– here is an international lawyer explicating and making a case that sometimes justifies the international governance status quo and other times asks for more.

I understand the lawyer’s project to seek to render the law more just in its application, and Ratner’s book serves this purpose. In my ethics course I stress that every citizen, and especially citizens of the most powerful countries in the world, should consider the ethical implications of their individual and collective choices. Because political leaders depend on public acquiesce, there is no individual choice that does not have an ethical implication.  In other words, to “do nothing” is itself an agentic choice to endorse the status quo. If one does not like the status quo, then every citizen must do something to contribute to a different outcome.  What we can do at any moment may by necessity vary over time. Students may first choose to invest in developing skills, and as a mother of teenagers I still spend a great deal of my time and energy helping my children. But we always have an obligation to do something, and this obligation grows along with our personal power and our own circumstances. Ratner’s book is example of a lawyer using his vocation to do something to make the world a better place.

I too try to do something to make international politics more ethical.   Normative agendas are seen as somewhat antithetical to the social science endeavor, but this does not mean that there is an ethics free pass for social science. For me, a political scientist fails to make an ethical contribution if he focuses only on the winners, or if she rests at the moment of finding a causal relation. A minimal ethical occupational obligation, I believe, requires that political scientists expose the distributional consequences of political decisions, naming and explaining both who wins and who loses from political processes. By exposing the winners and losers the scholar helps to frame a discussion about whether we can or should live with the status quo.  Indeed the point of understanding how interests aggregate and political decision-making occurs is to learn where and how to exert pressure for change. I go further by writing for the public, through op-eds and blogs, by including ethics in my courses, and by explicitly engaging the normative implications of my research findings. So I too seek to reconcile my profession and the goal of justice.

Unlike Ratner, however, I keep ethics separate rather than seek a reconciliation because I believe that the goal of ethics is to set a realistically higher bar. I agree that codifying ethical goals into law can harness law’s implementation tools to help reach a higher ethical bar. Indeed the overlap between morality and law is the sweet spot that makes respect for the law easier to generate (Tyler, 2006). But because law is merely the result of a political process, I don’t expect extant law to demarcate or set the ethical bar, nor do I think we should look within the law to find the ethical bar. More fundamentally, given the extent of global inequality, the poor environmental practices that contribute to global warming, and the extent of human suffering–hunger, illness and fear– in the world, I don’t think that helping to peacefully resolve disputes and promote individual human rights is a sufficient ethical bar for international politics.

Ratner performs a lawyer’s service of explicating the good and the bad of international law, while working to improve the ethics of international law.  He and I probably agree that international law can only do so much, that law will never be enough to reach the higher goal of thick justice.  Mine is thus a respectful disagreement over tactics rather than any fundamental challenge to Ratner’s admirable project of improving the ethics of international law.

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.

Can We Tell If the ICC Can Deter Atrocity?

Kate Cronin-Furman is a postdoctoral fellow in Law & International Security at Stanford University’s Center for International Security and Cooperation. She is the author of Managing Expectations: International Criminal Trials and the Prospects for Deterrence of Mass Atrocities.


The International Criminal Court opened its first investigations in 2004. In its first 12 years of operation, the court convicted two individuals of war crimes and crimes against humanity, and issued arrest warrants or summonses for 37 others. Today, the ICC is pursuing prosecutions of atrocities on the territory of eight countries and conducting preliminary examinations in seven more.

Most immediately, the goal of these efforts is to punish those responsible for egregious breaches of international law. But the bigger purpose of the court’s existence is to contribute to international peace and security. Underpinning this aim is the hope that by prosecuting the perpetrators of serious international crimes, the ICC can make mass atrocities rarer. In short, that it can deter this type of violence.

“Can the International Criminal Court Deter Atrocity?” by Hyeran Jo and Beth Simmons is one of the first rigorous empirical examinations of this claim. For skeptics (like me) of the ICC’s ability to produce deterrence, the article’s conclusions may come as something of a surprise. The authors find that state actors commit fewer intentional killings of civilians in conflict in the presence of ICC ratification, implementing statutes in domestic criminal law, and action by the court. They find that rebel violence also lessens in the face of ICC action, but not following ratification or legal change.

