Category Archives: International Humanitarian Law

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

[2] Tadić Jurisdiction Appeal, para. 97

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

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

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

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

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

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

[9] Tadić Appeal Judgement, para. 73

[10] Id.

[11] Gill, p. 375.

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

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

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

[15] Ibid, para 539.

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

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

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

Here is some evidence of that confusion:

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

[5] Hague Regulations 1907, Article 47.

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.

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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.