Even a limited and contingent reduction in violence against civilians would be great news for the ICC’s effectiveness. But the difference in findings across state vs. rebel perpetrators leads me to hesitate before interpreting these results as cause for optimism. The reason for this is that rebel violence seems like the best context in which to test ICC’s impact. The weak results on rebels therefore leave open the possibility that the strong findings on state actors are an artifact of selection effects.

Here is my logic: Analysis of the ICC’s effect on state actors is complicated by the fact that states choose to accept the court’s jurisdiction through ratification of the Rome Statute. For those who have elected to join up, it’s hard to know how the court has affected their behavior. Any reduction in a state’s use of illegal violence that follows accession to the ICC might be caused by the same factors that led the state to ratify—a democratic transition, a commitment to peace and justice, etc.

Jo and Simmons take heroic measures to address this issue, employing controls for dynamics that might explain both ratification and violence reduction in the main regressions and conducting a matching analysis as a robustness check. But the fact remains that selection effects are impossible to rule out. This is a general headache for researchers looking for effects of treaties, because the actors whose behavior we wish to study are the same actors who have chosen to join international legal regimes. The case of the ICC is something of an exception to this rule, though, because there is a set of actors who did not choose to join the treaty, but upon whom its effects might be expected to operate: rebel groups.

It is rebels who experience something closest to “random assignment” of ICC jurisdiction, because they do not participate in decisions to ratify or pass implementing statutes. (Although their behavior may be a causal factor in states’ decisions to join the court.) They therefore most closely approximate a scenario in which we could observe the effect, all else equal, of the ICC’s existence. Jo and Simmons’s results suggest that this effect exists, but is limited to a slight reduction in violence against civilians when the ICC has been more active (conducting preliminary examinations and investigations and issuing arrest warrants).

Could the comparatively weaker effect on rebels vs. state actors be explained by something other than selection effects? Absolutely. Jo and Simmons attribute it to the fact that rebels are “likely to be the most difficult case for ICC deterrence”. They argue that this is because they are difficult to apprehend and because they (particularly non-secessionist rebels) have fewer incentives to conform to international norms.

This may be true, and certainly there may be other characteristics of rebels that make them difficult to deter. They may be particularly likely to face the sort of “overriding interests” in committing atrocities that I identify in my 2013 IJTJ article as obstacles to deterrence. A rebel leader’s set of potential futures may look quite different from, and much shorter than, a high-ranking regime commander’s. The prospect of prosecution and imprisonment in The Hague, while unappealing, may simply be one more entry in a long list of equally unpleasant possible outcomes: death in battle, a domestic treason trial, overthrow and execution by your subordinates. ICC deterrence might therefore require a comparatively higher risk of prosecution. And as recent microfoundational work by Michael Broache on the effects of ICC action on rebel groups in Congo shows, their incentive structures are extremely complex—under certain circumstances, prosecution can even provoke them to escalate conflict.

However, there are countervailing dynamics: Evidence about rebel crimes is easier to gather because investigations proceed with the consent and assistance of the territorial state. Rebels can also be arrested more easily than state actors, who benefit from ingrained diplomatic practices of honoring immunities. This suggests that rebels, once charged, are more likely to be successfully prosecuted than state actors. Furthermore, for the first few years of the court’s existence, most of its targets were rebels, indicating that their risk of facing charges was also higher than state actors’.

It is therefore not clear that rebels are categorically less likely to be deterred by the threat of prosecution than state actors. But Jo and Simmons are theorizing broader deterrent effects of the ICC’s existence than those simply attributable to the increased risk of prosecution. They argue as well for a “social deterrence” mechanism, whereby social pressures impose costs on rule violators. This is a critical insight. The ICC (like many international institutions) has limited formal enforcement capabilities, but exists within a web of interconnected norms, institutions, and actors concerned with fighting impunity and protecting civilians. Treating it as a stand-alone institution and focusing on its independent effects on violence against civilians therefore misses most of the story of its impact on international relations.

Jo and Simmons’s account lends itself to the interpretation that prosecutorial and social deterrence are not separate mechanisms, but mutually reinforcing. Several of their findings demonstrate that extralegal mechanisms benefit from the role of the formalized legal institution as a focal point — evidence that both civil society and foreign aid reliance have stronger effects on reducing violence in the presence of ICC ratification than its absence is suggestive. The reverse should also be true, with prosecutorial deterrence operating more weakly in the absence of social deterrence, and kicking in only at higher levels of risk of prosecution. Empirically, that translates into an expectation that actors who are less integrated into the international community, and less beholden to domestic constituencies, would be less responsive to the presence of the ICC. This is likely to be more often true of (non-secessionist) rebels than state actors, perhaps explaining the varying findings across perpetrator types.

My own view is that the findings on the independent impacts of the International Criminal Court should be interpreted with caution, but that this hardly matters. The ICC is not independent of the broader normative context, and its position highlights what Jo and Simmons describe as “the central importance of extralegal deterrents to law violation”. Debates about the ICC’s impact have been too narrowly focused on the question of prosecutorial deterrence. The account of social deterrence offered here is a more nuanced approach to the question of how international institutions can affect behavior in the absence of robust formal enforcement capabilities, and lays the ground for a more productive research agenda on the ICC going forward.

Hey Look at Me: Deterreo, Ergo Sum

Mark A. Drumbl, Class of 1975 Alumni Professor of Law & Director, Transnational Law Institute, Washington & Lee School of Law.


“Everything must have a purpose?” asked God.
“Certainly,” said man.
“Then I leave it to you to think of one for all this,” said God.
And He went away.

— Kurt Vonnegut, Cat’s Cradle (1963)

General deterrence is routinely invoked to justify ordinary national criminal law. Intuitively, it seems plausible that would-be perpetrators of common crimes refrain from offending if they fear getting caught and then being sent before a judge. In addition, the existence of an institution that prosecutes and punishes may also deflate crime by inflating the public’s respect for the rule of law.

As a court of law, the ICC investigates, prosecutes, and punishes core international crimes. Unsurprisingly, then, the ICC’s capacity to deter such crimes emerges as a barometer of its effectiveness and legitimacy, as well as a basis upon which to rationalize its existence.

Professors Hyeran Jo and Beth Simmons investigate whether the ICC deters core international crimes. Their methodology begins with a data-set of countries with civil wars between 1989 and 2011. Noting that the Rome Statute entered into force in July 2002 (near the mid-point of the data-set’s lifespan), they attempt to disaggregate the effect of the ICC’s existence upon the number of civilians killed intentionally by government forces or rebel groups in a direct military confrontation. Jo and Simmons control and test for many interceding factors. Their research is comprehensive, meticulous, transparent, elegantly delivered, and expertly presented.

I would like to do two admittedly incongruent things in my comments. The first is to talk more about the ICC’s ability to deter. The second is to suggest that we talk a lot less about the ICC and deterrence. Whether the ICC deters atrocity is difficult to answer, but has become too comfortable and too exigent a question to ask.

Jo and Simmons locate “strong evidence of a reduction in intentional civilian killing by government actors when states implement ICC-consistent statutes in domestic criminal law,” which they indirectly attribute to the ICC’s influence. They conclude that the ICC has stronger positive effects on governments than rebel groups, although they discern an effect on rebels concerned with legitimacy. In the final sentence of their article, they posit that the ICC “has potential to save at least a few lives in some of the most violent settings in recent decades”. After fourteen years of being in operation and four years of becoming fit to begin operating, after the euphoria of Rome, and after well over $1 billion spent – there’s the bottom line.

Might the deterrent effect be even thinner than what the research – however accurate – suggests? The data-set (if I understand it accurately) extends to 2011. The data-set thereby ends early in the game. It ends before the ICC actually convicted anyone. On the one hand, the fact that the ICC has since issued a few convictions could embolden the deterrent effect by revealing the ICC’s punitive muscle to potential human rights abusers. On the other hand, a close look at the ICC’s activities since 2011 reveals the atrophied nature of whatever muscle the ICC may actually have.

The ICC’s two convictions (Lubanga and Katanga) led to prison terms of fourteen and twelve years respectively. Katanga is already free insofar as judges granted his application for sentence reduction last November. By any metric, these are lenient sentences. The ICC has also issued an acquittal. Actually taking cases to trial has exposed the frailty of much of the evidence the OTP relies on to convict and the precariousness of the accessorial liability theories it often submits. High-profile charges have been withdrawn in the Kenyan situation, where the ICC failed to guarantee witness security or testimonial accuracy and was bedeviled by obstruction on the part of the Kenyan government. OTP hibernated the stagnant Sudanese investigations late in 2014: the Security Council lacked assertiveness, Bashir is still in power (perhaps now even more firmly so), and government forces commit ongoing abuses. Happily, two high profile rebel fugitives – Bosco Ntaganda and Dominic Ongwen – are now in ICC custody. But these fugitives turned themselves in willingly. They did so because their other option – staying at large – meant they would probably be killed. They self-arrived at the ICC because it was likely a decent bet – a refuge even – for them.

The ICC may be more influential when it engages in preliminary examinations or initial investigations (i.e. when it threatens to prosecute) than when it actually brings a case to trial and sentences an offender. Colombia might be a case-in-point. This uncorks the fascinating question of the kinds of political conversations and interactivities that the specter of ICC intervention triggers. What are the domestic effects of complementarity? Dancy and Montal link ICC investigations to general domestic human rights prosecutions in Africa in what they call unintended positive complementarity. Nirej Sekhon emphasizes how complementarity reflects Foucault’s governmentality, in which international elites technocratically commune with domestic elites in a process that occludes the marginal (who mostly happen to be the victims of atrocity). Perhaps positive complementarity negates modalities of justice other than criminal trials. Selectivity, too, is a concern: in some situations in which it exercises jurisdiction, for example Uganda, the ICC achieves some justice (for LRA violence) only because it sanitizes an injustice by closing an eye to the violence of the Ugandan government.

Let’s return to the deterrence question. Jo and Simmons focus on the ICC’s ability to deter intentional killing of civilians. This category is capacious. It covers everything from group-based genocide against a defined population (Rwanda, the Yazidis today) to the targeted killing of a few individuals by a small band of specialized armed forces. Meg De Guzman is right to point out that the ICC has a gravity deficit. Although the ICC was created to deliver justice following massive jus cogens ruptures, in practice it has tended – to the frustration of many victims – to prosecute lesser crimes involving less rampant violence, including child soldiering, pillage, and destruction of historic/religious buildings. The ICTY, ICTR, ECCC, and SCSL have to date done heavier lifting when it comes to gravity. I have argued elsewhere that, as violence metastasizes into a collective project, the nature of the criminality shifts. The involvement of the rank-and-file as killers drifts from a deterrable act of deviance towards conformist behavior that normalizes violence in order to eliminate the ‘other’ for the sake of a perceived communal good. It remains unclear to me that criminal law can deter these kinds of killers or that these kinds of atrocity crimes resemble ordinary common crimes upon which deterrence theorists rest their claims. In sum, a refinement to ICC deterrence research might cleave discrimination-based mass violence (genocide and certain crimes against humanity) from other kinds of war crimes. It may be that the ICC’s deterrence capacity grafts better onto the latter category which, in turn, reflects violence that is less widespread.

Why should we talk less about whether the ICC deters? For one, repeatedly asking that very question reinforces a woefully inadequate status quo. This is the status quo in which the ICC is accepted as the best thing we can come up with internationally to deliver justice and prevent violence. There are nevertheless other ways to deter atrocity. These include actuating responsibility to protect and humanitarian intervention, reformatting a more nimble Security Council, and revisiting state sovereignty. These ways are less comforting because they require more skin in the game. Ironically, an ICC with (potential) jurisdiction over a crime of aggression might discourage humanitarian armed intervention because leaders may fear criminal liability when they intervene to help people from tyrants. Non-penal justice mechanisms, moreover, also may excel at building up the social deterrence Jo and Simmons value.

Activists invest greatly in the ICC. Activists do so, however, in a world where it’s unclear that actual atrocity survivors are single-mindedly keen on criminal trials as post-conflict priorities. Victims may wish for things that trials cannot guarantee, such as reparations, apologies, truths, reconciliation, and memorialization.

It is no answer to say: “Just because we have an ICC doesn’t mean we can’t do more!” It is no answer to posit that we live in a world of endless conjunctive permutations of “and,” “ands”, and even more “ands”. As Sarah Nouwen and Wouter Werner have argued, global policy decisions to manage conflict are not made in contexts of endless resources. These decisions entail disjunctive choices and clashes. They sit upon a topography of “ors”. We settle on the ICC as the icon of preventative justice at the expense of other options. The more we foreground the ICC, the more we settle. Yet saddling the ICC with altitudinous expectations – deterreo, ergo sum – just makes it seem weaker and lonelier.

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)

and

  • “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 Argor Heraeus Decision on Corporate Pillage of Gold

Earlier this year, a Swiss federal prosecutor wrote a reasoned opinion declining to prosecute a company named Argor Heraeus for pillaging Congolese Gold. I am grateful to Bénédict De Moerloose at TRIAL in Geneva and Ken Hurwitz at the Open Society Justice Initiative for their blessing to post the prosecutor’s decision (hereafter “the Decision”) here. The original German version of the Decision and an English translation the Open Society commissioned are now available in the links in this sentence. To the best of my knowledge, these documents are not online elsewhere, although the prosecutor did make them public by sending them to journalists (see here) and to the parties to the complaint.

I thought to write a neutral and constructive legal assessment of the prosecutor’s decision given that, some years ago, I wrote a legal study of pillage as applied to natural resources (see the English version here and the French version here), as well as an academic article that used the fact of a formal investigation against Argor Heraeus as an illustration of an important new legal development (see here). For present purposes, my neutrality is ensured by the fact that I know nothing whatsoever about the veracity of the allegations in the complaint, and I certainly do not vouch for or endorse any statement of fact about this case in the Decision or elsewhere. Accordingly, I also cannot form an opinion about whether or not the conclusion is correct.

Instead, I want to offer a balanced legal appraisal of the prosecutor’s reasoning in this the first formal document to discuss corporate pillage of natural resources ever. As will become apparent, I consider that the bulk of the legal reasoning is excellent but it is occasionally slightly erroneous – to the company’s benefit as well as its detriment. I hope my reactions are useful to reflections about this and other pillage cases moving forward, especially for a separate new case against a Belgian businessman involving the alleged pillage of Sierra Leonean diamonds, which has just resulted in an arrest in Belgium.

I resist the temptation to rehearse the factual allegations against Argor-Heraeus since these are contained in the Decision itself. Instead, I focus my legal assessment on pillage alone, even though the back end of the Decision also considers money laundering. The paragraph numbers I use within my headings below correspond to the paragraph number used in the Swiss prosecutor’s Decision. I have also cross-referenced relevant portions of my work with the Open Society on pillage whenever possible in the hope of providing a resource for those who wish to pursue these questions in greater depth than I can offer here.

Para 5.1.2 – For Private or Personal Use

The Decision adopts the definition of pillage set out in the ICC Elements of Crimes, which include the requirement that “The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use.” In the ICC Elements of Crimes, this particular element is accompanied by an asterisked footnote, which reads: “As indicated by the use of the term “private or personal use,” appropriations justified by military necessity cannot constitute the crime of pillaging.” I certainly understand that adopting this definition of pillage from a source as apparently authoritative as the ICC is attractive, but I have argued that this element of the definition of pillage in the ICC Elements of Crimes is not part of the crime of pillage and courts have vindicated this position.

In the Pillage Manual (see paras. 16-20), I set out how this “private or personal use” element in the ICC Elements of Crimes is: (a) not binding even on the ICC; (b) inconsistent with the exceptions set out in the Hague Regulations of 1907; (c) at odds with the vast majority of pillage cases post WWII, which involved prodigious pillage of natural resources to further the Nazi war machine, not for personal or private profit; (d) inconsistent with the case law of other international courts and tribunals that define pillage without referencing “personal or private use”, and (e) at odds with the explicit finding of the SCSL that “the requirement of ‘private or personal use’ is unduly restrictive and ought not to be an element of the crime of pillage.”

It is not evident that the issue played any real role in the ultimate result in the Decision, but legally speaking, the question matters a great deal because this aspect of the definition in the ICC Elements of Crimes arguably implies that armed groups can expropriate resources for military purposes during war, which I think is not correct save under very specific circumstances I set out in the Pillage Manual (see paras. 78-100). Although not especially pertinent here, the error is somewhat unfortunate in that it disseminates an inaccurate message about the significance of pillage for resource wars.

Para 5.1.2  – The Element of Force

Within the portion of the reasoning dedicated to defining pillage, the Decision also stipulates that “[t]o some extent it is also required that an element of force must be present during pillaging.” I do not agree that this phrase should be included in this reasoning insofar as it misleadingly implies that companies or the armed groups they purchase from must use force to commit pillage. While their operations certainly must be “closely related” to an armed conflict (see Pillage Manual, paras. 32-39), force is not an element of the offense of pillage itself. I explain the various reasons why below.

As support for its statement about pillaging requiring force, the Decision refers to in the ICTY’s Mucić Trial Judgment, which reads:

“While it may be noted that the concept of pillage in the traditional sense implied an element of violence [footnote 604] not necessarily present in the offence of plunder, [footnote 605] it is for the present purposes not necessary to determine whether, under current international law, these terms are entirely synonymous.”

In my view, there are several problems with the prosecutor’s reliance on this statement in the Decision:

  • The use of force is not an aspect of the ICC Elements that the Argor Decision draws on earlier to define pillage. It seems methodologically inconsistent to rely on the ICC Elements for “private and personal use,” then disagree with them later without good reason;
  • There is a great deal of case law saying pillage and plunder are synonyms, and they are translated between French and English as such. (see Pillage Manual, paras. 10-14) None of these definitions require force;
  • To the best of my knowledge, the words “implied an element of violence” in the Mucić Trial Judgment have not appeared in any of the many pillage cases since this passing reference. It is therefore somewhat surprising that the language resurfaces here; and
  • Footnotes 604 and 605 in the Mucić Trial Judgement provide very weak support for the proposition in any event. They are nowhere near evidencing virtually uniform state practice capable of supporting the proposition’s existence in customary international law, perhaps explaining why the passing comment in Mucić has not appeared elsewhere.

Section. 5.1.3 – Indirect Appropriation

A survey of case law governing pillage shows that the term “appropriate” in the ICC Elements of Crimes includes direct appropriation of property from the owner as well as indirect appropriation from an intermediary by purchasing stolen property (see Pillage Manual, paras. 40-49). The indirect appropriation limb of this interpretation is supported by the literal language of the ICC Elements of Crimes and at least twenty-six cases from post WWII trials, as well as conceptual first principles (see Pillage Manual, paras. 44-49). The Decision attempts to avoid these sources of authority by arguing that “[i]f even one accepts the view of STEWART, the accused could not be considered as perpetrators since they never acquired the gold in the legal sense.”

I address the argument about conversion rather than theft of the property that the second aspect of the sentence references further below. For now, I want to make a minor point, namely that the basis for indirect perpetration is not reducible to my view. As the Pillage Manual shows (see paras. 44-49), there are at least twenty-six incidents of indirect appropriation in the history of pillage cases, and generally, this extent of practice is more than adequate to ground an interpretation of customary international law in international criminal law. As I go on to mention, this interpretation of pillage is also conceptually coherent – although many legal systems disaggregate receiving stolen property from theft, others do not, and it is coherent to treat subsequent transfers of property as a new appropriation depriving the true owner of the property (see Pillage Manual, para. 48)

One recent development in the law of pillage that is not mentioned in my earlier work with the Open Society warrants mention here, too. If the prosecutor was concerned that the indirect appropriation principle could implicate consumers of products manufactured from pillaged conflict commodities, there were better ways of addressing that concern. The recent case law on pillage emanating from the ICC requires a “substantial” acquisition of property to constitute the crime, which helps address this concern. Although the term “substantial” is often difficult to define with perfect precision, there is no doubt that it should exclude consumers who purchase commodities constructed from pillaged natural resources. For reasons I mention below (see Section 5.2 below), the indirect appropriation principle is also important in addressing ex post facto causation in complicity.

Section. 5.1.3 – Conversion not Theft

As I mention above, the prosecutor avoids indirect appropriation as an aspect of pillage by arguing that, in any event, “the accused could not be considered as perpetrators since they never acquired the gold in the legal sense.”  Apparently, the gold remained the property of a third party intermediary while Argor was involved in refining it. I do not think this argument is quite as clear cut at the Decision suggests; regardless of whether a company actually acquires title, they may have converted the property and conversion may suffice for pillage. In Anglo-American criminal law, the difference between conversion and theft turns on whether the party misappropriating the property wants to take title in the property or not. Interestingly, if one looks at the table of cases at the back of the Pillage Manual (see Annex A), a number of WWII pillage cases involved conversion alone (note that some of the of the “coercion” references should read “conversion”). Conceptually, this makes some sense. The overarching legal test is whether the accused “appropriated” property without the consent of the owner; it makes no mention of whether the deprivation must be permanent or just temporary. In any event, this is a question that requires more careful research and thought. Moreover, in the abstract, an agreement to help an intermediary dispose of conflict gold could make a refinery complicit in the intermediary’s pillage if the agreement existed ahead of time, even if pillage does require an intention to acquire the property permanently. I address a closely related issue next.

Section. 5.2 – Causation in Complicity

The prosecutor makes an argument in the complicity section of the Decision that goes against the company, which I think is probably incorrect. The decision states that:

“The refining and hence increased value of the raw gold by [ARGOR-HERAEUS] is therefore causative of the pillaging by the FNI in the sense that, without the prospect of refining it to fine gold with a standardised gold context, pillaging, illegal trading and smuggling of raw gold would by no means have been a lucrative affair for the FNI.”

This argument is compelling on its face but it is actually an instance of ex post facto aiding and abetting, since the original pillage is complete by the time the company allegedly acquired the gold. There is an interesting discussion of this problem of ex post facto aiding and abetting in modern international criminal law. To make a longer debate short, you cannot make a causal contribution to a completed crime unless you had an agreement to do so ahead of time. Here, it is not clear that this is the case, meaning that the company could not be complicit in the original act of pillage by purchasing the resources subsequently absent some type of collaboration ab initio. 

Consequently, this type of allegation is probably better conceived as complicity after the fact, which was carved off from complicity proper in most jurisdictions over a century ago precisely because of these types of problems with retroactive causation. These problems are part of the reason why indirect appropriation (see Section 5.1.3 above) is such a significant aspect of the law governing pillage – it overcomes this difficulty with ex post facto aiding and abetting by implicating purchasers in a separate act of pillage. For these reasons, following the case law that mandates indirect appropriation was probably preferable to over-extending causation in the realm of complicity.

Section. 5.2 – The Mental Element for Complicity.

There is much discussion about the mental element(s) required for complicity, and I have written about these from a comparative perspective (see here) as well as at the ICC as part of an expert symposium held on this blog some months ago (see here). The Decision weighs in on these interesting discussions by, I believe correctly, insisting that “should have known” is too low for complicity. There are very few systems of criminal justice that consider negligence appropriate as a standard for accomplice liability and I believe it has no role in international criminal justice (although I believe it should be the central touchstone in business and human rights. See here). Nonetheless, there are still grounds for questioning the mental element for complicity the Decision adopts.

In particular, the Decision makes no mention of dolus eventualis. One of the leading Swiss textbooks on criminal law indicates that “Le complice doit avoir l’intention de favoriser la commission de l’infraction, mais le dol éventuel suffit.” (The accomplice must have the intention to favor the commission of the crime, but dolus eventalis suffices). See Michel Dupuis, Bernard Geller & Gilles Monnier, Code Pénal: Petit Commentaire (2012), p. 191. In other words, intention is required, but intention includes a cognitive appreciation of a risk plus a volitional “making peace” with that risk. It is somewhat strange that this standard does not feature in this analysis. I also understand that dolus eventualis was an issue in an earlier Swiss decision by a prosecutor when problems with “neutral acts” arose. Thus, it is unclear why no recognition of this broader mental element for complicity emerged in the Decision, and why so-called “neutral acts” did not reappear here either.

* * *

I hope the foregoing is somewhat helpful. Again, I am in no position to express an opinion about whether this Decision is rightly decided on issues of fact. My kind thanks again to Bénédict De Moerloose at TRIAL and Ken Hurwitz at the Open Society Justice Initiative for offering to post this material here.

JGS